author: PER CURIAM. PARIENTE, J.,

text:
    STATE of Florida, Petitioner, v. S.A., a Child, Respondent.
    No. SC12-2229.
    Supreme Court of Florida.
    Feb. 13, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL; Celia Terenzio, Chief Assistant Attorney General, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Anthony B. Britt of The Britt Law Firm, P.L., Miami, FL, for Respondent.
   PER CURIAM.

We review the Fourth District Court of Appeal’s decision in State v. S.A., 96 So.3d 1133 (Fla. 4th DCA 2012), which the Fourth District certified is in direct conflict with the Fifth District Court of Appeal’s decision in State v. McFarland, 747 So.2d 481 (Fla. 5th DCA 2000), rev. denied, 767 So.2d 458 (Fla.2000), regarding how the speedy trial rule’s recapture window should be calculated. Based on the plain language of the speedy trial rule, we approve the Fifth District’s decision in McFarland calculating the recapture window as two separate 5- and 10-day time periods and quash the Fourth District’s decision in S.A. calculating the window as a single 15-day period.

I. BACKGROUND

On Tuesday, September 27, 2011, S.A. filed a notice of expiration of speedy trial and a motion seeking a discharge under the speedy trial rule. S.A.’s motion triggered the speedy trial rule’s recapture window, which provides:

No later than 5 days from the date of the filing of a motion for discharge, the court shall hold a hearing on the motion and, unless the court finds that one of the reasons set forth in subdivision (d) exists, shall order that the respondent be brought to trial within 10 days. If the respondent is not brought to trial within the 10-day period through no fault of the respondent, the respondent shall be forever discharged from the crime.

Fla. R. Juv. P. 8.090(m)(3) (emphases added).

One week later, on Tuesday, October 4, the trial court held a hearing on S.A.’s motion and set trial for 10 days later (Friday, October 14). On the day of trial, which was 17 days after S.A. filed his motion, S.A. argued that he was entitled to a discharge because the State failed to bring him to trial within the 15-day recapture window. The State argued that the recapture window is not a single 15-day period but, instead, consists of two separate 5- and 10-day periods that are calculated pursuant to the computation of time rule. Accordingly, the State argued that it had brought S.A. to trial within the recapture window since the hearing was held within 5 days of the date S.A. filed his motion — excluding the intervening weekend and legal holiday (Jewish New Year) as required by the time computation rule — and since S.A. was brought to trial within 10 days of the hearing. The trial court discharged S.A.

On appeal, the Fourth District affirmed and held that the recapture window is “ ‘one fifteen day time period’ ” which requires the State “to bring a defendant to trial within fifteen days of the defendant’s filing of the notice of expiration” regardless of how the deadline for the 5-day hearing is calculated or when the hearing is held. S.A., 96 So.3d at 1135 (quoting State v. J.G., 807 So.2d 748, 749 (Fla. 4th DCA 2002)). However, the Fourth District acknowledged that the Fifth District calculates the recapture window “as two separate but interrelated [5- and 10-day] time periods” and certified conflict with McFarland. Id.

II. ANALYSIS

Based on the plain language of the speedy trial rule, we approve the Fifth District’s decision in McFarland and quash the Fourth District’s decision below. See Brown v. State, 715 So.2d 241, 243 (Fla.1998) (requiring that an “unambiguous” rule “be accorded its plain and ordinary meaning”).

The speedy trial rule plainly provides for a recapture window that is comprised of up to 5 days for the hearing followed by 10 days for the trial; it never mentions a 15-day period. See Fla. R. Juv. P. 8.090(m)(3); Fla. R.Crim. P. 3.191(p)(3); see also McFarland, 747 So.2d at 483 (holding that the State “was not required to bring [the defendant] to trial within fifteen days of the filing of his motion” for discharge but was, instead, required “to bring [him] to trial within ten days of the date of the hearing on the motion”). And, under the computation of time rule, intervening weekends and legal holidays are excluded in calculating the deadline for the 5-day hearing. See Fla. R. Jud. Admin. 2.514(a)(3); see also Baxter v. Downey, 581 So.2d 596, 599 (Fla. 2d DCA 1991) (explaining that the computation of time rule is used to calculate the recapture window’s “two separate time periods”); Ricci v. Parker, 518 So.2d 284, 287 (Fla. 2d DCA 1987) (concluding that reading the speedy trial rule together with the time computation rule “effectively requires a discharge hearing in five business days”), rev. denied, 519 So.2d 988 (Fla.1988).

Accordingly, because the State complied with the recapture window’s two separate time periods in this case, it timely brought S.A. to trial 17 days after he filed his motion for discharge. See State v. Thomas, 659 So.2d 1322, 1323 (Fla. 3d DCA 1995) (“In some cases[,] the total time from the filing of the notice of expiration to the last day of the window period will be less than fifteen days. In other cases, it will be more than fifteen days because the calculation of the initial five-day period excludes intervening weekends and holidays.”) (Cope, J., specially concurring). Therefore, S.A. was not entitled to a discharge.

III. CONCLUSION

For the above reasons, we quash the Fourth District’s decision below and remand to the trial court for further proceedings. We also approve the Fifth District’s decision in McFarland and the Second District’s decisions in Baxter and Ricci because they recognize that the recapture window is comprised of two separate time periods.

It is so ordered.

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

PARIENTE, J., concurs with an opinion, in which PERRY, J., concurs.

QUINCE, J., dissents.

PARIENTE, J.,

concurring.

I concur in the majority opinion because I agree that the plain language of the speedy trial rule dictates that the recapture window be calculated as two separate 5- and 10-day time periods, since the rule itself does not mention the application of a single 15-day period. However, in light of the fact that a strict application of the separate 5- and 10-day time periods set forth in the rule can result in a trial being set more than fifteen days from the date the defendant files a motion for discharge — as in this case, where the defendant was not brought to trial until seventeen days after he filed his motion for discharge — I write separately to express my view that this Court should amend the speedy trial rule in order to give effect to the original intent of the rules committee to provide for a single 15-day recapture window.

This view — that the speedy trial rule was intended to provide the State with a 15-day recapture window — is supported by this Court’s prior opinion in State v. Salzero, 714 So.2d 445, 447 (Fla.1998), where the Court reasoned that a “strict adherence to the five and ten-day requirements would not comport with the clear intent of [the rule] as evident from the committee notes to the 1984 amendment of the rule.”

Specifically, the committee notes to the adult speedy trial rule provide:

The intent of [the recapture window] is to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge. This time begins with the filing of the motion and continues regardless of whether the judge hears the motion.

Fla. R.Crim. P. 3.191 committee notes (1984). The notes also explain why the committee recommended fifteen days as the appropriate time period for the recapture window:

The total 15-day period was chosen carefully by the committee, the consensus being that the period was long enough that the system could, in fact, bring to trial a defendant not yet tried, but short enough that the pressure to try defendants within the prescribed time period would remain. In other words, it gives the system a chance to remedy a mistake; it does not permit the system to forget about the time constraints. It was felt that a period of 10 days was too short, giving the system insufficient time in which to bring a defendant to trial; the period of 30 days was too long, removing incentive to maintain strict docket control in order to remain within the prescribed time periods.

Id

Relying on these committee notes, this Court determined in Salzero that “a violation of the five and ten-day periods provided in [the speedy trial rule] is harmless if a defendant is actually brought to trial within fifteen days of filing his notice of expiration.” Salzero, 714 So.2d at 447. Thus, although the defendant in Salzero was brought to trial more than ten days after the trial court held its initial hearing, this Court deemed the error harmless because the defendant was brought to trial within fifteen days of the filing of the motion for discharge — a result that accorded with the clear intent of the drafters who created the rule. See id

Although the juvenile rule at issue in this case does not contain a comparable provision in its committee notes, this Court has interpreted the nearly identical language of the juvenile and adult rules consistently. See State v. Nelson, 26 So.3d 570, 575 (Fla.2010) (“[T]he rules of Juvenile Procedure provide a right to a speedy trial with procedures analogous to the adult speedy trial rule ... including] a recapture provision that mirrors its adult counterpart.”). Thus, the committee notes to the adult speedy trial rule are equally persuasive in discerning the original intent behind the juvenile speedy trial rule.

Given that the committee notes focus on a single 15-day time period that is not referenced anywhere in the rule, both courts and commentators have urged this Court to amend the speedy trial rule in order to reflect the original intent of the drafters who created the rule. For example, just three years after the speedy trial rule was amended to include the recapture window, the Second District Court of Appeal urged this Court to revisit the rule. See Ricci v. Parker, 518 So.2d 284, 286, 287 & n. 2 (Fla. 2d DCA 1987), The Second District, noting the conflict between the plain language of the rule and the drafters’ clear intent, as evidenced in the committee notes to the rule, stated that it was aware of “the possibility that the rule as presently worded affords potential for abuse, or at least for laxity,” but concluded that remedying this defect was “a matter for the attention of the rules committee and the supreme court.” Id. at 287.

Similarly, Professor John Yetter, who analyzed the conflict between the plain language of the rule and the intent of the rule as reflected in its commentary, concluded that this Court should resolve this conflict by restricting the recapture window to “15 days following the filing of a meritorious motion for discharge by the defendant.” John F. Yetter, Florida’s New Speedy Trial Rule: “The Window of Recapture”, 18 Fla. St. U.L.Rev. 9, 12, 29 (1985). In my opinion, such an amendment would effectuate the clear intent of the drafters who created the rule and would address the concerns cogently articulated by the Second District.

Accordingly, I conclude that this Court should amend the speedy trial rule and that the amended version of the rule should, in my view, provide for a 15-day time period, initiated by the filing of the defendant’s motion for discharge, during which the State could bring the defendant to trial, but would not allow the defendant to be brought to trial after the expiration of this single 15-day time period. Until the rule is amended, however, the plain language of the current rule, which nowhere mentions a 15-day period, must govern. I therefore concur in the majority, but urge this Court to consider amending the speedy trial rule to effectuate the original intent of the drafters, who carefully chose fifteen days as the appropriate time period of the recapture window.

PERRY, J., concurs.

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

      . To calculate the deadline for the 5-day hearing, the State relied on the computation of time rule which provides that where the number of days for performing an act is less than 7, "intermediate Saturdays, Sundays, and legal holidays shall be excluded” in computing the deadline. Fla. R.J. Admin. 2.514(a)(3); see also Fla. R. Juv. P. 8.180(a) ("Computation of time shall be governed by Florida Rule of Judicial Administration 2.514[.]”).

      . Our standard of review is de novo. See State v. Nelson, 26 So.3d 570, 573-74 (Fla.2010) ("[T]he interpretation of the rules of procedure with regard to the right to a speedy trial [is] a question of law subject to de novo review[.]”). Further, though the Fifth District applied the adult speedy trial rule in McFarland, the adult rule is nearly identical to the juvenile rule at issue here, and rule 2.514 is used to compute time under both rules. Compare Fla. R.Crim. P. 3.191 (p)(3), and Fla. R.Crim. P. 3.040, with Fla. R. Juv. P. 8.090(m)(3), and Fla. R. Juv. P. 8.180. Therefore, the recapture window is calculated the same under both rules. See Nelson, 26 So.3d at 575 ("[T]he Rules of Juvenile Procedure provide a right to a speedy trial with procedures analogous to the adult speedy trial rule[, including] a recapture provision that mirrors its adult counterpart.”) (citation omitted).

      . We recognize that a committee note to the adult speedy trial rule provides that the "intent” of the recapture window is "to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge.” Fla. R.Crim. P. 3.191 committee notes (1984). However, "committee notes are only persuasive authority and are not binding; it is the intent of this Court in promulgating a rule of procedure, as expressed in the rule itself, that governs its interpretation.” D.K.D. v. State, 470 So.2d 1387, 1389 (Fla.1985).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul Augustus HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. SC14-167.
    Supreme Court of Florida.
    Feb. 20, 2014.

      Sonya Rudenstine, Gainesville, FL; Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, FL; Kathleen Harris of Arnold & Porter LLP, London, EC2N 1HQ, United Kingdom; Gwendolyn Ostrosky, Arnold & Porter, LLP, Los An-geles, CA; and Mara Senn, Peggy Otum, and Michael Tye of Arnold & Porter LLP, Washington, DC, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
    Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen, P.A., Sarasota, FL, for Amicus Curiae The First Amendment Foundation.
   PER CURIAM.

Paul Augustus Howell is a prisoner under sentence of death for whom a death warrant has been signed and execution set for February 26, 2014. Howell was convicted of first-degree murder and sentenced to death when the bomb he constructed, for the specific purpose of killing a witness, instead detonated and killed a Florida Highway Patrol Trooper. Howell v. State, 707 So.2d 674, 683 (Fla.1998) (affirming Howell’s convictions and death sentence on direct appeal).

Howell now appeals the denial of his amended third successive motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.851, in which he challenges the Florida lethal injection protocol as applied to him. Specifically, Howell raises the following seven claims on appeal to this Court: (1) when the State changes to a new and untested method of execution, the State should be required to present some evidence to demonstrate that the new method does not violate the Eighth Amendment; (2) the inclusion of midazolam hydrochloride (midazolam) as the first drug in the 2013 lethal injection protocol violates the Eighth Amendment; (3) the use of a three-drug protocol, instead of a one-drug protocol, violates the Eighth Amendment; (4) forced administration of vecuronium bromide, the second drug in the protocol, violates the Eighth and Fourteenth Amendments; (5) the constant change in Florida’s lethal injection protocol violates the Eighth Amendment; (6) the postconviction court erred in denying Howell’s motions for postconviction discovery; and (7) the postconviction court erred by denying Howell’s request to strike the testimony of State witness Dr. Mark Dershwitz.

For the reasons set forth below, and after a careful review of the record, the briefs, and the claims raised, we affirm the postconviction court’s denial of relief.

FACTS AND PROCEDURAL HISTORY

The Governor previously signed a death warrant for Howell, and his execution was set for a year ago on February 26, 2018. Howell v. State, 109 So.3d 763, 765 (Fla.2013). The complete facts and procedural history of Howell’s case are set forth in this Court’s opinion from the 2013 death warrant litigation, in which this Court denied relief on all of the claims raised in Howell’s amended successive motion for postconviction relief and denied Howell’s motion for a stay of execution. Id.

Subsequent to our opinion, the Eleventh Circuit Court of Appeals issued a stay of Howell’s execution to address whether the failure of one of Howell’s attorneys to file a timely federal habeas corpus petition required relief from the judgment that dismissed the untimely petition. Howell v. Sec’y, Dep’t of Corr., 730 F.3d 1257, 1260 (11th Cir.2013), pet. for cert. filed, — U.S.L.W. - (Jan. 29, 2014) (No. 13-8530). After holding that Howell was not entitled to have his federal habeas proceeding reinstated under the rationale of Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the Eleventh Circuit lifted the stay of execution, and Howell’s execution date was reset for February 26, 2014. Howell filed a petition for writ of certiorari with the United States Supreme Court, seeking review of the Eleventh Circuit’s decision, and that petition is still pending. The claims before the Court in this case do not relate to Howell’s federal litigation, but concern only challenges to the current lethal injection protocol that Howell filed in a successive motion for postconviction relief in state circuit court.

Specifically, Howell’s amended third successive postconvietion motion raised four lethal injection claims to the court below: (1) the inclusion of midazolam as the first drug in the 2013 protocol violates the Eighth Amendment’s prohibition on cruel and unusual punishment; (2) the forced administration of vecuronium bromide as the second drug in the protocol violates Howell’s Eighth and Fourteenth Amendment rights; (3) Florida’s constant change in the lethal injection protocol amounts to human experimentation in violation of the Eighth Amendment; and (4) the use of a three-drug protocol rather than a one-drug protocol violates Howell’s Eighth Amendment rights. In addition to these claims, Howell filed numerous public records requests. The postconviction court summarily denied relief, concluding that an evidentiary hearing was not necessary because Howell’s claims had either been previously rejected by this Court or were speculative in nature. However, because Howell raised factual as-applied challenges and relied on new evidence not yet considered by this Court, which raised a concern that Howell could regain consciousness during the administration of the second and third drugs in the protocol and thus be subjected to extreme pain, this Court relinquished jurisdiction for an evidentiary hearing as to the claim pertaining to the use of midazolam as the first drug in the protocol. Howell v. State, No. SC14-167, Order at 2 (Fla. Sup.Ct. Order entered Feb. 6, 2014).

Following the evidentiary hearing, at which both Howell and the State presented expert witness testimony concerning the current lethal injection protocol, the post-conviction court denied relief. For the reasons that follow, we affirm the denial of relief as to Howell’s claim regarding the use of midazolam and also affirm the post-conviction court’s denial of the remaining claims, holding that each of these claims is without merit.

ANALYSIS

On appeal to this Court, Howell raises the following claims: (1) when the State changes to a new and untested method of execution, the State should be required to present some evidence to demonstrate that the new method does not violate the Eighth Amendment; (2) the inclusion of midazolam in the 2013 protocol violates the Eighth Amendment; (3) the use of a three-drug protocol, instead of a one-drug protocol, violates the Eighth Amendment; (4) forced administration of vecuronium bromide violates the Eighth and Fourteenth Amendments; (5) the constant change in Florida’s lethal injection protocol violates the Eighth Amendment; (6) the postconviction court erred in denying Howell’s motions for postconviction discovery; and (7) the postconviction court erred by denying Howell’s request to strike the testimony of State witness Dr. Mark Der-shwitz.

In reviewing these claims, we first summarily deny three of the claims raised based either on the reasoning provided in the postconviction court’s order or based on our clearly established precedent. Specifically, we reject Howell’s claim concerning the adoption of a one-drug protocol, as opposed to the current three-drug protocol, for the same reasons we rejected this claim in Muhammad v. State, 132 So.3d 176, 196-198 (Fla.2013), cert. denied, — U.S. -, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014). We also summarily reject the claim that an Eighth Amendment violation can be established based solely on the fact that Florida’s lethal injection protocol has been changed three times in three years. In fact, Howell does not even allege how this claim fits within the framework set forth by the United States Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), for establishing an Eighth Amendment violation. Finally, we reject Howell’s claim that the postconviction court erred in denying Howell’s motions for postconviction discovery, concluding that the postconviction court did not abuse its discretion when denying the requests. We also reject Howell’s related constitutional challenges to Florida Rule of Criminal Procedure 3.852. See Wyatt v. State, 71 So.3d 86, 110-11 (Fla.2011).

We now proceed to address the remaining claims. Our analysis begins with a review of the proper standard that applies to Howell’s allegation that Florida’s current lethal injection protocol violates the Eighth Amendment.

Proper Standard

In the first remaining claim that we address, Howell contends that this Court should not rely on the United States Supreme Court’s plurality decision in Baze, 553 U.S. 35, 128 S.Ct. 1520, as setting forth the standard for establishing an Eighth Amendment violation because Baze addressed different policy concerns from the situation currently presented. According to Howell, when the State switches to a different drug not previously used in a lethal injection protocol, this Court should reduce the burden that an inmate must demonstrate in order to prevail on an Eighth Amendment claim and instead impose an initial burden on the State to establish that it has not violated the Eighth Amendment.

Before turning to the merits of this claim, we first review our precedent on the matter. As this Court has repeatedly recognized, article I, section 17, of the Florida Constitution requires this Court to evaluate “whether lethal injection is unconstitutional ‘in conformity with decisions of the United States Supreme Court.’ ” Pardo v. State, 108 So.3d 558, 562 (Fla.) (quoting art. I, § 17, Fla. Const.), cert. denied, — U.S. -, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012). In Sims v. State, 754 So.2d 657 (Fla.2000), prior to any directly applicable precedent from the United States Supreme Court as to the standard for an Eighth Amendment claim based on a challenge to a state’s lethal injection protocol, this Court for the first time addressed the use of lethal injection as the method of execution in Florida. The Court held that the defendant had failed to show that his challenge to lethal injection would violate the Eighth Amendment when his claims were relying on pure speculation. Id. at 668.

After complications subsequently occurred during the administration of the lethal injection chemicals at the execution of inmate Angel Diaz in 2006, this Court addressed the use of lethal injection in this state in Lightbourne v. McCollum, 969 So.2d 326, 353 (Fla.2007), where we affirmed the postconviction court’s denial of relief and upheld the then-existing lethal injection protocol against numerous challenges litigated after a comprehensive evidentiary hearing. As we acknowledged, our role in addressing such a challenge is to determine “whether the method of execution through lethal injection, as currently implemented in Florida, is unconstitutional because it constitutes cruel and unusual punishment.” Id. at 334. Importantly, we stressed that our “role is not to micromanage the executive branch in fulfilling its own duties relating to executions.” Id. at 351.

Following our decision in Lightb-oume, the United States Supreme Court issued its decision in Baze, 553 U.S. 35, 128 S.Ct. 1520, in which the Court provided the requirements that a defendant must satisfy in order to succeed on an Eighth Amendment challenge to a state’s lethal injection protocol. As this Court has previously explained, “[ajlthough subjecting one to a risk of future harm can qualify as cruel and unusual punishment, the Supreme Court in Baze explained that to prevail on such a claim, condemned inmates must demonstrate that ‘the conditions presenting the risk must be sure or very likely to cause, serious illness and needless suffering, and give rise to sufficiently imminent dangers.’ ” Pardo, 108 So.3d at 562 (quoting Baze, 553 U.S. at 49-50, 128 S.Ct. 1520 (plurality opinion)). “That is, ‘there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.’ ” Id. (quoting Baze, 553 U.S. at 50, 128 S.Ct. 1520). “An inmate faces a ‘heavy burden’ to show that lethal injection procedures violate the Eighth Amendment.” Id. at 562-63 (quoting Baze, 553 U.S. at 53, 128 S.Ct. 1520).

In the lethal injection context, “the condemned inmate’s lack of consciousness is the focus of the constitutional inquiry.” Valle v. State, 70 So.3d 530, 539-40 (Fla.2011). As we explained in Lightboume, “[i]f the inmate is not fully unconscious when either pancuronium bromide or potassium chloride [the second and third drugs in the protocol at that time] is injected, or when either of the chemicals begins to take effect, the prisoner will suffer pain.” 969 So.2d at 351; see also Baze, 553 U.S. at 53, 128 S.Ct. 1520 (“[Fjailing a proper dose of sodium thio-pental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.”).

Since Lightbourne, in which this Court approved the August 2007 protocol, Florida has changed the lethal injection protocol three times, substituting both the first drug and the second drug. In Valle, 70 So.3d at 538, after the June 2011 lethal injection protocol changed the first drug from sodium thiopental to pentobarbital, we upheld the change to pentobarbital, holding that the defendant had failed to satisfy the “heavy burden” to demonstrate that Florida’s lethal injection protocol violated the Eighth Amendment. In Pardo, 108 So.3d at 565, after the September 2012 lethal injection protocol replaced pancuro-nium bromide with vecuronium bromide as the second drug, this Court again held that the defendant failed to meet the high burden of proof.

Most recently, in Muhammad, 132 So.3d at 203, the defendant challenged the latest 2013 lethal injection protocol, which changed the first drug from pentobarbital to midazolam, a drug that is described as “an FDA-approved drug routinely used as a pre-anesthetic sedative and as an anesthetic in minor surgical procedures.” In that case, the defense expert “Dr. Heath agreed that the dosage of midazolam hydrochloride called for in the protocol, if properly administered together with adherence to the procedures for determining consciousness, will result in an individual who is deeply unconscious and who would feel no pain when the remaining drugs are administered.” Id. at 192. We rejected the defendant’s “invitation to presume that the DOC will not act in accordance with its lethal injection procedures adopted by the DOC.” Id. Based on the evidence submitted at the evidentiary hearing in that case, we agreed with the trial court that the defendant had not demonstrated that the use of midazolam is “ ‘sure or very likely’ to cause serious illness or needless suffering and give rise to ‘sufficiently imminent dangers’ under the standard set forth in Baze.” Id. at 195. Subsequently, in Chavez v. State, 132 So.3d 826, 829 2014 WL 346026, at *4 (Fla.2014), this Court denied the defendant’s request for an evidentiary hearing because the claims were speculative and Chavez “failed to proffer any witnesses or evidence that he would present during an evidentiary hearing.”

Howell contends that, despite this Court’s established precedent as to the proper standard to apply to an Eighth Amendment challenge to the lethal injection protocol, this Court should recede from this precedent and instead impose a burden-shifting standard where the State — rather than the defendant — must make a preliminary showing that it is not violating the Eighth Amendment when it changes its lethal injection protocol and adopts a new chemical not previously used. As this Court has repeatedly recognized, however, the Florida Constitution requires this Court to evaluate “whether lethal injection is unconstitutional ‘in conformity with decisions of the United States Supreme Court.’” Pardo, 108 So.3d at 562 (quoting art. I, § 17, Fla. Const.). As our precedent as detailed above makes clear, we apply — and have consistently applied to a claim like this one that is based on a change in the lethal injection protocol — the standard set forth by the United States Supreme Court in Baze. See Valle, 70 So.3d at 539; Pardo, 108 So.3d at 562. Accordingly, we reject Howell’s suggestion that we should recede from our precedent, because such a suggestion is contrary to the Florida Constitution.

Use of Midazolam

Next, Howell contends that the use of midazolam as the first drug in the 2013 lethal injection protocol violates the Eighth Amendment, both based on an as-applied challenge and in general. Howell’s first series of challenges to midazolam, as presented in his amended third successive motion for postconviction relief, were to the overall use of midazolam in general, in which Howell alleged: (1) that the slower acting midazolam would not sufficiently render an inmate unconscious before the administration of the last two drugs; (2) that in the past three out of four executions, midazolam failed to render the inmate unconscious prior to the administration of the remaining lethal injection drugs; and (3) the consciousness check portion of the protocol is insufficient or occurs too close in time after the administration of midazolam. In his as-applied challenge, supported by a detailed expert affidavit and report, Howell contended that he has a mental condition that creates an increased risk that he will suffer a paradoxical reaction to midazolam, meaning that midazolam will have the opposite effect on him that it has on others and thus will not properly anesthetize him. Specifically, he alleged that people with a history of bipolar disorder, brain damage, PTSD, and extreme anxiety — like he has— have an increased risk of suffering paradoxical reactions.

The postconviction court initially summarily denied Howell’s claim pertaining to the use of midazolam, but this Court relinquished jurisdiction for an evidentiary hearing regarding whether the inclusion of midazolam in the 2013 protocol violates the Eighth Amendment as it applies to Howell. We specifically stated as follows:

[W]e conclude based on Dr. David Lu-barsky’s expert report and affidavit, as well as the allegations in Howell’s amended 3.851 motion, that Howell has raised a factual dispute, not conclusively refuted, as to whether the use of mi-dazolam, in conjunction with his medical history and mental conditions, will subject him to a “substantial risk of serious harm.” Baze v. Rees, 553 U.S. 35, 50 [128 S.Ct. 1520, 170 L.Ed.2d 420] (2008) (plurality opinion).
Accordingly, we hereby temporarily relinquish jurisdiction to the Circuit Court of the Second Judicial Circuit,' Jefferson County to hold an evidentiary hearing on Claim II of Howell’s amended third successive motion for postcon-viction relief regarding the use of mi-dazolam as an anesthetic in the amount prescribed by Florida’s protocol and the problems raised as to the consciousness check. This includes factual allegations raised by Dr. Lubarsky in his expert report and affidavit concerning this discrete issue alone. We further direct the DOC to produce correspondence and documents it has received from the manufacturer of midazolam concerning the drug’s use in executions, including those addressing any safety and efficacy issues.

On relinquishment, the postconviction court held a two-day evidentiary hearing, and after carefully considering the testimony presented, ultimately denied Howell’s claim. As it pertained to Dr. Lubar-sky, the defense’s eminent anesthesiology expert, the postconviction court summarized his testimony as follows:

Regarding midazolam, Dr. Lubarsky testified that it is a sedative that will induce unconsciousness within 1-2 minutes. However, it has no analgesic or pain relieving properties. According to Dr. Lubarsky, it would not be used in a clinical setting as a sole anesthetic agent. Rather, he stated it is used in a clinical setting to calm pre-operative anxiety and to induce amnesia of the event. Dr. Lubarsky testified that in the low doses used in a clinical setting midazolam would not keep a person unconscious in the face of noxious stimuli.
Addressing the efficacy of midazolam in the lethal injection protocol, Dr. Lu-barsky testified that “there is no evidence to suggest that it is useful as a sole agent to maintain a state of general anesthesia while the rest of the protocol is continued.” When asked whether the high dose used in the protocol might make a person insensate to noxious stimuli even though the clinical dose would not, he answered “my theory is that it is not.”- He went on to add that any conclusion regarding this was “conjecture” because nobody has tested such high doses of midazolam in humans. He based his conclusion on “extrapolation” from animal testing data, saying his conclusions were the most reasonable based on the animal data. Dr. Lubarsky testified that there is a ceiling effect associated with midazolam, where after a certain point additional amounts of the drug may not provide additional effect and [it’s] “potentially possible” that someone may wake up. He also testified that midazolam, even in high doses, is “not likely” to cause death. However, he did acknowledge that others have come to differing conclusions on this point.
Dr. Lubarsky also offered his opinion testimony oh whether [recently executed inmates] Mr. Happ and Mr. Muhammad became conscious upon administration of the second and third drugs. He indicated that the movement [reported during these executions] was likely a sign of consciousness. When asked whether any movement by Mr. Happ could have been involuntary he answered “I don’t know of any reason why that would occur.” However, he acknowledged that administration of potassium chloride [the third drug in the protocol] can cause involuntary muscle movement. Dr. Lubarsky suggested that these involuntary muscle movements are part of the reason for the vecuronium bromide paralytic agent [the second drug in the protocol]. He then suggested, with no apparent basis, that movement after administration of the paralytic would only be expressive of consciousness as opposed to these involuntary muscle contractions.

In contrast, the postconviction court considered and evaluated the testimony offered by the State’s medical doctor, Dr. Mark Dershwitz, who came to different conclusions regarding the use of midazo-lam:

Regarding the lethal injection protocol, Dr. Dershwitz testified that the 500 mg dose of midazolam would render the inmate unconscious and insensate. Unlike some classes of drugs, midazolam does not put the brain completely asleep but does [affect] the center of consciousness in the brain such that the person is “unresponsive or oblivious to all external stimuli.” On cross examination Dr. Der-shwitz further explained that midazolam, even at high doses, will not cause burst suppression to manifest on an EEG. Nonetheless, burst suppression is not necessary for the person to be insensate to all noxious stimuli when unconscious under high doses of midazolam. Burst suppression is necessary in other classes of drugs, but not midazolam.
Dr. Dershwitz is familiar with paradoxical reactions that occur in benzo-diazepines. They typically happen in low doses when the drug is given to calm anxiety, but the opposite result occurs. A patient experiencing a paradoxical reaction would not appear to be unconscious when given a graded noxious stimuli test. If the person did not respond to the graded noxious stimuli, they would in fact be insensate. On cross examination he clarified that “if the midazolam produces unconsciousness and unresponsiveness to external stimuli, there can be no subsequent paradoxical reaction.”
Regarding movement while unconscious, Dr. Dershwitz explained that movement is not necessarily purposeful when under general anesthesia. He testified that such movement happens not infrequently in the clinical setting. He added that “movement and consciousness do not necessarily have anything to do with each other under the general anesthetic state.”

After weighing all of the testimony, including from Dr. Roswell Lee Evans, a pharmacologic expert presented by the State, and Timothy Cannon, who is the DOC employee that performs the consciousness check, the postconviction court made the following findings of fact:

The expert evidence presented by Defendant and the State conflict. Having weighed the evidence presented, the Court finds that midazolam is used in clinical settings as a sedative in combination with another drug which has analgesic properties. The drugs acting together put the patient into a plane of anesthesia where he or she is unconscious and insensate. Midazolam is rarely used alone for anesthesia [in] clinical settings, though Dr. Dershwitz has used it alone in a clinical setting when more preferred drugs were unavailable.
However, an execution is not a typical clinical setting. The Court finds that the 500 mg dose of midazolam is sufficient to render the condemned defendant both unconscious and insensate pri- or to administration of the second and third drug. Dr. Lubarsky’s testimony that a 500 mg dose would be no different than a 20 mg dose is not credible. Additionally, burst suppression on the EEG is not necessary for the inmate to be sufficiently anesthetized so as to not feel the pain associated with administration of the second and third drugs. Thus, if the inmate’s consciousness is properly verified, he will not become sensate or conscious even in the presence of the noxious stimuli of the vecuronium bromide and potassium chloride.
Paradoxical reactions to midazolam may occur in the general population and with benzodiazepines generally may occur more frequently in those with mental health diagnoses and traumatic brain injuries. However, such reactions typically manifest as overt consciousness. If a paradoxical reaction occurs it will rarely manifest as consciousness that appears to be unconsciousness.
Florida’s three-part graded consciousness cheek will identify those condemned inmates who are not unconscious. The Court credits the testimony of Dr. Evans that the midazolam will begin to work immediately. Midazolam reaches [its] maximum efficacy approximately 10 minutes after administration, but will render the condemned defendant unconscious and insensate much sooner. Thus, if the inmate does not react to the noxious stimuli of the consciousness check, he will almost certainly not perceive or feel pain from the noxious stimuli of the second and third drugs. Additionally, if the condemned is sufficiently unconscious to be insensate to the noxious stimuli of the consciousness test, he will not have a subsequent paradoxical reaction which would render him sensate to the noxious stimuli of the second and third drugs.
The reported movements of Mr. Happ and eye lid opening of Mr. Muhammad do not alter these findings. Defendant has not shown that these movements were voluntary and in response to the noxious stimuli of the second and third drugs. Dr. Lubarsky’s theory to the contrary is too speculative to draw such a conclusion. This is particularly true in the face of other very reasonable testimony that breathing difficulty, imperceptible to the condemned, could still cause involuntary movement. Additionally, Dr. Dershwitz testified and this Court finds credible that it is not uncommon to see some movement from patients even in a surgical plane of anesthesia.

The postconviction court then denied relief, concluding that Howell failed to meet his heavy burden to show that midazolam will not render him unconscious and insensate when the second and third drugs are administered.

Howell raises two main arguments to challenge the postconviction court’s denial of this claim — both of which attack the weight that the postconviction court gave to the State’s experts. First, Howell contends that the postconviction court erred in relying on the State’s experts’ testimony that a 500 mg dose of midazolam places the recipient in a coma because the State’s experts also acknowledged that a person in a coma should not move like recently executed inmates Happ and Muhammad did after the administration of midazolam. Second, Howell argues that the postconviction court erred in relying on Dr. Der-shwitz’s statement that burst suppression on the EEG is not necessary to ensure that an inmate will not feel pain during lethal injection because Dr. Dershwitz previously wrote an article that stated a humane execution required a deep level of unconsciousness equal to burst suppression.

As this Court has recognized repeatedly, in order to prevail on an Eighth Amendment challenge, a claimant must show that “the conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Pardo, 108 So.3d at 562 (quoting Baze, 553 U.S. at 49-50, 128 S.Ct. 1520). In other words, “there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” Id. (quoting Baze, 553 U.S. at 50, 128 S.Ct. 1520). This heavy burden is borne by the defendant — not the State.

A review of Howell’s claim shows that Howell is attempting to satisfy his heavy burden by pointing to two alleged weaknesses in the State’s experts’ testimony. However, this is flipping the burden on its head, imposing the burden on the State to show that an Eighth Amendment violation has not occurred. This is not the standard.

In terms of establishing an Eighth Amendment violation, Howell rests on Dr. Lubarsky’s testimony. A careful review of Dr. Lubarsky’s testimony, however, demonstrates that Howell has failed to meet his burden. While Dr. Lubarsky discussed his vast medical knowledge as to using midazolam for surgeries, he testified regarding situations where patients are given 50 mg of midazolam, instead of the 500 mg dose as provided in Florida’s lethal injection protocol. When asked questions as to the effects of 500 mg on a person, Dr. Lubarsky had to speculate as to the results. Further, Dr. Lubarsky recognized that he did not have any experience using midazolam as the sole drug in a major surgery. In contrast to this testimony, the State called Dr. Dershwitz, who has used midazolam as “the first and primary drug to induce anesthesia” in neurosurgeries during a drug shortage. While Dr. Der-shwitz had experience with only a 50 mg dose, he was able to testify based on his direct experience, where a 50 mg dose prevented his patients from perceiving the noxious stimuli associated with neurosurgery, that it was clear a 500 mg dose would prevent the recipient from being “able to perceive any noxious stimuli whatsoever.” The postconviction court credited his testimony in its order.

In addition, the State presented evidence that DOC added an additional test to ensure unconsciousness, where the person undertaking the consciousness check added a painful pinch test of the trapezius muscle. In fact, Dr. Lubarsky recognized that before current technology provided other means of testing for unconsciousness, he would similarly use a clamp to pinch a patient’s skin to determine whether the patient was able to feel pain. Dr. Dershwitz likewise testified that he would use a painful pinch as the noxious stimuli to ensure that a person was unconscious prior to surgery. Accordingly, because the consciousness check as testified to by the DOC employee and found by the post-conviction court will ensure that Howell is unable to perceive any noxious stimuli, Howell has not shown that midazolam fails to sufficiently render an inmate unconscious and insensate before the administration of the last two drugs or that the consciousness check portion of the protocol is insufficient.

Moreover, as to Howell’s as-applied challenge concerning the possibility of paradoxical reactions, he failed to establish that even if he reacted to midazolam in an unexpected manner, he would undergo needless suffering. As Dr. Dershwitz testified,, if a patient was experiencing a paradoxical reaction, the patient would be unable to pass a noxious stimuli test. In contrast, if the patient passed a graded noxious stimuli test in a state of unconsciousness by not responding to the test, the patient would be insensate. Howell failed to present any evidence at all to show that if he did experience a paradoxical reaction to midazolam, he would still pass the graded noxious stimuli test that DOC employees undertake to ensure unconsciousness.

Accordingly, after a complete review of the record, we affirm the postconviction court’s well-reasoned order and deny the claim that use of midazolam violates the Eighth Amendment.

Forced Administration of Vecuronium Bromide

In the next claim that we address, Howell contends that the forced administration of vecuronium bromide violates his Eighth Amendment rights and his Fourteenth Amendment rights. This Court already rejected the Eighth Amendment challenge to the use of vecuronium bromide. See Pardo, 108 So.3d at 564-65. However, Howell raises a new allegation, contending that the forced administration of vecuronium bromide violates his Fourteenth Amendment rights, citing Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). In Sell, the United States Supreme Court addressed the issue of when the government can involuntarily medicate a person for the sole purpose of rendering that person competent to stand trial. Id. at 169, 123 S.Ct. 2174. In order to meet this standard, the government must satisfy a four-prong test, which Howell contends that the State cannot meet in this case.

However, a review of the four factors in Sell shows that this holding applies only to the situation presented in that case — involuntarily medicating a person for purposes of trial. Specifically, the Sell test requires a showing that “(1) important government interests must be at stake, (2) involuntary medication must significantly further the state interests in assuring a fair and timely trial, (3) involuntary medication must be necessary to further the state interests, and (4) administration of the medication must be ‘medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.’ ” United States v. Diaz, 630 F.3d 1314, 1319 (11th Cir.2011) (quoting Sell, 539 U.S. at 180-81, 123 S.Ct. 2174). None of the chemicals used in lethal injection would ever be in a patient’s best medical interest. While Howell attempts to point to another case that applied the holding of Sell in a lethal injection context, that case did not involve a challenge to the forced administration of the drugs used to extinguish a life. See Singleton v. Norris, 319 F.3d 1018, 1024 (8th Cir.2003) (considering a due process challenge to forced administration of medication where the state’s sole purpose was to restore a defendant’s competency for execution). Accordingly, we decline to extend application of the holding of Sell to these circumstances.

Cross-Examination of Dr. Dershwitz

In the final claim we address, Howell asserts that the postconviction court erred in denying his request to strike a witness’s testimony because Dr. Dershwitz refused to answer questions, including in the following areas: (1) whether Dr. Der-shwitz made prior statements in an article where he stated that it was “advisable” to achieve a deep level of coma equal to burst suppression before injecting the second and third drugs of a lethal injection protocol; (2) whether midazolam is different from thiopental and other barbiturates; and (3) when discussing the fact that another drug used in general anesthesia had almost no EEG effects, he refused to name the medication because he did not want his testimony to be seen as giving advice on how to craft a lethal injection protocol.

As an initial observation, the portions to which Howell points all involved Dr. Der-shwitz’s statements that he would be unable to answer the questions because that would violate his ethical obligations. Specifically, Dr. Dershwitz informed the court and the parties that he was unable to discuss protocols used by other states or used by this state in the past and that he was unable to compare medications or provide testimony that would assist in better crafting a lethal injection protocol. When defense counsel objected to this limitation, the postconviction court pointed out that Howell’s expert likewise was unable to answer the same types of questions based on the same ethical considerations and the postconviction court did not force Dr. Lu-barsky to answer those questions. The court recognized that the reason Dr. Der-shwitz was unable to answer so many of the questions was based on the specific questions presented, because defense counsel was asking the expert to draw comparisons and essentially offer a particular recommendation as to drugs to be used in lethal injection protocols. The postconviction court suggested that defense counsel should phrase the questions differently and focus on the effects of mi-dazolam — as opposed to other protocols not at issue.

A review of the testimony from the evi-dentiary hearing demonstrates that defense counsel was able to effectively cross-examine Dr. Dershwitz. To the extent that Dr. Dershwitz made prior statements that could have been considered contrary to his testimony at the hearing, these differences were presented to the trier of fact. To the extent that defense counsel was requesting information as to what other drugs would be better and more effective in triggering a burst suppression, neither of the experts was able to provide this information. Additionally, testimony concerning other drugs was not relevant to showing the effects of midazolam and whether that drug, given in the dose set forth in the 2013 protocol, would render an inmate insensate.

Thus, the postconviction court did not err in failing to strike Dr. Dershwitz’s testimony.

CONCLUSION

In accordance with our analysis above, we affirm the postconviction court’s denial of Howell’s amended third successive rule 3.851 motion for postconviction relief. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

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

      . The postconviction court summarily denied relief as to all of the claims raised, holding: (1) Howell’s challenge to midazolam was already rejected by this Court in Muhammad v. State, 132 So.3d 176, 2013 WL 6869010 (Fla.2013), cert. denied, - U.S. -, 134 S.Ct, 894, 187 L.Ed.2d 700 (2014); (2) Howell’s Fourteenth Amendment challenge to vecuro-nium bromide was procedurally barred since it was not raised in Howell’s prior lethal injection challenge and it failed on the merits because the United States Supreme Court rejected a similar claim in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), in the Eighth Amendment context; (3) the frequency of changing the lethal injection protocol does not violate the Eighth Amendment and does not amount to human experimentation; and (4) arguing for a one-drug protocol instead of a three-drug protocol is insufficient to establish a constitutional violation. In addition, the postconviction court noted that, with respect to Howell's challenge to the procedures of the Florida Department of Corrections (DOC) in adopting a new protocol, DOC does not need to provide Howell with notice and an opportunity to be heard before it changes the lethal injection protocol. Finally, the postconviction court denied Howell’s requests for DOC to provide him additional lethal injection protocol material beyond that already provided, stating that DOC’s failure to provide documents beyond what the postconviction court approved does not violate Howell’s constitutional rights because Howell's records requests were over-broad, burdensome, and not relevant to a colorable claim.


author: SLEET, Judge.

text:
    Kenneth McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-653.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2013.
    Kenneth McDonald, pro se.
   SLEET, Judge.

We affirm the postconviction court’s order summarily denying Kenneth McDonald’s postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850 because McDonald’s motion was without merit, untimely, and successive. We caution McDonald and others that the holding in Deras v. State, 54 So.3d 1023 (Fla. 3d DCA 2011), is limited to its facts and does not, in our view, create a manifest injustice exception to the rule 3.850 time bar.

Affirmed.

NORTHCUTT and VILLANTI, JJ„ Concur.


author: MORRIS, Judge.

text:
    Beverly NEFF, Appellant, v. PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, a foreign corporation, Appellee.
    No. 2D12-4090.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2013.
    Rehearing Denied Jan. 29, 2014.

      Joseph R. Bryant of Morgan & Morgan, P.A., Tampa, for Appellant.
    Teresa D. Jones of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotee & Westheimer, P.A., Sarasota, for Appel-lee.
   MORRIS, Judge.

Beverly Neff appeals a final summary judgment entered in favor of her automobile insurer, Property & Casualty Insurance Company of Hartford (Hartford). Neff filed a complaint for declaratory relief and damages against Hartford, seeking uninsured/underinsured motorist (UM) benefits under her own policy. Hartford moved for summary judgment, claiming that Neff was not entitled to UM benefits because her damages did not exceed the amount of benefits available to her under the tortfeasor’s liability policy. The trial court agreed and entered judgment in favor of Hartford. We affirm the judgment of the trial court.

I. FACTS

Neff was injured in an automobile accident caused by a tortfeasor insured under a bodily injury liability policy with Progressive Select Insurance Company (Progressive). When Progressive made a de minimis offer to Neff, she sought UM benefits under her own policy with Hartford, which provided $25,000/$50,000 in stacked UM benefits. Hartford denied Neffs UM claim, taking the position that Neffs claim fell within the tortfeasor’s liability policy limits of $50,000 and that Hartford therefore had no UM obligation to Neff.

After Hartford denied Neffs claim, she filed her complaint against Hartford for declaratory relief and damages, claiming that Florida law permits her to pursue a direct action against her UM carrier and claiming damages for injuries caused by the tortfeasor. Hartford moved for partial summary judgment on the declaratory judgment count, asserting that Neff was attempting to turn UM coverage into primary, first-party coverage by seeking UM benefits when she has not shown that the tortfeasor’s limits were insufficient to cover her damages. Neff argued in response that she is not obligated to first sue or settle with the tortfeasor as a precondition to filing an action against her own UM carrier. In granting Hartford’s motion, the trial court stated the following:

1. The plain language of Florida’s Uninsured Motorists Statute § 627.27 makes it clear that the purpose of the uninsured motorist’s coverage is to cover the difference, if any, between the sum of the available benefits from the alleged tortfeasor and the damages sustained.
2. The requirement that the plaintiff show that the damages incurred above and beyond the limits of the tortfeasor’s coverage is not analogous to requiring the plaintiff to bring suit against the tortfeasor, which is against public policy. If there was no requirement to show that the tortfeasor’s coverage is insufficient, it would essentially convert what is meant to be third[-]party coverage into primary coverage. Allstate [Ins. Co.] v. Morales, 533 So.2d 952 (Fla. 5th DCA 1988).

Neff then voluntarily dismissed her count for damages, and the trial court entered a final summary judgment in favor of Hartford.

II. ANALYSIS

On appeal, Neff argues that the trial court’s ruling is erroneous because it “subverts Neffs statutory right to bring a direct action against her UM carrier and forego an action against the tortfeasor.” We disagree.

We first recognize that an injured insured may bring a direct action against her own UM carrier without having first resolved a claim against the tortfeasor. See, e.g., Woodall v. Travelers Indent. Co., 699 So.2d 1361, 1363 (Fla.1997); Robinson v. Auto Owners Ins. Co., 718 So.2d 1283, 1285 (Fla. 2d DCA 1998). However, in bringing a direct action against her UM carrier, the insured must demonstrate that she is entitled to UM benefits on the basis that the tortfeasor is an uninsured or un-derinsured motorist. See Allstate Ins. Co. v. Boynton, 486 So.2d 552, 557 (Fla.1986) (noting that in making a “claim against his UM carrier instead of suing the tortfea-sor,” the insured “has a policy prerequisite, namely, proof that the tortfeasor is uninsured”); Vigilant Ins. Co. v. Kelps, 372 So.2d 207, 208 (Fla. 3d DCA 1979) (“[N]o UM coverage exists if the offending motorist is not actually un- or underin-sured.” (citing Hayston v. Allstate Ins. Co., 290 So.2d 67 (Fla. 3d DCA 1974))).

Section 627.727(1), Florida Statutes (2009), describes UM coverage and provides in relevant part:

The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured ... under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section. The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance.

(Emphasis added.) Subsection (3) goes on to provide, in relevant part, that

[f]or the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
(b) Has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages ....

§ 627.727(3) (emphasis added). Neff acknowledges that the tortfeasor has $50,000 in liability coverage and that her damages are less than that amount. Because the tortfeasor’s liability limits would cover the amount of damages claimed by Neff, the tortfeasor does not qualify as an uninsured or underinsured motorist under the clear language of the statute, and the trial court properly entered judgment in favor of Hartford. This conclusion is consistent with prior decisions from this court in which we have reversed judgments entered against UM insurers because the damages did not exceed the amounts available under the tortfeasors’ liability coverages. See State Farm Mut. Auto. Ins. Co. v. Vecchio, 744 So.2d 570, 570 (Fla. 2d DCA 1999) (holding “that the trial court erred in entering a judgment for the plaintiffs [under their UM policy] when they failed to prove that their damages exceeded the tortfeasor’s policy limits”); State Farm Mut. Auto. Ins. Co. v. Moher, 734 So.2d 1088, 1088 (Fla. 2d DCA 1999) (“Because [insured’s] settlement with the second [tortfeasor] exceeded the amount of damages found by the jury, UM coverage is not applicable in this case.”); State Farm Mut. Auto. Ins. Co. v. Ferro, 581 So.2d 605, 606 (Fla. 2d DCA 1991) (holding that “once it was established that the [insureds’] damages were less than the policy limits of the tortfeasors’ primary insurance coverage, and this is uncontested, it was also established that the [insurer] had no liability to the [insureds]”).

Our conclusion is not contrary to an insured’s right to bring a direct action against her UM carrier; rather, our conclusion permits a direct action but requires the insured to show that she is entitled to UM coverage based on the fact that her damages exceed the amount available to her under the tortfeasor’s liability policy. Our holding is consistent with the purpose of the UM statute, which is to compensate an insured “for a deficiency in the tortfea-sor’s personal liability insurance coverage.” Allstate Ins. Co. v. Morales, 533 So.2d 952, 953 (Fla. 5th DCA 1988) (citing Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978)); see Moher, 734 So.2d at 1088 (“UM coverage is excess coverage and ‘pays over and above the tortfeasor’s liability coverage should said coverage be inadequate to fully compensate the injured insured.’ ” (quoting Gov’t Emps. Ins. Co. v. Brewton, 538 So.2d 1375, 1376 (Fla. 4th DCA 1989)); Meadows v. Progressive Cas. Ins. Co., 601 So.2d 1285, 1286 (Fla. 5th DCA 1992) (noting that UM “coverage is over and above and does not duplicate the benefits available to the insured”)).

Judgment affirmed.

ALTENBERND and LaROSE, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Miguel Angel ARIAS, Appellant, v. Laura Ann ARIAS, Appellee.
    No. 2D12-480.
    District Court of Appeal of Florida, Second District.
    Nov. 27, 2013.
    Rehearing Denied Feb. 6, 2014.

      Miguel Angel Arias, pro se.
    Andrew Z. Tapp of Metropolitan Family Law, PLLC, Tampa, for Appellee.
   CASANUEVA, Judge.

Miguel Angel Arias, the Former Husband, appeals an amended order finding him in contempt of court for failing to pay alimony to Laura Ann Arias, the Former Wife, and sentencing him to ten days in jail. The trial court found that the Former Husband willfully failed to comply with the alimony provision in the final judgment, because he did not make a reasonable effort to find employment. The court ordered the Former Husband to spend ten days in jail as a sanction for failing to pay alimony and set the purge amount at $5000. We affirm that part of the order finding the Former Husband in contempt without discussion. See DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005) (“A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.”). However, we reverse that part of the contempt order imposing incarceration because there was no evidence that the Former Husband had the present ability to pay the purge amount.

Florida Family Law Rule of Procedure 12.615(e) provides that

[i]f the court orders incarceration ... for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor’s present ability to comply. The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.

The trial court found that the Former Husband had the ability to purge his contempt and avoid incarceration by paying $5000 to the Former Wife’s attorney. It further found that the Former Husband had “the present ability to pay the purge amount because, as noted in this Court’s September 14, 2011 Order, he has a $40,000.00 retirement account, from which he can take an advance.” On appeal, the Former Husband argues, and the Former Wife concedes, that there was no indication in the September 14, 2011, order or at the two hearings related to the contempt order, that the Former Husband has a retirement account. Because there was no evidence that the Former Husband had the present ability to pay the purge amount, the trial court erred in ordering that he be incarcerated. See Pierce v. Pierce, 18 So.3d 1074, 1075 (Fla. 2d DCA 2009) (holding that a trial court must make an affirmative finding that a person has the present ability to pay the purge amount before ordering that he or she be incarcerated for civil contempt pursuant to rule 12.615(e)). Therefore, that portion of the order imposing incarceration upon the Former Husband is reversed.

On remand, it should be noted that the trial court has yet to consider the Former Husband’s petition to modify alimony which has been pending since December 18, 2009. At a hearing on August 23, 2010, the trial court noted that the motion was noticed for hearing that day but stated that it would not be heard: “I will, however, set and notice a case management conference to address that matter in the very near future. And also today I will enter a referral to mediation in order to comply with our Chief Judge’s administrative order requiring mediation of the post judgment proceedings.” There is no indication in the record that after this hearing on August 23, a case management conference was scheduled or the motion was referred to mediation.

Thereafter, at the contempt hearing on July 7, 2011, the Former Husband again asked the trial court to rule on his motion to modify alimony. “I just would like to go back to a hearing in which I requested, it was a hearing that Judge Weiss was to hear in reference to modifying .... ” However, the Former Wife’s attorney incorrectly led the trial court to believe that it had already ruled on the motion:

MR. ROSE: Well, you did it actually.
THE COURT: I did it?
MR. ROSE: Yes.
THE COURT: Okay. When did I do that?
MR. ROSE: That was part of our hearing on the motion for contempt, you did it all at the same time.
MR. ARIAS: I wasn’t aware that that happened. I was not aware that that happened.
THE COURT: Well, did I enter any kind of order?
MR. ROSE: Yeah. It’s part of the same order, that same order.
MR. ARIAS: But I — I mean, I—
THE COURT: Hang on.
MR. ARIAS: — I do not recall any of that—
MR. ROSE: Yeah, it is part of the—
THE COURT: Okay, I am looking at that order, let me just look at it.
MR. ARIAS: — okay.
THE COURT: It’s just about the motion for contempt, oh, wait a minute.
MR. ROSE: And motion to set aside the financial [sic] judgment based on fraud. That was his motion—
MR. ARIAS: That — no, no, I am sorry, that—
THE COURT: Don’t talk. Don’t talk. MR. ARIAS: I am sorry.
THE COURT: That is the contempt motion. Yeah, okay, yeah, that is right. We had them together.

The Former Husband tried to explain that the motion to modify alimony was a different motion than the motion to set aside the final judgment of dissolution of marriage based on fraud, but the trial court stated only, “I understand.” On remand, he should have the opportunity to have his motion heard. See Walters v. Walters, 96 So.3d 972, 978 (Fla. 4th DCA 2012) (holding that when deciding a petition to modify alimony, the trial court should consider the recipient’s needs at the time the payor’s income substantially changed).

Accordingly, we affirm in part and reverse in part the amended order granting the Former Wife’s motion for contempt, and we remand for proceedings consistent with this opinion.

SILBERMAN and MORRIS, JJ., Concur.


text:
    MacArthur WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4651.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    Rehearing Denied March 10, 2014.
    MacArthur Wright, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

MacArthur Wright, appellant, seeks review of the order denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We find no error with the court’s denial, following an evi-dentiary hearing, of ground two of Wright’s motion. We also affirm without further discussion the lower tribunal’s summary denial of ground three, sub-parts one and two, and grounds four, five, and six of Wright’s motion. However, as the State has candidly acknowledged in its answer brief, in regards to ground three, sub-parts three, four, and five, the post-conviction court cited portions of the record in support of its denial of relief on those claims, yet neglected to attach all of the record citations to its order.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND to allow the court to attach portions of the record conclusively refuting Wright’s claims or conduct an evidentiary hearing.

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

      . Grounds one and seven of Wright's motion were not at issue in this appeal.


text:
    Marlon McCARTHAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5953.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Rehearing Denied March 4, 2014.
    Marlon McGarthan, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: CRENSHAW, Judge.

text:
    GULF ATLANTIC OFFICE PROPERTIES, INC., a Florida corporation, Appellant, v. DEPARTMENT OF REVENUE and City of St. Petersburg, Florida, a municipal corporation of the State of Florida, Appellees.
    No. 2D12-6072.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.
    Rehearing Denied Feb. 20, 2014.

      Dan R. Stengle and Elliott A. Smith of Dan R. Stengle, LLC, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jeffrey M. Dikman, Senior Assistant Attorney General, and William H. Stafford, Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
    No appearance for remaining Appellee.
   CRENSHAW, Judge.

At issue in this appeal is the circuit court’s determination of Gulf Atlantic Office Properties, Inc.’s (Gulf Atlantic) entitlement to a tax refund. Because the trial court did not err in granting summary judgment on the issue of Gulf Atlantic’s lack of entitlement to the refund, we affirm.

Background

Gulf Atlantic worked on a redevelopment project in the City of St. Petersburg to construct a condominium building. The project was in an area that had, until 2005, been in an “enterprise zone” (EZ). See § 290.0055, Fla. Stat. (1999), repealed by Ch. 94-136, § 37, at 817, Laws of Fla. (“Sections 290.001-290.015 shall stand repealed on December 31, 2005.”). The enterprise zone statute allowed for building developers in such zones to be refunded the taxes paid on building materials purchased for those buildings. See § 212.08(5)(g), Fla. Stat. (1999). Gulf Atlantic filed for such a refund and the Florida Department of Revenue (Department) denied the refund as untimely because the materials were purchased after the statute’s sunset in 2005. See id. at subsec. (9). Gulf Atlantic brought this action to recoup the taxes it had paid; the Department moved for summary judgment arguing as a matter of law that Gulf Atlantic could not recover. Although the legislature reenacted the EZ statute, when the City redrew the EZ, it did not include Gulf Atlantic’s property.

Discussion

It is undisputed that Gulf Atlantic can only recoup taxes it has already paid and that it only seeks a refund. Section 212.08(5)(g) states:

(5) EXEMPTIONS; ACCOUNT OF USE.—
(g) Building materials used in the rehabilitation of real property located in an enterprise zone.—
1. ... [BJuilding materials used in
the rehabilitation of real property located in an enterprise zone shall be exempt from the tax imposed by this chapter upon an affirmative showing to the satisfaction of the department that the items have been used for the rehabilitation of real property located in an enterprise zone. Except as provided in subpara-graph 2., this exemption inures to the owner, lessee, or lessor of the rehabilitated real property located in an enterprise zone only through a refund of previously paid taxes....
9. The provisions of this paragraph shall expire and be void on December 31, 2005.

(Emphases and footnote added.) The parties do not dispute that the statute only allows for such refunds in EZs, as defined by the Florida Enterprise Zone Act, §§ 290.001-.016, Fla. Stat. (1999), which remains substantively unchanged since its reenactment in 2005. See Ch. 05-287, § 11, at 2858, Laws of Fla. (amending § 290.016 to extend sunset date). Nor do the parties contest that the property was in an EZ when the property was purchased but that it was not when the building materials were purchased or the refund application filed.

Based on longstanding principles of judicial review, we conclude that Gulf Atlantic is ineligible for the tax refund it seeks. “Statutory and constitutional construction are questions of law subject to a de novo review.” W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla.2012) (citing Zingale v. Powell, 885 So.2d 277, 280 (Fla.2004)).

It is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis. In determining that intent, we have explained that we look first to the statute’s plain meaning. Normally, [w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.

Hess v. Walton, 898 So.2d 1046, 1049 (Fla. 2d DCA 2005) (internal citations and quotation marks omitted). In this case, the language is clear: building materials are only tax-refundable when used in construction of buildings located in an EZ. Simply put, at the time the building materials were used — the language of the statute— the building was not in an EZ. See also § 290.012, Fla. Stat. (2005) (“Any enterprise zone having an effective date on or before January 1, 2005, shall continue to exist until December 31, 2005, and shall cease to exist on that date.”). Therefore, the taxes paid were not refundable and the court did not err in so concluding.

While we recognize Gulf Atlantic as making a vested rights argument, we note that it has no vested rights as to its claim against the Department in this case because Gulf Atlantic commenced the project prior to the statute’s sunset.

A vested right has been defined as an immediate, fixed right of present or future enjoyment and also as an immediate right of present enjoyment, or a present, fixed right of future enjoyment. [T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand.

R.A.M. of S. Fla., Inc. v. WCI Cmtys., Inc., 869 So.2d 1210, 1218 (Fla. 2d DCA 2004) (alteration in original) (citations and internal quotation marks omitted). Perhaps if the statute provided for a pecuniary benefit for planning a building in an EZ, a vested right to such a benefit would have accrued on these facts. But the fact of the matter is that the right only vests upon the use of building materials in an EZ. And this was not a case where Gulf Atlantic was deprived of notice of a statute impacting any rights it may have. Rather, at all times relevant to this ease, both the EZ statute and the related tax-reimbursement statute had sunset dates included. Because Gulf Atlantic was on notice that the EZ statute would sunset, any vested rights claim must fail. See id. at 1217-18.

Because Gulf Atlantic did not use building materials in an EZ within the meaning of the statute, we affirm the final summary judgment.

Affirmed.

VILLANTI and KHOUZAM, JJ., Concur.

      . Even now the statute calls for its sunset: "9. This paragraph expires on the date specified in s. 290.016 for the expiration of the Florida Enterprise Zone Act.” § 212.08(5)(g)(9), Fla. Stat. (2013).


text:
    DEPARTMENT OF REVENUE, on behalf of Michael Aurthur RAMIREZ, Appellant, v. Christina Marie VERRETTE, Appellee.
    No. 2D12-4111.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Department of Revenue (“DOR”) seeks review of a final order of support that deviated from the standard child support guidelines. DOR argues that the circuit court judge erred when it deviated from the child support guidelines based upon a written, signed, and notarized visitation agreement that was not court-authorized. We agree with DOR and reverse for the circuit court to recalculate the support obligation. See Dep’t of Revenue ex rel. Moore v. Williams, 129 So.3d 1193 (Fla. 2d DCA 2014); see also Dep’t of Revenue ex rel. Sherman v. Daly, 74 So.3d 165, 168 (Fla. 1st DCA 2011) (holding that “the Legislature has expressed its intent to authorize deviations from the child support guidelines only where there exists a written, court-authorized parenting-plan”). We note that if the circuit court approves the parties’ parenting plan on remand, it may be considered in recalculating the support obligation and may be used to support a deviation of more than five percent if appropriate.

NORTHCUTT, KHOUZAM, and SLEET, JJ., Concur.