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    John M. BUZIA, Appellant, v. STATE of Florida, Appellee. John M. Buzia, Petitioner, v. Kenneth S. Tucker, etc., Respondent.
    Nos. SC10-31, SC10-1645.
    Supreme Court of Florida.
    Dec. 8, 2011.
    Rehearing Denied March 2, 2012.

      Bill Jennings, Capital Collateral Regional Counsel, Maria E. Deliberato and Marie-Louise Samuels Parmer, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

John M. Buzia, a prisoner under sentence of death, appeals an order of the circuit court denying his initial motion under Florida Rule of Criminal Procedure 3.851 to vacate his conviction of first-degree murder and sentence of death and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the postconviction court’s order denying relief, and we deny the habeas petition.

I. BACKGROUND

Buzia was indicted, tried, and found guilty of the first-degree murder of Charles Kersch, the attempted first-degree murder of Thea Kersch, armed burglary of a dwelling with an assault or battery, and robbery with a deadly weapon. Buzia v. State, 926 So.2d 1203, 1206 (Fla.2006). The jury in an eight-to-four vote recommended a sentence of death for the murder, and the trial court so sentenced him.

The evidence at trial showed that on the afternoon of March 14, 2000, Buzia took a bus to the home of Charles and Thea Kersch, a retired couple for whom he had been doing handyman work. Id. at 1206. Later, when Mrs. Kersch pulled into the driveway, she directed him to wait outside on the patio until her husband arrived. Soon, however, Buzia used the artifice of returning to her a tray from the patio to get her to open the door. He then attacked her, hitting and kicking her until she was unconscious. After taking money from her purse, he dragged her into a back bedroom. Buzia began searching through the house for money and took a credit card from Mrs. Kersch’s purse. Upon hearing Mr. Kersch arrive in the garage, Buzia decided to assault him also. He waited and then struck Mr. Kersch as he entered the door into the kitchen. Mr. Kersch fell to the floor, bleeding profusely, and Buzia hit him again when he tried to rise. Buzia went twice to the garage, each time returning with an axe, and he hit each of the victims with the axe. As Mr. Kersch lay on the floor, Buzia took money from Mr. Kersch’s wallet. Id. at 1207. Then, after trying to clean up the house and changing his shirt, Buzia took Mr. Kersch’s car keys and drove away in his car. The next morning, Buzia was arrested at a bank where he was attempting to cash a check drawn from the Kersches’ account. Id.

In determining the sentence, the trial court found the following with regard to mitigation:

[T]he court assigned little weight to two factors under the statutory catchall provision, section 921.141(6)(h), Florida Statutes (2003), specifically Buzia’s interaction with the community and his work record. The court also found seven nonstatutory mitigating factors and ascribed weight as follows: (1) influence of a mental or emotional disturbance, not extreme in nature (substantial weight); .(2) Buzia’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, but not substantially (substantial weight); (3) gainful employment (little weight); (4) appropriate courtroom behavior during the guilt and penalty phases of the trial and during the Spencer hearing (little weight); (5) cooperation with law enforcement (little weight); (6) difficult childhood (little weight); and (7) remorse (little weight).

Buzia, 926 So.2d at 1208. The trial court also found six aggravating circumstances, ascribing four of them great weight and two no weight:

(1) that Buzia was previously convicted of another capital offense or of a felony involving the use of violence to some person [great weight]; (2) that the murder was committed while he was engaged in the commission of or flight after committing or attempting to commit the crime of kidnapping [no weight]; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody [great weight]; (4) that the murder was committed for financial gain [no weight]; (5) that the murder was especially heinous, atrocious, or cruel (“HAC”) [great weight]; and (6) that the murder was committed in a cold, calculated, and premeditated manner, and without any pretense of moral or legal justification (“CCP”) [great weight].

Buzia, 926 So.2d at 1207-08. Concluding that the aggravators outweighed the mitigation, the trial court sentenced Buzia to death for the first-degree murder of Charles Kersch.

After rejecting Buzia’s challenges to four of the aggravating circumstances found in this case and determining the proportionality of the death sentence and that competent, substantial evidence supported the murder conviction, this Court affirmed the judgment and sentence in Buzia’s direct .appeal. Id. at 1218. Subsequently, Buzia filed an initial motion for postconviction relief. The postconviction court denied the motion after holding an evidentiary hearing on some of his claims and summarily denied the others. Buzia then filed this appeal of the denial of his postconviction motion and filed a petition for writ of habeas corpus.

II. POSTCONVICTION CLAIMS

In this appeal, Buzia raises the following claims: (A) trial counsel was ineffective for failing to develop and present mitigation; (B) trial counsel was ineffective for failing to file a motion to suppress his confession; (C) trial counsel was ineffective for failing to have the jury view the entire confession tape; (D) trial counsel was ineffective in the guilt phase; (E) the postconviction court violated Buzia’s right to due process by summarily denying several claims; (F) the postconviction court erred in denying claims regarding the testimony of the fingerprint examiner; (G) the postconviction court erred in denying Buzia’s claim that the State committed a Brady violation by not conducting promised blood testing; (H) cumulative error deprived Buzia of a fair trial; and (I) Buzia may be incompetent to be executed. Each of these claims will be addressed in turn.

A. Presentation of Mitigation

Buzia argues that trial counsel provided constitutionally ineffective assistance by failing to investigate and present mitigation in the penalty phase. To demonstrate ineffective assistance, the defendant must establish both deficient performance and prejudice under the following standard: (1) that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (2) that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. As to the second prong, the appropriate test for prejudice is whether' “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Thus, as to this mitigation claim, the defendant must show that counsel’s error deprived him of a reliable penalty phase proceeding. See Henry v. State, 987 So.2d 563, 569 (Fla.2006). Because the postconviction court denied this claim after an evi-dentiary hearing, this Court reviews that court’s findings of fact to determine whether they are supported by competent, substantial evidence. We review questions of law de novo.

Buzia raises three subclaims regarding the presentation of mitigation in the penalty phase. Specifically, he argues that counsel failed to develop and present evidence of brain damage and of Buzia’s “genetic predisposition” to substance abuse. Further, he claims that counsel failed to prepare witnesses and present a “persuasive narrative” of Buzia’s life.

At the evidentiary hearing, Buzia presented experts who testified that he suffered a temporal lobe injury when his cheekbone was broken in a 1994 incident. They opined that the effect of the mild impairment coupled with Buzia’s drug addiction resulted in extreme mental disturbance and the inability to conform his conduct to the requirements of law, the two statutory mitigators. § 921.141(6)(b), (f), Fla. Stat. (1999). The postconviction court denied the claim, and we affirm.

Buzia has failed to meet either prong of the Strickland test. Competent, substantial evidence demonstrates that prior to trial, Dr. Riebsame, a forensic psychologist, interviewed and tested Buzia, and was aware of Buzia’s 1994 injury. An MRI showed only a venous angioma — a brain abnormality related to seizures — but Buzia did not suffer from seizures. Moreover, Buzia’s history indicated no patterns of academic failure, poor impulse control, or violence, and Buzia was steadily employed, including holding positions with management responsibilities. Dr. Riebsame informed trial counsel that Buzia had no indication or history of cognitive impairment and did not recommend any further neurological testing. Accordingly, trial counsel reasonably relied on this expert’s conclusion. See Darling v. State, 966 So.2d 366, 377 (Fla.2007) (“Even if the evaluation by [a mental-health expert], which found no indication of brain damage to warrant a neuropsychological workup, was somehow incomplete or deficient in the opinion of others, trial counsel would not be rendered ineffective for relying on [the expert’s] qualified ... evaluation.”). “This Court has repeatedly held that counsel’s entire investigation and presentation will not be rendered deficient simply because a defendant has now found a more favorable expert.” Card v. State, 992 So.2d 810, 818 (Fla.2008). Finally, Buzia has not established prejudice. First, contrary to Buzia’s claims, the conclusions of his witnesses at the evidentiary hearing were disputed by the State’s witnesses. Moreover, Buzia’s post-1994 life did not reflect a history of violence and impulsivity, and no expert testified that the mild impairment, standing alone, substantially affected Buzia’s life or ability to function. Finally, the trial court found and gave great weight to four aggravators applicable to the murder: the murder was especially heinous, atrocious, or cruel (HAC); the murder was committed in a cold, calculated, and premeditated manner and without any pretense of moral or legal justification (CCP); Buzia had a prior violent felony conviction; and the murder was committed to avoid lawful arrest.

Buzia next contends that counsel was ineffective because he should have pursued a “bad is good” strategy and presented more evidence of the substance abuse within Buzia’s own family to demonstrate a predisposition to drug and alcohol abuse. At the penalty phase, defense counsel’s strategy was to show that Buzia was a good guy whose life fell apart as his addiction to drugs grew and that the violent murder was an uncharacteristic act. To support this theme, counsel presented fourteen lay witnesses, including family members, friends, employers, and coworkers, who knew Buzia at various stages in his life and whose testimony supported this strategy. Further, Dr. Riebsame testified at length about his testing, examination, and diagnosis of Buzia and about Buzia’s history of alcohol and drug abuse. All told, the testimony showed that Buzia was a popular student athlete and then a young adult who held managerial level positions. As his addiction to drugs increased, however, his life became more uncertain, and he resorted to working short-term jobs in lawn maintenance and as a handyman to support his habit. Based on his interviews with Buzia and members of his family, Dr. Riebsame opined that Buzia’s family was “a classic dysfunctional family” and alcoholism was a major factor in the family’s life. Accordingly, Buzia has not established that counsel was deficient, and we affirm the post-conviction court’s denial of this claim.

Finally, Buzia argues that counsel was ineffective because he failed to adequately prepare and present witnesses. The evidence shows counsel and an investigator worked with Buzia to locate potential witnesses. Although there were few face-to-face meetings between counsel and witnesses, counsel spoke to most of them by phone or they were deposed. Moreover, in preparing Buzia’s mother to testify, counsel discussed with her the various issues of dysfunction within the family, especially regarding substance abuse, and relied on her to present such testimony. On the stand, however, Buzia’s mother apparently became embarrassed and resisted all efforts by trial counsel to develop any of this unflattering family history, except as to Buzia’s father. Counsel cannot be found deficient because a witness “choked” on the stand. Moreover, much of Buzia’s argument regarding presentation of testimony is based on his view that counsel should have presented more witnesses. However, the evidence shows that some of the witnesses Buzia presented at the evi-dentiary hearing either had expressed a reluctance to testify — and thus counsel reasonably chose not to use them — or had provided conflicting representations. In addition, much of the testimony was cumulative of the testimony given at the penalty phase. As stated above, counsel presented numerous witnesses to paint a picture of Buzia’s life that was consistent with his strategy. Buzia’s claims of ineffectiveness are based largely on the idea that more is better. However, this is not the standard for determining ineffectiveness. See Barnhill v. State, 971 So.2d 106, 116 (Fla.2007) (“The fact that there were other witnesses available who could have testified ... does not demonstrate that counsel was ineffective in choosing the theory and strategy that was presented at the penalty phase.”). Accordingly, we affirm the post-conviction court’s denial of relief on this claim.

B. Failure to File Motion to Suppress

Buzia argues that the postconviction court erred in denying his claim that trial counsel provided ineffective assistance by failing to move to suppress his confession on the ground that the waiver of his constitutional rights was neither knowing nor voluntary due to his intoxication from drugs and alcohol. As stated previously, to establish ineffective assistance, a defendant must meet both prongs of the Strickland test: deficient performance and prejudice. 466 U.S. at 694, 104 S.Ct. 2052. Buzia has not established either prong.

The evidence shows that Buzia was arrested the morning after the crime while he was trying to cash a check on his victims’ account. He was compliant with police throughout the morning, and he was interviewed at approximately 10:30 a.m. Buzia responded “yes, sir,” indicating that he understood the rights that he waived and proceeded to give a detailed account of the crime. At trial, one of the interrogating officers testified that he was trained to recognize when people are under the influence of drugs or alcohol, and he saw no such indications with Buzia. According to the officer, Buzia appeared to understand the questions asked and was responsive to them. At the postconviction evidentiary hearing, defense counsel testified that he did not file a motion to suppress the confession because he did not know of a sufficient basis to support it. In fact, no evidence was presented showing that Buzia was intoxicated at the time of his confession. Dr. Morton, Buzia’s expert, testified that he understood from Buzia that Buzia used cocaine before and soon after committing the crime. However, Dr. Morton stated that in the confession video, Buzia demonstrated only “mild” symptoms of withdrawal. He did not conclude that Bu-zia was under the influence of drugs or that Buzia’s confession and waiver of rights were coerced or involuntary. See Davis v. State, 990 So.2d 459, 464 (Fla.2008) (“Because Davis has not demonstrated that he was under the effects of LSD at his confession, he did not establish that LSD had a coercive impact on his confession or that counsel was deficient in declining to call an expert to so testify.”).

C. The Complete Interview Tape

Buzia argues that the postconviction court erred in denying his claim that defense counsel provided deficient performance by moving to exclude from evidence the final twenty minutes of the interview tape, a motion that the trial court granted. The videotape contained post-interview interaction between the interrogating officers and Buzia. Buzia claims that he was prejudiced because the jury did not have the opportunity to see and hear Buzia express remorse and compássion for his victims, which gave the State the ability to argue that Buzia showed no remorse. We conclude that Buzia did not establish either prong of Strickland.

The evidence shows that when defense counsel moved to exclude the conclusion of the confession videotape, he represented that Buzia concurred in this decision. Moreover, at the postconviction evidentiary hearing, defense counsel testified that although Buzia expressed remorse in that part of the tape, another exchange contained therein was more harmful. Stating that he did not want to spend time in prison, Buzia asked one of the officers to give him a gun. Defense counsel feared that a jury hearing this would be more apt to vote for the death penalty. In addition, defense counsel did not want the jury to hear references to Buzia’s criminal record. Thus, counsel’s decision to move to exclude the conclusion of the tape was strategic. “[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Schoenwetter v. State, 46 So.3d 585, 553 (Fla.2010) (quoting Occhicone v. State, 768 So.2d 1087, 1048 (Fla.2000)).

D. Guilt Phase Ineffectiveness

In this issue, Buzia contends that the postconviction court erred in denying his claims that defense counsel was ineffective during the guilt phase of trial (1) for failing timely to preserve and test blood samples taken from him when he was arrested; (2) for failing to present evidence of Bu-zia’s brain damage to negate premeditation; and (3) for failing to present an effective closing argument. Each argument is addressed separately below.

1. Preservation of Blood Samples

Buzia argues that defense counsel provided deficient performance when he failed to ensure that Buzia’s blood was tested promptly for the presence of alcohol and drugs at the time of the offense. He claims a positive test result for the presence of cocaine would have supported a motion to suppress his confession and provided evidence to negate premeditation. Buzia has not demonstrated either prong of Strickland.

Competent, substantial evidence shows that that Buzia committed the offense in the afternoon of March 14, 2000; he was arrested on the morning of March 15; and the State took hair and blood samples at about 7 p.m. Soon after his appointment, counsel interviewed Buzia and then filed a motion to preserve these samples for testing. The court granted the motion upon the prosecutor’s representation that the State would test the samples and preserve them for the defense. Defense counsel subsequently discovered that the State did not have the blood tested for drugs and ordered independent testing. The samples tested negative for cocaine. Accordingly, Buzia has not demonstrated that defense counsel unreasonably relied on the prosecutor’s representation that testing would be conducted. Moreover, Buzia did not demonstrate that if the blood had been tested sooner, cocaine would have been detected. Experts testified that cocaine is rapidly eliminated from the body and that cocaine metabolites usually remain for only twelve to eighteen hours, and at most twenty-six hours. By the time the blood sample was drawn in this case, the sample would not have shown the presence of cocaine at the time of the murder.

Buzia claims he was prejudiced because the delay in testing deprived him of a defense to premeditated murder. Voluntary intoxication, however, is not a valid defense to the crime. See § 775.051, Fla. Stat. (1999) (“Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense proscribed by law.”). Buzia also claims that timely testing would have provided some evidence to support a motion to suppress the confession. As discussed previously, none of the testimony at the postconviction evidentiary hearing supports a determination that Bu-zia’s confession was involuntary. One of the interrogating officers familiar with the signs of drug use testified that he saw no indication that Buzia was under the influence and that Buzia expressly denied using drugs. In addition, Dr. Morton, Buzia’s expert witness, testified that Buzia showed “mild symptoms” of withdrawal, but he did not testify that Buzia was under the influence and could not understand his rights.

2. Brain Damage and Premeditation

In this claim Buzia urges that trial counsel was ineffective for failing to discover and present evidence that an incident in which Buzia was struck with a pipe resulted in brain damage that negated the element of premeditation. We concluded previously that defense counsel was not ineffective in the penalty phase because he was entitled to rely on his mental health expert, who found no evidence of brain damage resulting from the 1994 incident. See Darling v. State, 966 So.2d at 377. For this same reason we conclude he was not ineffective for failing to present evidence of brain damage in the guilt phase. In addition, although Buzia’s expert testified at the postconviction hearing that Bu-zia’s brain damage along with his drug addiction made him more impulsive, no one testified that the brain damage alone negated premeditation. Moreover, we previously concluded competent, substantial evidence demonstrates not only that Buzia was capable of forming premeditation but that the evidence supported the trial court’s finding that the CCP aggravator applied to this murder. Buzia, 926 So.2d at 1214. Finally, to the extent Buzia may be claiming again that his drug use negated premeditation, we have previously stated that voluntary intoxication does not negate premeditation.

3. Closing Argument

Finally, Buzia contends that his counsel provided ineffective assistance by failing to present an effective closing argument. We affirm the postconviction court’s denial of this claim. The evidence shows that defense counsel planned to use the strategy of giving the more substantive closing argument in rebuttal so that the State would not have an opportunity to respond. Accordingly, counsel gave the initial closing in which he generally discussed burden of proof and reasonable doubt so that co-counsel could argue the rebuttal. However, the State unexpectedly waived closing argument, thus precluding any rebuttal argument by the defense. We have stated that “an attorney is not ineffective for decisions that are a part of a trial strategy that, in hindsight, did not work out to the defendant’s advantage.” Mansfield v. State, 911 So.2d 1160, 1174 (Fla.2005) (concluding counsel not ineffective where strategy to give substantive argument in rebuttal was thwarted when the State opted not to make a closing argument).

E. Summary Denial of Claims

Buzia argues that the postconviction court erred in summarily denying four of his claims. As explained below, we disagree and affirm their denial.

1. Drug and Alcohol Use

Buzia contends that counsel was ineffective for failing to investigate and present evidence of his addiction to drugs and alcohol in the guilt phase to demonstrate that the murder was spontaneous, not planned. This evidence was, however, presented during the penalty phase. As we stated previously, voluntary intoxication cannot provide a legal defense to a crime. See § 775.051, Fla. Stat. Moreover, on direct appeal, we not only found competent, substantial evidence supporting the conviction, but we also affirmed the finding of the CCP aggravator, which requires a finding of heightened premeditation. Buzia, 926 So.2d at 1214-15. Accordingly, the postconviction court did not err in summarily denying this claim.

2. Preservation of Error

Buzia alleged that counsel was deficient for failing to object when the prosecutor once referred to Buzia as an “axe murderer” in penalty phase closing argument. Because Buzia’s claim is conclusively refuted by the record, we affirm the trial court’s summary denial of this claim. See Kimbrough v. State, 886 So.2d 965, 981-82 (Fla.2004) (stating standard for reviewing summary denial of postconviction claim). The indictment charged Buzia with premeditated murder “by hitting and/or striking Charles Kersch with his hands and/or an axe,” and the evidence showed that the victim died after Buzia struck him with an axe. Thus, the prosecutor’s singular characterization of Buzia constituted fair comment on the evidence. See Spann v. State, 985 So.2d 1059, 1068 (Fla.2008) (“Because the prosecutor was making a fair comment based on the evidence presented at trial, counsel cannot be deemed ineffective for failing to object.”).

3. Special Verdict Form

We affirm the postconviction court’s summary denial of Buzia’s claim that counsel was ineffective for failing to request a special verdict form requiring the jurors to specify each aggravator found and the vote on each. We have held that it is error to use such forms. State v. Steele, 921 So.2d 538, 546 (Fla.2005) (“Our current system fosters independence because the trial court alone must make detailed findings about the existence and weight of aggravating circumstances; it has no jury findings on which to rely. Individual jury findings on aggravating factors would contradict this settled practice.”); see Lebron v. State, 982 So.2d 649, 664 (Fla.2008) (stating that use of such a verdict form may constitute harmless error).

4. Mental Health Exam

Buzia argued in his postconviction motion that he was deprived of his due process right to a competent mental health evaluation under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Buzia correctly acknowledges here that this claim is procedurally barred. Marshall v. State, 854 So.2d 1235, 1248 (Fla.2003) (holding claim of deprivation of right to competent mental health evaluation was “procedurally barred because it could have been raised on direct appeal”) (citing Cherry v. State, 781 So.2d 1040, 1047 (Fla.2000) (“Moreover, the claim of incompetent mental health evaluation is procedurally barred for failure to raise it on direct appeal.”)).

F. Testimony of the Fingerprint Examiner

At Buzia’s 2003 trial, Donna Birks, then a latent print examiner of the Seminole County Sheriffs Office, testified that a bloody palm print found on a cabinet in the Kersches’ garage near where the axes were kept matched Buzia’s. In 2007, as a result of an internal investigation into Birks’ work, Buzia’s counsel was sent notice of investigatory findings regarding the unreliability of her identifications that resulted in Birks’ dismissal. Accordingly, postconviction counsel hired a latent print expert, who reported that the print did not match Buzia’s. However, the print was insufficient to match it to anyone; thus, Buzia could not be excluded as the person who made it. Another expert confirmed this opinion. Accordingly, with regard to this evidentiary development, Buzia alleged claims of ineffective assistance of counsel, a Brady violation, and newly discovered evidence. The postconviction court denied the claims, and Buzia reasserts them here. As explained below, we affirm the denials of these claims.

1. Ineffective Assistance of Counsel Claim

Buzia urges that had trial counsel hired an independent expert to examine the bloody palm print, the expert would have testified the print did not match Bu-zia’s and such testimony would have negated premeditation. Buzia has failed to meet either prong of Strickland. Regardless of Birks’ stellar reputation as a fingerprint expert at the time of the trial, defense counsel had no basis for questioning whether the palm print was Buzia’s. Mrs. Kersch identified Buzia, whom she knew, and Buzia confessed to the crime, including admitting that he obtained two axes from the garage. There was no reasonable basis for questioning whose palm print it was. Moreover, Buzia’s expert testified at the postconviction hearing that Buzia could not be excluded as having left the print. Such testimony would have no effect on the ample evidence of premeditation presented at trial.

2. Brady Claim

To establish a Brady violation, a defendant must show: (1) that favorable exculpatory or impeaching evidence (2) was suppressed by the State, either willfully or inadvertently, and (3) that the evidence was material. See Guzman v. State, 868 So.2d 498, 508 (Fla.2003). Evidence is material or prejudicial if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. See Byrd v. State, 14 So.3d 921, 925 (Fla.2009). That is, the undisclosed favorable evidence, reasonably “considered in the context of the entire record,” must undermine confidence in the verdict. Carroll v. State, 815 So.2d 601, 619 (Fla.2002). Buzia has not met this test.

To the extent that favorable evidence that the print was not a match was suppressed, there is no prejudice. Buzia’s expert established only that Buzia could not be excluded. In light of Buzia’s confession and the other evidence presented at trial, the evidence regarding the print does not undermine our confidence in the verdict.

3. Newly Discovered Evidence

Finally, this Court established a two-part test for determining whether a defendant is entitled to relief for a newly discovered evidence claim. First, the evidence must have been unknown at the time of trial, and it must appear that the defendant and his counsel could not have known the facts by the use of due diligence. Jones v. State, 709 So.2d 512, 521 (Fla.1998). “Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Id. (citing Jones v. State, 591 So.2d 911 (Fla.1991)). Buzia has not met the second prong. As previously stated, evidence that the print is not an exact match but does not exclude Buzia would not negate the evidence of premeditation presented at trial. Thus, the evidence regarding the palm print would not probably result in acquittal on retrial. See Aguirre-Jarquin v. State, 9 So.3d 593, 603 (Fla.2009) (affirming denial of newly discovered evidence claim based on expert’s faulty palm print identification where “vast amount of evidence” linked defendant to murders).

G.Alleged Brady Violation

Previously, we concluded that defense counsel was not ineffective regarding the State’s failure timely to test Bu-zia’s blood sample for drugs. Here, Buzia contends that the State’s failure constituted a Brady violation. He claims in conelu-sory fashion that timely testing would have provided evidence that he was under the influence of cocaine at the time of the murders, supported a finding of the mental health mitigators, and bolstered a motion to suppress his confession. To establish his claim, Buzia must show that the State willfully or inadvertently suppressed favorable exculpatory or impeaching evidence that was material. Thus, he must demonstrate that had the evidence been disclosed, there is a reasonable probability that the result would have been different. See Carroll, 815 So.2d 601. “In other words, the favorable evidence must place ‘the whole case in such a different light as to undermine confidence in the verdict.’ ” Jones v. State, 998 So.2d 573, 581 (Fla.2008) (quoting Smith v. State, 931 So.2d 790, 796 (Fla.2006)).

Clearly, the evidence shows that the State did not timely test the sample of Buzia’s blood drawn at the time of his arrest. The evidence shows, however, that timely testing of the sample would not have shown that Buzia was under the influence of cocaine at the time of the crime. Thus, as to his first two claims, no favorable evidence was suppressed. Testimony at the evidentiary hearing, however, indicates that a timely test might have shown the presence of cocaine at the time of Buzia’s confession. As discussed previously, however, Buzia’s own expert did not testify that Buzia’s confession was involuntary, and the interrogating officer testified that Buzia was responsive to the questions asked. Moreover, Buzia’s detailed confession matched the established facts of the crime. Accordingly, evidence that Buzia may have had cocaine present in his system during his police interview would not have resulted in suppression of the confession, and there is no reasonable probability that such evidence would result in a different outcome. Thus, our confidence in the verdict is not undermined.

H.Cumulative Error

Buzia alleges that the cumulative effect of errors in this case warrants relief. However, because each of Buzia’s claims of error fails individually, he is entitled to no relief for cumulative error. Schoenwetter, 46 So.3d at 562.

I.Incompetence to Be Executed

Finally, Buzia alleges that he may be incompetent at the time of execution but concedes that this claim is not ripe for consideration. See Anderson v. State, 18 So.3d 501, 522 (Fla.2009). “This Court has repeatedly found that no relief is warranted on similar claims.” Id. Accordingly, we deny this claim.

III. HABEAS CLAIMS

In his petition for writ of habeas corpus, Buzia raises two claims of ineffective assistance of appellate counsel. To establish that appellate counsel provided constitutionally ineffective assistance, a petitioner must demonstrate that (1) counsel committed a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance; and (2) that this deficiency in performance so compromised the appellate process that confidence in the correctness of the result is undermined. Cox v. State, 966 So.2d 337, 365 (Fla.2007) (citing Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986)). We apply this standard to each of Buzia’s claims below.

A. Motion for Judgment of Acquittal

Buzia argues that in his direct appeal, counsel should have raised the trial court’s denial of his motion for judgment of acquittal on the charge of armed burglary of a dwelling with an assault or battery. He claims that if appellate counsel had raised these issues, this Court would have reversed his convictions for burglary and felony murder and granted him a new trial.

Under the pertinent statute, burglary is defined as “entering or remaining in a dwelling ... with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” § 810.02(1), Fla. Stat. (1999). In moving for judgment of acquittal in the trial court, Buzia argued that under Delgado v. State, 776 So.2d 233 (Fla.2000), the burglary conviction cannot stand because he was an invitee.

In Lynch v. State, 2 So.3d 47, 61 (Fla.2008), we summarized our holding in Delgado as follows:

In Delgado, we held that the rule of lenity (codified in section 775.021(1), Florida Statutes) required that the “remaining in” element of burglary be limited to situations where the defendant surreptitiously remains after having received consent to enter; otherwise, the State could charge that a burglary had occurred in any situation in which an individual entered a dwelling with consent and later committed an offense therein.

(Emphasis added.) “[T]he essence of Delgado is that evidence of a crime committed inside the dwelling, structure, or conveyance of another cannot, in and of itself, establish the crime of burglary. Stated differently, the State cannot use ‘the criminal act to prove both intent and revocation’ of the consent to enter.” State v. Ruiz, 863 So.2d 1205, 1211 (Fla.2003) (quoting Delgado, 776 So.2d at 238). As a result, consensual entry remained an affirmative defense to the charge of burglary, and the burden remained on the defendant “to establish that there was consent to enter.” Delgado, 776 So.2d at 240.

When Thea Kersch first encountered Buzia in her driveway, she instructed Bu-zia to wait for her husband in the screened patio and pool area behind the house. Bu-zia was never permitted inside the house unless Mr. Kersch was present. She then drove into the garage and entered her kitchen through a door leading directly from the garage. Meanwhile, Buzia walked around the outside of the house and entered the attached screened area. After sitting at the patio table a short while, Buzia approached the closed sliding glass door of the house, offering a tray that his lunch had been served on the day before. Mrs. Kersch opened the door and took the tray. She specifically testified that she was inside; he was outside; and she did not invite him in. After she took the tray, Buzia launched his attack on her.

Buzia contends that he was an invitee because Mrs. Kersch gave him consent to enter the “dwelling” by authorizing him to sit in the screened area attached to the house and that his “remaining in” was not done surreptitiously. We disagree. This is not a case like Delgado, in which the consent to enter was presumed withdrawn by the fact of the attack by the defendant. In this case, Mrs. Kersch gave Buzia limited consent to enter only the porch area and specifically told him to await her husband there. Accordingly, Buzia did not have consent to enter the house when he attacked Mrs. Kersch. Cf. Johnson v. State, 737 So.2d 555, 556-57 (Fla. 1st DCA 1999) (affirming conviction of causing bodily injury during the commission of a burglary where, although convenience store was open to the public, the owner clearly told defendant he was not allowed in the area behind the cash register before he entered the prohibited area), approved, 786 So.2d 1162, 1164 (Fla.2001) (“[T]he question of whether the area behind the counter was open to the public is a question of fact for the jury to decide”). The motion for judgment of acquittal was without merit, and appellate counsel was not deficient in failing to raise the issue on appeal.

Moreover, even if the burglary conviction and attendant sentence were reversed, the felony murder conviction would remain valid, and Buzia would not be entitled to a new trial. Buzia was convicted of premeditated and felony murder. The latter conviction would not be invalidated because it rests on the valid felony robbery conviction. In addition, no new penalty phase would be required. The trial court gave no weight to the aggravator that the capital felony was committed in the course of a robbery, burglary, or kidnapping. The court, however, found and gave great weight to four aggravating factors, including CCP, HAC, and prior violent felony conviction, which are among the most serious aggravators. See Jackson v. State, 18 So.3d 1016, 1035 (Fla.2009) (stating HAC and CCP are “two of the most serious aggravators”), cert. denied, — U.S. -, 130 S.Ct. 1144, 175 L.Ed.2d 979 (2010); Chamberlain v. State, 881 So.2d 1087, 1109 (Fla.2004) (“CCP and prior violent felony conviction are considered among the more serious aggravating circumstances.”).

B. Jury Instruction on Kidnapping

In his second claim, Buzia contends that appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred in giving an instruction on kidnapping — an uncharged crime— during the penalty phase. The court gave the instruction to support the aggravating circumstance of capital felony committed in the commission of or attempt to commit any robbery, kidnapping, or burglary. This was done to avoid an improper doubling problem with another aggravator.

In Turner v. State, 530 So.2d 45, 50-51 (Fla.1987), we addressed this same claim and held that the relevant statute “does not require that a defendant be charged or convicted of the enumerated felonies[;] it requires only that the aggravating circumstances be proven beyond a reasonable doubt.” Thus, giving the instruction was not error. Nor is there any prejudice. As stated previously, the trial court expressly gave the aggravator no weight but did find and give great weight to four aggravators in this case, three of which we have deemed to be among the more serious aggravating factors.

IV. CONCLUSION

In light of the foregoing analysis, we affirm the denial of Buzia’s motion for postconviction relief and deny his petition for a writ of habeas corpus.

It is so ordered.

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

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Buzia briefly argues that the State’s reference to this part of the tape during closing argument in the penalty phase was prejudicial. However, the record shows that defense counsel objected to the reference and pointed out that this part of the tape was not in evidence. The trial court sustained defense counsel’s objection and instructed the jury to disregard the prosecutor’s remark.

      . The burglary statute provides that a "dwelling” includes "a building or conveyance of any kind, including an attached porch ... [and] the curtilage thereof.” § 810.011(2), Fla. Stat. (1999).


source: Caselaw Access Project

author: CANADY, C.J.

license: Public Domain

text:
    Margaret P. DONOVAN, et al., Appellants, v. OKALOOSA COUNTY, Florida, etc., et al., Appellees.
    No. SC10-794.
    Supreme Court of Florida.
    Jan. 5, 2012.
    Rehearing Denied March 5, 2012.

      D. Kent Safriet, Joseph A. Brown, and Julie M. Murphy of Hopping Green and Sams, P.A., Tallahassee, FL, for Appellants.
    Gregory T. Stewart, Harry F. Chiles, and Carly J. Schrader of Nabors, Giblin and Nickerson, P.A., Tallahassee, FL, John R. Dowd, Shalimar, FL, and Steven K. Hall of Hall and Runnels, P.A., Destín, FL, for Appellees.
   CANADY, C.J.

In this case we consider an appeal from a final circuit court judgment validating revenue bonds proposed to be issued by Okaloosa County to finance a beach restoration project. We have jurisdiction. See art. Y, § 3(b)(2), Fla. Const. For the reasons discussed below, we affirm.

I. BACKGROUND

Okaloosa County (County) developed a plan for beach restoration and renourishment in part of the County. Accordingly, the County commenced the process for obtaining both the permitting and the funding for the project. The County applied separately for the necessary joint coastal permits for the project from the Florida Department of Environmental Protection (DEP). See § 161.041, .055, Fla. Stat. (2007); see generally, ch. 161, Fla. Stat. (2007) (containing Beach and Shore Preservation Act, Coastal Zone Protection Act of 1985, and Oceans and Coastal Resources Act). As to funding, the County determined to use two sources to fund the project: state government grant money where available and revenue bonds. The bonds would in turn be funded with revenue from the first cent of a tourist development tax and from special assessments on properties within a designated Municipal Service Benefit Unit (MSBU), created pursuant to the County’s authority under section 125.01, Florida Statutes (2007).

The County created the MSBU by ordinance in December 2007 (MSBU Ordinance). The MSBU consisted of two specifically designated subassessment areas— one in Okaloosa Island and one in the western portion of the City of Destín. After notice and hearing, the County adopted Resolution 08-125, the “Initial and Final Assessment Resolution” (Assessment Resolution) in August 2008. This resolution adopted and incorporated by reference the October 1, 2007, “Okaloosa County Feasibility Study for Beach Restoration on Oka-loosa Island and the City of Destín Final Report” (Feasibility Study), which contained the apportionment methodology for the special assessments. In the Assessment Resolution, the County imposed special assessments on the properties on the assessment rolls based on its finding that the properties received a special benefit from the restoration project. The County also found the methodology for computing the annual assessments to be fair and reasonable. Subsequently, the County has modified or amended both the MSBU Ordinance and the Assessment Resolution. For example, the boundaries of the MSBU were modified by Ordinance 08-36, pursuant to our decision in Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1121 (Fla.2008), aff'd sub nom. Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envtl. Prot., — U.S. -, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010), which distinguished between critically eroded and noncritically eroded areas for purposes of beach restoration projects. See § 161.101(1), Fla. Stat. (“Accordingly, the Legislature declares that the state, through the department, shall determine those beaches which are critically eroded and in need of restoration and nourishment .... ”). In turn, the Assessment Resolution was amended to recalculate the assessments on the remaining properties.

In October 2008, the County adopted Resolution 08-201 (Bond Resolution) that authorized the issuance of revenue bonds to fund the beach restoration and renour-ishment project: the Florida Beach Restoration Revenue Bonds, Series 2008, not exceeding $20,000,000. For bond repayment, the County pledged monies from two sources: the first cent of the County’s tourist development tax and the special assessments levied within the MSBU.

The County, on November 18, 2008, filed a bond validation complaint in the circuit court pursuant to chapter 75, Florida Statutes (2008). Appellants — property owners within the MSBU subject to the assessments — intervened, filing an answer and a number of counterclaims to the County’s complaint. The bond validation hearing was held in April and August 2009, and on March 26, 2010, the trial court issued an order validating the bonds. The circuit court determined that the County was authorized to issue the bonds and use the proceeds for the beach renourishment project. Moreover, the court determined that the MSBU was lawfully created, the assessments were lawfully imposed, and the assessment methodology was fair and reasonable. The court further determined that the property owners subject to the assessment receive a special benefit from the project in enhanced storm protection and for some properties protection from destruction, enhanced property values and marketability, and increased use and enjoyment of recreational amenities. Finally, the court ruled that many of the issues raised by appellants, such as the quality of the sand to be used in the restoration and where the erosion control line for the project would be located, were collateral to the bond validation proceedings and thus not appropriate for determination in such proceedings. See § 161.151(3), Fla. Stat. (defining “erosion control line”). Appellants timely filed an appeal in this Court. See § 75.08, Fla. Stat.

II. STANDARD OF REVIEW

Our review of a bond validation proceeding is limited to three issues: (1) whether the public body has authority to issue bonds; (2) whether the purpose of the obligation is legal; and (3) whether the bond issuance complies with the requirements of law. Strand v. Escambia Cnty., 992 So.2d 150, 154 (Fla.2008) (citing City of Gainesville v. State, 863 So.2d 138, 143 (Fla.2003)). The trial court’s order comes to this Court with a presumption of correctness. Thus, “[t]he appellant has the burden of demonstrating that the record and evidence fails to support the County and the trial court’s conclusions.” State v. Osceola Cnty., 752 So.2d 530, 533 (Fla.1999). This Court applies the competent, substantial evidence standard of review to the trial court’s findings of fact and de novo review to the conclusions of law. Strand, 992 So.2d at 153.

III. ANALYSIS

Appellants argue several claims in this appeal: (A) the County failed to comply with the procedural requirements for adopting the Assessment Resolution; (B) the bond validation was premature because the DEP permits for the project had not been issued; (C) the bonds do not serve a paramount public purpose; (D) the special assessment is invalid; and (E) the special assessments fund improvements outside the MSBU. We address each of these in turn.

A. Adoption of the Final Assessment Resolution

Appellants erroneously contend that in adopting the Assessment Resolution (08-125), the County failed to comply with the requirements of its MSBU Ordinance (07-71), and as a result, the circuit court lacked jurisdiction to validate the bonds.

Chapter 75, Florida Statutes, governs bond validation proceedings, and section 75.03 provides the condition precedent for a taxing authority to seek bond validation in the circuit court as follows:

As a condition precedent to filing of a complaint for the validation of bonds or certificates of debt, the county, municipality, state agency, commission or department, or district desiring to issue them shall ... when permitted by law, adopt an ordinance, resolution or other proceeding providing for the issuance of such bonds or certificates in accordance with law.

The County fulfilled this condition when it adopted the Bond Resolution (08-201), authorizing issuance of revenue bonds to finance the beach restoration project. With this condition satisfied, the County was authorized to file a complaint in circuit court for a determination of its “authority to incur bonded debt ... and the legality of all proceedings in connection therewith.” § 75.02, Fla. Stat. Accordingly, the circuit court had jurisdiction to hear the bond validation proceeding.

Appellants’ claim of error, however, concerns the Assessment Resolution, not the Bond Resolution. Appellants’ contention that a procedural irregularity in the County’s adoption of the Assessment Resolution effectively invalidated the special assessments goes to the question of whether the assessments were lawfully imposed. Because the MSBU assessments would in part fund the revenue bonds, the issue was properly before the circuit court. See § 75.01 (“Circuit courts have jurisdiction to determine the validation of bonds and certificates of indebtedness and all matters connected therewith.”). Thus, regardless of how the circuit court ruled on the issue, the court would not be deprived of jurisdiction in the bond validation case.

As to the claim of invalidity, appellants specifically argue that under the provisions of the MSBU Ordinance, the County was not authorized to adopt the Assessment Resolution, which constituted both the initial and the final assessment resolution. The circuit court rejected this contention, determining that “[a]s all the requirements of the initial assessment resolution had been complied with prior to the public hearing held on August 7, 2008, a separate hearing was not necessary for consideration of the initial resolution and both the initial and final resolutions could be adopted jointly.” Okaloosa Cnty. v. State, No.2008 CA 006280 S (Fla. 1st Cir. Ct. Final Judgment filed Mar. 31, 2010). We agree. There is no dispute that notice was provided, that the proposed assessment roll and the feasibility study were made available to the public, and that a hearing was subsequently held. These were the requirements of the MSBU Ordinance for adopting the Assessment Resolution. The MSBU Ordinance did not require a separate hearing or other proceeding to adopt first an initial and then a final assessment resolution. Thus, after the noticed hearing, the County was authorized to adopt the final assessment resolution. The County’s interpretation of its own ordinance is entitled to deference. See Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002) (stating that courts ordinarily defer to a governmental body’s interpretation of a statute or rule unless the agency’s expertise is not required or its interpretation conflicts with the plain and ordinary meaning of the provision). Here, the language of the ordinance supports the County’s interpretation. Accordingly, appellants failed to demonstrate that they were deprived of any due process right or that the circuit court lacked jurisdiction of the bond validation action.

B. Bond Validation and Permit Issuance

Appellants next argue that the County failed to demonstrate that DEP will issue the permits for the beach ren-ourishment project and thus the circuit court erred in validating the bonds. There is no statutory requirement that a bond-issuing authority make such a showing in a bond validation proceeding. Appellants instead rely on our decision in Hillsboro Island House Condominium Apartments, Inc. v. Town of Hillsboro Beach, 263 So.2d 209 (Fla.1972), for this contention.

In Hillsboro Island, a group of citizens challenged the circuit court’s validation of bonds to fund a beach erosion project, arguing in part that “the bond issue is premature because the project cannot be undertaken without approval of outside authorities having jurisdiction over the Atlantic shore, including Broward County, the State of Florida, and agencies of the United States government.” 263 So.2d at 211. Borrowing from our decision in Seadade Industries, Inc. v. Florida Power & Light Co., 245 So.2d 209 (Fla.1971), a case in which a utility company sought to condemn land adjacent to its facilities to construct a discharge canal, we established the following test:

We held in Seadade that a reasonable demonstration that regulations would be met, and a similar demonstration that work in advance of approval would not lead to irreparable harm to the environment should approval be denied, would be sufficient, if deemed so by the courts, unless an adverse party presented strong and convincing proof to the contrary. The Seadade rationale would seem appropriate here. We hold that the bond issue could be validated where the requisite reasonable showings have been made, where these showings have been judged sufficient by the court involved, and where the adverse party has not presented strong and convincing proof to the contrary.

Hillsboro Island, 263 So.2d at 211.

The County readily met the requirements to demonstrate that regulations would be met. The County’s coastal engineer testified regarding the design of the project and progress of the County through DEP’s coastal permitting process, noting that the agency review process was nearly completed and permit issuance was anticipated. As for the second prong — the risk of irreparable harm from work in advance of permitting — no demonstration was necessary because no work could commence in advance of permit issuance. See § 161.041, Fla. Stat. (“[A] coastal construction permit must be obtained from the department prior to the commencement of any such work.”). Moreover, appellants did not present strong and convincing proof that the County would not meet the requirements for a permit. Like the litigants in Hillsboro Island, “[ajppellants have presented little adverse evidence; their main thrust is simply that the permissions have not yet been secured.” 263 So.2d at 212.

At the bond validation hearing, appellants contested issues related to the actual terms of the permits. For example, appellants challenged the source and quality of the sand the County had proposed to be used in the project and argued over where the erosion control line would ultimately be located. The circuit court correctly determined that these issues were collateral to the proceeding before it.

As we have stated, “[tjhe function of a validation proceeding is merely to settle the basic validity of the securities and the power of the issuing agency to act in the premises. Its objective is to put in repose any question of law or fact affecting the validity of the bonds.” State v. Manatee Cnty. Port Auth., 171 So.2d 169, 171 (Fla.1965). “It was never intended that proceedings instituted under [chapter 75] to validate governmental securities would be used for the purpose of deciding collateral issues or other issues not going directly to the power to issue the securities and the validity of the proceedings with relation thereto.” State v. City of Miami, 103 So.2d 185, 188 (Fla.1988). These permitting issues raised by appellants exceed the court’s scope of review in a bond validation proceeding. Our decision in Hillsboro Island was never intended to require adjudication in the bond validation proceedings of the details of the construction of the project itself and the terms of the permitting process. With regard to beach ren-ourishment projects, the DEP is responsible for reviewing permit applications and issuing permits that ensure compliance with the requirements of the law. See §§ 161.041, .055. The proper forum for such issues is available through administrative proceedings regarding the permits. See §§ 120.569-.57. Fla. Stat. (2009).

Finally, we have said that “special assessments are ‘charge[sj assessed against [the] property of some particular locality because that property derives some special benefit [from] the expenditure of [the] money.’ ” City of Gainesville v. State, 863 So.2d 138, 144 (Fla.2003) (quoting Workman Enters., Inc. v. Hernando Cnty., 790 So.2d 598, 599 (Fla. 5th DCA 2001)). In the event that the County does not obtain the necessary environmental permits for the project, the bonds will not issue, the beach will not be restored and renour-ished, and no special benefits will accrue to the MSBU property owners. As a result, the County would refund the special assessments previously paid by the MSBU property owners with interest. This is exactly what the County has done when properties were previously removed from the MSBU.

C. Public Purpose

The County is authorized by law to issue bonds to fund a project to restore and renourish the state’s beaches. See art. VII, § 12, Fla. Const.; § 125.01, Fla. Stat. (2007). As stated previously, the bonds in this case are funded by revenue from the tourist development tax and special assessments on the properties within the MSBU. See §§ 125.01, .0104, Fla. Stat. In turn, the imposition of a special assessment to fund a bond issuance requires (1) that the property subject to the assessment derive a “special benefit” and (2) that the assessment be properly apportioned among the specially benefitting properties. City of Winter Springs v. State, 776 So.2d 255, 258 (Fla.2001). Appellants’ argument in this issue rests on the County’s imposition of a special assessment on the property within the MSBU. Relying on our decision in Orange County Industrial Development Authority v. State, 427 So.2d 174 (Fla.1983), appellants claim that the finding that their properties would receive a “special benefit” from the beach renourishment project undermines the public purpose of the project itself and thus the bonds cannot be validated.

In Orange County, we reviewed the county’s appeal from a circuit court judgment determining that the bonds violated article VII, section 10 of our state constitution and thus denied validation. 427 So.2d at 176. This provision of our constitution states in part that “[n]either the state nor any county, school district, municipality, special district, or agency of any of them, shall ... give, lend or use its taxing power or credit to aid any corporation, association, partnership or person.” Art. VII, § 10, Fla. Const. We have stated that the “purpose of [this provision] is ‘to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would be at most only incidentally benefited.’ ” State v. Miami Beach Redevelopment Agency, 392 So.2d 875, 885 (Fla.1990) (emphasis added) (quoting Bannon v. Port of Palm Beach Dist., 246 So.2d 737, 741 (Fla.1971)).

In addressing a claim of bond invalidity under article VII, section 10, we first determine whether the project proposed to be funded by the bonds is expressly authorized under that provision. See art. VII, § 10(a)-(d), Fla. Const. If the project does not expressly qualify, we apply a two-step test to ascertain whether the bonds are nevertheless authorized by the constitutional provision: (1) whether the taxing authority has pledged its credit or used it taxing power; and (2) whether the project to be funded serves a paramount public purpose. See Orange Cnty., 427 So.2d at 178. Under this test,

[i]f the County has not exercised its taxing power or pledged its credit, the obligation must merely serve a public purpose.... [I]f the County has used either its taxing power or pledge of credit to support the issuance of the bonds, the purpose of the obligation must serve a paramount public purpose and any benefits to a private party must be incidental.

State v. Osceola Cnty., 752 So.2d 530, 536 (Fla.1999) (emphasis added); see Miccosulcee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 48 So.3d 811, 822 (Fla.2010) (“If the District has not exercised its taxing power or pledged its credit to support the bond obligation, the obligation is valid if it serves a public purpose.”); Linscott v. Orange Cnty. Indus. Dev. Auth., 443 So.2d 97, 101 (Fla.1983).

Thus, under the paramount public purpose requirement, the benefit to a private party must be incidental; that is, “the bonds will be validated [when] the private benefits ‘are not so substantial as to tarnish the public character’ of the project.” Orange Cnty., 427 So.2d at 179 (quoting State v. City of Miami, 379 So.2d 651, 653 (1980)); see State v. Housing Fin. Auth. of Polk Cnty., 376 So.2d 1158, 1160 (Fla.1979). Where only a public purpose is required, however, “it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and sufficiently strong.” Housing Finance Auth., 376 So.2d at 1160. But, if the private benefits are the paramount purpose for a project, the bonds cannot be validated under the constitution even if there is some public benefit. Orange Cnty., 427 So.2d at 179.

We applied the two-pronged test in Orange County and concluded that there was minimal public benefit from the county’s proposed revenue bond financing of the purchase of land and construction of a commercial television station for an existing business. Accordingly, we found that a “paramount private purpose” would be served by the project and held that the bonds could not be validated, explaining that “[a] broad, general public purpose ... will not constitutionally sustain a project that in terms of direct, actual use, is purely a private enterprise.” 427 So.2d at 179 (emphasis added).

In this case, appellants do not cite article VII, section 10, or argue that the County has failed to meet the first prong of the test. That is, they do not specifically argue that the County’s pledge of revenues from the tourist development tax constitutes a pledge of credit or taxing power under article VII, section 10. Their claim that bonds must serve a “paramount public purpose” rather than a public purpose thus is conclusory. However, even if the paramount public purpose test applies, the project in this case readily meets that standard.

We have previously stated that “[w]hat constitutes a public purpose is, in the first instance, a question for the legislature to determine, and its opinion should be given great weight.” Housing Fin. Auth., 376 So.2d at 1160. The Florida Legislature has expressed the state’s policy on beach restoration and renourishment in the Beach and Shore Preservation Act, §§ 161.011-161.45, Fla. Stat. (2007), as follows:

Because beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions, it is hereby declared to be a necessary governmental responsibility to properly manage and protect Florida beaches fronting on the Atlantic Ocean, Gulf of Mexico, and Straits of Florida from erosion and that the Legislature make provision for beach restoration and nourishment projects, including inlet management projects that cost-effectively provide beach-quality material for adjacent critically eroded beaches. The Legislature declares that such beach restoration and nourishment projects, as approved pursuant to s. 161.161, are in the public interest....

§ 161.088, Fla. Stat. (emphasis added); see art. II, § 7(a), Fla. Const. (“It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution ... and for the conservation and protection of natural resources.”); see also art. X, § 11 (“The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people.”). Thus, the proposed beach renourishment project in this case serves the “necessary governmental responsibility” of addressing a “serious menace to the economy and general welfare of the people of this state.” § 161.088, Fla. Stat. Moreover, in Walton County, we acknowledged that the Beach and Shore Preservation Act effectuates the State’s constitutional duty “to protect Florida’s beaches, part of which it holds in trust for public use.” 998 So.2d at 1114— 15.

Unlike the situation in Orange County, the special benefits received by those in the MSBU do not “tarnish” the public nature of the project. In Orange County, we found that the benefits to the private television company would overwhelm the minimal benefit to the public such that the proposed project would serve a “paramount private purpose.” 427 So.2d at 179. In this case, the properties subject to the special assessment will receive special benefits as a result of the project. The provision of those special benefits to private parties is not the purpose of the beach restoration project. See id. (“If, however, the benefits to a private party are themselves the paramount purpose of a project, then the bonds will not be validated even if the public gains something therefrom.”). That is, the special benefits — for which the property owners must pay — do not convert beach restoration into “a project that in terms of direct, actual use, is purely a private enterprise.” Id. Beach and shore preservation projects confront a critical threat to the welfare of the people of this state. Those special benefits that flow incidentally to certain properties because of the nature of the project do not diminish its predominantly public character. Nor does the predominantly public purpose of the project negate the special benefits received by the properties subject to special assessments.

D. Validity of the Special Assessment

In determining whether a bond issue meets the requirements of law, we have said that

a special assessment funding a bond issuance must satisfy the following two-prong test: (1) the property burdened by the assessment must derive a special benefit from the service provided by the assessment; and (2) the assessment for the services must be properly apportioned among the properties receiving the benefit.

City of Winter Springs v. State, 776 So.2d 255, 257 (Fla.2001). Appellants claim in this issue that the special assessment in this case does not meet either prong of this test.

We have held that the findings of special benefit and proper apportionment of costs among the properties assessed are legislative in nature and presumed correct. City of Boca Raton v. State, 595 So.2d 25, 30 (Fla.1992) (“The apportionment of benefits is a legislative function, and if reasonable persons may differ as to whether the land assessed was benefitted by the local improvement, the findings of the city officials must be sustained.”). “[T]he standard [for determining whether to sustain the findings] is the same for both prongs; that is, the legislative determination as to the existence of special benefits and as to the apportionment of the costs of those benefits should be upheld unless the determination is arbitrary.” Sarasota Cnty. v. Sarasota Church of Christ, 667 So.2d 180, 184 (Fla.1995). Accordingly, the findings will be sustained if they are supported by competent, substantial evidence. See State v. Sarasota Cnty., 693 So.2d 546, 548 (Fla.1997) (holding findings of special benefit were not arbitrary where supported by competent, substantial evidence). The presumption of correctness “can be overcome only by strong, direct, clear and positive proof.” Meyer v. City of Oakland Park, 219 So.2d 417, 420 (Fla.1969). The property owner has the burden to rebut this presumption. Workman Enters., Inc., 790 So.2d at 600 (citing City of Gainesville v. Seaboard Coastline R.R. Co., 411 So.2d 1339, 1340 (Fla. 1st DCA 1982)). Evidence of the “mere disagreement of experts” is insufficient basis for disturbing the County’s findings. City of Winter Springs, 776 So.2d at 261 (“[A] mere disagreement of experts as to the choice of methodology is legally inconsequential.”). Thus, the property owner must demonstrate that the findings are clearly erroneous. Strand v. Escambia Cnty., 992 So.2d at 154.

1. Special Benefits

As stated above, the first prong of the test is whether the improvement or service, in this case beach restoration, provides a special benefit to the assessed property.

In evaluating whether a special benefit is conferred to property by the services for which the assessment is imposed, the test is not whether the services confer a “unique” benefit or are different in type or degree from the benefit provided to the community as a whole; rather, the test is whether there is a “logical relationship” between the services provided and the benefit to real property.

Lake County v. Water Oak Mgmt. Corp., 695 So.2d 667, 669 (Fla.1997) (footnote omitted). In this case, the County made the following legislative findings of special benefits from the beach restoration and renourishment project conferred on the properties subject to the assessment:

(D) The Project provides a special benefit to all property located within the MSBU including improving and securing road access, protecting the natural environment associated with the beach, providing enhanced storm protection, protecting and enhancing the market value and marketability of properties within the MSBU, and enhancing the use and enjoyment of such property through the provision of the aesthetic and recreational beach amenities. The Project will provide property owners within the MSBU with a greatly expanded beach area for their use and enjoyment. The presence of the beach also serves as a primary motivator for people to live in the MSBU or to visit properties in the MSBU.

Okaloosa Cnty., Fla., Amended Beach Restoration Mun. Serv. Benefit Unit Final Assessment Resolution (Oct. 7, 2008) (Amended Beach Restoration Resolution) at 8-9. We presume these legislative findings to be correct, and as we explain below, we find that they are supported by competent, substantial evidence.

The County presented evidence that the project would provide storm damage protection for up to a fifty-year storm event throughout the project area. Without the renourishment project, such a storm event would eradicate the existing dune and undermine some structures, while destroying others. The addition of the sand will create wider dry beaches that provide this necessary protection to property owners. Moreover, as a result of the project, both the market value of the properties and their marketability would increase. Finally, the larger beaches will provide increased recreational opportunities that enhance use and enjoyment. We have previously upheld similar findings as establishing special benefits. See, e.g., City of Winter Springs, 776 So.2d at 259 (affirming special benefit finding that project within subdivision boundaries “would improve exterior subdivision boundaries, interior subdivision areas, subdivision identity and subdivision aesthetics, and would enhance the safety, value, and the use and enjoyment of all properties within the District”); Meyer, 219 So.2d at 420 (affirming findings of “increase in market value” and “actual increase in money value and also potential or actual or added use and enjoyment of the property” as special benefits); City of Treasure Island v. Strong, 215 So.2d 473, 478 (Fla.1968) (determining that state legislature’s language in city’s charter constituted finding that construction of erosion control groin system “presumably would result in benefits inuring specially to the properties protected thereby”). Appellants’ contentions that some of the properties do not receive any additional storm damage protection are contradicted by evidence in the record, and they have not demonstrated that the County’s findings are clearly erroneous.

Finally, appellants argue that their expert’s cost-benefit analysis demonstrates that the restoration project is a detriment and does not provide a special benefit. The County’s expert testified that a conservative cost-benefit analysis — based only on added storm damage protection — demonstrated that the benefits of the project significantly outweighed the costs. He estimated the costs would range from $11 million to $14 million, while the benefits would range from $21 million to $44 million. In contrast, appellants’ expert economist testified that because no permit had issued, the project did not exist and thus there were no special benefits to consider. Moreover, using the County’s figures, he opined that the costs of the project outweighed the benefits. In this instance of dueling experts, we hold that competent, substantial evidence supports the trial court’s determination that the project provides a special benefit. See City of Winter Springs, 776 So.2d at 261 (stating that such disagreement between experts is “legally inconsequential”).

2. Assessment Apportionment

The second question we must consider is whether the special assessment is fairly apportioned among the specially benefitting properties. City of Boca Raton, 595 So.2d at 29 (“Second, the assessment must be fairly and reasonably apportioned among the properties that receive the special benefit.”). As stated above, the findings regarding apportionment are legislative in nature. Accordingly, even if other methods of apportionment also appear to be valid, the method used must be upheld unless it is determined to be arbitrary. City of Winter Springs, 776 So.2d at 259 (“And though a court may recognize valid alternative methods of apportionment, so long as the legislative determination by the City is not arbitrary, a court should not substitute its judgment for that of the local legislative body.”).

By ordinance, the County adopted a methodology for computing the assessments based on two of the special benefit categories: storm damage reduction and recreation. Each subassessment area was treated separately so that only the assessments from the properties within an area were used to pay for the improvements that benefited that area. Based on the availability of state funding and the tourist development tax, the assessment for the Okaloosa Island area would constitute 24 percent of the project costs, and for the Destín project 36 percent. The methodology allocates 60 percent of the unfunded local cost to storm damage reduction, and 40 percent to recreation. Moreover, the storm damage reduction benefit was assessed only against beachfront properties and was based on factors such as lot size, units per lot, and linear beach frontage, with an additional classification factor applied to nonhabitable properties, such as restaurants. The recreation benefit was allocated to all properties on a pro-rata basis. With regard to the assessment apportionment methodology, the County in this case made the following findings:

(E) Since the benefits received by properties from the Project vary depending on the type of benefit and proximity to the Project, with all properties receiving a recreational benefit and with beachfront properties receiving a storm protection benefit, it is fair and reasonable for the County to establish separate Areas and apportion a share of the Capital Cost among the Areas.
(F) The Board finds that the treatment of hotel and commercial facilities within the boundaries of the MSBU is fair and reasonable based upon the respective benefits derived from the Project. Any differences between the treatment of Property types is based upon reasonable and appropriate differences existing between these properties.
(G) The Board hereby finds and determines that the Assessments to be imposed in accordance with this Resolution provide an equitable method of funding the construction of the Project by fairly and reasonably allocating the cost to specially benefitted property based upon the relative degree of benefit attributable to each parcel.

Amended Beach Restoration Resolution at 9.

Appellants take issue with the formula and the factors on which the methodology is based, but they have not established that the County’s findings are arbitrary. Their claims are premised on contentions that a host of other factors specific to each property should have been considered in this analysis. The methodology for apportioning the costs of the project within each subassessment area with regard to the benefits afforded by the project, however, are based on reasonable, objective factors. Accordingly, we conclude that competent, substantial evidence supports the trial court’s determination that the County’s methodology is fair and reasonable.

E. Improvements in the MSBU

Finally, appellants allege that the ren-ourishment project will add sand seaward of the mean high water line, creating new beach to which the State will hold title. As a result, they argue that this new area of land will not actually be “within” the MSBU and the properties within the MSBU will not receive any benefit from the beach restoration project. We find no merit to this contention.

Section 125.01(l)(q), Florida Statutes, does not require that the erosion control project actually be located “within” the MSBU. The statute in pertinent part provides the county with the power to

[ejstablish ... municipal service taxing or benefit units for any part or all of the unincorporated area of the county, within which may be provided fire protection; law enforcement; beach erosion control; ... and other essential facilities and municipal services from funds derived from service charges, special assessments, or taxes within such unit only.

(Emphasis added.) Here, competent, substantial evidence established that the beach renourishment project will provide a special benefit of storm damage reduction and enhanced recreation within the MSBU, and the specially benefitting properties have been assessed. As we noted in Hillsboro Island, requiring that sand only be placed within the boundary of the political subdivision “would be to ignore the mechanics of erosion.” 26B So.2d at 212. Although that case involved a general obligation bond — not a special assessment — in a town threatened with complete destruction, the fact remains that regardless of how much sand is added outside the boundaries of the MSBU, the special benefits are nevertheless provided -within it.

IV. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s final judgment of validation of the bonds in this case.

It is so ordered.

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

LEWIS, J., concurs in result.

      . Resolution 08-192 amended the Assessment Resolution, deleting the assessment for properties excluded from the MSBU and recalculating the assessments. Resolution 09-104 later corrected other erroneous assessments, and Resolution 09-105, the Amended and Restated Initial Assessment Resolution, provided for further adjustments to the assessment rolls.

      . We decline to address appellants' hypothetical question: whether MSBU funds can constitutionally be used to compensate an owner if the restoration project results in a taking. See Santa Rosa Cnty. v. Admin. Comm'n, 661 So.2d 1190, 1193 (Fla.1995) (“Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical state of facts which have not arisen and are only contingent, uncertain, [and] rest in the future.” (quoting LaBella v. Food Fair, Inc., 406 So.2d 1216, 1217 (Fla. 3d DCA 1981) (internal quotation marks omitted))); Interlachen Latees Estates, Inc. v. Brooks, 341 So.2d 993, 995 (Fla.1976).

      . That the County in 2009 used a different procedure in adopting an amended and restated assessment resolution is of no moment here.

      . In fact, appellants admit in their brief that they have challenged DEP's notices of intent to issue both the Destín and Okaloosa Island permits in administrative proceedings pursuant to chapter 120, Florida Statutes. DEP filed the notices after the final hearing in this case.

      . See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1097 (Fla.2008) ("As we have defined credit and the lending of credit, the constitutional prohibition contemplates not just the use of public funds but the imposition of a new financial liability and a direct or indirect obligation to pay a debt of a third party.”); Nohrr v. Brevard Cnty. Educ. Facilities Auth., 247 So.2d 304, 309 (Fla.1971) ("'[C]redit’ as used in Fla. Const., art. VII, § 10 (1968), implies the imposition of some new financial liability upon the State or a political subdivision which in effect results in the creation of a State or political subdivision debt for the benefit of private enterprises.”).


author: PER CURIAM.

text:
    Amie PERDUE, as Personal Representative of the Estate of Lorna Gayle Perdue (Deceased), Appellant, v. SEBRING MARINE IND. INC. and Sentry Claims Center, Appellees.
    No. 1D11-0131.
    District Court of Appeal of Florida, First District.
    Date of Accident Nov. 5, 2007.
    Aug. 4, 2011.
    Rehearing Denied Sept. 13, 2011.
    Bill McCabe, Longwood, and Bryce A. Schmidt, Ocala, for Appellant.
    Shawna G. Andres, Palm Beach Gardens, and Anna M. Jemjemian, Port Orange, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Amie Perdue, as personal representative of the estate of Lorna Gayle Perdue (deceased), claimant below, argues that the Judge of Compensation Claims (JCC) erred in denying Lorna Gayle Perdue’s claim for temporary partial disability (TPD) benefits and correspondingly erred in denying her claim for penalties, interest, costs, and attorney’s fees. We agree and reverse for further proceedings consistent with this opinion.

The JCC found that the claimant met her burden “to demonstrate that the particular physical restrictions [were] responsible for the lost wages or lack of employment” suffered by the claimant; thus, the claimant established a prima facie entitlement to TPD benefits. The JCC denied the TPD benefits, however, on the basis that appellant did not submit a DWC-19 Employee Earnings Report with respect to the claim. The JCC’s ruling is based on his reading of Jack Feagin Electric v. Hallmark, 894 So.2d 1083 (Fla. 1st DCA 2005). In Hallmark, this court reversed the JCC’s award of TPD benefits because the claimant failed to submit the DWC-19 form. Hallmark made no mention, however, of whether the employer/carrier had provided to the claimant the forms referenced in the Florida Administrative Code, but reversed the JCC’s award of the claimed benefits because the claimant had not returned the forms. It is apparent that here the JCC concluded the employer/ear-rier was not required to prove that the forms were provided to the claimant. The JCC erred in that conclusion.

The Hallmark panel relied on the plain language of Rule 38F-3.0191(9), Florida Administrative Code (2001) , to conclude that “a carrier may suspend TPD benefits until it receives an employee’s completed form DWC-19.” Id. at 1083. The court explained that “because the JCC expressly found Claimant had not submitted the forms at the time of the hearing, TPD benefits were not due and owing” and “unless the forms are completed and returned, benefits may never be due and owing.” Id. The administrative code provision relied upon by Hallmark provides that the carrier may suspend benefits “[i]f the employee does not mail the completed form to the carrier within 21 days after the employee’s receipt of Form DWC-19.... ” Id. Clearly, the carrier’s provision of the forms is a condition precedent to the claimant’s duty to return the DWC-19 forms within twenty-one days of their receipt. Thus, Hallmark must be read to require the forms be returned in order to establish entitlement to payment of TPD benefits only in those instances where the forms are provided to the claimant.

Here, Appellant argues convincingly there was no evidence that the DWC-19 forms for the relevant time period were sent to the claimant. In fact, the adjuster for the employer/carrier unequivocally testified that the forms were not sent. Because the employer/carrier sought to avoid payment of the requested TPD benefits on grounds the forms had not been completed, the employer/carrier had the burden to prove it sent the forms to the claimant. This it failed to do. Because the lack of the forms was the sole basis for the JCC’s denial of the TPD benefits, as well as the claimed penalties, interest, costs, and attorney’s fees, we REVERSE the order with instructions that an order be entered awarding the claimed benefits.

VAN NORTWICK, WETHERELL, and ROWE, JJ., Concur.

       This provision can now be found in Florida Administrative Code Rule 69L-3.01915.


text:
    Aaron BETHEL, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D10-1585.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2010.

      Aaron Bethel, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, for respondent.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

This matter comes back before us on a motion to compel the trial court to rule on his 3.850 motion for post conviction relief after we granted a writ of mandamus. We grant the motion.

When Aaron Bethel first filed his Petition for Writ of Mandamus, we ordered the State to respond. On July 13, 2010, the State responded that it contacted the office of Judge Beatrice Butchko and Assistant State Attorney Ray Araujo regarding this matter. The matter was on calendar for July 9, 2010 but was thereafter continued to August 13, 2010. The State further responded that as soon as Mr. Araujo received a copy of Judge Butchko’s ruling, he would forward it to the Office of the Attorney General, and the State would provide a supplemental response to this Court.

Our opinion granting the petitioner’s writ of mandamus was issued on August 18, 2010, wherein we ordered Judge Butch-ko to rule on the petitioner’s 3.850 motion, which had been continued at least six times since petitioner filed the motion on August 3, 2009.

Our mandate issued on September 3, 2010. Since then nothing has been filed by the State and the petitioner’s motion still has not been ruled on. We find it disconcerting that our writ has been disregarded. A writ of mandamus is not aspirational. If there is a reason why our writ cannot be obeyed, it is incumbent on the State or the judge to notify this court of the impediment. Judge Butchko is ordered to rule on the motion forthwith. The State is ordered to report to this court by noon on Tuesday, October 26, 2010, as to the status of this matter.

Motion granted.


text:
    Wesley A. HOSTZCLAW, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-2662.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.

      Wesley A. Hostzclaw, Raiford, pro se.
    No response required for appellee.
   PER CURIAM.

This court has already dismissed, as legally insufficient and unauthorized, the underlying pro se “motion to conduct full inquiry into alleged bad faith filings,” filed by petitioner Wesley A. Hostzclaw, which this court designated as a petition for writ of habeas corpus. We now impose sanctions on Hostzclaw.

On July 12, 2010, while the petition was pending, a typed “motion by public defender’s office for appointment to be counsel on behalf of Defendant Wesley A. Hostzclaw on above styled cases and motions for postconviction relief now pending before this court initially filed pro se by Defendant” was filed in this court, purportedly by Fifteenth Circuit Public Defender Carey Haughwout (Haughwout). However, the motion arrived in an envelope bearing Hostzclaw’s return address, portions of it appeared to contain his handwriting, and its typographical errors and misstatements of law appeared to be consistent with Ho-stzclaw’s own customary filings.

This court directed Haughwout to advise this court whether she authorized the filing of the July 12, 2010 motion. On July 30, 2010, she confirmed she did not authorize this filing. Accordingly, this court struck the motion as unauthorized and fraudulent.

On August 2, 2010, Defendant filed a response to this court’s July 21, 2010 order to Haughwout, in which he claimed to have sent this court the July 12 motion as “proposed motion” to appoint the public defender to his cases. He asserts that he has a right to propose motions to this court, and there was nothing fraudulent about it because he did not sign the motion, nor did he forge Haughwout’s signature on it. If, however, he committed a fraudulent act, then he asked to be charged with a crime and given his day in court. To that end, he claimed to be forwarding copies of his “proposed” motion to various law enforcement agencies, and he suggested that if he were criminally charged, then the criminal acts of the state attorney, several trial court judges, and the clerk of the Florida Supreme Court also should be considered.

Despite Hostzclaw’s response, this court issued an order directing him to show cause, within twenty days (a period that expired on September 20, 2010), why sanctions should not be imposed pursuant to section 944.279(1), Florida Statutes (2009) (allowing court to recommend disciplinary procedures for prisoner who has “knowingly or with reckless disregard for the truth brought false information or evidence before the court”) (emphasis added), because, in filing the July 12 motion, he misrepresented himself as the Public Defender for the Fifteenth Judicial Circuit, thereby knowingly or recklessly bringing false information before the court. No response to the order was filed by September 20, or even by the end of October.

We conclude that sanctions should be imposed. Although Hostzclaw claims he sent this court the July 12 motion as “proposed motion” to appoint the public defender to his cases, and neither signed the motion nor forged Haughwout’s signature on it, he did represent himself to be the public defender herself. See, e.g., Oquendo v. State, 2 So.3d 1001, 1007 (Fla. 4th DCA 2008) (“Unless a credible threat of sanctions exists, postconviction movants have little incentive against saying whatever they choose in postconviction proceedings, regardless of truth.”).

Accordingly, we direct that a certified copy of this opinion be forwarded to Union Correctional Institution for the consideration of disciplinary procedures pursuant to section 944.279(1), Florida Statutes (2010), because Hostzclaw “knowingly or with reckless disregard for the truth brought false information or evidence before the court.”

Simultaneously with this opinion, we are issuing an order directing Wesley Ho-stzclaw to show cause why this court should not henceforth refuse to accept his pro se filings in perpetuity. See State v. Spencer, 751 So.2d 47 (Fla.1999).

Matter Referred to Correctional Facility for Consideration of Sanctions.

GROSS, C.J., FARMER and DAMOORGIAN, JJ., concur.

      . Hostzclaw was charged in five separate cases (L.T. case nos. 91-6476, 91-7274, 91-10053, 91-10081, and 91-10523) with a total of nine counts of the sale and possession of cocaine. On November 25, 1991, he accepted a plea agreement, pursuant to which he was to receive a sentence of either 15 years in prison if he appeared for sentencing after a 72-hour furlough, or 170 years, as a habitual felony offender, if he failed to do so. He failed to appear for sentencing and, on March 2, 1992, he was sentenced to 170 years in prison as a habitual felony offender. This court affirmed his direct appeal in 1993. Hostzclaw v. State, 620 So.2d 1308 (Fla. 4th DCA 1993). Since then he has filed a plethora of unsuccessful motions and petitions collaterally challenging his convictions and sentences. (In some of his petitions, however, he has represented that his sentence has since been corrected from 170 years to 150 years.)

      . Hostzclaw has been repetitively filing similar motions in an attempt to challenge, long after they were issued, various court orders warning him not to file frivolous pleadings below, prohibiting him from filing further pro se pleadings below, and warning him not to file frivolous pleadings in this court. This particular motion, filed on June 22, 2010, was set up as a separate case rather than being filed within an already-pending case, as Ho-stzclaw had no cases pending in this court when it was filed, and he previously had complained about the filing of his previous similar motions within other previously pending cases. This court dismissed the motion, with an explanation that this court’s jurisdiction is invoked not by motion, but either by the rfiling of an appeal from the order of a lower court, or by filing an original petition in this court, Fla. R. App. P. 9.030(b) (jurisdiction of district courts); 9.100(b) (invoking original jurisdiction by filing petition); 9.110(b) & 9.130(b) (invoking final and nonfi-nal appeal jurisdiction by filing notice of appeal); that motions are filed within pending cases for which jurisdiction otherwise has been invoked; that a motion to conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith, pursuant to section 944.279, Florida Statutes, should be filed within the action or appellate proceeding,in which the bringing of it in good faith is questioned; and that the proper vehicle to seek review of an order imposing sanctions for frivolous filings is a timely appeal from, or timely petition challenging, that order.

      . This court has since held, in Ibarra v. State, 45 So.3d 911 (Fla. 4th DCA 2010), that an order to show cause is not required before sanctions may be imposed pursuant to section 944.279(1). Id. at 915 (citing Spencer v. Fla. Dep’t of Corr., 823 So.2d 752 (Fla.2002)).

      . Instead, on September 1, 2010, Hostzclaw filed yet another “notice of inquiry,” which again asked this court to conduct an inquiry into his alleged bad faith filings with the circuit court, this court, and the supreme court, which this court also has stricken as unauthorized; and on October 4, 2010, he filed a "notice of appeal” with regard to this case.

      .After reciting some of Hostzclaw's previously asserted grounds for relief, the last two paragraphs of the motion read as follows:
      Upon receivership [sic] of all this information it took me a while to get back with Mr. Hostzclaw. I informed him that I could not represent him of [sic] these issues without first, this court appointing my office to do so. For all stated language of attorney conduct and obligations so stated herein, I find that I as a member of [sic] good standing within the Florida Bar Association [sic] in good conscious [sic] could not simply just turn my back on my obligations as an attorney to fight for justice and to uphold the integrity, honesty and dignity of the United States Constitution and most of all the office of the Public [sic] Defender that the good people of Palm Beach County-have entrusted to me. If justice fails for Mr. Hostzclaw, it fails for us all. If the law is not go [sic] for him, them [sic] it is no good for all.
      In the interest of justice, I request this appointment of the Public Defender on Mr. Hostzclaw’s behalf.
      The fact that Haughwout’s typed name appeared at the end of the motion rather than a signature does not cure the misrepresentation.


text:
    Eston BULLARD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6619.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Rehearing Denied Dec. 22, 2011.
    John D. Middleton of John D. Middleton P.A., Melrose, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., DAVIS and THOMAS, JJ., concur.


text:
    Jeff GRAY, Appellant, v. Lioudmila BRESLER, Appellee.
    No. 5D09-4593.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Jeff Gray, Boca Raton, pro se.
    Lioudmila Bresler, Jupiter, pro se.
   On Motion fob Rehearing, Clarification and Certification

PER CURIAM.

We affirm the trial court’s denial of the husband’s motion to vacate the final judgment of divorce for lack of jurisdiction. He claims that he did not reside in the state for six months prior to filing his petition for dissolution in 2005. While that appears to be the case, the trial court explained that the wife filed a counterpetition for dissolution more than six months after the husband had moved to Florida. Because one of the parties had been a resident for six months at the time of the filing of the counterpetition, the requirements of section 61.021, Florida Statutes, were fulfilled. See Gilbert v. Gilbert, 187 So.2d 49 (Fla. 3d DCA 1966). Moreover, the husband did not challenge the eviden-tiary predicate in the original final judgment through an appeal, nor does he allege any fraud upon the court. Therefore, the issue was foreclosed by the final judgment, which was not appealed. See O’Connor v. O’Connor, 357 So.2d 763 (Fla. 3d DCA 1978).

Rehearing Denied.

WARNER, POLEN and STEVENSON, JJ., concur.

      . Section 61.021 was amended in 1986 to provide that one of the parties needed to be a six-month resident at the time the petition for dissolution was filed. Prior to that time, the statute required the filing party to be a six-month resident. It is that version, not the present version, which is referred to by most of the case law cited by the former husband.