text:
    In re AMENDMENTS TO the FLORIDA RULES OF APPELLATE PROCEDURE.
    No. SC11-192.
    Supreme Court of Florida.
    Nov. 3, 2011.
    John G. Crabtree, Chair, Appellate Court Rules Committee, Crabtree and Associates, P.A., Key Biscayne, FL, John F. Harkness, Jr., Executive Director, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Judge Mark King Leban, Eleventh Judicial Circuit, Miami, FL; Harvey Ruvin, Clerk of Courts, Miami-Dade County, Miami, FL; Michael A. Catalano, P.A., Miami, FL; Michael R. Rollo, P.A., Pensacola, FL, Responding with comments.
   PER CURIAM.

The Appellate Court Rules Committee (Rules Committee) has filed its regular-cycle report of proposed rule changes in accordance with Florida Rule Judicial of Administration 2.140(b)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Rules Committee proposes amendments to existing rules 9.100(b) (Original Proceedings); 9.110(b) (Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases); 9.120(b) (Discretionary Proceedings to Review Decisions of District Courts of Appeal); 9.125 (Review of Trial Court Orders and Judgments Certified by the District Courts of Appeal as Requiring Immediate Resolution by the Supreme Court); 9.130 (Proceedings to Review Non-Final Orders and Specified Final Orders); 9.140 (Appeal Proceedings in Criminal Cases); 9.150 (Discretionary Proceedings to Review Certified Questions from Federal Courts); 9.160 (Discretionary Proceedings to Review Decisions of County Courts); 9.180 (Appeal Proceedings to Review Workers’ Compensation Cases); 9.190 (Judicial Review of Administrative Action); 9.200(b)(4) (The Record; Transcript(s) of Proceedings); 9.225 (Notice of Supplemental Authority); 9.370 (Amicus Curiae); 9.420 (Filing; Service of Copies; Computation of Time); and 9.800 (Uniform Citation System). The Rules Committee also proposes new rule 9.170 (Appeal Proceedings in Probate and Guardianship Cases) and new form 9.900(j) (Notice of Supplemental Authority), which corresponds to its proposed amendments to rule 9.225.

The Rules Committee proposed new and amended rules; it published the proposals for comment in accordance with rule 2.140(b)(2). Three comments were received and considered by the Rules Committee. The Florida Bar Board of Governors unanimously approved the proposals.

The Court published the proposals for comment and received four comments: one comment addressing amendments to rule 9.140; one comment addressing new rule 9.170; and two comments addressing proposed amendments to rule 9.420. The Rules Committee filed a response, which includes revised proposed amendments for rules 9.140 and 9.420, respectively.

AMENDMENTS

Oral argument was held on the proposals. Having considered the Committee’s proposals, the comments, and the responses, and having heard oral argument, we adopt the new rules and the amendments, with modifications to the proposal for rule 9.140 as explained below.

Rule 9.140(d)(1)(E) (Appeal Proceedings in Criminal Cases; Withdrawal of Defense Counsel After Judgment and Sentence or After Appeal by State) is amended to recognize the recently created Office of Criminal Conflict and Civil Regional Counsel and to clarify the procedures regarding representation in criminal cases. We modify the proposed amendment because chapter 27, Florida Statutes, provides that private counsel may be appointed by court order and compensated with public funds. See § 27.40(7)(a), Fla. Stat. (2011).

Accordingly, we amend the Florida Rules of Appellate Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. These amendments shall become effective on January 1, 2012, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 9.100. ORIGINAL PROCEEDINGS

(a) [No change]

(b) Commencement; Parties. The original jurisdiction of the court shall be invoked by filing a petition, accompanied by a filing fee ifany filing fees prescribed by law, with the clerk of the court deemed to have jurisdiction. If the original jurisdiction of the court is invoked to enforce a private right, the proceeding shall not be brought on the relation of the state. If the petition seeks review of an order entered by a lower tribunal, all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents.

(c)-(d) [No Change]

(e) Exception; Petitions for Writs of Mandamus and Prohibition Directed to a Judge or Lower Tribunal. When a petition for a writ of mandamus or prohibition seeks a writ directed to a judge or lower tribunal, the following procedures apply:

(1) Caption. The name of the judge or lower tribunal shall be omitted from the caption. The caption shall bear the name of the petitioner and other parties to the proceeding in the lower tribunal who are not petitioners shall be named in the caption efas respondents.
(2)-(3) [No change]
(f)-(Z) [No change]
Committee Notes
[No change]
Court Commentary
[No change]

RULE 9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES

(a) Applicability. This rule applies to those proceedings that

(1) [No change]
(2)seek-review ■■of-orders entered in probate and guardianship matters that fínally-determine-a' right or obligation of an interested person as defined-in-the Florida Probate Code;
(3)(2) seek review of administrative action described in rules 9.030(b)(1)(C) and (c)(1)(C); and
(4)(3) seek review of orders granting a new trial in jury and non-jury civil and criminal cases described in rules 9.130(a)(4) and 9.140(c)(1)(C).
(b)-(n) [No change]
Committee Notes
[No change]
Court Commentary
[No change]

RULE 9.120. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL.

(a) [No change]

(b) Commencement. The jurisdiction of the supreme court described in rule 9.030(a)(2)(A) shall be invoked by filing 2 copies of a notice, accompanied by theany filing fees prescribed by law, with the clerk of the district court of appeal within 30 days of rendition of the order to be reviewed.

(c)-(f) [No change]

Committee Notes

[No change]

RULE 9.125. REVIEW OF TRIAL COURT ORDERS AND JUDGMENTS CERTIFIED BY THE DISTRICT COURTS OF APPEAL AS REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT

(a)-(f) [No change]

(g) Procedure When Supreme Court Accepts Jurisdiction. The jurisdiction of the supreme court attaches on rendition of the order accepting jurisdiction. If the supreme court accepts jurisdiction, it shall so order and advise the parties, the clerk of the district court, and the clerk of the lower tribunal. The clerk of the district court in possession of the record shall transfer the record in the case to the supreme court within 10 days thereafter. ■The time limitations-of the applicable jurisdictional rule-will- continue in-effect, except thatThe supreme court shall issue a briefing schedule and all papers formerly required to be filed in the district court shall be filed in the supreme court. If the supreme court denies jurisdiction, it shall so order and advise the parties and the clerk of the district court.

Committee Notes

[No change]

RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS

(a) Applicability.

(l)-(2) [No change]
(3) Appeals to the district courts of appeal of non-final orders are limited to those that
(A)-(B) [No change]
(C) determine
(i)-(vi) [No change]
(vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law; or
(viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes; or
(ix) the issue of forum non conve-niens.
(D) [No change]
(4)-(6) [No change]

(b) Commencement. The jurisdiction to seek review of orders described in subdivisions (a)(3)-(a)(6) shall be invoked by filing 2 copies of a notice, accompanied by theany filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.

(c)-(h) [No change]

Committee Notes

[No change]

RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES

(a)-(c) [No change]

(d) Withdrawal of Defense Counsel after Judgment and Sentence or after Appeal by State.

(1) The attorney of record for a defendant in a criminal proceeding shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed:
(A)-(D) [No change]
(E) in publicly funded defense and state appeals, whenthe lower tribunal has entered an order appointeding the office of the public defender for the local circuit court, the district-office of criminal conflict and civil regional counsel, or private counsel as provided by chapter 27, Florida Statutes, that office, or attor-neywho-shall initially-remain counsel for the appeal until the record is transmitted to the appellate court. In publicly funded state appeals, defense counsel shall additionally file inwith the appellate court a copy of the lower tribunal’s order appointing the local public defender, the office of criminal conflict and civil regional counsel, or private counsel. In non-publicly funded defense and state appeals, retained appellate counsel shall file a notice of appearance in the appellate court, or defense counsel of record shall file a motion to withdraw in the appellate court, with service on the defendant, that states what the defendant’s legal representation on appeal, if any, is expected to be. Documents filed in the appellate court shall be served on the attorney general (or state attorney in appeals to the circuit court).
(2) [No change]

(e) [No change]

(f) Record.

(1) Service. The clerk of the lower tribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal. However, the clerk shall not serve the record until all proceedings designated for transcription have been transcribed by the court reporter(s) and filed with the clerk. If the designated transcripts have not been filed by the date required for service of the record, the clerk shall file with the appellate court, and serve on all parties and any court reporter whose transcript has not been filed, a notice of inability to complete the record, listing the transcripts not yet received. In cases where the transcripts are filed after a notice from the clerk, the clerk shall prepare and file the record within 20 days of receipt of the transcripts. An order granting an extension to the court reporter to transcribe designated proceedings shall toll the time for the clerk to serve this notice or the record on appeal.
(2)-(6) [No change]

(g)-(i) [No change]

Committee Notes
[No change]
Court Commentary
[No change]

RULE 9.150. DISCRETIONARY PROCEEDINGS TO REVIEW CERTIFIED QUESTIONS FROM FEDERAL COURTS

(a) Applicability. On either its own motion or that of a party, the Supreme Court of the United States or a United States court of appeals may certify one or more a questions of law to the Supreme Court of Florida if the answer is determinative of the cause and there is no controlling precedent of the Supreme Court of Florida.

(b) Certificate. The — certificate—shah containThe question(s) may be certified in an opinion by the federal court or by a separate certificate, but the federal court should provide the style of the case, a statement of the facts showing the nature of the cause and the circumstances out of which the questions of law arise, and the questions of law to be answered. The certificate shall be prepared as directed-by the federal court. — It shall be certified to the Supreme Court of Florida by the clerk of the federal court.'

(c) [No change]

(d) Briefs. The brief of the party designated by-the- federal court as the moving party shall be served within 20 days of the fihng-of-'the certificate, — Additional briefs shall be served as prescribed by- rule QJfi-QJf the Supreme Court of Florida, in its discretion, requires briefing, it will issue an order establishing the order and schedule of briefs.

(e)Costs. The costs of these proceedings shall-be-divided equally-befiveen the par-ties-unless otherwise ordered-by the eeurtrThe taxation of costs for these proceedings is a matter for the federal court and is not governed by these rules.

Committee Notes

[No change]

RULE 9.160. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF COUNTY COURTS

(a) [No change]

(b) Commencement. Any appeal of an order certified by the county court to be of great public importance must be taken to the district court of appeal. Jurisdiction of the district court of appeal under this rule shall be invoked by filing 2 copies of a notice and a copy of the order containing certification, accompanied by theany filing fees prescribed by law, with the clerk of the lower tribunal. The time for filing the appeal shall be the same as if the appeal were being taken to the circuit court.

(c)-(j) [No change]

Committee Notes

[No change]

RULE 9.170. APPEAL PROCEEDINGS IN PROBATE AND GUARDIANSHIP CASES

(a) Applicability. Appeal proceedings in probate and guardianship cases shall be as in civil case's, except as modified by this rule.

(b) Appealable Orders. Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Orders that finally determine a right or obligation include, but are not limited to, orders that:

(1) determine a petition or motion to revoke letters of administration or letters of guardianship;
(2) determine a petition or motion to revoke probate of a will;
(3) determine a petition for probate of a lost or destroyed will;
(4) grant or deny a petition for administration pursuant to section 733.2123, Florida Statutes;
(5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made;
(6) remove or refuse to remove a fiduciary;
(7) refuse to appoint a personal representative or guardian;
(8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward;
(9) determine a motion or petition to restore capacity or rights of a ward;
(10) determine a petition to approve the settlement of minors’ claims;
(11) determine apportionment or contribution of estate taxes;
(12) determine an estate’s interest in any property;
(13) determine exempt property, family allowance, or the homestead status of real property;
(14) authorize or confirm a sale of real or personal property by a personal representative;
(15) make distributions to any beneficiary;
(16) determine amount and order contribution in satisfaction of elective share;
(17) determine a motion or petition for enlargement of time to file a claim against an estate;
(18) determine a motion or petition to strike an objection to a claim against an estate;
(19) determine a motion or petition to extend the time to file an objection to a claim against an estate;
(20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate;
(21) settle an account of a personal representative, guardian, or other fiduciary;
(22) discharge a fiduciary or the fiduciary’s surety;
(23) award attorneys’ fees or costs; or
(24) approve a settlement agreement on any of the matters listed above in (1)-(23) or authorizing a compromise pursuant to section 733.708, Florida Statutes.

(c) Record; Alternative Appendix. An appeal under this rule may proceed on a record prepared by the clerk of the lower tribunal or on appendices to the briefs, as elected by the parties within the time frames set forth in rule 9.200(a)(3) for designating the record. The clerk of the lower tribunal shall prepare a record on appeal in accordance with rule 9.200 unless the appellant directs that no record shall be prepared. However, any other party may direct the clerk to prepare a record in accordance with rule 9.200. If no record is prepared under this rule, the appeal shall proceed using appendices pursuant to rule 9.220.

(d) Briefs. The appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220 (if applicable), shall be served within 70 days of filing the notice of appeal. Additional briefs shall be served as prescribed by rule 9.210.

(e) Scope of Review. The court may-review any ruling or matter related to the order on appeal occurring before the filing of the notice of appeal, except any order that was appealable under this rule. Multiple orders that are separately appealable under rule 9.170(b) may be reviewed by a single notice if the notice is timely filed as to each such order.

RULE 9.180. APPEAL PROCEEDINGS TO REVIEW WORKERS’ COMPENSATION CASES

(a) [No change]

(b) Jurisdiction.

(l)-(3) [No change]
(4) Notice of Appeal. The notice shall be substantially in the form prescribed by rule 9.900(a) or (c), and shall contain a brief summary of the type of benefits affected, including a statement setting forth the time periods involved which shall be substantially in the following form:
I hereby certify that this appeal affects only the following periods and classifications of benefits and medical treatment:

1. Compensation for.(TTD, TPD, wage loss, impairment benefits, PTD, funeral benefits, or death benefits). from.(date).to.(date).

2. Medical benefits.

3. Rehabilitation.

4. Reimbursement from the SDTF for benefits paid from.(date). to.(date).

5. Contribution for benefits paid from.(date).to.(date).

(c)-(e) [No change]

(f) Record Contents: Final Orders.

(l)-(5) [No change]
(6) Preparation — of—RecordTran-script(s) of Proceedings.
(A) Selection of Reporter by Lower Tribunal. The-lower. tribunal shall supervise the preparation-of ■ the rec-er4 — The lower-tribunal or deputy chief judge of compensation claims shall select the reporter or transcriber to prepare the-recordtranscribe any hearing(s). The deputy chief judge who makes the selection shall give the parties notice of the selection.
(B) [No change]
(C) Certification of Record Transcript by Court Reporter or Transcriber. The reporter or transcriber designated by the lower tribunal-or deputy chief judge of compensation claims shall transcribe, certify, and deliver all — necessary copiesan electronic version of the record — transcripts) to the lower-tribunal as required — ander-these rulesclerk of the office of the judges of compensation claims. The recordtranscript(s) shall be delivered in sufficient time for the lower tribunal clerk of the office of the judges of compensation claims to re-vievMncorporate transcript(s) in the recordand send it to-the-court. The reporter or transcriber shall promptly notify all parties in writing when the reeordtranscript(s) is delivered to the lower tribunalclerk of the office of the judges of compensation claims.
(D) Certification-and-Transmittal by Lower — Tribunal.—The lower tribunal shall review^-the-original- rec- or-d^-cert-ify-that-it - was prepared in accordance with -these-rules; -and w-ithin-60- days of the notice of appeal being filed transmit the-r-eGord to the court.
(E)-Copiesi — The- lower tribunal shall-provide-a copy of the record to all counsel of record and all unrepresented parties.
(7) Preparation, Certification, and Transmittal of the Record. The deputy-chief judge of compensation claims shall designate the person to prepare the record. The clerk of the office of the .judges of compensation claims shall supervise the preparation of the record. The record shall be delivered to the lower tribunal in sufficient time for the lower tribunal to review the record and send it to the court. The lower tribunal shall review the original record, certify that it was prepared in accordance with these rules, and within 60 days of the notice of appeal being filed transmit the record to the court. The lower tribunal shall provide an electronic image copy of the record to all counsel of record and all unrepresented parties.
(7)(8) Extensions. For good cause, the lower tribunal may extend by no more than 30 days the time for filing the record with the court. Any further extension of time may be granted by the court.
(g)(9) Applicability of Rule 9.200. Rules 9.200(a)(3), (c), and (f) shall apply to preparation of the record in appeals under this rule.

(g)-(i) [No change]

Committee Notes
1996 Adoption. [No change]

2011 Amendments. Subdivision (b)(4) was amended to provide for the use of form 9.900(c) in appeal of non-final orders.

Subdivisions (f)(6) and (f)(7) were amended to conform to section 440.29(2), Florida Statutes, providing that the deputy chief judge, not the lower tribunal, is authorized to designate the manner in which hearings are recorded and arrange for the preparation of records on appeal. Moreover, it provides statewide uniformity and consistency in the preparation of records on appeal by incorporating electronic and other technological means to promote efficiency and cost reduction. Currently the electronic version of the transcript is the Portable Document Format (PDF).

RULE 9.190. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

(a) [No change]

(b) Commencement.

(1) An appeal from final agency action as defined in the Administrative Procedure Act, chapter 120, Florida Statutes, including immediate final orders entered pursuant to section 120.569(2)(n), Florida Statutes, or other administrative action for which judicial review is provided by general law shall be commenced in accordance with rule 9.110(c).
(2) Review of non-final agency action under the Administrative Procedure Act, including non-final action by an administrative law judge, under the Administrative Procedure Act and agency orders entered pursuant to section 120.60(6), Florida Statutes shall be commenced by filing a petition for review in accordance with rules 9.100(b) and (c).
(3) [No change]

(c) The Record.

(1) [No change]
(2) Review of Final Action Pursuant to the Administrative Procedure Act.
(A)-(E) [No change]
(F) In an appeal from an immediate final order entered pursuant to section 120.569(2)(n), Florida Statutes, the record shall be compiled in an appendix pursuant to rule 9.220 and served with the briefs.
(3)-(6) [No change]

(d) [No change]

(e) Stay Pending Review.

(1) [No change]

(2) Application for Stay Under the Administrative Procedure Act.

(A) [No change]
(B) When an agency has ordered emergency suspension, restriction, or limitations of a license under section 120.60(6), Florida Statutes, or issued an immediate final order under section 120.569(2)(n), Florida Statutes, a licensee the affected party may file with the reviewing court a motion for stay on an expedited basis. The court may issue an order to show cause and, after considering the agency’s response, if timely filed, grant a stay on appropriate terms.
(C)-(D) [No change]
(3)-(4) [No change]

Committee Notes

1996 Amendment. [No change]

2000 Amendment. [No change]

2004 Amendment. [No change]

2011 Amendment. Subdivisions (b)(1) and (b)(2) were amended to clarify the procedures for seeking judicial review of immediate final orders and emergency orders suspending, restricting, or limiting a license. Subdivision (c)(2)(F) was added and subdivision (c)(2) was amended to clarify the record for purposes of .judicial review of immediate final orders.

RULE 9.200. THE RECORD

(a) [No change]

(b) Transcript(s) of Proceedings

(l)-(3) [No change]
(4) If no report of the proceedings was made, or if the transcript is unavailable, the appellanta party may prepare a statement of the evidence or proceedings from the best available means, including the appellant’sparty’s recollection. The statement shall be served on the appelleeall other parties, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement or approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

(c)-(g) [No change]

Committee Notes

[No change]

RULE 9.225. NOTICE OF SUPPLEMENTAL AUTHORITY

Notices of supplemental authority may be filed with the court before a decision has been rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that have been discovered after the last brief served in the cause. The notice shall not contain argument, but may identify briefly the poiatsissues argued on appeal to which the supplemental authorities are pertinent,-but shall not contain-argument if the notice is substantially in the form prescribed by rule 9.900CÍ). Copies of the supplemental authorities shall be attached to the notice.

Committee Notes

1996 Adoption. [No change]

2011 Amendment. When filing a notice of supplemental authority, attorneys and parties are encouraged to use pinpoint citations to direct the court to specific pages or sections of any cited supplemental authority.

RULE 9.370. AMICUS CURIAE

(a)-(b) [No change]

(c) Time for Service. An amicus curiae must serve its brief no later than 510 days after the first brief, petition, or response of the party being supported is servedfiled. An amicus curiae that does not support either party must serve its brief no later than §10 days after the initial brief or petition is serveáfíled. A court may grant leave for later service, specifying the time within which an opposing party may respond. The service of an amicus curiae brief does not alter or extend the briefing deadlines for the parties. An amicus curiae may not file a reply brief.

(d) [No change]

Committee Notes

[No change]

RULE 9.420. FILING; SERVICE OF COPIES; COMPUTATION OF TIME

(a) [No change]

(b) Service.

(1) By a Party or Amicus Curiae. All original papers shall be filed either before service or immediately thereafter. A copy of all documents filed under these rules shall, before filing or immediately thereafter, be served on each of the parties. The lower tribunal, before the record is transmitted, or the court, on motion, may limit the number of copies to be served.
(2) By the Clerk of Court. A copy of all orders and decisions shall be transmitted, in the manner set forth for service in rule 9.420(c), by the clerk of the court to all parties at the time of entry of the order or decision, without first requiring payment of any costs for the copies of those orders and decisions. Prior to the court’s entry of an order or decision, the court may require that the parties furnish the court with stamped, addressed envelopes for transmittal of the order or decision.

(c)-(f) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 9.800. UNIFORM CITATION SYSTEM.

This rule applies to all legal documents, including court opinions. Except for citations to case reporters, all citation forms should be spelled out in full if used as an integral part of a sentence either in the text or in footnotes. Abbreviated forms as shown in this rule should be used if the citation is intended to stand alone either in the text or in footnotes.

(a)-(b) [No change]

(c) Florida Circuit Courts and County Courts.

(l)-(2) [No change]
(3)For opinions not published in Florida Supplement, cite to Florida Law Weekly Supplement: State v. Campeau, 16 Fla. L. Weekly Supp. C65 (Fla. 9th Cir.Ct. Nov. 7, 1990). If not therein, cite to the slip opinion: State v. Cam-pean, No. 90-4363 (Fla. 9th Cir.Ct. Nov. 7,1990).

(d) Florida Administrative Agencies. (Cite if not in Southern Reporter.)

(l)-(2) [No change]
(3) For-decisions of all other agencies^ Insurance Co. v. Department of Ins,, 2 F.A.L.R. 648-A (Fla. Dept. of-Insurance 1980). For decisions posted on the Division of Administrative Hearings’ website: Big Bend Hospice, Inc. v. Agency for Health Care Administration, Case No. 01-4415 CON (Fla. DOAH Nov. 7, 2002; Fla. AHCA Apr. 8, 2003).
(4) For decisions that are not posted on the Division of Administrative Hearings’ website but are reported in the Florida Administrative Law Reports: Insurance Co. v. Dep’t of Ins., 2 F.A.L.R. 648-A (Fla. Dep’t of Ins. 1980).
(5) For orders that are not posted on the Division of Administrative Hearings’ website or reported in one of the above reporters: In re Town of Inglis Petition for Waiver, Final Order No. 07-0590 (Fla. PEP Apr. 12, 2007) (available from the agency clerk).

(e)-(h) [No change]

(i) Florida Rules.

Fla. R. Civ. P. 1.180.

Fla. R. Jud. Admin. 2.110.

Fla. R.Crim. P. 3.850.

Fla. R. Work. Comp. P. 4.113.

Fla. Prob. R. 5.120.

Fla. R. Traf. Ct. 6.165.

Fla. Sm. Cl. R. 7.070.

Fla. R. Juv. P. 8.070.

Fla. R.App. P. 9.100.

Fla. R. Med. 10.100.

Fla. R. Arb. 11.010.

Fla. Fam. L.R.P. 12.010.

Fla. Admin. Code R. 62D-2.014.

R. Regulating Fla. Bar 4-1.10.

Fla. Bar Found. By-Laws, art. 2.19(b).

Fla. Bar Found. Charter, art. Ill, § 3.4.

Fla. Bar Integr. R., art. XI, § 11.09.

Fla. Jud. Qual. Comm’n R. 9.

Fla. Std. Jury Instr. (Civ.) 6.4(c)601.4.

Fla. Std. Jury Instr. (Crim.) 2.03.

Fla. Std. Jury Instr. (Crim.) Robbery.

Fla. Stds. Imposing Law. Sanes. 9.32(a).

Fla. Bar Admiss. R. 3-23.1.

(j)-(p) [No change]

Committee Notes

1977 Adoption. [No change]

1992 Amendment. [No change]

2011 Amendment. Subdivision (d)(3) was revised and subdivisions (d)(4) and (d)(5) were added to reflect changes in how agencies are publishing their decisions. Section 120.53(2)(a), Florida Statutes, was revised in 2008 to allow agencies to electronically transmit their decisions to the Division of Administrative Hearings for posting on the Division’s website in lieu of publishing them in an official reporter. Additionally, recommended and final orders in cases heard by the Division are available on the Division’s website, www. doah.state.fl.us. See § 120.57(l)(m), Fla. Stat. Final orders in cases not heard by the Division or electronically submitted to the Division by an agency for posting on the Division’s website or published in a reporter should be available from the agency that issues the order.

RULE 9.900. FORMS

(a)-(i) [No change]

(l) Notice of Supplemental Authority

NOTICE OF SUPPLEMENTAL AUTHORITY

[Appellant/Petitioner] [Appellee/Respon-dent], , submits as supplemental authority the [decision/rule/statute/other authority] of _ , a copy of which is attached to this notice. The supplemental authority is pertinent to the issue on appeal identified as . and [discussed on pages . of the _ brief] [raised at oral argument].

Attorney for.(name of party) . .(address and phone number). Florida Bar No.

Committee Notes

[No change]

      . There was no opposition to the proposals at oral argument.

      . Section 27.40(7)(a) provides:
      A private attorney appointed by the court from the registry to represent a client is entitled to payment as provided in s. 27.5304. An attorney appointed by the court who is not on the registry list may be compensated under s. 27.5304 if the court finds in the order of appointment that there were no registry attorneys available for representation for that case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Johnny HOSKINS, a/k/a Jamile Alle, Appellant, v. STATE of Florida, Appellee.
    No. SC10-450.
    Supreme Court of Florida.
    Nov. 3, 2011.

      Billing Jennings, Capital Collateral Regional Counsel, Raheela Ahmed and Carol Contreras Rodriguez, Assistant OCR Counsel, Middle Region, Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Senior Assistant Attorney, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Johnny Hoskins, a prisoner under sentence of death, appeals from the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the circuit court’s order denying relief.

I. BACKGROUND

In October 1992, Hoskins raped and then gagged and bound Dorothy Berger, his eighty-year-old neighbor, in her home. After putting her in the trunk of her own car, Hoskins drove the car from Melbourne, Florida, to his parents’ home in Georgia. Upon arrival early in the morning the next day, Hoskins borrowed a shovel from his father and drove to a nearby area, where he strangled his victim to death before he buried her. Hoskins v. State, 702 So.2d 202, 203-04 (Fla.1997). When the victim was found, she was still gagged and bound, and her body evidenced that she had been beaten and suffered several blows to the head. Id. at 204. Hoskins was convicted of first-degree murder, burglary of a dwelling, sexual battery with physical force, kidnapping, and robbery. Id. at 203. The trial court vacated the first penalty phase and held a second, following which the court sentenced Hos-kins to death. On appeal, we affirmed the convictions and the sentences on all but the murder charge. Id. at 210. With regard to the death sentence for the first-degree murder, however, we remanded the case for the trial court to order a positron emission tomography (PET) scan of Hos-kins based on the testimony of Hoskins’ neuropsychologist during the penalty phase. Id. at 210-11. Subsequently, we vacated Hoskins’ death sentence and ordered that a new penalty phase be conducted. Hoskins v. State, 735 So.2d 1281, 1281 (Fla.1999). Following this third penalty phase, the circuit court again imposed a sentence of death upon determining that any of the three aggravating circumstances found outweighed the mitigation:

Following the new penalty phase proceeding, the jury recommended death by a vote of 11-1. By special interrogatories, the jury found three aggravating circumstances: (1) the capital felony was committed during the course of or in flight after committing the crimes of robbery, sexual battery, or kidnapping (vote of 12-0); (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest (vote of 12-0); and (3) the capital felony was especially heinous, atrocious, or cruel (HAC) (vote of 10-2). The trial court found the same aggravating circumstances had been proven beyond a reasonable doubt.
The trial court found the following mitigating circumstances: (1) the Defendant formed and maintained loving relationships with his family (little weight); (2) the Defendant was a father figure to his siblings (little weight); (3) the Defendant protected his mother from his father’s abuse (little weight); (4) low IQ (little weight); (5) low mental functional ability (little weight); (6) some abnormalities in the brain which may cause some impairment (little weight); (7) an impoverished and abusive background (some weight); (8) mental age equivalent (between fifteen and twenty-five) (little weight); (9) the Defendant helped support his family financially (little weight); (10) the Defendant had and cared for many pets (little weight); (11) no disciplinary problems in school (little weight); (12) the Defendant suffered from poor academic performance and left school at age sixteen to work to help his family (little weight); (13) the Defendant was not malingering (little weight); (14) the Defendant expressed remorse (little weight); (15) potential for rehabilitation and lack of future dangerousness (little weight); and (16) good jail conduct, including death row behavior (little weight). The trial court concluded that any one of the aggravating circumstances standing alone far outweighed all of the mitigating circumstances and resentenced Hoskins to death.

Hoskins v. State, 965 So.2d 1, 6-7 (Fla.2007) (emphasis added), cert. denied, 552 U.S. 1152, 128 S.Ct. 1112, 169 L.Ed.2d 827 (2008). We affirmed the sentence. Id. at 22.

Hoskins subsequently filed a motion for postconviction relief, largely alleging claims of ineffective assistance of counsel. After an evidentiary hearing, the circuit court denied relief. Hoskins now appeals from the denial of this motion.

II. CLAIMS ON APPEAL

In this appeal, Hoskins contends that defense counsel provided constitutionally ineffective assistance in the penalty phase. Specifically, Hoskins claims (A) that defense counsel failed to develop and present evidence that Hoskins suffered from intermittent explosive disorder; (B) that defense counsel failed to use a mitigation specialist; and (C) that defense counsel failed to present evidence of Hoskins’ drug abuse as mitigation. Hoskins then argues that the cumulative effect of these errors denied him the constitutional right to a fair trial. Before addressing these claims, we first set out the applicable standard of review.

Claims of ineffective assistance of counsel are reviewed under the two-pronged standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the burden falls on the defendant to identify specific acts or omissions that demonstrate counsel’s performance was unreasonable under prevailing professional norms. Duest v. State, 12 So.3d 734, 742 (Fla.2009). Counsel’s errors must be “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, the defendant must prove that the deficient performance resulted in prejudice. Id. Thus, the defendant must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. 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.” Anderson v. State, 18 So.3d 501, 509 (Fla.2009). In reviewing a claim that counsel’s representation was ineffective based on a failure to investigate or present mitigating evidence, the Court requires the defendant to demonstrate that the deficient performance deprived the defendant of a reliable penalty phase proceeding. Henry v. State, 937 So.2d 563, 569 (Fla.2006); see Gaskin v. State, 737 So.2d 509, 516 n. 14 (Fla.1999) (“Prejudice, in the context of penalty phase errors, is shown where, absent the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different or the deficiencies substantially impair confidence in the outcome of the proceedings.”), receded, from in part on other grounds by Nelson v. State, 875 So.2d 579, 582-83 (Fla.2004).

A. Ineffective Assistance Regarding Intermittent Explosive Disorder

Hoskins first contends that defense counsel was ineffective for failing to present evidence that Hoskins suffers from intermittent explosive disorder (IED), a mental illness defined by the American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-TR). He alleges that such evidence would have established that at the time of the murder, he was unable to conform his actions to the requirements of law and was under the influence of an extreme mental or emotional disturbance — the two statutory mental health mitigators. See § 921.141(6)(b), (f), Fla. Stat. (2004). Accordingly, Hoskins claims that had counsel found and presented evidence that he has IED, the balance of mitigation would outweigh the aggravating factors.

At the third penalty phase, three experts testified that Hoskins had a frontal lobe impairment and that as a result Hos-kins had difficulty controlling his impulses and exercised poor judgment. First, Dr. Harry Krop, a neuropsychologist, testified for Hoskins at all three penalty phase proceedings. Dr. Krop based his opinion on his several interviews and testing of Hoskins conducted between 1993 and 2003 and his review of police reports, school records, and other information. He determined that Hoskins had an IQ of 84, which is low average. Dr. Krop opined that a frontal lobe impairment negatively affected Hoskins’ executive functioning and caused him to react impulsively. As a result, in emotionally charged situations, Hoskins would have difficulty reining in or controlling his behavior. With regard to the sexual battery of Ms. Berger in her home, Dr. Krop testified that Hoskins, who was already angry with his girlfriend, reacted violently to his victim’s frustration with his continued presence in her home and a comment that she made to him. The expert concluded that this “rage reaction” was “consistent with frontal lobe impairment.” Dr. Krop opined, however, that Hoskins’ subsequent actions required planning and reflected Hoskins’ consciousness of wrongdoing and his effort to avoid arrest and cover up the crime. Hoskins, 965 So.2d at 17. Dr. Frank Wood and Dr. Joseph Wu, both of whom were neurologists, examined Hoskins’ PET scan. They concurred with Dr. Krop that Hoskins had a frontal lobe impairment that negatively impacted Hoskins’ impulse control and judgment. The trial court concluded that although Hoskins had a brain impairment that reduced his control over impulsive behavior, the evidence did not support a finding of either statutory mitigator. On appeal, we affirmed. Id. at 16-18.

In his motion for postconviction relief, Hoskins urged that in the third penalty phase, defense counsel should have found an expert to testify that Hoskins suffers from IED. At the postconviction eviden-tiary hearing, Dr. Hyman Eisenstein, a neuropsychologist, testified based on his testing of Hoskins and review of the other experts’ work, that Hoskins’ frontal lobe impairment was severe and that Hoskins met the criteria for IED, a mental disorder defined in DSM-IV-TR. Specifically, he stated that the condition is characterized by disproportionately aggressive reaction to precipitating stressors and cited examples from Hoskins’ history, some of which Dr. Krop also cited in his diagnosis of Hoskins during the penalty phase. In contrast to Dr. Krop’s penalty phase testimony, however, Dr. Eisenstein opined that, as a result of IED, Hoskins’ actions were impulsive and uncontrollable from the time of the sexual battery through the time of the murder, some six hours later. The postconviction court denied Hoskins’ claim, and we affirm.

Hoskins has failed to establish either deficient performance or prejudice. In his postconviction motion, counsel does not challenge Dr. Krop’s expertise or testimony. Instead, Hoskins claims that because defense counsel knew Dr. Krop’s testimony would not support the statutory mental health mitigators, counsel should have obtained another expert to testify that Hos-kins has IED. In other words, Hoskins’ claim of deficiency is that counsel should have found a more favorable expert. But “[t]his Court has repeatedly held that counsel’s entire investigation and presentation will not be rendered deficient simply because a defendant has now found a more favorable expert.” Card v. State, 992 So.2d 810, 818 (Fla.2008); see Peede v. State, 955 So.2d 480, 494 (Fla.2007) (“The fact that Peede produced more favorable expert testimony at his evidentiary hearing is not reason enough to deem trial counsel ineffective.”); Gaskin v. State, 822 So.2d 1243, 1250 (Fla.2002) (“[Cjounsel’s reasonable mental health investigation is not rendered incompetent ‘merely because the defendant has now secured the testimony of a more favorable mental health expert.’ ” (quoting Asay v. State, 769 So.2d 974, 986 (Fla.2000))). Accordingly, Hos-kins has failed to establish a deficiency that meets the first prong of Strickland.

Hoskins’ conelusory claim of prejudice likewise fails, and our confidence in the outcome is not undermined. His experts in both the penalty phase and the postconviction hearing testified that Hos-kins suffered from brain damage that negatively affected his ability to exercise control in emotionally charged situations. The jury in the penalty phase, however, did not find such evidence sufficient to overcome the aggravation in the case. Moreover, the conclusions of Dr. Krop and Dr. Eisenstein are based on essentially the same evidence and test results, and the difference in their conclusions is a matter only of degree. That is, Dr. Eisenstein characterized Hoskins’ condition as more severe and diagnosed IED. He also concluded that this condition was the overriding factor from the time of the sexual battery through the time of the murder. At the postconviction hearing, however, the State presented the expert testimony of Dr. Harry McClaren, who disagreed with this diagnosis and testified that IED was “rare.” The facts of the case further undermine the testimony that Hoskins was unable to control his behavior or to plan throughout the entire criminal episode. After binding and gagging the victim and putting her in the car trunk, Hoskins drove for approximately six hours, stopping on the way at a cousin’s house to replace a fuse in the car and later to buy gas. When Hoskins arrived at his destination, he spoke to his father and borrowed a shovel. Then he drove to a remote area, where he manually strangled the victim and buried her before returning to his parents’ home. Finally, in this case, the sentencing court found three aggravators: the capital crime (1) was committed during the course of or in flight after committing the crimes of robbery, sexual battery, or kidnapping; (2) was committed for the purpose of avoiding or preventing a lawful arrest; and (3) was heinous, atrocious, or cruel (HAC). The latter factor is considered one of the most serious aggravators. Douglas v. State, 878 So.2d 1246, 1262 (Fla.2004).

B. Mitigation Specialist and Substance Abuse

Hoskins contends that counsel provided constitutionally ineffective assistance by failing to use a mitigation expert and by failing to present evidence of substance abuse. Because these two claims are related, we address them together.

At the evidentiary hearing, Hoskins presented the testimony of Shirley Furtick, who was accepted as an expert in social work. She testified regarding her investigation into Hoskins’ background — family history, school and criminal history, and alcohol and drug abuse history. She testified that Hoskins and members of his family abused alcohol and drugs. In addition, she provided Hoskins’ prison disciplinary records to Dr. Eisenstein as related to the IED diagnosis.

Hoskins also presented the testimony of Dr. Alexander Morton, a psychopharma-cologist, who testified based on his interviews of Hoskins regarding drug abuse and his reviews of records and other clinicians’ reports in the case. According to Dr. Morton, Hoskins abused alcohol and marijuana by age twenty-one and later began using cocaine. Moreover, Hoskins reported to Dr. Morton that in the period of time when the crimes occurred he was using marijuana and cocaine daily. Accordingly, Dr. Morton concluded that at the time of the crime, Hoskins would have been impulsive, aggressive, anxious, and potentially violent. Dr. Morton did not discuss the facts of the crime with Hos-kins. He concluded, however, that although there were impulsive elements involved in the crimes, the entire criminal episode did not evidence a complete lack of impulse control.

We hold that the postconviction court correctly denied these related claims. First, to the extent Hoskins argues that counsel was deficient solely for failing to hire a mitigation specialist, the claim is conclusory. Failure to use an “expert” in mitigation investigation does not per se constitute ineffective assistance. Hoskins contends that the mitigation expert’s provision of Hoskins’ corrections records assisted Dr. Eisenstein in diagnosing Hoskins with IED. This claim presumes, however, that counsel was ineffective for failing to use Dr. Eisenstein in the penalty phase, and we have already held to the contrary. In addition, Hoskins’ disciplinary records were offered by defense counsel in mitigation during the penalty phase. The sentencing court in 2004 found, however, that these reports did not evidence that Hoskins suffered either a reduced ability to control impulsive behavior or an emotional disturbance. In fact, based on this and other evidence, the sentencing court rejected the extreme mental or emotional disturbance statutory miti-gator. See § 921.141(6)(b), Fla. Stat. In determining mitigation, however, the sentencing court did find that the disciplinary records demonstrated Hoskins’ good conduct in jail and relied in part on these records in finding that Hoskins showed a potential for rehabilitation and lack of future dangerousness. See Hoskins, 965 So.2d at 6.

Following the evidentiary hearing, the postconviction court acknowledged that Hoskins had identified mitigation evidence that was not presented in the penalty phase. The evidence of Hoskins’ history of alcohol and drug abuse was presented primarily through Ms. Furtick, Dr. Morton, and Dr. Eisenstein. As to this claim, however, we need not address the first prong of the Strickland test because Hoskins was not prejudiced by the failure to present such evidence. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (“Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”); Kilgore v. State, 55 So.3d 487, 499 (Fla.2010) (“A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.” (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986))).

The evidence at the hearing showed that the effect of long-term substance abuse on Hoskins was that he was impulsive, aggressive, and potentially violent. While this evidence might have provided some mitigation, these are the same behaviors that Dr. Krop testified at the penalty phase resulted from Hoskins’ frontal lobe impairment. Moreover, Hoskins presented minimal evidence that he was under the influence of drugs at the time of the criminal episode, and Dr. Morton testified that although elements of the criminal episode were impulsive, the episode was not entirely impulsive. Moreover, Hoskins’ actions after the sexual battery reflect knowledge of guilt, planning, and the conscious decision to avoid arrest. The postconviction court correctly concluded that there is no reasonable probability that the presentation of Hoskins’ individual and familial history of substance abuse would alter the balance of the aggravating and mitigating factors in this case. See Gaskin v. State, 737 So.2d at 516 n. 14. Accordingly, our confidence in the proceedings is not undermined.

In his reply brief, Hoskins also argues that penalty phase counsel was ineffective for not properly preparing Dr. Krop to testify at the third penalty phase. Contrary to Hoskins’ representations, this argument was not raised in the initial brief filed here. Accordingly, the claim is barred. See Hall v. State, 823 So.2d 757, 763 (Fla.2002) (citing J.A.B. Enterprises v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.”)). Moreover, the claim is concluso-ry and meritless.

The record shows that although defense counsel discussed the case with Dr. Krop on several occasions before the penalty phase, counsel was unaware — until he talked to Dr. Krop on the morning of his testimony — that Dr. Krop met with and tested Hoskins again in 2003. The post-conviction court was correct in finding that although defense counsel should have known earlier about the 2008 testing, Hos-kins has not demonstrated that counsel provided ineffective assistance of counsel. When Dr. Krop commenced his testimony and cited the recent testing, the State objected. Dr. Krop proffered testimony about the testing results, and during a recess, the parties spoke informally. On direct examination, defense counsel subsequently questioned Dr. Krop about the latest testing and interview of Hoskins, and Dr. Krop testified that none of the new information altered his opinion that Hoskins had a frontal lobe impairment that resulted in Hoskins acting impulsively and exercising poor judgment in emotionally charged situations. Accordingly, Hos-kins was not prejudiced by counsel having been unaware of the 2003 testing until shortly before Dr. Krop’s testimony.

C. Cumulative Error

Hoskins alleges that the cumulative effect of errors in this case warrants relief. Because each of his claims of error fails individually, however, he is entitled to no relief for cumulative error. Schoenwetter v. State, 46 So.3d 535, 553, 562 (Fla.2010).

III. CONCLUSION

For the reasons discussed above, we affirm the trial court’s order denying Hos-kins’ motion for postconviction relief.

It is so ordered.

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


author: CANADY, C.J.

text:
    David CARBAJAL, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-466.
    Supreme Court of Florida.
    Nov. 3, 2011.

      Sarah Lahlou-Amine of Fowler, White and Boggs, P.A., Tampa, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Elba C. Martin-Schomaker, and Cerese Crawford Taylor, Assistant Attorneys General, Tampa, FL, for Respondent.
   CANADY, C.J.

In this case, we consider the timeliness of a claim raised under Florida Rule of Criminal Procedure 3.850 that the Office of the Statewide Prosecutor (OSP) lacked jurisdiction to prosecute the defendant. We have for review Carbajal v. State, 28 So.3d 187 (Fla. 2d DCA 2010), in which the Second District Court of Appeal rejected Car-bajal’s argument that the time limitations of rule 3.850 were not applicable to his claim that the OSP’s lack of jurisdiction to prosecute him divested the circuit court of jurisdiction to enter judgment against him. The Second District held that Carbajal’s claim that the circuit court lacked jurisdiction to enter judgment or sentence was barred by the time limits of rule 3.850. The Second District certified that its decision on this issue expressly and directly conflicts with the following decisions: Gunn v. State, 947 So.2d 551 (Fla. 4th DCA 2006); Brown v. State, 917 So.2d 272 (Fla. 5th DCA 2005); Harris v. State, 854 So.2d 703 (Fla. 3d DCA 2003); and Harrell v. State, 721 So.2d 1185 (Fla. 5th DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Although the Second District’s ruling was based on its holding that the rule 3.850 time limits apply to claims asserting that a judgment was void because it was entered by a court without jurisdiction, the Second District also observed that any lack of jurisdiction by the OSP would not divest the circuit court of jurisdiction. The Second District noted that its view on this point was in disagreement with the decisions in Luger v. State, 983 So.2d 49 (Fla. 4th DCA 2008), and Winter v. State, 781 So.2d 1111 (Fla. 1st DCA 2001).

Because we conclude that any lack of jurisdiction by the OSP did not divest the circuit court of jurisdiction, we decline to address the certified conflict issue. Instead, as further explained below, we resolve this case on the ground that Carba-jal’s challenge to the jurisdiction of the OSP was barred by the time limitations of rule 3.850. Accordingly, we approve the Second District’s affirmance of the trial court’s denial of Carbajal’s motion. We disapprove Luger and Winter. To the extent that they hold that an error regarding the jurisdiction of the OSP renders a conviction void ab initio, we likewise disapprove Small v. State, 56 So.3d 52 (Fla. 4th DCA 2011); Brown; and Zanger v. State, 548 So.2d 746 (Fla. 4th DCA 1989).

I. BACKGROUND

In December 2001, the OSP filed a ten-count information charging David Carbajal with a variety of drug offenses. In January 2002, Carbajal entered a nolo conten-dere plea to the charges and was sentenced to 155 months in prison. He did not appeal his judgment or sentence. Carbajal, 28 So.3d at 187.

In February 2007, Carbajal filed a successive motion for postconviction relief pursuant to rule 3.850, in which he asserted that because “ALL the crimes alleged, and ALL the actions pertinent to those crimes, occurred in the same county and circuit,” the OSP did not have jurisdiction to prosecute in his case and therefore the circuit court did not have jurisdiction to enter his conviction and sentence. Carba-jal further asserted that his challenge to the jurisdiction of the circuit court was an issue that could be raised at any time and that his postconviction motion therefore should not be denied as untimely. The circuit court agreed that Carbajal’s motion was timely but denied relief on the merits. Carbajal, 28 So.3d at 188.

On appeal, the Second District affirmed the denial of relief on the basis that the motion was untimely. Id. The Second District explained that while rule 3.850 envisages claims asserting that the trial court lacked jurisdiction to enter the defendant’s conviction or sentence, pursuant to the plain language of the rule, in a noncapital case any motion for postconviction relief must be filed no later than two years after the judgment and sentence become final. The Second District listed the three exceptions to the two-year limit: (1) claims predicated on facts which were previously unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence; (2) claims predicated on a fundamental constitutional right that was not established within the two-year period and has been held to apply retroactively; or (3) situations where retained counsel failed to timely file the motion. The Second District concluded that because Carbajal’s allegations did not fit any of these exceptions, his motion was untimely. Id. at 189. On this point, the Second District certified conflict with Gunn, Brown, Harris, and Harrell which determined that the two-year limitation in rule 3.850(b) was inapplicable to a motion demonstrating that the trial court lacked jurisdiction to enter the defendant’s conviction or sentence. See Carbajal, 28 So.3d at 190.

The Second District also observed that any lack of jurisdiction by the OSP would not divest the circuit court of jurisdiction. The Second District reasoned that “even if the Statewide Prosecutor did not have jurisdiction to prosecute the case, the circuit court still had jurisdiction over these felonies,” and thus, Carbajal’s conviction and sentence were valid. Id. at 188 n. 1. The Second District recognized that its view that lack of OSP jurisdiction did not affect the circuit court’s subject matter jurisdiction was inconsistent with Luger, 983 So.2d at 50 (explaining that the issue of the OSP’s jurisdiction “is one of the trial court’s subject matter jurisdiction which can be raised following a plea of guilty”); and Winter, 781 So.2d at 1115 (concluding that allegations regarding whether the OSP’s jurisdiction was proper “raise[d] the jurisdiction of the trial court”). See also Small, 56 So.3d at 53 (concluding that the information was sufficient but noting that if “an information fails to allege the necessary jurisdictional allegations to support OSP jurisdiction, the information is fatally defective, and a resulting conviction is void”); Brown, 917 So.2d at 273 (“If the Office of the Statewide Prosecutor files an information but lacks jurisdiction to prosecute a case, then the trial court’s jurisdiction is not properly invoked.”); Zanger, 548 So.2d at 748 (concluding that where the OSP files the information, allegations of criminal activity in more than one circuit are essential to the invocation of the jurisdiction of the circuit court).

II. ANALYSIS

In the analysis that follows, we approve the Second District’s affirmance of the circuit court’s denial of Carbajal’s post-conviction motion. Carbajal’s claim that the circuit court which entered the judgment and sentence lacked jurisdiction is without merit, and his claim that the OSP lacked jurisdiction to prosecute him is untimely under rule 3.850.

Article IV of the Florida Constitution establishes the OSP as a prosecuting officer of the State of Florida. Article IV, section 4(b), provides in pertinent part:

There is created in the office of the attorney general the position of statewide prosecutor. The statewide prosecutor shall have concurrent jurisdiction with the state attorneys to prosecute violations of criminal laws occurring or having occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is affecting or has affected two or more judicial circuits as provided by general law.

The role of the OSP is further defined by section 16.56, Florida Statutes. At the time Carbajal was charged by information, section 16.56(l)(a), Florida Statutes (2001), authorized the OSP to investigate and prosecute “[a]ny crime involving narcotic or other dangerous drugs” or “any attempt, solicitation, or conspiracy to commit” any crime involving narcotic or other dangerous drugs but “only when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits.” Thus, Carbajal is correct that if his criminal activity in Florida actually occurred in only Lee County, Florida, the OSP was not authorized to prosecute charges arising from that conduct.

We agree with the Second District, however, that even assuming that the OSP in fact lacked jurisdiction to prosecute Carbajal, such a defect in the information would not divest the circuit court of jurisdiction over the felony offenses charged against Carbajal. The issue of whether an information is filed by the OSP or a state attorney has no effect on the circuit court’s subject matter jurisdiction.

Subject matter jurisdiction is the “[pjower of a particular court to hear the type of case that is then before it” or “jurisdiction over the nature of the cause of action and relief sought.” Fla. Star v. B.J.F., 530 So.2d 286, 288 (Fla.1988) (quoting Black’s Law Dictionary 767 (5th ed. 1979)). Pursuant to section 26.012(2)(d), Florida Statutes (2001), at the time Carba-jal was charged, the circuit courts had — as they continue to have — subject matter jurisdiction over “all felonies.” See also McLean v. State, 23 Fla. 281, 2 So. 5, 5 (1887) (“In criminal cases the jurisdiction is determined by the charge made.”). Because the information filed in this case charged Carbajal with multiple felonies, the circuit court had subject matter jurisdiction over Carbajal’s case.

Carbajal’s situation is not analogous to cases where a conviction was void because the information filed in the circuit court failed to allege that the defendant had committed a felony. See, e.g., Ex parte Reed, 101 Fla. 800, 135 So. 302, 303 (1931) (concluding that judgment of conviction by circuit court was void where indictment failed to show that the defendant was charged with a felony); Waters v. State, 354 So.2d 1277, 1278 (Fla. 2d DCA 1978) (“Since the circuit court does not have jurisdiction when only a misdemeanor is charged, the trial court did not have jurisdiction in this case.”); Pope v. State, 268 So.2d 173, 175 (Fla. 2d DCA 1972) (explaining that an allegation of a felony “is essential to the invocation of the jurisdiction of a felony court over the charge since the allegata of the accusatory writ are precisely the basis in the first instance upon which the court’s jurisdiction over the subject matter thereof is predicated”).

Carbajal contends that despite the fact that the information filed in his case otherwise properly alleged a felony, the information failed to invoke the circuit court’s subject matter jurisdiction because it was signed by the incorrect prosecuting attorney. This argument is without merit.

This Court has explained that “jurisdiction to try an accused does not exist under article I, section 15 of the Florida Constitution unless there is an extant information, indictment, or presentment filed by the state.” State v. Anderson, 537 So.2d 1373, 1374 (Fla.1989). We have also explained, however, that while a charging instrument is essential to invoke the circuit court’s subject matter jurisdiction, “defects in charging documents are not always fundamental where the omitted matter is not essential, where the actual notice provided is sufficient, and where all the elements of the crime in question are proved at trial.” State v. Gray, 435 So.2d 816, 818 (Fla.1983). In other words, while an information or indictment is “an essential requisite of jurisdiction which cannot be waived,” Sadler v. State, 949 So.2d 303, 305 (Fla. 5th DCA 2007) (quoting Caves v. State, 303 So.2d 658, 659 (Fla. 2d DCA 1974)), defects in the charging instrument do not necessarily render void a conviction based on the defective information. These principles are codified in Florida Rule of Criminal Procedure 8.140, which provides in part:

No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of mis-joinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Fla. R.Crim. P. 3.140(o).

In the instant case, a prosecuting officer representing the State filed an information in the circuit court. That information provided Carbajal with actual notice of the charges against him. Carbajal does not allege that as a result of the information being filed by the OSP rather than the local state attorney, he was misled, prejudiced in the preparation of his defense, or exposed to the danger of additional prosecution. Carbajal knew the charges against him and that he was to be tried by the circuit court for Lee County.

In fact, had the information charging Carbajal been unsigned rather than signed by the OSP, any challenge on that basis would have been barred by rule 3.140(g), which provides that “[n]o objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.” It would make no sense to conclude that an unauthorized signature on an information strips the circuit court of subject matter jurisdiction and renders a conviction based on the information void, when a complete lack of signature may be waived by the defendant.

We conclude that Carbajal’s case is analogous to Gerlaugh v. Florida Parole Commission, 139 So.2d 888 (Fla.1962), and Young v. State, 97 Fla. 214, 121 So. 468 (1929), in which this Court upheld the defendants’ convictions despite the fact that the informations were signed by assistant prosecuting attorneys who at the time were not authorized by the Florida Constitution to sign charging informations.

In Gerlaugh, the defendant pleaded guilty to the charges against him. Later, he challenged his confinement in a petition for a writ of habeas corpus on the basis that the information in his case was signed by an assistant state attorney instead of a state attorney. After noting that in a similar case this Court had described an information signed by an unauthorized attorney as being “null, void, and of no effect,” this Court clarified that quoted language from that prior decision “must be related to the factual situation presented by the record” in that case and “must be considered as holding only that upon timely objections to an information on the ground that it was not signed by the State’s Attorney such an information is null, void and of no effect.” Id. at 889-90. In short, this Court determined that a claim that an unauthorized prosecuting attorney signed the information was a not defect that would lead to a void conviction.

Similarly, in Young, the defendant filed a petition for a writ of habeas corpus alleging that he was convicted and sentenced upon an information signed, sworn to, and filed by the assistant county solicitor pursuant to an unconstitutional statute, instead of by the county solicitor as required by the Florida Constitution. This Court denied Young’s motion for rehearing of his petition, explaining:

It does not appear that at the trial the defendant by motion to quash, motion in arrest of judgment, or otherwise during the same term of the court made any objection or exception to the manner in which the information was signed or sworn to. The court had jurisdiction of the offense and of the defendant, and it is not alleged that the information did not charge an offense under the laws of this state.... The statute purporting to authorize the assistant county solicitor to file information under his own oath may be invalid in that respect, but this does not make void a judgment of conviction on such an information, rendered by a court having jurisdiction of the parties and of the subject-matter, and when a defendant does not duly object to the manner in which the information is signed and sworn to, at the proper time and in the proper way, he thereby waives his right to do so, and cannot invoke habeas corpus to obtain a discharge from custody.

121 So. at 468 (emphasis added).

We see no difference between Car-bajal’s situation and the errors addressed in Gerlaugh and Young. We continue to hold that a conviction resulting from an information signed by a state officer lacking authority is not void ab initio but is, at most, voidable upon timely challenge.

Here, Carbajal effectively concedes that his postconviction motion is barred as untimely under rule 3.850 unless the judgment entered against him is void. And he has failed to show that the judgment is void. He has failed to establish either that the circuit court lacked jurisdiction to enter the judgment or that the OSP’s lack of jurisdiction rendered the judgment void. Carbajal’s claim concerning the OSP’s jurisdiction is a claim that he should have raised long ago. The claim was untimely under rule 3.850 when Carbajal’s motion was filed and is accordingly barred.

III. CONCLUSION

We therefore approve the Second District’s affirmance of the circuit court’s denial of Carbajal’s motion and disapprove Luger and Winter. Likewise, we disapprove Small, Brown, and Zanger, to the extent that those decisions hold that a defect regarding the jurisdiction of the OSP renders a conviction void ab initio.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    In re AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.720.
    No. SC10-2329.
    Supreme Court of Florida.
    Nov. 3, 2011.
    Judge William D. Palmer, Chair, Committee on Alternative Dispute Resolution Rules and Policy, Fifth District Court of Appeal, Daytona Beach, FL, for Petitioner.
    Donald E. Christopher, Chair, Civil Procedure Rules Committee, Orlando, FL, and John F. Harkness, Jr., The Florida Bar, Tallahassee, FL; and Patrick S. Scott of Gray Robinson, P.A., Fort Lauderdale, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Rule of Civil Procedure 1.720 (Mediation Procedures). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee on Alternative Dispute Resolution Rules and Policy (Committee) has filed a petition to amend rule 1.720. The amendments proposed by the Committee revise the requirements in rule 1.720 pertaining to the appearance of a party or a party’s representative at a mediation conference. The proposals are in response to the Committee’s charge to monitor court rules governing alternative dispute resolution procedures and to make recommendations as necessary to improve the use of mediation. See In re Committee on Alternative Dispute Resolution Rules and Policy, Fla. Admin. Order No. AOSC03-32 (July 8, 2003).

The Committee’s proposals were approved by The Florida Bar’s Civil Procedure Rules Committee. The Court published the proposed amendments for comment. Two comments were filed and the Committee filed a response.

Having considered the Committee’s petition, the comments filed, and the Committee’s response, we adopt the amendments to rule 1.720 as proposed by the Committee, with a minor modification to new subdivision (e) (Certification of Authority). We modify new subdivision (e) to provide that the written notice be served on all parties participating in a mediation conference.

Accordingly, Florida Rule of Civil Procedure 1.720 is hereby amended as set forth in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The Committee notes are offered for explanation only and are not adopted as an official part of the rule. The amendments shall become effective January 1, 2012, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 1.720. MEDIATION PROCEDURES

(a) Interim or Emergency Relief. [NO CHANGE]

(b) Sanctions for Failure to Appear, Appearance at Mediation. If a party fails to-appear at a duly-noticed mediation conference without good-cause, the court upon ■motion shall -impose sanctions,-including-an award of mediator- and attorneys’ fees-and other — costs,-against-the' party failing to appear. If a-par-ty-to mediation-is a public entity-required-to-conduct its business pursuant to chapter 286, Florida Statutesrthat party-shall be deemed-to-appear at a mediation conference- by the physical presence of a representative-with full authority to ■negotiate on-behalf-of the entity and to recommend settlement to the appropriate decision-making body-of- the entity. — Qth-erwise,-unless Unless otherwise permitted by court order or stipulated by the parties or-changed by order-of-the court in writing, a party is deemed to appear at a mediation conference if the following persons are physically present:

(1) The party or ifea party representative having full authority to settle without further consultation; and
(2) The party’s counsel of record, if any; and
(3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle in an amount up to the amount of the plaintiffs last demand or policy limits, whichever is less, without further consultation.

(c) Party Representative Having Full Authority to Settle. A “party representative having full authority to settle” shall mean the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing herein shall be deemed to require any party or party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.

(d) Appearance by Public Entity. If a party to mediation is a public entity required to operate in compliance with chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity.

(e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).

(f) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys’ fees, and costs, against the party failing to appear. The failure to file a confirmation of authority required under subdivision (e) above, or failure of the persons actually identified in the confirmation to appear at the mediation conference, shall create a rebuttable presumption of a failure to appear.

(c)(g) Adjournments. [NO CHANGE]

4d)(h) Counsel. [NO CHANGE]

(eXi) Communication with Parties or Counsel. The mediator may meet and consult privately with any party or parties or their counsel.

#(j) Appointment of the Mediator. [NO CHANGE]

4g)(k) Compensation of the Mediator. [NO CHANGE]

Committee Notes

2011 Amendment. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. New language in subdivision (c) now defines “a party representative with full authority to settle” in two parts. First, the party representative must be the final decision maker with respect to all issues presented by the case in question. Second, the party representative must have the legal capacity to execute a binding agreement on behalf of the settling party. These are objective standards. Whether or not these standards have been met can be determined without reference to any confidential mediation communications. A decision by a party representative not to settle does not, in and of itself, signify the absence of full authority to settle. A party may delegate full authority to settle to more than one person, each of whom can serve as the final decision maker. A party may also designate multiple persons to serve together as the final decision maker, all of whom must appear at mediation.

New subdivision (e) provides a process for parties to identify party representative and representatives of insurance carriers who will be attending the mediation conference on behalf of parties and insurance carriers and to confirm their respective settlement authority by means of a direct representation to the court. If necessary, any verification of this representation would be upon motion by a party or inquiry by the court without involvement of the mediator and would not require disclosure of confidential mediation communications. Nothing in this rule shall be deemed to impose any duty or obligation on the mediator selected by the parties or appointed by the court to ensure compliance.

The concept of self determination in mediation also contemplates the parties’ free choice in structuring and organizing their mediation sessions, including those who are to participate. Accordingly, elements of this rule are subject to revision or qualification with the mutual consent of the parties.


text:
    Oba CHANDLER, Appellant v. STATE of Florida, Appellee.
    No. SC11-2055.
    Supreme Court of Florida.
    Nov. 7, 2011.
   Oba Chandler, a prisoner under three death sentences and an active death warrant, has appealed the denial of his successive motion for postconviction relief filed under Florida Rule of Civil Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On October 10, 2011, Governor Rick Scott signed a death warrant for Chandler and scheduled Chandler’s execution for November 15, 2011. Chandler, through appointed counsel, filed a successive postconviction motion in the circuit court in and for Pinellas County seeking to vacate his sentences of death. He contended that a new penalty phase should be ordered because Florida’s death penalty scheme is unconstitutional under the principles set forth in Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, the United States Supreme Court applied the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) — that any fact other than a prior conviction that increases the maximum possible sentence must be found by a jury — to capital cases.

Chandler did not seek an evidentiary hearing and raised purely legal issues below. After hearing legal argument of counsel at the case management conference, and after considering the motion, the State’s response, and Chandler’s memorandum of law, the circuit court entered its order on October 24, 2011, denying successive postconviction relief and denying a stay of execution. The circuit court also entered an order appointing appellate counsel to represent Chandler on appeal and notice of appeal was timely filed on October 24, 2011. Chandler has also moved this Court for a stay of execution. We affirm the order of the circuit court denying Chandler’s motion for successive postconviction relief and we deny his motion for a stay of execution.

On September 29, 1994, Oba Chandler was convicted of the 1989 first-degree murders of Joan Rogers and her two daughters, Michelle and Christe, whose bodies were found floating in Tampa Bay on June 4, 1989. Chandler was sentenced to death for each of the murders after a penalty phase proceeding in which the jury unanimously recommended death. On direct appeal, we affirmed his convictions and death sentences in Chandler v. State, 702 So.2d 186, 201 (Fla.1997). In June 1998, Chandler filed his initial postconviction motion under Florida Rule of Criminal Procedure 3.850, and in May 2000, he filed an amended motion asserting seven claims of ineffective assistance of trial counsel. We affirmed denial of his initial postcon-viction motion in Chandler v. State, 848 So.2d 1031, 1046 (Fla.2003). Chandler subsequently filed a petition for writ of habeas corpus in the federal district court raising claims of ineffective assistance of trial counsel, which was denied. Chandler v. Crosby, 454 F.Supp.2d 1137, 1185 (M.D.Fla.2006). Chandler obtained review in the Eleventh Circuit Court of Appeals and relief was again denied. Chandler v. McDonough, 471 F.3d 1360, 1363 (11th Cir.2006).

After Chandler’s death warrant was signed in the instant case on October 10, 2011, we issued an order providing that any further postconviction proceedings should be expeditiously filed in the circuit court. Chandler then filed a successive motion for postconviction relief in the circuit court contending that he is entitled to a new penalty phase proceeding based on Ring. The circuit court entered its order on October 24, 2011, denying Chandler’s successive motion to vacate his death sentences. The court correctly found that the successive motion is procedurally barred under Florida Rule of Criminal Procedure 3.851(d)(2) because it does not allege newly discovered evidence nor does it contend that there is a fundamental constitutional right that would apply retroactively in this case, and does not argue that Chandler’s counsel failed, through neglect, to file a proper motion. The circuit court also correctly concluded that Chandler’s Ring claim was barred because the United States Supreme Court and this Court have held that Ring is not retroactive to convictions and sentences that were final on direct review. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Johnson v. State, 904 So.2d 400, 412 (Fla.2005). Chandler’s convictions and three death sentences were affirmed by this Court in Chandler v. State, 702 So.2d 186, 201 (Fla.1997), and the mandate was issued. The United States Supreme Court then denied certiorari review in Chandler v. Florida, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). Thus, Ring does not apply retroactively to Chandler’s sentences.

In addition, the circuit court also correctly ruled that Ring does not apply to Chandler’s sentences because he had several prior violent felony convictions that served as aggravators, and prior convictions are exceptions to the requirements of Ring. Further, Chandler was convicted of three contemporaneous murders by the same jury that unanimously recommended he receive the death penalty. See Frances v. State, 970 So.2d 806, 822-23 (Fla.2007) (rejecting application of Ring when the death sentence was supported by the prior violent felony aggravating circumstance based on contemporaneous convictions for murder).

Accordingly, the order of the circuit court is hereby affirmed. No motion for rehearing will be entertained by this Court.

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


author: SCHWARTZ, Senior Judge.

text:
    Pedro SOTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2511.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2010.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before WELLS, C.J., EMAS, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Soto’s conviction and sentence for trafficking in heroin are reversed because the trial court did not but should have granted his motion to suppress the contraband found in his home after the police entered without complying with the “knock-and-announce” statute, section 901.19(1), Florida Statutes (2005). It is admitted that, although the police announced their presence at the door, there was fatally no evidence that they announced their purpose, which was to execute an arrest warrant, as the statute requires. § 901.19(1) (If a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest ..., the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.”); see Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). The State attempts to invoke the so-called “useless gesture” doctrine, arguing that because the defendant and his girlfriend were asleep at the time of the entry and did not respond to repeated shouts of “police, police!”, the non-announcement of their purpose could have made no difference. See State v. Brown, 36 So.3d 770, 773-74 (Fla. 3d DCA 2010). For good or ill, however, the Florida law is that this doctrine applies only when the police knew of the uselessness of the announcement of authority prior to breaking in. See Cable v. State, 18 So.3d 37 (Fla. 2d DCA 2009), approved State v. Cable, 51 So.3d 434 (Fla.2010); Kistner v. State, 379 So.2d 128 (Fla. 1st DCA 1979). Compare Ealey v. State, 714 So.2d 1162, 1163 (Fla. 1st DCA 1998) (holding that “because the officers ... did not have a reasonable belief that the residence was unoccupied,” knocking and announcing would not have been a futile gesture) with Van Allen v. State, 454 So.2d 49, 51 (Fla. 4th DCA 1984) (finding “no violation of the knock and announce rule occurs where law enforcement officers, reasonably believing premises to be unoccupied, ... intrude upon premises without announcing their authority and purpose.”). Contra Walker v. State, 895 So.2d 366 (Ala.Crim.App.2004). In this case, it is undisputed that the police became aware of the occupants’ unconsciousness only after the unlawful entry.

Reversed and remanded with directions to discharge the defendant.

      . The trial court based its decision on the application of the "officer peril” exception. See Jones v. State, 440 So.2d 570, 573 (Fla.1983); State v. Pruitt, 967 So.2d 1021 (Fla. 2d DCA 2007); Williams v. State, 403 So.2d 430 (Fla. 3d DCA 1981). On appeal the State has wisely abandoned this ground and raises "useless gesture" as a tipsy coachman reason for affirmance. See Miller, 357 U.S. at 301, 78 S.Ct. 1190; Ealey, 714 So.2d at 1162; Van Allen, 454 So.2d at 49; Urquhart v. State, 211 So.2d 79 (Fla. 2d DCA 1968).


text:
    Jack Michael BENNETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3532.
    District Court of Appeal of Florida, First District.
    July 25, 2011.
    Jack Michael Bennett, 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.

BENTON, C.J., ROBERTS and RAY, JJ., concur.


text:
    Jeffrey S. STEELE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4245.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Rehearing Denied Nov. 30, 2011.
    Jeffrey S. Steele, 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.

VAN NORTWICK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Willie J. WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4105.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Rehearing Denied Dec. 15, 2011.
    Willie J. Watson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Pacha v. Salfi, 381 So .2d 373 (Fla. 5th DCA 1980).

BENTON, C.J., HAWKES and ROWE, JJ., concur.