text:
    Robert Joe LONG, Appellant, v. STATE of Florida, Appellee.
    No. SC12-103.
    Supreme Court of Florida.
    July 11, 2013.

      Andrea M. Norgard and Robert A. Nor-gai-d, Bartow, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Katherine V. Blan-co, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.

FACTS AND PROCEDURAL HISTORY

Robert Long appeals from the denial of postconviction relief regarding the sentence of death Long received in relation to the murder of Michelle Simms. The facts underlying Long’s convictions are as follows:

Robert Long was arrested on November 16, 1984, and charged with the sexual battery and kidnapping of Lisa McVey. Long signed a form [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] waiver and consented to questioning. After the detectives procured a confession for the McVey case, their questioning focused on a series of unsolved sexual battery homicides pending in the area. As the detectives began to question Long about the murders, he replied, “I’d rather not answer that.” The detectives continued the interrogation and handed Long photographs of the various murder victims. At this point, Long stated, “The complexion of things sure have changed since you came back into the room. I think I might need an attorney.” No attorney was provided and Long eventually confessed to eight murders in Hills-borough County and one murder in Pas-co County.
Subsequently, on April 22, 1985, Long was tried for the Pasco County murder, where a jury returned a guilty verdict and a unanimous recommendation of death on April 27,1985. The trial judge subsequently imposed a death sentence on May 10,1985.
The Hillsborough County cases, in which the appellant was charged with multiple sexual battery and homicide offenses, were ready for trial in September, 1985. On September 23, 1985, Long entered into a plea agreement with the State for all the offenses charged in Hillsborough County. In summary, Long pleaded guilty to eight counts of first-degree murder, eight counts of kidnapping, and seven counts of sexual battery. In addition, Long pleaded guilty to charges of sexual battery and kidnapping in the Lisa McVey case. Under the agreement, except for the first-degree murder, kidnapping, and sexual battery counts in the Michelle Denise Simms murder, Long received life sentences on every count of each case and a five-year sentence on the probation revocation charge. The plea agreement provided for a full penalty phase proceeding before a jury in the Simms case and contained an express provision waiving Long’s right to contest the admissibility of any statements he had given police. In the agreement Long also expressly waived the right to contest the admissibility of a knife found near his residence and other evidence seized from his car and apartment. The State agreed not to utilize any of the Hillsborough convictions resulting from this plea agreement as aggravating factors in the penalty phase of the Simms case, but retained the right to use prior convictions obtained in other counties as aggravating factors. After appropriate inquiry in open court, the trial judge, on September 23, 1985, adjudicated Long guilty and pronounced sentence in each case except the Simms murder charge, which was set for a penalty phase proceeding.
On December 11, 1985, Long moved to withdraw from the plea agreement based on the unavailability of a crucial defense witness and his earlier misunderstanding regarding his right to appeal the confession’s admissibility.... The trial court, after hearing the testimony on the plea, determined that appellant should be allowed to withdraw his previously entered guilty pleas.
... On the following day, December 12, 1985, the appellant elected not to withdraw his previously entered pleas of guilty. The judge conducted a full inquiry of the appellant concerning his decision in open court....
At the time of the plea, Long had already been tried and sentenced to death for the Virginia Johnson murder. The new sentencing proceeding was set for July 9, 1986. Before those proceedings began, appellant’s new counsel filed a motion to again set aside the plea agreement on the grounds that the plea agreement was based upon circumstances directly affecting Long’s rights. Specifically, counsel claimed the plea agreement provided for a waiver of the right to contest the admissibility of unconstitutionally obtained statements and evidence. Further, counsel argued that the plea agreement directly affected appellant’s right to a fair penalty phase proceeding, because the agreement expressly provided for the introduction into evidence of Long’s confession and the knife discovered pursuant to the confession. The trial court denied the motion to set aside the plea agreement.
The penalty phase proceedings commenced on July 10, 1986, and the State presented evidence of Long’s confession with regard to the killing of Michelle Denise Simms and Virginia Johnson. The State also submitted a certified copy of the judgment entered in Pasco County for the Johnson murder. The State presented testimony by two expert witnesses, who concluded that Long, at the time of the Simms murder, was not under the influence of extreme mental or emotional disturbance, nor was his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law substantially impaired. One of the State’s experts did testify that when the appellant killed his victim, he was also unconsciously killing his mother by extension.
The appellant presented testimony from four expert witnesses who stated Long was under the influence of extreme mental or emotional disturbance at the time of the murders and was unable to conform his conduct to the requirements of law. The evidence reflected that appellant led an extremely troubled family life, had suffered numerous head injuries, which had led to brain damage and severe mental problems. The advisory jury recommended the death penalty by a vote of eleven-to-one.

Long v. State, 529 So.2d 286, 287-91 (Fla.1988). The trial court imposed a sentence of death. Id. at 291.

On appeal, this Court affirmed the convictions and all sentences except for the death sentence, which this Court vacated and remanded for a new sentencing proceeding before a new jury. Id.

Resentencing

After the second sentencing proceeding, the jury recommended a sentence of death by a unanimous vote. Long v. State, 610 So.2d 1268, 1268 (Fla.1992), cert. denied, 510 U.S. 832, 114 S.Ct. 104, 126 L.Ed.2d 70 (1993).

The trial judge sentenced Long to concurrent life sentences for the sexual battery and kidnapping counts and imposed the death sentence for the first-degree murder. In doing so, the trial judge found the following aggravating factors: (1) that the crime was committed while Long was engaged in the commission of a kidnapping; (2) that the crime was especially heinous, atrocious, or cruel; (3) that Long was previously convicted of a felony involving the use or threat of violence; and (4) that the crime was committed in a cold, calculated, and premeditated manner. In mitigation, the trial judge found: (1) that Long’s capacity to appreciate the criminality of his conduct or conform his actions to the law was substantially impaired, and (2) that the capital felony was committed while Long was under the influence of extreme mental or emotional disturbance. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial judge imposed the death penalty.

Id. at 1272. On appeal, this Court affirmed the sentence of death. Id. at 1275.

POSTCONVICTION MOTION

Long filed a postconviction motion in the circuit court, raising various claims. After an evidentiary hearing on some of those claims, the circuit court denied relief and summarily denied relief on all other claims.

Long has appealed, raising the following claims: (1) the circuit court erred in denying Long’s claim of ineffective assistance of trial counsel regarding Long’s guilty pleas; and (2) the circuit court erred in summarily denying Long’s claim of ineffective assistance of trial counsel for failure to object to prosecutorial misconduct during the penalty phase.

Ineffective Assistance of Counsel Regarding Long’s Guilty Pleas

Long asserts that trial counsel was ineffective for failing to adequately warn him of all of the ramifications of entering his pleas of guilty to all crimes charged in Hillsborough County. Specifically, Long contends that had trial counsel told him that his plea deal included a waiver of his right to appeal the validity of his confession to police and the physical evidence resulting therefrom, he would not have pleaded guilty and would have gone to trial. We conclude that the circuit court’s denial of relief on this claim is supported by competent, substantial evidence.

Standard of Review

In Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 208 (1985), the United States Supreme Court established a two prong test for determining claims of ineffective assistance of counsel relating to guilty pleas. The first prong of Hill is the same as the deficient performance prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); that is, the defendant must specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonably competent performance under prevailing professional norms. See Hill, 474 U.S. at 58-59, 106 S.Ct. 366; see also Lynch v. State, 2 So.3d 47, 56-57 (Fla.2008).

As to the second prong, the United States Supreme Court held that a defendant must demonstrate “a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366; see also Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.2004). Counsel’s effectiveness is determined according to the totality of the circumstances. Strickland, 466 U.S. at 681, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown of the adversary process that renders the result unreliable.” Lynch, 2 So.3d at 57 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

Deficiency

Long has failed to establish deficiency. The circuit court found that Long failed to demonstrate that trial counsel, Charles O’Connor, did not adequately review the conditions and consequences of the plea agreement. The circuit court found Long’s assertions to the contrary not credible. We have stated that “[a]s long as the trial court’s findings are supported by competent substantial evidence, ‘this Court will not “substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.” ’ ” Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (quoting Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)); see also Cox v. State, 966 So.2d 337, 357-58 (Fla.2007) (“[T]he trial court is in a superior position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of witnesses.’ ”) (quoting Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999)).

There is competent, substantial evidence to support the circuit court’s findings. During the colloquy for the original plea on September 23, 1985, Long testified that he had read the plea form and it was explained to him by counsel. Long also affirmed that he understood the terms of the agreement. Long did not have any questions about the plea agreement when asked by Judge Griffin. O’Connor and Long agreed that it was in Long’s best interest to enter the plea.

On December 12, 1985, after being allowed twenty-four hours to consider whether he wanted to withdraw his plea, Long testified during the colloquy with the trial court that he had had time to consider the consequences of withdrawing his plea and had thoroughly discussed it with O’Connor. Long confirmed that he had confidence in the advice he had been given by counsel, O’Connor, and Long specifically confirmed that he understood that he was waiving his right to appeal the admissibility of his confession.

O’Connor was unavailable to testify during the postconviction evidentiary hearing because he had died. However, O’Connor testified before Judge Lazzara on February 10, 1989, during a hearing on Long’s motion to withdraw his guilty pleas filed by then-counsel Robert Fraser before Long’s second penalty phase. O’Connor testified that he reviewed the plea form with Long before Long signed it on September 23,1985, and again when Long had the opportunity to withdraw his plea in December of 1985. O’Connor testified that he spent a substantial amount of time explaining the consequences of the plea agreement to Long and was satisfied that Long understood the agreement.

During this hearing on February 10, 1989, Long testified that he never read the agreement and that O’Connor never went over the plea agreement with him. However, on cross-examination Long acknowledged that Judge Griffin went over the plea agreement with Long during the colloquy on December 12, 1985, the hearing during which Long decided not to withdraw his plea; Long specifically acknowledged that the judge was very clear that he would be waiving his right to appeal the admissibility of his confession pursuant to the plea agreement. Long also acknowledged that he decided not to withdraw his plea when he was given the opportunity because he wanted to limit his potential exposure to the death penalty and he did not want to go through eight trials.

Long contends that testimony at the postconviction evidentiary hearing held on May 9, 2011, provided evidence that O’Connor’s previous testimony that he provided Long with the ramifications of the plea agreement was inaccurate. However, we find nothing in the record that suggests that O’Connor’s prior statements to the court that Long was aware of the ramifications of the plea were misrepresentative. Despite Long’s contentions, the postcon-viction record further supports a finding that Long was fully aware of and understood all of the ramifications of the plea agreement.

Because we find that counsel was not deficient, there is no need to address prejudice. See Hill, 474 U.S. at 60, 106 S.Ct. 366 (declining to assess the deficiency prong of Strickland after finding that the petitioner’s allegations were insufficient to satisfy the prejudice prong of Strickland); see also Evans v. State, 946 So.2d 1, 12 (Fla.2006) (“[Bjecause the Strickland standard requires establishment of both [deficient performance and prejudice] prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.”) (alteration in original) (quoting Whitfield v. State, 923 So.2d 375, 384 (Fla.2005)).

Ineffective Assistance of Counsel for Failing to Object to the State’s Comments during the Penalty Phase Waiver

In his initial brief to this Court, Long asserted conclusory statements that reiterated arguments made before the posteonviction court. Long did not provide any specific improper comments for which he is entitled to relief in his brief before this Court. See Kilgore v. State, 55 So.3d 487, 511 (Fla.2010) (citing Rose v. State, 985 So.2d 500, 509 (Fla.2008)). Accordingly, this claim is waived for appellate review.

Further, we find the claim without merit. Following the United States Supreme Court’s decision in Strickland, this Court has held that for ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice:

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)).

There is a strong presumption that trial counsel’s performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “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. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. “[Strategic 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.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a merit-less argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).
In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Johnston v. State, 63 So.3d 730, 737 (Fla.2011) (parallel citations omitted).

“ ‘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.’ ” Marek v. State, 8 So.3d 1123, 1127 (Fla.2009) (quoting Connor v. State, 979 So.2d 852, 868 (Fla.2007)). “[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000).

Because a court’s decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003) (stating that “pure questions of law” that are discernible from the record “are subject to de novo review”). Accordingly, when reviewing a court’s summary denial of an initial rule 3.851 motion, we must accept the movant’s factual allegations as true, and we will affirm the ruling only if the filings show that the movant has failed to state a facially sufficient claim or that there is no issue of material fact to be determined. See Amendments to Fla. Rules of Crim. Proc. 3.851, 3.852 & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000). However, to the extent there is any question as to whether a rule 3.851 movant has made a facially sufficient claim requiring a factual determination, we will presume that an evidentiary hearing is required. See generally id. In other words, “[w]e must examine each claim to determine if it is legally sufficient, and, if so, determine whether or not the claim is refuted by the record.” Atwater v. State, 788 So.2d 223, 229 (Fla.2001).

Based on a review of the record, we find the prosecutor’s comments during the penalty phase which Long contests were proper in context. Trial counsel cannot be deemed ineffective for failing to object to arguments that are proper. Rogers v. State, 957 So.2d 538, 548 (Fla.2007).

CONCLUSION

Based on the foregoing, we affirm the trial court’s denial of Long’s postconviction motion.

It is so ordered.

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

QUINCE, J., recused.

      . The claims were: (1) Long never entered a lawful guilty plea; (2) trial counsel was ineffective for failing to explain the full scope of the plea agreement to Long or consider Long’s mental illness; (3) Long should be able to withdraw his guilty plea; (4) trial counsel was ineffective at all stages of his proceedings; (5) prosecutorial misconduct throughout the proceedings violated Long’s constitutional rights; (6) trial counsel was ineffective for failing to move to suppress Long's confession and the other evidence illegally seized as a result of the illegal search; (7) the trial court and State unconstitutionally misled the jury as to its responsibility in the sentencing of Long; and (8) penalty phase counsel was ineffective for not calling witnesses regarding Long’s motion to withdraw his plea.


source: Caselaw Access Project

author: GERBER, J.

license: Public Domain

text:
    Teah WIMBERLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1769.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.

      Larry S. Davis, Hollywood, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from her conviction for second degree murder and possession of a weapon on school grounds. She argues that the trial court erred in: (1) denying her motion to declare unconstitutional, as applied to juveniles, section 775.027, Florida Statutes (2008), which defines the standard for the determination of insanity; (2) denying her motion to disallow the state’s peremptory strike of a prospective juror; (3) denying her motion to suppress her incriminating statements; and (4) denying her motion for mistrial based on the state’s alleged improper closing argument. We affirm on all arguments raised.

We write to address only the second argument, that is, whether the trial court erred in denying the defendant’s motion to disallow the state’s peremptory strike of a prospective juror. That juror, identified as juror 28, was African-American. The defendant is African-American, and the victim was white. The state exercised five peremptory challenges against African-Americans, with the fifth being juror 23. The defendant primarily argues that, based on the prior strikes which the state exercised against African-Americans, the state’s reason for striking juror 23 was not genuine and thereby deprived her of an impartial jury.

We recognize that prior strikes exercised against the same racial group are relevant to the genuineness inquiry. However, we conclude, based on the record in this case, that the court did not err in finding the state’s reason for striking juror 23 to be genuine. To support our conclusion, we shall provide a detailed account of the record in this case.

Juror 23, like the other prospective jurors, was asked to complete a written questionnaire in advance of voir dire because the case received extensive media attention. The questionnaire sought the prospective jurors’ opinions on a variety of topics, including the insanity defense which the defendant intended to raise at trial. Juror 23’s lack of responses to the questionnaire became the subject of discussion between the state and juror 23 during voir dire. In the interest of completeness, we provide the entire exchange between the state and juror 23:

State: On the jury questionnaire you didn’t answer the questions about whether you had any opinions about law enforcement that would affect the way you viewed the evidence. You didn’t answer the question about children or about guns or about age. So I’m going to have to talk to you a little bit, okay, about that[.] And you indicated you didn’t understand the word insanity, which other people had that problem with as well. When we talk about insanity we talk about people who are mentally ill, okay. And what we’re wondering about is if you have opinions about that before you hear evidence. You can have an opinion after you hear the evidence. We’re concerned about people who have an opinion before they hear the evidence. We’re concerned that you might think being insane is never an excuse for committing a crime or that you think being insane is always an excuse for committing a crime, that’s what we’re looking for. Do you think you have an opinion that would go to either of those extremes?
Juror 23: No.
State: No. Okay. Are you having any trouble understanding us?
Juror 23: I stand — I stand — understand some of it.
State: Uh-huh.
Juror 23: Not a lot.
State: Not all of it?
Juror 23: I understand, but my English [unintelligible] too long.
State: Okay. So it’s just being able to communicate, but understanding, you understand everything that we’re talking about? Because, obviously, it’s really important that you be able to understand everything that’s said in the courtroom. You can’t really evaluate it fairly if you don’t understand it. That’s not a problem for you?
Juror 23: No.
State: Okay. Great. All right. How do you feel about a law that you don’t agree with, would you be able to follow it even if you don’t agree with it?
Juror 23: I’d follow it.
State: Okay. What about law enforcement, do you have any opinions about law enforcement? You said you had some contact with law enforcement, did that leave you with an impression about people who are members of law enforcement?
Juror 23: No.
State: No. Okay. So I don’t have to worry that you have any preconceived ideas about police officers or anything like that?
Juror 23: No problem.

Later during voir dire, the defense spoke with juror 23. We provide the entire exchange between the defense and juror 23 (with interjection by juror 24, who apparently was seated next to juror 23):

Defense: [Juror 23]?
Juror 23: Yes.
Defense: Good. [Juror 23], you indicated — and I’ll try to speak up so you can hear, okay?
Juror 23: My throat.
Defense: Pardon?
Juror 23: My throat is not too good.
Defense: Do you want some water?
Juror 23: No.
Defense: No?
Juror 23: No.
Defense: You’re okay?
Juror 23: I come from a cold I had before, it don’t go out yet.
Defense: I’m sorry?
Juror 24: She had a cold.
Defense: Oh, she had a cold?
Juror 24: Yes.
Defense: Oh, okay. Thank you.
Juror 24: You’re welcome.
Defense: All right. You indicated when Judge Murphy was questioning you yesterday I believe that you work in the nursing department?
Juror 23: Yes.
Defense: Where is that?
Juror 23: In Dania.
Defense: In Dania?
Juror 23: In a nursing home.
Defense: In a nursing home. How long have you been doing that kind of work? Juror 23: 24 years.
Defense: 24 years. And you’re married?
Juror 23: Yes.
Defense: Okay. And what does your husband do?
Juror 23: He work in rent-a-car.
Defense: And what does he do for them?
Juror 23: Rental agent. Rental agent.
Defense: Okay. And again, I’m going to ask you this question, and we can deal with this without — outside the presence of the rest of the jury if you, but you indicated that you had some family experience with domestic violence.
Juror 23: Yes.
Defense: Do you want to — can you tell us about that or would you rather not?
Juror 23: No.
Defense: Okay. That’s fair. You didn’t put a lot on the form here. You’re able to follow everything we’re talking about, you know, I mean, you under — I know the conversation — you can follow everything?
Juror 23: Yes.
Defense: And if you’re seated right there, or right where [juror 10] is, you could hear what was going on from here okay?
Juror 23: Yes.
Defense: And you could follow that okay?
Juror 23: Yes.
Defense: And you could be fair to both sides, in other words, to both the prosecution and to [the defendant]?
Juror 23: Yes.

During jury selection, when the state sought to challenge juror 23, the following exchange occurred between the state, the defense, and the court:

State: Your Honor, I would move to strike [juror 23] for cause. This is the lady that I previously indicated that I felt did not speak English. She didn’t answer anything in writing on the juror questionnaire except for I think like two questions. Although, she when we spoke to her said that she just had trouble expressing herself, that she did understand what was going on, I genuinely believe that she did not. And I think counsel had the same trouble with her, understanding both what she was saying and getting her to be responsive to what we were asking.
Defense: I’d object, Judge. I think she understood everything when I was talking to her, when the Court was talking to her, and she explained to [the state] about the jury questionnaire. And I’d like to point out for the record now [the state] has taken four strikes, all African[-]American, and now [the state is] moving to strike another black juror from the panel, and I’d certainly object as far as cause.
Court [speaking to defense counsel]: Thank you. Counsel, respectfully, I was concerned about [juror 23] as well. However ... you questioned her and went back to her, because I thought you had the same concerns, you were questioning whether she understood, and in your conversation with her she advised the Court she understood. She speaks in a very low, small, soft voice.
Defense: She said she had just gotten over a cold. ■ •
Court: No, I remember. But she did indicate to us she understood. She gave answers that were responsive to the questions posed even if she didn’t volunteer them. So, counsel, I’m not going to excuse her for cause, that’s denied.
State: Well, then I would move to strike her [using a peremptory challenge]. And, anticipating counsel’s objection, I would point out that I do believe — I mean, she wrote down on the [questionnaire] when it came to insanity that she did not know the word insanity. She repeated that when I was talking to her. She didn’t answer virtually anything. And I would ask that the questionnaire be made part of the record, although I know it already is, just so that it reflects that she failed to answer it and it had nothing to do with her ability to speak, and, you know, I felt that she was very, very difficult to understand and that she wasn’t completely responsive to my questions.
Defense: And, I mean, I haven’t made my objection yet, Judge, but since [the state] made it for me, I would move [to disallow the strike]. Again, just so the record’s perfectly clear, [juror 23 is] a black female. [The state] is now attempting to strike the fifth juror, all minority, all black jurors. And, I mean, I don’t think that there’s anything that she said, this juror ... that at all indicates that she can’t be a fair juror. And I think we’re getting into a situation now of profiling, that is not constitutional, and I would object to allowing to striking of [juror 23].
Court: Thank you. Counsel, respectfully, there was a timely objection, whether it was made for you, or however that was done, [juror 23] is a member of a protected class, the State did come forward with race-neutral reasons, I believe they are genuine, not a pretext, and the reason is facially race-neutral. I’m going to grant it. She is excused,

(emphasis added).

After the defendant’s conviction, this appeal followed. According to the defendant, the trial court abused its discretion in two respects: (1) contrary to Melbourne v. State, 679 So.2d 759 (Fla.1996), the record is devoid of a factual analysis in which the court assessed the strike’s genuineness in light of “prior strikes exercised against the same racial group,” id. at 764 n. 8; and (2) to the extent the court found the strike to be genuine, that finding was clearly erroneous. As to the second reason, the defendant argues that the court’s finding was facially contradictory in that the court, in denying the state’s cause challenge, found that juror 23 understood the proceedings, but then, in allowing the state’s peremptory challenge, found that juror 23’s failure to answer questions was a genuine reason to strike her.

We review the trial court’s finding to determine whether it was clearly erroneous or an abuse of discretion. See Hayes v. State, 94 So.3d 452, 465 (Fla.2012) (“[T]he trial court’s assessment [on the issue of pretext] will be affirmed on appeal unless clearly erroneous.”); Nowell v. State, 998 So.2d 597, 602 (Fla.2008) (“[T]he appropriate standard of appellate review for determining the threshold question of whether there is a likelihood of racial discrimination in the use of peremptory challenges is abuse of discretion.”).

We conclude that the trial court’s lack of articulation of its thought process on the issue of pretext was not clearly erroneous or an abuse of discretion. Our conclusion is consistent with our recent holding in Siegel v. State, 68 So.3d 281 (Fla. 4th DCA 2011): “There is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext.” Id. at 286 (citation omitted).

Our conclusion also is consistent with the supreme court’s more recent holding in Hayes:

We acknowledge that the Melbourne procedure does not require the trial court to recite a perfect script or incant specific words in order to properly comply with its analysis under step three. Indeed, there is no requirement that the trial court specifically use the word “genuine.” Nevertheless, Melbourne does not relieve a trial court from weighing the genuineness of a reason just as it would any other disputed fact.
After the trial court determines that the proponent has proffered a race-, ethnicity-, or gender-neutral reason and then proceeds to evaluate that reason’s genuineness, the trial court can easily inquire of the opponent of the strike, who at that point bears the burden of persuasion, to demonstrate why the reason was not genuine. But where ... the trial court thereafter fails to undertake an on-the-record genuineness inquiry, the reviewing court is unable to engage in meaningful appellate review. This is because the appellate court is not a forum for conducting an after-the-fact ... inquiry, and where no inquiry is conducted, deference cannot be shown to a conclusion that was never made.
Therefore, where the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court.... Deferring to the trial court’s genuineness determination on appeal when no such determination has been made invites an arbitrary result.
Interpreting our jurisprudence on this issue, Florida’s appellate courts have fairly consistently reversed for a new trial where the record provides no indication that the trial court engaged in the required genuineness inquiry. Conversely, where the record supports the conclusion that the trial court has actually considered relevant circumstances surrounding the strike, it is proper for the reviewing court to conclude that a finding has been made, notwithstanding that the trial court did not recite a perfect script or incant “magic” words.

94 So.3d at 464 (internal citations, quotations, footnote, and notations omitted).

Here, notwithstanding that the trial court did not recite a perfect script or incant magic words, the record supports the conclusion that the court was presented with relevant circumstances surrounding the strike and made a finding of genuineness. The state proffered a race-neutral reason for striking juror 23, that is, “[S]he wrote down on the [questionnaire] when it came to insanity that she did not know the word insanity. She repeated that when I was talking to her. She didn’t answer virtually anything.” At that point, the defense bore the burden to persuade the court that the state’s race-neutral reason was a pretext. Before the court could expressly communicate that inquiry to the defense, the defense argued that “[The state] is now attempting to strike the fifth juror, all minority, all black jurors. And, I mean, I don’t think that there’s anything that she said, this juror ... that at all indicates that she can’t be a fair juror.” Based on that argument, and based on the voir dire of all of the jurors which the trial court witnessed, the court had a sufficient record to determine whether the state exercised its strike of juror 23 for a discriminatory purpose. The court found that the state’s race-neutral reason was “genuine, not a pretext.”

We conclude that the trial court’s finding was not clearly erroneous or an abuse of discretion based on our review of voir dire as a whole. Our conclusion rests on five grounds: (1) the court’s finding was not facially contradictory as the defendant argues; (2) the state’s proffered reason for striking juror 23 applied to only one other person, who also was stricken, albeit for a different reason; (3) the record indicates that the court considered relevant circumstances in determining whether the state’s proffered reasons for striking other African-American jurors was genuine; (4) this case is distinguishable from Nowell, upon which the defendant relies, where a trial court improperly allowed the state to exercise a peremptory strike; and (5) this case is distinguishable from Siegel and Hayes, where trial courts improperly disallowed defendants from exercising peremptory strikes. We address each ground in turn.

First, the court’s finding was not facially contradictory as the defendant argues. As the state represented, juror 23 did not answer several questions on the jury questionnaire, and in response to the question about the case’s primary issue — the insanity defense — juror 23 indicated that she did not understand the word “insanity.” When the state asked juror 23 if she was “having any trouble understanding us,” she responded “I stand — I stand — understand some of it.... Not a lot.” This response caused the trial court to be “concerned about [juror 23] as well.” In fact, the court thought the defense “had the same concerns” because the defense “questioned her and went back to her.” Only after the defense questioned juror 23 and she “gave answers that were responsive to the questions posed” did the court believe that “she understood.” Thus, the court had a reasonable basis to deny the state’s cause challenge.

However, just because the court believed that juror 23 understood did not require the state to adhere to that belief. Rather, the state was entitled to maintain its “genuine[] belie[f] that she did not [understand].” Thus, when the state exercised its peremptory challenge, the court’s focus was “on the genuineness of the race-neutral explanation as opposed to its reasonableness.” Hayes, 94 So.3d at 462 (citation omitted). The defense, as the opponent of the strike, bore the burden “to demonstrate why the reason was not genuine.” Id. The defense argued that the state had used peremptory strikes on four other African-American jurors. While prior strikes exercised against the same racial group is a relevant circumstance which may be considered in determining whether the proffered reason for the strike is genuine, the exercise of such prior strikes is not wholly determinative. See id. (“The proper test under Melbourne requires the trial court’s decision on the ultimate issue of pretext to turn on a judicial assessment of the credibility of the proffered reasons and the attorney or party proffering them, both of which must be weighed in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record.”) (citations and internal quotations omitted).

Here, given the judge’s initial concern that juror 23 did not understand the proceedings, it was possible for the court to recognize that the state remained unconvinced of juror 23’s ability to understand the proceedings. Thus, there was nothing contradictory about the court finding the state’s reason insufficient for a cause challenge but sufficient for a peremptory challenge. Cf. id. at 465 (concluding that the trial court misapplied Melbourne by employing a for-cause analysis to a peremptory challenge rather than undertaking a peremptory-challenge analysis).

Second, the state’s proffered reason for striking juror 23 applied to only one other person, who also was stricken, albeit for a different reason. That other person was juror 2. In response to the questionnaire which asked for her opinion about the insanity defense, juror 2 responded, “I don’t know.” When the state asked her to explain her response, juror 2 replied, “I don’t know what insanity means.... That’s why I didn’t answer it.” Ultimately, the parties agreed to strike juror 2 because she had a child care issue. However, she was the only other juror who, like juror 23, expressed a lack of understanding of the word “insanity.”

Third, the record indicates that the court considered relevant circumstances in determining whether the state’s proffered reasons for striking other African-American jurors were genuine. “Relevant circumstances may include — but are not limited to — the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” Id. at 462 (citations omitted). The following is a summary of the consideration which the court gave to each African-American juror whom the state struck before striking juror 23:

• The state used its first peremptory strike on juror 5. Juror 5, without being prompted, stated during voir dire that he was too young to serve because he was nineteen years old. In his words, “I don’t think I should be in here.... I’m not ready for all this. This is too much.... And I’m missing school.... I just think I’m too young ... I’m still a child, so the age do bother me.” When the state used its peremptory challenge on juror 5, the defense did not raise a Melbourne objection.
• The state used its second peremptory strike on juror 3. The defense raised a Melbourne objection. The court asked the state to provide a race-neutral reason for the strike. The state responded that juror 3 indicated on her juror questionnaire that: (1) her son had been arrested and had a violation of probation; and (2) a defendant’s age should be taken into account when rendering an opinion on a case. The defense argued that juror 3 was the second African-American juror whom the state sought to strike. The court found that the state’s reasons were facially race-neutral and were not a pretext. In making that finding, the court noted that African-American females remained on the panel.
• The state used its third peremptory strike on juror 7. The defense raised a Melbourne objection. The court asked the state to provide a race-neutral reason for the strike. The state responded that juror 7:(1) arrived an hour-and-a-half late and did not hear most of its voir dire; and (2) had been arrested for driving under the influence. The defense argued that there were “a number of other jurors that have issues regarding arrests,” and that juror 7 was the third African-American juror whom the state sought to strike. The court found that the state’s reasons were facially race-neutral and were not a pretext. In making that finding, the court noted that juror 1, who remained on the panel, also had a prior arrest. However, the court also noted that the state was correct in its observation that juror 7 missed more than an hour-and-a-half of the state’s voir dire. The court further noted that African-American females remained on the panel.
• The state used its fourth peremptory strike on juror 6. Juror 6 wrote on her jury questionnaire that she did not admire lawyers. When the state asked her to explain that comment, she responded that “lawyers don’t have to tell the truth.” Later, when the state asked if anyone on the panel would have a problem following the law if they did not agree with it, juror 6 responded that “if the law is against my biblical belief, then my biblical belief would take precedence.” When the defense followed up with juror 6 regarding her opinion about lawyers, she responded, “I think lawyers do what they have to do to get the most money that they can.... And they withhold information.... [Ljawyers always have to probably twist the truth or bend the truth or tell lies, whatever it is to win a case.” When the defense followed up with juror 6 regarding her religious beliefs, she responded that “if the rules of the land is such that they contradict the rules that I live by, then I have an obligation to live according to the rules of my God.” When the state used its peremptory challenge on juror 6, the defense did not raise a Melbourne objection.

Fourth, this case is distinguishable from Nowell, upon which the defendant relies, where a trial court improperly allowed the state to exercise a peremptory strike. In that case, the state sought to exercise a peremptory strike upon a Hispanic juror. The defense raised a Melbourne objection. The state gave two reasons for the strike: (1) the juror “would relate to the defendant” because they were of a similar young age; and (2) the juror’s wife worked for a childcare nurturing facility, and that “based on philosophies within the family ... he may not be able to follow the law.” 998 So.2d at 603. The trial court asked the state to identify the juror’s specific answers which raised such concerns. The state responded, “There [are] no specific answers.” Id. (emphasis omitted). The state then gave a third reason: “I don’t particularly like him, I don’t think he is going to be the kind of juror that I would like.” Id. (emphasis omitted). The court asked if there were white male jurors of a similar young age whom the state did not strike. The parties agreed that one such juror still was present. The court then, without explanation, allowed the state to exercise the peremptory strike on the Hispanic juror.

The supreme court held that the trial court’s decision to allow the strike was clearly erroneous for three reasons: (1) striking the Hispanic juror based on his young age was a reason equally applicable to a white juror whom the state did not strike, and neither gave any responses indicating that they would identify with the defendant; (2) the Hispanic juror did not make any statements indicating that he could not follow the law and, in fact, stated he would follow the law; and (3) “Florida courts have consistently rejected a general feeling or ‘dislike’ of a juror as a genuine race-neutral reason.” Id. at 604-05 (citations omitted).

Nowell is distinguishable from this case. Here, striking juror 23 based on her lack of understanding of the word “insanity” was a reason equally applicable to juror 2, but juror 2 also was stricken, albeit for a different reason, that is, because she had a child care issue. Further, juror 23 made statements supporting the state’s reason for the strike. She stated in her questionnaire responses that she did not understand the word “insanity.” Then when the state asked juror 23 if she was “having any trouble understanding us,” she responded “I stand — I stand — understand some of it.... Not a lot.” Lastly, the state did not proffer a general feeling or “dislike” for juror 23. Rather, the state relied on the record to support its reason for the strike.

Fifth, this case also is distinguishable from Siegel and Hayes, where trial courts improperly disallowed defendants from exercising peremptory strikes. In those cases, the defendants sought to use peremptory strikes on female prospective jurors. The state raised Melbourne objections as to each juror and asked for gender-neutral reasons for the strikes. The defendants provided facially gender-neutral reasons for each strike. Thus, at that point, the state — as the opponent of the strike — had the burden to demonstrate why those reasons were pretextual. The trial courts, however, did not hold the state to its burden. Instead, the trial courts, without explanation, found the reasons were pretextual and disallowed the defendants from exercising the peremptory strikes. As a result, the jurors whom the defendants sought to strike sat on their respective juries.

In Siegel, we reversed for a new trial, reasoning in pertinent part:

There is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext. But where a gender or race neutral reason was advanced for the strike, the reason advanced is itself reasonable, and the record is devoid of any indication that the trial judge considered the relevant circumstances surrounding the strike in concluding that it was motivated by improper purposes, an appellate court must conclude that the trial judge failed to adequately engage in the genuineness inquiry mandated by Melbourne

68 So.3d at 286 (internal citations and quotations omitted).

In Hayes, the supreme court also concluded that the proper remedy was a new trial, reasoning in pertinent part:

The trial court mistakenly assessed defense counsel’s reason as if it were assessing a challenge for cause and failed to perform the critical third step of the Melbourne procedure, which requires an assessment of the genuineness of counsel’s proffered reasons for the strike. Further, the trial court erroneously relieved the State — the opponent of the strike — of its burden to establish that the reason for the challenge, despite being gender-neutral, was pretextual.

94 So.3d at 455.

Siegel and Hayes are distinguishable from this case. The trial courts in Siegel and Hayes erroneously relieved the State — the opponent of the strike — of its burden to establish that the reasons for the strikes were pretextual. Here, however, the trial court held the defendant — the opponent of the strike — to her burden to establish that the state’s reasons for striking juror 23 were pretextual. The defendant did not meet that burden, as we discussed above.

Perhaps more importantly, the effect of the trial court’s decisions in Siegel and Hayes was wholly opposite from the effect of the trial court’s decision in this case. In Siegel and Hayes, the effect of the trial courts’ decisions was to prohibit a defendant from striking jurors despite the absence of evidence of discriminatory intent, thereby allowing those jurors to sit on the respective juries. Prohibiting a defendant from striking a juror, despite the absence of evidence of discriminatory intent, was of particular concern to our supreme court in Hayes. As the court stated, it has “long recognized that [peremptory] challenges are ... one of the most important rights secured to the accused.” 94 So.3d at 463 (citation and internal quotations omitted). “Affording a criminal defendant the full use of his or her allotted peremptory challenges is an essential part of securing a fair and impartial jury under Florida’s constitution, and his or her use of peremptory challenges is limited only by the rule that such challenges may not be used to exclude prospective jurors because of their race, ethnicity, or gender.” Id. (citations omitted). That concern appears to have led the court to later state in Hayes: “Compliance with each step [of Melbourne ] is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial.” Id. (citations omitted).

Here, on the other hand, the effect of the trial court’s decision was to allow the state to exclude a prospective juror from the jury. The supreme court has long held that “the accused has a right to an impartial jury but is not entitled to any particular persons as jurors.” Penn v. State, 574 So.2d 1079, 1081 (Fla.1991) (citations omitted). Here, the defendant has not shown that the striking of juror 23 prevented her from having an impartial jury. Rather, she received a trial before a jury of six impartial persons to whom she had no objection.

By this opinion, we do not mean to suggest that peremptory challenges may be used to discriminate against distinct groups of individuals as long as the jury ultimately selected is fair and impartial. Indeed, we recognize that “the reason for the Melbourne inquiry is to prevent discrimination against distinct groups of individuals through the use of peremptory challenges.” 94 So.3d at 467. “Potential jurors also have an equal protection right under both the state and federal constitutions to jury selection procedures free from stereotypical presumptions that reflect and reinforce patterns of historical discrimination.” Nowell, 998 So.2d at 601 (citations and internal quotations omitted).

Here, however, the defendant, as the opponent of the strike, did not meet her burden to demonstrate that the state’s race-neutral reason for striking juror 23 was not genuine. Although the defense correctly argued that juror 23 was the fifth African-American which the state struck, the record reflects that race-neutral reasons existed for each of the five strikes. It is was within the trial court’s discretion to assess the credibility of the proffered reasons and determine whether these reasons were genuine in light of the circumstances of the case and the total course of the voir dire in question. The court here made that ruling.

We have conducted our own review of the record and agree with the trial court’s ruling. The record indicates that, when the defense raised Melbourne objections to jurors 3 and 7, the court referred to relevant circumstances — including the racial make-up of the venire, prior strikes exercised against the same racial group, and a strike based on a reason equally applicable to an unchallenged juror — in determining that the state’s proffered reasons for striking those jurors were genuine. The fact that the trial court did not incant magic words to indicate that it considered the same circumstances when striking juror 23 does not suggest to us that the court did not undertake a genuineness inquiry at that time. Cf. Tetreault v. State, 24 So.3d 1242, 1244 (Fla. 1st DCA 2009) (“[T]he court below bypassed the third step in the Melbourne analysis and focused solely on the fact that the State’s reasons behind its peremptory strikes were gender-neutral. [The court] did not make a finding, implicit or otherwise, that the gender-neutral reasons were genuine.”).

In reaching our conclusion, we have not simply rubber-stamped the trial court’s ruling. See Hayes, 94 So.3d at 462 (“[T]he clearly erroneous standard is not a mechanism through which appellate courts can simply rubber-stamp the trial court’s ruling.”). Nor have we simply paid deference to the trial court s assessment. See id. (“[Although the trial court is in the best position to assess the genuineness of the reason advanced, and the decision will be affirmed unless clearly erroneous ... deference does not imply abandonment or abdication of judicial review ... because deference does not by definition preclude relief.”) (citation and internal quotations omitted). Instead, we have reviewed the entire voir dire and jury selection from start to finish. After considering all relevant circumstances, we have concluded that the trial court’s finding was not clearly erroneous or an abuse of discretion.

Affirmed.

CIKLIN and LEVINE, JJ„ concur.


author: ALTENBERND, Judge.

text:
    Nancy Diane CHADWICK, Petitioner, v. STATE of Florida, Respondent.
    No. 2D12-1308.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2012.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Nancy Diane Chadwick filed a petition for writ of habeas corpus seeking immediate release from an order of probation. On May 15, 2012, we denied her petition by order, promising to explain the reasons for the denial in a later opinion. This is the promised opinion. We hold that a criminal report affidavit may serve as an affidavit alleging a violation of probation sufficient to toll a term of probation so long as its factual content is sufficient to fulfill this function. We further hold that a technical deficiency in an affidavit of violation of probation can be cured by amendment, allowing the original affidavit to toll the term of probation from the time it was originally filed.

Ms. Chadwick was arrested in July 2009 for battery on a law enforcement officer and violation of an injunction against repeat violence. She pleaded guilty to these offenses, but the trial court withheld adjudication of guilt. The trial court placed her on eighteen months’ probation for the battery and imposed a shorter term of probation for the other offense. The period of probation commenced on April 22, 2010, and, thus, was scheduled to expire on October 21, 2011. A special condition of probation required that Ms. Chadwick not file a proceeding seeking an injunction against anyone without prior court authorization.

On August 24, 2011, Ms. Chadwick apparently filed an unauthorized proceeding to obtain an injunction against someone. As a result, her probation officer arrested her on October 18, 2011, for violating this condition of her probation. The officer filed a criminal report affidavit/notice to appear (CRA/NTA) on October 19, 2011. The officer also prepared a standard affidavit of violation of probation (VOP) on October 19, 2011, but did not file that document until October 25, 2011.

In this petition, Ms. Chadwick maintains that the CRA/NTA filed on October 19 was insufficient to toll her period of probation. Because the VOP affidavit did not reach the court file until October 25, she claims that her period of probation expired on October 21, and the trial court lost jurisdiction to impose an extended term of probation. See Belt v. State, 748 So.2d 386, 388 (Fla. 5th DCA 2000) (holding that a trial court is without jurisdiction to revoke a defendant’s probation when the affidavit of violation is not filed until after the term of probation has expired).

Ms. Chadwick did not present this jurisdictional argument to the trial court at the VOP hearing. The trial court found that she had violated her probation and entered a new order of modification of probation that extended the probationary period for another eighteen months. Now Ms. Chadwick wants this court to grant her petition for writ of habeas corpus as a method to vacate the current order of probation and free her from this sentence. This is an appropriate use of the writ. See Adams v. State, 900 So.2d 598, 598 (Fla. 2d DCA 2004) (holding that a petition for writ of habeas corpus is appropriate to challenge the legality of supervised release and, by extension, continuation of probation).

Ms. Chadwick is correct that her period of probation did not toll until the State filed an affidavit alleging a violation. The relevant statute governing tolling of a probationary period provides:

Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation.

§ 948.06(1)®, Fla. Stat. (2011). A prior version of this statute required both the filing of a VOP affidavit and the issuance of an arrest warrant for execution to toll the probationary period. See Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA 2005); Jones v. State, 964 So.2d 167, 170 (Fla. 5th DCA 2007). Under the amended version, the “issuance of the warrant is no longer a necessary requirement to start the violation process if a warrantless arrest was made or a notice to appear was issued.” Gonzalez-Ramos v. State, 46 So.3d 67, 68 n. 1 (Fla. 5th DCA 2010).

The first issue in this case is whether a CRA/NTA may constitute the “affidavit alleging a violation of probation or community control” that serves to toll the original term of probation. We conclude that, as long as the CRA/NTA contains the factual allegations necessary to fulfill the function of an affidavit alleging a violation of probation or community control, the CRA/NTA can be sufficient to toll the term of probation.

In this case, a probation officer arrested Ms. Chadwick. As a result, the form CRA/NTA was filled out by an officer focusing on a violation of probation. Thus, the facts in the sworn criminal report affidavit state:

Violation of Special Condition (25) to wit, on 4/22/10, the offender was court ordered to not file any injunctions against anyone without prior court authorization. On 10/18/11, the offender reported to the Probation Officer of an injunction that she filed on 8/24/11 without court authorization.

This factual statement is the essence of an affidavit alleging a violation of probation. The statute does not require the affidavit to be titled “Affidavit in Violation of Probation.” It merely requires that a sufficient affidavit be filed. We conclude that the factual content of this affidavit fulfilled the statute and was sufficient to satisfy the second prong of the statutory requirements to toll Ms. Chadwick’s term of probation.

But our analysis cannot end at this comfortable point. Although the VOP affidavit that was prepared on October 19 and filed on October 25 was apparently proper in all respects, the CRA/NTA had several deficiencies. The standard form recites that the factual allegations are “correct to the best of my knowledge.” In the blanks provided under the capitalized words “SWORN TO AND SUBSCRIBED BEFORE ME,” the oath contains the signature of a person but no notary stamp or other indication that the person was authorized to administer oaths or attest to signatures. However, we note that the person who witnessed the CRA/NTA as a notary is the same person who properly notarized the VOP affidavit.

Thus, the question here is whether these errors rendered the CRA/NTA so defective that it did not serve to toll the term of probation. We conclude that the CRA/ NTA, despite its irregularities, was sufficient to toll the term.

An affidavit of VOP, like a criminal information, is “fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy.” Smartmays v. State, 901 So.2d 278, 280 (Fla. 5th DCA 2005) (citing State v. Burnette, 881 So.2d 693 (Fla. 1st DCA 2004)). In Smartmays, the affidavit of VOP was not signed before a person authorized to administer oaths. Because “[t]echnical defects must typically be raised at or before trial in order to be cognizable on appeal,” the Fifth District held that, in the context of a direct appeal, a defect in the affidavit may constitute reversible but not fundamental error. Smartmays, 901 So.2d at 280. Furthermore, “[djefects in a violation of probation charging document have traditionally been scrutinized by a lesser standard with the overarching consideration being protection of the probationer’s minimal due process rights.” Id. The Fifth District concluded that any error in Smartmays involved noncompliance with a provision of the pre-amendment version of section 948.06(1). “Such non-compliance, while error, is not the type of defect which has traditionally been considered fundamental, particularly in a probation revocation context.” Id.

Similarly, in Smith v. State, 917 So.2d 409, 410 (Fla. 5th DCA 2006), the problem was that the VOP affidavit, although verified, did not meet the formal requisites of section 948.06(1). No objection to the charging document was interposed at the evidentiary hearing, and the appellate court reiterated its opinion that such an error was not fundamental. But in contrast, lack of subject matter jurisdiction is fundamental error that does not require an objection at trial for preservation. See Solomon v. State, 341 So.2d 537, 538 (Fla. 2d DCA 1977) (“[T]he order which placed appellant on probation was void for lack of jurisdiction, and this is fundamental error even if not raised at the trial court.”). By extension, then, the Fifth District cases at least imply that technical defects in the charging affidavit would not, standing alone, invalidate the tolling of the probationary term so as to deprive the circuit court of jurisdiction.

In this case, we have examined documents prepared and filed by a probation officer, not a trained, licensed attorney. But even when seasoned attorneys file documents in haste to satisfy a critical time deadline, we recognize that amendment may be required to fulfill the technical requirements of the law. See Fla. R.App. P. 9.040(d) (“At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits.”). Here, any technical deficiencies in the affidavit filed on October 19 were cured by the affidavit filed on October 25. The second affidavit may not have been filed as an “amended affidavit,” but we conclude that it served that purpose. Just as jurisdiction in this court can be achieved by a lawyer’s timely but defective notice of appeal that is later cured by amendment, see Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78, 80 (Fla.1972) (“We have consistently held that a notice of appeal is sufficient if it gives the Appellate Court and the adverse party information adequate to identify in the record the judgment intended to be appealed.”); Cobb v. St. Joseph’s Hosp., Inc., 550 So.2d 1, 2 (Fla. 2d DCA 1989) (observing that technical defects in a timely notice of appeal that do not mislead or prejudice parties do not require dismissal and may be cured by amendment), we conclude that this probation officer achieved a tolling of the term of probation by timely filing the first technically defective affidavit, which was quickly cleansed of errors by the filing of the second affidavit.

Petition for writ of habeas corpus denied.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . Although not necessary in this case, the amended statute can be applied retroactively. See Shenfeld v. State, 44 So.3d 96, 98 (Fla.2010). There is little case law addressing the application of the amended version of the statute.

      . We have examined the record of Ms. Chadwick's direct appeal, 2D 11-6041, and it does not appear that any issue related to the sufficiency of the affidavit was raised in the trial court.


author: SHEPHERD, J.

text:
    CASTELO DEVELOPMENTS, LLC, Appellant, v. Nakia RAWLS, et al., Appellees.
    No. 3D12-1332.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2012.
    Rehearing Denied Sept. 10, 2013.

      Hicks, Porter, Ebenfeld & Stein and Dinah Stein and Shannon Kain, Miami, for appellant.
    CohenFox and Mario M. Ruiz and Andrew J. Cohn, Miami, for appellee Attorneys’ Title Insurance Fund, Inc.
    Before SHEPHERD, CORTINAS and ROTHENBERG, JJ.
   ORDER GRANTING MOTION TO DISMISS

SHEPHERD, J.

This is an appeal by Castelo Development, LLC from an order vacating a foreclosure sale. Appellee Attorneys’ Title Insurance Fund, Inc. moves to dismiss the appeal on the ground Castelo Development, the purchaser at the sale, lacks standing to prosecute the appeal. We dismiss the appeal on the authority of Beggi v. Ocean Bank, 91 So.3d 193 (Fla. 3d DCA 2012), As in Beggi, Castelo Development conveyed its interest in the real property at issue to a separate entity, Mortgage Bankers PBD, LLC by quitclaim deed while the motion to vacate was pending. At the time Castelo filed its notice of appeal and at the time the trial court ruled on the motion to vacate, Castelo had no interest in the condominium unit. See id. at 195.

Castelo argues in the alternative that Mortgage Bankers can be substituted in its place at this stage of the proceeding, citing Florida Rule of Appellate Procedure 9.360(c)(1), which states, “If substitution of a party is necessary for any reason, the court may so order on its own motion or that of a party.” We disagree.

Florida Rule of Appellate Procedure 9.360 addresses parties who were present in the lower tribunal. It is questionable whether Mortgage Bankers was a party below. From the record before us, it appears counsel for Mortgage Bankers first appeared below at a hearing on Castelo’s motion for reconsideration of the order vacating the foreclosure sale. At the outset of the hearing, counsel for Mortgage Bankers identified himself, but stated he was “not appearing as part of this litigation.” However, unable to contain himself, counsel took the bait from Castelo’s counsel, who, near the end of the hour-and-ten-minute-long hearing, asked the court to give Mortgage Bankers’ counsel “two minutes.” Counsel then jumped directly into the fray. We believe this act comprised an abandonment of any prior position he had articulated and constituted a general appearance by Mortgage Bankers. Martin v. Ullman, 555 So.2d 1232, 1233 (Fla. 3d DCA 1989) (concluding active participation in proceeding constitutes general appearance). If not, however, Mortgage Bankers may not intervene in this appeal at this time. See Tallahassee Democrat, Inc. v. O'Grady, 421 So.2d 58, 58 (Fla. 1st DCA, 1982) (stating a litigant who was not a party to the proceeding may not intervene after the commencement of review). If Mortgage Bankers did make a general appearance, then it is, of course, time barred from seeking review of the order before us. See Fla. R. App. P. 9.020(h); Fla. R. App. P. 9.110(a).

We thus construe Rule 9.360(c)(1) to be an enabling device, procedural in nature, by which the parties may react to events relating to the parties already before the trial court. This construction of subsection (c)(1) harmonizes it with the other three subsections of Rule 9.360(c), which pertain to ministerial matters. See Fla. R. App. P. 9.360(c)(2) (authorizing automatic substitution of a public officer who was named as a party in his or her official capacity but no longer holds the office); Fla. R. App. P. 9.360(c)(3) (authorizing substitution of the proper party for a party who dies while a proceeding is pending); Fla. R. App. P. 9.360(c)(4) (authorizing the substitution of the proper party — e.g., a later appointed personal representative— for an interested person who files a notice of appeal in the event the person entitled to file a notice dies before filing).

The authorities cited by Castelo in response to Attorneys’ Title’s Motion to Dismiss all are consistent with our interpretation of Rule 9.360(c)(1). For example, in Del Sol v. Office of the Public Defender, 994 So.2d 1145, 1146 n. 1 (Fla. 3d DCA 2008), we corrected a pro se prisoner’s scrivener’s error in a notice of appeal mistakenly named The State of Florida as the appellee, when it was obvious the prisoner meant to name The Office of The Public Defender as the appellee, and the Public Defender automatically was an appellee by our Rules. Glen Johnson, Inc. v. Resolution Trust Corp., 598 So.2d 81, 83-84 (Fla. 2d DCA 1990), is a case in which the court made the ministerial substitution of a receiver in place of a savings and loan institution which became insolvent during the pendency of the appeal. Finally, in Dudley v. McCormick, 799 So.2d 436, 438 n. 1 (Fla. 1st DCA 2001), the court merely substituted a man who had attained the age of majority after an appeal filed by his mother. See also Wade v. Singletary, 696 So.2d 754, 755 n. 1 (Fla.1997) (correcting pro se prisoner’s error in naming the Secretary of the Department of Corrections as a respondent in a petition for mandamus by substituting the proper party, the governor, who had been served with a courtesy copy of the petition and filed a motion to dismiss). See generally Philip J. Pada-vano, Florida Appellate Practice § 10.11-14 (2011 ed).

We have found no case in which this or any other court has employed Rule 9.360(c)(1) to allow a party who lacks standing to pursue an appeal. Such a rule would shake the foundation of the Florida Rules of Appellate Procedure.

Appeal dismissed.

      . Castelo contends "the property swap with Mortgage Bankers was an arms-length transaction for consideration.” The quitclaim deed reflects sixty cents was paid in documentary stamps, which, according to Mortgage Bankers, indicates Castelo deeded the property to Mortgage Bankers for no consideration. Although the transfer might have been made between Castelo and some related entity, this is a distinction without a difference. The fact remains a transfer between two independent entities occurred.


author: PER CURIAM.

text:
    Danny O. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4368.
    District Court of Appeal of Florida, First District.
    April 18, 2013.
    Rehearing Denied May 29, 2013.

      Danny 0. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Walter MARTINEZ, Petitioner, v. STATE of Florida, et al., Respondent.

      No. 1D13-2191.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Rehearing Denied Aug. 19, 2013.
    Walter Martinez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Karen Mary RAPHAEL, Petitioner, v. Gary Wayne RAPHAEL, Respondent.
    No. 5D13-1304.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.
    Brett Hartley of Brett Hartley, P.A., New Smyrna Beach, for Petitioner.
    Paul E. Rice, Jr., of Rice Rose Law, Daytona Beach, for Respondent.
   PER CURIAM.

Karen Mary Raphael seeks a writ of prohibition after the Honorable Dennis Craig denied her motion to disqualify him from further proceedings in Ms. Raphael’s dissolution of marriage case.

Ms. Raphael’s petition sets forth that there is an obvious and apparent personal bias by Judge Craig against Mr. Hartley, her attorney, that dates to well before Judge Craig took the bench. Judge Craig has previously granted two motions to disqualify in unrelated cases in which Mr. Hartley was an attorney of record. In the instant case, however, Judge Craig denied the motion to disqualify as being untimely and legally insufficient. Suffice it to say, we find that the motion was timely filed within ten days of Mr. Hartley discovering that Judge Craig was assigned to this case.

A judge’s antipathy or hostility toward a party’s counsel can provide grounds for disqualification. See Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983); Hayslip v. Douglas, 400 So.2d 553, 556-57 (Fla. 4th DCA 1981). Here, the petition clearly sets forth that there is hostility between Judge Craig and Mr. Hartley. In light of Judge Craig’s prior orders disqualifying himself in two other cases where Mr. Hartley was an attorney of record, Judge Craig should have likewise granted Ms. Raphael’s motion to disqualify. As a result, we grant the writ of prohibition, and Judge Craig is disqualified from hearing this case.

PETITION GRANTED.

PALMER, LAWSON and JACOBUS, JJ., concur.


text:
    Henry MYLES, Appellant, v. WARDEN, Century Correctional Institution, Appellee.
    No. 1D13-1187.
    District Court of Appeal of Florida, First District.
    May 29, 2013.
    Rehearing Denied Aug. 15, 2013.
    Henry Myles, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee (no appearances).
   PER CURIAM.

DISMISSED. See Jordan v. State, 549 So.2d 805, 806 (Fla. 1st DCA 1989).

WOLF, PADOVANO, and LEWIS, JJ., concur.


text:
    Kurt KLINKER, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 5D12-3896.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Rehearing Denied July 5, 2013.

      Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Petitioner.
    Stephen D. Hurm, General Counsel and Kimberly Gibbs, Assistant General Counsel of Department of Highway Safety and Motor Vehicles, Orlando, for Respondent.
   PER CURIAM.

Kurt Klinker (“Klinker”) seeks a writ of certiorari from this Court quashing a circuit court opinion which affirmed a hearing officer’s determination that Klinker’s driver’s license suspension should be sustained. We deny, as meritless, Klinker’s petition to the extent that it challenges whether there was probable cause for Trooper Ramirez’ traffic stop. Likewise, we deny Klinker’s remaining claims challenging the hearing officer’s refusal to issue subpoenas to FDLE employees Roger Skipper, Jennifer Keegan, and Laura Bar-field; the hearing officer’s refusal to set aside Klinker’s suspension based on his claim that the Intoxilyzer 8000 breath test machine has never been properly approved for evidentiary use in Florida; and his claim that the record before the hearing officer failed to include a copy of the most recent Florida Department of Law Enforcement Department (“FDLE”) Inspection Report (FDLE/ATP Form 41) for the Intoxilyzer 8000 machine used to test him.

We conclude, however, that because these latter claims have resulted in conflicting decisions in the circuit courts below, it is incumbent upon us to address the issues presented in order to resolve the confusion that currently exists. Cf. Department of H’wy Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 145 (Fla. 2d DCA 2002) (“[W]e conclude that the circuit court’s error results in a miscarriage of justice requiring certiorari relief because it has precedential value and the circuit court is applying the same error to numerous other administrative proceedings involving the suspension of driver’s licenses.”).

On June 18, 2010, Klinker was lawfully stopped in his vehicle by Trooper Ramirez after having been observed by the officer to be travelling over the posted speed limit. Trooper Ramirez approached Klinker’s vehicle and observed Klinker to have glassy, blood-shot eyes, a flushed face, slurred speech, and an odor of alcohol. After Klinker performed poorly on field sobriety exercises, Trooper Ramirez arrested Klinker for DUI and transported him to the Orange County Breath Test Center where Klinker would later submit to a breath test utilizing an Intoxilyzer 8000 breath test machine (using software version 8100.27). The results of Klinker’s two breath tests were readouts of 0.196 and 0.200, considerably above the statutory maximum of .08. Based upon this information, Trooper Ramirez suspended Klinker’s license for driving under the influence of alcohol.

Klinker would subsequently request that a formal administrative review of his license suspension be conducted by the Florida Department of Highway Safety and Motor Vehicles (“DHSMV”). See Fla. Admin. Code R. 15A-6.006. The hearing was scheduled to be held in Orlando, Florida, where the notice of suspension was issued. See Fla. Admin. Code R. 15A-6.009.

In preparation for his hearing, Klinker listed 20 separate issues to be resolved and requested that the hearing officer issue subpoenas and/or subpoenas duces tecum for three FDLE employees: Roger Skipper, Laura Barfield, and Jennifer Keegan. According to the subpoena requests, both Barfield and Keegan worked at an FDLE office in Tallahassee, and Skipper worked at an FDLE office in Orlando. According to Klinker’s prehearing statement, these three FDLE employees would be needed to testify on all the following matters at the formal administrative review hearing:

Roger Skipper: Testify as to breath test results and improper approval and registration of breath test machines, simulator solutions, including but not limited to Guth Alcohol Countermeasures and other dry gas standards are not properly approved, modification to breath test device. Non-compliance with F.D.L.E. Rules 11D-8.003, 11D-8.0035, 11D-8.004, 11D-8.006 and 11D-8.007.
Laura Barfield: Testify as to simulator solutions including but not limited to Guth Alcohol Countermeasure solutions and other dry gas standards are not properly approved, whether F.D.L.E. agency inspection permits are properly approved, improper approval and registration of breath test machines. Noncompliance with F.D.L.E. Rules 11D-8.003, 11D-8.0035, 11D-8.004, 11D-8.006 and 11D-8.007.
Jennifer Keegan: Testify as to the type of operator’s manual, maintenance manuals and schematics in the possession of the F.D.L.E. and used for the approval of breath testing machines, pursuant to all past and present versions of F.D.L.E. Rule 11D-8.003.

Utilizing this testimony, Klinker sought to demonstrate that his breath test results recorded on June 18, 2010 were invalid and unreliable because they were obtained through the use of a breath testing machine that had not been properly approved pursuant to FDLE Rule 11D-8.003, Florida Administrative Code. The hearing officer denied each of Klinker’s written subpoena requests by writing the word “Denied” and “F.S. 322.2615” across the the top of each request.

On July 28, 2010, Klinker’s formal administrative review hearing was conducted. At the hearing, the DHSMV admitted into evidence Klinker’s driver’s license, Trooper Ramirez’ arrest affidavit, the breath alcohol test affidavit prepared by Orange County Sheriffs Office employee Jimmy Burke, the Agency Inspection Report for the utilized Intoxilyzer 8000 machine (FDLE/ATP Form 40) prepared by Orange County Sheriffs Office employee Kelly Melville, and an uncertified transcript of Klinker’s driving record. In addition, the following three individuals provided live testimony at the hearing: Burke, Melville, and Trooper Ramirez. Klinker was present and represented by his attorney, Stuart Hyman. On August 6, 2010, the hearing officer entered a written order sustaining Klinker’s license suspension.

Klinker next sought to challenge the hearing officer’s decision to sustain his driver’s license suspension by filing a first-tier petition for writ of certiorari in the Orange County circuit court. See § 322.2615(13), Fla. Stat. (2010). In that proceeding, Klinker challenged, on procedural due process grounds, the hearing officer’s refusal to issue the subpoenas for FDLE employees Skipper, Keegan, and Barfield. In addition, Klinker contended that his license suspension should have been set aside by the hearing officer because his breath test results were generated by an Intoxilyzer 8000 machine that had not been properly approved for evidentiary use in the State of Florida by the FDLE. Klinker also challenged the failure of the DHSMV to ensure that the record before the hearing officer contained a copy of the most recent FDLE Department Inspection (FDLE/ATP Form 41) for the Intoxilyzer 8000 used to test him. Finally, Klinker argued that Trooper Ramirez’ traffic stop was not supported by probable cause. The circuit court ultimately issued an opinion, on rehearing, rejecting each of Klinker’s arguments.

Klinker now seeks second-tier certiorari review raising essentially the same issues that were asserted before the circuit court. For the reasons which follow, we deny the instant petition.

The Division of Driver Licenses of the DHSMV is tasked with the responsibility of conducting formal administrative review hearings, when requested by a driver, in order to determine whether the DHSMVs decision to suspend a driver’s license should be sustained, amended, or invalidated. See Fla. Admin. Code Rs. 15A-6.013(1); 15A-6.002(3). The formal review process is initiated when a law enforcement officer, on behalf of the DHSMV, issues an administrative suspension to a driver for driving with an unlawful breath alcohol level. See § 322.2615(l)(a), Fla. Stat. (2010). Once this occurs, the officer is provided five days within which he or she must provide certain documentation to the DHSMV, including “the results of any breath or blood test,” which support the officer’s determination. § 322.2615(2), Fla. Stat. (2010). Historically, the DHSMV will rely heavily upon this documentation in attempting to establish that a driver’s license suspension should be sustained.

At a formal review hearing, the proceedings are presided over by a hearing officer who is a division employee and who is tasked with the responsibility of determining “whether the suspension ... is supported by a preponderance of the evidence.” Fla. Admin. Code R. 15A-6.013(7). See also Fla. Admin. Code R. 15A-6.002(2).

Because Klinker submitted breath test samples on the Intoxilyzer 8000 machine in the instant ease, the scope of the hearing officer’s review was limited to the following questions:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in the state while under the influence of alcoholic beverages or chemical or controlled substances, and;
2. Whether the person whose license was suspended had an unlawful ... breath-alcohol level of 0.08 or higher as provided in s. 316.193.

§ 322.2615(7), Fla. Stat. (2010) (Emphasis added).

Notably, the hearing officer is empowered by statute and rule to issue subpoenas to individuals whose attendance is requested by the driver at the formal administrative hearing. However the scope of the hearing officer’s subpoena-issuing power in this regard is strictly limited to “the officers and witnesses identified in documents in subsection (2) ....” § 322.2615(6)(b); Fla. Stat. (2010); Fla. Admin. Code R. 15A-6.012(1). See also § 322.2615(11), Fla. Stat. (2010) (“The formal review hearing may be conducted upon a review of the reports of a law enforcement officer ..., including documents relating to the administration of a breath test.... However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath ... test.”).

As noted above, in the present case the record demonstrates that the only documents submitted by Trooper Ramirez to the DHSMV pursuant to his section 322.2615(2) responsibilities were Klinker’s driver’s license, Trooper Ramirez’ arrest affidavit, the breath alcohol test affidavit prepared by Orange County Sheriffs Office employee Jimmy Burke, the Agency Inspection Report for the utilized Intoxi-lyzer 8000 machine (FDLE/ATP Form 40) prepared by Orange County Sheriffs Office employee Kelly Melville, and an un-certified transcript of Klihker’s driving record. Accordingly, on the face of the record it is clear that the only individuals for whom Klinker would have the right to seek subpoenas would be Burke, Melville, and Trooper Ramirez, as these were the only “officers and witnesses identified in documents in subsection (2).” See § 322.2615(6)(b), Fla. Stat. (2010). In fact, Klinker did seek to subpoena these witnesses and, in each case, the subpoenas were issued and the witnesses appeared.

However, Klinker also seeks to challenge the proceedings below on the ground that the record of his formal administrative review hearing did not include a copy of the most recent FDLE Inspection Report (FDLE/ATP Form 41) for the Intoxi-lyzer 8000 machine used to test him. An FDLE Inspection Report is a yearly inspection of a given Intoxilyzer machine conducted by an FDLE inspector in order to “validate[] the instrument’s approval for evidentiary use.” Fla. Admin. Code R. llD-8.004(2). The specific responsibilities of such an FDLE Inspector include “register[ing] evidentiary breath test instruments, ... conducting] inspections and maintenance of breath test instruments and related equipment and facilities, [and] to conduct and monitor training classes, and to otherwise ensure compliance with Chapter 11D-8, F.A.C.” Fla. Admin. Code R. llD-8.004(4). This Court takes judicial notice of the fact that historically, these FDLE inspections in Orange County have been conducted by Roger Skipper and that Mr. Skipper has affixed his signature to numerous FDLE Inspection Reports (FDLE/ATP Form 41) as the certifying official.

Thus, a key question presented in the instant case is whether an FDLE Inspection Report would qualify as a document that law enforcement must submit to the DHSMV pursuant to section 322.2615(2). If it is determined to be such a document, then it would necessarily follow that Klinker would have a statutory right to subpoena the author of that document (presumably Roger Skipper) pursuant to the express language of section 322.2615(6)(b).

We conclude, however, that an FDLE Inspection Report (FDLE/ATP Form 41) is not a document which is contemplated in the language of section 322.2615(2). First, a review of the language of section 322.2615(2) reveals that an FDLE Department Inspection Report could only qualify under the language of that section if it was determined to constitute “the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit.” (Emphasis added). In our view, when read in its totality, this language in subsection (2) clearly refers to documentation, such as the breath alcohol test affidavit, which is designed to provide the “results” of a driver’s breath alcohol level as determined on the date that the driver actually took the breath alcohol test.

Furthermore, as has previously been discussed, an FDLE Department Inspection Report is designed to “validate! ] the instrument’s approval for evidentiary use.” Fla. Admin. Code R. 11D-8.004(2). In achieving this goal, an FDLE inspector performs an annual inspection and maintenance of each Intoxilyzer 8000 machine in the State of Florida in order to determine that each machine is functioning properly. See Fla. Admin. Code R. llD-8.004(4).

Given this purpose of an FDLE Inspection Report, it is our view that such a report is more akin to a report related to the maintenance of a breath testing instrument, as opposed to the results of a breath testing instrument. While it is true that a report related to “the maintenance of a breath testing instrument” is a document that the Florida Administrative Code expressly states that a hearing officer “may” consider, see Fla. Admin. Code R. 15A-6.013(2), we find that such maintenance reports do not fall within the language of section 322.2615(2), such that a law enforcement officer must provide it to the DHSMV within five days of the issuance of a notice of suspension. Moreover, since we conclude that FDLE Inspection Reports do not fall within the purview of section 322.2615(2), it follows that a driver has no right to request that a subpoena be issued for any individuals identified in such a report. See § 322.2615(6)(b), Fla. Stat. (2010). Thus, in the context of the instant case, we find that the hearing officer correctly refused to issue a subpoena for FDLE employee, Roger Skipper.

Finally, we reject Klinker’s arguments contending that his breath test results were invalid and unreliable due to his claim that they were obtained through the use of an Intoxilyzer machine that had not been properly approved by the FDLE pursuant to Rule 11D-8.003, Florida Administrative Code. We conclude that such challenges to the approval process of the Intoxilyzer machine are simply beyond the scope of a formal driver’s license review proceeding. We are buttressed in this conclusion by the restrictive statutory language located in sections 322.2615(2) and 322.2615(6)(b), which require law enforcement officers to produce to the DHSMV documentation related only to the “results” of the actual breath test at issue, and which limits a hearing officer’s subpoena powers to only the individuals identified in the documents provided pursuant to section 322.2615(2). Furthermore, we are compelled to this result by the recent amendments to the language of Florida Administrative Code Rule 15A-6.013(2), which now give the hearing officer the discretion to consider certain pieces of documentation, such as reports related to the maintenance of a breath testing instrument, where once such consideration was required.

PETITION DENIED.

SAWAYA, JACOBUS and BERGER, JJ., concur.

      . The pertinent language of section 322.2615(2), Florida Statutes (2010) is as follows:
      [T]he law enforcement officer shall forward to the department, within 5 days after issuing the notice of suspension, the driver’s license; an affidavit stating the officer’s grounds for belief that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit; the officer's description of the person’s field sobriety test, if any; and the notice of suspension. The failure of the officer to submit materials within the 5-day period specified in this subsection and in subsection (1) does not affect the department's ability to consider any evidence submitted at or prior to the hearing. The officer may also submit a copy of the crash report and a copy of a videotape of the field sobriety test or the attempt to administer such test. Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer. Notwithstanding s. 316.066(5), the crash report shall be considered by the hearing officer.

      . This Court has previously recognized that the utilization of hearing officers who are employed by the DHSMV does not alter the fact that the formal review procedure "is ‘prompt,’ ‘fair’ and ‘meaningful’ enough to meet the requirements of due process and is facially valid.” Dep’t of Hwy. Safety & Motor Vehicles v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993).

      . While these rules only provide a driver the right to obtain subpoenas for those individuals identified in the documents listed in section 322.2615(2), Florida Statutes, it should be noted that the hearing officer is still provided with the discretion to issue subpoenas for other witnesses he or she deems relevant to the proceedings. See Fla. Admin. Code R. 15A-6.012(1) (“The hearing officer may issue a subpoena on his or her own initiative without the request of the driver.”).

      . Like our sister Court in Yankey v. Department of H'wy Safety & Motor Vehicles, 6 So.3d 633, 638 (Fla. 2d DCA 2009), we express no view on whether an Agency Inspection Report (FDLE/ATP Form 40) is contemplated in the language of section 322.2615(2). Here, the Agency Inspection Report was entered into evidence by the DHSMV and Klinker was allowed to subpoena the individual who authored that report (Kelly Melville).

      . It is significant to note that on March 11, 2007, the language of Rule 15A-6.013(2) was amended in numerous respects. Among the major changes made to Rule 15A-6.013(2) was die replacement of the word "shall” with the word "may”, such that the hearing officer was no longer required to consider the former, lengthier list of enumerated documents listed within this subsection, but instead now had the discretion to consider the remaining documents listed therein. See The Florida Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla.2002) ("The word 'may' when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word 'shall' ”.).

      . Likewise, we find that the hearing officer correctly rejected the subpoena requests for Laura Barfield, and Jennifer Keegan. There is simply no reason to believe that either of these two individuals appeared on any of the documents submitted by law enforcement to the DHSMV pursuant to section 322.2615(2).

      . We would note, parenthetically, that contrary to Klinker’s assertion in the instant petition, the FDLE has approved the Intoxilyzer 8000 model for evidentiary use in the State of Florida. See Fla. Admin. Code R. 11D-8.003(2). In our view, any challenges directed at deficiencies in this approval process are better addressed in a civil or criminal action.


text:
    Darren WINSLOW, Petitioner, v. Jennifer WINSLOW, Respondent.
    No. 1D13-0452.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Rehearing Denied Aug. 22, 2013.
    Darren Winslow, pro se, Petitioner.

      No appearance for Respondent.
   PER CURIAM.

Because petitioner has failed to show that he has brought the pending motion to the attention of the trial court or made an express and distinct demand for performance, the petition for writ of mandamus is denied. See Thomas v. State, Dep’t of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011); Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).

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


text:
    Naresh Kumar JAIN, R.Ph., Appellant, v. FLORIDA DEPARTMENT OF HEALTH, BOARD OF PHARMACY, Appellee.
    No. 1D12-2634.
    District Court of Appeal of Florida, First District.
    June 10, 2013.
    Rehearing Denied Aug. 19, 2013.
    George F. Indest, III, Lance O. Leider, and Michael L. Smith of the Health Law Firm, Altamonte Springs, for Appellant.
    Therese A. Savona, Tallahassee, for Ap-pellee.
   PER CURIAM.

This appeal is from a final order of the Florida Board of Pharmacy (“Board”) revoking the appellant’s professional license. The Department of Health properly concedes that the order must be reversed, and the matter remanded for a new hearing, because Appellant did not receive notice of the April 11, 2012, meeting at which the Board revoked his license. See Butler v. State Bd. of Nursing, 107 So.3d 1184 (Fla. 1st DCA 2013) (reversing administrative order revoking state nursing license where board failed to properly notify appellant of hearing).

REVERSED and REMANDED.

CLARK, ROWE, and MARSTILLER, JJ, concur.