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    Paul Augustus HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. SC13-136.
    Supreme Court of Florida.
    Feb. 19, 2013.

      Sonya Rudenstine, Gainesville, FL; Michael Robert Ufferman of Michael Uffer-man Law Firm, P.A., Tallahassee, FL; Baya Harrison, III, Monticello, FL; and Clyde M. Taylor, Jr., of Taylor & Taylor, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General and Charmaine Millsaps, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Paul Augustus Howell, a prisoner under sentence and active warrant of death, appeals the trial court’s order summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. Howell was convicted and sentenced to death when the bomb he constructed, with the specific purpose of killing a witness, instead detonated and killed a Florida Highway Patrol Trooper. This Court upheld Howell’s convictions and death sentence on direct appeal in 1998, Howell v. State, 707 So.2d 674, 683 (Fla.1998), and affirmed the trial court’s denial of postconviction relief in 2004. Howell v. State, 877 So.2d 697, 705 (Fla.2004).

After the Governor signed a death warrant on January 18, 2013, and the execution was set for February 26, 2013, this Court entered a scheduling order providing a deadline by which Howell could file any successive motions for postconviction relief in the trial court. The trial court summarily denied Howell’s amended successive motion for postconviction relief by order dated February 4, 2013. Howell appeals that summary denial, raising three claims: (1) the trial court erred in denying his motion to remove appointed registry counsel due to a conflict of interest; (2) the trial court erred in denying his motions to appoint experts and investigators; and (3) Florida’s capital sentencing scheme is unconstitutional specifically with respect to lethal injection. In addition, Howell filed an application for stay of execution.

We have carefully reviewed the claims raised, as well as the prior history of this case, and for the reasons more fully set forth in this opinion, we affirm the trial court’s order denying postconviction relief and deny the motion for stay.

PROCEDURAL HISTORY

The facts of this case are set forth in Howell’s direct appeal of his conviction and death sentence:

In January of 1992, Howell constructed a bomb for the specific purpose of killing Tammie Bailey at her home in Marianna, Florida. Bailey, Howell, and Howell’s brother, Patrick, were part of a drug ring involving a number of other individuals in which drugs were obtained in Fort Lauderdale and then sold in Marianna, Florida. Howell intended to eliminate Bailey as a witness because she had knowledge that could link Howell and his brother to a prior murder. The bomb was placed inside a microwave oven and then the oven was gift-wrapped. Howell paid Lester Watson to drive and deliver the microwave to Bailey. Although he knew that Howell had often made pipe bombs, Watson testified that he thought the microwave contained drugs. Howell rented a car for Watson to use for the trip. Watson was accompanied on the trip by Curtis Williams.
While traveling on 1-10 toward Ma-rianna, Watson was stopped by Trooper Jimmy Fulford for speeding. Fulford ran a registration check on the car and a license check on Watson, who gave the trooper a false name and birth date because he did not have a valid driver’s license. The radio dispatcher contacted the car rental company and was informed that Howell had rented the car. The dispatcher contacted Howell at his home in Fort Lauderdale, Florida, to determine whether the rental car had been stolen from him. Howell told the dispatcher that he had loaned the car to Watson but did not know that Watson would be traveling so far with the vehicle. Howell was informed by the dispatcher that Watson was going to be taken to the Jefferson County Jail. Howell did not give any warning to the dispatcher regarding the bomb.
Deputies Harrell and Blount of the Jefferson County Sheriff’s Department arrived at the scene and Watson gave them permission to search the vehicle. Trooper Fulford and the deputies observed the gift-wrapped microwave in the trunk of the car. Watson was arrested for speeding and driving without a valid driver’s license and was transported, along with Williams, to the jail by Deputy Blount. Deputy Harrell also proceeded to the jail, leaving Trooper Fulford alone with the rental car. Shortly thereafter, a massive explosion took place at the scene. Testimony presented at Howell’s trial by the State’s explosives expert indicated that Trooper Fulford had been holding the microwave in his hands when the bomb went off. Trooper Fulford died instantly due to the massive trauma caused by the explosion.
The jury found Howell guilty of first-degree murder and of making, possessing, placing, or discharging a destructive device or bomb. The jury also returned a special verdict finding that the charge of first-degree murder was established by both proof of premeditated design and felony murder. At the penalty phase, the jury recommended death by a vote of ten to two. The trial court found that the following aggravators applied to the murder: (1) Howell knowingly created a great risk of death to many persons; (2) the murder was committed while Howell was engaged in the unlawful making, possessing, placing, or discharging of a destructive device or bomb; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest; (4) the victim was a law enforcement officer engaged in the performance of his official duties; and (5) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). The trial court also found that the following statutory and nonstatutory mitigators applied: (1) Howell had no significant history of pri- or criminal activity; (2) the murder was committed while Howell was under the influence of extreme mental or emotional disturbance (given little weight); (3) Howell had served in the military and received an honorable discharge (given little weight); (4) Howell displayed good behavior as a pretrial detainee; and (5) Howell was a good family man (deemed inconsequential). The trial court found that the enormity of the proved aggravating circumstances far outweighed the mitigating circumstances and imposed the death penalty in conformance with the jury’s recommendation that Howell be sentenced to death. The trial court declined to impose a sentence on Howell’s conviction for constructing the bomb because this charge and the murder charge both arose from a single underlying offense.

Howell, 707 So.2d at 676-77.

On direct appeal to this Court, Howell, represented by attorney Robert A. Nor-gard, raised nine issues, which we rejected. In his only guilt-phase claim, Howell challenged the trial court’s refusal to appoint different defense counsel for him and its refusal to appoint a second attorney. Specifically as to the trial court’s refusal to appoint different defense counsel, the State had filed a motion to disqualify defense counsel Frank Sheffield from the state court proceedings, stating that Howell had similar charges pending in both state court and federal court and Sheffield had been removed as defense counsel in the federal proceedings and was replaced by attorney William Pfeiffer. Id. at 677. The trial judge held a hearing and found that Sheffield requested to be removed as counsel in the federal proceedings because Sheffield’s wife received a threat directed to Sheffield that if “Howell goes down, Mr. Sheffield is going down too.” Id. at 678. However, at the hearing, Sheffield stated that he was still willing to continue as Howell’s counsel in the state proceedings and had conducted “tons and tons” of discovery. Id. at 677. In addition, he had significant experience in handling capital cases. Id.

The trial court denied the State’s motion to disqualify, finding that Sheffield was not removed in the federal proceedings based on a lack of diligence, there was no basis to question Sheffield’s performance in the state proceedings, and Pfeiffer did not have any experience handling a capital case. Id. at 677-78. The State filed a motion for rehearing and attached the transcripts from the federal proceedings, asserting that the transcripts supported a possible conflict between Sheffield and Howell based on the threat Sheffield’s wife received. Id. at 678. Specifically, although the threat to Sheffield was investigated, it could not be substantiated through telephone records, leading to the possibility that Sheffield’s wife may have falsified the threat. Id. When the trial court attempted to inquire from Howell as to whether there was any conflict or problem between Sheffield and Howell, Howell replied, “the [cjourt can determine it.” Id. at 679.

On review, this Court first determined that there was no abuse of discretion in not disqualifying Sheffield from representation:

It is evident that any apprehension that Sheffield had concerning the bomb threat which had allegedly occurred some nine months before had dissipated. When Howell was asked concerning his position on the matter, he deferred to the court’s judgment. From this record, we cannot say that the court abused its discretion in not disqualifying Sheffield from representing defendant. The State had made the motion out of an abundance of caution, and at no time during the hearing before Judge Stein-meyer did Howell ask that Sheffield be removed as his attorney.

Id.

Further, as to Howell’s claim that he should have been provided with a second attorney or been permitted to replace Sheffield as his attorney based on complaints about Sheffield’s representation, the Court noted that when a defendant complains about the representation of counsel, the judge must make a sufficient inquiry into the complaint, but recognized that this inquiry “can only be as specific as the defendant’s complaint.” Id. at 680. The Court concluded that the trial court made an adequate inquiry into Howell’s complaints of ineffectiveness, properly determined them to be without merit, and did not abuse its discretion in denying the State’s motion to disqualify. Id. In addition, as to Howell’s motion to have a second attorney appointed, the Court held that the trial court did not abuse its discretion in denying that motion. Id.

Howell next challenged on direct appeal whether the trial court properly found numerous aggravators. Howell first alleged that the trial court erred in finding that Howell had knowingly created a great risk to many persons because Trooper Fulford was alone when the bomb exploded. Id. This Court rejected that challenge:

As pointed out by the trial court, if the bomb Howell constructed had reached its intended destination, Tammie Bailey, Bailey’s child, Lester Watson, Yolanda McAllister, and the mother and two children residing in the adjoining apartment would have been potentially at risk of death. Furthermore, even though the victim Howell originally targeted was not killed, this case involved a sophisticated and lethal bomb of great magnitude transported on major interstate highways all the way from Fort Lauder-dale to Marianna, Florida. That fortuitously only one person was killed does not change the fact that Howell knew that the bomb he constructed and caused to be transported through the length and breadth of Florida had the capacity to kill a “great number of people” as we have previously defined that term. Based on the expert testimony presented regarding the violence of the explosion and the fire that it caused, there was a likelihood or high probability that the occupants of any vehicles driving on 1-10 in the near vicinity at the time of the explosion were at risk of death.

Id. at 681. Thus, this Court held that the trial court did not err in finding that the defendant knowingly created an immediate and present risk of death to many persons. Id.

Next, Howell asserted that the trial court erred in finding that the murder was committed to avoid or prevent arrest. This Court detailed the evidence presented at trial that established the intended victim, Bailey, was involved in the cover-up of another murder and that Howell had asked a person to transport a package to “some girls” who had “snitched” on his brother, indicating with gestures that the package contained a bomb. Id. The Court then found that the concept of “transferred intent” was applicable to apply the avoid arrest aggravator to Trooper Fulford. Id. at 682.

Howell also challenged CCP, asserting that he had no intent to Mil Trooper Ful-ford and that transferred intent should not apply to the CCP aggravator. This Court disagreed, holding that the heightened premeditation necessary for CCP does not have to be directed at the specific victim and this Court reviews the level of planning, not the success of the plan. Id. Moreover, here, Howell was informed that law enforcement officers took custody of the car with the bomb, and Howell chose not to warn them of the existence of the bomb. Id.

Along similar grounds, Howell asserted that the trial court erred in finding the aggravator that the victim was a law enforcement officer engaged in the performance of his official duties because Howell did not intend to kill an officer. The Court rejected this claim, noting again that while Howell had been informed that law enforcement officers had custody of the car, he did not warn them about the bomb and could have reasonably foreseen that an officer may search the car and detonate the bomb. Id.

Finally, Howell asserted that the death sentence was disproportionate, relying primarily on the fact that Lester Watson and Patrick Howell (his codefendants) did not receive death sentences. This Court held that disparate treatment is permissible where one defendant is more culpable and that the evidence supported that Howell had greater culpability. Id. at 682-83. Thus, this Court affirmed his convictions and sentence of death. Id. at 683. Howell subsequently filed a petition for writ of certiorari in the United States Supreme Court, which was denied. Howell v. Florida, 524 U.S. 958, 118 S.Ct. 2381, 141 L.Ed.2d 747 (1998).

Howell’s initial postconviction registry counsel, Danielle Jorden, was appointed by the trial court. After seeMng an extension of time to file the postconviction motion from the Florida Supreme Court on March 19, 1999, Jorden filed the state postconvietion motion on August 30, 1999, and subsequently was allowed to withdraw from representation. Clyde Taylor, Jr., was appointed as registry counsel on March 2, 2000, to represent Howell and filed an amended motion that raised eighteen claims, but later conceded several were moot and would be withdrawn. After conducting an evidentiary hearing, the postconviction court subsequently denied the motion for postconviction relief.

Howell appealed the denial of relief, raising only two claims; “(1) whether trial counsel was ineffective in both the guilt and penalty phases in failing to assert that the trooper’s violation of PHP procedures in opening the package containing the bomb constituted an intervening cause, and (2) whether Florida’s death penalty is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).” Howell, 877 So.2d at 700. Specifically, Howell asserted that counsel was ineffective for failing to argue that Trooper Fulford contributed to his own demise when he opened the package because this was a violation of a Florida Highway Patrol policy statement that directed officers not to open items that were securely wrapped — a claim that could have supported both a defense of intervening cause during the guilt phase and supported nonstatutory mitigation during the penalty phase. Id. at 702. However, evidence from the evidentiary hearing demonstrated that trial counsel had considered this defense and concluded that it was not viable and, as a strategic matter, would have only inflamed the jury. Id. at 702-03.

This Court rejected Howell’s ineffectiveness claim, agreeing with the trial court that the defense was not viable because death was clearly a foreseeable result of placing a bomb in a microwave and setting it to explode when the microwave door was opened, as “it was almost certain that Howell’s actions would result in the death of someone, if not his intended victim.” Id. at 703. As to the portion of the claim involving the guilt phase, this Court concluded “the low probability of success, combined with the tremendous potential for alienating the jury by blaming the trooper for his own death, fully justifies trial counsel’s strategic decision to forego presentation of the alleged policy violation during the guilt phase as being well within the wide range of reasonable professional assistance.” Id. at 703-04 (footnote omitted).

This Court made a similar holding as to whether counsel was ineffective in failing to use the alleged policy violation in support of a nonstatutory mitigator, concluding that “counsel made a reasonable strategic decision that introducing the evidence of the policy violation would have alienated the jury without contributing substantially to mitigation.” Id. at 704.

The Court also rejected the Ring claim, relying on prior precedent denying the claim and based on the fact that in this case, the trial court “found that the murder was committed in the course of the felony of making, possessing, placing, or discharging a bomb, and the jury also unanimously found Howell guilty of this separate felony beyond a reasonable doubt.” Id. at 705. Accordingly, this Court affirmed the postconviction court’s denial of relief. Id. This Court denied rehearing on June 25, 2004.

Howell filed a petition for writ of habeas corpus in the federal trial court, raising three arguments that this Court had previously rejected: (1) trial counsel was ineffective for not presenting the contributory negligence of the victim as a defense in the guilt phase and as nonstatutory mitigation in the penalty phase; (2) Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (3) Howell was denied the effective assistance of trial counsel when the trial court denied the motion to remove counsel based on a conflict of interest after trial counsel’s wife received a threat. The federal trial court dismissed the petition as untimely. Howell, through appointed registry counsel, Clyde Taylor, Jr., and Baya Harrison, III, filed an appeal to the Eleventh Circuit Court of Appeals, arguing that he was entitled to equitable tolling under 28 U.S.C. § 2244(d)(2), because the private attorney appointed to represent Howell during his state postconviction proceedings failed to file a petition for federal habeas relief within the time limit. Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir. 2005). The Eleventh Circuit affirmed the dismissal, holding that in order to rely on equitable tolling, Howell was required to show “extraordinary circumstances that are both beyond his control and unavoidable even with diligence” — a standard that he did not meet. Id. at 1251-52. Specifically, the Eleventh Circuit concluded that “Howell was not a victim of extraordinary circumstances beyond his control, and the district court did not commit clear error when it determined that Howell was not diligent.” Id. at 1252.

In addition to these proceedings involving Howell’s death sentence imposed in state court, Howell and numerous other codefendants were charged and convicted in federal proceedings based on the activities of an active drug ring engaged in obtaining drugs in Fort Lauderdale and then selling them in Marianna. Howell or members of this drug ring were also suspected of committing another murder. See United States v. Mothersill, 87 F.3d 1214, 1217 (11th Cir.1996) (detailing the facts of the “elaborate drug operation” involved in the federal drug conspiracy and racketeering prosecution and detailing facts of the prior murder).

ANALYSIS

Florida Rule of Criminal Procedure 3.851 provides the pleading requirements that govern Howell’s successive postcon-viction motion. Fla. R.Crim. P. 3.851(e)(2)(a). In particular, a motion for postconviction relief must state the nature of the relief the defendant seeks, Fla. R.Crim. P. 3.851(e)(1)(C), and must include “a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought.” Fla. R.Crim. P. 3.851(e)(1)(D).

In his appeal to this Court, Howell argues as follows: (1) the trial court erred by denying Howell’s motion to remove appointed registry counsel due to a conflict of interest; (2) the trial court erred by denying Howell’s motion to appoint a mitigation specialist and fact investigator and his motion to appoint a neuropsychologist and forensic psychologist; and (3) the trial court erred in denying his postconviction claim that Florida’s capital sentencing scheme is unconstitutional. In addition, Howell has also filed an application for stay of execution. We address each claim below.

Motion to Remove Appointed Registry Counsel

Howell first claims that the trial court erred in denying a motion to remove appointed registry counsel because registry counsel Taylor had a “conflict of interest” in continuing to represent Howell. Specifically, the record shows that another attorney, Jorden, initially represented Howell during the postconviction proceedings, but requested to withdraw from representation after missing the deadline in which to file a federal petition for writ of habeas corpus under 28 U.S.C. § 2254. The trial judge granted Jorden’s request to withdraw and then appointed Taylor to represent Howell during the initial postconviction proceedings. Taylor has continued to serve as registry counsel for Howell and still represents Howell in these proceedings.

After the Governor signed the death warrant for Howell, the trial court held an initial case management hearing, at which point Taylor informed the court that he may have a conflict of interest and requested more time in which to determine whether a conflict existed. Although the federal deadline was missed before Taylor was appointed to represent Howell, Taylor informed the court that because he shared office space with the former counsel who missed the federal deadline, he was uncertain -whether he might have had any knowledge of those circumstances and therefore expressed concern about whether he should continue to represent Howell. Taylor never moved to withdraw, but at the State’s suggestion, the trial court appointed Harrison, who had formerly assisted Taylor in the posteonvietion proceedings, as co-counsel to assist in representing Howell. Registry counsel then filed a successive motion for posteonvietion relief.

On January 30, 2018, Michael Ufferman and Sonya Rudenstine (retained counsel) filed a notice of appearance, informing the court that they had been privately retained to represent Howell. In addition, retained counsel filed a motion to substitute themselves as counsel for Howell. At a hearing the next day, the trial court accepted their notice of appearance, considering Ufferman and Rudenstine counsel of record. However, the court denied the motion for substitution of counsel. Retained counsel Ufferman and Rudenstine subsequently filed a motion to remove appointed registry counsel Taylor and Harrison based on the conflict of interest, asserting that Taylor shared office space with the posteonvietion attorney who missed the federal deadline and that retained counsel had concerns that registry counsel may not be rendering effective assistance of counsel. In addition, retained counsel asserted that they may raise claims pursuant to Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which would involve whether posteonvietion counsel failed to raise certain claims during the initial-review collateral proceedings, and appointed registry counsel would not be able to advise Howell on such claims or pursue those claims based on this conflict of interest. Retained counsel also argued that they may need to call Taylor as a witness regarding the missed federal deadline.

The trial court subsequently denied the motion to remove appointed registry counsel Taylor and Harrison, stressing that the issue before the court was not whether retained counsel Ufferman and Rudenstine could appear as counsel of record, but whether the court should require appointed registry counsel to withdraw. The trial court then reasoned that retained counsel read Martinez too broadly and recognized that this Court has already determined that Martinez does not provide a new cause of action in state court proceedings. In denying the motion, the trial court reasoned that retained counsel did not show good cause for removal of appointed registry counsel and that registry counsel possessed important familiarity with the facts, so Howell would be better served by having all four attorneys working on the case, given the expedited schedule. The trial court recognized various practical concerns, including that retained counsel appeared at a late stage in the litigation, an expedited schedule had been ordered, and appointed registry counsel had “significant knowledge of this case.”

As this Court recognized in Weaver v. State, 894 So.2d 178, 187 (Fla.2004), “[a] court’s decision involving withdrawal or discharge of counsel is subject to review for abuse of discretion.” On the other hand, when reviewing whether a defendant’s counsel labored under a conflict, this Court applies a “mixed standard of review, deferring to the lower court’s factual findings but reviewing its ultimate legal conclusions de novo.” See State v. Larzelere, 979 So.2d 195, 208 (Fla.2008).

Howell contends the trial court’s ruling was in error based on four reasons. The State argues that as to two of the grounds for disqualifying appointed registry counsel based on Taylor’s potential knowledge of the missed federal deadline, those issues “will arise, if at all, in the future in federal court, as part of the federal litigation.” Further, the State contends that Howell is attempting to raise an ineffective assistance of counsel claim in the guise of a “conflict of interest claim.” Lastly, the State suggests that Howell is actually raising a “counsel of choice claim, not a conflict of interest claim.” We address each argument raised by Howell.

First, Howell argues that he has chosen retained counsel to represent him, and because he has a right to counsel of his choice, the trial court erred in denying his motion to remove appointed registry counsel. While the State contends that there is no Sixth Amendment right to counsel of choice, we conclude that Howell has not even demonstrated that he was denied his choice of counsel at all. The issue before the Court in this proceeding is not whether the trial court erred in denying retained counsel from representing Howell, but whether the trial court erred in denying the motion to remove appointed registry counsel.

In reality, the trial court permitted Howell to exercise his choice of counsel by recognizing Ufferman and Rudenstine as counsel of record in this case, and since retained counsel filed their notice of appearance, they have filed motions, conducted discovery, and even filed the current appellate briefs with this Court. Howell fails to explain how he is being denied counsel of his choice in light of the fact that his retained attorneys are actively pursuing his case but are simply limited in their options because they were not retained until after the death warrant was signed.

Second, Howell contends that the trial court erred in denying the motion to remove appointed registry counsel because appointed registry counsel Taylor may have to serve as a witness in upcoming federal habeas proceedings. In support, Howell cites to rule 4r-3.7(a) of the Florida Rules of Professional Conduct. Rule 4-3.7(a), however, does not require a trial court to remove an attorney when that attorney may be a potential witness in a different case in a different forum when that litigation has not yet commenced. We therefore conclude that the trial court did not abuse its discretion in refusing to remove Taylor as registry counsel on that basis because it is not within the scope of this Court’s review to address any claims Howell may attempt to raise in the federal forum.

Indeed, retained counsel’s arguments regarding the alleged “conflict of interest” are primarily directed toward future federal proceedings and the possibility of raising claims based on Martinez and Holland v. Florida, -U.S.-, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), in that forum. Importantly, Howell has not specifically raised any viable new allegation that appointed registry counsel failed to bring forth in the state court proceedings due to any “conflict of interest.”

Third, Howell contends that the trial court erred in its ruling because in Martinez, 132 S.Ct. at 1320, the United States Supreme Court recognized an exception to the procedural bar rule that would have otherwise prevented an ineffective assistance of trial counsel claim from being raised in a subsequent proceeding where postconviction counsel failed to raise such a claim with the trial court in the initial-review collateral proceedings. Because appointed registry counsel served as Howell’s counsel in his initial-review collateral proceedings, retained counsel argue that appointed registry counsel have a conflict of interest with respect to advising Howell of a potential Martinez claim.

However, Martinez addresses a very narrow issue: whether a federal court reviewing a petition filed under 28 U.S.C. § 2254 can excuse the procedural default that occurred during state proceedings where a defendant was denied his right to effective assistance of trial counsel and has been unable to raise this claim in the state proceedings because postconviction counsel rendered ineffective assistance in failing to raise the claim in the initial-review collateral proceedings. Id. As this Court has made clear, though, Martinez does not provide an independent basis for relief in state court proceedings.

In Gore v. State, 91 So.3d 769 (Fla.), cert. denied, — U.S.-, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012), this Court had the opportunity to review Martinez and its impact on state proceedings and analyzed this claim as follows:

Gore asserts that the recent decision of the United States Supreme Court in Martinez, 132 S.Ct. 1309, creates a new and independent cause of action for ineffective assistance of collateral counsel in our state courts system. While the decision in Martinez does contain expansive language, a proper analysis reveals that the Supreme Court specifically declined to address the issue of whether a constitutional right to effective assistance of collateral counsel exists:
While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.
Id. at 1313. Even Justice Scalia in his dissent acknowledged that the majority chose to evade this issue. See id. at 1326 (Scalia, J., dissenting) (noting that the reframing of the issue “avoid[ed] the Court’s need to confront the established rule that there is no right to counsel in collateral proceedings”). It appears that Martinez is directed toward federal habeas proceedings and is designed and intended to address issues that arise in that context.

Gore, 91 So.3d at 777-78. Accordingly, we have already rejected the claim that Martinez can be used in state proceedings.

Moreover, while Howell contends that appointed registry counsel have a conflict of interest because they provided ineffective assistance of counsel, this Court has repeatedly held that claims of ineffective assistance of postconviction counsel are not cognizable. See Gore v. State, 24 So.3d 1, 16 (Fla.2009); Kokal v. State, 901 So.2d 766, 777 (Fla.2005); Foster v. State, 810 So.2d 910, 917 (Fla.2002); King v. State, 808 So.2d 1237, 1245 (Fla.2002); Waterhouse v. State, 792 So.2d 1176, 1193 (Fla.2001); Lambrix v. State, 698 So.2d 247, 248 (Fla.1996).

Further, as to the viability of any claims that may arise in federal court proceedings, those claims have not yet been raised and are not before this Court. With respect to whether Martinez provides an independent basis for removing counsel in the state court proceedings, we conclude that under the circumstances of this case there is no basis to remove appointed registry counsel. In Martinez, 132 S.Ct. at 1315, the defendant had been unable to raise the denial of his right to effective assistance of trial counsel until federal proceedings began, based on the unique facts and circumstances of the state court proceedings in that case. Here, however, the federal habeas petition that Howell originally filed raised only claims that were fully litigated in previous state court proceedings, and this Court has found those claims to be without merit. Thus, Howell’s registry counsel litigated his claims in state court both on direct appeal and in postconviction proceedings, and counsel has therefore shown no legal basis for removing appointed registry counsel from state court proceedings based on Martinez.

Fourth, Howell argues that the trial court erred in its ruling because appointed registry counsel were insufficiently prepared to represent Howell in the warrant proceedings. However, as the trial court correctly recognized and we have observed, the issue before this Court is not whether retained counsel Ufferman and Rudenstine may join the case as counsel of record, but whether the trial court was required to remove the appointed registry counsel. In its written order denying the motion to remove appointed registry counsel, the trial court noted that it was required to make a finding of good cause to allow registry counsel to withdraw under the registry statute, citing section 27.710(3), Florida Statutes (2012).

Critical to our analysis here, retained counsel have not specifically identified any non-procedurally barred claim that they could have, but were unable to, raise in the trial court and to this Court, based on appointed registry counsel’s alleged inadequate representation in this proceeding. Rather, the claim of retained counsel appears to be that they have not had adequate time to review the record, including the public records, to determine what additional claims could be raised. In this case, however, Howell is under an active death warrant, and we conclude that there is no basis for the trial court to have removed the only counsel who were familiar "with this case.

As to this last point, this Court emphasizes that if Howell was unhappy with the representation of his registry counsel Taylor, he had from 2000 until the time that the death warrant was signed to seek other counsel. To the extent Howell alleges that registry counsel should have raised issues relating to mitigation in the postcon-viction proceedings, these claims are nothing more than a speculative attempt to raise an assertion of ineffective assistance of postconviction counsel at this late time. If this Court were to allow the last minute substitution of counsel to create a situation in which the entire case could be reliti-gated at the time the death warrant was signed, as the State correctly points out, this could become a standard delay tactic in any death warrant case. While this Court has an obligation to ensure that the death penalty is administered with integrity and within constitutional boundaries, this Court will also not condone tactics that would delay a case where all proceedings in this Court were completed in 2004.

Because Howell has not shown that appointed registry counsel have a conflict of interest that would have required the removal of registry counsel in the warrant proceedings or otherwise demonstrated that the trial court abused its discretion in denying the motion to remove appointed registry counsel, we deny this claim.

Denial of the Motions for the Appointment of Investigators and Experts

In his next claim, Howell asserts that the trial court erred in denying his motions for the appointment of investigators and experts. Specifically, the record shows that retained counsel filed an ex parte motion to retain a mitigation specialist and fact investigator on February 1, 2013. On February 5, retained counsel filed an ex parte motion to appoint a neu-ropsychologist and a forensic psychologist, asserting that although a mental health evaluation was conducted prior to trial, the evaluation was in conjunction with Howell’s federal conspiracy case and was under “pretty severe time constraints as the federal trial stopped [proceedings] to do [it] as quickly as possible.” In addition, retained counsel alleged that neither a forensic psychologist nor a neuropsychologist have undertaken a competent examination of Howell, both of which are critical to a full assessment of mitigating circumstances in this case.

The trial court summarily denied both of these motions. This Court reviews the denial of a motion for appointment of experts for an abuse of discretion. See Marshall v. Crosby, 911 So.2d 1129, 1133 (Fla.2005) (“A trial court’s ruling on a motion for appointment of experts will be affirmed on appeal in the absence of an abuse of discretion.”). We conclude that Howell has failed to show how the trial court abused its discretion. In particular, Howell has not alleged that the experts he sought to obtain could assist in any viable state claim. Moreover, sections 27.711(5) and (6) place monetary limits on payments for investigators and experts, and counsel must demonstrate that “extraordinary circumstances” are present in order to exceed the cap for compensating expert witnesses. § 27.711, Fla. Stat. (2012). In this case, however, counsel did not address whether these limits were previously reached and did not attempt to show extraordinary circumstances.

As to both of these motions, retained counsel made no attempt at this stage of the proceedings, on the eve of a death warrant, to demonstrate that there was any need for the appointment of experts. In other words, the motion was not linked to any pending claim or any assertion that a non-procedurally barred claim could even be raised. There is no allegation that there is any doubt as to Howell’s guilt, and any attempt to appoint a mitigation expert almost two decades after his initial trial took place and almost a decade after the completion of his initial postconviction proceedings is long since barred. Thus, we conclude that the trial court did not abuse its discretion in denying these motions.

Lethal Injection Protocol

In his third contention, Howell asserts that the trial court erred in denying the postconviction motion, which raised a singular claim pertaining to whether Florida’s capital sentencing scheme is unconstitutional. Specifically, in Howell’s successive motion for postconviction relief, appointed registry counsel raised one claim: the lethal injection protocol constitutes cruel and unusual punishment and creates a substantial risk of serious harm to Howell. Howell requested an eviden-tiary hearing, noting that “the defendant is the first African-American inmate that is subject to receiving pentobarbital, his medical history is different than those executed, his body weight and blood-type is different, and he is significantly younger than any of those previously put to death using pentobarbital.” On January 31, 2013, counsel filed an amended motion for postconviction relief, stating that “Howell is allergic to aspirin, has a long history of ulcers, frequently suffers from extreme headaches and dizziness, continues to experience numbing pain radiating down his leg, and experienced bouts of insomnia during his incarceration.”

During a hearing, appointed registry counsel Taylor informed the trial court that he did not have evidence to present during an evidentiary hearing. At this same hearing, the judge recognized retained counsel Ufferman and Rudenstine as counsel of record and asked whether retained counsel planned on relitigating any issues. As to the lethal injection claim, Ufferman informed the court that retained counsel had “no basis to believe that we would be relitigating that, but I can’t affirmatively tell you that we won’t, depending oh what we discover going forward.” After this representation, counsel did not inform the court that new evidence had been discovered.

The trial court denied the motion for postconviction relief, which raised only whether lethal injection constituted cruel and unusual punishment. In support, the trial court relied on this Court’s prior precedent and held that after careful examination of the specific allegations raised, Howell was not raising any new scientific evidence and that based on the allegations raised, Howell was not entitled to relief.

We conclude that the trial court did not err in its ruling. This Court previously set forth the standard of review for a summary denial of a postconviction motion as follows:

An evidentiary hearing on a rule 8.851 motion should be held whenever the movant makes a facially sufficient claim that requires a factual determination. However, postconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record. Because the circuit court denied [the] successive rule 3.851 motion without holding an evidentiary hearing, we review the circuit court’s decision de novo, accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief.

Pardo v. State, 108 So.3d 558 (Fla.) (internal quotations and citations omitted), cert. denied, — U.S.-, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012). In terms of raising a successful Eighth Amendment challenge, a defendant must demonstrate

that the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. That is, there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment. An inmate faces a heavy burden to show that lethal injection procedures violate the Eighth Amendment. A defendant cannot simply rely on conjecture and speculation.

Id. at 562 (internal quotations, emphasis, and citations omitted). In Pardo, this Court considered and rejected whether the current lethal injection protocol is unconstitutional. Id. Howell is not relying on any new evidence or new claims that this Court has not considered.

Regarding his as-applied challenge to the lethal injection protocol, Howell has not raised a colorable claim that his asserted medical conditions would interfere with the administration of the drugs set forth in the lethal injection protocol. See Troy v. State, 57 So.3d 828, 839-40 (Fla.2011). As the State asserts, the Department of Corrections is familiar with Howell’s medical condition and medical records as he has been under its custody for the past eighteen years. This Court’s “role is not to micromanage the executive branch in fulfilling its own duties relating to executions.” Lightbourne v. McCollum, 969 So.2d 326, 351 (Fla.2007). Accordingly, the trial court did not err in denying Howell’s motion for postconviction relief as to his lethal injection claim.

Application for Stay of Execution

Howell, through his retained counsel, also filed an Application for Stay of Execution on February 14, 2013, asserting that appointed registry counsel have a conflict of interest based on the missed federal deadline and the inadequate representation in the initial postconviction proceedings, that appointed registry counsel were unprepared to represent Howell in the warrant proceedings, and that retained counsel should be permitted time to review the thousands of pages of repository records and the guilt-phase transcripts.

Retained counsel assert that they intend to challenge the missed federal deadline under Holland and may file a claim under Martinez in subsequent federal proceedings because appointed registry counsel Taylor now states he “may have overlooked possible claims cognizable under rule 3.851,” including ineffective assistance of counsel claims. However, as we have already addressed above, the federal habe-as petition that Howell originally filed raised only claims that were fully litigated in state court proceedings and found to be without merit. The relief that counsel is now seeking, on the eve of an execution, is to permit retained counsel to raise entirely new claims outside of an initial-review collateral proceeding — something for which counsel has not shown any legal basis.

In Martinez, the United States Supreme Court explicitly reiterated its holding in Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), that an attorney’s negligence in a postcon-viction proceeding does not establish cause to excuse a procedural default, but Martinez would provide a limited and narrow exception for cases involving initial-review collateral proceedings for claims of ineffective assistance of counsel at trial. Here, however, retained counsel claim ineffectiveness that began at trial and continued through multiple attorneys until the present when the death warrant was signed in 2013.

Howell, through his retained attorneys, asserts that “since undersigned counsel were hired, they have discovered numerous factors that should alarm the Court in moving forward with these proceedings without providing Mr. Howell’s counsel of choice the same amount of time to represent him in circuit court that appointed counsel were afforded.” However, other than claims regarding the missing of the federal habeas deadline and assertions that more mitigation should have been presented at trial, Howell provides no basis aside from speculation for this Court to be alarmed about allowing the death warrant to be carried out.

In order to grant a stay of execution at this stage, Howell must show that there are substantial grounds upon which relief might be granted. Buenoano v. State, 708 So.2d 941, 951 (Fla.1998). We conclude that this showing has not been made. Accordingly, we deny the application for stay of execution.

CONCLUSION

Based on the foregoing analysis, we affirm the trial court’s denial of Howell’s successive rule 3.851 motion for postcon-viction relief. In addition, we deny the application for stay of execution. No rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

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

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

      . The issues raised were: (1) whether the trial court erred in refusing to appoint different defense counsel and refusing to appoint a second attorney; (2) whether the trial court erred in finding that Howell had knowingly created a great risk to many persons; (3) whether the trial court erred in finding that the murder was committed to avoid or prevent arrest; (4) whether the trial court erred in finding the murder was cold, calculated, and premeditated (CCP); (5) whether the trial court erred in finding that the victim was a law enforcement officer engaged in the performance of his official duties because the evidence did not establish that Howell knowingly killed a law enforcement officer; (6) whether the death sentence was disproportionate; (7) whether the trial court erred in failing to give special requested penalty phase instructions; (8) whether the trial court erred in weighing the mitigating circumstances against the aggravating circumstances; and (9) whether the felony-murder aggravator is unconstitutional. Id. at 677-82. The Court rejected the last three challenges without discussion. Id. at 682 n. 1.

      . Howell's postconviction motion raised the following claims: (1) certain agencies withheld access to records; (2) Sheffield had a conflict of interest that impaired his ability to adequately represent Howell; (3) trial counsel was ineffective; (4) section 119.19, Florida Statutes (1999), was unconstitutional; (5) Rule 3.850's one-year time limit was unconstitutional; (6) Howell was innocent of the death penalty; (7) the jury was erroneously instructed as to the weight accorded to an expert's testimony; (8) the jury was given inadequate instructions on aggravating circumstances; (9) the trial court failed to find and consider mitigating circumstances that were established by the record; (10) Howell was denied effective assistance of counsel because counsel cannot conduct post-verdict interviews with jurors; (11) Howell's convictions were materially unreliable based upon the cumulative effect of ineffectiveness; (12) Howell's convictions were materially unreliable as established by newly discovered evidence; (13) the State withheld evidence; (14) Howell was denied his rights to mental health experts at the guilt and penalty phases; (15) execution by electrocution is cruel and unusual punishment; (16) Florida's capital sentencing scheme is unconstitutional on its face and as applied; (17) Florida’s capital sentencing scheme is unconstitutional in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (18) counsel was ineffective in failing to urge a nonstatutory mitigator that Trooper Fulford was responsible for his own death.

      . In an affidavit accompanying Howell's motion to stay filed in this Court, Jorden asserted that it was her "understanding that by filing a motion for extension of time to file” the state postconviction motion, the federal "statute of limitations would be tolled.” Jorden stated that she filed a motion for extension in state court, which was granted, and "therefore delayed filing the [federal] motion until after the one-year” deadline.


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    Ronald L. SCOTT, Jr., Appellant, v. Kimberly Sue SCOTT, Appellee.
    No. 5D12-448.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2012.
    Robert H. McLean of Siboni & Buchanan, PLLC, Ocala, for Appellant.
    No Appearance for Appellee.
   COHEN, J.

Ronald L. Scott, Jr. (“Former Husband”), appeals from a final judgment entered following a trial on his supplemental petition for modification of the original judgment. The final judgment granted Former Husband some relief from an alimony award contained in the original judgment dissolving the parties’ marriage. The original judgment, dated October 8, 2009, incorporated a marital settlement agreement wherein the parties agreed on an award of $700 per month in permanent periodic alimony to Kimberly Sue Scott (“Former Wife”). Former Husband sought modification of the original judgment, alleging a substantial change of circumstances. Following a trial, the court reduced Former Husband’s obligation to $500 per month. We reverse, finding the lower court abused its discretion in not granting a larger reduction.

While the lower court did not articulate the basis for the $200 per month reduction, we accept the court’s findings of fact as they are supported by competent substantial evidence. The court found Former Husband was earning approximately $70,000 per year at the time the original judgment was entered. He subsequently suffered two heart attacks. Currently, his heart is functioning at forty-five percent of its capacity and, as a result, Former Husband is no longer employed or employable and has been determined to be totally disabled. He receives social security disability income of $1,828 per month. In contrast, Former Wife has a monthly gross income of $2,458.

It is clear from the transcript that the trial court took issue with certain representations made in Former Husband’s financial affidavit, and that Former Husband did not comport himself particularly well at trial. We accept the court’s finding that the $500 per month expenditure for gasoline was excessive in light of the fact that Former Husband does not own a car and is not employed. Likewise, the evidence established that Former Husband is living with a woman who pays the mortgage on the residence they share. While he listed a rent payment of $500 per month, Former Husband did not provide proof of actual payments. The trial court also questioned Former Husband’s inclusion of $130 per month on toiletries and noted his initial testimony, later retracted, that he continued to play golf. The court correctly observed that no evidence was presented that Former Wife’s need for alimony had changed since entry of the original judgment.

The final judgment on the supplemental petition for modification of the original judgment found a substantial, material and involuntary change in circumstances as a result of the deterioration of Former Husband’s health and the Social Security Administration’s determination that he is totally disabled. The trial court then reduced the alimony award as noted. Accepting the court’s skepticism of Former Husband’s listed expenses, the remaining expenses shown — including approximately $769 per month for health insurance and prescription medications — do not reveal an ability to pay the $500 per month alimony obligation. While we are not suggesting that Former Husband is free of his obligation to Former Wife, we remand for the lower court to reduce the alimony obligation to an amount that allows both parties sufficient funds to meet their reasonable needs.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

ORFINGER, C.J., and SAWAYA, J„ concur.

      . That finding is not challenged by Former Wife, who has elected not to respond in the instant appeal.


author: PER CURIAM.

text:
    Christopher RICKS, Appellant, v. Dawn DODIER, Appellee.
    No. 5D11-3487.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2012.
    Michael M. Brownlee, of Brownstone, P.A., Winter Park, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Christopher Ricks appeals the Final Judgment of Injunction for Protection Against Domestic Violence With Minor Children, alleging that the judgment was improperly entered without an evidentiary hearing, based on a stipulation that only provided for the extension of a temporary injunction previously entered. Ricks is correct. Because the Final Judgment was erroneously entered, we reverse the judgment and remand for further proceedings.

REVERSED and REMANDED.

SAWAYA, LAWSON and BERGER, JJ., concur.


text:
    Carlos HERNANDEZ, Appellant, v. Mary E. HERNANDEZ, Appellee.
    No. 5D10-4143.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2012.

      Beth M. Terry of Law Office of Beth M. Terry, P.A., Jacksonville, for Appellant.
    Robert H. Fishback, Jr., Jacksonville, for Appellee.
   PER CURIAM.

In this dissolution of marriage case, Appellant challenges several findings and conclusions regarding equitable distribution, the award of permanent alimony to Appellee, the court’s child support calculation, and the award of attorney’s fees to Appellee.

Regarding the valuation of the parties’ second home on Ambrosia Court, Appellant contends that the trial court erred in using the tax assessor’s valuation of the home, rather than its fair market value, for purposes of equitable distribution. This argument erroneously describes the trial court’s actions. The parties presented conflicting evidence in the form of affidavits regarding the value of the property. The tax assessor’s valuation fell within the range of values offered by the parties. The trial court concluded that the assessed valuation was the “closest to fair market value.” This was not error.

We do, however, find error regarding the trial court’s failure to address the “bridge loan” in connection with the distribution of the Ambrosia Court property. On remand, the trial court should determine the amount of this loan, deduct it from the market value of the home to determine the correct amount of equity in the home, and distribute the equity accordingly. See El-Hajji v. El-Hajji, 67 So.3d 256, 259-60 (Fla. 2d DCA 2010) (holding that by distributing former husband’s 401(k) account without also distributing outstanding $2,809.89 loan on that account, trial court improperly provided unequal distribution to former wife of approximately $1,400 without explanation).

We also agree -with Appellant that the trial court erred in failing to distribute the parties’ remaining marital debt. The trial testimony established that the parties used a number of credit cards during the marriage, which still had outstanding balances. Those included joint accounts at Lowes, Home Depot, and Target, as well as other credit card accounts in the parties’ individual names. The trial court did not address this debt in the final judgment. On remand, the trial court should determine the amount of marital debt associated with these credit card accounts and distribute it accordingly.

With respect to the parties’ furniture, the final judgment provides: “There is no reliable or credible evidence as to the value of the furniture, fixtures and furnishings in the respective real properties owned by the parties. The party in possession should retain ownership of the personal property in each of the residences.” The record reveals that both Appellant and Appellee placed identical values on the furniture in the marital home and Appellee did not dispute the amount Appellant placed on the furniture in the Ambrosia Court house. The court erred in refusing to use these figures to value the furniture for equitable distribution purposes.

Appellant also challenges the award of permanent alimony. Although we conclude that the trial court was within its discretion to award alimony here, the record reflects that the court used the wrong financial information in calculating the award. Instead of relying on Appellant’s 2010 affidavit, which was admitted in evidence, the trial court based the alimony award on a 2009 affidavit that was contained within the court file but not admitted into evidence or considered during the trial. We remand for the trial court to calculate the amount of alimony based on Appellant’s 2010 financial affidavit, after determining Appellee’s need and Appellant’s ability to pay. For this same reason, we reverse and remand the child support calculation for redetermination based on Appellant’s 2010 financial affidavit.

In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORPY, COHEN and BERGER, JJ., concur.


text:
    Maurice BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0049.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    Rehearing Denied March 14, 2013.
    Maurice Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

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


text:
    Robert G. PIEHL, Petitioner, v. STATE Of Florida, Respondent.
    No. 1D12-6098.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    Rehearing Denied March 14, 2013.

      Robert G. Piehl, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Ricky L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5929.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Rehearing Denied March 19, 2013.
    Ricky L. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.141(d)(5).

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Lawrence Dewayne SLOCUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5430.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Rehearing Denied March 14, 2013.
    Lawrence Dewayne Slocum, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal is denied on the merits.

CLARK, WETHERELL, and MAKAR, JJ., concur.


author: ROTHENBERG, J.

text:
    Sam SUGAR, M.D. and Judy Sugar, Appellants, v. In re GUARDIANSHIP OF Idelle STERN, Appellee.
    No. 3D12-1592.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.

      Heller Waldman, P.L., and Glen H. Waldman and Jason Gordon, for appellants.
    Stok Folk & Kon, and Robert A. Stok and Daniel Brennan; Fowler White Burnett P.A., and Esther E. Galicia and Liz Consuegra Messianu; Golden & Cowan, and Giovanna A. Abreu, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

In 2010, the probate court declared Idelle Stern incapacitated as a result of her advanced age and stroke-related diminished mental capacity, and appointed Comprehensive Personal Care Services, Inc. (“CPCS”) as plenary guardian over her person and her property. Mrs. Stern’s property included her interest in a trust in which the Oppenheimer Trust Company (“Oppenheimer”) served as a co-trustee. In an effort to resolve numerous adversary proceedings, the following parties entered into a settlement agreement, which was ultimately approved by the probate court: three of Mrs. Stern’s daughters, Rochelle Keveloson, Tikvah Lyons, and Joyce Genauer (collectively, “the three daughters”); Mrs. Stern’s other daughter and her husband, Judy Sugar and Dr. Sam Sugar (collectively, “the Sugars”); and CPCS. Thereafter, however, it was discovered that the settlement agreement, which contained a provision that the Sugars agreed to be released from any responsibility and to receive no benefit from any suit filed against White & Case for malpractice, inadvertently omitted a similar provision as to any litigation against Oppenheimer. The three daughters and CPCS moved for reformation of the settlement agreement, which was granted over the objection of the Sugars, and this appeal followed.

The trial court’s order granting reformation of the settlement agreement is reviewed for an abuse of discretion. Kartzmark v. Kartzmark, 709 So.2d 583, 586 (Fla. 4th DCA 1998). Because it is unrefuted that the Sugars intended that the settlement agreement contain the same opt-out provision regarding Oppenheimer as was included in the settlement agreement regarding White & Case, and that the omission was as a result of a mutual mistake due to a scrivener’s error or inadvertence, we affirm. See Tobin v. Michigan Mut. Ins. Co., 948 So.2d 692, 696 (Fla.2006) (holding that reformation is an equitable remedy employed when a written instrument, due to mutual mistake, does not accurately express the intent or agreement of the parties); Moree v. Moree, 59 So.3d 205, 207 (Fla. 2d DCA 2011) (finding the existence of a mutual mistake where the difference between what the parties agreed to and what the written documents state was due to a scrivener’s error or inadvertence).

Affirmed.

      . The three daughters and CPCS submitted six sworn affidavits and the sworn testimony of three of the attorneys who attended the settlement conference, who all averred that the omitted provision was an inadvertent scrivener’s error and a mutual mistake. The Sugars offered no evidence to refute these sworn statements.


author: WETHERELL, J.

text:
    Angus N. KELLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2679.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Rehearing Denied April 3, 2013.
    Angus N. Kelley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Appellant was convicted of robbery with a weapon and resisting an officer without violence and was sentenced to 30 years in prison as a prison releasee reoffender. Appellant’s judgment and sentence were per curiam affirmed on direct appeal. Kelley v. State, 17 So.3d 293 (Fla. 1st DCA 2009) (table).

In January 2010, Appellant timely filed a rule 3.850 motion raising eleven claims of ineffective assistance of counsel and a claim of cumulative error. In October 2010, the trial court summarily denied eight of the claims, including claims 1 and 9. In September 2011, after an evidentiary hearing, the trial court denied the remaining claims. We granted Appellant a belated appeal. Kelley v. State, 82 So.3d 185 (Fla. 1st DCA 2012).

On appeal, Appellant challenges only the denial of claims 1, 7, and 9. We affirm the denial of claims 7 and 9 without comment, and we affirm the denial of claim 1 for the reasons that follow.

In claim 1, Appellant alleged that his trial counsel was ineffective for not striking jurors Fowler and Sewell for cause. As he did below, Appellant contends on appeal that competent counsel would have struck those jurors as biased because they indicated during jury selection that they would give more weight to the testimony of law enforcement officers whom they knew than to the testimony of strangers. The State responds that the performance of Appellant’s trial counsel was not deficient because the transcript of jury selection shows that jurors Fowler and Sewell were not actually biased, and even if counsel’s performance was deficient, Appellant is precluded from raising this postconviction claim because he affirmatively accepted the jury.

The jury selection transcript reflects that jurors Fowler and Sewell knew several of the law enforcement officers who were expected to testify at trial. In response to the prosecutor’s questions, jurors Fowler and Sewell each stated that they could be fair and impartial in weighing these witnesses’ testimony. Later, however, in response to defense counsel’s questions, Fowler testified that she would probably give these witnesses the benefit of the doubt more so than a typical witness because she knew them. Likewise, Sewell acknowledged in response to defense counsel’s questions, that she would be more apt to believe the officer witnesses over someone whom she did not know. The prosecutor did not undertake any further examination of jurors Fowler and Sewell after their responses to these questions.

Appellant’s trial counsel struck four other prospective jurors for cause who, like jurors Fowler and Sewell, testified that they would give the benefit of the doubt to the law enforcement officer witnesses whom they knew. Counsel did not move to strike jurors Fowler and Sewell for cause, nor did he use a peremptory strike on these jurors. As a result, jurors Fowler and Sewell served on the jury that convicted Appellant.

A rule 3.850 motion cannot be used to go behind representations the defendant made to the trial court, and the court may summarily deny post-conviction claims that are refuted by such representations. See Stano v. State, 520 So.2d 278, 279 (Fla.1988). Although this rule is most frequently applied in the context of sworn representations made by the defendant during a plea colloquy, it has also been applied to unsworn representations made by the defendant during the course of the trial. See, e.g., McIndoo v. State, 98 So.3d 640, 641 (Fla. 4th DCA 2012) (holding that a defendant’s statement at trial that he was satisfied with his attorney and that he freely and independently determined not to call any witnesses refuted his claim that his trial counsel was ineffective for failing to call a known witness).

Here, the record reflects that after the jurors had been selected, the trial court asked Appellant whether he agreed with the jury, and Appellant responded that he did. Appellant cannot use the postconviction process to go behind this representation. Accordingly, the summary denial of claim 1 was appropriate.

The Second District considered a similar situation in Solorzano v. State, 25 So.3d 19 (Fla. 2d DCA 2009). There, the defendant claimed that his trial counsel was ineffective for not questioning a prospective juror at all during jury selection. Id. at 23. The trial court summarily denied the claim, finding that the defendant failed to establish how the juror was incompetent to serve or inherently biased against him. Id. The Second District reversed the summary denial because the claim was not refuted by the record. Id. at 24. The court noted, however, that the defendant’s claim might be refuted by the record “if the defendant personally and affirmatively accepted the jury prior to its being sworn, thus affirmatively representing to the court that the jury composition and selection process were acceptable.” Id. (citing Muhammad v. State, 782 So.2d 343, 353 (Fla.2001)). This is precisely what occurred below.

Appellant argues that Solorzano is distinguishable because the alleged deficiency in that case was counsel’s failure to meaningfully examíne a prospective juror rather than, as here, allowing a juror who expressed a bias to sit. This distinction, however, provides further support for af-firmance here because if the defendant’s acceptance of the jury in Solorzano despite not knowing what the prospective juror might have said had he been examined refutes a claim that counsel was ineffective, it logically follows that Appellant’s acceptance of the jury despite hearing the testimony of jurors Fowler and Sewell regarding their potential biases serves as a bar to any claim that counsel was ineffective for allowing those jurors to serve.

The Florida Supreme Court held in Carratelli v. State, 961 So.2d at 317-18, 325 (Fla.2007), that the standard to obtain relief on a postconviction claim such as that raised by Appellant is more stringent than the standard that applies when such a claim is raised on direct appeal. Thus, it follows that a defendant who, like Appellant, personally affirms his acceptance of the jury panel will not be heard to complain in a postconviction motion that his counsel was ineffective for allowing a biased juror to serve on his jury. Otherwise, the defendant would have a “trump card” to use in postconviction proceedings that is not available on direct appeal. See generally Joiner v. State, 618 So.2d 174, 176 n. 2 (Fla.1993) (observing that, absent the requirement that alleged errors during jury selection must be renewed prior to the jury being sworn, the defendant “could proceed to trial before a jury, he unquali-fiedly accepted, knowing that in the event of an unfavorable verdict, he would hold a trump card entitling him to a new trial.”)

ANGUS NICKLETON KELLEY: Yes, sir.

In sum, Appellant was fully aware of the alleged bias of jurors Fowler and Sewell when he informed the trial court that he agreed with the jury selected by his trial counsel. Accordingly, even if his counsel was ineffective for not attempting to strike the jurors for cause, Appellant cannot go behind his representation to the trial court that he was satisfied with the jury by alleging that his counsel was ineffective in jury selection. For these reasons, we affirm the trial court’s denial of claim 1 in Appellant’s motion for postconviction relief. We affirm the denial of the remainder of the motion without further comment.

AFFIRMED.

ROBERTS and MARSTILLER, JJ., concur.

      . Appellant is deemed to have abandoned the other claims in his motion by not raising any issue in his brief regarding the denial of those claims. See Watson v. State, 975 So.2d 572, 573 (Fla. 1st DCA 2008); see also Prince v. State, 40 So.3d 11 (Fla. 4th DCA 2010); Austin v. State, 968 So.2d 1049 (Fla. 5th DCA 2007).

      . Because no evidentiary hearing was held on claim 1, we do not know why counsel did not strike jurors Fowler and Sewell. We note, however, that during the evidentiary hearing on Appellant's other claims, counsel testified that Appellant was an active participant in jury selection, discussing which jurors should serve and which should be stricken.

      . The transcript of jury selection includes the following colloquy:
      THE COURT: Mr. Kelley, the jury that you have selected is Mr. Drummond, Ms. Peacock, Mr. Ballard, on the front row. Ms. Fowler and Ms. Sewell on the second row. Ms. Wallace on the back row, and Mr. Utley is the alternate. Do you agree with that jury, Mr. Kelley?


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Joel Patrick THOMAS, Appellee.
    No. 5D12-392.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    Rehearing and Rehearing En Banc Denied April 3, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
    Brett A. Smith and Carlus L. Haynes, of Law Office of Haynes and Laurent, P.A., Orlando, for Appellee.
   EVANDER, J.

The State appeals from an order granting Thomas’ motion to suppress. Because the trial court failed to apply the correct law in determining the validity of the stop of Thomas’ vehicle and the subsequent search of Thomas’ person, we reverse for further consideration. Specifically, we conclude that the trial court erred in its determination that: (1) the arresting officer’s suspicion of drug activity invalidated an otherwise proper traffic stop for illegal window tint, (2) Miranda warnings were required when the officer questioned Thomas after observing the degree of his nervousness, and (3) a general consent to search did not include a consent to search Thomas’ wallet.

Thomas was charged with possession of oxycodone, possession of twenty grams or less of cannabis, and possession of drug paraphernalia. The charges were filed following a traffic stop of Thomas’ vehicle. Thomas filed a motion to suppress alleging that the stop was pretextual, that he did not voluntarily consent to a search of his person, and that the search of his wallet exceeded the scope of any consent he may have given. An evidentiary hearing was held on the motion. Only two witnesses testified at the hearing — Officers Robson and Nye.

Officer Robson testified that he was on routine patrol around midnight when he observed Thomas’ vehicle in an empty parking lot behind a closed restaurant. Robson had previously made drug arrests in that area. As Robson approached in his vehicle, Thomas drove away. Robson followed Thomas’ vehicle, observed that its windows were unusually dark, and initiated a traffic stop of Thomas for driving a vehicle with illegal window tint. When Robson asked Thomas for his license and registration, Thomas’ hands were shaking and he appeared very nervous. Thomas responded in the negative when asked if he had anything illegal in the car. When Officer Nye arrived, Robson asked Thomas to exit the vehicle. Robson testified that he sometimes requests motorists exit their vehicle, for officer safety reasons, when he has a concern that there may be something illegal in the car or when the individual exhibits an unusual degree of nervousness.

Robson then used his tint meter and confirmed that Thomas’ car windows were, in fact, illegally tinted. As Officer Nye remained with Thomas, Robson returned to his vehicle to run a warrants check on his computer. On cross-examination, Robson acknowledged that he started following Thomas based on a “hunch” or a “suspicion” of possible drug activity.

Officer Nye testified that while Robson was performing the computer background check, he asked Thomas if he had anything illegal on him and “would you mind if I search you?” Thomas was standing by his vehicle and was not handcuffed. According to Nye, Thomas consented to the search request. During the search, Nye removed Thomas’ wallet from his right rear pants pocket. Inside the wallet, Nye found an oxycodone pill. Thomas admitted to Nye that he did not have a prescription for the pill. Thomas was then handcuffed and placed in the back of Robson’s patrol car. A subsequent inventory search of Thomas’ vehicle resulted in the discovery of cannabis and drug paraphernalia.

In granting the motion to suppress, the trial court stated:

I think you have two situations going on here that work against the State.
By his own statement, Deputy Robson indicated that the time he began to follow the Defendant’s car out of the Pan-era parking lot, it was based on a suspicion, which proved accurate, but still a suspicion that — concerning drug transaction.
At that point, the Defendant is an object of investigation.
He then subsequently came up with the tint being too dark. So I think it is pretextual when he stopped him.
When he stopped him even, when he — the first thing he asked him why he was shaking, I think at that point he should have been Mirandized. He was obviously an object of a drug investigation.
When Deputy Nye approached him, he very casually, by his own statement, asked if “I could search you for any drugs and weapons.”
Following the case law, that does not include the contents of wallet because you’ve indicated to me that Nye by his experience is aware that that is where drugs are most often contained. He was in the best position to know to ask the additional question concerning that.
So therefore, the original, whatever this is, whatever the pill was, Oxycodone is suppressed and the subsequent search and seizure of any of the cannabis and drug paraphernalia in the car is suppressed as are the Defendant’s subsequent statements that were given pursuant to that.

A challenged motion to suppress frequently presents mixed questions of law and fact for consideration by the reviewing court. McMaster v. State, 780 So.2d 1026, 1028 (Fla. 5th DCA 2001). Findings of fact made by the trial court are subject to the substantial competent evidence standard. The application of the law by the trial court, however, is reviewed de novo. Id.

The trial court erred in its application of the law in three respects. First, as a general rule, a traffic stop is reasonable under the Fourth Amendment where the law enforcement officer has probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Wimberly, 988 So.2d 116, 119 (Fla. 5th DCA 2008). The constitutional reasonableness of a traffic stop does not depend upon the subjective motivations of the officer who stopped the vehicle. See Whren, 517 U.S. at 813, 116 S.Ct. 1769; Wimberly, 988 So.2d at 119. Here, the undisputed evidence reflects that Officer Robson had probable cause to believe that Thomas was driving a vehicle with illegal window tint.

Second, having initiated a traffic stop, Officer Robson was not required to “Mirandize” Thomas after observing Thomas’ nervous behavior. Miranda warnings are required only in instances of custodial interrogation. See Davis v. State, 698 So.2d 1182, 1188 (Fla.1997). Traffic stops are generally not considered to constitute custodial interrogation and law enforcement officers are permitted to ask a moderate number of questions to confirm identity and to confirm or dispel suspicions related to the scope of the stop without being required to first inform a motorist of his or her Miranda rights. As the United States Supreme Court explained:

[T]he usual traffic stop is more analogous to a so-called “Terry stop,” see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose “observations lead him reasonably to suspect” that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to “investigate the circumstances that provoke suspicion.” United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). “[T]he stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’ ” Ibid. (quoting Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct., at 1884.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.

Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (footnotes omitted); see State v. Olave, 948 So.2d 995 (Fla. 4th DCA 2007) (defendant who had been stopped for broken taillight and asked to exit vehicle was not subject to custodial interrogation for purposes of Miranda when police officer asked him whether he had any drugs or weapons in his pockets); State v. Dykes, 816 So.2d 179 (Fla. 1st DCA 2002) (motorist was not subjected to custodial interrogation, for purposes of Miranda, when he was pulled over in routine traffic stop and questioned by one officer while another officer wrote citation for minor undisputed traffic violation). In the instant case, Thomas was not in custody when Officer Nye asked his permission to be searched and, accordingly, there was no requirement that Thomas first be “Mirandized.”

Third, the search of Thomas’ wallet fell within the scope of his consent to a search of his person. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness, to-wit: what would the typical reasonable person have understood by the exchange between the officer and the suspect. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). If a defendant gives a general consent to search his or her person, a law enforcement officer may seize objects found in that person’s pockets and, if the objects consist of closed containers, the officer may open them. Allen v. State, 909 So.2d 435, 438 (Fla. 5th DCA 2005). The record below reflects that Thomas consented to a search of his person, that his wallet was found on his person, and that Thomas did not object to a search of his wallet or otherwise withdraw or limit his consent. Accordingly, it was error for the trial court to find that the scope of Thomas’ consent did not include a search of his wallet. See Allen (upholding search of lip balm container found in defendant’s pocket where defendant consented to search of his person and made no effort to withdraw or limit his consent); Aponte v. State, 855 So.2d 148 (Fla. 5th DCA 2003) (upholding search of a cigarette pack found in defendant’s pocket where defendant gave general consent to search of his person and did not make any verbal or non-verbal attempt thereafter to limit search).

REVERSED and REMANDED for further proceedings.

ORFINGER, C.J. and GRIFFIN, J., concur.

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

      . Officer Nye's actual testimony was as follows:

        Q. Okay, and what did you say to him?
      A. I asked him if he had an illegal [sic] on him, any guns, knives, drugs, the line I do.
      Q. And is that normal protocol?
      A. Yes, yes. If I ask consent to search, you know, I've asked A) do you have any guns, knives, drugs, anything like that on you, anything illegal on you? Would you mind if I search you?
      Q. You said — that’s exactly what you said?
      A. Yeah, that's the same thing I use on everybody.

      . Sections 316.2951-.2956, Florida Statutes (2011), provide it is a noncriminal traffic infraction to operate a motor vehicle on which sunscreen material has been applied to the side or rear windows that has the effect of altering the windows’ transparency beyond specified limits.

      . The cases cited by Thomas and relied upon by the trial court are distinguishable because they did not involve a general consent by the defendant to a search of his person. In A.L.T.

        v. State, 63 So.3d 855, 856 (Fla. 4th DCA 2011), our sister court found that the trial court erred in failing to grant A.L.T.’s motion to suppress where police requested consent to search him for weapons and drugs, but exceeded the scope of the consent by removing an incriminating document from his wallet. The A.L.T. court specifically observed that our Aponte decision was distinguishable because “A.L.T. consented to a search of his person for weapons and drugs; he did not give a general consent to search.” A.L.T., 63 So.3d at 858. In State v. Smith, 632 So.2d 1086 (Fla. 5th DCA 1994), a search of the defendant's wallet was found to be improper where there was evidence to support the trial court’s finding that police had only sought consent to search under the seat of defendant's car and the wallet was not found at such location.


author: WELLS, Chief Judge.

text:
    Thomson VAVAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3119.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Thomson Vaval, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   WELLS, Chief Judge.

Thomson Vaval appeals an order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. For the following reasons, we reverse and remand for further proceedings.

Vaval claims his convictions for one count of lewd and lascivious battery on a child less than sixteen years of age and one count of lewd and lascivious molestation on a child twelve to sixteen years of age violates double jeopardy because there was no temporal break between the two offenses that were committed on the same child on the same day. The trial court affirmed, finding that there was a temporal break between the two criminal acts and that Vaval formed a separate criminal intent to commit the two acts.

On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. The record before us consists of only Vaval’s postconviction motion, the State’s response to the motion, the order on appeal, the arresting officer’s report, the arrest affidavit and the Rape Treatment Center Report. From this record, we are unable to discern that Vaval committed more than one criminal act on the same day, much less a temporal break between two acts.

If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.


author: DAVIS, J.

text:
    Jeffrey John SILHA, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES OF the STATE OF FLORIDA, and Julie L. Jones, Executive Director, Department of Highway Safety and Motor Vehicles, and, Sandra Lambert, Director Division of Driver Licenses, and T.N. Prakash, Chief, Bureau of Driver Improvement, Appellees.
    No. 1D12-4323.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    Rehearing Denied April 4, 2013.

      David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Appellant.
    Stephen D. Hurm, General Counsel, and Douglas D. Sunshine, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Ap-pellees.
   DAVIS, J.

Appellant, Jeffrey John Silha, appeals an order granting summary judgment in favor of Appellees. He argues that, contrary to the trial court’s determination, the Department of Highway Safety and Motor Vehicles (“Department”) lacked the authority to revoke his Florida driving privilege for four convictions of driving under the influence (“DUI”) when he did not have a Florida driver’s license, did not reside in Florida, and did not receive the triggering conviction in Florida. For the reasons that follow, we reject Appellant’s argument and affirm.

As found by the trial court, Appellant was convicted in Florida of a third DUI in 1996. In late 1996, Appellant left Florida and was convicted in 1999 of a fourth DUI in Georgia. Appellant’s Florida driver’s license had expired at the time of the Georgia conviction. After receiving notice from the Georgia authorities of the fourth conviction, the Department permanently revoked Appellant’s driving privilege effective November 23, 1999, and sent notice to Appellant’s last known address. Appellant was extradited to Florida in April 2000 on an outstanding arrest warrant and was in the custody of the Florida Department of Corrections until September 22, 2000. In 2002, Appellant obtained an Arkansas driver’s license. In 2010, Arkansas authorities refused to renew Appellant’s license due to his driving status in Florida. Appellant, who first learned of the Florida revocation after Arkansas refused to renew his license, sought a declaratory judgment and injunctive relief against Appellees. Appellant moved for summary judgment, and Appellees filed a cross motion for summary judgment. The trial court granted Appellees’ motion, denied Appellant’s motion, and ordered that the permanent revocation of Appellant’s driving privilege remain in effect. This appeal followed.

A trial court’s ruling on summary judgment is reviewed de novo. Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008). In reviewing a summary judgment, an appellate court must determine whether there are genuine issues of material fact and whether the trial court applied the correct rule of law. Id. Appellant challenges only the trial court’s legal conclusion in this appeal.

In determining that the Department was authorized to revoke Appellant’s driving privilege, the trial court properly relied upon section 322.23, Florida Statutes (1999), which is entitled “Suspending privileges of nonresidents and reporting convictions,” and which sets forth in subsection (1) that “[t]he privilege of driving a motor vehicle on the highways of this state, given to a nonresident, shall be subject to suspension or revocation by the department in the same manner and for the same cause as a license issued by the department may be suspended or revoked.” (Emphasis added). We reject Appellant’s argument that subsection (1) authorizes the Department to suspend or revoke a nonresident’s driving privilege only for a conviction that occurs in Florida. We interpret the provision to mean that if the Department is authorized to revoke a Florida resident’s driver’s license for having three DUI convictions within Florida and the fourth DUI conviction in another state, then it is authorized to revoke a nonresident’s driving privilege under the same scenario. Our reading of other provisions in chapter 322 leads us to conclude that the Department has the authority to revoke a Florida driver’s license under those facts.

Section 322.26(l)(a), Florida Statutes (1999), which the trial court also cited in its order, provides that “[t]he department shall forthwith revoke the license or driving privilege of any person upon receiving a record of such person’s conviction of any of the following offenses: ... a fourth violation of s. 316.193 [DUI]-” A revocation under section 322.26(l)(a) is permanent. Section 322.24, Florida Statutes (1999), authorizes the Department “to suspend or revoke the license of any resident of the state, upon receiving notice of the conviction of such person in another state or foreign country of an offense therein which, if committed in this state, would be grounds for the suspension or revocation of his or her license.” Pursuant to these two statutes, the Department would have been entitled, had Appellant had a Florida license, to revoke that license based upon his fourth DUI which occurred in Georgia. It, therefore, follows that the Department was authorized under section 322.23(1) to revoke Appellant’s privilege to drive in Florida as a result of his fourth DUI conviction.

Our interpretation of the statutes cited herein is supported not only by the statutes’ plain language but also by the legislative intent behind the statutes. As a result of the revocation, Appellant is now prohibited from operating a motor vehicle in Florida under a license or permit issued in any other jurisdiction. See § 322.30(1), Fla. Stat. (1999). The revocation under the facts of this case furthers the legislative intent of keeping Florida drivers safe, denying the driving privilege to those who have demonstrated their indifference to the laws, and discouraging repetition of criminal action. See § 322.263, Fla. Stat. (1999); see also § 322.42, Fla. Stat. (1999) (providing that chapter 322 “shall be liberally construed to the end that the greatest force and effect may be given to its provisions for the promotion of public safety”).

Accordingly, we AFFIRM.

RAY and SWANSON, JJ., concur.


author: HARRIS, C.M., Senior Judge.

text:
    Jabarco COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3509.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Rehearing and Rehearing En Banc Denied March 28, 2013.

      Jabarco Coleman, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C.M., Senior Judge.

Coleman was convicted of possession of a firearm by a convicted felon. His appeal to this court was affirmed. Coleman v. State, 39 So.3d 333 (Fla. 5th DCA 2010). Coleman now argues on his motion for post-conviction relief that his counsel was ineffective in that: (1) he failed to depose and call certain witnesses, (2) he improperly advised defendant that if he testified at trial, the State could inquire as to the details of his prior convictions so he did not testify, (3) he failed to advise defendant as to the maximum sentence he was facing so he rejected a more favorable plea offer, (4) he improperly “opened the door” so that a baggie of cannabis was admitted into evidence, (5) he improperly argued the motion for judgment of acquittal, and (6) he failed to move for mistrial based on misleading jury instructions.

The court summarily denied grounds (5) and (6) and ordered a hearing on the remaining points. Subsequently, however, the court also summarily denied ground (4). First, the summary dispositions:

(4) The court found, based on appropriate testimony (included in the record), that defense counsel’s use of the cannabis baggie was strategic and therefore not ineffective representation.

(5) Defense counsel did move for judgment of acquittal based on insufficient evidence that defendant possessed the firearm. The motion was denied. This issue was raised and rejected on appeal.

(6) The jury instructions were the standard instructions approved for the offense. See Thompson v. State, 759 So.2d 650 (Fla.2000).

Concerning the remaining issues, an evidentiary hearing was held and defense counsel and appellant testified. Although their testimony was in conflict, the record justifies the court’s determination that the appropriate witnesses were called, appellant was not misadvised concerning the appropriate State inquiry into his criminal record if he testified, and appellant was properly advised as to the maximum penalty should he wish to accept a plea offer.

AFFIRMED.

ORFINGER, C.J. and GRIFFIN, J., concur.


text:
    Gordon AGENOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4904.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Rehearing Denied April 3, 2013.
    Gordon Agenor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is dismissed as moot, without prejudice to petitioner pursuing his claim in the pending direct appeal of his conviction and sentence.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Stephen WHITTIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4895.
    District Court of Appeal of Florida, First District.
    March 5, 2013.
    Stephen Whittier, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012).

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Cecil MATHEWS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-0103.
    District Court of Appeal of Florida, First District.
    March 5, 2013.

      Cecil Mathews, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

BENTON, C.J., WOLF and SWANSON, JJ., concur.