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    Justin Ryan McMILLIAN, Appellant, v. STATE of Florida, Appellee.
    No. SC10-2168.
    Supreme Court of Florida.
    June 28, 2012.
    Rehearing Denied Sept. 14, 2012.

      Nancy A. Daniels, Public Defender, Second Judicial Circuit, and Nada M. Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Justin Ryan McMillian appeals his conviction and sentence for the premeditated first-degree murder of Danielle Stubbs. For the reasons stated below, we affirm.

I. BACKGROUND

The defendant, Justin McMillian, and his victim, Danielle Stubbs, began dating in the spring of 2008. On Wednesday or Thursday, January 6 or 7, 2009, Stubbs moved from an apartment into a nearby townhouse on Pineverde Lane in Jacksonville. McMillian assisted Stubbs and her family with the move. Friday afternoon, Stubbs took McMillian and her mother to lunch at Olive Garden as a thank-you for helping with the move. There, McMillian told Stubbs’ mother that he and Stubbs were breaking up, that he was quitting his job, and that he was going back to Georgia spend time with and take care of his two children.

Saturday night, Stubbs left her town-home and drove to a coworker’s apartment so that the two could then be driven by Allen Morris, another coworker, to a beachside nightclub. At the nightclub, Stubbs consumed several alcoholic beverages, became intoxicated, and, at some point, had sexual intercourse with Morris in the back of Morris’ car.

Morris, Stubbs, and the coworker left the nightclub around 2:45 a.m. on Sunday, January 11. Morris first drove the coworker back to his apartment and had to stop a couple of times on the way to allow Stubbs to vomit. After dropping off the coworker, Morris drove Stubbs home because she was too inebriated to drive her own car. A few minutes from Stubbs’ townhouse, at around 3:30 a.m., Morris stopped to get Stubbs something to eat in an effort to settle her stomach. From there, he drove Stubbs to her townhome. Initially, and at Stubbs’ request, Morris drove down Stubbs’ street past her townhouse, and stopped for a few minutes to allow Stubbs to eat some food and to compose herself. Morris then dropped Stubbs off in front of her townhouse, watched her walk past McMillian’s Cadillac, which was backed into Stubbs’ driveway, and drove away after she waved. Other than the defendant, Morris was the last person to see Stubbs alive.

Stubbs had plans with her mother during the day Sunday. When Stubbs’ family could not reach her by phone throughout the morning and into Sunday afternoon, they became increasingly alarmed and began to actively search for her by calling around to her friends and going to her townhome and recently emptied apartment. At one point that morning, McMilli-an called Stubbs’ mother to say that he could not find Stubbs and to inquire as to whether the family knew where she was. That evening, McMillian called again to say that he still could not find Stubbs. Stubbs’ parents and younger brother eventually called the police Sunday evening to report Stubbs missing and then drove to her townhome. Upon arriving and finding the front door locked, Stubbs’ father and brother went around to the back of the townhome while Stubbs’ mother waited at the front door.

Stubbs’ brother and father discovered that the sliding glass door at the rear of Stubbs’ townhome was unlocked. Stubbs’ brother immediately went inside, ran upstairs, and began screaming. Stubbs’ father went to the front door, unlocked the doorknob and the deadbolt, let his wife in, and went upstairs with her. There, they found Stubbs dead in a pool of blood. She had been shot through the arm and the top of the head. Stubbs’ parents immediately called 911 and were waiting outside when the police, who were already en route due to Stubbs’ parents’ earlier call to report Stubbs missing, arrived minutes later.

The police recovered several important pieces of evidence from Stubbs’ bedroom. An unfired .45 caliber cartridge was found on the floor just inside the doorway to Stubbs’ bedroom. Further inside Stubbs’ bedroom, at the foot of her bed and beside her dresser/TV stand, a fired .45 caliber shell casing was recovered. Another fired .45 caliber shell casing was recovered from the floor beside Stubbs’ body on the side of the bed furthest from the bedroom door. Stubbs’ bedding was bloodstained and had holes in it which were consistent with being caused by fired bullets. A fired .45 caliber bullet, later matched to McMillian’s pistol, was also found lying on top of Stubbs’ bedding.

Stubbs’ autopsy confirmed that Stubbs was shot once through the right arm and once in the top of the head and was alive when both shots were fired. The shot to the head likely would have immediately rendered Stubbs unconscious and likely would have killed her within seconds, though it is possible that she survived for as long as a couple of minutes. The bullet that killed Stubbs was recovered from her skull and was later matched to McMillian’s gun.

The day after the murder, McMillian called the Jacksonville Sheriffs Office (JSO) and said that his girlfriend had been found dead in her apartment and he wanted to speak with someone about her case. He also said that he had been in Georgia since 3 a.m. the morning of the murder. A detective called McMillian back shortly thereafter. In that conversation, McMilli-an stated that he had last seen Stubbs around 6 the night before the murder and had last spoken to her on the phone around 9 p.m., before she went out with her coworkers. McMillian also said that he was about to return to Jacksonville and would meet the detective at the station. When McMillian failed to show, the detective contacted a special task force to have him brought in.

Two days later, the task force saw McMillian and two other men leave a Jacksonville house in McMillian’s Cadillac. The task force followed McMillian, with an unmarked SUV initially leading several trailing task force vehicles. Shortly thereafter the lead was passed off from the SUV to a marked JSO K-9 unit so that a traffic stop could be initiated. Once the marked unit was behind McMillian, it turned on its lights and siren, but McMilli-an continued driving as though nothing were happening. After a short distance, McMillian turned onto a side street and abruptly stopped without pulling off the road. As McMillian was coming to a stop, the two passengers opened the passenger side car doors and ran a short distance from the vehicle before going to the ground.

At this point, as the K-9 officer was getting out of his patrol car, McMillian exited his vehicle, reached behind his back, pulled a .45 caliber semi-automatic pistol, and began to fire at the K-9 officer. The K-9 officer exited his patrol car with his dog on its leash, leading him out the door. When he realized that McMillian was shooting at him, the K-9 officer took cover behind his door and deployed the K-9. However, because the K-9 was facing the wrong direction when deployed, it ran to the rear of the patrol car and engaged another task force member who had been in a trailing vehicle. The task force members returned fee at McMillian as he feed and fled from his car on foot. McMillian ran a short distance down the street and then ran between two houses, causing the task force members to lose sight of him. McMillian was found between those two houses, having collapsed due to multiple gunshot wounds.

Police recovered several pieces of evidence from the scene of the shootout, including McMillian’s semiautomatic .45 caliber Desert Eagle pistol, two .45 caliber bullets which struck the JSO K-9 patrol car in the driver’s side headlight and in the driver’s door, an unfeed .45 cartridge, and spent .45 shell casings.

From the evidence collected at the scenes of the shootout and Stubbs’ murder, it was determined that McMillian’s gun was used to murder Stubbs. During the course of their investigation into Stubbs’ murder, police also obtained a security video from a convenience store near Stubbs’ townhome as well as phone records for Stubbs’ cell phone and the convenience store pay phone. The video and records show that on the morning of Stubbs’ murder, at around 4:05 a.m., McMillian entered the store, got change, and used the pay phone to make two calls, each of which lasted approximately one minute, to Stubbs’ cell phone. The records also show that Stubbs made a two-second long return call from her cell phone to McMillian at the pay phone at approximately 4:08 a.m.

A couple of weeks after the shootout, two detectives from Stubbs’ murder investigation went to the hospital to interview McMillian. Prior to going in to see McMillian, the detective spoke to a nurse, who stated that the only medication McMillian was receiving was Motrin. After waiving his Miranda rights, McMillian first repeated his story that the last time he saw Stubbs was on Saturday evening before she went out with her coworkers and that he had gone to a bar with his sister, left the bar around 1:30 a.m., drove his sister home, and left for Georgia around 2:00 a.m. The detectives then told McMillian that their investigation had determined that his gun was the same gun used to kill Stubbs. McMillian then admitted that he was sitting in his car in Stubbs’ driveway when she came home and claimed that he went inside with her. McMillian claimed that he and Stubbs had intercourse on her couch and then went upstairs and got in bed. McMillian then claimed that was when he “lost it” and stated that he shot Stubbs while she was sleeping in the bed, and then shot her again after she rolled out of the bed and onto the floor on the far side of the bed. McMillian also said that he knew that Stubbs was dead when he left the apartment and that her body was on the side of the bed farthest from the bedroom door. McMillian also stated that he did not have his own key to the townhome and that after shooting Stubbs, he went out the front door and closed it behind him.

In his guilt phase defense, McMillian testified differently. He stated that he had spent the day before the murder at a racetrack in Valdosta and returned to Stubbs’ townhome around 5 p.m. He claimed that he and Stubbs had intercourse, he left, and Stubbs went out with coworkers. Later that night, he went to a bar with his sister and took her home around 2:30 or 3 a.m. After dropping off his sister, McMillian drove to Stubbs’ townhome because he had some belongings that he wanted to pick up before leaving for Georgia. McMillian claimed that he was sitting in his car in Stubbs’ driveway when Stubbs got home, that she invited him inside, and that they again had intercourse on her couch before going upstairs. McMillian claimed that, once upstairs, Stubbs got upset about his plans to leave to see his children in Georgia and then to return to work as a contractor in Iraq. McMillian claimed that Stubbs then told him that she had slept -with the coworker who had dropped her off earlier that night, which upset but did not anger him. McMillian claimed that the two lay in the bed for a while before he got up to get dressed and leave for Georgia. McMillian testified that, on his way out the bedroom door, he grabbed his pistol from the dresser/TV stand beside the bedroom door and put it in his waistband. Finally, McMillian claimed that as he was leaving, Stubbs said that she had known he would leave and had aborted his unborn child, which caused him to pull his gun and fire toward the bed in the darkness. When asked about the convenience store video, McMillian claimed that he panicked, left out the front door, drove to the convenience store, called Stubbs to see if she was okay, did not get an answer, and then left for Georgia.

On cross-examination, the State attempted to elicit further details from McMillian regarding how he came to shoot Stubbs. McMillian stated that he did not have to load his gun before firing because he always kept it loaded and that all the shots were fired from the doorway. McMillian also admitted that the first time he had mentioned Stubbs’ abortion was during the trial, which was after he had seen a receipt for an abortion that the police recovered from Stubbs’ purse at the murder scene.

After hearing the prosecution’s case in rebuttal and closing arguments, the jury found McMillian of guilty of premeditated first-degree murder for the killing of Danielle Stubbs and of attempted second-degree murder for shooting at the K-9 officer.

McMillian’s penalty phase was held June 30, 2010. There, the prosecution established that, at the time of Stubbs’ murder, McMillian was approximately one year into a five-year term of felony probation stemming from an incident in Georgia in which McMillian fled police, who were attempting to pull him over, at speeds up to 120 m.p.h. through a residential neighborhood and nearly ran over a child. McMillian’s judgment and sentence were introduced into evidence.

In mitigation, McMillian first presented Dr. Krop, a mental health expert, who testified that he had met with McMillian on several occasions, met with McMillian’s family, read depositions related to the case, and reviewed medical and school records and police reports. Dr. Krop also conducted a battery of psychological and neuropsychological testing on McMillian which revealed that McMillian had mild to moderate impairment of his frontal lobe function. However, Dr. Krop could not state whether these impairments predated the murder because they could have been caused by blood loss or a shot to the head that McMillian suffered in his shootout with police. Dr. Krop also testified that there were records that McMillian had sustained a concussion without loss of consciousness in a 2006 car crash, but that CAT scans taken at the time were negative for physical brain damage. He also explained that McMillian was in the borderline range of mental function with an IQ of 76 and had abused alcohol in the year leading up to the murder. Ultimately, Dr. Krop stated that he did not believe that McMillian suffered from any diagnosable mental illness or psychiatric disorder, but did believe the shooting was caused by McMillian reacting while in a highly emotional state.

On cross-examination, Dr. Krop stated that McMillian lied to him in their initial interview and denied responsibility for Stubbs’ murder by claiming that he arrived at Stubbs’ house, found her dead, took his gun from the bed, and fled. However, in a subsequent interview, McMillian gave Dr. Krop another version of events. This time, McMillian explained that he had gone to Stubbs’ house after dropping off his sister in order to retrieve his gun before leaving for Georgia. McMillian then stated that he retrieved his gun from upstairs, placed it in his waistband, and was outside in his car drinking and smoking marijuana when Stubbs came home. He claimed that he and Stubbs argued in the driveway about his leaving for Georgia and that he was going to leave Stubbs’ townhome but could not because Stubbs took his keys and went inside. He then claimed that Stubbs called him on his cell phone and told him to come upstairs and that when he went upstairs, he found Stubbs on her bed and dressed in lingerie. McMillian claimed that Stubbs told him that he needed to figure out what he wanted. McMillian then asked Stubbs about the coworker who had dropped her off and she told him that, while she had slept with the coworker a couple of times, things were not serious. McMillian claimed that, upon being told by Stubbs that she had slept with the coworker, he pulled his gun from his waistline, shot Stubbs while she was on the bed, and shot her again after she had rolled from the bed to the floor. McMillian claimed that he then attempted to shoot himself, but discharged the bullet instead.

McMillian’s father testified that he had obtained custody of McMillian from McMillian’s biological mother because she could not care for him adequately and that McMillian grew up feeling that his mother did not love him or care for him as much as she should. McMillian’s father also testified that, while McMillian could have had learning disabilities as a child, the fact was never determined conclusively because McMillian’s father did not believe in them. He also explained that McMillian struggled in school and that he was able to get an expulsion, imposed for fighting, rescinded so that McMillian could transfer to a Georgia high school and graduate. Other family members and friends testified that McMillian is very close with and is dearly loved by his family and also is a good father who loves his children and who would continue to play a positive role in their lives from prison. Following the defense’s presentation of mitigation evidence, the jury recommended death by a vote of 10-2.

A Spencer hearing was held August 27, 2010, but neither side presented any additional information. On October 1, 2010, the trial court, following the jury’s recommendation, sentenced McMillian to death based on its determination that that the two established aggravators outweighed one statutory mitigator and seven non-statutory mitigators. This appeal followed.

II. ISSUES ON APPEAL

On appeal, McMillian argues that the trial court erred in denying his motion for a judgment of acquittal for premeditated first-degree murder and that his death sentence is disproportionate. We also review whether sufficient evidence was presented to support McMillian’s conviction for premeditated first-degree murder. As explained below, we find that McMillian is entitled to no relief.

A. Denial of Motion for Judgment of Acquittal

At the conclusion of the prosecution’s case, the defense moved for a judgment of acquittal, arguing that insufficient evidence had been presented to convict McMillian of either premeditated first-degree murder or first-degree felony murder. The defense then presented its case and moved again for a judgment of acquittal after the prosecution’s case in rebuttal. Both motions were denied. McMillian now argues that the trial court erred in denying his motion for judgment of acquittal because the State did not carry its burden of establishing premeditation. We disagree.

Premeditation “is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Miller v. State, 42 So.3d 204, 228 (Fla.2010) (quoting Asay v. State, 580 So.2d 610, 612 (Fla.1991)). “Circumstantial evidence of premeditation can include the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Pearce v. State, 880 So.2d 561, 572 (Fla.2004) (citing Spencer v. State, 645 So.2d 377, 381 (Fla.1994); Holton v. State, 573 So.2d 284, 289 (Fla.1990)).

“Premeditation is a factual issue for the jury, Asay v. State, 580 So.2d 610, 612 (Fla.1991), and several standards of review are applicable.” Twilegar v. State, 42 So.3d 177, 190 (Fla.2010), cert, denied, — U.S. -, 131 S.Ct. 1476, 179 L.Ed.2d 315 (2011). Where direct evidence of premeditation is presented, the “jury’s finding of premeditation will be sustained if supported by competent, substantial evidence in the record.” Id. However, in a case where the evidence of premeditation is entirely circumstantial, “not only must the evidence be sufficient to support the finding of premeditation, but the evidence, when viewed in the light most favorable to the State, must also be inconsistent with any other reasonable inference.” Id.

Even assuming arguendo that the circumstantial evidence rule applies, we still conclude that McMillian has failed to demonstrate that the trial court erred.

McMillian now claims that he snapped during a heated, emotional confrontation and killed Stubbs with a weapon of convenience shortly after she had returned home from having sexual intercourse with another man. He further argues that the prosecution failed to present competent, substantial evidence that is inconsistent with this reasonable inference. However, we find that competent, substantial evidence which is inconsistent with McMillian’s theory was presented. First, the prosecution introduced the transcript of McMillian’s hospital confession and played a tape of that confession for the jury. In that confession, McMillian stated that he and Stubbs were not arguing and were not fighting after she got home. McMillian’s hospital confession, therefore, is inconsistent with his asserted theory because it cannot be reconciled with his claim that he killed Stubbs during a heated, emotional confrontation.

Additionally, McMillian’s own guilt phase testimony is inconsistent with his claim of a non-premeditated murder. During his guilt phase testimony, McMilli-an testified that he was upset, but not angry, when Stubbs admitted to him that she had sexual intercourse with the coworker who brought her home that night. McMillian also testified that he shot Stubbs as a result of her telling him she had aborted his unborn child. McMillian’s testimony therefore is also inconsistent with his asserted theory because it directly contradicts both the emotional state he now claims to have been in regarding Stubbs sleeping with her coworker and the statement that Stubbs allegedly made to cause him to “snap.”

Finally, the prosecution presented testimony that an unfired .45 caliber cartridge and two fired .45 shell casings were recovered in a “trail” beginning in Stubbs’ bedroom doorway and ending beside Stubbs’ body. The “trail” formed by the cartridge and shell casings is also inconsistent with any other reasonable inference because, contrary to McMillian’s claim that he snapped and shot Stubbs from her bedroom doorway, it is evident that McMillian entered Stubbs’ bedroom, first shot Stubbs through the arm, then moved around to the far side of Stubbs’ bed and shot her through the top of the head.

We also find that competent, substantial evidence supports the jury’s finding of premeditation. Based on the crime scene evidence, the nature of Stubbs’ wounds and the manner in which they would have been inflicted, the jury could have reasonably determined that McMillian committed premeditated murder. See Pearce v. State, 880 So.2d 561, 572 (Fla.2004) (“Circumstantial evidence of premeditation can include the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.”) (emphasis added) (citing Spencer v. State, 645 So.2d 377, 381 (Fla.1994); Holton v. State, 573 So.2d 284, 289 (Fla.1990)); see also Asay, 580 So.2d at 613 (“Based on Asay’s statements, the nature of the wound inflicted, and the circumstances surrounding the shooting, the jury could have found that Asay made a conscious decision to shoot Booker ... realizing the probable result of so doing.”).

Accordingly, McMillian has failed to demonstrate that the trial court erred in determining that the evidence was sufficient to support premeditation.

B. Proportionality

Regardless of whether the defendant raises the issue, “[t]his Court must review the proportionality of a death sentence.” Bolin v. State, 869 So.2d 1196, 1204 (Fla.2004). The death penalty is intended for those cases in which “the most aggravating and least mitigating circumstances exist.” Terry v. State, 668 So.2d 954, 965 (Fla.1996) (citing Kramer v. State, 619 So.2d 274, 278 (Fla.1993); State v. Dixon, 283 So.2d 1, 7 (Fla.1973)). This Court’s review “ ‘is not a comparison between the number of aggravating and mitigating circumstances.’ ” Crook v. State, 908 So.2d 350, 356 (Fla.2005) (quoting Urbin v. State, 714 So.2d 411, 416 (Fla.1998)). Rather, this Court considers the totality of the circumstances to determine if death is warranted in comparison with other cases in which the death penalty was upheld. Id.

This case involves a premeditated shooting murder and a very serious attempted shooting murder of a uniformed police officer by a felon who, by the terms of his probation, was forbidden from possessing a firearm. The jury recommended death by a vote of 10-2. The trial court found two aggravating circumstances: (1) McMil-lian was on felony probation at the time of the murder (great weight); and (2) McMil-lian was convicted of a prior violent felony based on his conviction at trial for the attempted murder of a law enforcement officer (great weight). The trial court also found the following mitigators: (1) no significant history of prior criminal activity (little weight); (2) McMillian was raised in the church as a child (very slight weight); (3) McMillian loves and is loved by his family and friends (little weight); (4) McMillian has a consistent history of employment (little weight); (5) McMillian’s biological mother was not an active participant in his upbringing (slight weight); (6) McMillian has an IQ of 76 (little weight); (7) McMillian behaved appropriately during trial (slight weight); and (8) McMillian suffered from some mental or emotional distress at the time of the murder (some weight).

We have found the death penalty to be a proportionate sentence where the totality of the circumstances were similar to those present here. For example, we have found death to be a proportionate sentence in cases which have similarly involved a shooting death following domestic disputes over sexual infidelity. See Rodgers v. State, 948 So.2d 655 (Fla.2006) (affirming death sentence for defendant who caught his wife cheating and fatally shot her in the head later that day where the trial court determined that one aggravator-pri- or violent felony, based on a 1963 robbery and a 1979 manslaughter conviction-outweighed five nonstatutory mitigators, including that the defendant had borderline intelligence at best); Evans v. State, 838 So.2d 1090 (Fla.2002) (affirming death sentence as applied to defendant who fatally shot brother’s girlfriend in the course of an argument over her alleged infidelity based on the trial court’s determination that two aggravators — prior violent felony and felony probation — outweighed several nonstat-utory mitigators including a deprived childhood as a result' of mother’s crack addiction, exemplary work habits, and performing charitable and humanitarian work). And we have upheld the death penalty as proportionate in cases which have involved a similar mix of one or two weighty aggravators and comparatively weak mitigators. See Bailey v. State, 998 So.2d 545 (Fla.2008) (affirming death sentence as applied to a defendant who fatally shot a police officer during a traffic stop based on trial court’s determination that two weighty aggravators (avoid arrest and felony probation) outweighed the statutory age mitigator (very little weight) and eight nonstatutory mitigators including low IQ, history of mental illness, intoxication, and coming from a broken home (little weight as to each)); Blackwood v. State, 777 So.2d 399 (Fla.2000) (affirming death penalty as proportionate based on a lone HAC aggra-vator and a mix of mitigators that was very similar to McMillian’s, including the statutory mitigator of no significant criminal history, and nonstatutory mitigators of emotional disturbance at time of murder, murder as a result of a lover’s quarrel, low IQ, defendant being a good parent, and employment history); Pope v. State, 679 So.2d 710 (Fla.1996) (affirming death penalty as to defendant who fatally beat and stabbed his girlfriend, based on the trial court’s determination that the prior violent felony and pecuniary gain aggravators outweighed both statutory mental health mit-igators and several nonstatutory miti-gators, including intoxication at the time of the murder and fighting with the victim girlfriend just before the murder).

McMillian argues that, because his prior violent felony resulted from a crime committed after Stubbs’ murder, it should be afforded less weight. In support, McMillian relies on Urbin v. State, 714 So.2d 411 (Fla.1998) (striking the death penalty as applied to defendant who was seventeen at the time of the murder, whose ability to appreciate the criminality of his conduct was substantially impaired, and who suffered extensive parental abuse and neglect and also noting, in a single sentence, that Urbin’s qualifying prior violent felony was based on a robbery that occurred two weeks after the murder at issue). Here, due to the exceedingly serious nature of McMillian’s qualifying prior violent felony-McMillian, a convicted felon who was forbidden from possessing a firearm under the terms of his probation, attempted to murder a uniformed law enforcement officer with a firearm and engaged in a running shootout with the police in the middle of a residential neighborhood we find that McMillian’s prior violent felony aggravator is unquestionably entitled to great weight.

Accordingly, we find that death is a proportionate sentence in McMillian’s case.

C. Sufficiency of the Evidence

Regardless of whether the parties raise the issue, this Court independently reviews the record of a death penalty case to determine whether the evidence is sufficient to support the murder conviction. See Winkles v. State, 894 So.2d 842, 847 (Fla.2005). Here, there is competent, substantial evidence to support McMilli-an’s conviction for first-degree murder.

In his hospital confession, McMillian admitted that he first shot Stubbs while she was in bed and then shot her again after she rolled out of bed and onto the floor. Evidence from Stubbs’ bedroom and the medical examiner’s testimony is consistent with Stubbs being shot through the arm while in her bed, rolling to the floor on the side of the bed opposite the bedroom doorway, and then being shot again through the top of the head. Further, the “trail” formed by the unfired .45 caliber cartridge in Stubbs’ bedroom doorway and the two shell casings found at the foot of the bed and right beside Stubbs’ body could be seen as indicating that McMillian entered Stubbs’ bedroom, recocked his already loaded gun so as to cause an unfired .45 caliber cartridge to be ejected, walked to the foot of Stubbs’ bed, shot her in the arm, and then moved to where Stubbs had rolled to the floor on the far side of the bed before shooting her again in the top of the head. Moreover, the location of the fatal gun — shot to the top of Stubbs’ head — supports a determination that McMillian intended to kill Stubbs. See Pearce, 880 So.2d at 572 (“[C]ircumstantial evidence of premeditation can include ... the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.”).

Based on the foregoing, we find that competent, substantial evidence supports McMillian’s conviction for premeditated first-degree murder.

III. CONCLUSION

For the reasons expressed above, we affirm McMillian’s conviction and sentence of death for the premeditated first-degree murder of Danielle Stubbs.

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), Fla. Const.

      . McMillian has given at least five different accounts of events relating to Stubbs’ murder; three were made to police, recorded, and played at trial; one was given when McMilli-an testified in his own defense; one was introduced through the testimony of Dr. Krop during the penalty phase. No two are wholly consistent with each other, and none of them can be fully reconciled with the evidence.

      . This interview was recorded and was played for the jury during trial and a transcript of the interview was admitted into evidence.

      . McMillian independently confirmed that he was only receiving Motrin.

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

      . During its rebuttal, the state played a recording of a police interview of McMillian, taken at McMillian’s request, from January of 2010. In this interview, McMillian claimed that he had not killed Stubbs. Instead, McMillian claimed that he had returned to Stubbs’ townhome, went inside, found her dead, saw his gun on the bed, took the gun, and left because he knew it would look like he killed her. Notably, in this interview, McMil-lian was able to describe where Stubbs' body was located and how it was directionally oriented within her bedroom. This is contrary to the story McMillian told at trial, in which he claimed that he had fired into the darkness without knowing where Stubbs was and had immediately left.

      . The Georgia town’s police knew McMillian by name and knew him to habitually drive with a suspended license.

      . Because police knew who McMillian was and because of the danger involved in chasing him through neighborhoods, they called off the chase and attempted to locate McMillian through other means. Later, McMillian came to the police station and attempted to report his vehicle stolen. When police threatened him with a charge of filing a false police report, McMillian confessed that he was the driver and then bragged about having gotten away. McMillian's stated reason for fleeing was that he was unlawfully in possession of a firearm and narcotics.

      .Dr. Krop did note that McMillian was diagnosed as having ADD as a child, but stated that he would not diagnose McMillian as having the disorder as an adult.

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

      . The aggravators were prior violent felony based on McMillian's conviction for attempted second-degree murder for shooting at a police officer (great weight) and felony probation stemming from McMillian’s felony fleeing and eluding offense in Georgia (great weight).

      . The trial court found that McMillian did not have a significant history of prior criminal activity and gave this mitigator “little weight.” The trial court explained that evidence was presented throughout both phases of the trial that McMillian had a history of fighting in school, was regularly in trouble with police for driving with a suspended license, and had a felony fleeing and eluding charge. The trial court stated that "the Defendant's prior criminal activity, while not in the nature of violent felony convictions, substantially reduces the weight of this mitigating circumstance.”

      . The trial court found that: (1) McMillian was raised in the church (very slight weight); (2) McMillian loves and is loved by his family and friends (little weight); (3) McMillian has a consistent history of employment (little weight); (4) McMillian’s biological mother was not an active participant in his upbringing (slight weight); (5) McMillian has an IQ of 76 (little weight); (6) McMillian behaved appropriately during trial (slight weight); (7) McMillian suffered from some mental or emotional distress at the time of the murder (some weight).

      . McMillian also claims that the trial court abused its discretion by assigning great weight to his felony probation aggravator and that Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We reject both claims as meritless.

      . The prosecution presented two theories to support its first-degree murder charge: that the murder was premeditated or that the murder was a qualifying felony murder based on an underlying burglary and/or sexual assault. The jury specifically found McMillian guilty of premeditated first-degree murder.

      . McMillian claims that, based on the medical examiner’s testimony, there is no way to determine which shot was fired first. McMil-lian misconstrues the testimony; the medical examiner stated that, based on the autopsy alone, he could not determine which shot was fired first. When the totality of the evidence is considered, including McMillian’s admissions, the bullet that passed through Stubbs' arm being recovered from her bed, and the medical examiner's testimony that Stubbs likely would have been rendered immediately unconscious and likely would have died within seconds of being shot in the head, it is clear that McMillian’s first shot was to Stubbs’ arm.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Thomas Julian CASIAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4952.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.
    Rehearing Denied July 14, 2012.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Thomas Julian Casias seeks review of his conviction and sentence for one count of burglary of a dwelling. Because the State failed to offer any testimony to establish that the statistical analysis presented by the Florida Department of Law Enforcement (FDLE) crime laboratory analyst was generally accepted within the scientific community, we reverse and remand for a limited evidentiary hearing on this issue. We reject the other arguments raised by Casias without further discussion.

While Sonya Schirmacher was visiting relatives on November 23 and 24, 2006, someone broke into her house through a bathroom window and stole numerous items. There were no eyewitnesses to the crime, and the only evidence available to attempt to identify the perpetrator was a few drops of blood. A sample of this blood was collected, and a DNA test was performed. A national database search identified Casias as a possible contributor of the DNA. Based on this search result, Casias was arrested and charged with burglary of a dwelling. A post-arrest DNA sample was taken from Casias and submitted for further analysis, which confirmed that Casias was a potential contributor of the blood found in Schirmacher’s house. The State had no other evidence linking Casias to the offense.

At Casias’ trial, FDLE analyst Lisa Johnson testified at length to the process of extracting and analyzing the DNA from the blood sample collected at the scene and the post-arrest sample collected from Casi-as. She also testified that the DNA extracted from the sample collected at the scene matched that obtained from Casias post-arrest. Then, over Casias’ objection, she testified to her conclusion that, based on her comparison of Casias’ profile to a statistical database, she would expect to find a DNA profile like Casias’ in 1 in 1.7 quadrillion Caucasians, 1 in 30 quadrillion African-Americans, and 1 in 360 trillion Southeastern Hispanics. The jury convicted Casias as charged based on this evidence.

In this appeal, Casias contends that the trial court erred by permitting Johnson to testify concerning the statistical significance of the DNA evidence when the State failed to lay the proper predicate for her testimony. Given the complete lack of any testimony concerning the methodology used in calculating Johnson’s population frequency statistics, we are compelled to agree.

When the admissibility of scientific or other technical opinion evidence offered by an expert is challenged, the trial court serves a “gatekeeping” function. As threshold issues to admissibility, the trial court must determine (1) whether the expert testimony will assist the jury in understanding the evidence or determining a fact in issue; (2) whether the expert’s testimony is based on a scientific principle or methodology that is generally accepted within the scientific community; and (3) whether the particular witness is qualified to present opinion testimony on the subject at issue. See Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995). The second threshold issue is based on the standard set out in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which requires that the scientific principles or methodologies to which an expert testifies be generally accepted in the scientific community before they will be considered valid in the courts. If the challenged evidence satisfies these three criteria, the court may “open the gate” and allow the expert to testify to his or her opinion. Id. At that point, it is up to the jury to determine what, if any, weight to afford that expert’s opinion. Id.

In Casias’ case, the scientific evidence at issue was Johnson’s analysis of the DNA collected from the scene of the burglary and her comparison of that DNA to the known sample from Casias. In general:

DNA testing requires a two-step process, one biochemical and the other statistical. The first step uses principles of molecular biology and chemistry to determine that two DNA samples look alike. The second step uses statistics to estimate the frequency of the profile in the population. Both steps must satisfy the Frye test.

Butler v. State, 842 So.2d 817, 827-28 (Fla.2003) (emphasis added); see also Brim v. State, 695 So.2d 268 (Fla.1997).

Because Butler and Brim require application of the Frye test of general acceptance within the scientific community to both steps of the DNA analysis, it is not sufficient for an expert to testify merely to the results of a statistical analysis. Instead, the expert must also testify to the methodology he or she used to apply the information obtained from that database to the DNA profile at issue in the case so that the court can determine whether the methodology actually used is generally accepted within the scientific community. Compare Darling v. State, 808 So.2d 145, 158 (Fla.2002) (finding a DNA expert’s testimony legally sufficient when he “testified regarding the general acceptance in the scientific community of the methodology used, and demonstrated his knowledge and experience regarding both the methodology and the databases employed”), with Brim, 695 So.2d at 272 (reversing for a limited evidentiary hearing when the “record fail[ed] to show complete details of the State’s calculation methods,” which meant that the court could not evaluate “whether the methods used to calculate the State’s population frequency statistics would satisfy the Frye test,” and noting that the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principles and the procedures used to apply that principle to the facts at hand), and Perdomo v. State, 829 So.2d 280, 283 (Fla. 3d DCA 2002) (reversing for a limited evidentiary hearing when the court was “unable to discern from [the expert’s] testimony concerning his education and experience, the database and the methodology used to compute the frequency statistics whether he demonstrated the requisite knowledge” to offer an opinion).

Here, the State first elicited testimony about FDLE analyst Johnson’s educational background and work experience. The State also established that Johnson had extensive training through FDLE in basic serology and DNA analysis and that she had been qualified to testify as an expert in the past on “[s]erology, DNA and statistics.” Johnson then offered extensive testimony concerning how she had extracted and tested the DNA samples and how she had determined that the two samples matched.

At that point, the prosecutor turned to the statistical analysis of the DNA samples. The following discussion ensued:

Q. Now with respect to statistics, are you familiar with the field of statistics?
A. Yes.
Q. Have you testified as an expert with respect to statistics?
A. Yes, I have.
Q. In the past, based on your specialized knowledge and expertise in statistics, have you been able to give an opinion regarding statistics in a court of law?
A. Yes, I have.
Q. Have you received any specialized training in classes in statistics that enable you to apply it to DNA?
A. Yes, I took several statistics courses throughout my college career, as well as received specific DNA analysis statistics training as part of my training with FDLE.
Q. And based on that training, does FDLE permit you to engage in statistical analysis regarding DNA analysis?
A. Yes.
Q. Now, how is it that statistics are applied to DNA results?
A. When an unknown and a known profile are determined to match one another, that means that that person could be the source of that DNA profile — the statistics are calculated to determine how common or how rare that particular unknown sample profile is in a given population. So when I do determine that there is a match, I calculate the statistics to show how rare or how common that particular profile is in the populations to show in case — if it were to have not come from the individual it matched, to give weights to that particular match.
Q. Now how are you able to do a statistical analysis? Is there a database that is used? Can you explain to the members of the jury how you are able to do this statistical analysis?
A. There is a database published in the Journal of Forensic Sciences. There is a database for each of the three ethnic groups which are Caucasians, African-Americans and Southeastern Hispanics. Each of the databases have been published, and it consists of approximately 200 individuals in each database. Basically what they did was collected [sic] DNA profiles from these 200 individuals and recorded their DNA types at each of those 13 areas and then recorded how often those particular types showed up in each population, and then I used that to estimate how often I would expect the entire DNA profile to be found in a given population.
Q. And when you say the entire DNA profile, is that the 13 different areas with the two numbers attached that we had previously discussed?
A. That’s correct.
Q. Now, this database that you’re discussing that helps you to do a statistical analysis, is it generally accepted in the scientific community as an accurate and reliable measure for these statistical purposes?
A. Yes. As it was published in the Journal of Forensic Sciences, it was open to review by statisticians an[d] population geneticists, and it has been determined to be a valid database to be used for these calculations.
Q. So you indicated it had been published and peer-reviewed?
A. Yes.
Q. Now, obviously, you conducted a statistical analysis with respect to the DNA results in this particular case.
A. Yes, I did.
Q. And what were you able to determine?

At this point, defense counsel objected that the State had failed to lay “an adequate predicate” for Johnson “to opine the statistical frequency basis.” Defense counsel cited Perdomo and Gibson v. State, 915 So.2d 199 (Fla. 4th DCA 2005), and noted that Johnson’s testimony was comparable to the testimony found insufficient in those cases. Counsel then argued:

More specifically, on page 4 in the Gibson ease, there was a lot more information given as to [the expert’s] qualifications to testify as to population for statistics than we actually have here, including there was training to do so and that there was education and experience, but the Third DCA felt that was not a statistician because the testimony concerning education and experience and the database and the methodology to compute the frequencies of statistics were inadequate to demonstrate this particular expert’s knowledge, and I don’t think we’re any further along than these cases suggest.

(Emphasis added.) In response, the court stated that the expert need not be a statistician or a mathematician and that Johnson had “sufficient knowledge of the authorities pertinent to the database that she’s referred to, the three categories, and she has testified in the past.” On that basis, the court overruled the objection and permitted Johnson to provide the statistical evidence. Casias renewed his objection to Johnson’s statistical analysis when the State offered her report into evidence.

Casias’ challenge to Johnson’s testimony implicates both the second and third threshold issues. The record is clear that the State never offered any evidence as to what methodology Johnson used to generate her statistical analysis. Ipso facto, there was no evidence presented to address whether that methodology was generally accepted in the scientific community. Without such evidence, the trial court, whose gatekeeping role required it to determine whether the methodology used to generate the statistical analysis satisfied the Frye test, see Brim, 695 So.2d at 272, simply had no basis to do so. Moreover, without evidence concerning the methodology used by Johnson, the trial court had no basis upon which to find that she was qualified, whether by education, experience, or otherwise, to present opinion testimony concerning the population frequency statistics she generated.

In this regard, this ease is quite similar to Gibson. There, the DNA analyst “explained that in performing ■ the statistical analysis, she uses nationally recognized and accepted scientific procedures. [She] used three different populations, Caucasian, African-American, and Hispanic, in her analysis.” 915 So.2d at 200. She also testified that she had training in the necessary statistical analysis, “was required to know how it works, the basis behind the formulas and must be able to do the calculations by hand.” Id. at 200-01. However, she “never identified, much less displayed ‘sufficient knowledge of the database or method she used for the statistical component of her opinion.” Id. at 202. In finding the evidence insufficient, the court noted that the expert never “ex-plainfed] what method she used, nor did she demonstrate any knowledge of the authorities pertinent to the database.” Id. Because the evidence was insufficient to satisfy this threshold burden, the court remanded for a limited evidentiary hearing to determine whether the expert had sufficient knowledge to present the statistical evidence. Id.

Here, as in Gibson, Johnson never identified or explained the methodology she used to complete her statistical analysis. And, unlike the expert in Gibson, Johnson did not testify that she knew how the statistical program worked, that she was required to know how it works, or that she was able to do the statistical calculations by hand. Thus, Johnson’s testimony laid an even less sufficient predicate for the admission of the statistical analysis than that found insufficient in Gibson. Because the predicate laid by the State was legally insufficient, the trial court should have sustained Casias’ objection and excluded the evidence. And since the DNA evidence was the sole evidence connecting Casias to this offense, the error in admitting this evidence was not harmless.

Nevertheless, while we agree with Casias that the admission of this evidence was error in this instance, we do not agree that he is automatically entitled to a new trial. Instead, as in Brim and Gibson, we reverse and remand for a limited eviden-tiary hearing. At that hearing, the trial court must hear evidence concerning what methodology Johnson used to calculate the population frequency statistics she offered at trial. See Brim, 695 So.2d at 275. Based on that evidence, the court must determine whether the methodology used satisfies Frye’s requirement of general acceptance within the scientific community. Id. If the trial court finds that the methodology used satisfies the Frye test, Casias’ conviction will stand. See id. If not, Casi-as is entitled to a new trial. Id.

Reversed and remanded with instructions.

CASANUEVA, C.J., and MORRIS, J., Concur.

      . The Florida Supreme Court adopted the general standard set forth in Frye in Bundy v. State, 471 So.2d 9, 18 (Fla.1985), and specifically adopted the Frye test of general acceptance within the scientific community in Stokes v. State, 548 So.2d 188, 195 (Fla.1989).

      . We note that at least one statistical methodology — the product rule — has already been found to satisfy the requirements of Frye. See, e.g., Butler v. State, 842 So.2d 817, 829 (Fla.2003); Brim, 695 So.2d at 272. If Johnson testifies that she used the product rule to generate her statistics, or any other statistical methodology that has already been found to be generally accepted within the scientific community, the State need not prove anew that the chosen methodology satisfies Frye. However, if Johnson testifies to using a statistical methodology that has not been previously determined to satisfy the requirements of Frye, the court will need to hold a full Frye hearing in order to make the necessary determination.

      . We are not blind to the irony of the trial court holding a "gatekeeping” hearing after the gate has already been opened and the evidence admitted. Nevertheless, since the court, rather than the jury, is the gatekeeper, Casias will have suffered no prejudice if the evidence would have been admitted had the court held the hearing at the proper time. If that is the case, a retrial, at which the jury would hear exactly the same evidence, would be a waste of judicial resources.


author: GROSS, J.

text:
    PARK FINANCE OF BROWARD, INC., Appellant, v. Dudley JONES and Magretta May Vassell-Jones, Appellees.
    No. 4D10-1504.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Ronald R. Torres of Torres Law Offices, Miami Lakes, for appellant.
    Dudley Jones, Loxahatchee, pro se.
    Magretta May Vassell-Jones, Loxahat-chee, pro se.
   GROSS, J.

After a final money judgment was entered, the circuit court dismissed this case for failure to prosecute under Florida Rule of Civil Procedure 1.420(e). We reverse, holding that the rule does not apply after the entry of a final judgment for money damages and that the exception created by the Florida Supreme Court for mortgage foreclosure actions does not apply to this case.

Park Finance of Broward, Inc., filed a complaint seeking to recover the $22,906.65 balance on a car loan after repossessing the vehicle. A default judgment was entered against the defendants for $23,782.65, plus prejudgment interest of $1,374.49. In March 2006, the trial court granted Park Finance’s ex-parte motion to compel discovery. In April 2006, Park Finance filed a motion for contempt.

Nothing further happened in the case until January 2010, when the trial court sua sponte filed a Motion, Notice and Order of Dismissal pursuant to Florida Rule of Civil Procedure 1.420(e); the filing stated that that there had been no record activity within the past ten months and indicated that the ease would be dismissed for lack of prosecution if there was no activity within 60 days, or no stay was granted, or no good cause was shown for why the action should remain pending.

Park Finance filed a timely “Proffer of Good Cause” in which it informed the trial court that a default final judgment had been entered against Jones, so that any delay and inactivity had occurred during post-judgment collections. As a result, it argued that rule 1.420(e) did not apply, even though its motion for contempt had not been ruled on for almost four years. The trial court dismissed the case.

We agree with Park Finance that the trial court erred when it applied rule 1.420(e) to a non-mortgage foreclosure civil case in which a final judgment had been entered.

The purpose of rule 1.420(e) is to move a “case forward toward a conclusion on the merits or to hasten the suit to judgment.” Barnett Bank of E. Polk County v. Fleming, 508 So.2d 718, 720 (Fla.1987). In adopting rule 1.420(e), the Supreme Court was

confronted with balancing two important but often competing policies and concerns in supervising the orderly and fair resolution of civil litigation: one, to see that legitimate disputes are fairly resolved in the courts on the merits, and the other, to identify cases that are not being properly prosecuted and whose presence in the system may hinder the courts in processing other cases on the merits.

Wilson v. Salamon, 923 So.2d 363, 367 (Fla.2005). The rule helps to identify those cases that are “without merit or cases that are filed and then abandoned in the system.” Id. at 368. Such cases impair the ability of courts to enter final judgments in meritorious cases. Id. The purpose of the rule is to move a case along towards a decision on the merits.

Because of this focus on securing a final judgment as Ravel v. Ravel, 326 So.2d 223 (Fla. 2d DCA 1976), recognized, the purpose behind rule 1.420(e) is not implicated once a final judgment has been entered. In that case, the second district refused to apply the rule after final judgment; the court reasoned that a “contrary construction of the rule would appear to have the practical effect of nullifying an otherwise valid judgment.” Id. at 224. In Multicon Construction Corp. v. E.C. Stokes Mechanical Contractors, Inc., 449 So.2d 424, 425 (Fla. 4th DCA 1984), we acknowledged the rule of Ravel, but refused to extend it to a situation involving a partial summary judgment on a single issue in a case.

The Supreme Court later disapproved of Ravel, but only to the extent that the case would “prohibit application of rule 1.420(e) to mortgage foreclosure actions.” Frohman v. Bar-Or, 660 So.2d 633, 637 (Fla.1995). The Court treated mortgage foreclosure actions differently from typical civil actions because foreclosures “may involve two distinct but related proceedings that can result in more than one final judgment or order.” Carlson v. Jeflis Prop. Mgmt. Corp., 904 So.2d 642, 645 (Fla. 2d DCA 2005). In Frohman, the Court imposed conditions precedent to the application of rule 1.420(e) out of an apparent “concern that without these conditions, the application of the rule could nullify an otherwise valid foreclosure judgment.” Carlson, 904 So.2d at 646.

In the typical civil action where a final judgment for money damages has been entered, application of rule 1.420(e) would have the effect of nullifying an otherwise valid judgment. The entry of a final judgment triggers a number of rights for the judgment holder. Pursuant to rule 1.550(a), “[ejxecutions on judgments shall issue during the life of the judgment on the oral request of the party entitled to it or that party’s attorney without prae-cipe.” An execution is “valid and effective during the life of the judgment or decree on which it is issued.” § 56.021, Fla. Stat. (2009). An execution is thus “subject to the time limit of section 55.081,” Florida Statutes (2009) and may issue during the 20 year life of the underlying judgment. Burshan v. Nat’l Union Fire Ins. Co., 805 So.2d 835, 839 (Fla. 4th DCA 2001). Similarly, pursuant to section 55.10, Florida Statutes (2009), a judgment becomes a lien on real property in any county where it is properly recorded for an initial period of 10 years, with the possibility of it being extended for up to 10 years. The controlling statutes thus contemplate a 20 year span when a final judgment may be enforced, recognizing that a decision on the merits without financial recovery is a hollow victory. To apply rule 1.420(e) to create a post-judgment procedural trap would weaken the force of a final money judgment that is contemplated by sections 56.021, 55.081, and 55.10. A case such as this one is not the type of case that the rule was designed to weed out — one without merit or one that was filed and then abandoned in the system without the entry of a final judgment on the merits.

We therefore reverse the dismissal under rule 1.420(e) and remand the case to the circuit court.

HAZOURI and CIKLIN, JJ„ concur.

      . Prior to the Supreme Court’s decision in Frohman, we held that Ravel did not apply to post judgment proceedings in mortgage foreclosure actions where the plaintiff sought to recover a deficiency decree. Fin. Sec. Sav. & Loan Ass’n v. España River P'ship, 537 So.2d 683 (Fla. 4th DCA 1989); Frohman v. Bar-Or, 637 So.2d 369 (Fla. 4th DCA 1994), approved, 660 So.2d 633 (Fla.1995).

      . Rule 1.560 allows a judgment creditor or the successor in interest to obtain discovery in aid of execution and rule 1.570(a) provides for final process to enforce a money judgment. Neither rule imposes a time limit on the judgment creditor.


author: DAMOORGIAN, J.

text:
    Luanna SHIREY and Michael Shirey, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Carlis R. Sabinson and William Sabinson, Appellees.
    No. 4D10-2489.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Rehearing Denied Aug. 30, 2012.

      Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Todd S. Stewart of the Law Offices of Todd S. Stewart, P.A., Jupiter, for appellants.
    Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellee State Farm Mutual Automobile Insurance Co.
    Daniel M. Bachi and Dina M. El-Salhy of Sellars, Marion & Bachi, P.A., West Palm Beach, for appellees Carlis R. Sabin-son and Williams Sabinson.
   DAMOORGIAN, J.

Luanna and Michael Shirey appeal two trial court orders granting final summary judgment for State Farm Mutual Automobile Insurance Company, Carlis R. Sabin-son, and William Sabinson. We affirm.

The Shireys filed an amended complaint for damages resulting from a motor-vehicle collision against State Farm, Carlis R. Sabinson, and William Sabinson. The complaint alleged that the three lead drivers in the vehicle collision were negligent. It further alleged that Luanna Shirey sustained permanent injuries as a result of the car accident. Michael Shirey brought a loss of consortium claim. The accident occurred in the following manner. The first vehicle (vehicle 1) was driven by an unidentified lead-driver, followed by the second vehicle (vehicle 2) driven by Normal Purcell, followed by the third vehicle (vehicle 3) driven by William Sabinson. Vehicle 1 slowed to make a right turn into a local business. Vehicles 2 and 3 slowed in reaction. Luanna Shirey, who was driving the fourth or last vehicle, rear-ended Sabinson’s vehicle causing his vehicle to rear-end Purcell’s vehicle.

After answering the complaint and after some discovery ensued, State Farm moved for summary judgment. The Sabinsons informally joined State Farm’s motion. In its motion and at the subsequent hearing on the motion, State Farm argued that our holding in Cevallos v. Rideout, 18 So.3d 661 (Fla. 4th DCA 2009), rev. granted, 32 So.3d 622 (Fla.2010), was dispositive because the evidence was uncontroverted that vehicles 1, 2, and 3 all slowed down gradually, and, that Luanna Shirey slammed into vehicle 3. In other words, but for her own negligence, the two vehicles in front of her would have safely slowed down, and made no contact with one another. The trial court granted summary judgment and final judgments were entered for the Sabinsons and State Farm. This appeal follows.

“The standard of review of an order granting summary judgment is de novo.” Corya v. Sanders, 76 So.3d 31, 33 (Fla. 4th DCA 2011) (quoting Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006)). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004).

The Shireys assert that ordinary comparative fault should govern. Alternatively, they argue that they have met their burden under Cevallos by presenting evidence of the negligence of the lead drivers, thus rebutting the presumption. State Farm counters that this accident was a result of Luanna Shirey crashing into the rear of Sabinson’s vehicle. Therefore, absent evidence that the lead vehicles in the crash operated or commenced braking their respective vehicles in an arbitrary, unforeseeable or negligent manner, the presumption of negligence on the part of the rear driver in a rear-end collision compels entry of summary judgment in favor of the lead vehicles. Even without the presumption, State Farm argues that there is no evidence of any causal negligence on the part of the lead drivers. The Sabinsons, who also submitted an answer brief in this appeal, assert the same two arguments.

In Cevallos, we noted that the presumption of negligence on the part of a rear driver in a rear-end collision can be overcome by establishing the lead-driver stopped abruptly and arbitrarily. Ceval-los, 18 So.3d at 663-64. We further held that “a rear-driver plaintiff cannot rely on the mere fact that the lead-driver defendant ‘ran into a preceding vehicle’ without ‘material evidence of negligence’ on the part of the lead-driver defendant in stopping abruptly.” Id. (quoting Pierce v. Progressive Am. Ins. Co., 582 So.2d 712, 714-15 (Fla. 5th DCA 1991) (en banc)).

The lead drivers’ deposition testimony was consistent in that they slowed in response to the phantom vehicle, did not slam on their brakes, and did not hit one another until the Shireys’ vehicle slammed into the third vehicle, propelling it into the second. The Shireys presented the affidavit of their traffic accident reconstruction expert, James Harris, to establish that the lead drivers stopped abruptly and arbitrarily. Harris opined that Sabinson was “utilizing maximum braking immediately prior to [the] collision.” Furthermore, Harris concluded that the phantom vehicle “made a right turn off the highway within 5 seconds of the turn signal coming on” and thus, it “was either at maximum braking power prior to the turn or with the vehicle making that turn at a high rate of speed.”

We conclude that neither of these statements establishes that Sabinson or Purcell stopped their respective vehicles abruptly and arbitrarily. See Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So.3d 789, 791 (Fla. 3d DCA 2010) (holding that con-clusory affidavits of a party and its expert were insufficient to create a disputed issue of fact). On the contrary, the expert’s opinions, when viewed in the light most favorable to the Shireys, established that both lead vehicles maintained the safe operation of their respective vehicles in response to the phantom vehicle’s right-hand turn and, even assuming that abrupt braking was required because of the phantom’s vehicle’s actions, such action was appropriate. See Sorel v. Koonce, 53 So.3d 1225, 1228 (Fla. 1st DCA 2011) (an arbitrary stop is one that is “irresponsible” as opposed to an “appropriate response to activity on the road”); Moran v. Fla. Sec. Elecs., Inc., 861 So.2d 57, 58-59 (Fla. 3d DCA 2003) (concluding that a directed verdict should have been granted for the plaintiffs because the rear driver in a rear-end collision failed to rebut the presumption of negligence where it could be reasonably expected that a lead driver would turn into one of the businesses located on the side of the street).

Moreover, even without the presumption recognized in Cevallos, our review of the record leads us to conclude that there was no material evidence of negligence by the lead-drivers. In fact, but for Luanna Shi-rey’s own negligence in failing to maintain a safe distance from the vehicles in front of her and apply the appropriate braking under the circumstances, no accident would have occurred. See Pierce, 582 So.2d at 714 (affirming summary judgment in favor of lead-driver defendants and against rear-driver plaintiff where there was no evidence whatsoever of any negligence by either lead driver to rebut the presumption of the rear-driver’s negligence). Accordingly, we reject the Shireys’ request to revisit our holding in Cevallos and apply a theory of comparative fault where there is no evidence of negligence on the part of the lead-drivers.

Affirmed.

MAY, C.J., and GROSS, J., concur.

      . Carlis R. Sabinson was the owner of the vehicle driven by William Sabinson.

      . The Shireys maintained an uninsured/un-derinsured policy with State Farm.

      . We recognize that Cevallos was distinguished by the Fifth District in Charron v. Birge, and the Florida Supreme Court has also accepted jurisdiction to review Charron based on its conflict with Cevallos. See Charron v. Birge, 37 So.3d 292 (Fla. 5th DCA 2010), rev. granted, 61 So.3d 410 (Fla.2011) (table). We decline the Shireys' invitation to await the Florida Supreme Court's decision in Cevallos.

      . The presumption can also be rebutted by testimony regarding mechanical failures or a vehicle’s illegal and unexpected stop, neither of which are applicable here. See Tozier v. Jarvis, 469 So.2d 884, 886-87 (Fla. 4th DCA 1985).


author: PER CURIAM.

text:
    Phillip VAN ZANT, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D11-5866.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Rehearing Denied Aug. 20, 2012.
    Phillip Van Zant, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking the revocation of his parole, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his parole revocation have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court challenging the 2001 revocation of parole from the judgment and sentence imposed on December 19, 1979, in Leon County Circuit Court case number 76-00450. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App.P. 9.410.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


author: WOLF, J.

text:
    HERON AT DESTIN WEST BEACH & BAY RESORT CONDOMINIUM ASSOCIATION, INC., Appellant, v. OSPREY AT DESTIN WEST BEACH and Bay Resort Condominium Association, Inc.; Sandpiper at Destin West Beach and Bay Resort Condominium Association, Inc.; James Peters, as Director on the Board of Destin West Beach and Bay Resort-Bayside Property Owners Association, Inc.; and Roy Boroughs, as Director on the Board of Destin West Beach and Bay Resort-Bayside Property Owners Association, Inc.; Fred Tolbert, III, as Director on the Board of Destin West Beach and Bay Resort-Bayside Property Owners Association, Inc.; Destin West Beach and Bay Resort-Bayside Property Owners Association, Inc., Appellees.
    No. 1D11-3305.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Rehearing Denied Aug. 21, 2012.

      Harold R. Mardenborough, William B. Graham, and Matthew Scanlan of Carr Allison, Tallahassee, for Appellant.
    Gary A. Vorbeck of Vorbeck Law Firm, P.A., Destín, for Osprey at Destín West Beach and Bay Resort Condominium Association, Inc., Sandpiper at Destín West Beach and Bay Resort Condominium Association, Inc., James Peters, as Director on the Board of Destín West Beach and Bay Resort-Bayside Property Owners Association, Inc., and Roy Boroughs as Director on the Board of Destín West Beach and Bay Resort-Bayside Property Owners Association, Inc., Appellees; Casey K. Weid-enmiller and Donald S. Boyd of Woods, Weidenmiller & Michetti, P.L., Naples, for Destín West Office Building Condominium Association, Inc. and Fred Tolbert, III, Appellees.
   WOLF, J.

Appellant, Heron at Destín West Beach and Bay Resort Condominium Association, Inc. (Heron), challenges a final summary judgment that found the election of officers of a master condominium association must be based on a simple majority of the board of directors rather than the weighted voting procedure specified in the master condominium declaration. We determine that chapter 718, Florida Statutes, applies to this master condominium association, that the governing documents of the association intended that results of elections be determined based on the weighted voting procedure, and that nothing in chapter 617, Florida Statutes, precludes this manner of election. We, therefore, reverse the summary judgment granted in favor of the appellees and remand for entry of a summary judgment in favor of appellant.

All parties are members of a Master Association, Destín West Beach and Bay Resort-Bayside, which is comprised of five smaller condominium associations: (1) Osprey at Destín West Beach and Bay Resort (containing 37 condominium units); (2) Sandpiper at Destín West Beach and Bay Resort (48 units); (3) Pelican at Des-tín West Beach and Bay Resort (48 units); (4) Heron at Destín West Beach and Bay Resort (54 units); and (5) Destín West Office Building (4 units). The developer of these resorts controlled the Master Association until November 7, 2009, when control was turned over to the Board of Directors (the Board). The Board was comprised of the presidents of each condominium association, pursuant to the Master Association’s governing documents.

One of the first actions taken by the Board was to call a meeting and elect officers. Two of the five board members were nominated for the office of president: Judith Rawson and James Peters. During voting, a dispute arose over how the votes were to be tallied. Rawson asserted that each board member should be given a weighted vote based on the number of total units in that member’s condominium association. In contrast, Peters asserted that the officers were to be elected by a majority of the Board with one vote allotted to each board member.

After taking a vote, Rawson received two votes, and Peters received three votes. Rawson, however, received a majority of the votes of the individual units under the weighted voting scheme. Based on Raw-son’s interpretation of the voting requirements, she declared herself president; however, Peters and the directors who supported him refused to recognize Raw-son as president based on their interpretation of the requirements.

The parties reached an impasse. Peters and the directors who supported him, ap-pellees, filed a complaint (the Complaint) against Rawson’s association, appellant, seeking declaratory and injunctive relief. Appellees asked the court to rule the election of officers was subject to a one-vote-per-director voting scheme.

Appellees attached to the Complaint the governing documents of the Master Association, including the Master Declaration of Restrictive Covenants and Easements (Master Declaration), the Articles of Incorporation, and the Bylaws. The Master Declaration read in pertinent part:

THE MASTER DECLARATION:

ARTICLE 3
MEMBERSHIP AND VOTING RIGHTS
3.1 Membership. Every Condominium Association in DESTIN WEST BEACH AND BAY RESORT-BAYSIDE (and every Owner of a Unit in DESTIN WEST BEACH AND BAY RESORT-BAYSIDE, but only by virtue of his membership in his respective Condominium Association) and the Developer shall be members of the Master Association. ... The Master Association shall have two classes of membership: (a) Class “A” Members and (b) Class “B” Members, as follows:
(a) Class “A” Class “A” Members shall be all those Condominium Associations created within DESTIN WEST BEACH AND BAY RESORT-BAYSIDE as described in this Declaration.
(b) Class “B” Class “B” Members shall be the Developer. Unless the Developer earlier terminates this membership, the Class “B” Membership shall terminate upon Turnover of the Association.
3.2 Voting. The voting rights of the two classes of membership are as follows:
(a) Class “A” Class “A” Members shall be entitled to one (1) vote for each Unit (excluding Cabana Units) the Class “A” Member represents in the Master Association.
3.4Condominium Association Representative. Each Class A Member shall have the power to vote at Master Association meetings only as described herein. Each Class A Member shall appoint its President or his designee as the representative of the Condominium Association (a “Director”), who shall be a Director of the Master Association and shall attend meetings of the Master Association Board and cast the votes of the Class A Member on Master Association Matters. The Director shall cast the Class A Member’s votes as a block in the manner as the Director may, in his sole and reasonable discretion, deem appropriate, acting on behalf of the Class A Member....
ARTICLE 13
13.4Interpretation: The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development of DESTIN WEST BEACH AND BAY RESORT-BAYSIDE as a resort community. ...

(Emphasis added).

In addition to the foregoing, the Articles of Incorporation for the Master Association were attached to the Complaint and stated in relevant part:

ARTICLES OF INCORPORATION
ARTICLE II
PURPOSES
The Master Association is organized to establish a master association of the condominium associations of DESTIN WEST BEACH AND BAY RESORT-BAYSIDE, and to administer and enforce the Declaration of Restrictive Covenants and Easements for DES-TIN WEST BEACH AND BAY RESORT-BAYSIDE (hereinafter the “Master Declaration”) to be recorded in the Public Records of Okaloosa County, Florida. The Master Association shall have the following specific purposes, including, but not limited to, the following:
2.4To enforce the provisions of the Master Declaration which the Master Association has the responsibility to enforce.
ARTICLE III
POWERS AND DUTIES
The Master Association shall have and exercise all rights and powers conferred upon corporations under the laws of the State of Florida consistent with these Articles and the Master Declaration. The Master Association shall also have all of the powers and authority reasonably necessary or appropriate to implement its purposes and to carry out duties imposed upon it by the Master Declaration, including, but not limited to, the following:
3.1 To exercise all of the powers and privileges and to perform all of the duties and obligations of the Master Association as defined in the Master Declaration.
ARTICLE V
MEMBERSHIP
The members of the Master Association shall be [the Developer or its assignee] and each Condominium Association created within DESTIN WEST BEACH AND BAY RESORT-BAYSIDE as defined in the Master Declaration. Owners of Units in DESTIN WEST BEACH AND BAY RESORT-BAY-SIDE shall be entitled to the benefits of membership in the Condominium Associations which are members of the Master Association; however, such Owners of Units in DESTIN WEST BEACH AND BAY RESORT-BAYSIDE shall not attend meetings or have voting authority in the Master Association except through their respective Condominium Association and as set forth in the Master Declaration and By-Laws. No other persons or entities shall be entitled to membership. Membership rights and duties shall be subject to and controlled by the Master Declaration, which is in the form of a covenant running with the land.
ARTICLE VI
VOTING RIGHTS
6.1The Master Association shall have two (2) classes of voting Memberships: A. Class A Class “A” Members shall be all those Condominium Associations created within DESTIN WEST BEACH AND BAY RESORT-BAYSIDE as described in the Master Declaration. Each Class A Member shall have one (1) vote for each Unit represented by such Class A Member....
ARTICLE VII
BOARD OF DIRECTORS
7.1 The affairs of the Master Association will be managed by a Board of Directors....
7.6 Directors entitled to cast a majority of the voting interest of the entire membership shall constitute a quorum at meetings of the Board. Except as herein otherwise specified, the decision of a majority of the Directors present at a meeting at which a quorum is present shall be required and shall be sufficient to authorize any action on behalf of the Board. Each Director shall be entitled to vote on every matter presented to the Board of Directors on behalf of the Member represented by such Director, such votes to be cast in accordance with Article VI herein.

(Emphasis added). Last, the Bylaws were attached to the Complaint and they read in pertinent part:

BYLAWS
I. GENERAL
1.1 Master Association.... The Master Association has been organized for the purpose of administering the maintenance, operation and management of the Common Properties and improvements of DESTIN WEST BEACH AND BAY RESORT-BAYSIDE, in accordance with the ... “Master Declaration.”...
1.2 ... The provisions of these ByLaws are ... subject to the provisions of the Master Declaration, and the Articles of Incorporation....
II. MEMBERSHIP
■2.1 Members. The qualification and designation of Members of the Master Association (the “Members”), the manner of their admission and termination of such membership, and voting interests of Members, shall be as set forth in the Articles, the provisions of which are incorporated herein by reference.
2.2 Votes. Each Class A Member shall have one (1) vote for each Unit (excluding Cabana Units if any) represented by such Member. All votes cast by any Member shall be weighted and be with reference to the Units represented by such Member.
2.3 Meetings. Meetings of the Members of the Master Association Shall be held only in the form of meetings of the Board of Directors of the Master Association. Votes of the Members shall be cast by the respective Director on the Board of Directors representing the individual Members, as set forth in the Master Declaration.

(Emphasis added).

On November 29, 2011, Heron filed a motion for summary judgment alleging there were no factual disputes and, as a matter of law, the relevant covenants and articles established Rawson had been lawfully voted president of the Master Association. Appellees filed a motion for summary judgment agreeing there existed no factual disputes, but asserting, as a matter of law, that officers of the Master Association were elected by an affirmative vote of a majority of directors without consideration of the number of units at each of the director’s relevant condominiums.

On June 11, 2011, the trial court held a hearing on the motions. In addition to relying on the plain language of the governing documents, Heron further asserted that section 718.112(2)(b)(l), Florida Statutes (2009), expressly allowed weighted voting in the election of officers of condominium associations. In response, appel-lees asserted that chapter 718 did not control. Rather, they asserted chapter 617, which pertained to non-profit organizations, controlled and prohibited weighted voting.

The trial court determined that chapter 617 addressing non-profit corporations precluded the weighted voting procedure, and the documents contemplated that a simple majority of the directors would elect their officers. We disagree with the trial court on both of these determinations.

Both parties concede there are no factual disputes, and review of the summary judgment order rests on this court’s legal conclusions. Matters of contract and statutory interpretation are reviewed de novo. Speegle Constr., Co., Inc. v. Dist. Bd. of Trs. of Nw. Fla. State Coll., 75 So.3d 360, 361 (Fla. 1st DCA 2011).

Intent of the Documents

As a threshold matter, it is important to note that there exists a distinction between a single condominium association and a master condominium association. Condominium associations derive their authority from a declaration of condominium and are unquestionably controlled by chapter 718, Florida Statutes, the Condominium Act. Master condominium associations typically derive their authority from a declaration of covenants and are controlled by chapter 718, Florida Statutes, only if the master association meets the definition of “association” found in section 718.103(2), Florida Statutes. Otherwise, the master association is only subject to chapter 617, Florida Statutes, the Non-Profit Corporation Act.

Regardless, there exists a certain hierarchy in the governing documents. For both types of associations, the declaration acts as the association’s constitution and strictly governs the relationships among the members and the association. See 10 Fla. Jur. 2d Condominiums, Etc. § 3 (2012). A member, whether a unit owner or another association, may sue the association for violating duties established in the relevant declaration. Id.

The articles of incorporation are governing documents which are generally filed with the Secretary of State as part of the process to form a corporation. Black’s Law Dictionary 120 (8th ed. 2004). Bylaws are rules adopted by an organization for its internal governance; however, these rules are subordinate to the Articles of Incorporation or the organization’s constitution. Id. at 214.

Based on the foregoing, if a conflict arises between these three governing documents, the Master Declaration should control over the Articles of Incorporation or the Bylaws. Appellees have cited Whitley v. Royal Trails Property Owners’ Ass’n, Inc., 910 So.2d 381, 384 (Fla. 5th DCA 2005), for their contention that the governing documents should be read as a whole without one document controlling. However, in Whitley, there was no discussion of whether the governing documents themselves contemplated a hierarchy. Here, the governing documents themselves state the Articles of Incorporation are created to “enforce” the Master Declaration, and the Bylaws are formed to implement the Articles of Incorporation and the Master Declaration. Thus, the governing documents themselves render the Declaration controlling, and Whitley is distinguishable.

Here, the Articles of Incorporation state that all unit owners are entitled to the benefits of membership of the Condominium Associations which are members of the Master Association through an elected representative (their condominium association’s president), who serves as a director on the Master Association’s Board of Directors. The representative then gets one vote per unit to cast as he or she sees fit in any voting processes. Specifically, the Master Declaration provides that, “Class ‘A’ Members shall be entitled to one (1) vote for each Unit (excluding Cabana Units) the Class ‘A’ Member represents in the Master Association.” (Emphasis added).

Appellees argue that section 7.6 of the Articles of Incorporation conflicts.with this foregoing provision by stating:

7.6 Directors entitled to cast a majority of the voting interest of the entire membership shall constitute a quorum at meetings of the Board. Except as herein otherwise specified, the decision of a majority of the Directors present at a meeting at which a quorum is present shall be required and shall be sufficient to authorize any action on behalf of the Board.

(Emphasis added). However, immediately following this provision, the Articles state, “Each Director shall be entitled to vote on every matter presented to the Board of Directors on behalf of the Member[s] represented by such Director, such votes to be cast in accordance with Article VI herein.” In addition, the Bylaws expressly state that “[a]ll votes cast by any Member shall be weighted and be with reference to the Units represented by such Member” (the weighted vote scheme).

Appellees also assert that the weighted voting scheme only applies to “membership matters.” There is little support in the documents for this interpretation. Nowhere in the documents is there a clear demarcation of what would constitute “membership matters” versus “board matters.” Pertinent to this case, there is no mention in the documents that the election of officers is a “board matter.”

The Weighted Voting Scheme Does Not Conflict with Florida Law

In raising their respective arguments, the parties dispute whether section 718.112(2)(b)(l), Florida Statutes of the Condominium Act or section 617.0824(3), Florida Statutes of the Non-Profit Corporations Act should control the outcome.of the underlying appeal.

Section 718.112(2)(b)(l), Florida Statutes (2009) states:

(b) Quorum; voting requirements; proxies.—
1. Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be a majority of the voting interests. Unless otherwise provided in this chapter or in the declaration, articles of incorporation, or bylaws, and except as provided in subparagraph (d)3., decisions shall be made by owners of a majority of the voting interests represented at a meeting at which a quorum is present.

(Emphasis added). Section 617.0824, Florida Statutes (2009) states:

(1) Unless the articles of incorporation or the bylaws require a different number, a quorum of a board of directors consists of a majority of the number of directors prescribed by the articles of incorporation or the bylaws. Directors younger than 18 years of age may not be counted toward a quorum.
(2) The articles of incorporation may authorize a quorum of a board of directors to consist of less than a majority but no fewer than one-third of the prescribed number of directors determined under the articles of incorporation or the bylaws.
(3) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless the articles of incorporation or the bylaws require the vote of a greater number of directors.

If section 617.0824 governing non-profit organizations controls, the statute requires that a majority. of directors present will control decisions of the Board. However, if section 718.112 governing condominium associations controls, the weighted voting scheme is not contrary to law.

Section 718.103(2), Florida Statutes (2009), defines “association” to mean:

in addition to those entities responsible for the operation of common elements owned in undivided shares by unit owners, any entity which operates or maintains other real property in which condominium unit owners have use rights, where unit owner membership in the entity is composed exclusively of condominium unit owners or their elected or appointed representatives, and where membership in the entity is a required condition of unit ownership.

A master condominium association will meet this definition if it is primarily responsible for the operation of real property or facilities that are not common elements of an individual condominium or property of a condominium association and:

• condominium unit owners have user rights in the master association’s property;
• voting membership is exclusively condominium unit owners (or their agents or representatives);
• membership either directly by a condominium unit owner directly or indirectly through an agent or representative is a required condition of unit ownership; and
• the master association is authorized to assess its members or affected owners for the payment of shared expenses, and any unpaid assessment may ultimately become a lien on a condominium parcel or on common elements of a condominium.

See Karen Stedronsky, Planning and Structuring of Real Estate Developments Incorporating Condominiums and Associations, in Florida Condominium Law and Practice, ch. 2, § 2.25 (Fla. Bar, ed., 2008); Fla. House of Reps. Comm, on Real Property and Probate, Master Condominiums Associations (Dec. 1999).

Appellees misunderstand Heron’s argument that the Master Association meets the definition of “association” under chapter 718. Instead, appellees claim that the Master Association does not meet the definition of a “multicondominium.” § 718.103(20), Fla. Stat. Appellees are correct that the Master Association is not a multicondominium but fail to refute Heron’s argument that the Master Association otherwise meets the definition of “association.”

We conclude that, given the structure of this Master Association, the definition of “association” is met and chapter 718 applies.

Further, we find chapter 718 contemplates allowing various voting schemes to be laid out in the condominium documents, and chapter 617 does not preclude the master declaration of condominiums from addressing the issue.

First, the Condominium Act expressly says it controls. “The powers and duties of the association include those set forth in this section and, except as expressly limited or restricted in this Chapter [Chapter 718], those set forth in the declaration and bylaws and chapters 607 and 617, as applicable.” § 718.111(2), Fla. Stat. (2009). Thus, chapter 718 specifically contemplates some limited application of chapter 617, but chapter 617 does not apply to the extent it conflicts with chapter 718. The two chapters conflict on this issue, so chapter 718 controls.

Second, common law rules of statutory interpretation confirm that the more specific statutory provision controls over the more general. “[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms. The more specific statute is considered to be an exception to the general terms of the more comprehensive statute.” McKendry v. State, 641 So.2d 45, 46 (Fla.1994) (internal citations omitted). The Master Association before this court falls within the broad category of not-for-profit entities, but is more specifically a not-for-profit condominium association subject to chapter 718, Florida Statutes.

Based on the foregoing and the clear intention in the Master Declaration that the voting scheme allow each director to cast the same number of votes as units in his or her respective condominium, we reverse and remand for entry of a summary judgment in favor of appellant.

REVERSED AND REMANDED.

RAY and MAKAR, JJ., concur.

       Whether a master association is controlled by chapter 718 is an admittedly confusing area of law. Attempts to bring statutory clarity to the issue have been somewhat unsuccessful to date. See generally Fla. House of Reps. Comm, on Real Property and Probate, Master Condominiums Associations (Dec. 1999).