author: BURKE, Judge.

text:
    Curtis Maurice SANDERS v. STATE of Alabama.
    CR-11-1862.
    Court of Criminal Appeals of Alabama.
    Feb. 15, 2013.
    Rehearing Denied May 3, 2013.

      Amber Lynn Ladner, Mountain Brook, for appellant.
    Luther Strange, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   BURKE, Judge.

Curtis Maurice Sanders was convicted of third-degree burglary, a violation of § 13A-7-7(a), Ala.Code 1975, and was sentenced to 46 months in prison; however the sentence was suspended, and Sanders was placed on probation for 2 years. He was also ordered to pay $100 to the Alabama Department of Forensic Sciences.

Prior to trial, Sanders filed a motion to dismiss the indictment, alleging that the structure that was the subject of the burglary charge did not constitute a building for purposes of the burglary statute. That motion was denied and Sanders proceeded to trial. After the evidence was presented, he argued that the State had failed to prove that the house was a “building” for purposes of the third-degree-burglary statute.

Roderick Turner testified that he owned a house located on 8th Avenue North in Birmingham that had been left to him by his mother. He testified that he moved out of the house in 2006 because the house needed a number of repairs and he did not intend to make the repairs. He continued to store some furniture, personal items, and building supplies in the house. He testified that electrical wiring, sheetrock, and insulation were present in order to make repairs on the house. He also maintained the yard and paid property taxes on the house up until the time of the offense. Turner stated that there were three exterior doors to the house and that each was locked.

Turner testified that, on the day of the offense, he received a telephone call from a neighbor and then telephoned the police to request that they go to the house. When he arrived at the house, he saw that the police had apprehended Sanders and another man. He further observed that the front door had been pushed or kicked open. Turner testified that he had not given Sanders or the other man permission to enter the house.

Turner admitted that he was aware that a condemnation report had been prepared on the house in 2010, but he was unaware of any official condemnation notice. He stated that he personally had decided to tear the house down and that a date had been set for the demolition; however, he maintained that he was not abandoning the house until that date. Specifically, he stated that he was keeping the yard cut and was continuing to store some personal items there “that has to be gone through but not too much of anything of any value.” (R. 23.)

On cross-examination, Turner acknowledged that there were large holes in the roof at the time of the incident that had not been repaired. He acknowledged that the City of Birmingham had placed a notice of condemnation on the house and that he had called the City office in response to the notification. He was told that he had an option to make repairs, but “[i]t was more money and time than I was going to — that I did not want to put into it.” (R. 28.) When asked if the notice stated that the house was “unrepairable,” Turner initially stated that it did not but subsequently indicated that the notice “came up missing” and it provided only a telephone number. (R. 29.) He also acknowledged that the “red condemnation note” had possibly been on the door for months and was there at the time of the offense. He also confirmed that no one was living in the house at the time. He stated that, although the door was open, he had not been to the house for possibly a month so he did not know how long the door had been opened. He also testified that certain items were eventually determined to be missing from the house but none were found on or with Sanders.

Officer Douglas Crawford, of the Birmingham Police Department, testified that he was called to the scene of the incident. He said that he and another police vehicle were the first to arrive. The front door of the house was shut but unlocked. The back door was open. He stated that they heard voices inside and entered through the front door. They saw Sanders and the other man holding some household items. When asked what the men did upon the police officers’ entry, Officer Crawford testified that “I actually had to make some noise. I think I said ‘Excuse me gentlemen,’ or something like that before they even noticed we were there. But when I caught their attention, they dropped the items.” (R. 42.) On cross-examination, Officer Crawford stated that the men were under surveillance for a while before the officers entered the house. During that time, nothing was taken to the truck parked in the backyard; the truck was pulled in hood-first; neither Sanders nor the other man had any bag to put property into; the doors had not been kicked in; and the men were startled by the officers’ presence. Sanders and the other man left the property in the house and they were then arrested.

Thereafter, the State rested.

Curtis Faggard, who was in charge of keeping the City of Birmingham’s condemnation department’s records, testified as to the condemnation-write-up sheet on the house on 8th Avenue North. He testified that the write-up sheet “gives us a brief description of the structure as far as deterioration is concerned.” (R. 55.) He further testified that the write-up sheet “goes along with the notice that was sent [mailed] to the homeowner.” (R. 55.) Faggard testified that a red placard had been placed on the property with the address, date, and inspector’s number on it; however, the property owner had not been notified in this case, nor had the house been scheduled for demolition. Faggard acknowledged that the notice on the door of the house stated that it was not feasible to repair the property. On cross-examination, Faggard stated that the property had not yet been condemned because the owner had not been notified. After notification, the owner has 30 days to respond as to whether the repairs will be made. Thereafter, if the owner does not timely respond, the matter goes to the city council for condemnation in 35-40 days. Fag-gard stated that the house had still not been condemned at the time of trial.

On cross-examination, Faggard conceded that the 30-day limit for the owner to respond had been exceeded; however, because of the workload in the department, no further action had been taken by the City. Finally, Faggard confirmed that, “once a notice has been sent or put up, even if it’s not officially condemned and scheduled, ... people [are not] allowed to live in the house at that point.” (R. 64.)

Sanders testified that he and the other man entered the house to determine whether anything could be salvaged. He stated that, if they had found metal or other salvageable materials, they would have attempted to locate the owner. They believed that the house was abandoned because the front door was open and, because it was raining that day, it was raining in the house. He stated that he had a cookbook in his hand when the police officer entered the house but that he was only looking at the book. He further testified that the house was extremely junky and that there was no indication that anyone was living in the house.

On appeal, Sanders argues that the State failed to prove that the structure that he entered was a “building” as required by § 13A-7-7, Ala.Code 1975, the statute defining third-degree burglary. Because the facts are undisputed and this case involves the application of an issue of law to those facts, our review is de novo. Ex parte Walker, 928 So.2d 259, 262 (Ala.2005).

The term “building” as used in third-degree burglary is defined as

“[a]ny structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.”

§ 13A-7-R2), Ala.Code 1975.

Here, the house, although in disrepair, was still being used for storage when Sanders unlawfully entered the building and began looking through the property inside for items that he wanted. The yard was also still being maintained and the property owner visited the house monthly. The fact that the rear door was open did not justify Sanders’s entry. See Davis v. State, 737 So.2d 480, 483 (Ala.1999) (“The State is no longer required to prove that the defendant broke and entered the premises. Instead, the strictures of that element have been replaced with the general requirement of a trespass on premises through an unlawful entry or an unlawful remaining.”). Moreover, the red notice on the door did not affect the unlawfulness of Sanders’s entry because he testified that he did not see the notice. When asked if he thought that the building had been condemned, Sanders testified, “That sign was not on the door at the time.” (R. 65.) The house owned by Turner and used to store some of his belongings constituted a building under § 13A-7-7, Ala.Code 1975. Compare Sanders v. State, [Ms. CR-10-1091, December 14, 2012] — So.3d (Ala.Crim.App.2012)(holding that the structure purchased solely for demolition by the Birmingham Airport Authority did not constitute a building for the purpose of third-degree burglary). In Sanders, the structure was not used for residency or inhabitation or storage or any form of personal use. The structure had been purchased solely for the purpose of noise abatement for the airport and its intention was always that the structure be demolished. In the present case, the house had been inhabited four years before the offense and continued to be maintained and used for storage at the time of the offense. In fact, much of the materials the owner stated remained in the house were for the purpose of making repairs to the house so that it could be restored for his personal use.

Third-degree burglary is committed when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” § 13A-7-7(a), Ala.Code 1975 (emphasis • added). The jury could have reasonably found from the evidence that Sanders unlawfully entered Turner’s house with the intent to find and take property. Therefore, Sanders’s conviction for third-degree burglary and his resulting sentence are due to be affirmed.

AFFIRMED.

WINDOM, P.J., and WELCH, KELLUM, and JOINER, JJ., concur.

      . On cross-examination, he acknowledged that he saw only that the door was open.

      . Turner stated, however, that he did not look into the back of Sanders’s truck that was in the backyard of the house at the time of the offense.

      . Officer Crawford was uncertain as to what household items were in the men's possession.

      .Officer Crawford testified that "both reports reflect that there didn't appear to be any force used.” (R. 48.)

      . We note that Sanders was also the appellant in that case.


source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    Michael CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-28.
    Supreme Court of Florida.
    Oct. 17, 2013.
    Diane J. Zelmer of Zelmer Law, Fort Lauderdale, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Robert J. Krauss, Chief Assistant Attorney General and C. Suzanne Bechard, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Campbell v. State, 75 So.3d 757 (Fla. 2d DCA 2011). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Cox v. State, 35 So.3d 47 (Fla. 1st DCA 2010), on the issue of whether a defendant may, after sentencing, withdraw a plea of guilty or nolo contendere based solely upon a trial court’s failure to formally accept the plea as set forth in Florida Rule of Criminal Procedure 3.172(g) without a showing that the trial court’s failure to formally accept the plea caused manifest injustice or clear prejudice. We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const.

For the reasons that follow, we affirm the decision of the Second District Court of Appeal in this case which held that the defendant was not entitled to withdraw his plea under these circumstances.

FACTS AND STATEMENT OF THE CASE

The facts and procedural history have been presented by the Second District as follows:

On November 30, 1999, pursuant to a plea of nolo contendere, Mr. Campbell was convicted of the following charges: four counts of attempted sexual battery by an adult, victim less than twelve; one count of lewd and lascivious conduct, victim less than sixteen; and one count of sexual battery by a person in familial or custodial authority. On February 11, 2000, Mr. Campbell was sentenced to a total of forty-five years’ imprisonment for the above offenses. On January 24, 2011, Mr. Campbell filed his motion to withdraw plea pursuant to rule 3.172(g). In his motion, Mr. Campbell argued that he was entitled to withdraw his plea even after he was sentenced, without a showing of any justification, simply because the trial court failed to formally accept his plea during the plea colloquy.
In denying Mr. Campbell’s claim, the postconviction court found that rule 3.172(g), allowing the withdrawal of pleas, applies “only before sentencing” citing to Harrell v. State, 894 So.2d 935, 939 (Fla.2005). The postconviction court ruled that the trial judge’s inadvertent failure to formally accept Mr. Campbell’s plea did not entitle Mr. Campbell to withdraw his plea nearly eleven years after the sentence had been imposed. [On appeal to the Second District], Mr. Campbell argue[d] that the trial court erred in failing to follow Cox v. State, 35 So.3d 47 (Fla. 1st DCA 2010), which he argue[d] [wa]s controlling. In Cox, the First District, apparently relying on Harrell, reluctantly held that the defendant should be allowed to withdraw his plea more than two years after sentencing because the trial court had failed to formally accept the plea. 35 So.3d at 48-49. The First District certified a question of great public importance regarding whether the holding in Harrell requires granting a motion to withdraw plea after sentencing where the trial court inadvertently neglected to state that it had “accepted the plea.” []

Campbell, 75 So.3d at 757-58. The Second District disagreed with the First District’s interpretation of Harrell and held that rule 3.172(g) only applies before sentencing. Id. at 758. The Second District determined that “the trial court properly found that without a showing of manifest injustice or clear prejudice, Mr. Campbell was not entitled to withdraw his plea after he was sentenced.” Id. at 757. The Second District certified conflict with Cox. Id. at 758-59.

ANALYSIS

Although the appellant in this case raises a single issue to be resolved by this Court, there appear to be two overarching issues, which are imperative to the resolution of the instant case: (1) whether the appellant must make a showing of manifest injustice or prejudice in order to withdraw a plea, after sentencing; and (2) whether actual sentencing constitutes “formal acceptance” of a plea agreement by the trial court under Florida Rule of Criminal Procedure 3.172(g).

Florida Rule of Criminal Procedure 3.170(Z)

As to the first issue, Florida Rule of Criminal Procedure 3.170(i) applies to motions to withdraw plea agreements made after sentencing:

Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

Fla. R.Crim. P. 3.170((). The requirement of manifest injustice or prejudice is not explicitly stated in rule 3.170(i). This requirement has been interpreted and upheld through the case law of this Court. See Williams v. State, 316 So.2d 267, 275 (Fla.1975); Richardson v. State, 246 So.2d 771, 774 (Fla.1971). In Williams, the defendant sought to have his guilty plea vacated based on the trial court’s failure to establish a factual basis for the plea. 316 So.2d at 269. This Court noted that at the time there was no Florida rule setting guidelines for plea withdrawal after sentencing. Id. at 273. This Court agreed with the requirements for a plea withdrawal subsequent to sentencing that were set forth in section 2.1, Pleas of Guilty, American Bar Association Standards for Criminal Justice. See id. at 273-74. This Court disagreed with the petitioner, finding that vacating the plea would be too drastic a sanction where the record clearly reflected that the petitioner understood the plea agreement, unless the petitioner could show prejudice or manifest injustice as a result of the trial judge’s non-compliance. Id. at 275. This Court recognized that the ABA Standard was in accordance with this Court’s earlier decision in Richardson, 246 So.2d at 774, where it stated (“... [W]e hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant.”). Subsequent decisions of this Court have upheld the requirement that a defendant demonstrate manifest injustice or prejudice requiring correction when seeking to withdraw a plea after the rendition of a sentence. State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003); see Lopez v. State, 536 So.2d 226, 229 (Fla.1988). Therefore, we once again recognize that pursuant to Rule 3.170(£) a defendant must make a showing of manifest injustice or prejudice in order to withdraw a plea of guilty or nolo conten-dere following the rendition of a sentence.

Florida Rule of Criminal Procedure 3.172(g)

The second issue is imperative to the resolution of the instant case because the appellant is seeking to withdraw his plea, eleven years after he was sentenced, and cites Florida Rule of Criminal Procedure 3.172(g) as his basis. Rule 3.172(g) provides:

Withdrawal of Plea Offer or Negotiation. No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all inquiries, advisements and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

Fla. R.Crim. P. 3.172(g). The rule does not define “formal acceptance.” In Harden v. State, 453 So.2d 550 (Fla. 4th DCA 1984), in reversing the trial court’s order denying the defendant’s pre-sentence motion to withdraw his guilty plea, the Fourth District interpreted “formal acceptance” as an affirmative statement on the record:

The State argues that acceptance of the pleas can be inferred from the existence of the Deferred Adjudications in the record. Although these documents state that appellant entered guilty pleas, they do not state that the judge accepted the pleas. It could as easily be argued that the court evidenced its intent not to accept the pleas by deferring adjudication and ordering predisposition and presentence investigation reports. Since the ability of all parties to repudiate a negotiated plea hinges upon acceptance of the plea by the court, the rule wisely requires formal acceptance of that plea, rather than subjective or implied acceptance. We therefore hold that formal acceptance of a plea occurs when the trial court affirmatively states to the parties, in open court and for the record, that the court accepts the plea.

Id. at 551.

There seems to be a general adherence to this standard among Florida’s District Courts of Appeal. See Cox v. State, 35 So.3d 47, 49 (Fla. 1st DCA 2010) (two years after sentencing, defendant had a right to withdraw from a plea where the trial court failed to specifically state that it formally accepted the plea); Muse v. State, 23 So.3d 763, 764 (Fla. 1st DCA 2009) (the trial court’s confirmation of the voluntariness of the plea and subsequent order of a presentence report, did not constitute formal acceptance of the plea); Mackey v. State, 743 So.2d 1117, 1118 (Fla. 2d DCA 1999) (because the court never formally accepted the pleas, the defendant had an absolute right to withdraw pleas prior to sentencing after the court conducted a plea colloquy and the State offered a factual basis for the pleas); Turner v. State, 616 So.2d 194, 194 (Fla. 3d DCA 1993) (where the record reflected that (1) the trial court did not, after conducting a plea colloquy, formally accept the plea as required by rule 3.172(g); and (2) the defendant requested to withdraw his plea prior to sentencing, “ ‘the defendant had an absolute right to withdraw his plea ... ’ without any necessary justification.”); Bass v. State, 541 So.2d 1336, 1337-38 (Fla. 4th DCA 1989) (where the defendant sought to withdraw plea prior to sentencing and the Fourth District determined that the trial court did not formally accept the plea, despite the trial judge’s intentions to do so); Collucci v. State, 903 So.2d 333, 334 (Fla. 5th DCA 2005) (trial court’s conditional acceptance of guilty plea did not constitute formal acceptance of plea after defendant sought- to withdraw plea prior to sentencing).

After its decision in Cox, the First District decided Cannon v. State, 92 So.3d 292 (Fla. 1st DCA 2012), notice invoking discretionary jurisdiction filed, No. SC12-1664 (Fla. Aug. 6, 2012). In Cannon, the defendant filed a post-sentence motion to withdraw his plea, citing the First District’s decision in Cox and claiming that it was never formally accepted by the trial court. See id. at 293. The First District disagreed with the defendant in Cannon, and sought to clarify its Cox decision:

The decision in Cox did not specify whether the defendant in that case moved to withdraw his plea before or after sentencing. We conclude that Cox should be read consistently with the holding in Campbell — the rule providing that a plea may be withdrawn without any justification until it is formally accepted by the trial judge only applies prior to sentencing. Cox does not stand for the proposition that a defendant has a unilateral right to withdraw from a plea years after he has been sentenced in accordance with that plea, if the trial court failed to formally accept it. Any other interpretation of Cox and rules 3.170 and 3.172(g) leads to irrational results of pleas being vacated years or decades after a defendant began serving a sentence. -

Id. at 294.

The closest that this Court has come to answering the issue presented in this case was in the case of Harrell v. State, 894 So.2d 935 (Fla.2005). In Harrell, this Court granted jurisdiction to resolve a conflict between Harrell v. State, 826 So.2d 1059, 1059-60 (Fla. 1st DCA 2002) and Miller v. State, 775 So.2d 394, 395 (Fla. 4th DCA 2000), where the defendants in both cases argued on appeal that the trial judge should have allowed them to withdraw their plea agreements prior to sentencing, alleging that at the time the defendants requested to withdraw their pleas, the judge had not formally accepted the pleas. Harrell, 894 So.2d at 936.

The actual conflict in the opinions rested upon whether a general motion to withdraw a plea sufficiently preserved the issue of whether a defendant would be allowed to withdraw his plea prior to the trial court’s formal acceptance of the plea. The First District in Harrell, decided that a general motion to withdraw did not sufficiently preserve the issue and declined to hear the case on the merits. 826 So.2d at 1060. In Miller, the Fourth District decided that a general motion to withdraw sufficiently preserved the argument for appeal and reached the merits of the case. 775 So.2d at 395 n. 1. This Court granted jurisdiction to resolve the conflict between the district courts and approved the decision of the First District that the issue had to be specifically preserved at the trial level, and disapproved the holding of the Fourth District. Harrell, 894 So.2d at 940-41. This Court explicitly declined to decide the current issue in relation to those cases. See Harrell at 938 (“[W]e need not decide whether the trial court in this case did formally accept the plea, or examine the circumstances that constitute a formal acceptance.”).

In Harrell, this Court examined the rules governing the withdrawal of a plea. That discussion reads in pertinent part as follows:

Two rules of procedure address [withdrawal of pleas]: Florida Rules of Criminal Procedure 3.172[(g)] and 3.170(f). We discuss each in turn.
Rule 3.172 governs the acceptance of pleas. It provides in pertinent part as follows:
(f) Withdrawal of Plea Offer or Negotiation. No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.
(Emphasis added.) This rule permits a defendant to withdraw a plea at any time before the court formally accepts it. A trial court’s failure to grant a motion to withdraw raising this claim constitutes reversible error. See Bass v. State, 541 So.2d 1336 (Fla. 4th DCA 1989). As the court in Bass noted:
It is not easy for us to conclude that the trial court did not formally accept the plea herein because we feel confident the trial judge intended to, and probably felt he had. This formal omission is easily understood considering the volume of cases proceeding through the court and the absence of any ostensible contest over the proceeding. Nevertheless, when push comes to shove, we are obliged to follow the rule as written and construed by the cases. No formal acceptance by the court, no bar to withdrawal by any of the triumvirate-state, defendant or the court.
Id. at 1338; accord Turner v. State, 616 So.2d 194, 194 (Fla. 3d DCA 1993) (holding that “[u]nder these circumstances, the defendant had an absolute right to withdraw his plea prior to sentencing ‘without any necessary justification’”).
Florida Rule of Criminal Procedure 3.170 also governs pleas. It provides a defendant an opportunity to withdraw a previously entered plea:
(f) Withdrawal of a Plea of Guilty. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty. The fact that a defendant may have entered a plea of guilty and later withdrawn the plea may not be used against the defendant in a trial of that cause.
Rule 3.170(f) limits the opportunity for withdrawing a plea to the period before sentencing. Rule 3.172[ (g) ] contains no such limitation. In Demartine v. State, [] 647 So.2d 900, 900 (Fla. 4th DCA 1994), however, the Fourth District concluded, based on the history of rules 3.172 and 3.170, that rule 3.172 “simply codified in greater detail the requirements for acceptance of a plea” in rule 3.170 and that the two rules must be read in pari materia. 647 So.2d at 902. Accordingly, the court held that both of these rule provisions apply only before sentencing. We agree. The criminal rules establish sentencing as a critical juncture in a defendant’s ability to withdraw a plea. See generally State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003) (explaining the different standards applicable to pre- and post-sentencing motions to withdraw pleas).
Under the criminal rules, therefore, a defendant’s pre-sentencing motion to withdraw may take two distinct tracks. Rule 3.172[ (g) ] applies when a plea has not been formally accepted. Rule 3.170(f) allows a defendant to seek withdrawal of a plea for any number of reasons. Under rule 3.172[(g)], the court has no discretion. If the court has not formally accepted the plea, it must allow withdrawal. Under 3.170(f), on the other hand, the court has discretion to deny the motion unless the defendant establishes “good cause,” in which case the court must grant it. See Partlow, 840 So.2d at 1042 (Fla.2003) (“Under this provision [rule 3.170(f) ], a trial court plainly has broad discretion in determining motions to withdraw a plea.”).

Id. at 938-39. This Court noted that “Motions to withdraw pleas after sentencing are subject to rule 3.170(Z), which allows withdrawal of a plea only for the specific reasons listed in Florida Rule of Appellate Procedure 9.140(b).” Id. at 939 n. 2.

The distinguishing factor between the cases under review and cases previously decided by Florida courts is that Campbell and Cox both sought to withdraw their pleas after they had already been sentenced, and . as grounds claim to have this right under Florida Rule of Criminal Procedure 3.172(g). See Campbell, 75 So.3d at 757-58; Cox, 35 So.3d at 48. Florida Rule of Criminal Procedure 3.170 (l) governs motions to withdraw a plea after sentencing and lists the limited scenarios where this is allowed. See Fla. R.Crim. P. 3.170 (l). Nevertheless, Campbell and Cox both assert that rule 3.172(g) could also govern a motion to withdraw a plea after sentencing, in the event the trial court neglects to verbally announce on the record that the plea has been accepted. Both defendants argue that sentencing does not constitute “formal acceptance” of the plea by the trial court, as required by rule 3.172(g). Campbell argues that, based upon the plain language of the rule, it can apply infinitely, up until the time when the trial court formally accepts the plea agreement. The State argues that, based upon its plain language, the rule governs the negotiation process of reaching a plea agreement, not the resulting agreement.

To interpret the scope of the procedural rule, we look to established principles of statutory construction. See Barco v. School Bd. of Pinellas Cnty., 975 So.2d 1116, 1121-22 (Fla.2008) (If the language of a procedural rule is ambiguous and capable of different meanings, this Court will apply established principles of statutory construction to resolve the ambiguity).

This Court has held that statutes dealing with the same subject matter should be considered in pari materia in an effort to give effect to legislative intent. See, e.g., McGhee v. Volusia County, 679 So.2d 729, 730 n. 1 (Fla.1996) (“The doctrine of in pari materia requires the courts to construe related statutes together so that they illuminate each other and are harmonized.”); Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (“[A]ll parts of a statute must be read together in order to achieve a consistent whole.”). Further, this Court has previously agreed with the Fourth District that rules 3.170 and 3.172 should be read in pari materia, because they both address the topic of pleas. See Harrell, 894 So.2d at 939.

Reading both rules together, rale 3.172(g), entitled Withdrawal of Plea Offer or Negotiation, allows either party to withdraw a plea offer without justification until the time the judge formally accepts the plea. Rule 3.170 (l), entitled Motion to Withdraw the Plea after Sentencing, provides the defendant with a limited time-frame within which to seek withdrawal of a plea, along with specific grounds upon which a withdrawal may be granted after sentencing. When we read the rules as complimenting one another, it is clear that rule 3.170 (l) explicitly governs the withdrawal of plea offers after sentencing, and rule 3.172(g) only applies to the withdrawals of plea offers before sentencing, as it does not make any specific provisions for the procedure of withdrawal after sentencing. Further, rule 3.172(g) merely indicates that formal acceptance shall take place after the judge makes “all the inquiries, advisements, and determinations required by this rule.” Fla. R.Crim. P. 3.172(g). The rule does not state, or even imply that the only form of “formal acceptance” is a verbal announcement “to the parties, in open court and for the record, that the court accepts the plea.” See Harden, 453 So.2d at 551. It is logical to assume that formal acceptance was intended to be an affirmative statement on the record, or an affirmative act by the court that the plea has been accepted, such as actual sentencing of the defendant in accordance with the terms of the plea agreement.

The definition of “formal acceptance” appears to be a critical term in interpreting a party’s right to withdraw a plea under rule 3.172(g). “Formal acceptance” is not defined in the dictionary, the state or federal rules of criminal procedure, nor in the Florida Statutes. However, case law from other jurisdictions assists in our definition and interpretation of this term. See Reform Party v. Black, 885 So.2d 303, 312 (Fla.2004) (“In the absence of a statutory or dictionary definition, courts have relied on textbooks and legal authority from other jurisdictions.”).

In the case of Gumm v. State, 655 N.E.2d 610, 612 (Ind.Ct.App.1995), an Indiana Court of Appeals held that formal acceptance can take place via the court’s written judgment and is not limited to a verbal statement by the Court. (The defendant alleged that the Court never formally accepted the plea. The Court disagreed, finding that “after the court found a factual basis for his plea, it took the plea under advisement pending a pre-sentence investigation. Thereafter, the judgment of conviction specifically stated that the court accepted the plea. The penalties imposed tracked the plea agreement for the single count to which the plea was entered. Such a statement is sufficient to overcome Gumm’s assertions.”); see also State v. Bisson, 156 Wash.2d 507, 130 P.3d 820, 822 (2006) (Supreme Court of Washington concluded that the trial judge formally accepted the defendant’s plea by stating that he had “signed the Statement of Defendant on Plea of Guilty and the Plea Agreement”).

“[Ajnother applicable maxim of statutory construction is that statutes will not be construed so as to reach an absurd result.” Vill. of Doral Place Ass’n, Inc. v. RU4 Real, Inc., 22 So.3d 627, 631 (Fla. 3d DCA 2009) (citing City of St. Petersburg v. Siebold, 48 So.2d 291, 294 (Fla.1950)). As this Court implicitly recognized in Harrell, failure to allow sentencing to constitute formal acceptance of a plea agreement may lead to absurd or treacherous results. See Harrell, 894 So.2d at 938 (“It is not easy for us to conclude that the trial court did not formally accept the plea herein because we feel confident the trial judge intended to, and probably felt he had. This formal omission is easily understood ... [nevertheless ... we are obliged to follow the rule as written and construed by the cases. No formal acceptance by the court, no bar to withdrawal by any of the triumvirate-state, defendant or the court.”) (quoting Bass v. State, 541 So.2d 1336, 1338 (Fla. 4th DCA 1989)).

This interpretation would also lead to an absurd result if a different member of the triumvirate raises the same argument years later; the judge or the State would be allowed to challenge the plea agreement after the defendant has already partially performed his or her duties under the agreement, based solely on the failure of the Court to utter a simple phrase. It also seems absurd that a trial judge’s inadvertent failure to recite one simple phrase, “the court accepts the plea,” would have the potential to render the entire process meaningless, without unambiguous language in the rule that would sufficiently convey the gravity of such a mishap. See also Fla. R.Crim. P. 3.020 (“These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure and fairness in administration.”).

Rule 3.172 was adopted in 1977 to implement the procedure set forth in our decision in Williams v. State, 316 So.2d 267 (Fla.1975); the rule also incorporated Federal Rule of Criminal Procedure 11(c). See Committee Notes to Fla. R.Crim. P. 3.172. (“In view of the supreme court’s emphasis on the importance of this procedure as set forth in [Williams ], the committee felt it appropriate to expand the language of former rule 3.170(j) (deleted) and establish a separate rule. Incorporates Federal Rule of Criminal Procedure 11(c) and allows for pleas of convenience (citations omitted)). Our opinion in Williams emphasized the importance of compliance with the rules in reaching the actual plea agreement and the court’s acceptance of plea agreements. Williams, 316 So.2d at 270-71. Our interpretation here of Florida Rule of Criminal Procedure 3.172 is supported by the incorporation of Federal Rule of Criminal Procedure 11(c), which governs plea agreement procedure. See Committee Notes to Fla. R.Crim. P. 3.172; Fed.R.Crim.P. 11(c). Federal rule 11(c) outlines the process by which parties reach a plea agreement, disclose the plea agreement to the court, how the court considers the plea agreement and the proper procedure the court must follow once it accepts or rejects the plea. See Fed.R.Crim.P. ll(c)(l-5).

Lastly, this Court’s long-standing interest in the finality of criminal proceedings must not be overlooked:

The importance of finality in any justice system, including the criminal justice system, cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end. In terms of the availability of judicial resources, cases must eventually become final simply to allow effective appellate review of other cases. There is no evidence that subsequent collateral review is generally better than contemporaneous appellate review for ensuring that a conviction or sentence is just. Moreover, an absence of finality casts a cloud of tentativeness over the criminal justice system, benefiting neither the person convicted nor society as a whole.

Witt v. State, 387 So.2d 922, 925 (Fla.1980) (footnote omitted). To allow the defendant to reverse the entire process that he knowingly and voluntarily agreed to eleven years earlier solely based on the trial judge’s inadvertent failure to utter a simple phrase would seem to “casts a cloud of tentativeness over the criminal justice system.” Id. It also appears that reversing the Second District’s holding would possibly cause substantial prejudice to the State in the consequent trial of the defendant, due to the expected decaying of evidence over time, along with the possible memory lapse of potential witnesses.

CONCLUSION

We find that the actual sentencing of the defendant is a sufficient affirmative statement to the parties made in open court and on the record as to constitute formal acceptance of a plea under Florida Rule of Criminal Procedure 3.172(g). Further, actual sentencing adequately evidences the finality in the proceedings, the point at which litigation comes to an end and the right to withdraw a plea is revoked.

We therefore answer the re-stated question presented in the negative. A defendant is not entitled to withdraw a plea of guilty or nolo contendere following the rendition of a sentence, based solely on the trial court’s failure to formally accept the plea as set forth in Florida Rule of Criminal Procedure 3.172(g). Rule 3.170 (l) applies to motions to withdraw pleas that are filed after sentencing and this Court has continually found that a showing of manifest injustice or prejudice is required.

We approve the decision of the Second District in Campbell v. State, 75 So.3d 757 (Fla. 2d DCA 2011) and disapprove the First District’s decision in Cox v. State, 35 So.3d 47 (Fla. 1st DCA 2010) to the extent that it is inconsistent with this opinion.

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

CANADY, J., concurs in result.

      . The parties’ briefs phrase the question presented as whether a defendant is entitled to withdraw a plea of guilty or nolo contendere following a conviction based solely on the trial court’s failure to formally accept the plea as set forth in Florida Rule of Criminal Procedure 3.172(g) absent a showing of manifest injustice or prejudice. However, based on the holdings of both cases under review, it appears that the actual conflict between the district courts is regarding whether a defendant is allowed to withdraw a plea under rule 3.172(g) following sentencing. Therefore, we decline to address the issue of whether a defendant has the right to withdraw a plea agreement after the defendant has been convicted by the trial court, prior to being sentenced. See Marsh v. Valyou, 977 So.2d 543, 545 n. 1 (Fla.2007) (declining to address issues beyond the basis for the Court’s conflict jurisdiction).

      . Rule 3.172(f) was the predecessor to what is now rule 3.172(g). Consequently, in much of the relevant case law, any and all mentions of rule 3.172(f) should be read as referring to what is now rule 3.172(g).

      . This Court declined to exercise jurisdiction to answer the certified question in Cox. See State v. Cox, 37 So.3d 849 (Fla.2010) (table decision).

      . Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) provides that a defendant who pleads guilty or nolo contendere may otherwise directly appeal only: (a) the lower tribunal's lack of subject matter jurisdiction; (b) a violation of the plea agreement, if preserved by a motion to withdraw plea; (c) an involuntary plea, if preserved by a motion to withdraw plea; (d) a sentencing error, if preserved; or (e) as otherwise provided by law.

      .Subsection (1) was added to Rule 3.170 in 1997. See Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103, 1105 (Fla.1996); see also Amendments to the Flori

        da Rules of Criminal Procedure, 685 So.2d 1253, 1254 (Fla.1996).

      . See ABA, Pleas of Guilty, § 2.1(b) (Approved Draft, 1968) ("In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.”).

      . The State alleges that in light of the First District’s statement in Cannon that Cox should be read consistently with the holding of Campbell, no conflict further exists. However, as the First District chose not to expressly recede from Cox, the initial conflict between these cases remains, and this Court has jurisdiction. See Bailey v. Hough, 441 So.2d 614, 615 (Fla.1983).

      . In Demartine, 647 So.2d at 902, the Fourth District certified the following question to this Court: "May a defendant, after sentencing, withdraw a plea of guilty or nolo contendere based solely upon a trial court’s failure to formally accept the plea as set forth in Florida Rule of Criminal Procedure 3.172[ (g) ] without a showing that the trial court’s failure to formally accept the plea caused manifest injustice or clear prejudice.” This is the same issue presented in the instant case. This Court dismissed Demartine on April 28, 1995. See Demartine v. State, 657 So.2d 1162 (Fla.1995) (table decision).

      . Federal rule 11(d) lists the limited circumstances wherein a defendant is allowed to withdraw a plea prior to sentencing: (1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under Rule 11(c)(5); or (B) the defendant can show a fair and just reason for requesting the withdrawal. Fed.R.Crim.P. 11(d). The federal rules explicitly state that a plea cannot be withdrawn after sentencing, it can only be set aside on direct appeal or collateral attack. See Fed. R.Crim.P. 11(e).


author: PER CURIAM.

text:
    In re AMENDMENTS TO the FLORIDA RULES OF JUDICIAL ADMINISTRATION AND the FLORIDA RULES OF APPELLATE PROCEDURE.
    No. SC13-1670.
    Supreme Court of Florida.
    Oct. 31, 2013.
   PER CURIAM.

The Florida Bar’s Rules of Judicial Administration Committee and the Appellate Court Rules Committee (Committees) have filed a “fast-track” out-of-cycle report proposing amendments to Florida Rules of Judicial Administration 2.205(b)(5) (Issuance of Mandate; Recordation and Notification) and 2.210(b)(4) (Issuance of Mandate; Recordation and Notification) and Florida Rule of Appellate Procedure 9.340(a) (Issuance of Mandate). The proposals are in response to recent legislation. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction and adopt the proposed amendments to the rules and also amend the titles of the rules.

According to the Committees’ report, the amendments are in response to chapter 2013-25, section 10, Laws of Florida, which created section 43.44, Florida Statutes. Section 43.44, which becomes effective on January 1, 2014, allows an appellate court to recall its own mandate within 120 days after the mandate has been issued. Cf. State v. Bell, 992 So.2d 95, 96 (Fla.2008) (recognizing that an appellate court’s power to recall its mandate is limited to the term during which it issued); Chapman v. St. Stephens Protestant Episcopal Church, Inc., 105 Fla. 683, 138 So. 630, 631-32 (Fla.1932) (concluding that in the absence of a statute, an appellate court has jurisdiction to recall its mandate until the end of the term in which the judgment was rendered). The Executive Committee of the Board of Governors of The Florida Bar approved the proposals by a vote of 11-0.

As proposed by the Committees, we amend Florida Rule of Appellate Procedure 9.340(a) (Issuance of Mandate) to address the recall of a mandate by adding language to provide: “The court may direct the clerk to recall the mandate, but not more than 120 days after its issuance.” Also, as proposed by the Committees, we amend Florida Rules of Judicial Administration 2.205(b)(5) (Issuance of Mandate; Recordation and Notification) and 2.210(b)(4) (Issuance of Mandate; Recor-dation and Notification) to provide that “[i]f, within 120 days after a mandate has been issued, the court directs that a mandate be recalled, then the clerk shall recall the mandate.” References to “recall,” “the date of recall,” and “the recall of any mandate” also are added to the provisions of the rules addressing recordation and notification. On our own motion, we also amend the titles of the three rules to reference “recall of mandate.”

Accordingly, we amend the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect January 1, 2014, at 12:01 a.m. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 2.205. THE SUPREME COURT

(a) [No Change]

(b) Clerk.

(1) — (4)

(5) Issuance and Recall of Mandate; Recordation and Notification. The clerk shall issue such mandates or process as may be directed by the court. If, within 120 days after a mandate has been issued, the court directs that a mandate be recalled, then the clerk shall recall the mandate. Upon the issuance or recall of any mandate, the clerk shall record the issuance or recall in a book or equivalent electronic record kept for that purpose, in which the date of issuance or date of recall and the manner of transmittal of the process shall be noted. In proceedings in which no mandate is issued, upon final adjudication of the pending cause the clerk shall transmit to the party affected thereby a copy of the court’s order or judgment. The clerk shall notify the attorneys of record of the issuance of any mandate, the recall of any mandate, or the rendition of any final judgment. The clerk shall furnish without charge to all attorneys of record in any cause a copy of any order or written opinion rendered in such action.

(6) [No Change]

(c)-(g) [No Change]

RULE 2.210. DISTRICT COURTS OF APPEAL

(a) [No Change]

(b) Clerk.

(1) — (3) [No Change]

(4) Issuance and Recall of Mandate; Recordation and Notification. The clerk shall issue such mandates or process as may be directed by the court. If, within 120 days after a mandate has been issued, the court directs that a mandate be recalled, then the clerk shall recall the mandate. If the court directs that a mandate record shall be maintained, then upon the issuance or recall of any mandate the clerk shall record the issuance or recall in a book or equivalent electronic record kept for that purpose, in which shall be noted the date of issuance or the date of recall and the manner of transmittal of the process. In proceedings in which no mandate is issued, upon final adjudication of the pending cause the clerk shall transmit to the party affected thereby a copy of the court’s order or judgment. The clerk shall notify the attorneys of record of the issuance of any mandate, the recall of any mandate, or the rendition of any final judgment. The clerk shall furnish without charge to all attorneys of record in any cause a copy of any order or written opinion rendered in such action.

(5) [No Change]

(c)-(e) [No Change]

RULE 9.340. MANDATE

(a)Issuance and Recall of Mandate. Unless otherwise ordered by the court or provided by these rules, the clerk shall issue such mandate or process as may be directed by the court after expiration of 15 days from the date of an order or decision. A copy thereof, or notice of its issuance, shall be served on all parties. The court may direct the clerk to recall the mandate, but not more than 120 days after its issuance.

(b)-(c) [No Change]

Committee Notes

[No Change]

      . Art. V, § 2(a), Fla. Const.

      . See ch.2013-25, § 25, Laws of Fla. (providing effective date).

      . Newly created section 43.44, Florida Statutes, provides:
      Mandate of an appeals court. — An appellate court may, as the circumstances and justice of the case may require, reconsider, revise, reform, or modify its own opinions and orders for the purpose of making the same accord with law and justice. Accordingly, an appellate court may recall its own mandate for the purpose of allowing it to exercise such jurisdiction and power in a proper case. A mandate may not be recalled more than 120 days after it has been issued.
      Ch.2013-25, § 10, Laws of Fla.

      . All comments must be filed with the Court on or before December 30, 2013, with a certificate of service verifying that a copy has been served on the Committee Chairs, Mr. Eduardo I. Sanchez, 99 N.E. 4th Street, Suite 800, Miami, Florida 33132-2131, eduardo.i. sanchez@usdqj.gov, and Hon. Jon B. Morgan, 2 Courthouse Square, Room 6420, Kissim-mee, Florida 34741-5487, ctjujm2@ocnjcc. org, and on the Bar Staff Liaison to the Committees, Ms. Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, htelfer@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chairs has until January 20, 2014, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    Robert HENRY, Appellant, v. STATE of Florida, Appellee.
    No. SC12-2467.
    Supreme Court of Florida.
    Oct. 31, 2013.

      Kevin J. Kulik, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Celia Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a successive motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns post-conviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction under article V, section 3(b)(1), Florida Constitution. For the reasons set forth below, we affirm.

BACKGROUND

Robert Henry was convicted of the November 1987 first-degree murders of Phyllis Harris and Janet Thermidor at a fabric store in Deerfield Beach, Florida. We affirmed the conviction and sentence on direct, appeal in Henry v. State, 613 So.2d 429 (Fla.1992) (on remand from the United States Supreme Court). The pertinent facts are as follows:

Around 9:30 p.m. on November 1, 1987 fire fighters and police officers responded to a fire at a fabric store in Deerfield Beach. Inside they found two of the store’s employees, Phyllis Harris, tied up in the men’s restroom, and Janet Thermidor, on the floor of the women’s restroom. Each had been hit in the head with a hammer and set on fire. Harris was dead when found. Although suffering from a head wound and burns over more than ninety percent of her body, Thermidor was conscious. After being taken to a local hospital, she told a police officer that Henry, the store’s maintenance man, had entered the office, hit her in the head, and stolen the store’s money. Henry then left the office, but returned, threw a liquid on her, and set her on fire. Thermidor said she ran to the restroom in an effort to extinguish the fire. She died the following morning.
Based on Thermidor’s statement, the police began looking for Henry and found him shortly before 7:00 a.m. on November 3, at which time they arrested him. Henry initially claimed that three unknown men robbed the store and abducted him, but later made statements incriminating himself. A grand jury indicted Henry for two counts of first-degree murder, armed robbery, and arson. The jury convicted him as charged and recommended the death sentence for each of the murders, which the trial court imposed.
. After being arrested, Henry made a total of six oral and taped statements. In the first two he claimed that unknown robbers forced their way into the store and denied any personal involvement. In the other statements he confessed that he acted alone.

Henry, 613 So.2d at 430-31. Even though Henry had been examined for competency by Dr. Trudy Garfield-Block and found to be competent to stand trial, Henry’s counsel moved the court to appoint two additional experts, Drs. Livingston and Spencer, to examine Henry. Both doctors found him to be competent to stand trial. After the guilt phase of trial, Henry waived presentation of all mitigation in the penalty phase. He directed his counsel not to subpoena family members, and did not want a psychiatrist to testify. Id. at 433. He also denied to his counsel and to the doctors who examined him that he had any substance abuse problems or addiction, which his trial counsel believed could have been mitigating. Based on Henry’s demand that no mitigation be presented, no evidence was submitted during the penalty phase.

The jury recommended death for the murder of victim Harris by a vote of eight to four, and recommended death for the murder of victim Thermidor by a vote of nine to three. The trial court imposed the two death sentences after finding as aggravating factors that the murders were committed during the commission of robbery and arson; to avoid or prevent arrest; for pecuniary gain; in a cold, calculated, and cruel manner; and were heinous, atrocious, or cruel. Id. at 432. The mitigators found by the trial court were that Henry had no significant prior criminal history and that he served in the United States Marine Corps. Id. Henry was also sentenced to two concurrent life sentences for armed robbery and arson.

On direct appeal, Henry argued that he should not have been allowed to waive mitigation. Id. at 433. We found no error and explained, “The [trial] court questioned Henry about waiving the presentation of mitigating evidence. Henry persisted in his desire that no such evidence be introduced and made a formal sworn waiver of his right to present evidence at the penalty proceeding.” Id. We held that “the instant trial court carefully and conscientiously considered this case, as evidenced by the finding of two mitigators in spite of Henry’s refusal to allow presentation of more testimony. Thus, we see no error arising from Henry’s knowing and voluntary waiver.... ” Id.

In Henry’s initial postconviction proceeding filed in 1998, he raised fifty-one claims. The postconviction court held a Huff hearing on June 3, 1999, and granted an evidentiary hearing on his claim alleging ineffective assistance of counsel for failure to have qualified expert mental health professionals assist with the penalty phase defense, including a portion of a sub-claim that trial counsel did not make adequate use of Florida Rule of Criminal Procedure 3.216 authorizing appointment of a mental health expert for the penalty phase. The postconviction court also granted an evidentiary hearing on a portion of Henry’s claim regarding trial counsel’s alleged failure to ask the defense expert to address the mitigating factors of alleged organic brain problems and substance abuse. An evidentiary hearing was held October 18, 2000, with continued hearings on August 6-8, 2001. On January 22, 2003, the trial court entered an order denying all claims in Henry’s amended motion for postconviction relief.

On appeal of the postconviction order, we affirmed the denial of postconviction relief and we also denied Henry’s petition for a writ of habeas corpus alleging ineffective assistance of appellate counsel. See Henry v. State, 937 So.2d 563, 577 (Fla.2006). We noted that Henry claimed his trial counsel was ineffective for failing to develop a strategy emphasizing his drug addiction, both to demonstrate the effects of his long-term polysubstance abuse and to show Henry was operating under a cocaine-induced psychosis at the time of the crimes. Henry, 937 So.2d at 568. In resolving this claim, we explained:

First, as to Henry’s claim that trial counsel was ineffective for failing to pursue and present evidence of his drug addiction, the record is clear that Henry was adamant that trial counsel not rely on any evidence of intoxication or addiction in Henry’s defense, in either the guilt or penalty phases. “When a defendant preempts his attorney’s strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.” Rose v. State, 617 So.2d 291, 294 (Fla.1993) (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).
In attempting to show that trial counsel missed obvious signs that his client had a drug problem at the time of his crime, postconviction counsel produced evidence tending to show that Henry was struggling with a crack cocaine addiction in 1987.' However, this does not vitiate Henry’s role in firmly and consistently insisting that counsel not pursue such a strategy during trial. It seems clear that trial counsel met with stiff resistance from his client at every turn regarding any efforts to piece together a drug defense for either the guilt phase or for mitigation. Trial counsel’s testimony at the evidentiary hearings illustrates that Henry was vehemently opposed to any approach that relied on his drug use. He also made repeated denials of drug use both to counsel and to all three pretrial investigating mental-health experts. Accordingly, we conclude that the trial court did not err in finding that trial counsel’s assistance was not ineffective in this regard.

Henry, 937 So.2d at 570-71.

We also noted that the issue of Henry’s waiver of mitigation had been raised in the direct appeal, where we held that the trial court “carefully and conscientiously” considered the case for mitigation, finding two mitigators. Id. at 572 (quoting Henry, 613 So.2d at 433). We noted that although counsel can in some cases be ineffective in failing to pursue mental mitigation in spite of a waiver, such did not occur here because Henry had already been examined by an expert when counsel took over the case, and counsel further obtained the appointment of two additional experts. Henry, 937 So.2d at 573. Even though Henry requested that family members not be called to testify, counsel still contacted and subpoenaed five mitigation witnesses in case Henry changed his mind. Id. Thus, we found no reason to depart from our earlier ruling that the trial court did not err in accepting Henry’s waiver of mitigation; and we further held that trial counsel’s representation was not deficient under the circumstances. Id. We stated, “Given Henry’s adamant, informed refusal to participate in the investigation and preparation of any type of mitigation, we conclude that counsel’s preparation and Henry’s decision to waive his rights did not deny him of a reliable penalty phase proceeding.” Henry, 937 So.2d at 573.

Subsequent to the denial of his initial motion for postconviction relief, Henry filed a motion for DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. That motion was denied in October 2007 and Henry failed to file a timely appeal of that ruling. In 2008, Henry filed a motion for belated appeal in this Court, which was treated as a habeas petition and remanded to the circuit court for a hearing to determine if a belated appeal was warranted. The circuit court found .Henry was not entitled to a belated appeal and, in February 2010, this Court, denied the petition for belated appeal. See Henry v. State, 43 So.3d 690 (Fla.2010) (table decision).

Henry also filed a petition for a writ of habeas corpus in federal court, challenging his conviction and death sentences on six grounds: (1) erroneous admission of statements under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) ineffective assistance of trial counsel; (3) erroneous admission of hearsay by a victim; (4) failure to allow DNA testing of a beer can used to smoke crack, which was found twelve days after the murders behind a toilet in the men’s restroom where one of the victims was found, in order to prove voluntary drug intoxication; (5) ineffective assistance of appellate counsel; and (6) that the sentence was disproportionate. See Henry v. McDonough, No. 07-61281-CIV, 2009 WL 762219, at *2 (S.D.Fla. Mar. 19, 2009). In that ease, the federal court denied Henry’s motion to hold the case in abeyance in order for him to return to state court to conduct DNA testing on crime scene evidence and to pursue other claims against his trial counsel, his post-conviction counsel, and the Attorney General. Id. at *1. Henry’s federal petition was denied, as was his application for a certificate of appealability. The United States Supreme Court denied certiorari review. See Henry v. Florida Dept. of Corrs., 559 U.S. 1050, 130 S.Ct. 2367, 176 L.Ed.2d 564 (2010).

THIS CASE

We turn next to the successive postconviction claim Henry raises in this case. Henry claims in this appeal that the circuit court erred in summarily denying his successive postconviction claim that the American Society of Addiction Medicine (ASAM) 2011 Public Policy Statement defining addiction as a brain disorder is newly discovered evidence which, if presented to a jury, would probably result in a life sentence. When a claim of newly discovered evidence is asserted, a defendant must establish two things: First, the defendant must establish that the evidence was not known by the trial court, the party, or counsel at the time of trial and that the defendant or defense counsel could not have known of it by the use of diligence. However, not all new evidence is the equivalent of newly discovered evidence for the purposes of establishing a postconviction claim. Gore v. State, 91 So.3d 769, 775 (Fla.), cert. denied, Gore v. Florida, — U.S. -, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012). Second, the newly discovered evidence must be of such nature that it would “probably produce an acquittal on retrial.” See Jones v. State, 709 So.2d 512, 521 (Fla.1998) (quoting Jones v. State, 591 So.2d 911, 915 (Fla.1991)). “Newly discovered evidence satisfies the second prong of this test if it ‘weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.’” Heath v. State, 3 So.3d 1017, 1023-24 (Fla.2009) (quoting Jones, 709 So.2d at 526). Where, as here, the newly discovered evidence claim pertains to the penalty phase of trial, the evidence must be of such a nature that it would “probably yield a less severe sentence” on retrial. Schwab v. State, 969 So.2d 318, 325 (Fla.2007) (citing Jones, 591 So.2d at 915).

The ASAM Public Policy Statement on the definition of addiction describes the revised definition as the result of a compilation of two decades of advancements in neurosciences. Thus, it is in the nature of new opinions or research studies based on a compilation or analysis of previously existing data and scientific information. As the circuit court recognized in denying this claim, we held in Schwab that new opinions or new research studies have not been recognized as newly discovered evidence. See Schwab, 969 So.2d at 325-26. We held in Rutherford v. State, 940 So.2d 1112, 1117 (Fla.2006), that an American Bar Association report titled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report (Sept. 2006) was not newly discovered evidence because it was “a compilation of previously available information.” Id. at 1117-18. Similarly, in Johnston v. State, 27 So.3d 11, 20-21 (Fla.2010), we held that a report by the National Academy of Sciences, titled Strengthening Forensic Science in the United States: A Path Forward (2009), was not newly discovered evidence because the report cited to existing publications, some of which were published before the murder occurred in Johnston. Because the revised ASAM definition is the culmination of several decades of advancement in neuroscience, it falls into the same category as the above studies and articles, and thus is not newly discovered evidence.

Henry contends, however, that this ASAM policy statement setting forth a revised definition of addiction falls into the same category as the Federal Bureau of Investigation (FBI) letters that were the subject of our decision in Smith v. State, 75 So.3d 205, 206 (Fla.2011). We disagree. In a letter sent some time after Smith’s trial, the FBI disavowed the testimony of the FBI agent who testified at Smith’s trial on the issue of comparative bullet lead analysis. We remanded for an evi-dentiary hearing on the claim.

Similarly, in Wyatt v. State, 71 So.3d 86 (Fla.2011), we found that the “case-specific letter authored by the FBI” explicitly stating that the FBI agent’s testimony at Wyatt’s trial concerning comparative bullet lead analysis “exceed[ed] the limits of science and [could not] be supported by the FBI” was newly discovered evidence. Id. at 100. Even so, we concluded in Wyatt that the letter did not meet the second prong of the newly discovered evidence test because it was not of such nature that it would probably produce an acquittal on retrial when considered with the other evidence in the case. Id. at 101. These examples are distinguishable from the instant case because the letters in Wyatt and Smith pertained to the unreliability of expert testimony actually given at the defendants’ trials.

In this case, the ASAM policy statement and revised definition did not involve faulty testimony actually given at Henry’s trial, as occurred in Wyatt and Smith. Rather, it is more in the nature of new opinions or research studies based on a compilation or analysis of previously existing data and scientific information. Thus, based on this Court’s precedent in Schwab, Rutherford, and Johnston, the circuit court was correct in holding that the ASAM policy statement setting forth a revised definition of addiction, relating it to a brain disorder rather than a behavioral disorder, is not newly discovered evidence. The circuit court further concluded that the claim was an attempt to relitigate the claim that trial counsel was ineffective for failing to present Henry’s drug addiction or abuse as mitigation. That issue was heard and decided adversely to Henry in the first postconviction proceeding.

The circuit court also held that even if the ASAM policy statement was considered to be newly discovered evidence, it would not meet the second prong of the newly discovered evidence test — that it would probably result in a life sentence. We agree. First, Henry waived introduction of any mitigation at his penalty phase trial. This waiver was affirmed on direct appeal. Henry now argues that he did not want to introduce evidence of drug use or drug addiction at trial because it was viewed unfavorably at that time, but now would be viewed as favorable mitigation. However, because Henry consistently denied drug use and claimed that those who reported his drug use were liars, there is no indication that he rejected introduction of drug addiction at trial because it would have been viewed unfavorably. He also rejected introduction of any favorable mitigation that his family members and friends could have provided. Moreover, his trial counsel testified in the initial postconviction hearing that he personally believed drug addiction could be mitigating, that he attempted on more than one occasion to convince Henry that mitigation evidence was necessary, and he believed that the witnesses he subpoenaed would provide favorable mitigation for Henry. These attempts to present any favorable mitigation were flatly rejected.

Finally, even if the penalty phase jury were presented with evidence that Henry was addicted to crack cocaine or other substances, and that such addiction was a brain disorder, the circuit court was correct that the evidence would not probably produce a life sentence on retrial. Henry was convicted of two brutal murders in which he bludgeoned and burned the victims to death in a robbery. Against the advice of counsel, he took the stand and denied his guilt during trial — retelling his version of events involving masked gunmen — which version was clearly in conflict with his confession that he acted alone in killing the two victims. It was also inconsistent with the dying declaration of one of the victims that Henry was the assailant. The trial court found five strong aggrava-tors, including HAC and CCP. Thus, the circuit court was correct that even if Henry’s drug addiction and the revised ASAM definition of addiction as a brain disorder were admitted at trial, it is not probable that he would receive a life sentence.

CONCLUSION

Based on the foregoing, we affirm the circuit court’s order denying Henry’s successive motion for postconviction relief.

It is so ordered.

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

      . The original direct appeal opinion affirming Henry’s convictions and sentences, Henry v. State, 586 So.2d 1033 (Fla.1991), was vacated by the United States Supreme Court in Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992), and remanded for reconsideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992). In those cases, the Supreme Court held that a former standard jury instruction on the heinous, atrocious, or cruel aggravating circumstance was inadequate. On remand, this Court noted that in Henry’s trial, a special expanded instruction had been given which was not unconstitutionally vague. Thus, the death sentences were reaffirmed. See Henry v. State, 613 So.2d 429, 434 (Fla.1992), cert. denied, Henry v. Florida, 510 U.S. 1048, 114 S.Ct. 699, 126 L.Ed.2d 665 (1994).

      .The issues raised on direct appeal also included admission of the victim's dying declaration, the voluntary nature of Henry's statements to police, admission of photographs, alleged discovery violations, denial of certain jury instructions, whether the aggravators were proven, whether the trial court used an improper standard of proof for the mitigators, sufficiency of the evidence to prove aggrava-tors, challenges to the constitutionality of the death penalty statutes, and propriety of consideration of presentence investigation reports. All these claims were found to be without merit. We also found certain claims were not preserved and not fundamental error: failure to give an instruction on duress; improper prosecutorial comments; the requirement that to preserve first and last arguments, a defendant must forego presenting evidence; improper presentation of victim impact evidence; and allowing the State to proceed on alternative theories of premeditated and felony murder. See Henry, 613 So.2d at 432.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . On April 17, 2003, Henry filed a Supplement to his Motion to Vacate, raising two issues: (1) Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders the Florida capital sentencing scheme unconstitutional; and (2) execution by lethal injection is cruel and/or unusual punishment and violates Henry’s rights under the Eighth and Fourteenth Amendments to the United States Constitution. Both issues were appealed. This Court specifically addressed the Ring claim, finding it to be without merit because Ring is not retroactive in collateral proceedings. See Henry v. State, 937 So.2d 563, 575 (Fla.2006). Denial of the lethal injection claim was affirmed as part of the Court’s rejection of Henry’s general claim that Florida’s death penalty scheme is unconstitutional. See id. at 568 n. 4.


text:
    Darius Mark KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. SC13-1950.
    Supreme Court of Florida.
    Oct. 31, 2013.

      Robert T. Strain, Assistant Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appel-lee.
   PER CURIAM.

Darius Mark Kimbrough appeals an order from the Ninth Judicial Circuit denying his successive postconviction motion filed under Florida Rule of Criminal Procedure 3.851. For the reasons that follow, we affirm the circuit court’s order.

I. Background

Kimbrough is scheduled for execution on November 12, 2013, for the murder of Denise Collins. He “was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one.” Kimbrough v. State, 700 So.2d 634, 635 (Fla.1997), cert. denied, 523 U.S. 1028, 118 S.Ct. 1316, 140 L.Ed.2d 479 (1998). In 1991, Kimbrough entered the victim’s apartment through a second-floor sliding glass door and attacked and raped her. Id. at 635-36. The victim died from blunt injury to the face. Id. at 636.

This Court upheld the convictions and death sentence on direct appeal in 1997. Id. at 639. And, in 2004, this Court upheld the denial of postconviction relief and denied habeas relief. Kimbrough v. State, 886 So.2d 965 (Fla.2004). Kimbrough filed his current successive postconviction motion after Governor Scott signed a death warrant on October 4, 2013.

II. Analysis

In these successive postconviction proceedings, Kimbrough claims that Florida’s death penalty statute violates the Eighth Amendment’s evolving standards of decency because most states require a unanimous jury verdict to recommend a death sentence and because allegedly newly discovered evidence indicates that Florida witnessed an increase in death sentences in 2012 compared to the rest of the nation. We affirm the circuit court’s denial of relief.

This Court recently reviewed and rejected this same argument in Mann v. State, 112 So.3d 1158, 1162 (Fla.2013). As we explained in Mann, Kimbrough’s claim “is subject to our general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional.” 112 So.3d at 1162 (citing Parker v. State, 904 So.2d 370, 383 (Fla.2005) (“This Court has repeatedly held that it is not unconstitutional for a juiy to recommend death on a simple majority vote.”); Davis v. State, 859 So.2d 465, 479 (Fla.2003) (“This Court has repeatedly rejected [this] argument and held that a capital jury may recommend a death sentence by a majority vote.”)); see also Robards v. State, 112 So.3d 1256, 1267 (Fla.2013) (rejecting argument that death sentences based on seven-to-five jury recommendations are unconstitutional, arbitrary, and unreliable). Moreover, there was juror unanimity in Kimbrough’s case in regard to the prior violent felony aggravator. See Kimbrough, 700 So.2d at 636 (“To support the prior violent felony aggravator, the judge cited Kimbrough’s prior convictions for both burglary of a dwelling with battery therein and sexual battery.”).

Additionally, as the circuit court accurately noted in this case, “the various research studies cited by [Kimbrough] do not qualify as newly discovered evidence under the law governing newly discovered evidence.” See Foster v. State, — So.3d -, -, 2013 WL 5659482, *24 (Fla.2013) (“[N]ew research studies are not recognized as newly discovered evidence.” (citing Schwab v. State, 969 So.2d 318, 325 (Fla.2007); Rutherford v. State, 940 So.2d 1112, 1117 (Fla.2006))). Accordingly, the circuit court properly denied relief.

III. Conclusion

For the reasons expressed above, we affirm the order of the circuit court denying Kimbrough’s successive postconviction motion. No rehearing will be entertained by this Court, and the mandate shall issue immediately.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . Claims raised under rule 3.851 "may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Marek v. State, 8 So.3d 1123, 1127 (Fla.2009) (quoting Connor v. State, 979 So.2d 852, 868 (Fla.2007)).


text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.220(b).
    No. SC13-1702.
    Supreme Court of Florida.
    Oct. 31, 2013.
   PER CURIAM.

The Court, on its own motion, amends Florida Rule of Judicial Administration 2.220(b) (Conference of Circuit Court Judges). See Fla. R. Jud. Admin. 2.140(g)(1). The amendments are intended to bring the recently adopted rule into line with the Conference of Circuit Court Judges’ articles of incorporation and bylaws.

In In re Implementation of Judicial Branch Governance Study Group Recommendations — Amendments to the Florida Rules of Judicial Administration, 121 So.3d 1 (Fla.2012), the Court adopted new rule 2.220(b), along with a number of other amendments to the Florida Rules of Judicial Administration, in response to recommendations of the Judicial Branch Governance Study Group. The amendments were “intended to strengthen the governance and policy development structures of the Florida judicial branch, improve the effective and efficient management of the branch, and enhance communication within the branch.” Id. New rule 2.220(b) established by rule the Conference of Circuit Court Judges, which was originally created by statute. See § 26.55, Fla. Stat. (2012). The new rule was to become effective upon the repeal of the statute. Id. at 6.

The Court now further amends rule 2.220(b) to make various provisions of the rule consistent with the Conference’s articles of incorporation and bylaws. The amendments (1) recognize that the Conference membership includes retired circuit court judges who do not practice law; (2) reflect the existing officers and composition of the executive committee and the board of directors; and (3) add several purposes of the Conference not originally included in the rule.

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring and deletions are indicated by struck-through type. Rule 2.220(b), as amended here, shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 2.220. CONFERENCES OF JUDGES

(a) [No Change]

(b) Conference of Circuit Court Judges.

(1) Cr-eationOrganization. There shall be a “Conference of Circuit Court Judges of Florida,” consisting of the active and senferretired circuit judges of the several judicial circuits of the state, excluding retired judges practicing law.

(2) Purpose. The purpose of the conference shall be:

(A) the betterment of the judicial system of the state;

(B) the improvement of procedure and practice in the several courts;

(C) to conduct conferences and institutes for continuing judicial education and to provide forums in which the circuit court judges of Florida may meet and discuss mutual problems and solutions; and

(D) to provide input to the Unified Committee on Judicial Compensation on judicial compensation and benefit issues, and to assist the judicial branch in soliciting support and resources on these issues]»

(E) to report to the Florida Supreme Court recommendations as the conference may have concerning the improvement of procedure and practice in the several courts;

(F) to confer with the Florida Supreme Court regarding concerns the conference may have concerning the laws of this state affecting the administration of justice; and

(G) to provide to the Florida Legislature recommendations as the conference may have concerning laws of this state affecting the administration of justice.

(3) Officers. Management of the conference shall be vested in the officers of the conference, an executive committee, and a board of directors.

(A) The officers of the conference shall be the chair, chair-elect, secretary, and treasurer.

(i) the — president,—president-elect, immediate past president, — secretary, and treasurer, who shall ■■■be elected at-large; and

(ii) one vice-president -elected-from each'appellate court-district»

(B) The executive committee shall consist of the officers of the conference and an-executive secretar-ysuch other members as the conference shall determine.

(C) The board of directors shall consist of the executive committee and a member-elected from-each judicial cireuitmembership in one shall be identical to membership of the other.

(D)-(E) [No Change]

(4) [No Change]

(c) [No Change]

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . All comments must be filed with the Court on or before December 30, 2013. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    GRANADA LAKES VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. METRO-DADE INVESTMENTS CO., et al., Respondents.
    No. SC11-2590.
    Supreme Court of Florida.
    Oct. 31, 2013.

      John S. Penton, Jr. and Katie Merwin of Cole Scott Kissane, West Palm Beach, FL; Kristen A. Tajak, Cole Scott & Kissane, P.A., Miami, FL, for Petitioner.
    Denise V. Powers of Denise V. Powers, P.A., Coral Gables, Florida; Jeffrey P. Shapiro, Miami, FL; Jose Maria Herrera, Miami, Florida; and Eric Michael Glazer, Glazer & Associates, P.A., Hollywood, FL, for Respondents.
   PER CURIAM.

Granada Lakes Villas Condominium Association (“Granada”) argues that the Second District Court of Appeal in Metro-Dade Investments, Co. v. Granada Lakes Villas Condominium, Inc., 74 So.3d 593 (Fla. 2d DCA 2011), erred because sections 617.1432, 718.117, and 718.1124, Florida Statutes (2010), restrict a trial court’s inherent, equitable authority to appoint a receiver in an action involving a condominium association. For the reasons expressed below, we approve the Second District’s holding that these statutes do not restrict a trial court’s equitable authority to appoint a receiver.

I. FACTS

Metro-Dade Investments Company (“Metro-Dade”) was the developer of Granada Lakes Villas, which is a subdivision of a larger condominium complex known as Santa Barbara Landings in Collier County, Florida. Metro-Dade, 74 So.3d at 594. Metro-Dade still owns several of the condominium units in the complex. Id. Owners of the condominium units must pay fees and assessments to both the master association, Santa Barbara Landings Property Owner’s Association (“Santa Barbara”), and the condominium association, Granada. See id. Initially, it was agreed that Granada would collect all of the fees and assessments and then pay Metro-Dade and Santa Barbara the related expenses for the common areas. See id. However, a financial dispute arose, and in 2009, Metro-Dade and Santa Barbara filed an amended complaint for damages and other relief against Granada and other individuals associated with Granada, alleging that Granada failed to pay Metro-Dade and Santa Barbara the related expenses after collecting the joint fees and assessments. See id. at 593-94. According to the complaint, as a result of Granada’s failure to pay, Metro-Dade and Santa Barbara were unable to pay for utilities and maintenance expenses for the common areas of Granada Lakes Villas, which has resulted in ongoing health nuisances on the property.

Subsequently, in 2010, Metro-Dade filed an emergency motion for the appointment of a receiver over Granada in order to facilitate the collection of the fees and assessments from the unit owners and to perform a proper accounting. Id. at 594. Initially, the trial court orally granted the motion to appoint a receiver. Id. However, upon rehearing, the trial court determined that it lacked the statutory authority to appoint a receiver in this case. Id. Specifically, the trial court acknowledged that it “has been unable, [despite] the fact that this case was filed in 2009[,] to have an accounting produced by [Granada]” and “a receiver would be of great assistance to both the [c]ourt and the parties[,]” but held that “[t]here is no statutory basis which authorizes the [c]ourt to appoint a receiver.” “Florida Statute 718 specifically defines the circumstances upon which the [c]ourt may appoint a receiver[, and t]he circumstances that confront this [c]ourt are-not enumerated.”

On appeal, the Second District reversed and remanded for the trial court to exercise its discretion on whether to appoint a receiver because “the trial court erred as a matter of law because its right to appoint a receiver in this instance is inherent in a court of equity, not a statutorily created right.” Id. at 595. Specifically, the Second District found that sections 617.1432, 718.117, and 718.1124 do not “restrict a trial court’s broad, equitable authority to appoint a receiver; rather, the statutes merely cite to specific instances when a receiver may be appointed.” Id. We approve the Second District’s decision.

II. ANALYSIS

A receiver is “[a] disinterested person appointed by a court, or by a corporation or other person, for the protection or collection of property that is the subject of diverse claims.” Black’s Law Dictionary 1383 (9th ed. 2009). The power to appoint a receiver has long been recognized as one that is inherent in a court of equity, which “lies in the sound discretion of the chancellor to be granted or withheld according to the facts and circumstances of the particular case.” Ins. Mgmt., Inc. v. McLeod, 194 So.2d 16, 17 (Fla. 3d DCA 1966); see also Lehman v. Trust Co. of Am., 57 Fla. 473, 49 So. 502, 503-04 (1909) (acknowledging that the power to appoint a receiver lies in the court’s discretion and listing certain principles that a court should consider when exercising its equitable power to appoint a receiver); Edenfield v. Crisp, 186 So.2d 545, 549 (Fla. 2d DCA 1966) (“The power to appoint a receiver is always one that is inherent in a [c]ourt of equity.”).

Equitable receiverships are a creation of common law, which this Court has stated should be reserved for cases involving fraud, self-dealing, or waste. See McAllister Hotel v. Schatzberg, 40 So.2d 201, 202-03 (Fla.1949); Apalachicola N.R. Co. v. Sommers, 79 Fla. 816, 85 So. 361, 362 (1920) (explaining that appointment of a receiver is proper to prevent fraud, destruction or loss of property, or self-dealing).

On the other hand, a statute can authorize the appointment of a receiver, and statutory receiverships may serve a different role or purpose than an equitable receivership. For instance, the Florida Statutes authorize the appointment of a receiver in several situations that do not involve any of the common law grounds of fraud, self-dealing, or waste for the appointment of an equitable receiver. See, e.g., § 393.0678, Fla. Stat. (2012) (authorizing the appointment of a receiver for a “residential habilitation center or a group home facility owned and operated by a corporation or partnership” under certain circumstances); § 607.1432, Fla. Stat. (2012) (authorizing the appointment of a receiver for the purpose of winding up and liquidating a corporation); § 658.79, Fla. Stat. (2012) (authorizing the appointment of a receiver for an insolvent bank for the purpose of taking charge of the assets and affairs of the bank).

In this case, Granada contends that the court’s power to appoint a receiver in cases involving a non-profit condominium association like Granada is limited to the enumerated circumstances set forth in sections 617.1432, 718.117, and 718.1124, Florida Statutes. Specifically, section 718.1124(1) provides that a unit owner may petition the court for the appointment of a receiver to manage the affairs of the condominium association if the “association fails to fill vacancies on the board of administration sufficient to constitute a quorum.” Section 718.117(7)(a) provides that if there is a natural disaster and members of the condominium association’s board of directors cannot be found, fail to act, or are unable or refuse to act, any interested person can file a petition “to determine the identity of the directors or ... to appoint a receiver to conclude the affairs of the association.” And section 617.1432 provides that a receiver may be appointed for the purpose of liquidating and winding up the affairs of a non-profit corporation. However, nothing in the statutory language of these sections expressly prohibits or even implies that these enumerated circumstances are the only instances in which a court may appoint a receiver in cases involving a non-profit condominium association. Rather, instead of restricting a court’s power to appoint a receiver, these statutory provisions authorize a court to appoint a receiver under certain enumerated circumstances that do not involve any of the common law grounds for the appointment of an equitable receiver.

Furthermore, this conclusion is supported by the fact that there are multiple cases in which a receiver has been appointed over a condominium association in circumstances that do not fall within those enumerated in sections 617.1432, 718.117, and 718.1124. See, e.g., Inverrary Gardens Condo. I Ass’n, Inc. v. Spender, 939 So.2d 1159, 1160 (Fla. 4th DCA 2006) (explaining that a receiver was appointed to manage the affairs of a condominium association due to allegations that “under Spender’s management [the condominium association] was engaged in acts of gross mismanagement, neglect, fraud, and dishonesty”); Buckley Towers Condo., Inc. v. Buchwald, 340 So.2d 1206, 1207-09 (Fla. 3d DCA 1976) (finding that the trial court did not abuse its discretion in appointing a receiver to manage and distribute funds held by the association because the association continued to refuse to pay the monies owed to the appellee despite a court order instructing it to do so).

Accordingly, we find that a court’s inherent equitable power to appoint a receiver over a non-profit condominium association like Granada is not limited to the enumerated categories set forth in sections 617.1432, 718.117, 718.1124.

III. CONCLUSION

For the reasons explained above, we approve the decision of the Second District in Metro-Dade, and disapprove the Third District’s decision in All Seasons to any extent that it is inconsistent with this opinion.

It is so ordered.

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

      . We have jurisdiction based on express and direct conflict with the Third District Court of Appeal's decision in All Seasons Condominium Ass’n, Inc. v. Busca, 8 So.3d 434 (Fla. 3d DCA 2009). See art. V, § 3(b)(3), Fla. Const.

      . We review pure questions of law de novo. S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005).