source: Caselaw Access Project

author: CANADY, J. PARIENTE, J.,

license: Public Domain

text:
    Richard MASONE, Petitioner, v. CITY OF AVENTURA, Respondent; City of Orlando, Florida, Petitioner, v. Michael Udowychenko, etc., et al., Respondents.
    Nos. SC12-1471, SC12-644.
    Supreme Court of Florida.
    June 12, 2014.
    Rehearing Denied Sept. 8, 2014.

      Bret Lusskin of The Ticket Cricket, Hallandale, FL; Bard D. Rockenbach and Andrew A. Harris of Burlington & Rock-enbach, P.A., West Palm Beach, FL; David B. King, Thomas Zehnder, Vincent Falcone, III of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, FL, for Petitioners.
    Edward G. Guedes, Michael S. Popok, and John J. Quick of Weiss Serota Helf-man Pastoriza Cole & Boniske, P.L., Coral Gables, FL; and Jason D. Weisser and David Michael Kerner of Schuler Halvor-son Weisser & Zoeller, P.A., West Palm Beach, FL, for Respondents.
    Alan Rosenthal and Jack R. Reiter of Carlton Fields, P.A., Miami, FL; Samuel J. Salario, Jr. and Joseph Hagedorn Lang, Jr. of Carlton Fields, P.A., Tampa, FL; Nancy G. Linnan of Carlton Fields, P.A., Tallahassee, FL; and Harry “Chip” Morrison, Jr. of the Florida League of Cities, Inc., Tallahassee, FL, for Amici Curiae Florida League of Cities, Inc., American Traffic Solutions, Inc., and Xerox State & Local Solutions, Inc.
    Erin J. O’Leary, Usher L. Brown, and Anthony Garganese of Brown, Garganese, Weiss & D’Agresta, P.A., Orlando, FL, for Amici Curiae City of Casselberry, Florida, City of Palm Bay, FL, and City of Palm Coast, Florida.
   CANADY, J.

In these consolidated cases, we consider whether municipal ordinances imposing penalties for red light violations detected by devices using cameras were invalid because they were preempted by state law. At issue in these cases is the operation of ordinances prior to July 1, 2010, the effective date of the Mark Wandall Traffic Safety Act, ch.2010-80, Laws of Fla., which authorized — subject to statutory requirements — the use of red light traffic infraction detectors by local governments and the Florida Department of Highway Safety and Motor Vehicles.

In City of Aventura v. Masone, 89 So.3d 233, 234 (Fla. 3d DCA 2011), the Third District Court of Appeal held that Aventu-ra’s ordinance was a valid exercise of municipal power under section 316.008(l)(w), Florida Statutes (2008), which specifically grants “local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power,” authority for “[rjegulat-ing, restricting, or monitoring traffic by security devices or personnel on public streets and highways.” The Fifth District Court of Appeal reached a contrary conclusion in City of Orlando v. Udowychenko, 98 So.3d 589, 591 (Fla. 5th DCA 2012), holding that Orlando’s ordinance was invalid because it was in conflict with state law and was both expressly and impliedly preempted by state law. The Fifth District ruled that the imposition of penalties other than those specifically provided for by state statute “for running a red light in a particular municipality does not fall within the specific authority of section 316.008(l)(w)[,]” Florida Statutes (2008), which the court concluded “appears to contemplate only unique situations for which a statewide law is lacking or is inadequate.” Id. at 599. The Fifth District certified conflict with the decision in City of Aven-tura. Id.

The losing party in each of these cases sought review, and we determined to exercise our jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const. For the reasons we explain, we agree with the Fifth District and conclude that the ordinances are not valid.

I.

In arguing that the respective ordinances are valid, both Aventura and Orlando rely on the specific power provided to local authorities by section 316.008(l)(w) for “[rjegulating, restricting, or monitoring traffic by security devices.” Udowychenko and Masone, who challenged the validity of the ordinances in order to set aside fines imposed under the ordinances, contend that section 316.008(l)(w) does not authorize the municipal enforcement regime adopted by the ordinances, an enforcement regime that they contend is at odds in multiple ways with the enforcement regime adopted by state law.

As is clear from the arguments presented by the parties, the crux of these consolidated cases is whether section 316.008(l)(w) provides authority for the ordinances. In explaining our conclusion that the ordinances are not justified by this statutory provision, we will first briefly discuss the general relationship between state law and municipal ordinances. We will then review the statutory framework — found in chapters 316 and 318, Florida Statutes — relating to traffic control and the disposition of traffic infractions, as well as the basic regime established by the ordinances.

II.

A.

“In Florida, a municipality is given broad authority to enact ordinances under its municipal home rulé powers.” City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006). But municipal ordinances must yield to state statutes. Article VIII, section 2(b), Florida Constitution, specifically recognizes the power of municipalities “to conduct municipal government, perform municipal functions and render municipal services,” and it specifically recognizes that municipalities “may exercise any power for municipal purposes except as otherwise provided by law.” (Emphasis added.) See also § 166.021, Fla. Stat. (2008) (relating to the exercise of municipal powers). “The critical phrase of article VIII, section 2(b) — ‘except as otherwise provided by law — establishes the constitutional superiority of the Legislature’s power over municipal power.” City of Palm Bay v. Wells Fargo Bank, N.A., 114 So.3d 924, 928 (Fla.2013).

Preemption of local ordinances by state law may, of course, be accomplished by express preemption — that is, by a statutory provision stating that a particular subject is preempted by state law or that local ordinances on a particular subject are precluded. Preemption by state law, however, “need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject.” Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989). “Implied preemption is found where the state legislative scheme of regulation is pervasive and the local legislation would present the danger of conflict with that pervasive regulatory scheme.” Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla.2010). Even “where concurrent state and municipal regulation is permitted because the state has not preemptively occupied a regulatory field, ‘a municipality’s concurrent legislation must not conflict with state law.’ ” City of Palm Bay, 114 So.3d at 928 (quoting Thomas v. State, 614 So.2d 468, 470 (Fla.1993)). “Such ‘conflict preemption’ comes into play “where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute.’ ” Id. (quoting 5 McQuillin Mun. Corp. § 15:16 (3d ed. 2012)).

B.

Chapter 316, Florida Statutes (2008), the Florida Uniform Traffic Control Law, contains a detailed code regulating traffic throughout the state. Chapter 316 contains two broad preemption provisions. The first provision, which both states a legislative purpose of uniformity and recognizes the need for municipalities to “control certain traffic movement or parking in their respective jurisdictions,” is found in section 316.002:

It is the legislative intent in the adoption of this chapter to make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities. The Legislature recognizes that there are conditions which require municipalities to pass certain other traffic ordinances in regulation of municipal traffic that are not required to regulate the movement of traffic outside of such municipalities. Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions. This section shall be supplemental to the other laws or ordinances of this chapter and not in conflict therewith. It is unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.

(Emphasis added.)

The second preemption provision is found in section 316.007, which provides in pertinent part: “The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.” (Emphasis added.)

As indicated in section 316.002, section 316.008 contains an enumeration of specific powers that local authorities may exercise to control traffic movement or parking in their respective jurisdictions “within the reasonable exercise of the police power.” Section 316.008(l)(w) — the crucial provision at issue here — provides that local authorities are not precluded from “[rjegu-lating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties and providing for the construction and maintenance of such streets and highways.” (Emphasis added.)

Chapter 316, of course, regulates red light violations. Section 316.075 contains detailed rules governing the conduct of drivers and pedestrians relating to traffic control signal devices. Among these rules is the general requirement that “[vjehicu-lar traffic facing a steady red signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until a green indication is shown.” § 316.075(l)(c)l., Fla. Stat. (2008). Any violation of the rules in section 316.075 relating to traffic control signal devices “is a noncriminal traffic infraction, punishable pursuant to chapter 318.” § 316.075(4), Fla. Stat. (2008).

Chapter 318, Florida Statutes (2008), the Florida Uniform Disposition of Traffic Infractions Act, states that its purpose is to facilitate “the implementation of a more uniform and expeditious system for the disposition of traffic infractions.” § 318.12, Fla. Stat. (2008). The chapter sets forth detailed requirements governing the handling of traffic infractions, including rules governing the proceedings for the adjudication of infractions, section 318.14; the amount of penalties, section 318.18; and the disposition of civil penalties, section 318.21. Chapter 318 also contains a preemption provision regarding fines and other charges, which is set forth in section 318.121: “Notwithstanding any general or special law, or municipal or county ordinance, additional fees, fines, surcharges, or costs other than the court costs and surcharges assessed under s. 318.18(11), (13), and (18) may not be added to the civil traffic penalties assessed in this chapter.” (Emphasis added.)

C.

The Fifth District described Orlando’s ordinance as follows: “According to the ordinance, if a vehicle is videotaped running a red light, an infraction is issued to the owner, wherein the owner is required to pay the fine for the infraction or file an appeal. If timely appealed, a hearing is set.” City of Orlando, 98 So.3d at 591. Infractions are issued to a vehicle’s owner “[u]pon a code enforcement officer viewing the video and confirming ownership of the vehicle.” Id. The process under Aventura’s ordinance is not materially different. See City of Aventura, 89 So.3d at 238-39. Each of the ordinances creates a municipal code enforcement system for the disposition of red light violations that is entirely separate from the enforcement system established under chapters 316 and 318. See City of Orlando, 98 So.3d at 592-93; City of Aventura, 89 So.3d at 240.

III.

Chapter 316 could not be clearer in providing that local ordinances on “a matter covered by” the chapter are preempted unless an ordinance is “expressly authorized” by the statute. § 316.007, Fla. Stat. (2008). It is undisputed that the Orlando and Aventura ordinances — in providing for the punishment of red light violations— relate to matters “covered by” chapter 316. The ordinances consequently can be sustained as a valid exercise of municipal authority only if they are — as the express preemption provision of section 316.007 requires — expressly authorized by statute. Orlando and Aventura only point to section 316.008(l)(w) as the source of such an express authorization. That provision, however, is not equal to the task.

The Orlando and Aventura ordinances establish a regime for the punishment of red light violations that is distinct from the statutory regime for the punishment of such violations. Section 316.008(l)(w)’s grant of authority for “[r]egulating, restricting, or monitoring traffic by security devices” does not, however, explicitly provide authority for local governments to adopt measures for the punishment of conduct that is already subject to punishment under the framework established by chapters 316 and 318. As broadly described in section 316.002, the powers granted to municipalities by section 316.008 are powers by which “municipalities may control certain traffic movement or parking in their respective jurisdictions.” “Control[ling] certain traffic movement” through “[rjegulating, restricting, or monitoring traffic by security devices” does not specifically encompass undertaking enforcement measures — that is, imposing punishment — outside the framework established by chapters 316 and 318 for conduct that is proscribed by chapter 316 and subject to punishment under chapter 318. Certain provisions of section 316.008 do grant express authority to local authorities to adopt additional measures with respect to the punishment of violations. See §§ 316.008(4), 316.008(5), Fla. Stat. (2008). But section 316.008(l)(w) is silent with respect to the punishment of violations.

Contrary to the dissent, our decision in Thomas v. State, 614 So.2d 468 (Fla.1993), does not support the reliance of Orlando and Aventura on section 316.008(l)(w) to escape the sweep of the express preemption provisions of chapter 316 and chapter 318. Thomas dealt with a local ordinance adopted under the authority granted to local governments by section 316.008(l)(h) for “[rjegulating the operation of bicycles.” Id. at 469-70. The ordinance, which imposed criminal penalties for violations, required bicycles to be equipped with a bell or gong. Id. at 469. No similar requirement regulating bicycles was contained in chapter 316. The ordinance at issue in Thomas — unlike the ordinances at issue here — regulated specific conduct that was not subject to statutory regulation. Thomas thus dealt with an ordinance on specific matters not “covered by” chapter 316. § 316.007, Fla. Stat.

The question at issue in Thomas was the validity of a search incident to an arrest for a violation of the ordinance. In determining that a custodial arrest for an ordinance violation was invalid, the Court held that the criminal penalty imposed by the ordinance was “in conflict with state law” because the Legislature had “determined that traffic violations, including those relating to bicycles, should be punished by civil penalties.” Id. at 470. Beyond its conclusion “that the city may not punish by criminal penalties conduct that the state has decriminalized,” the Court declined to address “what types of penalties [the Legislature] intended to allow municipalities to impose for municipal ordinance violations.” Id. at 473. Thomas does contain the statement that “[w]hile a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state.” Id. at 470. But that statement is in the context of the Court’s general discussion of municipal authority to “legislate concurrently in areas that are not expressly preempted by the State.” Id. It has no application where express preemption is operative. The reasoning of Thomas, therefore, does not support the conclusion that section 316.008(1) grants local governments the authority to establish code enforcement regimes for the punishment of specific conduct that is already proscribed and subject to punishment under state law.

The prohibition and punishment of red light violations are matters “covered by” chapter 316, and section 316.008(l)(w) does not “expressly authorize[ ]” local ordinances on those matters. § 316.007, Fla. Stat. (2008). The Orlando and Aventura ordinances therefore are expressly preempted by state law. Nothing in section 316.008(l)(w) provides that municipalities are granted the authority to enact an enforcement regime different from the enforcement regime applicable under the provision of section 316.075(4) that red light violations are “punishable pursuant to chapter 318.” And nothing in section 316.008(l)(w) creates an exception from the express preemption imposed by section 318.121 of any fines other than the penalties imposed as provided in chapter 318.

IY.

The Orlando and Aventura ordinances are invalid because • they are expressly preempted by state law. We therefore quash the decision of the Third District in City of Aventura and approve the decision of the Fifth District in City of Orlando.

It is so ordered.

POLSTON, C.J., and LEWIS, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

dissenting.

I dissent because I conclude that, prior to 2010, the Legislature did not expressly preempt the use of red light cameras to the state. In fact, through the Florida Uniform Traffic Control Law, the Legislature actually authorized municipalities to enact municipal ordinances utilizing red light cameras to regulate traffic -within their municipal boundaries. Further, these ordinances were not impliedly preempted by, or in conflict with, state law, as the ordinances did not affect the continued enforcement of the Florida Uniform Traffic Control Law and did not allow for the imposition of a municipal citation when a motorist received a red light infraction citation pursuant to state law.

Not until 2010 did the Legislature make clear through an express statement in the Mark Wandall Traffic Safety Act that “Regulation of the use of cameras for enforcing the provisions of this chapter is expressly preempted to the state.” Mark Wandall Traffic Safety Act, ch.2010-80, § 3, Laws of Fla. This new law authorized municipal governments to use cameras to enforce red light violations under the Florida Uniform Traffic Control Law and set forth a uniform system of procedures and fines for municipalities to follow when utilizing these cameras. See id.

Prior to the passage of that Act, however, the Legislature had already granted municipalities such as Orlando and Aven-tura the power to enact red light ordinances pursuant to the powers expressly granted to municipal governments through section 316.008, Florida Statutes (2008), entitled “Powers of local authorities.” These powers, which included the authority to “[r]egulat[e], restrict[ ], or monitor[ ] traffic by security devices or personnel on public streets and highways,” § 316.008(l)(w), Fla. Stat. (2008), clearly authorized municipal governments to enact the local legislation at issue here.

The majority’s holding unnecessarily broadens this Court’s interpretation of legislative preemption, while, at the same time, limiting the home rule authority granted to municipal governments by the Florida Constitution. I would quash the decision of the Fifth District Court of Appeal in City of Orlando v. Udowychenko, 98 So.3d 589 (Fla. 5th DCA 2012), adopt the well-reasoned opinion of the Third District Court of Appeal in City of Aventura v. Masone, 89 So.3d 233 (Fla. 3d DCA 2011), and hold that the red light camera ordinances enacted by the cities of Orlando and Aventura prior to 2010 were proper exercises of their municipal home rule authority.

The subject of this decision is a high profile and controversial one — the use of red light cameras by municipal governments to detect and sanction drivers that run red lights within their municipal boundaries as a complementary law enforcement tool to the mechanisms set forth in the Florida Uniform Traffic Control Law. Although this subject is of interest to many Floridians, the wisdom and public policy questions regarding the use of red light cameras are not before this Court, nor are any potential constitutional issues that may be implicated through the use of these cameras. Instead, the only issue in this case is the purely legal question of whether municipalities were authorized to enact red light camera ordinances, which imposed municipal fines on drivers for conduct already covered by the Florida Uniform Traffic Control Law, prior to 2010, pursuant to their home rule authority.

The Florida Uniform Traffic Control Law provides a statutory framework that generally prohibits municipal governments from enacting local ordinances concerning topics already addressed by the Florida Uniform Traffic Control Law. However, the Florida Uniform Traffic Control Law also expressly authorizes municipalities to legislate within certain enumerated areas. In fact, as recognized by the majority,' section 316.002, Florida Statutes, explicitly states that

[t]he Legislature recognizes that there are conditions which require municipalities to pass certain other traffic ordinances in regulation of municipal traffic that are not required to regulate the movement of traffic outside of such municipalities. Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions: This section shall be supplemental to the other laws or ordinances of this chapter and not in conflict therewith.

§ 316.002, Fla. Stat. (2008).

Included within section 316.008 is subsection (l)(w), which grants municipal governments the power to “[r]egulat[e], restrict[], or monitor[] traffic by security devices or personnel on public streets and highways, whether by public or private parties and provid[e] for the construction and maintenance of such streets and highways.” § 316.008(l)(w), Fla. Stat. While the majority concludes that the municipal ordinances at issue here are not expressly authorized by this subsection, my review of chapter 316 and our precedent does not support the majority’s interpretation. Rather than attempt to harmonize the ordinances in a way that does not conflict with the statutory scheme, the majority reads this authorizing section too narrowly-

When sections 316.002 and 316.008 are examined together, “the plain text of the Uniform Traffic Control Law expressly confers authority to a municipal government to regulate traffic within its municipal boundaries as a reasonable exercise of its police power where such regulation does not conflict, but supplements the laws found therein.” City of Aventura, 89 So.3d at 236. In my view, the use of red light cameras by municipalities to enforce red light infractions within their municipal boundaries is a regulation that falls squarely within the authority granted to municipal governments through section 316.008(l)(w). As articulated by the Third District, “[t]he City, via image capture technologies, monitors intersections it has determined to be of particular concern for traffic accidents, and regulates and restricts red light infractions at those intersections through the issuance of its notices of violation.” Id. at 239.

I agree with the reasoning of the Third District, which explained that “[s]ection 316.008 allows the local authorities to use their home rule powers to effectuate certain restrictions and regulations but does not specify the means or the schemes for implementing such restrictions or regulations.” Id. at 240. By creating a system through which to impose penalties on drivers for running red lights, “the City has simply developed a procedure for carrying out its power to regulate, restrict or monitor traffic.” Id.

Conversely, the majority concludes that section 316.008(l)(w) does not expressly authorize the municipal ordinances in this case because “ ‘[r]egulating, restricting, or monitoring traffic by security devices’ does not ... explicitly provide authority for local governments to adopt measures for the punishment of conduct that is already subject to punishment under the framework established by chapters 316 and 318.” Majority op. at 497 (quoting § 316.008(l)(w), Fla. Stat.). However, contrary to the majority’s interpretation, this Court has previously interpreted the word “regulate,” as found within the same section of the Florida Uniform Traffic Control Law, to encompass the power to impose punishment for the violation of municipal regulations within an area already addressed by the state.

In Thomas v. State, 614 So.2d 468, 470 (Fla.1993), this Court reviewed a municipal ordinance enacted pursuant to section 316.008(l)(h), which granted the municipality the power to “[r]egulat[e] the operation of bicycles,” an area already covered by chapter 316. § 316.008(l)(h), Fla. Stat. (1989). Despite the fact that the Florida Uniform Traffic Control Law already regulated the operation of bicycles, this Court concluded that, pursuant to the authority granted in section 316.008(l)(h), a municipal government had the power to enact an ordinance that imposed noncriminal penalties for violations of conduct within an area already regulated by the Florida Uniform Traffic Control Law, as long as the penalties imposed by the municipal ordinance did “not exceed the penalty imposed by the state.” Thomas, 614 So.2d at 470. By concluding in Thomas that municipal governments had the power to impose penalties pursuant to section 316.008(l)(h), this Court interpreted the word “regulate” in the Florida Uniform Traffic Control Law to encompass the power to impose fines for violations of municipal regulations within an area covered by chapter 316.

Based on an overly narrow reading of Thomas, the majority attempts to distinguish Thomas from this case on the basis that there was no existing state statute regulating the precise conduct addressed by the municipal ordinance — as is the case here. However, in Thomas, the absence of specific state regulation was inconsequential. In determining that the municipal government could impose non-criminal penalties for violations of conduct within an area covered by chapter 316, the Court did not rely on the absence of state regulation, but looked solely to whether the regulated conduct fell within one of the areas enumerated in section 316.008, within which municipalities are expressly authorized to act. See id. Here, just as in Thomas, the regulation undertaken by the municipalities falls within an area enumerated in section 316.008. Id. Therefore, just as in Thomas, the municipal governments had the power to impose non-criminal penalties for violations of these regulations.

Although the majority states that its decision is premised solely upon express preemption, its reliance upon the fact that the municipalities created enforcement regimes different thán those provided by state law seems to implicate conflict preemption — essentially concluding that the ordinances are invalid because they conflict with section 316.075(4), Florida Statutes, which states that red light violations are “punishable pursuant to chapter 318,” § 316.075(4), Fla.' Stat. (2008), as well as section 318.121, Florida Statutes, which states that “[notwithstanding any general or special law, or municipal or county ordinance, additional fees, fines, surcharges, or costs other than the court costs and surcharges assessed under s. 318.18(11), (13), and (18) may not be added to the civil traffic penalties assessed in this chapter.” § 318.121, Fla. Stat. (2008). In addressing conflict preemption, the majority states that this concept “comes into play “where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute.’ ” Majority op. at 495 (quoting City of Palm Bay v. Wells Fargo Bank, N.A., 114 So.3d 924, 928 (Fla.2013)).

This standard, which originates from McQuillin’s The Law of Municipal Corporations, a general treatise on the law of municipalities, is broader than the conflict standard previously followed by this Court. See 5 McQuillin Mun. Corp. § 15:16 (3d ed. 2012). As articulated by this Court in Sarasota Alliance For Fair Elections, Inc. v. Browning, the “test of conflict between a local government enactment and state law is ‘whether one must -violate one provision in order to comply with the other. Putting it another way, a conflict exists when two legislative enactments cannot coexist.’ ” 28 So.3d 880, 888 (Fla.2010) (quoting Laborers’ Int’l Union of N. Am., Local 478 v. Burroughs, 541 So.2d 1160, 1161 (Fla.1989)).

Nonetheless, even applying the broader standard for conflict preemption recently adopted by this Court in Palm Bay, a decision from which I also dissented, the municipal ordinances in this case still do not conflict with section 316.075(4), which states that red light violations are “punishable pursuant to chapter 318.” § 316.075(4), Fla. Stat. The plain text of the Florida Uniform Traffic Control Law expressly confers authority to a municipal government to regulate traffic within its municipal boundaries where such regulation “does not conflict, but supplements the laws found therein.” City of Aventura, 89 So.3d at 236; see § 316.002, Fla. Stat. (“Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions. This section shall be supplemental to the other laws or ordinances of this chapter and not in conflict therewith.”). Here, the enforcement mechanisms codified through the city ordinances are completely consistent with and supplemental to those found within the Florida Uniform Traffic Control Law.

While I do not dispute that those red light violations prosecuted under the Florida Uniform Traffic Control Law must be punished “pursuant to chapter 818,”' as required by section 316.075, red light violations punished through the municipalities’ code enforcement mechanisms are not subject to this same requirement. That is because these municipal ordinances exist independently of the Florida Uniform Traffic Control Law and represent supplemental enforcement mechanisms that have been expressly authorized by the Florida Uniform Traffic Control Law pursuant to section 316.008(l)(w). Simply because the ordinances regulate conduct that is also covered by the Florida Uniform Traffic Control Law does not automatically mean that the municipal ordinances “irreconcilably conflict[ ] with or stand[ ] as an obstacle to the execution of the full purposes of the statute.” Majority op. at 495 (quoting City of Palm Bay, 114 So.3d at 928).

In fact, it is clear that the two enforcement mechanisms can exist concurrently, as enforcing traffic violations under the municipal ordinances “does not prohibit law enforcement officers from issuing a citation in accordance with the Uniform Traffic Control Law,” or in any way stand as an obstacle to the Florida Uniform Traffic Control Law. City of Aventura, 89 So.3d at 238. Indeed, as stated by the Third District, the “[ordinance supplements law enforcement personnel in the enforcement of red light infractions, by issuing a notice of violation under the City’s Code of Ordinances, deemed a noncriminal, non-moving violation, for which a civil penalty shall be assessed.” Id.

Additionally, it is equally apparent that municipal citations cannot be issued pursuant to the municipal ordinances for red light infractions for which a motorist receives a citation pursuant to the Florida Uniform Traffic Control Law. For example, the City of Aventura’s ordinance specifically states that the ordinance does not apply to emergency vehicles or vehicles involved in collisions, and then also states “nor shall a notice be issued in any case where the operator of the vehicle was issued a citation for violating the state statute regarding the failure to stop at a red light indication for the same event or incident.” Aventura, Fla., City Code, ch. 48, art. 3, § 48-38 (2007).

Thus, each regulatory system represents an independent mechanism to prevent red light violations, neither of which is implicated when the other is utilized. Because this Court has previously stated that “a conflict exists when two legislative enactments cannot co-exist,” Browning, 28 So.3d at 888 (quoting Burroughs, 541 So.2d at 1161), it is clear, in my opinion, that these two legislative enactments do not impermissibly conflict, as the municipal ordinances do not “supersede, infringe, curtail or impinge upon state or county laws” and are able to coexist alongside the Florida Uniform Traffic Control Law. City of Aventura, 89 So.3d at 238 (quoting Aventura, Fla., City Code, ch. 48, art. 3, § 48-26 (2007)).

Further, the municipal ordinances- also do not conflict with section 318.121, which states ' that “additional fees, fines, surcharges, or costs ... may not be added to the civil traffic penalties assessed in this chapter.” Section 318.121 expressly preempts municipalities from undertaking very specific conduct — adding additional fines or costs on top of those assessed under chapter 318. For example, pursuant to section 318.121, a municipal government could not authorize a law enforcement officer to impose an additional municipal fine when issuing a traffic citation pursuant to the Florida Uniform Traffic Control Law for the same infraction. Similarly, a municipal government could not enact a local ordinance that imposes additional court costs or fees on top of those that are allowed under chapter B18 when adjudicating traffic citations issued pursuant to the Florida Uniform Traffic Control Law.

In this case, the municipal ordinances do not “add[] to the civil traffic penalties assessed” pursuant to chapter 318. § 318.121, Fla. Stat. Instead, the ordinances impose different fines, for the violation of separate municipal ordinances that exist alongside the Florida Uniform Traffic Control Law. Accordingly, the fines imposed by the municipal ordinances are not “additional” to the fines found in chapter 318, and section 318.121 is not in conflict with municipal ordinances that assess penalties independent of those found within chapter 318.

Finally, the majority has, in my view, failed to take into account the breadth of the home rule authority granted to municipalities by both the Florida Constitution and by statute. In 1973, in order to clarify the breadth of the authority granted to municipalities in Florida, the Legislature enacted the Municipal Home Rule Powers Act, which was codified to “secure for municipalities the broad exercise of home rule powers granted by the constitution” and to “remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited.” § 166.021(4), Fla. Stat. (2008). This Act made clear that the Florida Legislature intended for municipal governments to have the power to enact local legislation on the same subjects and to the same extent as the state government, except in narrow circumstances where the Legislature has preempted a specific area of law to the state or where the local law conflicts with state law.

Allowing municipalities to enact local traffic ordinances where they are “in a unique position to identify dangerous intersections within [their] boundaries and implement additional safeguards to prevent accidents at such intersections,” is consistent with the purposes underlying Florida’s decision to grant municipal governments extensive powers of self-governance. City of Aventura, 89 So.3d at 237. Therefore, I cannot agree with the majority that section 316.008(l)(w), which expressly authorizes municipalities to “[r]eg-ulat[e], restrict[ ], or monitor[ ] traffic by security devices or personnel on public streets and highways, whether by public or private parties,” in a manner consistent with their broad home rule authority, did not expressly authorize municipal governments to use red light cameras to enforce red light infractions within their municipal boundaries, prior to the enactment of the Mark Wandall Traffic Safety Act in 2010.

For all these reasons, I respectfully dissent from the majority opinion. I would, instead, adopt the opinion of the Third District in City of Aventura, 89 So.3d 233, and conclude that the ordinances enacted by the cities of Orlando and Aventura were proper exercises of the municipal governments’ home rule authority.

QUINCE, J., concurs.

      . Despite this subsequent express legislative statement of preemption, the issue in this case, involving ordinances passed prior to 2010, is by no means moot, particularly given the significant amounts of money that were collected by the cities of Orlando and Aventu-ra pursuant to their then-existing municipal ordinances — which the majority has decided must now be returned to the individuals who violated these ordinances.


author: PER CURIAM.

text:
    Derrick McLEAN, Appellant, v. STATE of Florida, Appellee. Derrick McLean, Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC13-632, SC13-1788.
    Supreme Court of Florida.
    June 19, 2014.
    Rehearing Denied Sept. 4, 2014.

      Mark S. Gruber, Capital Collateral Regional Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL and Scott Andrew Browne, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Derrick McLean appeals an order of the circuit court denying his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. For the reasons that follow, we affirm the denial of his postconviction motion and deny his habeas petition.

I. FACTS AND PROCEDURAL HISTORY

Derrick McLean was convicted of the 2004 first-degree murder of Jahvon Thompson and was sentenced to death. On direct appeal, we described the facts as follows:

The evidence at trial revealed that on November 24, 2004, McLean, along with his cousin, Maurice Lewin, and acquaintance, James Jaggon, drove to the apartment where the victim, fifteen-year-old Jahvon Thompson, lived with his father in Orlando. McLean, Lewin, and Jag-gon planned that morning to rob the apartment of marijuana or money or both. On the way to the apartment, the three men agreed that McLean and Jag-gon would commit the robbery and Lew-in would wait in the car. Although all three men had guns, there was no discussion of shooting or killing anyone during the commission of the robbery. McLean and Jaggon, each armed with a gun, knocked on the victim’s door and, when the victim opened the door, rushed into the apartment. McLean was wearing a black baseball cap and batting gloves, and Jaggon was wearing a ski mask. Lewin remained nearby in the car, his gold Buick, and maintained an open line between his Samsung cell phone and McLean’s Nokia cell phone.
Meanwhile, the victim’s next-door neighbor, Theothlus Lewis, heard loud noises he thought might be music coming from Thompson’s apartment. Lewis told his girlfriend that he was going over to Thompson’s apartment to ask him to turn down the music. When Lewis knocked on the door, McLean opened the door, brandished a gun, and motioned for Lewis to enter the apartment. When Lewis entered the living room area, McLean asked him “where was the money at,” and Lewis turned his pockets inside-out, revealing he had nothing.
Then, Lewis saw Jahvon Thompson and Jaggon come from the hallway. Both Thompson and Lewis were ordered to sit on the couch. While McLean searched the apartment, Jaggon held Lewis and Thompson at gunpoint. At some point, McLean grabbed a blue pillow sham from a shelf and ordered Jag-gon to leave the apartment, telling him to shoot the female next door if he saw her. Lewis testified that he sensed danger from the look in McLean’s eyes, so he dove to the floor, crawling toward the back of the apartment. McLean shot at Lewis, hitting him once in the back, and then fired several more shots at Thompson. The medical examiner found that each of the three gunshots to Thompson’s chest would have been fatal. After waiting for McLean to leave, Lewis returned to his apartment, where his girlfriend and her daughter had already called 911.
Meanwhile, Lewin and Jaggon drove off, McLean left the scene on foot, and the three men met up at a nearby restaurant. McLean, still carrying the blue pillow sham from the apartment, got into the car with Lewin and Jaggon, and Lewin pulled the car out onto the road. A police officer, who was driving an unmarked car in the vicinity and had been notified of the shooting, saw the gold Buick pass by, and he activated his lights and initiated pursuit. Lewin sped up and attempted to elude the officer but soon crashed into the marked patrol car of a sheriffs deputy who was investigating an unrelated incident nearby. The deputy, who was in his marked car, saw the Buick coming at him and ran from his vehicle in order to get out of the way. Lewin’s car struck the marked car, sending it into the deputy, who was struck in the hip and thrown fifteen to twenty feet. The deputy saw Jaggon sitting in the front passenger seat of the Buick. He also saw McLean running from the Buick.
Additional law enforcement arrived on the scene of the crash. Officers who searched the area discovered a batting glove, black baseball cap, Nokia cell phone, shirt, and handgun discarded in the woods adjacent to the crash. A blue pillow sham containing marijuana was found in the backseat of Lewin’s Buick. McLean’s DNA was later detected on the shirt, pillow sham, and batting glove. The Nokia cell phone discovered in the woods near the crash was determined to be registered to McLean’s girlfriend. Cell phone records revealed calls between this Nokia phone and Lewin’s phone on the day of the crime. The Nokia phone also contained images of a semiautomatic firearm.
At trial, Lewin and Jaggon testified that the weapon McLean carried during the crimes was a .380. Eight shell casings found in the victim’s apartment were consistent with having been fired from a .380 Hi-Point semiautomatic. About six months after the crime, law enforcement found a .380 Hi-Point semiautomatic in the woods about fifteen feet from the road where the crash had occurred. This handgun appeared to be the weapon in the images found on McLean’s cell phone.
The day after the crimes, Lewis worked with a police sketch artist to develop a composite of his shooter. Over the next few days, the Orlando Police Department showed Lewis three photo lineups — none including McLean, whose identity they had not yet learned — but Lewis did not recognize any of the individuals as the shooter. On December 1, Jaggon’s father told the police that a third man, who was Lewin’s cousin and named Derrick, was involved in the crime. A crime line tip also implicated a person named Derrick and provided information about where he lived, and this information led police to identify McLean as a suspect in the crime.
On December 9, police showed Lewis another photo lineup — this one containing McLean — and Lewis identified Me-Lean as the shooter. Lewis said he was 90% certain about his identification but would be absolutely sure if he saw the suspect in person. Police then took McLean into custody for violation of probation, questioned him briefly about the murder, and arranged a live lineup of six individuals from which Lewis identified McLean as the shooter. Lewis also made an in-court identification of McLean as the man who shot him.
At trial, Jaggon and Lewin testified against McLean as part of their plea agreements for charges related to the events of November 24, 2004. Jaggon and Lewin gave consistent accounts of McLean’s participation in the crime. Lewin also testified that when he asked McLean why he fired shots during the robbery, McLean replied that he “wanted to feel like what it feels like to shoot and kill somebody.”
During the penalty phase, the defense offered expert testimony regarding McLean’s psychological, mental, and emotional health as well as testimony from McLean’s older brother. One defense psychologist diagnosed McLean with an organic brain impairment, although the psychologist had no medical records or diagnostic studies to confirm any brain injury. Another defense psychologist testified that McLean had some history of substance abuse and functioned at the emotional level of an adolescent. Both psychologists diagnosed McLean with borderline personality disorder but found that he was of average intelligence. McLean’s brother testified to a history of some family dysfunction.

McLean v. State, 29 So.3d 1045, 1047-49 (Fla.), cert. denied, — U.S. —, 131 S.Ct. 153, 178 L.Ed.2d 92 (2010) (footnotes omitted).

Following the penalty phase, the jury voted nine to three in favor of the death penalty, and the trial court sentenced McLean to death. Id. at 1049. We affirmed McLean’s conviction and death sentence on direct appeal. Id. at 1047.

In 2011, McLean filed a motion for post-conviction relief asserting eleven claims. The circuit court granted an evidentiary hearing on some of the claims, while summarily denying others. Following the evi-dentiary hearing, the circuit court entered an order- denying relief on all claims. McLean now appeals the denial of his post-conviction motion and petitions this Court for a writ of habeas corpus.

II. POSTCONVICTION MOTION

A. Ineffective Assistance of Counsel During the Guilt Phase

McLean argues that his trial counsel provided ineffective assistance during the guilt phase of his trial by failing to call an expert in eyewitness identification to challenge Lewis’s identification of McLean. Because McLean has failed to establish the requirements necessary for relief, we affirm the circuit court’s denial.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court explained that for ineffective assistance of counsel claims to be successful, two factors must be established:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

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

The deficiency prong of Strickland “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. There is a strong presumption that counsel’s performance was not ineffective, and it is up to the defendant to present evidence to overcome this presumption. Id. at 689. Moreover, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.

In order to establish the prejudice prong of Strickland, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Franqui v. State, 59 So.3d 82, 95 (Fla.2011) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

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

In this case, McLean has failed to demonstrate that trial counsel’s performance was deficient. At the evidentiary hearing, McLean’s trial counsel testified that she discussed issues regarding Lewis’s identification of McLean with co-counsel and attempted to have the lineup identifications suppressed, but that given the other independent evidence identifying McLean, including, his likeness to the police sketch, the DNA evidence, and the testimony of his co-defendants as to his role in the crime, it would not have made sense to bring in an expert on eyewitness identification. McLean has failed to demonstrate how counsel’s actions were not reasonable given the facts of the case and counsel’s perspective at the time. See Oechicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (“[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”).

Additionally, McLean has also failed to establish prejudice. At trial, the defense focused on issues surrounding Lewis’s identification of McLean as the shooter, cross-examining Lewis about the identification and arguing during closing arguments that Lewis’s identification was questionable. Since the jury was presented with the argument that Lewis’s identification of McLean was unreliable, there was no prejudice by trial counsel’s failure to call an expert in eyewitness identification. See Rimmer v. State, 59 So.3d 763, 777 (Fla.2010) (“Because counsel conducted an effective cross-examination of the eyewitnesses and consistently attacked the eyewitness identifications and the process of making those identifications, [the defendant] has not demonstrated that he was prejudiced by counsel’s failure to obtain an eyewitness identification expert.”).

Moreover, even without Lewis’s identification of McLean, there was substantial evidence linking McLean to the crime, including, his codefendants’ testimony as to his role in the crime and his blood and DNA found on an item taken from the ■victim’s home. See McLean, 29 So.3d at 1048-49. Therefore, there is not a reasonable probability of a different outcome. Our confidence in the outcome is not undermined.

Accordingly, we affirm the circuit court’s denial of relief.

B. The Crimeline Tape

Next, McLean claims that his due process rights were violated by the State’s institutional policy of reprocessing tape recordings of tips received by Crimeline, a crime reporting hotline, including a tape recording of a tip made implicating him in the crime of which he was convicted. Additionally, McLean argues that his trial counsel was ineffective for failing to take action to prevent the destruction of this evidence. We disagree and affirm the circuit court’s denial of these claims.

McLean’s substantive claim that his due process rights were violated by the State’s institutional policy of reprocessing the Crimeline tapes is without merit because McLean has failed to establish that the State destroyed the evidence in bad faith. See Guzman v. State, 868 So.2d 498, 509 (Fla.2003) (explaining that “[t]he loss or destruction of evidence that is potentially useful to the defense violates due process only if the defendant can show bad faith on the part of the police or prosecution,” and that “bad faith exists only when police intentionally destroy evidence they believe would exonerate a defendant” (citing Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988))). McLean has made no allegation, much less established, that the State intentionally destroyed the tape recording in bad faith. Nor has McLean shown that the tape recording was of any exculpatory value, or that the State knew of its potential exculpatory value at the time the tape was reprocessed. Accordingly, we affirm the circuit court’s denial of this issue.

We also affirm the denial of the related claim that McLean’s trial counsel was ineffective for failing to take action to preserve or compel disclosure of the tape recording. Trial counsel explained at the evidentiary hearing that the defense did not take any action to compel discovery of or preserve the tape recording because it was their understanding that the tape recording had already been reprocessed. Nonetheless, the record establishes that counsel took action to discover as much information as possible concerning the tip. Counsel obtained copies of the reports generated from the calls made into Crime-line concerning this crime, deposed the lead detective as to how this information was used in the case, and made every effort to learn the identity of the caller. McLean has failed to explain how trial counsel’s actions were not reasonable under the circumstances or how these actions “fell beyond an ‘objective standard of reasonableness,’ such that counsel could not be said to be functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Henry v. State, 948 So.2d 609, 616 (Fla.2006) (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Therefore, McLean has failed to establish that trial counsel’s performance was deficient.

McLean has also failed to establish prejudice. McLean’s allegations that the tape recording was of potential exculpatory or impeaching value to his case is completely speculative, and post-conviction relief cannot be based on mere speculation. See Maharaj v. State, 778 So.2d 944, 951 (Fla.2000) (“Postconviction relief cannot be based on speculation or possibility.”). Furthermore, McLean’s arrest was not based solely on the tip. Rather, the record reflects that James Jaggon, Sr., the father of one of McLean’s codefendants, had contacted police seven days after the crime and told them of McLean’s involvement before the Crime-line tip came in. In addition, as discussed on direct appeal, there was independent evidence linking McLean to this crime. See McLean, 29 So.3d at 1048-49. Therefore, there is not a reasonable probability of a different outcome. Our confidence in the outcome is not undermined.

Accordingly, we affirm the circuit court’s denial of relief.

C. Ineffective Assistance of Counsel During the Penalty Phase

Next, McLean claims that his trial counsel was ineffective for failing to present evidence that he suffered from Attention Deficit Hyperactivity Disorder (ADHD) during the penalty phase. We affirm the circuit court’s denial of relief.

McLean has not established prejudice because he has failed to demonstrate that the additional information that he suffered from ADHD would have resulted in mitigation that would undermine “this Court’s confidence in the sentence of death when viewed in the context of the penalty phase evidence and the mitigators and ag-gravators found by the trial court.” Hurst v. State, 18 So.3d 975, 1013 (Fla.2009); see also Bolin, 41 So.3d at 155 (“A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.” (quoting Maxwell, 490 So.2d at 932)).

As explained on direct appeal, the trial court found three aggravating circumstances which were given more weight than the mitigating factors. See McLean, 29 So.3d at 1049-50. And, although the trial court stated in the sentencing order that ADHD had not been established as a non-statutory mitigating factor, the trial court gave “little weight” to McLean’s organic brain injury as a non-statutory mitigating factor, and Dr. Eisenstein had explained on cross-examination at trial that McLean’s ADD was part of the organic brain injury.

Moreover, Dr. Eisenstein’s testimony at the evidentiary hearing concerning McLean’s ADHD and its impact on McLean’s behavior was largely cumulative to other testimony presented at trial — that McLean had an impulse control problem, had an inability to think through the consequences of his actions, and that his ability to self-monitor and conform his conduct to the requirements of the law was substantially impaired. See Jones v. State, 998 So.2d 573, 586 (Fla.2008) (“We have repeatedly held that counsel is not ineffective for failing to present cumulative evidence.”).

Therefore, McLean has not established prejudice because “[t]he mitigating evidence adduced at the evidentiary hearing combined with the mitigating evidence presented at the penalty phase would not outweigh the evidence in aggravation[.]” Tanzi v. State, 94 So.3d 482, 491 (Fla.2012). Therefore, there is not a reasonable probability that additional evidence of McLean’s ADHD would have led to a different result. Our confidence in the outcome is not undermined.

Accordingly, we affirm the circuit court’s denial of relief.

D. Remaining Claims

Finally, we affirm the circuit court’s summary denial of McLean’s claims that: (1) Florida’s lethal injection procedure is unconstitutional because it involves a risk that it will cause extreme pain in violation of the Eighth Amendment, (2) section 945.10(l)(g), Florida Statutes, is unconstitutional, and (3) that his constitutional right against cruel and unusual punishment will be violated since he may be incompetent at the time of execution. These claims have been repeatedly rejected by this Court. See, e.g., Chavez v. State, 132 So.3d 826, 831 (Fla.), cert. denied, — U.S —, 134 S.Ct. 1156, — L.Ed.2d—(2014) (“Summary denial of a lethal injection challenge is proper where the asserted reasons ... are based upon conjecture or speculation.”); Henyard v. State, 992 So.2d 120, 130 (Fla.2008) (‘We [have] previously found section 945.10 facially constitutional and decline to recede from our decision now.”); Hall v. Moore, 792 So.2d 447, 450 (Fla.2001) (explaining that it is premature for a death-sentenced individual to present a claim of incompetency with regard to his execution if a death warrant has not been signed).

III. HABEAS PETITION

McLean raises two claims in his habeas petition: (1) that his appellate counsel was ineffective for failing to raise an allegation of error concerning the State’s destruction of the Crimeline tape; and (2) that Florida’s capital sentencing scheme, which permits the imposition of a death sentence based on a simple majority jury recommendation violates the Eighth Amendment’s evolving standards of decency. We reject both claims and find that no habeas relief is warranted.

While claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus, McLean’s claim concerning the Crimeline tip is procedurally barred because he raised this exact argument in his postconviction motion. Johnston v. State, 63 So.3d 730, 747 (Fla.2011) (holding that the defendant’s habeas claim was procedurally barred because it could have been or was raised in his postconviction motion); Knight v. State, 923 So.2d 387, 395 (Fla.2005) (holding that claims raised in a postconviction motion “cannot be relit-igated in a habeas petition”). Moreover, as discussed above, this issue is meritless.

Similarly, McLean’s claim that Florida’s capital sentencing scheme is unconstitutional because it allows a death sentence recommendation based on a simple majority jury vote has been repeatedly rejected by this Court and is without merit. See, e.g., Kimbrough v. State, 125 So.3d 752, 754 (Fla.), cert. denied, — U.S. —, 134 S.Ct. 632, 187 L.Ed.2d 412 (2013) (“[The defendant’s] claim ‘is subject to our general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional.’ ” (quoting Mann v. State, 112 So.3d 1158, 1162 (Fla.2013))); Parker v. State, 904 So.2d 370, 383 (Fla.2005) (“This Court has repeatedly held that it is not unconstitutional for a jury to recommend death on a simple majority vote.”).

IY. CONCLUSION

For the foregoing reasons, we affirm the denial of McLean’s motion for postconviction relief and deny his habeas petition.

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), (9), Fla. Const.

      . The trial court found three aggravating factors: (1) McLean was on felony probation when he committed the murder (moderate weight); (2) “McLean was previously convicted of a felony involving the use or threat of violence” (great weight); and (3) the murder occurred during commission of a robbery (great weight). McLean, 29 So.3d at 1049. The trial court also found two statutory miti-gators: (1) that McLean was under extreme mental or emotional disturbance at the time of the crime (little weight); and (2) that "McLean’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law" was substantially impaired (little weight). Id. In addition, the trial court considered the following non-statutory mitigating circumstances: "(1) mental health issues (no weight); (2) substance abuse issues (little weight); (3) disparate treatment of codefendants (no weight); (4) family problems (little weight); (5) brain injury (little weight); and (6) miscellaneous factors, such as poor grades in high school, good behavior in court, and lack of positive role models in his youth (little weight).” Id. at 1049-50.

      . We denied the following claims on direct appeal: (1) that the trial court erred when it admitted the photographic and live lineup identifications because law enforcement failed to offer McLean assistance of counsel; (2) that the trial court erred in conducting a portion of the hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), on McLean’s pro se motion to replace or discharge counsel, outside of McLean’s presence; (3) "that the trial court erred in instructing the jury on the avoid arrest aggra-vator;" (4) that McLean’s death sentence was disproportionate; and (5) "that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] (2002).” McLean, 29 So.3d at 1050-53 & n. 5.

      . McLean also argues that his trial counsel was ineffective for failing to ensure that he was present during a bench conference at the Nelson hearing. , We affirm the summary denial of this claim because this issue is procedurally barred as it was already raised and denied on direct appeal. McLean, 29 So.3d at 1050-51; see also Sireci v. State, 469 So.2d 119, 120 (Fla.1985) ("Claims previously raised on direct appeal will not be heard on a motion for post-conviction relief simply because those claims are raised under the guise of ineffective assistance of counsel.”).

      . At the evidentiary hearing, the expert witness, Dr. Eisenstein, who had also been a defense witness at trial, used both the terms ADD and ADHD interchangeably, and explained that ADD "is subdivided into whether or not it’s primarily an attention problem or it’s a problem of hyperactivity.” ADHD is more focused on hyperactivity and conduct, while ADD is more focused on the inability to pay attention for a certain period of time.

      . Because we find all of McLean’s claims of error to be procedurally barred or otherwise without merit, we deny McLean’s claim that the cumulative impact of the alleged errors deprived him of his right to a fair trial. Bell v. State, 965 So.2d 48, 75 (Fla.2007) ("[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail." (quoting Griffin v. State, 866 So.2d 1, 22 (Fla.2003))).


text:
    STATE of Florida, Petitioner, v. Keith SIROTA, Respondent.
    No. SC12-1683.
    Supreme Court of Florida.
    Sept. 4, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, Bureau Chief, and Heidi Lynn Bettendorf, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Robert Lawrence Sirianni, Jr., Paetra Terry Brownlee, and Andrew Brooks Greenlee, Brownstone, P.A., Winter Park, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Sirota v. State, 95 So.3d 313 (Fla. 4th DCA 2012), in which the Fourth District certified a question of great public importance “regarding the scope and proper application” of this Court’s decision in Morgan v. State, 991 So.2d 835 (Fla.2008), “following two recent decisions of the Supreme Court of the United States which prescribe the minimum requirements of the Sixth Amendment” as to ineffective assistance of counsel claims in which the defendant rejected a plea offer based on misadvice. Sirota, 95 So.3d at 315 (citing Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Subsequent to the Fourth District’s decision in Sirota, we decided Alcorn v. State, 121 So.3d 419 (Fla.2013), where this Court receded from Morgan and Cottle v. State, 733 So.2d 963 (Fla.1999), with respect to the standard for establishing prejudice as to this type of claim. Alcorn, 121 So.3d at 422. We held in Alcorn that, in light of Frye and Lafler, “the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Id.

After Alcorn became final, we issued an order directing the Respondent in this case to show cause why this Court should not summarily quash the Fourth District’s decision in Sirota and remand for reconsideration in light of Alcorn. In his response, the Respondent conceded that this case is “factually indistinguishable” from Alcorn but argued nevertheless that this Court should not summarily quash the Fourth District’s decision because the new prejudice inquiry under Alcorn, which derives from the United States Supreme Court’s decisions in Frye and Lafler, may be problematic. In its reply, the State asserted that Alcorn controls the outcome and that this case should be remanded to the trial court to provide the Respondent with an opportunity to amend his pleading to conform to the requirements of Alcorn.

Having considered the briefs of the parties, the Respondent’s response to this Court’s order to show cause, and the State’s reply, we quash the Fourth District’s decision in Sirota. We remand this case to the Fourth District with directions that the case be returned to the trial court for further proceedings consistent with this Court’s decision in Alcorn.

It is so ordered.

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


text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.992—CRIMINAL PUNISHMENT CODE SCORESHEETS.
    No. SC14-1545.
    Supreme Court of Florida.
    Sept. 4, 2014.

      Judge Jay P. Cohen, Chair, Supreme Court Criminal Court Steering Committee, Daytona Beach, FL, and Bart Schneider, Senior Attorney, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Rule of Criminal Procedure Rule 3.992(a) (Criminal Punishment Code Score-sheet). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Supreme Court Criminal Court Steering Committee (Steering Committee) proposes amendments to rule 3.992(a) in light of chapter 2014-4, section 9, Laws of Florida, which amends section 921.0024(l)(b), Florida Statutes (effective October 1, 2014). Consistent with the new legislation, the amendment creates a multiplier of 2.0 of the subtotal sentence points for certain adult-on-minor sex offenses.

After considering the Steering Committee’s proposals and reviewing the relevant legislation, we adopt the proposed amendments to rule 3.992(a), as reflected in the appendix to this opinion. New language is indicated by underscoring. The amendments shall become effective October 1, 2014, at 12:01 a.m. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

O County Jail D Time Served _ _ _ □ Community Control _ _ _ D Probation □ Modified _ _ _ Please check if sentenced as □ habitual offender, Dhabitual violent offender, □ violent career criminal, □ prison releasee reoffender, or a □ mandatory minimum applies. O Mitigated Departure □ Plea Bargain Prison Diversion Program Other Reason_ JUDGE’S SIGNATURE Effective Data: For offenses committed under the Criminal Punishment Codo effective for offenses commilled on or after October 1,1998, i (b) [No Changes)

      . All comments must be filed with the Court on or before November 3, 2014, with a certificate of service verifying that a copy has been served on the Chair of the Supreme Court Criminal Court Steering Committee, the Honorable Jay P. Cohen, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida 32114-5002, cohenj@flcourts. org, and on the Office of State Courts Administrator, Staff to the Committee, Bart Schneider, Office of the General Counsel, 500 South Duval Street, Tallahassee, Florida 32399-1925, schneiderb@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until November 24, 2014, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


author: MAY, C.J.

text:
    Zacariah DORSETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1530.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Jeanette Bellon of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his conviction and sentence for leaving the scene of a crash involving injury. He raises numerous issues. We find merit in his argument that the trial court erred in failing to give two requested special jury instructions. We therefore reverse his conviction and remand the case for a new trial. We further certify the following question to the supreme court as one of great public importance:

In a prosecution for violation of section 316.027, Florida Statutes (2006), should the standard jury instruction require actual knowledge of the crash?

The defendant was driving a heavy pickup truck northbound on A1A. According to the defendant, he had his windows rolled up, windshield wipers and air conditioner on, and was listening to the radio at full volume. He saw a lot of people running across the street from the beach as it began to rain. The people had cleared the street as he drove through the intersection.

According to the defendant, he was unaware that a young teenager had lost control of his skateboard and fell as he crossed the road, hitting the truck’s passenger side undercarriage. The defendant continued traveling north at a normal rate of speed and did not stop. He was not under the influence of drugs or alcohol, and had no hearing or health problems.

Law enforcement stopped the defendant approximately three miles from the accident. When questioned by law enforcement as to why he did not stop, the defendant explained:

The bottom line is if I would have known I had hit somebody, I would have definitely stopped this truck; that’s the bottom line. I didn’t — there was no — at all but the radio and me driving; I didn’t hear anything else, nothing was going on. I just found out about this person getting struck by my truck that I have no idea I had struck.

The State charged the, defendant with leaving the scene of a crash involving injury. He entered a not guilty plea and proceeded to trial. There, the officer who stopped the defendant testified that the victim was on his rear end in the crosswalk when he was hit by the truck. The victim went underneath the truck and was dragged almost ninety feet. There was no evidence of braking, skid marks; brake lights, evasive steering, or a change in speed. There was no damage to the front of the truck.

Several witnesses testified that they saw the accident. One saw the truck’s wheels go over the victim’s body and heard the truck ride over him. A worker testified that he heard the accident from one of the upper floor patios of a building where he was installing windows; he saw the victim skateboard into the street, go underneath the truck, and be dragged down the street. His co-worker testified that he saw the skateboard being spit out from under the truck’s right rear tire and heard the skateboard crack in two. He also saw the back right tire of the truck actually raise up or jump up.

Another eyewitness testified that she was in a car at the light when she heard a loud noise at impact through her closed window. Another witness testified that he was about seventy-five to one hundred yards away from the road when he heard a loud thud and the sound of cracking wood. Yet another witness testified that she saw the victim fall off the skateboard and hit the right side of the truck.

A second officer testified that he pulled the defendant’s vehicle over within minutes of the accident. The defendant immediately jumped out of the truck and appeared very nervous. He was visibly shaking and stuttering. The defendant repeatedly asked why he had been stopped. According to the second officer, the truck’s windows were up, but the radio was not on.

The defense offered the following special jury instruction at the charge conference: To prove the crime of Leaving the Scene of an Accident, the State must prove the following four elements beyond a reasonable doubt:

1: [The defendant] was the driver of a vehicle involved in an accident resulting in injury to any person.
2: [The defendant] knew that he was involved in an accident.
3: (a) [The defendant] knew of the resulting injury to the person; or
(b) reasonably should have known of the resulting injury to the person from the nature of the accident.
4: (a) [The defendant] willfully failed to stop at the scene of the accident or as close to the accident as possible and remain there until he had given “identifying information”...; or
(b) [The defendant] willfully failed to render “reasonable assistance” to the injured person if such treatment appeared to be necessary or was requested by the injured person.

(Emphasis added).

The defense also requested the following special jury instruction:

The Defendant’s knowledge that his car caused the personal injuries to [the victim] is a necessary element of the offense of failing to remain at the scene of an accident under Florida Statute Section 316.027.
Actual knowledge of the accident is an essential element of this crime, for one cannot “willfully” leave an accident without awareness that an accident has occurred.
Further, the State must prove that [the defendant] had actual or constructive knowledge of the resulting injury to [the victim] — that is, [the defendant] either knew of [the victim’s] resulting injury, or reasonably should have known of such injury from the nature of the accident.

(Emphasis added). The trial court declined the special instructions and instead gave the standard jury instruction, which did not include the emphasized language. Fla. Std. Jury Inst. (Crim.) 28.4.

The jury found the defendant guilty. The trial court entered judgment against the defendant, and sentenced him to twenty-four months in prison. The defendant moved for a new trial, which was denied along with the defendant’s Renewed Post-Verdict Motion for Judgment of Acquittal and Motion for New Trial. The defendant now appeals.

The defendant argues that the standard jury instructions included an incorrect statement of law regarding section 316.027, Florida Statutes (2006), because the law requires actual knowledge of the accident. The State responds that the defendant’s special jury instructions were properly rejected because the standard jury instructions accurately reflect the law under State v. Mancuso, 652 So.2d 370 (Fla. 1995).

We afford trial courts “broad discretion in formulating appropriate jury instructions” and will reverse only when the error results “in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.” Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999).

The Florida Standard Jury Instructions in Criminal Cases were designed to eliminate — or minimize — juror confusion concerning the applicable law in criminal cases. The instructions were researched and formulated by a committee of experts and then reviewed by this Court in an effort to eliminate imprecision. The charges were designed above all to be accurate and clear — and thus to withstand appellate scrutiny.

Perriman v. State, 781 So.2d 1243, 1246 (Fla.1999). However, the trial judge still bears the responsibility of providing the jury with proper and correct instructions in each case. Kearse v. State, 662 So.2d 677, 682 (Fla.1995).

“[T]he failure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards.” Stephens v. State, 787 So.2d 747, 755 (Fla.2001). “Thus, [a defendant] has the burden of demonstrating that the trial court abused its discretion in giving standard instructions.” Id. at 755-56. To meet that burden, a defendant must “ ‘show that: (1) the requested instruction accurately states the law applicable to the facts of the case; (2) the testimony and other evidence presented support the giving of the instruction; and (3) the instruction was necessary to resolve the issues in the case properly.’ ” McConnell v. Union Carbide Corp., 937 So.2d 148, 153 (Fla. 4th DCA 2006) (quoting Force v. Ford Motor Co., 879 So.2d 103, 106 (Fla. 5th DCA 2004)) (emphasis added).

Here, the defendant was charged with a violation of section 316.027, which provides:

The driver of any vehicle involved in a crash occurring on public or private property that results in injury of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of § 316.062. Any person who willfully violates this paragraph commits a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

§ 316.027(l)(a), Fla. Stat. (2006). As can be seen, the statute does not speak in terms of knowledge of the accident or injury, but rather in terms of willfulness in failing to remain at the scene. Case law has, however, supplied the knowledge requirements to justify the enhanced penalty. See Mancuso, 652 So.2d at 372.

The issue raised in this case is whether actual knowledge of the accident itself is required to sustain a conviction under the statute. While our supreme court addressed the knowledge issue as it related to “injury,” it has not been asked to address knowledge of the “accident” as an element of the crime. Even so, the supreme court explained that “knowledge of the accident is an essential element of section 316.027, for one cannot ‘willfully’ leave an accident without awareness that an accident has occurred.” Id. at 371.

At the time of the Mancuso trial, no standard jury instruction for violation of section 316.027 existed. Mancuso v. State, 636 So.2d 753, 754 (Fla. 4th DCA 1994). During trial, the defense asked the trial court to instruct the jury that the State had to prove Mancuso “knew that he was involved in an accident which resulted in personal injury to another.” Id. The trial court denied the request and instructed the jury that to prove the felony crime, the State needed to establish: (1) the defendant “was the driver of a vehicle involved in an accident resulting in injury;” (2) the defendant “knew or should have known that he was involved” in an accident; and (3) the defendant “willfully failed to stop and remain at the scene.” Id. The defendant was convicted and appealed to this court.

We reversed and “conclude[d] that the element of willfulness in the Florida statute requires a finding of knowledge — actual or constructive — of injuries.” Id. at 756. We then certified the following question to the supreme court:

IN A PROSECUTION FOR VIOLATION OF SECTION 816.027, FLORIDA STATUTES (1991), MUST THE STATE SHOW THAT THE DEFENDANT KNEW OR SHOULD HAVE KNOWN OF THE INJURY OR DEATH; AND THE JURY BE SO INSTRUCTED?

Id.

After reviewing the law in other states that were modeled after the Uniform Vehicle Code, our supreme court reasoned that “hit-and-run” statutes require knowledge of injury as well as knowledge of the accident because

1) the statute imposes a more severe criminal penalty for leaving the scene of an accident where personal injuries are involved than does a similar statute imposing sanctions where only property damage is involved; and 2) the “statute requires an affirmative course of action to be taken by the driver and it necessarily follows that one must be aware of the facts giving rise to this affirmative duty in order to perform such a duty[.]”

Mancuso, 652 So.2d at 372 (quoting Ki-moktoak v. State, 584 P.2d 25, 31 (Alaska 1978)). The supreme court approved of our decision that the “knew or should have known” of the injury language was required in an instruction. Id. In doing so, it specifically indicated that “knowledge of the accident is an essential element of’ the crime. Id. at 371. But, it had not been called upon to address whether actual or constructive knowledge of the accident is required.

The supreme court then directed the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to create a standard jury instruction in line with its opinion. Id. at 372. When the Committee did so, it used the “knew or should have known” language for both knowledge of the accident and of the resulting injury. Until this case, the language has remained unchallenged.

Here, the defense request for a special instruction attempted to cull from Mancu-so the supreme court’s acknowledgement that a defendant must first know of the accident before he either knows or should know of the injury. This was particularly important in this case where the defendant claimed to have no knowledge of the accident itself. How could he therefore know or be expected to know of a resulting injury? We recognize there was testimony from which a jury may have determined that the defendant actually knew of the accident, but the jury was not instructed that actual knowledge of the accident had to be proved.

We do not fault the trial court for relying on a standard jury instruction. And, while a quick review of Maneuso might suggest that the standard jury instruction accurately reflects the law, our supreme court has never been asked to address the knowledge requirement as it relates to the accident. Even so, in Maneuso the supreme court indicated that knowledge of the accident was an essential element of the crime. We now request the court to focus on the knowledge requirement as it relates to the accident itself.

We reverse and remand the case to the trial court for a new trial. We further certify the following question to the supreme court.

In a prosecution for violation of section 316.027, Florida Statutes (2006), should the standard jury instruction require actual knowledge of the accident?

Reversed and Remanded.

DAMOORGIAN and GERBER, JJ., concur.

      . Only the pertinent parts of the jury instructions have been included for purposes of the discussion.

      .Other jurisdictions, such as Virginia, require that the defendant possess actual knowledge of the accident to be found guilty under the ''hit-and-run” statute. See, e.g., Payne v. Commonwealth, 277 Va. 531, 674 S.E.2d 835, 842 (2009).

      . Since that time, our supreme court has again addressed the knowledge element, but the court’s review once again focused on the injury or death part of the statute, and not on knowledge of the accident. See generally State v. Dumas, 700 So.2d 1223 (Fla.1997).

      . Our supreme court has previously held that the giving of a standard jury instruction can constitute fundamental error. See State v. Montgomery, 39 So.3d 252, 258 (Fla.2010).