source: Caselaw Access Project

author: PER CURIAM.

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text:
    Robert L. HENRY, Appellant, v. STATE of Florida, Appellee.
    No. SC14-398.
    Supreme Court of Florida.
    March 14, 2014.

      Melodee A. Smith, Offices of Melodee A. Smith, and Kevin James Kulik of Kevin J. Kulik, PA, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Robert Henry is a prisoner under sentences of death for whom a death warrant has been signed and execution set for March 20, 2014. In 1988, Henry was convicted of the first-degree murders of Phyllis Harris and Janet Thermidor, armed robbery with a deadly weapon, and arson. Henry now appeals the denial of his second successive motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.851; the denial of his motion to declare section 922.052, Florida Statutes (2013), unconstitutional; and his motion to dismiss his death warrant. For the reasons explained below, we affirm the post-conviction court’s denial of relief. In addition, we deny Henry’s motion for a stay of execution, filed March 12, 2014.

I. BACKGROUND

On November 1,1987, Henry tied up his coworkers Harris and Thermidor, hit each of them on the head with a hammer, and set them on fire. Harris was found dead, but Thermidor survived until the next day and identified Henry as the perpetrator. When interviewed by law enforcement officers, Henry initially claimed that he was forced to attack his coworkers by unknown robbers but later confessed that he acted alone. Henry v. State, 613 So.2d 429, 430-31 (Fla.1992).

The jury recommended a death sentence for the murder of Harris by a vote of eight to four and for the murder of Thermidor by a vote of nine to three. The trial court imposed a life sentence for the armed robbery, a life sentence for the arson, and a death sentence for each murder. In imposing death sentences for both murders, the trial court concluded that five aggravating factors were applicable to each murder: (1) the murder was committed during the commission of a robbery and arson; (2) the murder was committed to avoid arrest; (3) the murder was committed for pecuniary gain; (4) the murder was especially heinous, atrocious, or cruel (HAC); and (5) the murder was committed in a cold, calculated, and premeditated manner (CCP). Despite Henry’s decision to waive the presentation of mitigating evidence, the trial court also found two mitigating factors: (1) Henry had no significant prior criminal history; and (2) Henry served in the United States Marine Corps. State v. Henry, No. 88-18628 CF 10 (Fla. 17th Jud. Cir. Ct. order filed Nov. 9, 1988).

On direct appeal, Henry argued that: (1) the trial court erred in partially denying Henry’s motion to suppress his statements; (2) the trial court erred in denying Henry’s motion to suppress Thermidor’s statement; (3) the trial court erred by failing to give an instruction on duress; (4) a discovery violation occurred; (5) the prosecutor made improper comments; (6) Florida’s rule requiring a defendant to forego presenting witnesses to preserve first and last arguments is unconstitutional; (7) the presentation of victim impact evidence was improper; (8) the trial court erred by admitting irrelevant and cumulative photographs; (9) the State presented false testimony; (10) the trial court erred by allowing the State to argue alternative theories of premeditated and felony murder; (11) the trial court applied the wrong standard of proof to the mitigating factors and erred by allowing Henry to waive the presentation of mitigating evidence; (12) the trial court gave improper penalty phase instructions; (13) the aggravating factors were not established beyond a reasonable doubt or were unconstitutional, and the trial court considered nonstatutory aggravating factors; (14) Florida’s death penalty scheme is unconstitutional; (15) Henry’s right to be present during all stages of the trial was violated; (16) the presentence investigation report violated Henry’s rights under the Confrontation Clause of the United States Constitution; and (17) the trial court erred by departing from the sentencing guidelines when sentencing Henry on the arson and robbery convictions.

In Henry v. State, 586 So.2d 1033, 1034-35 (Fla.1991), this Court concluded that each of Henry’s claims was without merit or unpreserved and affirmed the convictions and sentences. That decision was vacated, however, by the United States Supreme Court in Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). The Supreme Court remanded Henry’s case to this Court for further consideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992) (concluding that the standard jury instruction given on the HAC aggravating factor was unconstitutionally vague), and Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (concluding that the defendant failed to preserve for appeal his argument that the standard jury instruction given on the HAC aggravating factor was unconstitutional). On remand, this Court issued a revised opinion and again affirmed Henry’s convictions and sentences. This Court explained that although Florida’s former standard jury instruction on the HAC aggravating factor had been determined to be unconstitutional, in Henry’s case, the trial court gave an expanded instruction that was not unconstitutionally vague. Henry, 613 So.2d at 434.

In 1998, Henry filed an amended initial motion for postconviction relief, raising fifty-one claims, which was denied by the postconviction court. Henry appealed and filed a petition for a writ of habeas corpus. This Court affirmed the denial of Henry’s postconviction motion; determined that the postconviction court did not commit reversible error by limiting the evidentiary hearing to the deficiency prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and concluded that “only the postconviction claims that were considered at the evidentiary hearing merit discussion.” Henry v. State, 987 So.2d 563, 568 (Fla.2006). Those claims were: (1) trial ■ counsel was ineffective for failing to develop a mitigation strategy that emphasized Henry’s drug addiction; (2) trial counsel was ineffective for failing to follow Henry’s initial psychological screening with a full mental health mitigation evaluation; and (3) Henry’s waiver of the presentation of mitigating evidence was not knowingly and intelligently made due to trial counsel’s inadequate penalty phase investigation. Id. at 571-75. This Court also denied Henry’s habeas petition, which alleged that: (1) appellate counsel failed to raise numerous meritorious issues due to the page number limitation imposed on appellate briefs; (2) appellate counsel failed to raise claims on direct appeal concerning the record being incomplete and the need for a change of venue; and (3) the constitutionality of the indictment must be revisited in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In 2003, Henry filed a motion for post-conviction DNA testing under Florida Rule of Criminal Procedure 3.853. That motion was denied in October 2007, and Henry failed to file a timely appeal. In 2008, Henry filed a motion for belated appeal, which was treated as a petition for a writ of habeas corpus. This Court relinquished jurisdiction to the circuit court to determine if a belated appeal was warranted. The circuit court concluded that Henry was not entitled to a belated appeal, and in 2010, this Court denied Henry’s petition. Henry v. State, 43 So.3d 690 (Fla.2010) (Table).

In 2007, Henry filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida. Henry raised six claims: (1) the trial court erred by admitting Henry’s statements; (2) trial counsel was ineffective for failing to attach the search warrant used to obtain incriminating evidence; (3) the trial court erred by admitting victim Thermidor’s statement; (4) the trial court erred by failing to allow DNA testing of a beer can found at the crime scene; (5) appellate counsel was ineffective; and (6) Henry’s death sentences are excessive. While his habeas petition was pending, Henry filed a motion to hold his habeas petition in abeyance in order to litigate some of his claims in state court, a pro se supplemental motion to hold his petition in abeyance, and a motion to stay. On March 19, 2009, the federal court issued an order denying Henry’s motions. The federal court concluded that several of Henry’s claims had not been exhausted in the state courts and that Henry failed to establish the requirements for a stay and abeyance to finish litigating those claims. The federal court thus ruled that unless Henry withdrew his unexhausted claims by April 1, 2009, his habeas petition would be dismissed. Henry v. McDonough, No. 07-61281-CIV-HU CK, 2009 WL 762219 (S.D.Fla. Mar. 19, 2009).

In 2012, Henry filed a pro se successive motion for postconviction relief, alleging that newly discovered evidence will show that his chronic drug addiction is now scientifically recognized as a brain disease. The postconviction court summarily denied the motion, and this Court affirmed the denial. Henry v. State, 125 So.3d 745, 752 (Fla.2013).

Most recently, following the signing of his death warrant on February 13, 2014, Henry filed a second successive postcon-viction motion. Henry alleged that Florida’s lethal injection protocol is unconstitutional because: (1) midazolam hydrochloride (midazolam) should not be used as the first drug of the protocol; (2) due to Henry’s specific health concerns, the use of midazolam creates a substantial risk of harm to him; (3) the consciousness check in the protocol is inadequate; (4) the execution team is inadequately trained and might not follow the protocol; (5) a one-drug protocol does not pose the same risk of causing pain as the current three-drug protocol.. Henry later amended his motion to add more detail regarding his as-applied challenge to Florida’s lethal injection protocol and to add a claim that Henry’s death sentences violate the Eighth Amendment of the United States Constitution because the jury recommendations were nonunanimous. In addition, Henry filed: (1) a motion arguing that section 922.052 — as amended by the Timely Justice Act (Act), ch.2013-216, §§ 1-9, at 2596-2613, Laws of Fla. — is both facially unconstitutional and unconstitutional as applied to Henry; and (2) a motion to dismiss his death warrant, asserting that the warrant was fatally defective for not stating a time of execution. On February 26, 2014, the postconviction court denied Henry’s amended motion for postconviction relief, his motion to declare section 922.052 unconstitutional, and his motion to dismiss the death warrant.

Regarding the first part of Henry’s as-applied challenge, the postconviction court reasoned that Henry’s claim that due to his mental health, the use of midazolam would create a substantial risk of serious harm was insufficiently pleaded. The postconviction court explained that Henry’s motion did not allege what mental health disorder Henry suffers from or how, as a result of that disorder, Henry would react to an injection of midazolam.

The postconviction court also rejected the second part of Henry’s as-applied challenge — his claim that due to his-hypertension, high cholesterol level, and coronary artery disease, the use of midazolam creates a substantial risk of serious harm. The postconviction court reasoned that while Henry presented an affidavit and an amended affidavit by Dr. Zivot that supported Henry’s allegations that the injection of midazolam may cause Henry to experience an acute coronary event, Henry did not proffer any evidence that he “will be conscious at the onset of the acute coronary event” or “that midazolam will not have the intended effect of rendering Defendant unconscious and insensate, and cause him to experience an acute coronary event while conscious.” State v. Henry, No. 87-018628CF10A at 10 (Fla. 17th Jud. Cir. Ct. order filed Feb. 26, 2014).

The postconviction court concluded that each of Henry’s remaining challenges to Florida’s lethal injection protocol should be denied because the claims have been rejected by this Court in Howell v. State, 133 So.3d 511 (Fla.2014), cert. denied, — U.S. -, 134 S.Ct. 1376, 188 L.Ed.2d 372, 2014 WL 727245 (2014), and Muhammad v. State, 132 So.3d 176, (Fla.2013), cert. denied, — U.S. -, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014). And citing Kimbrough v. State, 125 So.3d 752 (Fla.), cert. denied, — U.S.-, 134 S.Ct. 632, 187 L.Ed.2d 412 (2013), and Mann v. State, 112 So.3d 1158 (Fla.2013), the postconviction court denied Henry’s claim that his death sentences are unconstitutional as a result of nonunanimous jury recommendations.

In a separate order, the postconviction court denied Henry’s motion to declare section 922.052 unconstitutional. The postconviction court concluded that because the Office of Executive Clemency began Henry’s clemency proceeding before the passage of the Act, Henry’s motion should be denied under Muhammad, in which this Court declined to reach Muhammad’s constitutional challenge to section 922.052. In a third order, the post-conviction court denied without discussion Henry’s motion to dismiss his death warrant. State v. Henry, No. 87-018628CF10A (Fla. 17th Jud. Cir. Ct. order filed Feb. 26, 2014).

Henry appealed in this Court, raising three claims. Henry argued that the post-conviction court erred by denying his motion to declare section 922.052 unconstitutional, denying his motion to dismiss his death warrant, and summarily denying his as-applied challenge to the lethal injection protocol.

After considering Henry’s argument and-the State’s response, on March 6, 2014, this Court relinquished jurisdiction to the postconviction court in order to conduct an evidentiary hearing on Henry’s as-applied challenge to Florida’s lethal injection protocol. On March 10, 2014, the postconviction court held an evidentiary hearing, during which both Henry and the State called medical experts to testify about the likely effect on Henry of intravenous administration of 500 milligrams of midazo-lam. On March 11, 2014, the postconviction court again denied Henry’s as-applied challenge.

In addition to his claims on appeal regarding his motion to declare section 922.052 unconstitutional and his motion to dismiss the death warrant, Henry now appeals the denial of his claim that Florida’s lethal injection protocol is unconstitutional as applied to him and has filed a motion for stay of execution. For the reasons expressed below, we affirm the postconviction court’s denial of relief and deny Henry’s motion for a stay of execution.

II. ANALYSIS

A. Motion to Declare Section 922.052 Unconstitutional

In his first issue on appeal, Henry argues that section 922.052, as amended by the Act, violates the Separation of Powers Clause of the Florida Constitution, art. II, § 3, Fla. Const., by limiting the Governor’s discretion to grant clemency and sign death warrants. The determination of a statute’s constitutionality is a question of law subject to de novo review. See Graham v. Haridopolos, 108 So.3d 597, 603 (Fla.2013). In this case, the postconviction court did not err by relying on Muhammad — in which this Court declined to reach a similar constitutional challenge to section 922.052 — to deny Henry’s motion.

In his initial brief, Henry concedes that his clemency proceeding began in February 2012, whereas the Florida Legislature did not pass the Act until April 2013, and the Governor did not sign it into law until June 2013. As in Muhammad’s case, after the passage of the Act, the Governor could have chosen to continue, rather than complete, Henry’s clemency proceeding. Furthermore, after signing a death warrant, the Governor retains statutory authority to stay Henry’s execution if he chooses to do so. See § 922.06(1), Fla. Stat. (2013) (“The execution of a death sentence may be stayed only by the Governor or incident to an appeal.”). Based on the foregoing, as in Muhammad’s case, this Court cannot conclude that Henry’s “death warrant would not have been signed but for the Act.” Muhammad, 132 So.3d at 200. Thus, the postconviction court did not err in denying Henry’s motion to declare section 922.052 unconstitutional.

B. Motion to Dismiss Death Warrant

In his second issue on appeal, Henry contends that the postconviction court erred by denying his motion to dismiss his death warrant. Henry asserts that the plain language of sections 922.052(2)(b) and 922.052(3) requires the time of execution to be “designated in the warrant” and that his execution cannot proceed because the warrant in his case does not designate a time of execution. A trial court’s ruling on a motion to dismiss and the interpretation of a statute are both legal questions subject to de novo review. See Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 592 (Fla.2013); Tasker v. State, 48 So.3d 798, 804 (Fla.2010). The postconviction court did not err in denying the motion to dismiss.

On February 13, 2014, Governor Scott signed Henry’s death warrant. The Governor sent a document titled “Death Warrant” to Warden Palmer along with a cover letter. While the “Death Warrant” did not specify a time of execution; the cover letter stated: “I have designated the week beginning at 12:00 noon on Tuesday, March 18, 2014, through 12:00 noon on Tuesday, March 25, 2014, for the execution. I have been advised that you have set the date and time of execution for Thursday, March 20, 2014, at 6:00 p.m.” This cover letter also was sent to Chief Justice Ricky Polston of the Florida Supreme Court, Chief Judge Peter Weinstein of the Seventeenth Judicial Circuit, Secretary Michael Crews of the Florida Department of Corrections, Julia McCall of the Office of Executive Clemency, Assistant Deputy Attorney General Carolyn Snur-kowski, Henry, and Henry’s counsel. Despite the clear time designation in the cover letter, Henry contends that his execution cannot proceed because the time was not designated in the document actually titled “Death Warrant.”

Henry’s motion to dismiss his warrant was properly denied because section 922.052 does not grant death-sentenced inmates a right to challenge the Governor’s exercise of discretion in issuing death warrants. In Jarvis v. Chapman, 118 Fla. 577, 159 So. 282, 284 (1934), this Court examined an inmate’s petition for a writ of habeas corpus alleging that executive branch officials failed to comply with a statute requiring that “the copy of the record” of the inmate’s conviction and sentence be attached to the death warrant. This Court determined that the death-sentenced inmate was not entitled to challenge whether the warrant complied with the statute:

We hold that he has no rights in regard to it. It is merely a ministerial function as to the carrying out of the sentence pronounced upon the petitioner. His legal rights are ended so far as that judgment is involved. He has no voice as to the day he is to be executed, nor when the executive warrant shall issue, nor whether the certified copy of the record supplied to the Governor contains matters or does not contain matters that do not relate' to the record proper which is designed to show only that the court pronouncing the sentence had jurisdiction of the person and crime, that there was a trial, verdict, and judgment and sentence, and, in case of appellate proceeding, a copy of the mandate from the appellate court.

Id. at 289. Similarly, in Tompkins v. State, 994 So.2d 1072 (Fla.2008), this Court concluded that a death-sentenced inmate could not challenge the Governor’s issuance of a warrant or the timing of his execution. Following the signing of his death warrant in 2008, Tompkins argued that because Governor Bush — who had signed a death warrant for Tompkins in 2001 — “was required [by section 922.06(2) ] to reschedule his execution within ten days of the lifting of the stay of execution,” “Governor Crist lacked the authority to reset the execution in October 2008.” Id. at 1084. This Court affirmed the summary denial of Tompkins’ claim, reasoning that it was procedurally barred and, alternatively, that “there is no authority that supports a claim that section 922.06(2) either explicitly or implicitly provides criminal defendants with any enforceable rights and, specifically, a ‘right’ to a speedy execution.” Id. Henry, like Jarvis and Tompkins, does not offer any authority to support his claim that his sentence should be delayed or commuted as a result of any noncompliance with a statute governing the issuance of a death warrant.

Moreover, when sections 922.052 and 922.06 are read as a whole, the Legislature clearly expresses an intent that a time designation in the warrant is not essential to carrying out the sentence. See State v. Fuchs, 769 So.2d 1006, 1009 (Fla.2000) (“[S]tatutes which relate to the same or closely related subjects should be read in pari materia.”).

Section 922.052(2)(b) states: “Within 30 days after receiving the letter of certification from the clerk of the Florida Supreme Court, the Governor shall issue a warrant for execution if the executive clemency process has concluded, directing the warden to execute the sentence within 180 days, at a time designated in the warrant.” (Emphasis added.) Similarly, section 922.052(3) provides: “The sentence shall not be executed until the Governor issues a warrant, attaches it to the copy of the record, and transmits it to the warden, directing the warden to execute the sentence at a time designated in the warrant.” (Emphasis added.) Section 922.052(4), however, explains that “[i]f, for any reason, the sentence is not executed during the week designated, the warrant shall remain in full force and effect and the sentence shall be carried out as provided in s. 922.06.” (Emphasis added.) Section 922.06(2), in turn, provides:

(a) If execution of the death sentence is stayed by the Governor, and the Governor subsequently lifts or dissolves the stay, the Governor shall immediately notify the Attorney General that the stay has been lifted or dissolved. Within 10 days after such notification, the Governor must set the new date for execution of the death sentence.
(b) If execution of the death sentence is stayed incident to an appeal, upon certification by the Attorney General that the stay has been lifted or dissolved, within 10 days after such certification, the Governor must set the new date for execution of the death sentence.
When the new date for execution of the death sentence is set by the Governor under this subsection, the Attorney General shall notify the inmate’s counsel of record of the date and time of execution of the death sentence.

When read in pari materia, these statutes provide that an inmate’s execution time and date can be changed without directing the Governor to revise the existing warrant or to issue a new warrant. Thus, contrary to Henry’s argument, the plain language of chapter 922 does not evince an intent by the Legislature that an execution should be barred on the basis that the time of execution is not designated in the warrant.

C. As-Applied Challenge to Florida’s Lethal Injection Protocol

In his third issue on appeal, Henry argues that the postconviction court erred in denying his claim that due to Henry’s specific medical concerns, the use of midazolam as the first drug of the lethal injection process creates an unconstitutional risk of severe pain. “[Mjixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Connor v. State, 803 So.2d 598, 605 (Fla.2001). Again, the postconviction court did not err in denying Henry’s claim.

Article I, section 17 of the Florida Constitution provides that “[a]ny method of execution shall be allowed, unless prohibited by the United States Constitution.” Article I, section 17, further requires that its prohibition against excessive punishment “shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution.” We are therefore bound by the precedent of the United States Supreme Court regarding challenges to methods of execution.

The Supreme Court has held that to state a claim under the Eighth Amendment, a defendant must show that the state’s lethal injection protocol is “ ‘sure or very likely to cause serious illness and needless suffering.’ ” Brewer v. Landrigan, — U.S. -, 131 S.Ct. 445, 445, 178 L.Ed.2d 346 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion)). “In other words, there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.” Howell, 133 So.3d at 517 (internal quotation marks omitted). “This heavy burden is borne by the defendant — not the State.” Id.

At the March 10, 2014, evidentiary hearing, Henry called Dr. Joel Zivot, an Assistant Professor of Anesthesiology in Surgery and the Medical Director of the Cardiothoracic Intensive Care Unit at Emory University Hospital and a practicing anesthesiologist. Based on Florida Department of Corrections’ medical records provided by Henry’s counsel and an in-person examination of Henry, Dr. Zivot opined that Henry has “coronary artery disease of a significant nature.” Dr. Zivot then explained that if a person injected with midazolam is — like Henry — taking a diuretic to treat high blood pressure, that person’s blood pressure will fall more than would the blood pressure of a person with normal blood pressure and could fall “quite dramatically.” Dr. Zivot also testified that in a person with coronary artery disease, like Henry, “once the blood pressure falls and the coronary blood flow is reduced ... almost instantaneously there can be the beginning of damage to a heart muscle [that] is experienced as pain or tightness or shortness of breath or pressure.” Finally, Dr. Zivot testified that there is a substantial risk that the fall in blood pressure in Henry’s case would occur before a loss of complete consciousness and that the coronary event would be experienced as pain.

In response, the State called Dr. Mark Dershwitz, a member of the Department of Anesthesiology and the Department of Biochemical and Molecular Pharmacology at the University of Massachusetts Medical School and a clinician at UMass Memorial Health Care. Dr. Dershwitz opined, to a reasonable degree of medical certainty, that an inmate injected with a massive dose of midazolam would be unconscious before any “hypothetical drop in blood pressure” occurred.

Regarding whether an injection of mi-dazolam would cause a drop in blood pressure, Dr. Dershwitz testified that at the “usual[] doses for inducing general anesthesia, thirty, thirty-five, or even fifty milligrams, the drop in blood pressure is very mild if at all.” Dr. Dershwitz then explained that any drop in blood pressure from an injection of midazolam would not occur until after the recipient of the drug had lost consciousness. First, Dr. Der-shwitz testified that because a fifty milligram dose would render a person “in the state of general anesthesia” such that “they could not perceive or process any sort of noxious stimuli,” the initial 250-milligram dose required by Florida’s lethal injection protocol would certainly result in unconsciousness. Second, Dr. Dershwitz explained that this unconsciousness would occur quickly. He testified that when mi-dazolam is given intravenously, “Consciousness will be lost after around twenty-five or thirty or thirty-five milligrams will actually have been delivered,” which “would actually go in within the first couple of seconds,” and that the “onset of the effect of [m]idazolam is usually quoted as around one to two minutes.” Third, Dr. Dershwitz explained that any impact on a recipient’s blood pressure from a large dose of midazolam does not happen as quickly as unconsciousness because “the action of [mjidazolam to drop the blood pressure is going to happen at the level of the vasculature, not anywhere closer to the heart or the brain.” Dr. Dershwitz explained the course of midazolam through the body:

Because, first of all, after the blood is pumped from the heart to the circulation, the brain receives literally the first amount of the blood pumped from the heart because of its proximity.
And so once the brain will have received approximately twenty-five milligrams[,] the inmate will be unconscious.
Now, for the blood pressure to fall, not only does the [m]idazolam need to be pumped far more distantly, especially to the lower extremities, but once it reaches theref,] it then has to start a cascade of events to result in the relaxation of smooth muscle to cause the dilation of the blood vessels that would then result in a drop of blood pressure. And that does not happen instantly.
And so there is no plausible way that I could imagine that even if the [m]i-dazolam caused a drop in blood pressure!,] it would occur prior to the inmate losing consciousness.

The State also called Dr. Roswell Lee Evans, a doctor of pharmacy, who is a professor and dean at the Harrison School of Pharmacy at Auburn University. Dr. Evans testified that while he does not know what effect a 250- or 500-milligram dose of midazolam will have on a recipient’s blood pressure, the relevant pharmaceutical literature indicates that midazo-lam — at a therapeutic dose — at most could cause a “reduction in blood pressure of about twenty percent,” which “should not be of any particular danger” — regardless of the person’s coronary health. Furthermore, Dr. Evans testified that the first part of the body to be affected by midazo-lam is the brain. He explained that “[w]ithin one to two minutes you are going to get a very significant effect on' the central nervous system” and that the recipient of 250 milligrams of midazolam would “almost immediately” lose consciousness and not be able to feel pain. Dr. Evans concluded that after the initial injection of 250 milligrams of midazolam, Henry will not be conscious to experience the pain of any acute coronary event that may occur as a result of any reduction of blood pressure caused by the midazolam.

After considering this testimony and argument from the parties, the post-conviction court denied Henry’s as-applied challenge. The postconviction court determined that Henry “did not meet the burden of showing that given his hypertension diagnosis, elevated cholesterol, and coronary artery disease, the use of midazolam in his case is ‘sure or very likely to cause serious illness and needless suffering.’ ” State v. Henry, No. 87-018628CF10A at 13 (Fla. 17th. Jud. Cir. Ct. order dated Mar. 11, 2014) (quoting Brewer, 181 S.Ct. at 445). The postconviction court concluded that Henry did not demonstrate a substantial risk of serious harm from the use of midazolam in Florida’s lethal injection protocol because the evidence established that even if Henry were to suffer an acute coronary event as a result of an injection of midazolam, he would be unconscious and unable to process the pain associated with a heart attack. Id. at 12.

The postconviction court’s conclusion is supported by competent, substantial evidence. At the evidentiary hearing, Dr. Dershwitz testified that any drop in blood pressure from an injection of midazolam would not occur until after the recipient of the drug had lost consciousness. Dr. Der-shwitz explained that because the midazo-lam affects blood pressure by relaxing the smooth muscle tissue of the peripheral blood vessels, an intravenous injection of midazolam will affect the brain, leading to unconsciousness, more quickly than it will affect blood pressure. Dr. Dershwitz also testified that once rendered unconscious by midazolam, a person “could not perceive or process any sort of noxious stimuli.”

Because Henry has not shown a “substantial risk of serious harm,” Howell, 133 So.3d at 521, he has not demonstrated that Florida’s lethal injection protocol — as applied to him — violates the Eighth Amendment of the United States Constitution. Accordingly, the postconviction court did not err in denying his second successive postconviction motion.

III. CONCLUSION

For the reasons stated above, we affirm the postconviction court’s denial of Henry’s second successive motion for postconviction relief, his motion to declare section 922.052 unconstitutional, and his motion to dismiss the death warrant. Additionally, we deny Henry’s motion for a stay of execution. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

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


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    Fernando FROMETA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and YSS, Inc., Burger King # 9485, Appellees.
    No. 1D09-0191.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2010.
    Fernando Frometa, pro se Appellant.
    Geri Atkinson-Hazelton, General Counsel, and M. Elaine Howard, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Contrera v. Fla. Unemployment Appeals Comm’n, 894 So.2d 269 (Fla. 1st DCA 2004).

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


text:
    Shawn Ross McPHERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-951.
    District Court of Appeal of Florida, First District.
    June 21, 2010.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal from his criminal convictions, the appellant challenges the denial of a motion to suppress evidence obtained pursuant to a search warrant. Although the officers who submitted the affidavit in support of the warrant had some conversation about the case with the judge who issued the warrant, the determination of probable cause was based on the affidavit as required under decisions such as Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980). The motion to suppress was thus properly denied, and the appellant’s convictions are therefore affirmed.

VAN NORTWICK, CLARK, and MARSTILLER, JJ., concur.


text:
    MARTIN COUNTY CONSERVATION ALLIANCE and 1000 Friends of Florida, Inc., Appellants, v. MARTIN COUNTY, Department of Community Affairs, Martin Island Way, LLC, and Island Way, LC, Appellees.
    No. 1D09-4956.
    District Court of Appeal of Florida, First District.
    June 21, 2010.

      Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants.
    Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County; William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees Martin Island Way, LLC, and Island Way, LC.
   PER CURIAM.

The appellants have not demonstrated that their interests or the interests of a substantial number of members are “adversely affected” by the challenged order, so as to give them standing to appeal. See § 120.68, Fla. Stat. (2009); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001); O’Connell v. Fla. Dep’t of Cmty. Affairs, 874 So.2d 673 (Fla. 4th DCA 2004); Fla. Wildlife Fed’n v. St. Johns County, 909 So.2d 347 (Fla. 1st DCA 2005). While appellants cite Save the Homosassa River Alliance v. Citrus County, 2 So.3d 329 (Fla. 5th DCA 2008), in support of their claim of standing, this case is inapposite as it addresses the standing requirements for a circuit court proceeding pursuant to section 163.3215, Florida Statutes. Section 163.3215 is a remedial statute designed to enlarge the class of persons with standing to challenge a local development order. The prerequisites for establishing standing in such a proceeding are inapplicable to an appeal taken of an administrative proceeding conducted pursuant to section 120.68, Florida Statutes. The appeal is therefore DISMISSED.

HAWKES, C.J., VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Juan Antonio MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4291.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

ON MOTION FOR CLARIFICATION OR REHEARING

We grant the State’s Motion for Clarification or Rehearing, withdraw our previous opinion, and substitute the following opinion in its place.

Appellant’s conviction of attempted second-degree murder with a weapon is reversed. See State v. Montgomery, 39 So.3d 252 (Fla.2010); Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009). Contra Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010). We affirm appellant’s convictions of sexual battery, tampering with evidence, and aggravated battery with great bodily harm and with a weapon.

Affirmed in part, reversed in part, and remanded.

BENTON, C.J., PADOVANO, and CLARK, JJ., concur.


text:
    Corey WAPNICK, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, Appellee.
    No. 4D12-4080.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Rehearing Denied May 2, 2014.
    Annabel C. Majewski of Wasson & Associates, Chartered, Miami, and Clifford M. Miller of Miller Law Offices, Vero Beach, for appellant.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for appellee.
   PER CURIAM.

This case comes to us a second time for review. See Wapnick v. State Farm Mut. Auto. Ins. Co., 54 So.3d 1065 (Fla. 4th DCA 2011). Wapnick appeals the trial court’s order denying his request for attorney’s fees after State Farm voluntarily paid the remainder of his uninsured motorist claim. We affirm the trial court’s ruling.

Although the parties frame their arguments around Florida Statutes Sections 627.428 and 624.155 (2013), there is no need for extended analysis under either section. In his amended complaint, Wap-nick specifically prayed for relief stating “[s]hould the defendant dispute whether the policy provides coverage, plaintiff also demands reasonable attorney’s fees pursuant to Fla. Stat. §§ 627.428 and 627.727(8).”

Section 627.727(8) states that “[t]he provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident.” § 627.727(8), Fla. Stat. (2013). Since there was never such a dispute, section 627.428 does not apply to this case, and Wapnick is not entitled to attorney’s fees.

Section 627.727(8) and its limitation on recovery under section 627.428 were not discussed by either party, and were thus not part of the trial court’s written order. However, our supreme court has held that “if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). Therefore, since there is a basis in the record to support the fact that section 627.428 does not apply, we affirm the trial court’s ruling.

Affirmed.

WARNER, GROSS and CONNER, JJ., concur.

      . Although the parties frame the issue as reviewing the trial court's order denying Wap-nick's motion for summary judgment and granting State Farm’s motion to dismiss, the real issue is the denial of attorney’s fees.


author: DAMOORGIAN, J.

text:
    Brian D. KABLITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-226.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

In this new appeal, Brian Kablitz raises four issues, all but one of which we previously addressed on direct appeal. Kablitz v. State, 979 So.2d 969 (Fla. 4th DCA 2008) (hereinafter “Kablitz I ”).

A jury found Kablitz guilty of dealing in stolen property, false verification of ownership, and a lesser included offense of petit theft. Id. at 971. The trial court did not sentence him for the petit theft because of his conviction for dealing in stolen property. Id. On direct appeal, we affirmed his conviction and sentence. Id. at 970. Following his direct appeal, Kablitz filed a petition alleging ineffective assistance of appellate counsel. Kablitz v. State, 13 So.3d 155, 155 (Fla. 4th DCA 2009). We granted his petition, concluding appellate counsel was ineffective for not raising as fundamental error that convictions for both theft and dealing in stolen property were prohibited by section 812.025, Florida Statutes. Id. at 155-56. Kablitz was permitted this new appeal.

In Kablitz I, Kablitz argued, among other things, that the trial court reversibly erred by denying his motion to sever offenses, denying his motion for new trial based on newly discovered evidence, and denying his request for a jury instruction on theft as a lesser included offense of dealing in stolen property. 979 So.2d at 971-72. In that appeal, we addressed those issues, the last without comment. Id. In this appeal, Kablitz raises these same issues, which we need not readdress. See Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (“The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.”); see also Greene v. Massey, 384 So.2d 24, 28 (Fla.1980) (“All points of law which have been adjudicated become the law of the case and are, except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case.”).

Not previously raised, Kablitz asserts that the trial court’s failure to instruct the jury — pursuant to section 812.025 — that he could be convicted of dealing in stolen property or theft, but not both, constitutes fundamental error. We addressed the very same issue in Kiss v. State, 42 So.3d 810, 811 (Fla. 4th DCA 2010), concluding that a trial court’s failure to instruct the jury pursuant to that section constitutes fundamental error. We reach the same conclusion in this ease and accordingly reverse for a new trial. In so holding, we certify conflict with Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011), and Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011), regarding the proper remedy when a defendant is convicted of both theft and dealing in stolen property.

Affirmed in Part; Reversed in Part and Remanded for New Trial.

WARNER and GERBER, JJ., concur.


text:
    Eric TUCCI, Appellant, v. Tiffany E. TUCCI, Appellee.
    No. 1D11-4625.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2011.
    Gerard M. Virga of Virga Law Offices, P.A., Panama City, for Appellant.
    Natausha Samuels, Panama City, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 30, 2011, as well as the Amended Notice of Appeal filed on October 4, 2011, the Court has determined that it lacks jurisdiction to review either the oral ruling made at the May 10, 2011, hearing or the lower tribunal’s June 27, 2011, Order. See Owens v. State, 579 So.2d 811 (Fla. 1st DCA 1991) (appellate court lacks jurisdiction to review an oral order); see also Fla. R.App. P. 9.020(h); see Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1 (Fla.1972). Accordingly, the appeal is hereby dismissed.

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Keith MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5800.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Keith Mathis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Rodger BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5936.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Rodger Butler, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s Motion to Show Cause, which the Court treats as a response to the Court’s order of December 16, 2011, the Court has determined that the order is not subject to independent appellate review. Accordingly, the appeal is dismissed. However, the dismissal is without prejudice to seek review by motion in case number 1D11-4793 in the event that the appellant’s petition for belated appeal is granted. See Fla. RApp. P. 9.140(h)(4). The appellant’s Motion for Enlargement of Time, filed on December 5, 2011, is denied as moot.

PADOVANO, THOMAS, and SWANSON, JJ., concur.


text:
    Darnell TEATE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5912.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2012.
    Darnell Teate, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138, 140-41 (Fla. 1st DCA 2011).

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


text:
    Darryl Maurice YOUNG, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D11-5175.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2012.
    Darryl Maurice Young, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Thomas v. State, Dept. of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011).

WOLF, PADOVANO, and MARSTILLER, JJ., concur.


text:
    B.B., Father of L.B., a minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-5717.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2012.
    Rehearing Denied May 24, 2012.
    Crystal McBee Frusciante, of Crystal McBee Frusciante, Jupiter, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. J.M. v. Fla. Dep’t of Children & Families, 38 So.3d 236 (Fla. 1st DCA 2010); K.J. v. Dep’t of Children & Families, 38 So.3d 88 (Fla. 1st DCA 2010); J.D. v. Dep’t of Children & Families, 825 So.2d 447 (Fla. 1st DCA 2002); but see R.P. v. Dep’t of Children & Families, 49 So.3d 339 (Fla. 5th DCA 2010); H.D. v. Dep’t of Children & Families, 964 So.2d 818 (Fla. 4th DCA 2007).

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


text:
    Howard Jesse CARROLL, Petitioner, v. SHERIFF OF DUVAL COUNTY, Respondent.
    No. 1D11-6416.
    District Court of Appeal of Florida, First District.
    March 13, 2012.
    Rehearing Denied April 30, 2012.
    Howard Jesse Carroll, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

PADOVANO, LEWIS, and WIETHERELL, JJ., concur.


text:
    Darryl Maurice YOUNG, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-6904.
    District Court of Appeal of Florida, First District.
    March 27, 2012.
    Darryl Maurice Young, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999); see also Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

BENTON, C.J., WOLF and VAN NORTWICK, JJ., concur.


text:
    Stephen Justin McCULLUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3673.
    District Court of Appeal of Florida, First District.
    April 2, 2012.
    Rehearing Denied May 24, 2012.

      Stephen Justin McCullum, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant’s judgment and sentence but remand for the trial court to correct the order revoking his probation. Although the State alleged that Appellant violated three conditions of his probation, the trial court found only one violation. The order of revocation of probation fails to specify which condition Appellant violated. While it is clear from the record which condition the court found Appellant violated, the finding must be memorialized in a written order. See Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011) (recognizing the requirement that the trial court enter a formal, written order of revocation of probation). As a result, we remand for correction of the revocation order to reflect the trial court’s oral pronouncement that Appellant violated condition five of his probation. See Nicholas v. State, 66 So.3d 1077, 1077 (Fla. 1st DCA 2011). Appellant need not be present for the correction of this order. See id.

AFFIRMED and REMANDED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Marian L. BRYANT, Appellant, v. FLORIDA SCHOOL FOR the DEAF AND BLIND, Appellee.
    No. 1D11-4227.
    District Court of Appeal of Florida, First District.
    April 3, 2012.
    T.A. Delegal, III and Wendy E. Bynd-loss of Delegal Law Offices, P.A., Jacksonville, for Appellant.
    F. Damon Kitchen of Constangy, Brooks and Smith, LLP, Jacksonville, for Appel-lee.
    Richard E. Johnson of Law Office of Richard E. Johnson, Tallahassee, for National Employment Lawyers Association, Florida Chapter, Amicus Curiae.
   PER CURIAM.

AFFIRMED. See Taylor v. Public Employees Relations Comm’n, 878 So.2d 421 (Fla. 4th DCA 2004).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


author: PER CURIAM. BENTON, C.J.,

text:
    Renard Nealie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-957.
    District Court of Appeal of Florida, First District.
    April 4, 2012.
    Rehearing Denied July 6, 2012.
    Nancy A. Daniels, Public Defender; and Glen P. Gifford, Assistant Public Defender, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

An amended information charged Re-nard Williams (Appellant) with two counts of armed robbery with a firearm while wearing a mask. Appointed counsel filed a notice under section 916.115, Florida Statutes (2009), and Florida Rule of Criminal Procedure 3.210(b)(1) alleging reasonable grounds to believe Appellant was not mentally competent to stand trial and seeking a hearing. A series of mental health reports and hearings culminated in the trial court’s October 2010 determination that Appellant was competent to stand trial. A motion for reconsideration was denied.

On February 7, 2011, Appellant entered a plea of no contest to the lesser-included offense of robbery with no weapon but while wearing a mask (Count One), expressly reserving the right to appeal the order finding him competent to proceed. The State nolle prossed Count Two. Under the initial charges, Appellant could have been sentenced to life in prison. The negotiated plea offer contemplated 15 years’ incarceration. The court found a factual basis for the plea; accepted the plea as freely, knowingly, and voluntarily made; adjudicated Appellant guilty; and sentenced him to 15 years in prison. The statement of judicial acts to be reviewed listed the competency hearings and rulings, the plea colloquy, and sentencing.

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), addressing the competency order and the subsequent plea and finding no reversible error. In his pro se brief, Appellant raised issues that are either not cognizable on direct appeal or were waived by pleading no contest without expressly reserving the claim. Bruno v. State, 807 So.2d 55, 63 n. 14 (Fla.2001); Henry v. State, 933 So.2d 28, 29 (Fla. 2d DCA 2006). We write only to address the competency issue.

Having pled no contest, Appellant is limited as to the issues he can raise on direct appeal. Robinson v. State, 373 So.2d 898, 902 (Fla.1979). A defendant who pleads no contest may expressly reserve the right to appeal a prior dispositive order of the lower tribunal. Fla. R.App. P. 9.140(b)(2)(A)(i). An issue is dispositive only when it is clear that there will be no trial, regardless of the outcome of the appeal. Fuller v. State, 748 So.2d 292, 294 (Fla. 4th DCA 1999). Appellant reserved the right to challenge the competency order on appeal. Of significance in this case, however, is the appellate rule’s requirement that the ruling Appellant seeks to reserve for appeal be dispositive. The State did not stipulate, and the trial court did not determine, that the order finding Appellant competent is dispositive. Precedent holds, and we agree, that an order finding a defendant competent is not legally dispositive. Burns v. State, 884 So.2d 1010, 1012 (Fla. 4th DCA 2004); Delisa v. State, 910 So.2d 418, 421 (Fla. 4th DCA 2005) (“[Competency fe not a dispositive issue since it only precludes the trial from immediately proceeding.”); Fuller, 748 So.2d at 294 (“An order determining a defendant competent does not preclude an immediate trial; trial proceeds. Therefore the issue is not dispositive.”).

A challenge to the voluntary and intelligent nature of a plea also falls within the limited class of issues that a defendant can raise on appeal without specifically having reserved the right to do so. First, however, the defendant must preserve the competency issue by presenting it to the trial court in a timely motion to withdraw plea. Trawick v. State, 473 So.2d 1235, 1238 (Fla.1985); Burns, 884 So.2d at 1013; Rhodes v. State, 704 So.2d 1080, 1083 (Fla. 1st DCA 1997). Because the record before us does not reflect a motion to withdraw the no-contest plea, the voluntary and intelligent character of the plea is not cognizable on appeal. Fuller, 748 So.2d at 294; Trujillo-Pentate v. State, 609 So.2d 72, 73 (Fla. 1st DCA 1992), quashed on other grounds, 620 So.2d 1231 (Fla.1993).

For the foregoing reasons, we affirm the appeal. M.N. v. State, 16 So.3d 280 (Fla. 2d DCA 2009) (en banc) (citing Leonard v. State, 760 So.2d 114, 118-19 (Fla.2000)); Sears v. State, 920 So.2d 709 (Fla. 4th DCA 2006) (on mot. for reh’g and/or clarification).

AFFIRMED.

WETHERELL and RAY, JJ., concur.

BENTON, C.J., concurs "with opinion.

BENTON, C.J.,

concurring.

For the reasons the majority opinion explicates, I agree precedent requires us to affirm without reaching or requiring briefing by counsel on any question concerning the appellant’s competency to (stand or) waive trial. See Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986) (“[W]e cannot reach that issue because the trial court’s rulings are not dis-positive.”). But the record is not inconsistent with the view that appellant’s plea was induced by assurances that competency issues would be addressed on direct appeal:

THE COURT: ... Okay. Mr. Williams, do you understand that there previously was a decision made by another judge that found you competent to proceed to trial? And your attorney asked that to be reconsidered, and he wants to — he wanted to reserve the opportunity to challenge whether or not that was a correct determination. Do you understand that?
THE DEFENDANT: Uh-huh (Indicating Affirmatively).
THE COURT: And so I’m going to allow you to reserve the right to challenge the determination that you were competent to proceed to trial. And if an Appeal Court finds that you should not have been found competent, then the case will come back and we’ll sort of start over. Do you understand that?
THE DEFENDANT: Uh-huh (Indicating Affirmatively).
THE COURT: Do you understand that if the Appeal Court finds that the judge did not make an error finding that you were competent to proceed to trial, then your sentence will be what it is according to this plea agreement? Do you understand that?
THE DEFENDANT: Uh-huh (Indicating Affirmatively).
THE COURT: Okay. And do you understand that if you enter a plea, with the exception of your right to appeal, you’re giving up the rights that you have such as a right to have a trial in your case. Do you understand?
THE DEFENDANT: Uh-huh (Indicating Affirmatively).

Nothing that transpired in the trial court did or could change the scope of our review, which depends on whether declaring appellant competent to proceed was “dis-positive” within the meaning of Florida Rule of Appellate Procedure 9.140(2)(a). See Brown v. State, 376 So.2d 382, 384 (Fla.1979); Fuller v. State, 748 So.2d 292, 294 (Fla. 4th DCA 1999) (holding competency is not a dispositive issue); Phuagnong v. State, 714 So.2d 527, 528-29 (Fla. 1st DCA 1998).

In circumstances not unlike those in the present case, the Fourth District affirmed a conviction and sentence “without prejudice to appellant’s right to seek to withdraw his plea. See Leonard v. State, 760 So.2d 114, 119 (Fla.2000); Hagins v. State, 900 So.2d 735 (Fla. 4th DCA 2005).” Sears v. State, 920 So.2d 709, 709 (Fla. 4th DCA 2006) (on reh.). Even if Florida Rule of Criminal Procedure 3.170 is no longer available to appellant on remand, Florida Rule of Criminal Procedure 3.850 contemplates collateral relief from convictions predicated on pleas that are not voluntary and intelligent. Fla. R.Crim. P. 3.850(a)(1) and (5).


author: SWANSON, J.

text:
    Elise KAHN, Appellant, v. AMERICAN HERITAGE LIFE INSURANCE COMPANY, Appellee.
    No. 1D11-2655.
    District Court of Appeal of Florida, First District.
    April 4, 2012.
    Rehearing Denied May 24, 2012.
    Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for Appellant.
    Timothy B. Strong and Melissa A. Dear-ing of Fowler White Boggs, P.A., Jacksonville, for Appellee.
   SWANSON, J.

Appellant seeks review of the trial court’s entry of summary final judgment for appellee on appellant’s claim that ap-pellee breached the implied covenant of good faith and fair dealing applicable to the parties’ agent contract. Specifically, appellant asserts there were disputed issues of material fact as to whether appel-lee breached the implied covenant of good faith and fair dealing when it denied appellant any commissions related to the Philadelphia Federal Credit Union (PFCU) account on the ground that she was not the “efficient procuring cause” of any policies from PFCU employees or members. We disagree and affirm.

Paragraph 8(a) of the parties’ agent contract clearly provided that appellant “will be paid commissions and service fees on premiums paid in cash to [appellee] on insurance policies (including annuity contracts) issued pursuant to applications procured by [appellant].” (Emphasis added). Paragraph 3(f) further provided that appellant “shall not be entitled to commissions on any policy unless [appellee] determines that [appellant] was the efficient procuring cause of the policy.” (Emphasis added). The record is devoid of any evidence that appellant procured any policies from PFCU employees or members. Because there was no express contractual provision allowing commissions for procuring an account and the covenant of good faith could not be used to vary the terms of a contract, the trial court correctly concluded as a matter of law that appellee properly denied appellant commissions related to the PFCU account under the unambiguous language of paragraphs 3(a) and 3(f). See Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So.2d 1232 (Fla. 4th DCA 2001).

Appellant further argues that even if she was not the efficient procuring cause of a PFCU policy, appellee cannot avoid the covenant of good faith and fair dealing because “there is an issue of fact, that, but for [appellee]’s interference, [appellant] would have been the efficient procuring cause of the PFCU policies.” However, the evidence in the record is uncontradict-ed that appellant was denied the opportunity to earn commissions by procuring PFCU policies because Mark Craven, the president of PFCU Insurance Services, did not want appellant to serve as the enrollment specialist. Although appellant points out some disagreement as to Craven’s expressed reasons for not choosing appellant, this issue of fact is not mateñal to the resolution of this case where Craven, without contradiction, denied that anyone associated with appellee was responsible for his decision. Because appellee established as a matter of law that it reasonably exercised its discretion under the contract in determining that appellant was not the efficient procuring cause of any PFCU policy, the trial court properly entered summary final judgment for appellee.

AFFIRMED.

ROWE and MARSTILLER, JJ., concur.


text:
    Sidney MARTS, Appellant, v. Pamela D. PRESNELL, et al., Appellee.
    No. 1D11-5294.
    District Court of Appeal of Florida, First District.
    April 9, 2012.
    Rehearing Denied May 24, 2012.

      Sidney Marts, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Mark S. Dunn, Assistant Attorney General, Tallahssee, for Appellee.
   PER CURIAM.

Appellant, Sidney Marts, appeals an order dismissing a civil complaint related to his judgment and sentence in Escambia County Circuit Court case number 2007-CF-6067. We affirm the trial court’s order without further discussion, and pursuant to section 944.279, Florida Statutes (2010), and Florida Rule of Appellate Procedure 9.410, refer Marts to the Department of Corrections for disciplinary procedures.

“It is well-settled that courts have the inherent authority and duty to limit abuses of judicial process by pro se litigants.” Walker v. Fla. Parole Comm’n, 70 So.3d 665 (Fla. 1st DCA 2011) (quoting Golden v. Buss, 60 So.3d 461 (Fla. 1st DCA 2011)); see also Jackson v. Fla. Dep’t of Corr., 790 So.2d 398, 400 (Fla.2001) (noting the supreme court has inherent power to regulate and sanction a disruptive litigant); McCutcheon v. State, 44 So.3d 156, 162 (Fla. 4th DCA 2010) (concluding appellant’s appeals were frivolous, malicious, and not filed in good faith; forwarding opinion to the DOC for consideration of disciplinary procedures).

Marts’ disregard for the judicial process is well documented. The First District Court of Appeal’s case management system shows that Marts has filed over 20 pro se cases related to Escambia County Circuit Court case number 2007-CF-6067. In a prior case filed by Marts, Marts v. State, 59 So.3d 136, 137 (Fla. 1st DCA 2011), this court held that Marts is “barred from future pro se filings in this court” concerning his judgment and sentence in Escambia County Circuit Court case number 2007-CF-6067. There, the court warned Marts that additional filings in this court in violation of that opinion could result in disciplinary action:

Petitioner is warned that any future filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2010) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections). Fla. R.App. P. 9.410.

Id. at 137.

Marts’ pro se appeal in this case is in violation of this court’s prior order. We find that Marts’ continued practice of filing pro se pleadings in violation of this court’s order to be frivolous. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat.

AFFIRMED.

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


author: RAY, J. DAVIS, J.,

text:
    STATE of Florida, Appellant, v. Jacob Thomas GAULDEN, Appellee.
    No. 1D11-4288.
    District Court of Appeal of Florida, First District.
    April 12, 2012.
    Rehearing Denied May 24, 2012.

      Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   RAY, J.

The State appeals from an order dismissing a charge that Jacob Thomas Gaul-den, Appellee, left the scene of a crash involving death, contrary to section 316.027(l)(b), Florida Statutes (2010). In granting Appellee’s motion to dismiss, the trial court concluded that a driver does not violate section 316.027(l)(b) by failing to stop when a passenger suffers death as a result of being separated from the driver’s moving vehicle. The State argues that this conclusion was error. For the reasons that follow, we agree and reverse.

The material facts are undisputed for the purposes of this appeal. The decedent was a passenger in a vehicle Appellee was driving until he became separated from the vehicle, struck the road, and suffered fatal injuries. When the decedent became separated from the vehicle, Appellee continued driving. He did not stop at the scene or as close to the scene as possible, and he did not remain at the scene until he had fulfilled the requirements of section 316.062, Florida Statutes (2010). Because there was no evidence that the decedent’s body came into contact with Appellee’s vehicle, the trial court concluded that the decedent’s separation from the vehicle and collision with the road did not constitute a “crash” within the meaning of section 316.027(l)(b). The court granted Appel-lee’s motion to dismiss on this basis.

A trial court’s ruling on a motion to dismiss a criminal charge is a question of law, subject to de novo review. Sexton v. State, 898 So.2d 1187, 1188 (Fla. 1st DCA 2005). The propriety of the trial court’s ruling in this case turns on its interpretation of section 316.027(l)(b), which is also a question of law, reviewable de novo. See Kasischke v. State, 991 So.2d 803, 807 (Fla.2008).

The goal of statutory interpretation is to give effect to the Legislature’s intent, which should be gleaned primarily from the language of the statute at issue. Id. at 807. In construing the plain language of a statute, courts are to give undefined terms their ordinary meanings, consulting a dictionary when necessary. Green v. State, 604 So.2d 471, 473 (Fla.1992). The statute under which Appellee was charged provides in pertinent part as follows:

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

§ 316.027, Fla. Stat. (2010). The dispute in this case centers on the meaning of the phrase “involved in a crash.”

Chapter 316 does not define the terms “involved” or “crash.” However, district courts of this state have already analyzed the meaning of these two terms as used in chapter 316 according to their ordinary definitions. State, Dep’t of Highway Safety & Motor Vehicles v. Williams, 937 So.2d 815, 817 (Fla. 1st DCA 2006); State v. Elder, 975 So.2d 481, 483 (Fla. 2d DCA 2007). In State v. Elder, the Second District determined that the most pertinent definitions of the term “involved” as used in section 316.027(l)(b) are “to draw in as a participant,” to “implicate,” “to relate closely,” to “connect,” “to have an effect on,” to “concern directly,” and to “affect.” 975 So.2d at 483 (quoting Webster’s Collegiate Dictionary, 271, 226 (10th ed. 1998)). In State, Department of Highway Safety & Motor Vehicles v. Williams, this Court concluded that the dictionary definitions most descriptive of the noun “crash” as used in chapter 316 are “a breaking to pieces by or as if by collision” and “an instance of crashing.” 937 So.2d at 817 (quoting Webster’s Collegiate Dictionary, 271 (10th ed. 1998)). After noting that “crash” means “an instance of crashing,” the Williams Court observed that the verb “crash” is synonymous with the term “collide,” which means “to come together with solid or direct impact.” 937 So.2d at 817 (quoting Webster’s Collegiate Dictionary, 226 (10th ed. 1998)). Applying these definitions to section 316.027, we hold that a driver must stop when his vehicle is a participant in, or has an effect on, a collision that results in injury or death.

The statute does not require that the driver’s vehicle be one of the colliding objects; it requires only that the vehicle be “involved” in the collision. For this reason, the Elder court held that a driver was required to stop when she turned into the path of another car, causing the driver of that car to swerve, lose control of the car, and drive off the road. 975 So.2d at 482. The car flipped, ejecting a passenger and killing its driver. Id. The defendant in Elder argued that a crash had not occurred because there was no “actual contact between the two vehicles.” 975 So.2d at 482, 484. The Second District rejected this argument, holding that because the defendant’s “driving caused the crash, she was ‘involved in a crash resulting in the death of any person’ and was required by the statute to remain at the scene.” Id. at 484. In consideration of the facts of the instant case as applied to the statutory language, we note further that the statute does not require that the collision be between two vehicles or even that a vehicle be one of the colliding objects.

We disagree that either the legislative history of chapter 316 or the rule of lenity justifies the trial court’s dismissal, as the dissent suggests. Courts should apply canons of statutory construction and explore legislative history only when the statutory language is unclear. Koile v. State, 934 So.2d 1226, 1231 (Fla.2006). The rule of lenity, in particular, is a “canon of last resort,” to be employed only when statutory language is so ambiguous as to be susceptible of differing, irreconcilable interpretations, even after application of other rules of statutory construction. See Kasischke, 991 So.2d at 814. The language of section 316.027(l)(b) is broad, but it is not unclear. Consequently, it is unnecessary to apply the rule of lenity or any other canon of statutory construction. See Hayes v. David, 875-So.2d 678, 680 (Fla. 1st DCA 2004) (noting that when a statute is clear and unambiguous, “there is no occasion to resort to other rules of statutory construction”). We emphasize, however, that our interpretation not only honors the plain language of the statute, but also safeguards the implementation of one of the statute’s main purposes, which is to ensure that crash victims receive medical assistance as soon as possible. See State v. Dumas, 700 So.2d 1223, 1225 (Fla.1997); § 316.062(1) (requiring a driver who has stopped pursuant to section 316.027 to pro■vide reasonable assistance to anyone injured from a crash involving the driver’s vehicle, including the making of arrangements for medical treatment). Because the statute exists mainly to protect people, not vehicles, we have no hesitation about interpreting the term “crash” as including any collision resulting in death or injury to a person.

Here, a passenger of Appellee’s moving vehicle collided with the road as he became separated from the vehicle and suffered fatal injuries. This collision constituted a crash. Because the movement of Appel-lee’s vehicle significantly contributed to causing this collision, Appellee’s vehicle was involved in it. Under these circumstances, Appellee is properly subject to criminal prosecution for failing to stop his vehicle and fulfill the requirements of section 316.062(1), which included rendering reasonable assistance to his passenger. For these reasons, we reverse the dismissal of this charge.

REVERSED.

THOMAS, J., concurs.

DAVIS, J., dissents with opinion.

DAVIS, J.,

dissenting.

Because I believe that the trial court correctly dismissed the charge of leaving the scene of a crash involving death, I respectfully dissent.

Interestingly, the majority fails to mention that, prior to 1999, section B16.027(1)(b), Florida Statutes, spoke in terms of any vehicle involved in an “accident.” In 1999, the Legislature amended section 316.027(l)(b), along with other similar statutes, by substituting the word “crash” for the word “accident.” Ch. 99-248, § 82, Laws of Fla. Although the situation in this case might constitute an accident or an “unexpected and undesirable event” involving a vehicle, see, e.g., Armstrong v. State, 848 N.E.2d 1088, 1090 (Ind.2006), I, like the trial court, interpret the phrase “any vehicle involved in a crash” to mean that a vehicle must collide with another vehicle, person, or object before the driver may be held criminally liable for failing to remain at the scene.

I find support for this interpretation in a legislative staff analysis that addressed the change from “accident” to “crash” by setting forth, “Amends s. 316.027, F.S., to change the term ‘accident’ to ‘crash’ in order to update and conform terminology and to more accurately describe[] a collision involving a motor vehicle.” Fla. H.R. Comm, on Law Enf. & Crime Prevention for HB 593 (1999) Staff Analysis 6 (Feb. 23, 1999). As the trial court found, there was no evidence that Appellee’s vehicle collided with anyone or anything or that Appellee, who was also charged with manslaughter in this case, caused another vehicle to crash. While the majority relies upon our opinion in State, Department of Highway Safety and Motor Vehicles v. Williams, 937 So.2d 815 (Fla. 1st DCA 2006), and the Second District’s opinion in State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007), in support of its interpretation, neither of those cases addressed the question of whether a person can crash for purposes of section 316.027. As such, the majority’s reliance upon the dictionary definitions of “involved” and “crash,” as set forth in both opinions, is misplaced. Both cases actually involved a vehicle crash, which is what, according to my reading of the statute, is necessary for criminal liability to arise.

My interpretation is also guided by the rule of lenity, which requires that any ambiguity or situation in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense. See Kasischke v. State, 991 So.2d 803, 814 (Fla. 2008) (citing section 775.021(1), Florida Statutes, which provides that criminal offenses shall be strictly construed and that when the language is susceptible of differing constructions, it shall be construed most favorably to the accused). Because the plain language of section 316.027(l)(b) does not answer the question presented in this case, the majority’s conclusion that the statute is clear and that the rule of lenity is not applicable is misguided. Had the Legislature wished to include in the statute a scenario where a passenger is separated from the vehicle and collides with the ground, it could have easily stated such. Instead, it substituted “crash” for “accident” in order to more accurately describe a collision involving a motor vehicle. Because there was no collision involving a motor vehicle in this case and because this Court must construe the ambiguous language most favorably to Appellee, I would affirm.


author: MARSTILLER, J.

text:
    GRISWOLD READY MIX CONCRETE, INC., Appellant, v. Tony REDDICK, and Pumpco, Inc., A Domestic Corporation, Appellees.
    No. 1D11-2593.
    District Court of Appeal of Florida, First District.
    April 12, 2012.
    Rehearing Denied May 24, 2012.
    Ronald L. Harrop of Wilson Elser Mos-kowitz Edelman & Dicker, LLP, Orlando, for Appellant.
    Samuel Lanier of the Lanier Firm, LLC, St. Augustine, for Appellees.
   MARSTILLER, J.

Griswold Ready Mix Concrete, Inc. (“Griswold”), appeals a final judgment awarding Pumpco, Inc. (“Pumpco”) $69,378.39 in attorney’s fees and $65,000 as “additional costs” on its cross-claim against Griswold for contractual indemnity. The “additional costs” constitute the amount Pumpco paid to Appellee, Tony Reddick (“Reddick”), to settle his negligence claims. Because we determine the indemnity provision at issue is void under section 725.06, Florida Statutes (2007), we reverse the judgment and remand the cause for further proceedings.

Griswold is in the business of supplying and delivering concrete. At the request of a residential builder, Griswold delivered cement to pour the foundation of a home under construction in Jacksonville. The job required use of a pump truck to get cement to the foundation pour-site because Griswold’s cement truck, for whatever reason, could not get close enough to the site. Thus, Griswold engaged Pumpco, with whom it maintained an account, to lease a pump truck. Pumpco also provided a pump operator. As is its practice, Pumpco completed and gave Griswold a work order for the job. The reverse side of the work order provided, in pertinent part:

3. Lessee [Griswold] agrees to [at] its sole expense:
(g) To assume all risks and liabilities for and to indemnify Lessor [Pumpco] and Lessor’s agents against all claims, actions, suits, penalties, expenses and liabilities, including attorneys fees, whether or not covered by insurance, for (i) loss or damage to the Equipment; (ii) injuries or deaths of any persons; and (ii)[sic] damage to any property, howsoever arising or incurred from or incident to the use, operation or possession of the Equipment, unless such claims, actions, suits, penalties, expenses or liabilities are caused solely by the intentional conduct of the Lessor or its agents.

Reddick, a foreman for another concrete company, happened to be on the construction site when Griswold and Pumpco were delivering and pouring the concrete. He claimed he was injured when the hose from the pump truck somehow hit him, knocking him to the ground. Reddick filed negligence claims against Griswold and Pumpco, and after settling Reddick’s claims for $65,000, Pumpco sought indemnification from Griswold under the provision quoted above.

In defending against Pumpeo’s motion for summary judgment, Griswold argued, among other things, that the indemnification provision is void under section 725.06 because it contains no monetary limitation. The trial court found the provision valid and enforceable, reasoning that the statute applies only to construction or construction-related contracts in which one party is the property owner. We conclude the court erred in its reading of the statute.

Section 725.06(1) reads, in part:
Any portion of any agreement or contract for or in connection with, or any guarantee of or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman or any combination thereof wherein any party referred to herein promises to indemnify or hold harmless the other party to the agreement for liability for damages to persons or property caused in whole or in part by any act, omission, or default of the in-demnitee arising from the contract or its performance, shall be void and unenforceable unless the contract contains a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any.

(Emphasis added.) Pumpco contends that the statute governs only contracts between “an owner of real property” and any combination of the other parties listed. We do not read the phrase “or any combination thereof’ as limiting the statute’s operation in that way. Rather, we read the phrase to mean that if any combination of the parties named therein (e.g., a general contractor, a subcontractor, and a material-man) contracts for indemnification, the provision must include a monetary limit of liability.

Our reading of the statute is supported by A-T-O, Inc. v. Garcia, 374 So.2d 533 (Fla. 3d DCA 1979), a case factually similar to the one before us, in which the Third District applied an earlier but similarly-worded version of the statute to an indemnity agreement between the owner/lessor of construction equipment (mobile scaffolding) and the lessee of the equipment. The provision at issue was printed on the reverse side of a delivery receipt, and by its terms, the lessee agreed to indemnify the lessor for any damages arising from the lessor’s negligence. Id. at 535-36. The scaffolding failed, the injured worker sued the lessor for negligence and won, and the lessor, in turn, sought indemnity from its lessee. The court held that the indemnity provision was “defeated by the terms of [section 725.06]” because it “did not contain a monetary limitation....” Id. at 536.

The indemnity provision at issue in this case does not contain a dollar limit to Griswold’s potential liability. For that reason, it is void and unenforceable as provided in section 725.06, and the trial court erred in ruling otherwise. Accordingly, we reverse the final judgment.on appeal and remand the cause for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ROWE and SWANSON, JJ„ concur.

      . Pumpco asserts that section 725.06 evinces the Legislature’s intent to protect only property owners from unlimited indemnity liability. But the statute's language simply does not bear this out because it says: "Any portion of any agreement or contract ... wherein any party referred to herein promises to indemnify or hold harmless the other party....” (Emphasis added.)

      . Section 725.06, Florida Statutes (1975), read:
      Any portion of any agreement or contract for, or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating connected with it, or any guarantee of, or in connection with, any of them, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman, or between any combination thereof, wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party arising from the contract or its performance shall be void and unenforceable unless:
      (1) The contract contains a monetary limitation on the extent of the indemnification and shall be a part of the project specifications or bid documents, if any, or
      (2) The person indemnified by the contract gives a specific consideration to the indem-nitor for the indemnification that shall be provided for in his contract and section of the project specifications of bid documents, if any.


author: PER CURIAM. THOMAS, J.,

text:
    Charles James GRAPSKI and Michael Canney, Appellants, v. CITY OF ALACHUA, Appellee.
    No. 1D11-2719.
    District Court of Appeal of Florida, First District.
    April 27, 2012.
    Rehearing Denied May 24, 2012.

      Joseph W. Little, Gainesville, for Appellants.
    Beth M. Coleman, St. Petersburg, Marian B. Rush of Rush & Glassman, and Rodney W. Smith of Avera & Smith, Gainesville, for Appellee.
   PER CURIAM.

Charles James Grapski and Michael Canney appeal a final judgment awarding attorney’s fees entered on remand following this court’s decision in Grapski v. City of Alachua, 31 So.3d 193 (Fla. 1st DCA 2010) (Grapski I). In its final judgment, the trial court found “that 14.9 hours at the agreed rate of Three Hundred Dollars ($300) per hour is a reasonable amount of time at a reasonable rate in calculation of the amount of attorney’s fees appellants incurred in pursuing their ‘successful claims only.’ ” Appellants contend that the trial court erred as a matter of law when it failed to examine plaintiffs’ time records and their lawyer’s testimony in making a fee award, made no findings as to a fee multiplier, and applied an overly narrow interpretation of the Sunshine Law’s fee shifting statutes, sections 119.12 and 286.011(4), Florida Statutes (2006). Because the record before us provides an inadequate basis for reversal, we are constrained to affirm the award of attorney’s fees. We affirm without further discussion the trial court’s failure to award prejudgment interest on the fee award.

Although appellants assert that our standard of review here is de novo, the standard of review for the award of attorney’s fees is abuse of discretion. Jones & Granger, 788 So.2d 381, 382 (Fla. 1st DCA 2001). “[T]he award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion.” DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992). The trial court’s findings of fact on the issue of attorney’s fees are presumed correct. Alternative Dev., Inc. v. St. Lucie Club & Apartment Homes Condo. Ass’n, Inc., 608 So.2d 822, 828 (Fla. 4th DCA 1992). As stated by this court:

In reviewing a decision of the trial court under the abuse of discretion standard, our mere disagreement with the reasoning of the trial court is not sufficient for reversal. Rather, we should reverse only when the trial court’s decision fails to satisfy the test of reasonableness. “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no abuse of discretion.”

Jones & Granger, 788 So.2d at 384-85 (citations omitted). When there is competent substantial evidence which supports the trial court’s order under the totality of the circumstances, there is no abuse of discretion. Id. at 385.

An attorney seeking fees is responsible for “keeping accurate and current records of time spent on a case, particularly when someone other than the client may pay the fee.” Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985) (emphasis supplied). The attorney for appellant failed to do either. The records detailing the work performed were insufficient to allow a reasoned determination of “the amount of attorney’s fees and costs appellants incurred in pursuing their successful claims only” (emphasis supplied) as this court directed when it granted attorney’s fees pursuant to sections 119.12 and 286.011(4) by unpublished order after its decision in Grapski I.

On the other hand, appellee presented the testimony of an expert witness who thoroughly reviewed this record and explicitly detailed the amount of hours which reasonably should have been incurred on the “successful claims.” The trial court weighed the merits of the opposing arguments of the parties and accepted the testimony of appellee’s expert. Appellants do not demonstrate that the trial court abused its discretion. DiStefano Constr., Inc., 597 So.2d at 250.

We acknowledge that the fees awarded here are minimal. Nevertheless, the proof submitted by appellants was completely lacking in the degree of specificity which would warrant a different award, and appellants are not entitled “to a second opportunity to make the requisite showing.” Warner v. Warner, 692 So.2d 266, 268 (Fla. 5th DCA 1997); see also Doll v. Dep’t of Health, 969 So.2d 1103, 1107 (Fla. 1st DCA 2007).

AFFIRMED.

VAN NORTWICK and ROWE, JJ., concur, and THOMAS, J., dissents with written opinion.

THOMAS, J.,

dissents.

I respectfully dissent and would reverse and remand for further consideration on the award of appellate attorney’s fees.

The trial court’s order awarded Appellants a total of 14.9 hours for both trial and appellate representation, which was based on its adoption of Appellee’s arguments below. It appears that the trial court awarded Appellants 5 hours for preparation of their initial brief, .2 hours to review the answer brief, 2 hours to research, prepare and file a reply brief, and 2 hours to research and present oral argument.

Our court previously directed the trial court to award Appellants attorney’s fees for the prosecution of “successful claims only.” Grapski v. City of Alachua, 31 So.3d 193 (Fla. 1st DCA 2010) (directing in unpublished fee order that the trial court calculate fees and costs based on time and expense incurred “in pursuing their successful claims only”). Even under this directive, however, the trial court’s award here cannot be considered reasonable. As any appellate practitioner knows, and this court should recognize, no competent attorney would devote a mere 12 minutes to review an opponent’s answer brief, or only two hours to research and write a reply brief or organize and present an oral argument.

While the trial court was not required to find that Appellants’ fee records were entirely credible, it was required to award a reasonable fee under the law, based on objective and specific calculations. See D’Alusio v. Gould, & Lamb, LLC, 36 So.3d 842 (Fla. 2d DCA 2010). As the Second District noted in DAlusio, appellate judges are “not required to abandon what [they] learned as lawyers or [their] common sense in evaluating the reasonableness of an award.” Id. at 846 (citing Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050, 1057 (Fla. 3d DCA 2009)). Although here, unlike in DAlusio, there was a vigorous dispute regarding the merits of Appellant’s time records, the trial court did not award a reasonable fee. Appellate advocacy, like other legal practices — indeed, like other professional practices in general — is a demanding and complex enterprise requiring experience, judgment and acumen. Mistakes in advocacy can bring devastating consequences for both client and attorney. See § 57.105, Fla. Stat. Conversely, when the law provides that an attorney is entitled to compensation, that attorney is due fair compensation for his or her professional labor.

I would remand with directions to the trial court to reconsider its award of appellate attorney’s fees, and to support its award with specific findings regarding a reasonable fee for Appellants’ limited success in this case.


text:
    V.D., Appellant, v. AGENCY FOR PERSONS WITH DISABILITY, Appellee.
    No. 1D11-4661.
    District Court of Appeal of Florida, First District.
    April 27, 2012.
    Laura M. Pichardo, of Community Legal Services of Mid Florida, Inc., Orlando, for Appellant.
    Melissa Ellen Dinwoodie, of Agency for Persons with Disabilities, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order of the Agency For Persons With Disabilities assigning her to Tier Three of the Medicaid Home & Community Based Services (DD Waiver) Program. Because the Agency misinterpreted and misapplied Rule 65G-4.0027(4), Florida Administrative Code, in determining Appellant’s tier assignment, we reverse and remand with directions to comply with the reasoning set forth in Newsome v. Agency For Persons With Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011).

REVERSED and REMANDED with directions.

DAVIS, THOMAS, and RAY, JJ., concur.


text:
    Eddie I. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6480.
    District Court of Appeal of Florida, First District.
    May 10, 2012.
    Eddie I. Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds two through five of the motion without further discussion. However, for the reasons discussed below, we reverse and remand for the trial court to grant the appellant an opportunity to amend his facially insufficient claims raised in ground one of the motion.

In ground one, the appellant asserted that trial counsel was ineffective when he failed to object to improper questions and comments by the prosecutor during the guilt phase of the appellant’s trial. He claimed that the prosecutor was permitted to ask several leading questions of a prosecution witness, which led the witness to testify regarding inadmissible hearsay. He further claimed that during closing argument, the prosecutor improperly bolstered the credibility of the victim and a testifying officer. However, the appellant failed to specify which questions, testimony and prosecutorial comments were improper, or to allege how defense counsel’s failure to object prejudiced him.

The postconviction court denied this claim on the merits, identifying the supposed hearsay and improper prosecutorial comments. We conclude the denial was premature. The postconviction court to have denied the claim on the merits, essentially guessed which comments and testimony the appellant found objectionable.

Accordingly, we reverse and remand for the postconviction court to give the appellant leave to amend ground one pursuant to Spera v. State, 971 So.2d 754 (Fla.2007) (trial court must give defendant one opportunity to amend facially deficient claims). We affirm the denial of the appellant’s remaining claims.

AFFIRMED in part, REVERSED and REMANDED in part with directions.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    Dexter Lamar CAUSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4088.
    District Court of Appeal of Florida, First District.
    May 17, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, SWANSON, and MAKAR, JJ., concur.