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    Juan Carlos CHAVEZ, Appellant, v. STATE of Florida, Appellee. Juan Carlos Chavez, Petitioner, v. Walter A. McNeil, etc., Respondent.
    Nos. SC07-952, SC08-970.
    Supreme Court of Florida.
    June 25, 2009.

      Andrea M. Norgard and Robert A. Nor-gard of Norgard and Norgard, Bartow, Florida, for Appellant/Petitioner.

      Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee/Respondent.
   PER CURIAM.

Juan Carlos Chavez appeals the denial of his motion to vacate a judgment of conviction of first-degree murder and sentence of death under Florida Rule of Criminal Procedure 8.851. He also petitions this Court for a writ of habeas corpus. Pursuant to our mandatory jurisdiction to review final orders arising from capital proceedings, we affirm the circuit court’s order and deny the habeas petition. See art. V, § 3(b)(1), (9), Fla. Const.

PROCEEDINGS TO DATE

In 1998, Chavez was convicted of the first-degree murder, kidnapping, and sexual battery of Samuel James (“Jimmy”) Ryce. Chavez confessed that on the afternoon of September 11, 1995, he abducted Jimmy at gunpoint from a school bus stop in the Redlands, a rural area of South Miami-Dade County, and proceeded to sexually assault Jimmy before fatally shooting the nine-year-old boy. See Chavez v. State, 882 So.2d 730, 738 (Fla.2002). He was arrested in December of 1995, after his employer found Jimmy’s book bag and textbooks inside a trailer occupied by Chavez. See id. at 737.

A team from the Miami-Dade Public Defender’s Office represented Chavez during his capital trial, which was held in Orange County from August through September 1998. The jury entered a guilty verdict on each of the charged offenses. See id. at 747. Following the penalty phase of the trial, the jury recommended death by a unanimous vote. See id. In accord with this recommendation, the trial court imposed a death sentence for the murder and consecutive terms of life imprisonment with three-year mandatory minimum sentences for the kidnapping and sexual battery convictions. See id. Chavez sought review in this Court, which affirmed his convictions and sentences. See id.

In 2004, Chavez filed a motion to vacate his convictions and sentences pursuant to Florida Rule of Criminal Procedure 3.851. The circuit court issued an order that summarily denied all but eleven claims, for which it granted an evidentiary hearing. However, during the evidentiary hearing, counsel abandoned or waived several claims. Accordingly, the postconviction court considered evidence with regard to the following claims: (1) Chavez’s confession and the evidence presented during his trial were inconsistent; (2) Chavez was not involved in the defense; (3) counsel advised Chavez to testify falsely concerning his watch; (4) counsel failed to locate a witness who owned and lived in the place where the murder occurred and who would have testified that he was the owner of the items recovered from that location; (5) counsel failed to consult with Chavez with regard to preparation for the penalty phase; (6) counsel failed to provide the best defense possible because of interference from the Miami-Dade Public Defender based on concern about the political consequences of the defense; (7) counsel failed to investigate and call witnesses to present evidence that Chavez involuntarily waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (9) counsel failed to present a witness who could have provided testimony with regard to mental health mitigation. After a full hearing, the postconviction court entered an order that denied the remaining claims.

In his appeal of this denial, Chavez asserts that (1) the postconviction court erred in ruling that a lawyer who had studied the Cuban legal system was not qualified to offer opinion testimony concerning the Cuban and American criminal justice systems; (2) the postconviction court erred in determining that counsel was effective despite the failure to present evidence of mental health mitigation through the testimony of a psychologist; and (3) there was a per se denial of effective assistance of trial counsel because discord amongst the defense team rendered the adversarial process inherently unreliable. In his habeas petition, Chavez argues that (1) ineffective appellate representation occurred during the direct appeal for the failure to challenge the constitutionality of Florida’s lethal-injection protocol; (2) counsel failed to assert that Florida’s standard penalty-phase jury instructions unconstitutionally shift the burden of proof to the defendant; (3) counsel failed to challenge the penalty-phase jury instructions with regard to minimizing and denigrating the role of the jury; and (4) cumulative errors deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.

ANALYSIS OF THE RULE 3.851 APPEAL

Alienage Claim

During the evidentiary hearing, Chavez sought to introduce the testimony of Michael Amezaga, a Florida attorney with an interest in the Cuban criminal justice system. The asserted purpose of this expert testimony was to demonstrate that Chavez involuntarily waived his Miranda rights because he misunderstood the nature of the rights afforded under the American legal system in contrast to those of the Cuban legal system. The postconviction court did not qualify the witness as an expert on the basis that he lacked the requisite level of knowledge concerning the comparative study of the Cuban and American criminal justice systems. Chavez was thus unable to present this evidence in support of his claim of ineffective representation for the failure to present testimony during the suppression hearing that Chavez’s alienage affected his ability to voluntarily waive his Miranda rights. Here, Chavez asserts that the postconviction court erred in this determination because the witness held the proper knowledge and expertise to testify on the subject of alienage.

It is within the court’s discretion to determine the qualifications of a witness to express an expert opinion, and this determination will not be reversed absent a clear showing of error. See Brooks v. State, 762 So.2d 879, 892 (Fla.2000).. Before an expert may render an opinion, the witness must satisfy a four-prong test of admissibility. Section 90.702, Florida Statutes (2007), provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

This section requires the court to make two preliminary determinations: (1) whether the subject matter will assist the trier of fact in understanding the evidence or in determining a disputed fact, and (2) whether the witness is adequately qualified to express an opinion on the matter. See Huck v. State, 881 So.2d 1137, 1149 (Fla. 5th DCA 2004). Once these threshold determinations are affirmatively satisfied, two more requirements must be satisfied for the admission of expert opinion testimony. The expert opinion must apply to evidence presented during the hearing, and the danger of unfair prejudice must not substantially outweigh the probative value of the opinion. See Glendening v. State, 536 So.2d 212, 220 (Fla.1988).

The present case involves only the second determination — -that is, whether the witness was qualified to express an opinion on the subject matter to be addressed. A witness may be qualified as an expert through specialized knowledge, training, or education, which is not limited to academic, scientific, or technical knowledge. An expert witness may acquire this specialized knowledge through an occupation or business or frequent interaction with the subject matter. See Weese v. Pinellas County, 668 So.2d 221, 223 (Fla. 2d DCA 1996) (citing Harvey v. State, 129 Fla. 289, 176 So. 439, 440 (1937) (witnesses were qualified as expert cattlemen and butchers based upon many years of experience in such business and occupation and knowledge acquired thereby)). However, general knowledge is insufficient. The witness must possess specialized knowledge concerning the discrete subject related to the expert opinion to be presented. See Charles W. Ehrhardt, Florida Evidence § 702.1, at 686-87 (2008 ed.).

Mr. Amezaga’s qualifications and proffered testimony consisted of some research, two visits to Cuba, which involved research and discussions with Cuban lawyers, and one discussion with Chavez. Chavez suggests that the qualifications of his expert were similar to those of the witness found sufficient in Brooks v. State, 762 So.2d 879 (Fla.2000). In addressing the matter as one of first impression, we held in Brooks that the trial court did not err in ruling that an experienced dealer of crack cocaine was qualified to testify as an expert with regard to the identity and approximate weight of a rocky substance contained in a sandwich bag. See id. at 891-94. In reaching this conclusion, we reviewed decisions from Florida and other jurisdictions that qualified police officers or experienced drug dealers and users as narcotics-identification experts. See, e.g., United States v. Dominguez, 992 F.2d 678, 681 (7th Cir.1993); A.A. v. State, 461 So.2d 165, 165-66 & n. 1 (Fla. 3d DCA 1984). Here, Chavez has not submitted decisions concerning whether a witness could be qualified as an expert with regard to legal systems or how that expertise, even if it existed, might translate into expertise on the subject here.

Moreover, the cases considered in Brooks identified a consistent factor in witness qualification, which was the witness’s familiarity and experience with the narcotic acquired through frequent and prolonged exposure to the drug. For instance, the -witness in Brooks was an experienced crack-cocaine dealer because he had sold the drug almost every day for approximately two years. The witness had personally observed the bag containing the rocky substance that he was identifying, and he was afforded an opportunity to examine and inspect the substance. The witness was qualified as an expert because he had acquired experience through the longevity and frequency of his exposure to the pertinent and non-mainstream subject matter. Applying a similar analysis here, the court did not err in refusing to qualify Mr. Amezaga as an expert witness based on his proffered qualifications. Mr. Amezaga’s qualification as a lawyer did not qualify him to testify as an expert on suppression issues in American criminal law, much less on the Cuban criminal justice system or how the difference between the two may have affected Chavez.

Although an expert may also be qualified through study or practical experience, rather than education or formal training, there must be sufficient development of specialized knowledge in the subject matter. See Allen v. State, 365 So.2d 456, 458 (Fla. 1st DCA 1978) (holding that the trial court abused its discretion in determining that a witness was not qualified to testify as an expert because he did not hold a doctoral degree). The expert must have adequate experience with the subject matter. See Robinson v. State, 818 So.2d 588, 589 (Fla. 5th DCA 2002). The qualifications proffered by Chavez do not demonstrate that Mr. Amezaga had sufficiently developed specialized knowledge of, or that he had adequate experience with, the comparative study of the Cuban and American legal systems and how the significant differences would affect a defendant’s waiver of rights under Miranda.

In Jordan v. State, 694 So.2d 708 (Fla. 1997), we held that the trial court abused its discretion in allowing a witness to testify with regard to matters beyond her area of expertise. See id. at 715 (citing Hall v. State, 568 So.2d 882, 884 (Fla.1990)). The witness testified with regard to offender-profile evidence, which was an area she had not definitively focused on during her education in psychology and counseling. We stated that her educational degrees did not qualify her to testify about complicated profile evidence drawn from scientific literature. Furthermore, her experiences did not qualify her as an expert in offender-profile evidence because, at the time of her testimony, she was not working with, compiling, or studying profile evidence, and she based her opinion solely on research gathered in the library and from the literature that she had reviewed. We stated:

There is no absolute prohibition against qualifying an expert based upon “his or her study of authoritative sources without any practical experience in the subject matter.” Ehrhardt, § 702.1, at 512 [ (1995 ed.) ] The problem in this case is that [the witness] did not demonstrate, in the record, a sufficient study of the scientific literature. Simply reading large amounts of scientific literature, all of which falls well outside a person’s area of educational expertise, cannot serve to create an expert out of a non-expert.

Jordan, 694 So.2d at 716. Similarly, the foundation of Mr. Amezaga’s understanding of the Cuban legal system originated from reading that country’s statutes and constitution. There is no abuse of discretion in the court’s determination that the reading of large amounts of legal literature beyond Mr. Amezaga’s expertise, which was American criminal law, did not qualify him as an expert in the Cuban legal system. Based on the proffered testimony and qualifications presented, we conclude that the court did not abuse its discretion in determining that the witness lacked sufficient knowledge, training, or education to render an expert opinion with regard to the differences between Cuban and American law and the alleged impact of Chavez’s alienage on the voluntariness of his confession.

Even if Mr. Amezaga was qualified to testify, the proffered testimony does not demonstrate a reasonable probability of altering the outcome of the suppression hearing. During his direct appeal, Chavez asserted that he could not have understood the Miranda warnings and his constitutional rights because his native country is ruled by a totalitarian dictatorship. We determined that alienage alone was not a basis to undermine an understanding of his rights. See Chavez, 832 So.2d at 751 (“The record clearly reflects that Chavez’s intelligence, education, and alienage did not adversely affect his understanding of his rights during the police interrogation progress. Finding no support in the record, the argument that Chavez’s background caused him to misapprehend his rights in the American system fails.”). From the proffered testimony, which was submitted after the evidentiary hearing, Mr. Amezaga allegedly would have testified that the differences in the American and Cuban criminal justice systems

may have affected Mr. Chavez’s understanding of the Miranda rights. Since Mr. Chavez did not have access to a court appointed attorney during his contacts with the Cuban Criminal Justice System, he may have very well expected to not have a court appointed lawyer at the time that he was questioned. Also, since Mr. Chavez did not have the right to remain silent when he was interrogated in Cuba, he likewise could have expected to not have this important right when he was interrogated by police.

(Emphasis supplied.) This proffer does not present admissible evidence that alien-age affected the voluntariness of the Miranda waiver involved here. We have already determined on direct appeal that Chavez’s intelligence, education, and alien-age did not adversely affect his understanding of his rights during the police interrogation process. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on an ineffective assistance claim, Chavez must demonstrate that the proffered evidence had a reasonable probability of changing the outcome, which is a probability sufficient to undermine our confidence in the verdict. See 466 U.S. at 694, 104 S.Ct. 2052. The proffered testimony does not satisfy that burden. Thus, even if Mr. Amezaga qualified as an expert witness, Chavez would not be able to satisfy the prejudice prong of Strickland based on this proffered testimony. Chavez entered a knowing, intelligent, and voluntary waiver. We affirm the postconviction court’s denial of this claim.

Mental Health Mitigation

Chavez next claims that he received ineffective assistance of counsel during the penalty phase because counsel failed to investigate and present evidence of mental health mitigation. Specifically, Chavez asserts ineffective assistance based on the failure to present the testimony of Dr. John Quintana, who was initially hired to investigate potential mitigation evidence but was not presented as a witness because trial counsel feared that his testimony would insult the jury and be detrimental on cross-examination.

In applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we have held that for claims of ineffective assistance to succeed, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). There is a strong presumption that trial counsel’s performance was effective, and judicial scrutiny of counsel’s performance must be highly deferential. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). In conducting this review, we afford deference to the postcon-viction court’s findings of fact if they are supported by competent, substantial evidence, while we review the legal claims de novo. See Connor v. State, 979 So.2d 852, 858 (Fla.2007).

With regard to presentation of mitigation evidence, defense counsel must certainly consider all phases of a capital proceeding and strive to avoid a counterproductive course. See Florida v. Nixon, 543 U.S. 175, 191-92, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In Straight v. Wainwright, 422 So.2d 827 (Fla.1982), the defendant challenged his trial counsel’s failure to further investigate mitigating evidence. There,' trial counsel testified that he did not present certain mitigation because, in his view, that evidence would have been fundamentally inconsistent with the entire defense. See id. This Court concluded that trial counsel’s performance was not ineffective where trial counsel reasonably viewed the mitigating evidence to be fundamentally damaging to the integrity of the defense. See id.

Here, limitations were imposed on counsel due to Chavez’s refusal to provide certain facts with 1’egard to his background. Additionally, conflict with guilt-phase strategy presented obstacles. During the evidentiary hearing, counsel testified that he balanced the benefit of presenting Dr. Quintana’s testimony against the risk created by the defense theory of innocence. After conducting this balancing analysis, trial counsel did not present Dr. Quintana as a witness because (1) the psychological testing revealed that although Chavez did not completely reach the criteria for socio- or psychopathy, his score was heightened in that area; (2) Dr. Quintana asserted that it was unlikely Chavez acted alone, which could possibly reveal that Chavez had a homosexual lover and potential accomplice; (3) Dr. Quinta-na’s finding that Chavez was not a pedophile was in conflict with the jury’s determination that Chavez was guilty of sexual battery on a nine-year-old boy; and (4) Dr. Quintana did not conduct a follow-up evaluation of Chavez prior to trial.

In Dr. Quintana’s initial evaluation of Chavez prior to trial, Chavez scored a 67 on the psychopathic deviant scale, which was dangerously close to the score (i.e., 70) which would classify Chavez as a psychopath or as having a psychopathic personality. During the evidentiary hearing, the State demonstrated that Chavez’s score might have increased if Chavez had answered one or more questions differently. Dr. Quintana also agreed that under a different testing rubric, Chavez might have received an elevated score to place him in a category of danger. With regard to the pedophilia results, counsel testified that a cross-examination inquiry during the penalty-phase proceedings would have likely addressed the inconsistency of the results in light of the jury’s determination that Chavez had committed sexual battery on a minor. Trial counsel stated: “Obviously if [Chavez] committed the crime then ... you would have to concede that he was a pedophile, which means that it would not validate [Dr. Quintana’s] psychological opinion.” This potential attack occurred during the postconviction evidentiary hearing, when Dr. Quintana was heavily impeached on cross-examination with the detailed confession of Chavez to the sexual battery. In response, Dr. Quintana admitted that either Chavez lied to the police concerning his pedophilia or he had been untruthful on the psychological test.

Under these circumstances, counsel cannot be deemed ineffective for not presenting testimony that would have alienated the penalty-phase jury. This was a reasonable strategic decision based upon a belief that Dr. Quintana’s testimony would have inflicted more harm from impeachment than it would have assisted the penalty-phase presentation. See Asay v. State, 769 So.2d 974, 985 (Fla.2000) (“[I]n those cases where counsel did conduct a reasonable investigation of mental health mitigation prior to trial and then made a strategic decision not to present this information, we have affirmed the trial court’s findings that counsel’s performance was not deficient.”). Even if the psychological evaluation of Chavez here did not result in a score above 70, the jury could have reasonably correlated the close proximity of the score to the level of establishing psychopathy. See Freeman v. State, 858 So.2d 319, 327 (Fla.2003) (concluding that antisocial personality disorder is a trait that most jurors tend to view unfavorably).

In addition, counsel was not deficient for failing to present mitigation testimony based on the client’s self-imposed limitations. Lead counsel testified that it was necessary to mislead Chavez to convince him to even confer with Dr. Quintana because Chavez did not want to present penalty-phase mitigation. At first, lead counsel informed Chavez that Dr. Quintana was only going to evaluate him as it related to the guilt phase. When the time to conduct a follow-up interview arrived, lead counsel testified that Chavez refused to participate. Even if this evidence could have been presented during a Spencer hearing, Chavez refused to participate in the followup interview that Dr. Quintana requested. Thus, there was no avenue for counsel to acquire the necessary follow-up information to supplement Dr. Quintana’s report. Based on the record, the postconviction court correctly ruled that there was no deficient performance by counsel for the strategic decision that the testimony of Dr. Quintana not be presented.

Further, Chavez did not demonstrate that the failure to present Dr. Quintana as a mitigation witness created circumstances which undermine our confidence in the proceeding here, given the substantial aggravation and the relatively insignificant and possibly detrimental impact of that testimony. Cf. Hitchcock v. State, 991 So.2d 337, 358 (Fla.2008); Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000). The trial court here found three aggravating factors, one of which was that the capital felony was especially heinous, atrocious, or cruel. Though the trial court found several mitigating factors, including that the defendant lacked a prior history of violence, the court concluded that “the quality of the aggravating factors in this case greatly outweigh the mitigating circumstances. The strength of the aggravating circumstances in this case are so overwhelming that they make the mitigating circumstances appear insignificant by comparison.” Chavez, 832 So.2d at 766 n. 44 (emphasis supplied). Furthermore, on direct appeal, this Court upheld Chavez’s sentence as proportional. See Chavez, 832 So.2d at 766-67. Dr. Quintana’s testimony with regard to Chavez’s bookish, non-violent personality does not create a reasonable probability that, with his testimony, the outcome of the penalty phase would have been different. See Cherry, 781 So.2d at 1048. Thus, we affirm the post-conviction court’s denial of this claim because the strategic decision to not present Dr. Quintana as a mitigation witness was based on Chavez’s wishes and a reasonable evaluation of the potentially negative impact of the testimony. Furthermore, the testimony presented by Chavez does not undermine our confidence in the outcome of the penalty phase given the substantial aggravation and the relatively insignificant and possibly detrimental impact of this testimony.

Per Se Ineffective Assistance of Counsel

Chavez asserts that trial counsel’s actions were ineffective per se under the standard articulated in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Chavez places the majority of the alleged errors on the decisions made by lead counsel and advances that the failure of co-counsel to challenge lead counsel’s decisions demonstrated a per se denial of the effective assistance of counsel. Specifically, Chavez frames the conflict between the attorneys concerning the proper mitigation strategy as a conflict of interest that affected the adequacy of his representation.

In denying the individual errors asserted below, the postconviction court noted that each claim failed to demonstrate deficient performance or prejudice and there was no evidence to establish a lack of harmony within the defense team. Further, it was determined that Chavez had not shown prejudice from the alleged interference of the Public Defender because lead counsel testified that all depositions were taken and all investigations were ultimately completed. The postconviction court found that Chavez had not presented any credible testimony that he was denied a full legal defense by his trial counsel or that the delay in investigation affected the outcome of the trial.

The Sixth Amendment of the United States Constitution guarantees a defendant the right to be represented by counsel during criminal proceedings. This mandate has been extended to mean adequate legal assistance by a reasonably competent attorney whose advice falls within the range of competence demanded of attorneys in criminal cases. See Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The right to competent counsel has been accorded because of the “effect it has on the ability of the accused to receive a fair trial.” Cronic, 466 U.S. at 658, 104 S.Ct. 2039. As the United States Supreme Court explained:

Thus, the adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Anders v. California, 386 U.S. 738, 743, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.

Cronic, 466 U.S. at 656-57, 104 S.Ct. 2039 (footnotes omitted).

Generally, a defendant is entitled to relief if he or she demonstrates that counsel violated this guarantee through deficient performance and that he or she was prejudiced by the deficiency. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. However, if the defendant can demonstrate that counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” the law will presume prejudice and deem counsel ineffective per se. Cronic, 466 U.S. at 659, 104 S.Ct. 2039. For instance, constitutional error is found without a showing of prejudice when counsel was totally absent, was prevented from assisting the accused during a critical stage of the proceeding, or had a conflict of interest that affected the adequacy of representation. See id. at 659 n. 25, 104 S.Ct. 2039. Apart from these rare circumstances, the Cronic standard is a narrow exception to Strickland that is reserved for situations where counsel has entirely failed to function as the client’s advocate. See Florida v. Nixon, 543 U.S. 175, 189-90, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (holding that this Court erred in determining that counsel’s concession of the client’s guilt qualified as such a failure).

Here, the totality of the defense team’s efforts does not demonstrate a complete failure to subject the State’s case to a meaningful adversarial testing such that the denial of Sixth Amendment rights rendered the adversary process itself presumptively unreliable. Chavez’s specific allegation that lead counsel’s strategy created an absolute failure of the adversarial system does not qualify under the Cronic exception to Strickland. Despite Chavez’s earnest attempt to portray lead counsel as a one-man threat to the adversarial system, none of the cases advanced by Chavez support this interpretation of the per se rule because each decision is either distinguishable or inapplicable to these circumstances. See Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (discussing conflict of interest where counsel had previously represented the victim in the defendant’s case); Crist v. Fla. Ass’n of Crim. Defense Lawyers, Inc., 978 So.2d 134, 148 (Fla.2008) (holding that the mere creation of the Office of Criminal Conflict and Civil Regional Counsel did not implicate the Sixth Amendment right to effective representation); Hatten v. State, 561 So.2d 562, 565 (Fla.1990) (holding that due to an excessive backlog of cases, the public defender failed to provide the defendant with effective representation); Gorham v. State, 521 So.2d 1067 (Fla.1988) (addressing summary denial of postconviction claim without any mention of per se ineffectiveness); Makemson v. Martin County, 491 So.2d 1109, 1111 (Fla.1986) (holding that an arbitrary fee cap unconstitutionally affected a defendant’s Sixth Amendment right by prohibiting the trial court from compensating counsel for the time necessary to provide the defendant with effective representation).

The Cronic standard is reserved for situations where the assistance of counsel has been denied entirely or withheld during a critical stage of the proceeding such that the “likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens, 535 U.S. at 166, 122 S.Ct. 1237. This presumption functions to protect the right of an accused to a fair trial because the failure to receive such assistance jeopardizes the functioning of the adversarial system as a whole. Despite lead counsel’s assertion that the Miami-Dade Public Defender attempted to curtail the defense team’s investigation, the record contains sufficient evidence that any alleged internal constraints did not limit counsel’s ability to provide effective representation. Unlike the defendant in Cronic, Chavez was represented by a team of experienced capital defenders. This team aggressively tested the State’s case by conducting depositions, filing motions, conducting cross-examination, and presenting a defense. Thus, the representation was not ineffective for the alleged failure to subject the prosecution’s case to meaningful adversarial testing.

Furthermore, the alleged conflict between counsel concerning the proper strategy to pursue during the penalty phase does not fall under the conflict-of-interest cases deemed to demonstrate per se ineffective assistance of counsel. Prejudice may be presumed when counsel labors under an actual conflict of interest, despite the fact that the constraints on counsel in that context are entirely self-imposed. See Cuyler, 446 U.S. at 335, 100 S.Ct. 1708. Conflict of interest generally occurs when an attorney actively represents conflicting interests, not when a defense team considers conflicting strategic approaches. See, e.g., Mickens, 535 U.S. at 166-172, 122 S.Ct. 1237 (examining cases that found presumptive ineffective assistance when the defendant’s attorney actively represented conflicting interests, which were Cuyler, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)). Thus, there is no merit to Chavez’s allegation that any alleged internal debate over strategy rose to the magnitude of per se ineffective assistance.

Chavez cannot rely on the per se rule from Cronic to avoid establishing prejudice for each of the claims denied by the postconviction court. This case is not one in which the surrounding circumstances make it unlikely that Chavez received effective assistance of counsel. Therefore, we deny this claim because counsel’s actions do not qualify as per se ineffectiveness under the narrow Cronic exception to Strickland.

ANALYSIS OF THE PETITION FOR WRIT OF HABEAS CORPUS

In his habeas petition, Chavez asserts that counsel rendered ineffective assistance during his direct appeal by failing to challenge the constitutionality of Florida’s lethal-injection protocol and Florida’s standard penalty-phase jury instructions. Chavez further alleges that appellate counsel’s repeated instances of deficient performance deprived him of the meaningful legal assistance guaranteed by the Sixth Amendment. We reject each of these claims.

The Constitutionality of Lethal Injection as Administered in Florida

During January of 2000, the Legislature adopted legislation which created lethal injection as a mode of execution in Florida. On direct appeal, Chavez’s amended initial brief was filed with this Court during April of 2000, approximately three months after these legislative changes. Chavez asserts that appellate counsel rendered ineffective assistance by failing to challenge Florida’s lethal-injection protocol as an unconstitutional mode of execution. Chavez also requests that we reexamine our holdings in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), cert. denied, — U.S.-, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008), and related decisions, in light of the United States Supreme Court’s decision in Baze v. Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).

Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). The defendant has the burden of affirmatively establishing each prong of the Strickland standard. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In addition, capital defendants may not use claims of ineffective assistance of appellate counsel to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Moreover, appellate counsel cannot be ineffective for failing to raise a meritless issue. See Lawrence v. State, 831 So.2d 121, 135 (Fla.2002); see also Kokal v. Dugger, 718 So.2d 138, 142 (Fla. 1998) (“Appellate counsel cannot be faulted for failing to raise a nonmeritorious claim.”).

At the time of the direct appeal in this case, there was simply no basis upon which to present a mode-of-execution challenge to Florida’s original lethal-injection protocol. The protocol was new, unimplemented, and widely regarded as a humane, civilized alternative to death by electrocution. Cf. Baze, 128 S.Ct. at 1525-26, 128 S.Ct. 1520 (“States [that impose the death penalty have] altered [their] method[s] of execution over time to more humane means of carrying out the[se] sentence[s]. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.”).

To the extent that Chavez disputes the constitutionality of Florida’s current lethal-injection protocol, we have repeatedly rejected such Eighth Amendment chai-lenges. See Tompkins v. State, 994 So.2d 1072, 1081 (Fla.2008), cert. denied, — U.S. -, 129 S.Ct. 1305, — L.Ed.2d -(2009); Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 997 So.2d 1073, 1089 (Fla.2008); Schwab v. State, 995 So.2d 922, 933 (Fla.2008), petition for cert. filed, No. 08-5020 (U.S. June 30, 2008); Woodel v. State, 985 So.2d 524, 533-34 (Fla.), cert. denied, — U.S.-, 129 S.Ct. 607, 172 L.Ed.2d 465 (2008); Lebron v. State, 982 So.2d 649, 666 (Fla. 2008); Schwab v. State, 982 So.2d 1158, 1159-60 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326, 350-53 (Fla.2007). Finally, with regard to reliance upon Baze, this Court recently reaffirmed that “Florida’s current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court.” Ventura v. State, 2 So.3d 194, 200 (Fla. 2009), petition for cert. filed, No. 08-10098 (U.S. Apr. 16, 2009). Thus, we deny this habeas claim.

Constitutionality of Penalty-Phase Jury Instructions

This Court has repeatedly rejected claims that the standard jury instructions impermissibly shift the burden to the defense to prove that death is not the appropriate sentence or that these instructions unconstitutionally denigrate the role of the jury in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). See, e.g., Taylor v. State, 937 So.2d 590, 599 (Fla.2006) (citing Elledge v. State, 911 So.2d 57, 79 (Fla.2005); Mansfield v. State, 911 So.2d 1160, 1180 (Fla. 2005); Sweet v. Moore, 822 So.2d 1269, 1274 (Fla.2002)); Carroll v. State, 815 So.2d 601, 622-23 (Fla.2002); Rutherford v. Moore, 774 So.2d 637, 644 & n. 8 (Fla. 2000); Downs v. State, 740 So.2d 506, 517 n. 5 (Fla.1999); San Martin v. State, 705 So.2d 1337, 1350 (Fla.1997); Shellito v. State, 701 So.2d 837, 842 (Fla.1997); Sochor v. State, 619 So.2d 285, 291 (Fla.1993); Turner v. Dugger, 614 So.2d 1075, 1079 (Fla.1992); Combs v. State, 525 So.2d 853, 855-58 (Fla.1988). Appellate counsel cannot be ineffective for failing to raise a meritless issue. See, e.g., Lawrence, 831 So.2d at 135. Accordingly, we deny these habeas claims.

Cumulative Error

Chavez asserts that appellate counsel’s repeated instances of deficient performance during his direct appeal deprived him of the meaningful legal assistance guaranteed by the Sixth Amendment. This Court has held that “where individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.” Griffin v. State, 866 So.2d 1, 22 (Fla.2003); see also Dufour v. State, 905 So.2d 42, 65 (Fla. 2005). Each of the claims raised by Chavez is without merit. Therefore, we deny Chavez’s habeas petition.

CONCLUSION

For the reasons stated above, we affirm the postconviction court’s order denying Chavez’s amended rule 3.851 motion, and we deny his petition for writ of habeas corpus.

It is so ordered.

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

PERRY, J., did not participate.

      . Further factual details can be found in this Court's decision on direct appeal. See Chavez v. State, 832 So.2d 730 (Fla.2002).

      . In determining that the death sentence was appropriate, the trial court found the following aggravating circumstances: (1) that the murder was committed while Chavez was engaged in the commission of, or in an attempt to commit or escape after committing, the crime of kidnapping; (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (3) that the murder was especially heinous, atrocious, or cruel ("HAC"). See Chavez, 832 So.2d at 767 n. 44. In addition, the trial court found the following statutory mitigating circumstances: (1)his family background and good family relationship (some weight); (2) his political and economic background (little weight); (3) his good employment and ability to work and earn a living (some weight); and (4) his ability to establish and maintain positive relationships (some weight). See id. The trial court also found the following additional mitigating circumstances: (1) his good jail conduct and courtroom demeanor (very little weight); and (2) his lack of a prior history of violence (some weight). See id.

      .Chavez raised the following issues during his direct appeal: (1) the police lacked probable cause to arrest him; (2) his confession should have been suppressed as involuntary for several reasons, including his alienage; (3) photographing of jurors' faces by the media denied him a fair trial; (4) the trial court erred in admitting a bloodstained mattress unrelated to the case; (5) the trial court erred in denying his motion for judgment of acquittal on the capital sexual battery charge because the State failed to prove the corpus delicti of the crime; (6) the trial court erred in admitting cumulative photographs of the victim's body; (7) the trial court erred in giving certain jury instructions; (8) the State improperly diminished the role of the jury during voir dire and the penalty phase; (9) several related claims that challenged the constitutionality of Florida's capital sentencing scheme; (10) the death sentence was disproportionate; and (11) Florida’s capital sentencing scheme violated Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See Chavez, 832 So.2d at 747-48, 758, 760, 762-64, 766-67 n. 45.

      . Counsel waived the following claims: (1) the prosecuting attorney was not a member of the State Attorney's Office during the trial; (2) trial counsel failed to obtain the fingerprints of an individual for comparison to a print found on a firearm retrieved from Chavez's trailer; and (3) counsel failed to introduce a foreign police report that established the period Chavez spent in a Cuban jail.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).


source: Caselaw Access Project

author: PER CURIAM. CANADY, J., QUINCE, C.J.,

license: Public Domain

text:
    Walter A. McNEIL, etc., Petitioner, v. Edison CANTY, Respondent.
    No. SC08-2369.
    Supreme Court of Florida.
    June 25, 2009.
    Carolyn J. Mosely, Attorney Supervisor, Office of General Counsel, Department of Corrections, Tallahassee, FL, for Petitioner.
    Nicholas A. Shannin of Page, Eichen-blatt, Bernbaum, and Bennett, P.A., Orlando, Florida, and William R. Ponall of Kirk-connell, Lindsey, Snure, and Yates, P.A., Winter Park, FL, for Respondent.
   PER CURIAM.

We review the decision of the First District Court of Appeal in Canty v. McNeil, 995 So.2d 998 (Fla. 1st DCA 2008), a case in which the First District certified a question of great public importance. We rephrase the certified question as follows:

Upon revocation of conditional release, can the Department of Corrections (DOC) calculate an inmate’s new release date by using the gain time forfeited on the release eligible sentence with the most accrued gain time, even if this method requires the inmate to be incarcerated beyond the concurrent sentences imposed by the trial judge?

We answer the rephrased question in the negative and approve the result of the First District’s decision. We also disapprove the Fifth District Court of Appeal’s conflicting decision in Crosby v. McNeal, 865 So.2d 617 (Fla. 5th DCA 2004). We hold that DOC cannot require an inmate to serve more incarceration time than imposed by the trial judge.

L BACKGROUND

In 1992, Edison Canty was sentenced to serve multiple sentences concurrently. Canty, 995 So.2d at 998. Three of Canty’s fifteen-year concurrent sentences were eligible for conditional release; however, these sentences were not subject to the same accrual of gain time. In April 2002, Canty was conditionally released. Id. His conditional release eligible sentence with the least accrued gain time, which mandated the longest incarceration, determined his release date.

In December 2005, Canty was returned to custody after he violated the conditions of his supervision. Id. Upon revocation of his conditional release, DOC declared a forfeiture of the previously accrued gain time on Canty’s three conditional release eligible offenses. Then, DOC determined Canty’s new release date by using the forfeited gain time on the conditional release eligible sentence that had accrued the greatest amount of gain time. Specifically, DOC calculated Canty’s new tentative release date as follows: August 24, 2005 (date of revocation of supervision)+2847 days (forfeited gain time on the sentence with the most accrued gain time)-94 days (Florida Parole Commission credit)-481 days (gain time awarded since revocation date)=January 15, 2012.

Canty challenged DOC’s calculation of his new release date, arguing that “the new release date effectively extends his sentence from 15 years to over 17 years, a period beyond the statutory limits and the authority of [DOC].” Id. at 999. After being denied administrative relief as well as relief in the trial court, Canty filed a petition for a writ of certiorari in the First District. Id. The First District concluded that “[t]he court set the length of sentence, and [DOC] does not have the authority to increase it.” Id. Accordingly, the First District granted Canty’s petition and remanded to the trial court for further proceedings. Id.

II. ANALYSIS

The Conditional Release Program Act provides that, upon revocation of conditional release, an inmate is returned to prison to serve the sentence imposed upon him by the sentencing judge, while the gain time the inmate earned prior to conditional release is forfeited. See § 947.141(3)-(4), Fla. Stat. (1991). Further, the Florida Corrections Code states that “forfeitures of gain-time, when ordered, shall be applied to make the tentative release date proportionately later.” § 944.275(3)(a), Fla. Stat. (1991). Combined, these statutes appear to instruct DOC to calculate an inmate’s new release date by using the gain time that is forfeited upon revocation. In most circumstances, such a calculation would not pose a problem.

But here, if the forfeited gain time on Canty’s sentence with the most accrued gain time is applied to make his new tentantive release date proportionately later, Canty would be required to serve more incarceration time than originally imposed by the sentencing judge. Specifically, Canty would have to serve approximately seventeen years in prison, rather than the fifteen-year concurrent sentences originally imposed. Such a result would be unconstitutional. “Sentencing is a power, obligation, and prerogative of the courts, not DOC.” Pearson v. Moore, 767 So.2d 1235, 1239 (Fla. 1st DCA 2000), approved, 789 So.2d 316 (Fla.2001). And article II, section 3 of the Florida Constitution provides that “[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” See also art. I, § 18, Fla. Const. (“No administrative agency ... shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.”); Moore v. Pearson, 789 So.2d 316, 319 (Fla.2001) (“DOC violates the separation of power doctrine when it refuses to carry out the sentence imposed by the court.”).

To avoid this unconstitutional result, we hold that DOC, upon revocation of conditional release, must retroactively credit prison time served on any concurrent sentence as prison time served on all concurrent sentences. See Crosby v. Bolden, 867 So.2d 373, 378-79 (Fla.2004) (Wells, J., dissenting); State v. Rabedeau, 2 So.3d 191, 192 (Fla.2009). We are not receding from our decision in Evans v. Singletary, 737 So.2d 505 (Fla.1999).

III. CONCLUSION

For the above reasons, we answer the rephrased certified question in the negative and hold that DOC cannot require an inmate to serve more incarceration time than imposed by the trial judge. Upon revocation of conditional release, DOC must retroactively credit prison time served on any concurrent sentence as prison time served on all concurrent sentences. Accordingly, we approve the result of the First District’s decision in Canty and disapprove the Fifth District’s conflicting decision in Crosby.

It is so ordered.

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

CANADY, J., specially concurs with an opinion.

QUINCE, C.J., concurs in result only with an opinion.

CANADY, J.,

specially concurring.

I agree with the conclusion that Canty should not be required to “serve more incarceration time than originally imposed by the sentencing judge.” I do not, however, agree that we need resort to the canon of constitutional avoidance to reach that conclusion. We have come to that pass only because we concluded in Evans v. Singletary, 737 So.2d 505 (Fla.1999), that a period of conditional release supervision for a particular sentence can be tolled while the inmate remains incarcerated on a concurrent sentence.

Evans ’ tolling analysis gives birth to the fiction that Canty was not serving time on his sentence during the period when the conditional release supervision on that sentence was tolled — even though he remained incarcerated during that period. That fiction then provides the basis for the Department to assert that after the revocation of his conditional release, Canty was required to be incarcerated based on the forfeiture of a period of gain-time equivalent to the period of the tolled supervision. That is, Canty was required to forfeit gain-time which was not used to determine his release date and from which he therefore never derived any benefit. It is this line of argument — predicated on the tolling analysis — that leads the Department to advocate that Canty should be incarcerated for a period that would exceed the length of the sentence imposed on him.

I would recede from Evans because the tolling analysis it employs is not consistent with the plain import of the governing statutory provisions and has proven to be unworkable in practice. The important “presumption in favor of stare decisis ” is overcome here because the “prior decision proved unworkable due to reliance on an impractical legal ‘fiction.’ ” N. Fla. Women’s Health & Counseling Services, Inc. v. State, 866 So.2d 612, 637-38 (Fla.2003). We should abandon the unworkable tolling analysis and rely instead on the plain meaning of the relevant statutory provisions.

The Conditional Release Program Act, sections 947.1405-.141, Florida Statutes (1991), contains no provision suggesting that any inmate should ever be required to spend any time incarcerated by the Department of Corrections beyond the length of the sentence imposed. Instead, it is the manifest design of the Act (a) to subject an inmate to conditional release supervision for a period of time equivalent to the amount of time by which the award of gain-time actually shortened the inmate’s term of incarceration; and (b) to subject an inmate whose conditional release is revoked to a period of further incarceration equivalent to the period by which the award of gain-time actually had shortened the term of incarceration. The Act thus embodies a clear quid pro quo: Conditional early release from prison based on the award of gain-time is granted in exchange for supervision on conditional release subject to the revocation for misconduct of the gain-time which made the early release possible. Accordingly, an inmate whose conditional release is revoked should be returned to prison to serve a period of time equivalent to the amount of time by which the award of gain-time shortened the inmate’s stay in prison.

This understanding of the Act’s operation flows from two critical statutory provisions. The first provision, which is found in section 947.1405(6), places a limitation on the length of conditional release supervision; the second provision, which is set forth in section 947.141(4), places a concomitant limitation on the forfeiture of gain-time and the length of incarceration following revocation of conditional release.

Section 947.1405(6) provides that “[t]he length of [conditional release] supervision must not exceed the maximum penalty imposed by the court.” This provision can only be reasonably understood as limiting the period of supervision to the unserved time remaining on the sentence when the inmate is released from prison and placed on conditional release supervision. (Time served + time on conditional release supervision=sentence imposed. Sentence imposed-time served=time on conditional release supervision.) The length of the conditional release supervision period equals the length of the reduction by virtue of the award of gain-time of the period of incarceration imposed by the court.

Section 947.141(4) provides that an inmate whose conditional release is revoked “may be deemed to have forfeited all gain-time ... earned up to the date of his conditional release.” (Emphasis added.) In its primary relevant sense, forfeiture means “[t]he loss of a right, privilege or property because of a crime, breach of obligation, or neglect of duty.” Black’s Law Dictionary 677 (8th ed.2004). Ordinarily, accrued gain-time carries with it a contingent right to the reduction of an inmate’s period of incarceration. That contingent right is defeasible for misconduct by the inmate while incarcerated or while on conditional release. But gain-time that never attained the status of a right or privilege enjoyed by an inmate is not subject to being “forfeited” under section 947.141(4).

Because of the circumstances presented by the differences in gain-time eligibility associated with Canty’s various concurrent sentences, Canty never obtained any meaningful right to the gain-time at issue here, i.e., the gain-time which was credited by the Department but not used by the Department to determine the date of Canty’s release from incarceration. That gain-time was in effect never anything more than an accounting entry in the records of the Department. Any potential right associated with that gain-time was wholly extinguished by the legal requirement that Canty remain incarcerated. Since Canty obtained no benefit from that gain-time, it was not subject to forfeiture. It makes no sense to say that Canty can be required to forfeit something that has already been taken away from him.

QUINCE, C.J.,

concurring in result only.

Because the concept espoused by this Court in Evans v. Singletary, 737 So.2d 505 (Fla.1999), has proven to be unworkable, I agree with Justice Canady that we should recede from that decision. When a person is in fact in prison, it is unimaginable that his sentence or conditional release is somehow being tolled. Simply put: a person is either in prison serving time or he or she is not in prison. Instead of engaging in a fiction that the defendant’s conditional release time is being tolled while he is serving time in prison, as we said in Evans, we should acknowledge the fact that the defendant cannot get out of prison until he is eligible for release on the longest sentence (whether longer in length or because of mandatory time to be served). In such a situation, the defendant is in fact serving time on all of the sentences, and would be entitled to credit for time served should he or she violate conditional release in the future.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . In 1997, section 947.1405(2) was amended by the addition of a provision that conditional release “supervision shall be applicable to all sentences within the overall term of sentences if an inmate's overall term of sentences includes one or more sentences that are eligible for conditional release supervision as provided herein.” This provision is, however, only applicable to offenses committed after its effective date. See Pressley v. Singletary, 724 So.2d 97, 98 (Fla. 1997) (on rehearing). Accordingly, whatever this provision may mean, it has no bearing on Canty’s claim.


author: NORTHCUTT, Chief Judge.

text:
    Danny L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1666.
    District Court of Appeal of Florida, Second District.
    April 24, 2009.
    Rehearing Denied July 21, 2009.
    Danny L. Johnson, pro se.
   NORTHCUTT, Chief Judge.

Danny Johnson pleaded guilty to obtaining property with a worthless check and to grand theft, and he was sentenced for these crimes on August 4, 2005. At the sentencing hearing, the court stated that these two sentences were to run concurrently.

On October 19, 2006, Johnson filed a motion to correct his sentence. Fla. R. Crim. P. 8.800(a). He asserted that although the court had announced that his sentences were to run concurrently, the Department of Corrections was running them consecutively. In January 2007, the postconviction court summarily denied Johnson’s motion, but it did not address the issue of whether DOC was running the worthless check sentence consecutively to the grand theft conviction.

We reversed this summary denial and remanded to the postconviction court to review the record to determine whether a discrepancy existed between the sentencing court’s oral pronouncements and the written sentencing documents. Johnson v. State, 972 So.2d 310, 311 (Fla. 2d DCA 2008).

On remand, the postconviction court again summarily denied Johnson’s motion and attached copies of the written sentencing documents. The written sentence for the worthless check conviction, case number CF04-006077, specifically states the sentence is to run concurrently with the sentence imposed in case number CF04-002026, the grand theft conviction. But the written sentence for the grand theft conviction does not contain the preprinted provision addressing whether the sentence is consecutive to or concurrent with any other sentences. The transcript of the sentencing hearing and the sentencing document for the worthless check conviction establish that the sentencing judge intended that the sentences for the two crimes would run concurrently. The sentencing document in the grand theft case, case number CF04-002026, appears to be missing a page, although the pages are consecutively numbered. This apparent scrivener’s error may be creating confusion at the DOC. Accordingly, we reverse the denial of Johnson’s motion and remand to the postconviction court with directions to correct the sentencing document in case number CF04-002026 to specifically reflect that the sentence is to run concurrently with the sentence imposed in case number CF04-006077.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.


author: PER CURIAM. CASANUEVA,

text:
    MEDIA GENERAL OPERATIONS, INC., Petitioner, v. STATE of Florida and Alexander Robles, Respondents.
    No. 2D08-1154.
    District Court of Appeal of Florida, Second District.
    May 6, 2009.
    Rehearing Denied June 19, 2009.
    Gregg D. Thomas and Rachel E. Fugate of Thomas & LoCicero PL, Tampa, for Petitioner.

      Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent State of Florida.
    B. Elaine New and Sherry McDonald, St. Petersburg, for Chief Judge Robert J. Morris, Jr.
    No appearance for Respondent Alexander Robles.
   PER CURIAM.

Media General Corporation, publisher of the Tampa Tribune, seeks a writ of mandamus directed to the Chief Judge of the Sixth Judicial Circuit ordering him to release the audio recording of a sentencing hearing. Media General contends it is entitled to a copy of the recording because it is a record of the judicial branch and no exemption protects it from public disclosure.

Florida Rule of Judicial Administration 2.420, which governs access to judicial branch records, states:

(b) Definitions.
(1) “Records of the judicial branch” are all records, regardless of physical form, characteristics, or means of transmission, made or received in connection with the transaction of official business by any judicial branch entity and consist of:
(A) “court records,” which are the contents of the court file, including the progress docket and other similar records generated to document activity in a case, transcripts filed with the clerk, documentary exhibits in the custody of the clerk, and electronic records, videotapes, or stenographic tapes of depositions or other proceedings filed with the clerk, and electronic records, videotapes, or stenographic tapes of court proceedings.

Citing the rule, Media General contends that the audio recording of Alexander Robles’ sentencing hearing is an “electronic record” of the hearing and therefore is a court record. We disagree.

The audio recording exists because the Sixth Judicial Circuit uses a digital electronic court reporting system in some proceedings rather than a stenographic court reporter. The recording includes matters that are not a part of the sentencing hearing because the microphones in the courtroom capture all the miscellaneous sounds and conversations in the courtroom before, during, and after the hearing. By definition, the record of a court proceeding is comprised only of matters that are part of the proceedings, i.e., the official business of the court. See id. (defining “court records” as including “electronic records ... of court proceedings ”) (emphasis added); Fla. R. Jud. Admin. 2.535(c) (“Record. When trial proceedings are being reported, no part of the proceedings shall be omitted unless all of the parties agree to do so and the court approves the agreement.”) (emphasis added); see also Holt v. Chief Judge of the Thirteenth Judicial Circuit, 920 So.2d 814 (Fla. 2d DCA 2006)(explaining that digital electronic court reporting systems used in courtrooms capture statements and conversations that are not part of the judicial proceeding or that are not meant to be “on the record”)- Accordingly, we conclude that the audio recording created by digital electronic court reporting systems is not, in and of itself, an “electronic record” of the proceedings.

The audio recording produced by the digital electronic court reporting system exists for the purpose of creating a record of the court proceedings. See Fla. R. Jud. Admin. 2.535(g)(3) (“Electronic Recording and Transcription of Proceedings Without Court Reporters. A chief judge may enter a circuit-wide administrative order, which shall be recorded, authorizing the electronic recording and subsequent transcription by persons other than court reporters, of any judicial proceedings, including depositions, that are otherwise required to be reported by a court reporter.”). Rule 2.420(f)(2) provides that the custodian of court records shall determine the form in which the record is provided. Here, the custodian, the Chief Judge of the Sixth Judicial Circuit, has elected to supply the record of the proceeding at which Mr. Robles was sentenced in the form of a written transcript, something he has the right to do. Accordingly, we conclude Media General has no right to the audio recording produced by the digital court reporting system, and we deny its petition for a writ of mandamus.

Denied.

FULMER and KELLY, JJ, Concur.

CASANUEVA, J., Concurs specially with opinion.

CASANUEVA,

Judge, specially concurring.

Although I concur with the majority that mandamus does not lie to compel the Sixth Judicial Circuit to produce the raw audio recording of the pertinent proceedings, I write to further explain why the audio does not constitute a “record” subject to disclosure.

Media General seeks production of the raw electronic audio captured by the courtroom audio equipment, flatly asserting that this data is an “electronic record” as contemplated by Florida Rule of Judicial Administration 2.420(b)(1)(a). However, in Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633, 640 (Fla. 1980), the supreme court provided guidance that suggests otherwise:

To give content to the public records law which is consistent with the most common understanding of the term “record,” we hold that a public record, for purposes of section 119.011(1), is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type. To be contrasted with “public records” are materials prepared as drafts or notes, which constitute mere precursors of governmental “records” and are not, in themselves, intended as final evidence of the knowledge to be recorded. Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation.

See also Media Gen. Convergence, Inc. v. Chief Judge of Thirteenth Judicial Circuit, 840 So.2d 1008, 1014 (Fla.2003) (citing She-vin as a “landmark decision” in public records law).

It is my opinion that the raw data, consisting of the audio passively recorded by the court’s equipment, is merely a “precursor” of a record. See Shevin, 379 So.2d at 640. The unfiltered recording cannot be “intended as final evidence of the knowledge to be recorded.” Id. As the Chief Judge aptly points out, the audio may, and probably does, contain nonrecord anomalies such as privileged discussions between attorneys and their clients or background dialogue between observers in the gallery. Without any editing — any evidence that a person or entity utilized intelligent thought in culling out the nonrecord anomalies from the unfiltered audio data — there is no suggestion of the necessary “intent” to create the “final evidence” that is a record.

“Mandamus is an extraordinary writ that can be used to compel public officials to perform nondiscretionary, ministerial duties to which the petitioner has a clear legal right.” Moorman v. Hatfield, 958 So.2d 396, 398 (Fla. 2d DCA 2007). Rule 2.420(a) clearly provides that “[t]he public shall have access to all records of the judicial branch” with some enumerated exceptions. Because the raw audio data is only a “precursor” to the record, it is not a record itself. Consequently, Media General cannot demonstrate a clear legal right to the disclosure of the raw data under rule 2.420 to support its request for mandamus relief.

This is not to say that an audio recording of courtroom proceedings can never constitute a “record” subject to public disclosure. If the Chief Judge were to order review of this raw audio data and preparation of an edited audio recording reflecting only the court proceedings, the resulting audio would likely be a “record” subject to disclosure under rule 2.420. However, this is only conjecture, and such a scenario would require a close analysis of the facts and issues presented. See Times Publ’g Co. v. City of Clearwater, 830 So.2d 844, 847 (Fla. 2d DCA 2002) (“[T]he classification of items which fall midway on the spectrum of clearly public records on the one end and clearly not public records on the other will have to be determined on a case by case basis.”).

I concur in the denial of the petition for writ of mandamus.


author: ROTHENBERG, J.

text:
    UNITED AUTOMOBILE INSURANCE CO., Appellant, v. MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., a/a/o Sandra Perez, Appellee.
    No. 3D08-772.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.

      Michael J. Neimand, Miami, for appellant.
    Marlene S. Reiss, for appellee.
    Before RAMIREZ, WELLS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, United Automobile Insurance Company (“United Auto”), appeals the trial court’s order entering final summary judgment in favor of the plaintiff, Millennium Diagnostic Imaging Center, Inc., a/a/o Sandra Perez (“Millennium Diagnostic”). We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A) to review questions certified by the county court as being of great public importance. We reverse the order under review, and remand for further proceedings consistent with this opinion.

7. FACTS

Sandra Perez (“Perez”) was involved in an automobile accident. Millennium Diagnostic performed an MRI on Perez, and Perez assigned her right to personal injury protection (“PIP”) benefits to Millennium Diagnostic. Millennium Diagnostic, as as-signee, sought PIP benefits from United Auto. After payment was not received, Millennium Diagnostic, pursuant to section 627.736(11), Florida Statutes (2003), sent a demand letter notifying United Auto of its intent to initiate litigation. After United Auto failed to pay the claim, Millennium Diagnostic filed suit against United Auto in Miami-Dade County Court for breach of contract.

Millennium Diagnostic moved for summary judgment, arguing in part that the MRI was reasonable, related, or necessary, and in support, submitted the affidavits of Dr. Chilito and Dr. Godreau, Perez’s treating physicians. In opposition to the motion for summary judgment, United Auto submitted the affidavit and report of Dr. Peter J. Millheiser, M.D., stating that “[tjhere was no indication for an MRI in this patient” and that the “Spinal MRI testing was medically unreasonable, unnecessary, and unrelated to this accident.” In preparing the report, Dr. Millheiser did not physically examine Perez, but reviewed the MRI, several of Dr. Chilito’s examination and x-ray reports, and the independent medical examination (“IME”) reports prepared by Dr. Pedro Musa-Ris, M.D. and Dr. Michael Weinreb, D.C.

On Millennium Diagnostic’s motion, the trial court struck Dr. Millheiser’s affidavit and report, finding that, within the meaning of section 627.736(7)(a), the report was not a “valid report” because it was not obtained within thirty days of United Auto’s receipt of Millennium Diagnostic’s claim. The trial court granted Millennium Diagnostic’s motion for summary judgment, and thereafter entered final judgment in favor of Millennium Diagnostic. The trial court denied United Auto’s motion for reconsideration, but certified the following two questions as being of great public importance:

(1) AFTER THE 2001 AMENDMENT TO SECTION 627.736(4)(b), FLORIDA STATUTES, MAY TREATMENT BE DENIED BY AN INSURER, PURSUANT TO SECTION 627.736(7)(a), ON THE GROUND THAT THE TREATMENT WAS NOT REASONABLE, RELATED OR MEDICALLY NECESSARY BASED ON A MEDICAL REPORT THAT WAS OBTAINED BY THE INSURER MORE THAN THIRTY (30) DAYS AFTER RECEIVING NOTICE OF A CLAIM BASED ON THAT TREATMENT?
(2) IS AN INSURER REQUIRED BY SECTION 627.736(7)(a), FLORIDA STATUTES, TO OBTAIN A MEDICAL REPORT FROM A PHYSICIAN WHO HAS PERSONALLY EXAMINED THE INSURED BEFORE IT MAY WITHDRAW OR DENY PERSONAL INJURY PROTECTION BENEFITS?

II. ANALYSIS

A. First Certified Question

The first certified question addresses whether, following the 2001 amendment to section 627.736(4)(b), a “report,” obtained by the insurer pursuant to section 627.736(7)(a) to deny benefits on the ground that the treatment was not reasonable, related, or necessary, is a “valid report” if it was not obtained by the insurer within thirty days of receipt of the claim.

In United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82 (Fla.2001), which interprets the 1997 version of section 627.736, the Florida Supreme Court addressed whether an insurer that fails to pay a PIP claim within the thirty-day time period set forth in section 627.736(4)(b), is “forever barred from contesting the claim.” Id. at 85. The Court held that the insurer is not forever barred, but is subject to statutory penalties, such as interest on overdue payments and attorney’s fees. Id. at 87. The Florida Supreme Court summarized the “criteria governing payment of [PIP] benefits and penalties” as follows:

(1) an insured may seek the payment of benefits for a covered loss by submitting “reasonable proof,” of such loss to the insurer; (2) if the benefits are not paid within thirty days and the insurer does not have reasonable proof that it is not responsible for the payment, the payment is “overdue”; (3) all “overdue” payments shall bear simple interest ...; and (4) whenever an insured files an action for payment of PIP benefits and prevails, the insured is entitled to attorneys’ fees.

Id. at 86 (footnotes omitted). Moreover, the Court clarified that the “reasonable proof’ referred to in subsection (4)(b) does not “mean only a medical report.” Id. at 87.

Section 627.736(4)(b), Florida Statutes (2003), which is at issue in the present case, provides in relevant part as follows, with the underscored text indicating language that was added in the 2001:

Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.... However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.... This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.

(Emphasis added). See Ch. 2001-271, § 6, at 2930, Laws of Fla.

Section 627.736(4)(b) imposes on the insurer a thirty-day time period to pay PIP benefits that are “due” under section 627.736, and if these PIP benefits are not paid within the thirty-day time period, the benefits are deemed “overdue.” If a PIP payment is “overdue,” the “overdue payment ] shall bear simple interest.” § 627.736(4)(c), Fla. Stat. (2003). Further, if an insured (or an assignee of the insured’s rights under the PIP policy) files an action against the insurer for payment of PIP benefits, and the insured/assignee prevails, the insurer must pay the insured/assignee’s attorney’s fees. § 627.736(8), Fla. Stat. (2003). Thus, there are statutory penalties for not paying “due” PIP benefits within the thirty-day time period.

The language in section 627.736(4)(b) pertains to PIP benefits that are “due” under the policy. If a medical bill is submitted for treatment that is not reasonable, related, or necessary, there can possibly be no benefits “due” under the policy, and therefore, that claim cannot be deemed “overdue.” Section 627.736(4)(b) provides that the insurer can assert, “at any time, including ... after the 30-day time period for payment,” that “the claim was unrelated, was not medically necessary, or was unreasonable.” As articulated by this Court in United Automobile Insurance Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008):

Section 627.736(4), [Florida Statutes (2006),] ... deals with timing as to when PIP benefits that are properly due must be paid by an insurer before they are considered overdue.... [S]ection 627.736(4) expressly provides that “[t]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable.” Instead, we find that a withdrawal of PIP benefits on the basis that the medical treatment received was unrelated, unnecessary, or unreasonable is properly dealt with in accordance with section 627.736(7)(a).

Id. at 1216-17. Moreover, the Bermudez court relied on AIU Insurance Co. v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000), which held “that the thirty-day period in section 627.736(4) applies only to benefits which are reasonable and necessary as a result of the accident.” Bermudez, 980 So.2d at 1217 n. 4 (quoting AIU Ins., 760 So.2d at 1112).

Based on the unambiguous language of section 627.736(4)(b) and applicable case law, we answer the certified question, as phrased by the trial court, in the affirmative, and conclude that the thirty-day time period set forth in section 627.736(4)(b) does not apply to claims for unrelated, unreasonable, or unnecessary treatment. Therefore, an insurer may challenge such treatment at any time, and is permitted to rely on a report, obtained pursuant to section 627.736(7)(a), even if the report is obtained more than thirty days after the claim was submitted. The insurer, however, must keep in mind that if its challenge fails, it will be liable for interest and attorney’s fees.

B. Second Certified Question

The second certified question addresses whether the report, obtained by the insurer pursuant to section 627.736(7)(a) to deny PIP benefits on the ground that the treatment was not reasonable, related, or necessary, was a “valid report,” as the reviewing physician’s report was not based on his personal physical examination of the insured, but instead was based on the review of the insured’s medical records, including IME reports. This issue has been directly addressed by this Court in Bermudez,

In Bermudez, the trial court granted the insured’s motion for summary judgment based on its finding that the report obtained by the insurer to withdraw PIP benefits pursuant to section 627.736(7)(a) was not a “valid report” because the report was based solely on the reviewing physician’s review of the insured’s medical records, including an IME report, and was not based on the reviewing physician’s physical examination of the insured. This Court reversed the order granting final judgment in favor of the insured, finding as follows:

[A] “valid report” for the withdrawal of PIP benefits does not have to be based upon a physical examination conducted by the actual physician preparing the report. Instead, we hold that under section 627.736(7)(a) a medical report issued for the withdrawal of PIP benefits may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination.

Id. at 1215 (footnote omitted). As noted in Bermudez, the language defining a “valid report” was added in the 2001 amendment to section 627.736(7)(a), “in an effort to clarify the requirements of physician reports created for the purpose of withdrawing benefits.” Id.

Thus, based on our holding in Bermu-dez, we answer the certified question, as phrased by the trial court, in the affirmative, and conclude that the medical report issued by Dr. Millheiser constitutes a “valid report” under section 627.736(7)(a), even though the report was not based on his physical examination of Perez.

III. CONCLUSION

We answer the first certified question in the affirmative, and the second certified question in the negative. We hold that (1) an insurer, in challenging a PIP claim under section 627.736(7)(a) on the ground that the treatment was not reasonable, related, or necessary, may rely on a report obtained more than thirty days after the claim was submitted; and (2) under section 627.736(7)(a), the reviewing physician’s report issued to deny PIP benefits may be based on either a physical examination of the insured by the physician submitting the report or a physical examination of the insured by “another physician,” such as an IME physician. Based on our holding, we reverse the trial court’s order entering final summary judgment in favor of Millennium Diagnostic, and upon remand, the trial court is instructed to consider the report and affidavit submitted by Dr. Millheiser.

Reversed and remanded.

      . Section 627.736(7)(a), Florida Statutes (2003), provides in relevant part as follows, with the language added in 2001 printed in underscored type:
      (7) Mental and physical examination of injured person; reports.—
      (a) ... An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. The physician preparing the report must be in active practice, unless the physician is physically disabled. Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions or to the instruction of students in an accredited health professional school or accredited residency program or a clinical research program that is affiliated with an accredited health professional school or teaching hospital or accredited residency program. ...

        See Ch. 2001-271, § 6, at 2936, Laws of Fla.

      . The final judgment was entered before this Court issued its decision in Bermudez.

      . United Auto has requested that we determine whether "another physician" would also include the insured’s treating physicians. As this issue is not properly before this Court in this case, we decline United Auto’s request.


author: DAMOORGIAN, J.

text:
    Homero MERUELO and Merco Group of The Palm Beaches, Inc., Appellants, v. The MARK ANDREW OF the PALM BEACHES, LTD., a Florida limited partnership, Appellees.
    No. 4D07-4983.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.
    Rehearing Denied June 22, 2009.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, and Arlette Molina, Miami, for appellants.

      Elliot B. Kula, Elliot H. Scherker, and Elaine D. Walter of Greenberg Traurig, P.A., Miami; Mark F. Bideau, Lorie M. Gleim and Patrick G. Dempsey of Green-berg Traurig, P.A., West Palm Beach, for appellees.
   DAMOORGIAN, J.

Homero Meruelo and the Merco Group of the Palm Beaches (together “the Buyers”) appeal the trial court’s denial of their motion for a directed verdict. The Appel-lee, The Mark Andrew of the Palm Beaches, cross-appeals the trial court’s denial of its motion for summary judgment. We write only to address the trial court’s error in denying the Appellant’s motion for directed verdict as to Count II of the complaint. We affirm as to all other claims of error on appeal and cross-appeal.

The Mark Andrew of the Palm Beaches (“The Mark Andrew”) owned a 4.5 acre piece of real property in West Palm Beach and, in 2001, obtained a development order to build a large continuum care residential community on the property. The development order required The Mark Andrew to begin construction by June 24, 2004 for the development rights to vest. Because of problems obtaining financing, The Mark Andrew property became the subject of a bankruptcy proceeding in 2002. On February 23, 2004, two days before a scheduled bankruptcy sale, Meruelo agreed to purchase the property and entered into a contract with The Mark Andrew. The agreed-upon price was thirty million dollars, with a five million dollar bonus if the conditions of the following addendum were met:

The current site plan for the Property provides for the construction of approximately 784,000 gross square feet of space. In the event Buyer is able to obtain approval to construct a total of 600,000 square feet or more of air conditioned saleable square feet of space, Buyer will pay to Seller an additional Five Million Dollars ($5,000,000.00). The additional $5,000,000.00 payment, if earned, will be due 180 days from the later of the date upon which the final site plan approval is issued or the date upon which the time period for contesting said final site plan has expired.

In a second addendum, Meruelo assigned the contract to Merco.

The Buyers purchased The Mark Andrew property with the intent to construct a large luxury condominium thereon. The property was attractive to the Buyers because of the 2001 development order, which would allow them to construct a large building on the property. On June 23, 2004, the City of West Palm Beach wrote a letter to Andrew N. Adler, Mer-eo’s project manager, confirming that The Mark Andrew’s zoning entitlement had vested in the Buyers. Then, in September 2004, the City adopted an ordinance approving the building of a condominium named Palladio Terrace.

On July 8, 2005, The Mark Andrew filed a complaint against the Buyers for nonpayment of the five million dollar bonus under the addendum. In Count II of the complaint, The Mark Andrew alleged that the Buyers had breached the implied duty of good faith and fair dealing by failing to seek approval of a site plan in excess of 600,000 square feet of air-conditioned sale-able space.

At trial, the parties presented divergent testimony about the amount of square footage the Buyers had obtained approval to build. At the close of The Mark Andrew’s case, the Buyers moved for a directed verdict on Count II. The trial court deferred ruling. After the jury retired to deliberate, the Buyers attempted to renew their motion for directed verdict, but the trial court said that the motion was “too late.”

The jury returned a verdict in favor of The Mark Andrew as to Count II and awarded five million dollars in damages, in accordance with the bonus clause in the addendum. After the verdict, the Buyers again attempted to renew their motion for directed verdict as to Count II. The trial court denied their motion. The Buyers moved for a judgment in accordance with their motion for a directed verdict and for new trial. The trial court denied all post-trial motions and entered a final judgment in accordance with the jury’s verdict.

The Buyers argue that the trial court erred in denying their motion for a directed verdict because the addendum does not impose any duty on them to seek approval to build more than 600,000 square feet of air-conditioned saleable space. We agree.

A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law. Dep’t of Children & Family Sens. v. Amara, 944 So.2d 431, 435 (Fla. 4th DCA 2006). The standard for reviewing a trial court’s ruling on a motion for directed verdict is de novo. Id. “When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498, 502 (Fla. 4th DCA 1999). Conversely, an appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party. Amerifirst Fed. Sav. and Loan Ass’n v. Dutch Realty, Inc., 475 So.2d 970, 971 (Fla. 4th DCA 1985).

The specific clause of the addendum at issue states that “[i]n the event Buyer is able to obtain approval to construct a total of 600,000 square feet or more of air conditioned saleable square feet of space, Buyer will pay to Seller an additional Five Million Dollars.” The Mark Andrew contends that this clause imposes a duty on the Buyers to seek approval to build more than 600,000 square feet of air-conditioned saleable space, and that they breached the implied covenant of good faith by failing to seek the required approval.

The implied covenant of good faith and fair dealing applies to every contract. Ins. Concepts & Design, Inc. v. Healthplan Servs., 785 So.2d 1232, 1234 (Fla. 4th DCA 2001). The covenant of good faith “must relate to the performance of an express term of the contract and is not an abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements.” Hosp. Corp. of Am. v. Fla. Med. Ctr., Inc., 710 So.2d 573, 575 (Fla. 4th DCA 1998); see also S. Internet Sys., Inc. ex rel. Menotte v. Pritula, 856 So.2d 1125, 1127 (Fla. 4th DCA 2003) (noting that allowing a claim of breach of the implied duty of good faith where no enforceable executory contract remains would add an obligation to the contract that the parties did not negotiate); Ins. Concepts and Design, Inc., 785 So.2d at 1235; Avatar Dev. Corp. v. De Pani Constr. Inc., 834 So.2d 873, 876 (Fla. 4th DCA 2002). The implied duty of good faith cannot be used to vary the fully specified, unambiguous terms of a contract because the court is not at liberty to change the parties’ bargain as to those terms. Id.

The purpose of the implied duty of good faith is to protect the parties’ reasonable commercial expectations. Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787, 791 (Fla. 2d DCA 2005). It is usually raised “when a question is not resolved by the terms of the contract or when one party has the power to make a discretionary decision without defined standards.” Publix Super Mkts., Inc. v. Wilder Corp. of Del., 876 So.2d 652, 654 (Fla. 2d DCA 2004); see also Sepe v. City of Safety Harbor, 761 So.2d 1182, 1184-85 (Fla. 2d DCA 2000); Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097 (Fla. 1st DCA 1999). This “discretion” concept applies only where there is an express contractual duty or obligation over which one party has sole discretion. See, e.g., Sepe, 761 So.2d at 1183 (the contract stated that the city “shall vigorously pursue ... recovery of underpayments” but gave the city “sole discretion” to determine whether pursuit was a justifiable expense); Cox, 732 So.2d at 1094 (the contract stated that “CSXI shall maintain commodities available from time to time for transport by CONTRACTOR” but gave CSXI discretion to determine the amount of freight and number of loads for transport).

The addendum to the contract for the sale of The Mark Andrew Property did not impose any duty on the Buyers to seek approval for a building of a certain size. It was purely a bonus provision whereby The Mark Andrew would receive an additional five million dollars if the Buyers chose to seek approval and were able to obtain approval to build more than 600,000 square feet of air-conditioned saleable space. In short, the contract left the decision of whether to seek approval completely in the discretion of the Buyers.

Because the addendum did not expressly impose on the Buyers a duty to seek approval for a 600,000 square foot building, there can be no implied duty to act in good faith in seeking such approval. See Hosp. Corp. of Am., 710 So.2d at 574; Publix Super Mkts., 876 So.2d at 654. In other words, there is no express duty to which the implied duty of good faith can relate. If we were to impose a duty to seek approval, we would be stacking implication upon implication — first implying a duty to seek approval and then implying a duty to act in good faith in seeking that approval. The second implication is sanctioned by the law in this state; the first is not.

We disagree with The Mark Andrew’s contention that this issue was not preserved for review because the Buyers failed to renew the motion for directed verdict at the close of all the evidence. When a motion for a directed verdict is made at the close of the plaintiffs case and denied, it must be renewed at the close of all the evidence to preserve it for appellate review. Keyes Co. v. Shea, 372 So.2d 493, 494 (Fla. 4th DCA 1979). If the trial court reserves ruling on the motion, the defendant must renew the motion at the close of all the evidence. 6551 Collins Ave. Corp. v. Mitten, 104 So.2d 337 (Fla.1958). The only exception is where “the insufficiency of the evidence constitutes plain error apparent on the face of the record which if not noticed will result in a manifest miscarriage of justice.” City of Pompano Beach v. Edwards, 129 So.2d 144, 147 (Fla. 2d DCA 1961); see also Country Manors Ass’n v. Master Antenna Sys., Inc., 534 So.2d 1187, 1191 (Fla. 4th DCA 1988), Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412, 418 (Fla. 4th DCA 1980), Pickard v. Mar. Holdings Corp., 161 So.2d 239 (Fla. 3d DCA 1964). This case falls within the exception because the plain language of the addendum shows that the Buyers had no duty to seek approval to build more than 600,000 square feet of air-conditioned saleable space. A manifest miscarriage of justice would result if they were held to have breached a duty that does not exist.

Accordingly, we reverse the trial court’s denial of the Buyers motion for directed verdict on Count II and remand for entry of a directed verdict in accordance with this opinion. We affirm on all other claims of error in the appeal and cross-appeal.

Affirmed in part, Reversed in part and Remanded.

WARNER and STEVENSON, JJ., concur.


author: VILLANTI, Judge.

text:
    Marquise T. HAMMOND, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4311.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.
   VILLANTI, Judge.

Marquise Hammond appeals the denial of his motion to return property filed pursuant to section 705.105(1), Florida Statutes (2005). We affirm because the motion appears to be untimely based on the contents of the motion as filed in the postcon-viction court. See Harkless v. State, 975 So.2d 437, 440 & n. 3 (Fla. 2d DCA 2007).

However, for the first time in this appeal, Hammond asserts that the transcript of his plea and sentencing hearing held on April 14, 2005, reflects that his counsel made a timely oral motion for the return of the property that was not used against him in this case. The prosecutor responded to this motion by asserting that the property was being held as evidence for possible future criminal prosecutions; however, it does not appear from our record that any such further prosecutions materialized. This sequence of events raises two questions: (1) whether a motion to return property must be in writing and (2) what effect, if any, the State’s response to a motion to return property asserting that the property may be evidence for a separate criminal prosecution that may be brought in the future has on the timing and timeliness of a subsequently filed motion to return that property. •

Because Hammond did not argue below that he was entitled to the return of his property based on his counsel’s alleged oral motion, this basis for relief is not preserved for our review in this appeal. See, e.g., Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (holding that in order to preserve an issue for appellate review, the issue “must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved”); see also Conner v. State, 987 So.2d 130, 132 (Fla. 2d DCA 2008); I.R.C. v. State, 968 So.2d 583, 589 (Fla. 2d DCA 2007). However, because Hammond has raised at least a col-orable claim to the property in this appeal, we affirm without prejudice to him raising this issue in a facially sufficient motion to return property filed within sixty days from the issuance of the mandate in this appeal. Such a motion shall not be deemed successive.

Affirmed.

WHATLEY and LaROSE, JJ„ Concur.