text:
    In re AMENDMENTS TO FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS.
    No. SC13-305.
    Supreme Court of Florida.

      July 3, 2014.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Supreme Court Approved Family Law Forms. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Previously, in this case, the Court adopted three new forms relating to a new cause of action for protection against stalking and revisions to ten existing forms regarding domestic, repeat, dating, and sexual violence. The new and revised forms were necessitated by then recent legislation. See ch.2012-158, §§ 3, 4, Laws of Fla. (amending chapter 784, Florida Statutes, and creating cause of action for an injunction for protection against stalking) (effective October 1, 2012). The new and amended forms were published for comment.

After consideration of the comments filed and receiving input from the Advisory Workgroup on the Florida Supreme Court Approved Family Law Forms (Work-group), we adopt additional amendments to forms 12.980(b)(1) and 12.980(u). The “Findings” section of Form 12.980(b)(1) (Order Setting Hearing on Petition for Injunction Without Issuance of an Interim Temporary Injunction), is amended to better reflect the findings that should be made by the trial court when it denies an ex parte temporary injunction and sets a hearing on the petition for an injunction. Form 12.980(u) (Temporary Injunction for Protection Against Stalking), is amended to delete a provision requiring the respondent “to participate in treatment, intervention, or counseling services to be paid for by the respondent.”

Accordingly, Florida Supreme Court Approved Family Law Forms 12.980(b)(1) and 12.980(u) are amended, as set forth in the appendix to this opinion. The amended forms are fully engrossed and ready for use. The forms may also be accessed and downloaded from the Florida State Courts’ website at www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/family-law-forms.stml. By adoption of the amended forms, we express no opinion as to their correctness or applicability. The forms shall become effective immediately upon release of this opinion.

It is so ordered.

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

APPENDIX

ORDER SETTING HEARING ON PETITION FOR INJUNCTION FOR PROTECTION AGAINST ( ) DOMESTIC VIOLENCE ( ) REPEAT VIOLENCE ( ) DATING VIOLENCE ( ) SEXUAL VIOLENCE ( ) STALKING WITHOUT ISSUANCE OF AN INTERIM TEMPORARY INJUNCTION

A Petition for Injunction for Protection Against: Domestic Violence filed under section 741.30, Florida Statutes; Repeat, Dating, or Sexual Violence filed under section 784.046, Florida Statutes; or Stalking filed under section 784.0485, Florida Statutes, has been reviewed. This Court has jurisdiction of the parties and of the subject matter. Upon review of the Petition, this Court concludes that a Temporary Injunction for Protection Against Domestic Violence; Repeat, Dating, or Sexual Violence; or Stalking, pending the hearing scheduled below, NOT be entered at this tíme but that an Injunction may be entered after the hearing, depending on the findings made by the Court at that time.

FINDINGS

The Court finds that based upon the facts, as stated in the Petition alone and without a hearing on the matter, there is no appearance of an immediate and present danger of domestic violence; repeat, dating, or sexual violence; or stalking, or that stalking exists. Therefore, there is not a sufficient factual basis upon which the court can enter a Temporary Injunction for Protection Against Domestic, Repeat, Dating, or Sexual Violence, or Stalking, prior to a hearing. A hearing is scheduled on the Petition for Injunction for Protection Against Domestic, Repeat, Dating, or Sexual Violence, or Stalking, in Section II of this Order. Petitioner may amend or supplement the Petition at anytime to state further reasons why a Temporary Injunction should be ordered which would be in effect until the hearing scheduled below.

NOTICE OF HEARING

Petitioner and Respondent are ordered to appear and testify at a hearing on the Petition for Injunction

Florida Supreme Court Approved Family Law Form 12.980(b)(1), Order Setting Hearing on Petition for Injunction for Protection Against Domestic Violence, Repeat Violence, Dating Violence, Sexual Violence, or Stalking, without Issuance of an Interim Temporary Injunction (07/14)

for Protection Against Domestic, Repeat, Dating, or Sexual Violence, or Stalking on:

{date}_,at_a.m./p.m. at {location}_

at which time the Court will consider whether a Final Judgment of Injunction for Protection Against Domestic, Repeat, Dating, or Sexual Violence, or Stalking should be entered. If entered, the injunction will remain in effect until a fixed date set by the Court or until modified or dissolved by the Court. At the hearing, the Court will determine whether other things should be ordered, Including, for example, such matters as time-sharing and support.

If Petitioner and/or Respondent do not appear, orders may be entered, including entry of a permanent injunction and the imposition of court costs. Petitioner and Respondent will be bound by the terms of any Injunction or order issued at the final hearing.

IF EITHER PETITIONER OR RESPONDENT DO NOT APPEAR AT THE FINAL HEARING, HE OR SHE WILL BE BOUND BY THE TERMS OF ANY INJUNCTION OR ORDER ISSUED IN THIS MATTER.

All witnesses and evidence, if any, must be presented at this time. In cases where temporary support issues have been alleged In the pleadings, each party is ordered to bring his or her financial affidavit (Florida Family Law Rules of Procedure Form 12.902(b) or (c)), tax return, pay stubs, and other evidence of financial income to the hearing.

NOTICE: Because this is a civil case, there is no requirement that these proceedings be transcribed at public expense.

YOU ARE ADVISED THAT IN THIS COURT:

a. _a court reporter is provided by the court.

b. _electronic recording only is provided by the court. A party may arrange in advance for the services of and provide fora court reporter to prepare a written transcript of the proceedings at that party's expense.

c. _In repeat, dating, and sexual violence cases, no electronic recording or court reporting services are provided by the court. A party may arrange in advance for the services of and provide for a court reporter to prepare a written transcript of the proceedings at that party's expense.

A RECORD, WHICH INCLUDES A TRANSCRIPT, MAY BE REQUIRED TO SUPPORT AN APPEAL. THE PARTY SEEKING THE APPEAL IS RESPONSIBLE FOR HAVING THE TRANSCRIPT PREPARED BY A COURT REPORTER. THE TRANSCRIPT MUST BE FILED WITH THE REVIEWING COURT OR THE APPEAL MAY BE DENIED

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provisions of certain assistance. Please contact:

Florida Supreme Court Approved Family Law Form 12.980(b)(1), Order Setting Hearing on Petition for Injunction for Protection Against Domestic Violence, Repeat Violence, Daring Violence, Sexual Violence, or Stalking, without Issuance of an Interim Temporary Injunction (07/14)

lidentify applicable court personnel by name, address, and telephone number} at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.

Nothing in this order limits Petitioner's rights to dismiss the petition.

DONE AND ORDERED in_, Florida, on_.

Florida Supreme Court Approved Family Law Form 12.980(b)(1), Order Setting Hearing on Petition for Injunction for Protection Against Domestic Violence, Repeat Violence, Dating Violence, Sexual Violence, or Stalking, without Issuance of an Interim Temporary Injunction (07/14)

TEMPORARY INJUNCTION FOR PROTECTION AGAINST STALKING

The Petition for Injunction for Protection Against Stalking under Section 784.0485, Florida Statutes, and other papers filed in this Court have been reviewed. Under the laws of Florida, the Court has jurisdiction of the Petitioner and the subject matter, and has jurisdiction of the Respondent upon service of the temporary injunction. The term Petitioner as used In this injunction includes the person on whose behalf this injunction is entered.

It is intended that this protection order meet the requirements of 18 U.S.C. Section 2265 and therefore intended that it be accorded full faith and credit by the court of another state or Indian tribe and enforced as if it were the order of the enforcing state or of the Indian tribe.

SECTION I. NOTICE OF HEARING

Because this Temporary Injunction for Protection Against Stalking has been issued without notice to Respondent, Petitioner and Respondent are instructed that they are scheduled to appear and testify at a hearing regarding this matter on {date}_, at_a.m./p.m., when the Court will consider whether it should issue a Final Judgment of Injunction for Protection Against Stalking, which shall remain in effect until modified or dissolved by the Court, and whether other things should be ordered. The hearing will be before The Honorable {name}_, at the following address: _, Florida. If Petitioner and/or Respondent do not appear, this temporary injunction may be continued in force, extended, or dismissed, and/or additional orders may be granted, including entry of a permanent injunction and the imposition of court costs. All witnesses and evidence, if any, must be presented at this time. Petitioner and Respondent will be bound by the terms of any injunction or order issued at the final hearing.

Florida Supreme Court Approved Family Law Form 12.980(u), Temporary Injunction for Protection Against Stalking (07/14)

IF EITHER PETITIONER OR RESPONDENT DO NOT APPEAR AT THE FINAL HEARING, HE OR SHE WILL BE BOUND BY THE TERMS OF ANY INJUNCTION OR ORDER ISSUED IN THIS MATTER.

NOTICE: Because this is a civil case, there is no requirement that these proceedings be transcribed at public expense.

YOU ARE ADVISED THAT IN THIS COURT:

a._ a court reporter is provided by the court.

b._ electronic recording only is provided by the court. A party may arrange in advance for the services of and provide for a court reporter to prepare a written transcript of the proceedings at that party's expense.

A RECORD, WHICH INCLUDES A TRANSCRIPT, MAY BE REQUIRED TO SUPPORT AN APPEAL. THE PARTY SEEKING THE APPEAL IS RESPONSIBLE FOR HAVING THE TRANSCRIPT PREPARED BY A COURT REPORTER. THE TRANSCRIPT MUST BE FILED WITH THE REVIEWING COURT OR THE APPEAL MAY BE DENIED.

SECTION II. FINDINGS

The statements made under oath by Petitioner make it appear that Section 784.0485, Florida Statutes, applies to the parties, and that stalking exists.

SECTION III. TEMPORARY INJUNCTION AND TERMS

This Injunction shall be in effect until the hearing set above and in no event for longer than 15 days, unless extended by court order. If a final order of injunction is issued, the terms of this temporary injunction will be extended until service of the final injunction is effected upon Respondent. This injunction is valid and enforceable in all counties of the State of Florida. The terms of this injunction may not be changed by either party alone or by both parties together. Only the Court may modify the terms of this injunction. Either party may ask the Court to change or end this injunction.

Florida Supreme Court Approved Family Law Form 12.980(u), Temporary Injunction for Protection Against Stalking (07/14)

Willful violation of the terms of this injunction, such as: committing an act of stalking against Petitioner; going to or being within 500 feet of Petitioner's residence, place of employment, school, or other place prohibited in this injunction; knowingly and intentionally coming within 100 feet of Petitioner's motor vehicle, whether or not that vehicle is occupied; committing any other violation of this injunction through an intentional unlawful threat, word or act to do violence to Petitioner; telephoning, contacting or communicating with Petitioner, unless indirect contact through a third party is specifically allowed by this injunction; defacing or destroying Petitioner’s personal property, including Petitioner’s motor vehicle; or refusing to surrender firearms or ammunition if ordered to so by the Court, constitutes a misdemeanor of the first degree punishable as provided by Sections 775.082 and 775.083, Florida Statutes.

Any party violating this injunction may be subject to civil or indirect criminal contempt proceedings, including the imposition of a fine or imprisonment, and also may be charged with a crime punishable by a fine, jail, or both, as provided by Florida Statutes.

ORDERED and ADJUDGED:

1. Prohibited Actions. Respondent shall not commit, or cause any other person to commit, any acts of stalking against Petitioner, including stalking, cyberstalking, aggravated stalking, or any criminal offense resulting in physical injury or death. Respondent shall not commit any other violation of this injunction through an intentional unlawful threat, word, or act to do violence to Petitioner.

2. No Contact. Respondent shall have no contact with the Petitioner unless otherwise provided in this section.

a. Unless otherwise provided herein, Respondent shall have no contact with Petitioner. Respondent shall not directly or indirectly contact Petitioner in person, by mail, e-mail, fax, telephone, through another person, or in any other manner, including any electronic means or use of social media. Further, Respondent shall not contact or have any third party contact anyone connected with Petitioner's employment or school to inquire about Petitioner or to send any messages to Petitioner. Unless otherwise provided herein, Respondent shall not go to, in, or within 500 feet of:

Florida Supreme Court Approved Family Law Form 12.980(u), Temporary Injunction for Protection Against Stalking (07/14)

SECTION V. DIRECTIONS TO LAW ENFORCEMENT OFFICER IN ENFORCING THIS INJUNCTION

(Unless ordered otherwise by the judge, all provisions in this injunction are considered mandatory provisions and should be interpreted as part of this injunction.)

1. The Sheriff of_County, or any other authorized law enforcement officer, is ordered to serve this temporary injunction upon Respondent as soon as possible after its issuance.

2. This injunction is valid and enforceable in all counties of the State of Florida. Violation of this injunction should be reported to the appropriate law enforcement agency. Law enforcement officers of the jurisdiction in which a violation of this injunction occurs shall enforce the provisions of this injunction and are authorized to arrest without a warrant pursuant to Section 901.15, Florida Statutes, for any violation of its provisions, which constitutes a criminal act under Section 784.0487, Florida Statutes.

3. THIS INJUNCTION IS ENFORCEABLE IN ALL COUNTIES OF FLORIDA AND LAW ENFORCEMENT OFFICERS MAY EFFECT ARRESTS PURSUANT TO SECTION 901.15(6), FLORIDA STATUTES. The arresting agent shall notify the State Attorney's Office immediately after arrest.

4. Reporting alleged violations. If Respondent violates the terms of this injunction and has not been arrested. Petitioner may contact the clerk of the circuit court of the county in which the violation is alleged to have occurred. The clerk shall assist Petitioner in preparing an affidavit in support of reporting the violation or direct Petitioner to the office operated by the court that has been designated by the chief judge of that circuit as the central intake point for violations of injunctions for protection where Petitioner can receive assistance in the preparation of the affidavit in support of the violation. The affidavit shall be immediately forwarded by the office assisting Petitioner to the state attorney of that circuit and to the judge designated by the chief judge as the recipient of affidavits of violations of an Injunction. Procedures relating to reporting alleged violations are governed by section 784.0487, Florida Statutes.

Florida Supreme Court Approved Family Law Form 12.980(u), Temporary Injunction for Protection Against Stalking (07/14)

COPIES TO:

Sheriff of_County

Petitioner:

_by U. S. Mail

_by hand delivery in open court

Respondent:

_forwarded to sheriff for service

_State Attorney's Office

_Other:

I CERTIFY the foregoing is a true copy of the original Temporary injunction for Protection Against Stalking as it appears on file in the office of the Clerk of the Circuit Court of_ County, Florida, and that I have furnished copies of this order as indicated above.

Florida Supreme Court Approved Family Law Form 12,980(u), Temporary Injunction for Protection Against Stalking (07/14)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eddie Wayne DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. SC14-1178.
    Supreme Court of Florida.
    July 7, 2014.

      Ali Andrew Shakoor and Richard E. Ki-ley, Assistant Capital Collateral Regional Counsels — Middle Region, Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Stephen D. Ake and Timothy A. Freeland, Assistant Attorneys General, Tampa, FL, for Appellee.
   PER CURIAM.

Eddie Wayne Davis, a prisoner under sentence of death for whom a death warrant has been signed, appeals the circuit court’s denial of his successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851 after his death warrant was signed. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the circuit court’s denial of postconviction relief. In addition, we deny Davis’ motion for stay of execution, which he filed on June 23, 2014.

BACKGROUND

Davis was convicted of the first-degree murder of eleven-year-old Kimberly Waters, as well as burglary with assault or battery, kidnapping a child under thirteen years of age, and sexual battery on a child under twelve years of age. The murder conviction was based on Davis’ confession and several pieces of incriminating evidence linking Davis to the crime, including DNA evidence that revealed Davis’ DNA matched scrapings taken from the victim’s fingernails and blood on boots found in Davis’ recently vacated trailer that was consistent with the victim’s blood. After the jury unanimously recommended the death penalty, the trial court imposed a sentence of death for the murder conviction. The trial court found that the following aggravators applied to the murder: (1) the murder was committed by a person under sentence of imprisonment; (2) the murder was committed during the commission of a kidnapping and sexual battery; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (4) the murder was especially heinous, atrocious, or cruel. Davis v. State, 698 So.2d 1182, 1187 (Fla.1997). As statutory mitigation, the trial court found that the murder was committed “while the defendant was under the influence of extreme mental or emotional disturbance and gave this factor great weight.” Id. In addition the trial court found several non-statutory mitigating circumstances.

This Court affirmed Davis’ convictions and death sentence on direct appeal. Id. at 1194. Davis subsequently filed a motion for postconviction relief, which the circuit court denied following an evidentiary hearing. On appeal, this Court affirmed the circuit court’s denial of postconviction relief and denied Davis’ accompanying petition for a writ of habeas corpus. Davis v. State, 875 So.2d 359, 374 (Fla.2003). Additionally, Davis sought habeas corpus relief in the federal courts, which was also denied. Davis v. McNeil, No. 8:04-cv-2549-T-27MAP, 2009 WL 860628, at *44 (M.D.Fla. Mar. 30, 2009). Following the federal district court’s denial of his petition for a writ of habeas corpus, Davis sought a certificate of appealability, which was subsequently denied by the Eleventh Circuit Court of Appeals. Davis v. Sec’y Dep’t of Corr., No. 09-11907-P (11th Cir. Sept. 8, 2009).

On June 2, 2014, Governor Rick Scott signed a death warrant for Davis, and the execution was set for July 10, 2014. Subsequently, Davis filed a successive motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.851, in which he raised the following three claims: (1) an as-applied challenge to Florida’s lethal injection protocol based on his allegation that he suffers from the medical condition porphyria; (2) that he is not eligible for the death penalty because, although age twenty-five at the time of the murder, he was “the functional equivalent of a child”; and (3) that his clemency proceedings were unconstitutional. The circuit court denied each of Davis’ claims without holding an evidentiary hearing. In summarily denying Davis’ challenge to Florida’s lethal injection protocol, the circuit court stated that Davis had “not met his burden to demonstrate that the risk to him is sure or very likely to cause serious illness and needless suffering” because Davis had “not provided the Court with any evidence that the injection of Midazo-lam [as the first drug in the protocol] will not have the desired effect of rendering the Defendant unconscious and insensate and thereby eliminating any pain on the part of the Defendant as a result of his possible condition of suffering from Por-phyria.”

Davis appealed the circuit court’s order, arguing that the circuit court erred in summarily denying his three claims, and also filed a motion for stay of execution. Along with his motion for stay of execution, Davis attached an affidavit, which he had not produced during the circuit court proceedings, alleging that he suffers from the medical condition porphyria, and that the use of midazolam hydrochloride as the first drug of Florida’s lethal injection protocol, as applied to him, is unconstitutional. Specifically, the affidavit of Dr. Joel Zivot stated that it is his expert medical opinion “that a substantial risk exists that, during the execution, Mr. Davis will suffer from extreme or excruciating pain as a result of abdominal pain, tachycardia, hypertension, nausea, and vomiting.” Based on the allegations in the affidavit and our constitutional obligation to ensure that the method of lethal injection in this state comports with the Eighth Amendment, we relinquished jurisdiction to the circuit court, consistent with our prior decisions in Howell v. State, 133 So.3d 511, 515 (Fla.), cert. denied, — U.S.—, 134 S.Ct. 1376, 188 L.Ed.2d 372 (2014), and Henry v. State, 134 So.3d 938, 944 (Fla.), cert. denied, — U.S. —, 134 S.Ct. 1536, 188 L.Ed.2d 466 (2014), to permit the parties and the circuit court to address the allegations in Dr. Zivot’s affidavit, as related to Davis’ as-applied challenge. See Davis v. State, No. SC14-1178 (Fla.Sup.Ct. order filed June 26, 2014). After holding a hearing and taking testimony, the circuit court ultimately denied Davis’ claim.

In addition to his claim on appeal regarding the circuit court’s denial of his as-applied challenge to Florida’s lethal injection protocol, Davis also asserts that it was error for the circuit court to allow the State’s expert, Dr. Roswell Lee Evans, to render an expert opinion regarding Davis’ as-applied challenge. Further, Davis also appeals the circuit court’s summary denial of his claims regarding his eligibility for the death penalty and the constitutionality of his clemency proceedings. For the reasons that follow, we affirm the postconviction court’s denial of relief and deny Davis’ motion for stay of execution.

ANALYSIS

Before this Court, Davis argues that the circuit court erred in denying his as-applied challenge to Florida’s lethal injection protocol, and that the circuit court erred in summarily denying his remaining two claims: that he is not eligible for the death penalty because, although age twenty-five at the time of the murder, he “was the functional equivalent of a child” and that his constitutional rights were violated during the clemency proceedings. We address each claim in turn.

As-Applied Challenge to Florida’s Lethal Injection Protocol

In his first issue on appeal, Davis argues that the circuit court erred in denying his as-applied challenge to Florida’s lethal injection protocol. Davis contends that because he allegedly suffers from a medical condition called porphyria, the use of midazolam hydrochloride as the first drug of Florida’s lethal injection protocol, as applied to him, is unconstitutional. “[Mjixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Henry, 134 So.3d at 946 (quoting Connor v. State, 803 So.2d 598, 605 (Fla.2001)).

As this Court has repeatedly recognized, “in order to prevail on an Eighth Amendment challenge, a claimant must show that ‘the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.’ ” Howell, 133 So.3d at 521 (quoting Pardo v. State, 108 So.3d 558, 562 (Fla.2012)). “In other words, ‘there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.’” Id. (quoting Pardo, 108 So.3d at 562). “This heavy burden is borne by the defendant— not the State.” Id.

As an initial matter, Davis contends that it was error for the circuit court to allow the State’s expert, Dr. Evans, to testify with respect to Davis’ as-applied challenge to Florida’s lethal injection protocol. Specifically, Davis asserts that because Dr. Evans is not an anesthesiologist and has no experience treating patients with porphyria or in administering midazo-lam, his testimony on Davis’ as-applied challenge was pure speculation.

With respect to when the introduction of expert testimony is proper, section 90.702, Florida Statutes (2013), provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

This Court has previously stated that, “[t]he qualification of a person as an expert is within the sound discretion of the trial judge.” Penalver v. State, 926 So.2d 1118, 1134 (Fla.2006). Further, a trial court “has broad discretion in determining the range of the subjects on which an expert can testify, and the trial judge’s ruling will be upheld absent a clear error.” Id.

The record indicates that Dr. Evans’ educational background, academic experience, and clinical experience were presented prior to his testimony. Although defense counsel objected to Dr. Evans being called as an expert in pharmacology, the circuit court overruled defense counsel’s objection after allowing the defense to undertake voir dire and hearing additional testimony regarding Dr. Evans’ qualifications. The record demonstrates that Dr. Evans’ background along with his review of pertinent scientific literature allowed him to assist the finder of fact in addressing Davis’ as-applied challenge to Florida’s lethal injection protocol. Accordingly, we conclude that it was not error for the circuit court to allow Dr. Evans to testify as an expert in this case with respect to Davis’ as-applied challenge to Florida’s lethal injection protocol. Alternatively, even if the circuit court did not consider Dr. Evans’ testimony, Davis would still be unable to carry his burden of proof for this claim because Dr. Zivot failed to demonstrate that the injection of midazolam, as the first drug in the lethal injection protocol, would not render Davis unconscious and insensate prior to him experiencing any possible symptoms of a porphyria attack.

At the June 30, 2014, hearing, the circuit court assumed, for purposes of this claim, that Davis suffers from the medical condition alleged in Dr. Zivot’s affidavit, even though no finding was made to this effect. In support of his claim, Davis called Dr. Zivot, the Medical Director of the Car-diothoracic Intensive Care Unit at Emory University Hospital and a faculty member of the Department of Anesthesiology and Surgery at Emory University School of Medicine. The circuit court summarized Dr. Zivot’s testimony as follows: “Dr. Zi-vot testified that, in his opinion, the injection of 500 mg of midazolam will cause an increased accumulation of porphyrin in Mr. Davis’ tissues and the possible acute onset of porphyria symptoms including abdominal pain, tachycardia, high blood pressure, nausea, possible vomiting and resulting pain from those symptoms.”

In response, the State called Dr. Evans, a doctor of pharmacology who is a dean and professor at the Harrison School of Pharmacy at Auburn University. The circuit court summarized Dr. Evans’ testimony as follows:

Dr. Evans testified that the injection of midazolam will cause the Defendant to go into a state of unconsciousness within the time it takes for a person to count to ten and then backwards to zero. A person injected with 500 mg of mi-dazolam will be totally unconscious within two to three minutes and in a comatose state soon thereafter. Dr. Zivot agreed that the person injected with the large dose [of] midazolam will be unconscious within two to three minutes.

After considering this testimony and argument from the parties, the circuit court denied Davis’ as-applied challenge, rejecting the claim that Davis’ execution would violate the Eighth Amendment:

In this case, the Defendant has not met his heavy burden to establish that he is “sure or very likely ” to experience serious illness or needless suffering. The very purpose of the initial injection of midazolam is to render the Defendant unconscious before further proceeding with the execution. There is a chance that the Defendant may suffer an acute onset of porphyria by an accumulation of porphyrin in his tissues which could lead to the onset of pain but, based on the evidence presented, it is the Court’s conclusion that the effects of midazolam will have rendered the Defendant unconscious and probably comatose by the time there is any risk of pain. The Defendant will be both unconscious and insensate before he would experience any possible onset of pain or a porphyria attack.

We conclude that the circuit court’s factual findings are supported by competent, substantial evidence, and that the circuit court did not err in its legal conclusions. Dr. Evans testified that having porphyria will not “interfere with [Davis’] ability to be placed unconscious and rendered insensate” by the injection of midazolam. Dr. Evans further testified that midazolam will render an individual unconscious within the span of time necessary to count down from ten to one, and would effectively place an individual in a coma within “5 to 10 minutes.” Dr. Zivot similarly testified that fifty milligrams of midazolam, which is ten times less than the dose administered under Florida’s lethal injection protocol, would render an individual unconscious within “a matter of a few minutes.”

Although Dr. Zivot testified that the amount of midazolam contemplated by the execution protocol “will lead to a porphyria crisis,” and a porphyria attack could “potentially” occur within minutes of the introduction of midazolam, Dr. Zivot did not present any evidence that this result was sure or very likely to occur. In fact, Dr. Zivot’s testimony was directly refuted by Dr. Evans, who stated, in discussing how a porphyria attack proceeds, that “regardless of what drug is inducing the increased production of porphyrin, it’s not an immediate response.” Dr. Evans stated that it was his professional opinion that it was “highly unlikely” that Davis would suffer from the symptoms of a porphyria attack before the onset of the midazolam and, when asked whether an attack could take place within minutes, responded, “I don’t think so. I think you’re talking about hours and maybe days.” The circuit court credited Dr. Evans’ testimony that any possible porphyria attack would occur, if at all, only after Davis was rendered unconscious and insensate by the injection of midazolam.

Davis has not demonstrated that Florida’s lethal injection protocol — as applied to him — violates the Eighth Amendment to the United States Constitution because he has not shown that allegedly suffering from porphyria creates a “substantial risk of serious harm.” Howell, 133 So.3d at 521. Specifically, Davis has not met his “heavy burden” to show that the injection of midazolam in the amount prescribed by the lethal injection protocol will not render him unconscious and insensate before he suffers any of the effects of a possible porphyria attack.

Accordingly, the postconviction court did not err in denying Davis’ as-applied challenge to Florida’s lethal injection protocol, and we affirm the circuit court’s denial of relief. Additionally, for the same reasons that we conclude the circuit court did not err in denying relief on this claim, we deny Davis’ motion for stay of execution, which is premised on the same as-applied challenge to Florida’s lethal injection protocol. See Buenoano v. State, 708 So.2d 941, 951 (Fla.1998) (explaining that a stay of execution on a successive motion for postconviction relief is warranted only where there are substantial grounds upon which relief might be granted).

Ineligibility for the Death Penalty

In Davis’ second claim on appeal, he asserts that he is ineligible for the death penalty, relying on allegedly newly discovered evidence regarding the effects of alcoholism and sexual abuse on brain development in children, and the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183,161 L.Ed.2d 1 (2005), which held that “the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.” Although he acknowledges that he was actually twenty-five years old when he committed the crimes, Davis contends that he “was the functional equivalent of a child” because he “likely had the mind of a juvenile” as opposed to his actual chronological age, and thus, his execution would be unconstitutional.

In addressing a similar constitutional challenge to a defendant’s death sentence premised on Roper, this Court stated in Schoenwetter v. State, 46 So.3d 535, 561 (Fla.2010), that we have “consistently rejected such claims in cases where the defendant was not below eighteen years of age at the time of the criminal offense.” Thus, because this Court has held that “Roper only prohibits the execution of those defendants whose chronological age is below eighteen,” Hill v. State, 921 So.2d 579, 584 (Fla.2006), Davis’ challenge is without merit.

While Davis acknowledges that he was over the age of eighteen at the time of the crimes, he nevertheless asks this Court to reconsider its precedent on the issue based on allegedly newly discovered evidence, consisting of recently published studies addressing the effects of alcoholism and sexual abuse on brain development, that he asserts illustrate that he “was the functional equivalent of a child,” which renders him ineligible for the death penalty. Davis also “requests a stay from execution, and an evidentiary hearing to litigate the weight to be afforded the statutory and non-statutory mitigators related to age and maturity levels” in light of the recently published studies.

After thoroughly reviewing the record, we cannot find any indication that Davis ever previously argued or presented any evidence regarding his claim that he was the “functional equivalent of a child” at the time of the murder. At trial, Davis’ theory of mitigation, as found by the trial court, was that he committed the murder while he was under the influence of an extreme mental or emotional disturbance. See Davis, 698 So.2d at 1187. In finding the existence of this mitigating circumstance, the trial court stated that

it is apparent to this Court the defendant came from a dysfunctional family; the defendant is an alcoholic, with low self-esteem; the defendant had an abused, neglected childhood; the defendant has had learning disabilities, which he has overcome; the defendant is immature for his age; the defendant may have an anti-social personality disorder; the defendant may have suffered from post-traumatic stress disorder; the defendant has suffered from chronic depression and anxiety; the defendant has had poor impulse control and defective judgment at times and the defendant has suffered from attention deficit hyperactivity disorder.

State v. Davis, No. CF94-1248A1-XX (Fla. 10th Jud.Cir.Ct. order filed June 30, 1995).

Further, on direct appeal and in seeking postconviction relief, Davis did not assert any claims analogous to the one he now raises before this Court, after the signing of his death warrant. Instead, on direct appeal, Davis failed to raise a claim involving his “emotional development,” see Davis, 698 So.2d 1182, and, in his postcon-viction proceedings, Davis argued with respect to his mental health only that his penalty-phase counsel was ineffective for failing to present expert testimony on post-traumatic stress disorder that Davis suffered as a result of prior sexual abuse. See Davis, 875 So.2d at 369. Further, between the time of the Roper decision in 2005 and these post-warrant proceedings, Davis has never raised a claim based on Roper.

Rule 3.851 provides the applicable pleading requirements for initial and successive postconviction motions. Fla. R.Crim. P. 3.851(e)(1) — (2). Davis’ post-warrant motion is subject to the rules governing post-conviction motions, which require the defendant to submit “a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought.” Parker v. State, 89 So.3d 844, 855 (Fla.2011) (quoting Fla. R.Crim. P. 3.851(e)(1)(D)).

An evidentiary hearing on a rule 3.851 motion “should be held ‘whenever the movant makes a facially sufficient claim that requires a factual determination.’ ” Pardo, 108 So.3d at 560 (quoting Parker, 89 So.3d at 855). “However, ‘[pjostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.’ ” Id. at 560-61 (quoting Parker, 89 So.3d at 855). Because the circuit court denied Davis’ claim without holding an evidentiary hearing, we review the circuit court’s decision de novo, “accepting [Davis’] factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that [Davis] is entitled to no relief.” Gore v. State, 91 So.3d 769, 774 (Fla.) (quoting Walton v. State, 3 So.3d 1000, 1005 (Fla. 2009)), cert. denied, — U.S. —, 132 S.Ct. 1904,182 L.Ed.2d 661 (2012).

This Court has set forth a two-prong test that a defendant must satisfy in order to obtain relief based on newly discovered evidence:

First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

Marek v. State, 14 So.3d 985, 990 (Fla.2009) (citing Jones v. State, 709 So.2d 512, 521 (Fla.1998)). “If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.” Id.

The studies cited by Davis, addressing the effects of alcoholism and sexual abuse on brain development, do not constitute newly discovered evidence. This Court has previously stated that it “has not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence.” Schwab v. State, 969 So.2d 318, 325 (Fla.2007). The articles that Davis relies upon fall squarely within this subject area and therefore do not constitute newly discovered evidence. See Farina v. State, 992 So.2d 819 (Fla.2008) (table decision) (holding that a “study on brain mapping is not newly discovered evidence”); Schwab, 969 So.2d at 325 (concluding that “two recent scientific articles regarding brain anatomy and sexual offense” did not constitute newly discovered evidence).

Further, as explained above, even if these recently published articles were considered newly discovered evidence, Davis still fails to put forth a cognizable claim. The United States Supreme Court’s decision in Roper prohibits the execution of those individuals “who were under the age of 18 when their crimes were committed.” 543 U.S. at 578, 125 S.Ct. 1183. In interpreting the Supreme Court’s decision, this Court has previously stated that “Roper only prohibits the execution of those defendants whose chronological age is below eighteen.” Hill, 921 So.2d at 584. Therefore, because Davis was over the age of eighteen when he committed murder, Roper does not apply, and his claim is without merit.

Accordingly, we affirm the circuit court’s summary denial of relief on this claim.

Clemency Proceedings

In his final claim on appeal, Davis challenges the constitutionality of his clemency proceedings. With respect to this claim, Davis does not contend that he was completely denied clemency review. In fact, Davis concedes that he was selected for clemency review determination in 2013, and that he did in fact receive an interview before the Florida Commission on Offender Review (formerly known as the Florida Parole Commission), during which he was represented by counsel from the Office of the Polk County Public Defender. Further, Davis does not contest that his death warrant specifically includes language stating that “executive clemency ... was considered pursuant to the Rules of Executive Clemency and it has been determined that executive clemency is not appropriate.”

Nevertheless, Davis asserts that his due process rights were violated during the clemency proceedings because one of the parole commissioners present during Davis’ interview before the Florida Commission on Offender Review was retired. Davis also argues that communications between the Polk County State Attorney and Assistant General Counsel for Governor Scott prior to Davis’ clemency proceedings, in which the Office of the Governor expressed disapproval of Davis’ crimes, illustrate that Governor Scott was predisposed to denying Davis clemency relief and call into question the validity of his clemency proceedings. The circuit court summarily denied this claim without holding an evidentiary hearing. We agree with the circuit court and conclude that these arguments are without merit for several reasons.

With respect to Davis’ first argument, section 947.04(1), Florida Statutes (2013), specifically authorizes the chair of the Florida Commission on Offender Review to “assign consenting retired commissioners or former commissioners to temporary duty when there is a workload need.” The record indicates that the retired parole commissioner at issue in this case was temporarily assigned for duty in conformance with section 947.04(1). “In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), five justices of the United States Supreme Court concluded that some minimal procedural due process requirements should apply to clemency proceedings.” Marek v. State, 14 So.3d 985, 998 (Fla.2009). However, the Court explained that “none of the opinions in that case required any specific procedures or criteria to guide the executive’s signing of warrants for death-sentenced inmates.” Id. Accordingly, in light of the fact that Davis concedes that he was selected for clemency review determination in 2013, and that he did in fact receive an interview before the Florida Commission on Offender Review, during which he was represented by counsel, and the assignment of retired parole commissioners to temporary duty is specifically authorized by statute, Davis has not provided any basis for this Court to grant relief based on his first argument.

Further, as this Court has previously noted, “[t]he clemency process in Florida derives solely from the Florida Constitution and [this Court has] recognized that the people of the State of Florida have vested ‘sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace.’ ” Carroll v. State, 114 So.3d 883, 888 (Fla.) (quoting Sullivan v. Askew, 348 So.2d 312, 315 (Fla.1977)), cert. denied, — U.S. —, 133 S.Ct. 2762, 186 L.Ed.2d 213 (2013). Indeed, “[t]he Florida Rules of Executive Clemency expressly provide that ‘[t]he Governor has the unfettered discretion to deny clemency at any time, for any reason.’ ” Gore, 91 So.3d at 779 (quoting Fla. R. Exec. Clem. 4) (second alteration in original). Accordingly, this Court “will not generally second-guess the executive’s determination that clemency is not warranted.” Pardo, 108 So.3d at 568.

In its order denying relief on this claim, the circuit court based its denial on these general principles, stating as follows: “Clemency reviews and proceedings are within the exclusive purview of the Executive Branch. It is not up to the Judicial Branch to second guess the Executive Branch in this regard, and the Judicial Branch must respect the separation of powers between the branches of government.” This conclusion is fully consistent with this Court’s precedent. See Johnston v. State, 27 So.3d 11, 26 (Fla.2010) (declining to “depart from the Court’s precedent, based on the doctrine of separation of powers, in which we have held that it is not our prerogative to second-guess the executive on matters of clemency in capital cases”); Rutherford v. State, 940 So.2d 1112, 1122-23 (Fla.2006) (denying a clemency claim because the defendant had a hearing and because clemency is an executive function). Davis concedes that he was selected for clemency review determination in 2013 and that he did in fact receive an interview before the Florida Commission on Offender Review. In light of the fact that his death warrant, signed by the Governor, makes clear that “executive clemency ... was considered pursuant to the Rules of Executive Clemency and it has been determined that executive clemency is not appropriate,” this Court will not “second-guess the executive’s determination that clemency is not warranted.” Pardo, 108 So.3d at 568.

Accordingly, we conclude that the circuit court did not err in summarily denying this claim.

CONCLUSION

For the reasons stated above, we affirm the circuit court’s denial of Davis’ successive motion for postconviction relief. Additionally, we deny Davis’ motion for a stay of execution. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

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

      . Specifically, the trial court found: (1) Davis was capable of accepting responsibility for his actions and showed remorse for his conduct in this case and offered through his attorneys to plead guilty (assigned medium weight); (2) Davis exhibited good behavior while in jail and prison (assigned little weight); (3) Davis demonstrated positive courtroom behavior (assigned very little weight); (4) Davis is capable of forming positive relationships with family members and others (assigned very little weight); (5) Davis had no history of violence in any of his past criminal activity (assigned very little weight); (6) Davis did not plan to kill or sexually assault the victim when he began his criminal conduct (assigned very little weight); (7) Davis cooperated with the police, confessed his involvement in this crime, did not resist arrest, and did not try to flee or escape (assigned little weight); (8) Davis has always confessed to crimes he has been arrested for in the past, accepted his responsibility, and pled guilty (assigned medium weight); (9) Davis suffered from the effects of being placed in institutional settings at an early age and by spending a significant portion of his life in such settings (assigned very little weight); and (10) Davis obtained his GED while in prison and participated in other self-improvement programs (assigned medium weight). Id.

      . While this appeal was pending before this Court, Davis’ clemency counsel filed a notice of joinder or, alternatively, a motion to intervene in Davis' appeal of the denial of his successive postconviction motion, which this Court struck after receiving a response from the State. Subsequently, Davis, through clemency counsel, filed in the circuit court an "Emergency Petition for a Writ of Mandamus or Common Law Certiorari and Complaint for Declaratory, Injunctive and Other Relief Pursuant to 42 USC § 1983” against Governor Rick Scott, Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater, and Commissioner of Agriculture Adam Putnam, as members of the Clemency Board of Florida. In this filing, Davis also challenged the constitutionality of his clemency proceedings. The circuit court denied Davis’ petition on July 1, 2014. Davis, represented by clemency counsel, appealed the circuit court's denial of his petition to this Court, which we have treated as a petition to invoke this Court’s all writs jurisdiction. By separate order, we have denied clemency counsel’s petition.


author: VAN NORTWICK, J. ROWE, J.,

text:
    Tabitha Joy LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4869.
    District Court of Appeal of Florida, First District.
    March 27, 2014.
    Rehearing Denied April 15, 2014.
    Nancy A. Daniels, Public Defender, and Glen Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
    Paul R. Green and Matthew J. Har-graves of Johnson, Green & Hargraves, P.A., Milton, appearing on behalf of the Clerk of Courts for Santa Rosa County.
   ORDER ON MOTION TO COMPEL

VAN NORTWICK, J.

Tabitha Joy Lewis appeals a judgment and sentence entered in the Circuit Court in and for Santa Rosa County, under which she is serving a ten-year prison sentence. The Public Defender, Second Circuit, who is representing Ms. Lewis in her appeal, has filed a motion to compel the Clerk of Courts for Santa Rosa County (the Clerk) to provide Ms. Lewis, through counsel, a paper copy of the record on appeal.

Following its usual practice, the Clerk has provided counsel with paper copies of the index, progress docket, and some of the transcripts, but has provided the rest of the record electronically on a computer disk. The Public Defender represents that Santa Rosa County is the only county in the First District to provide the record this way in indigent criminal appeals. The Public Defender also represents that in its experience, the Department of Corrections does not allow incarcerated defendants to receive computer disks in the mail, nor does it provide computer access to the files on the disks. See Fla. Admin. Code R. 38-210.102(6)(b)l. (“The following items which are prohibited for receipt in routine mail are also not permissible for inclusion in or attachment to legal mail: 1. Non-paper items.”).

The parties agree that, in general, an indigent defendant is entitled to his or her own copy of the record in proceedings in which he or she is proceeding pro se, such as in Anders appeals, see Baptiste v. Guffanti, 943 So.2d 303, 304 (Fla. 3d DCA 2006), and, at the conclusion of representation, is entitled to the record in the possession of trial counsel that was prepared at public expense. See Office of the Public Defender v. Madison, 961 So.2d 1044 (Fla. 1st DCA 2007) (Public Defender must surrender “any trial transcripts in its possession” to defendant, upon request, at the end of representation”); Bush v. State, 947 So.2d 685, 686 (Fla. 4th DCA 2007) (Public Defender may be compelled to turn over “records and transcripts which were prepared for his client at public expense”). And the Clerk does not dispute that an incarcerated defendant must receive a paper record for it to be of any use. We must decide on whom the duty falls to prepare the paper record for an indigent defendant.

Neither party has presented us with a definitive authority that clearly answers the question of who must prepare the paper record for an indigent represented defendant. Because there is no good answer, we must come to a practical, working solution. Accordingly, we find that, as has historically been the practice, the Clerk should continue to provide a paper copy of the record to appointed counsel representing an indigent defendant on appeal and to other pro se indigent defendants in criminal matters until such time as a rule or statute provides otherwise. While we are sympathetic to the budgetary constraints of both offices, we believe this solution is the best use of public funds — the record is prepared one time, instead of once electronically and then once in paper form — and ensures that the record is prepared in a form an incarcerated defendant can receive and use. To avoid the filing of future motions to compel, we direct the Clerk to provide a paper record to the Public Defender as a standard practice. In addition, given the rapid transition to electronic records in the courts of this state and the need to resolve this issue on a comprehensive basis, we certify the following question of great importance to the Florida Supreme Court:

IN A CRIMINAL APPEAL, IS THE CLERK OF THE LOWER TRIBUNAL REQUIRED TO PROVIDE A PAPER COPY OF THE RECORD ON APPEAL TO AN INDIGENT DEFENDANT.

PADOVANO, J., concurs; ROWE, J., concurs in part and dissents in part.

ROWE, J.,

concurring in part and dissenting in part.

I concur in posing the question certified above, but dissent from the decision to compel the Clerk of Courts for Santa Rosa County to provide counsel for appellant a paper copy of the record on appeal. Appointed appellate counsel for an indigent defendant in a criminal appeal is entitled to a copy of the record without charge, and counsel for appellant has been provided such a copy. No rule, statute, or controlling case law requiring that the record be provided to counsel in paper form has been identified, and as the Clerk argues, the practice of providing a digital record is not inconsistent with the definition of “court records” in Florida Rule of Judicial Administration 2.430(a)(1).

The Public Defender points out that in order to properly discharge its obligation to provide its client with a copy of the record at the appropriate time, present circumstances generally require that the copy be in a paper format. While I am sympathetic to the Public Defender’s concern that it should not bear the expense of converting a digital record to a paper format, the majority acknowledges that nothing expressly precludes the Clerk from providing counsel a copy of the record that is in whole or in part in digital form, nor is there a provision of law requiring that the Clerk furnish counsel a paper copy. In the absence of such authority, I am of the view that the decision as to whether trial court clerks should be compelled to provide a paper copy of the record to counsel for an indigent criminal defendant is a matter that should be addressed by the Supreme Court. Accordingly, while I join in certifying this question to the Supreme Court for its consideration, I dissent from the granting of the Public Defender’s motion to compel.

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

      . The Public Defender argues that the duty to generate a record for use by an indigent pro se defendant falls on the Clerk, and that it must provide a paper record to a represented defendant when an appeal concludes, at the latest. The Clerk argues that no legal authority requires it to furnish copies of the record directly to a represented defendant, and that, in any case, no authority compels paper versus electronic records, or vice versa. A clerk may serve documents by e-mail or by any method permitted under subdivision (b)(2), which includes mailing or hand delivery. Fla. R. Jud. Admin. 2.516(g).

      .With respect to appeals from the summary denial of postconviction motions, Florida Rule of Appellate Procedure 9.141(b)(2)(A) provides that, "[u]nless directed otherwise by the court, the clerk of the lower tribunal shall not index or paginate the record or send copies of the index or record to the parties.” Pursuant to the authority granted by the rule, this Court’s Administrative Order 02-2 requires lower tribunal clerks to index and paginate the record in such appeals and to provide copies of the index and record to the patties.


text:
    Harold T. DUKES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1127.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2014.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Harold T. Dukes, Jr., appeals his convictions and sentences for false imprisonment, sex trafficking, unlawfully obtaining labor or services, and forcing, compelling, or coercing another to become a prostitute. Under the facts of this ease, we agree that his convictions for both sex trafficking, a violation of section 796.045, Florida Statutes (2010), and forcing, compelling or coercing another to become a prostitute, a violation of section 796.04(1), Florida Statutes (2010), violated double jeopardy. Dukes’s conviction of the lesser crime of forcing, compelling, or coercing another to become a prostitute must be vacated.

In all other respects, we affirm Dukes’s convictions and sentences.

AFFIRMED in part; VACATED in part.

ORFINGER, BERGER and WALLIS, JJ., concur.

      . Section 796.045, Florida Statutes (2010), was repealed, effective July 1, 2012. See Ch.2012-97, § 8, at 9, Laws of Fla.


author: THOMAS, J.

text:
    Wendall HALL, Appellant, v. Lieutenant NORRIS, Appellees.
    No. 1D13-3634.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    Rehearing Denied June 13, 2014.
    Wendall Hall, pro se, Appellant.
    Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee; Pamela Jo Bondi, Attorney General, Eric M. Neiberger, Assistant Attorney General, Tallahassee, for Appellees.
   ON IMPOSITION OF SANCTIONS

THOMAS, J.

The records of this court reflect Appellant has filed a total of thirty-nine appeals in this court, three in another court of appeal, and numerous cases in federal court, virtually all of which have been dismissed or otherwise denied for one reason or another, including, but not limited to, frivolousness. Furthermore, this court has already issued an opinion forbidding Appellant from filing pro se pleadings with this court for abusing the judicial process. See Hall v. State, 94 So.3d 655 (Fla. 1st DCA 2012). With the litigation below and this appeal, Appellant continues this pattern of vexatious litigiousness. Consequently, we issued an order for Appellant to show cause as to why he should not be prohibited from appearing as a litigant in this court in any matter unless represented by counsel.

After considering Appellant’s response to our order to show cause, we prohibit Appellant from filing any further pro se pleadings in this court. Any pleadings or papers filed in this court regarding Appellant must be reviewed and signed by an attorney licensed to practice in this state. Accordingly, the clerk is directed not to accept any further pro se pleadings or filings from Appellant in any matter. See Perry v. Mascara, 959 So.2d 771 (Fla. 4th DCA 2007).

MARSTILLER, and MAKAR, JJ„ concur.


author: CLARK, J.

text:
    Richard NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0203.
    District Court of Appeal of Florida, First District.
    May 20, 2014.

      An appeal from the Circuit Court for Duval County. William A. Wilkes, Judge.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR CLARIFICATION

CLARK, J.

We grant Appellant’s Motion for Clarification, withdraw our previous opinion filed on February 21, 2014, and substitute the following in its place.

This is an Anders appeal from Appellant’s conviction and habitual felony offender (“HFO”) sentence after the entry of Appellant’s mid-trial nolo contendere plea. The public defender submitted an Anders brief and Appellant was afforded the opportunity to file a pro se brief but did not do so. This Court’s “full and independent review,” as described in In re Anders Briefs, 581 So.2d 149, 151 (Fla.1991), revealed no arguable issue for appeal and the judgment and sentence are affirmed.

While this Court’s independent review of the record and applicable legal authority requires affirmance of the conviction and sentence, we are compelled to write to address the duties of appointed appellate counsel under Anders and its progeny to provide constitutionally adequate representation to indigent appellants.

In his Anders brief, counsel asserted that his case was “wholly frivolous” because this Court lacked jurisdiction to consider the appeal. Counsel argued that this Court’s jurisdiction: 1) was never invoked due to Appellant’s failure to file a notice of appeal after the rendition of the judgment and sentence; and 2) could not be invoked due to the procedural bar of an appeal resulting from Appellant’s nolo con-tendere plea and rule 9.140(b)(2)(A), Florida Rules of Appellate Procedure. Not only are these arguments unavailing, but the brief fails to apply any other legal requirements to the facts and proceedings which ultimately resulted in the plea, judgment, and sentence.

In Anders, the Court described the process if counsel believes the appeal is “wholly frivolous” thusly:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of ami-cus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. ... Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. ... [T]he court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396. In this case, Appellant’s counsel advised this Court that he found the appeal “wholly frivolous.” However, counsel’s assertion that the appeal is “wholly frivolous” does not discharge his duty to specify in the brief “what transpired” and “the court’s ruling” and to “present such argument as can reasonably be made in support of the defendant’s position on each designated act, with appropriate citation to the record and pertinent authority, if there is any.” Smith v. State, 496 So.2d 971, 974 (Fla. 1st DCA 1986) (emphasis added).

The initial Anders brief in this case does not demonstrate compliance with appellate counsel’s duty to “master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal.” McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); In re Anders Briefs, 581 So.2d 149, 151 (Fla.1991). Nor does the brief meet counsel’s obligation to provide this Court with “ready references not only to the record, but also to the legal authorities ” governing the proceedings in this case. Anders, 386 U.S. at 745, 87 S.Ct. 1396 (emphasis added); see also Smith, 496 So.2d at 974 (“citation to the record and pertinent authority”); Forrester v. State, 542 So.2d 1358, 1360 (Fla. 1st DCA 1989) approved in part and quashed in part on other grounds, sub nom., In re Order of First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State, 556 So.2d 1114 (Fla.1990) (one-sentence brief referring to two cases failed to meet Anders’ requirement; “Unless the Anders brief is sufficiently detailed, which includes any possible authority ... or, if no authority does in fact provide such support, an explanation of why cited authority is not controlling or persuasive — an appellate court is often unable to determine whether the appeal is so frivolous that counsel should be permitted to withdraw.” (emphasis added)).

Here, the single-page Statement of the Case and of the Facts summarizes a record of over 260 pages. It mentions the charges, Appellant’s self-representation, the plea, the HFO sentence, and Appellant’s motion to withdraw his plea. However, there is no citation to the rules of procedure and other applicable legal authorities setting the standards for the discharge of appointed counsel, appointment of stand-by counsel, Appellant’s acceptance and reliance on counsel, the jury trial proceedings prior to entry of his plea, the plea hearing, or the basis and effect of the motion to withdraw his plea. Appellant’s premature notice of appeal is ignored. The only legal authority referred to in this section of the brief is rule 9.140(b)(2)(A).

Likewise, the Argument portion of the brief contains additional citations to the record but is devoid of any citation to cases, statutes, and rules governing the proceedings save a single reference to rule 9.140(b)(2)(A). Unlike an appeal of a represented pre-trial plea — where the typical record consists of a few documents and the transcript of the plea hearing — the record in this case includes pre-trial proceedings for Appellant’s representation, trial proceedings, Appellant’s mid-trial decision to enter a plea, and a post-sentencing motion to withdraw plea. Under these circumstances, the Anders brief was inadequate to alert this Court “to points of possible merit upon which [the court] can focus its independent review of the record.” In re Forrester, 556 So.2d 1114, 1117 (Fla.1990). The absence of citation to legal authority provides no indication that Appellant’s conclusion that his case was “wholly frivolous” was based on any comparison of the trial level events in the record to the applicable procedural and legal requirements for each stage of the proceedings. The brief did no more than present this Court with “only the cold record which it must review without the help of an advocate.” Anders, 386 U.S. at 745, 87 S.Ct. 1396.

As explained by the Florida Supreme Court in In re Forrester, if the reviewing court is not satisfied that the requirements for an Anders brief have been met, the court has the inherent authority to require supplemental briefs on any issue where confusion or doubt remains. An order for supplemental briefing furthers the appellant’s right to a direct appeal with the assistance of counsel. In State v. Causey, 503 So.2d 321, 322 (Fla.1987), the Florida Supreme Court discussed the appellate court’s duty to independently review the record after appointed counsel files an Anders brief, “to the extent necessary to discover any errors apparent on the face of the record.” The court held: “While courts should hot assume the role of appellate counsel, reversible error should not be ignored simply because an indigent appellant or a public defender failed to point it out.” Causey, 503 So.2d at 322-23. In Causey, based on its independent review of the record after the filing of an Anders brief by appointed counsel, this Court reversed the conviction “without allowing either party to brief the issue.” Id. at 323. The Florida Supreme Court reversed and remanded, holding that in order to provide the appellant with the effective assistance of counsel to which he was entitled, “the district court should request that briefs be submitted on the issues raised by the court before the court renders its opinion.” Id.

Unlike Causey, where our independent review uncovered possible reversible error, our independent review of this record did not reveal any meritorious point which might support reversal of the conviction and sentence. Accordingly, although we disagree with counsel and find that this appeal is not “wholly frivolous,” as might be the case where this Court’s jurisdiction was not properly invoked or where the appeal is procedurally barred, we decline to order supplemental briefing prior to affirming. There is no confusion or doubt on the face of the record, nor do we need further illumination or discussion of the applicable law which might be provided by supplemental briefing. See In re Forrester, 556 So.2d at 1117 (“If not satisfied that these requirements have been met, or if it needs further illumination or discussion of applicable law, a reviewing court may require supplemental briefs.”).

The record shows that Appellant sought to discharge his public defender before trial and represent himself based on general complaints about defense counsel’s trial strategy, particularly counsel’s refusal to file a motion to dismiss the charges as Appellant requested but that counsel deemed meritless. Appellant specifically declined the appointment of new counsel and requested discharge of counsel so that he could represent himself. He never asserted that counsel was incompetent or ineffective to represent him. Accordingly, no hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), was warranted. LeGrand v. State, 31 So.3d 924, 926 (Fla. 1st DCA 2010).

The transcript of the pre-trial Faretta hearing demonstrates proper exercise of the trial court’s discretion to allow Appellant to represent himself. McCray v. State, 71 So.3d 848, 864 (Fla.2011) (“The standard of review for a trial court’s handling of a request for self-representation is abuse of discretion.”); see also Sparaga v. State, 111 So.3d 260, 263 (Fla. 1st DCA 2013). The trial court’s inquiry to determine if the defendant knowingly and intelligently waived his right to counsel and was aware of the dangers and disadvantages of self-representation was clearly compliant with the requirements of Faret-ta, as codified in rule 3.111(d), Florida Rules of Criminal Procedure.

After the Faretta hearing, throughout the preparation for trial, commencement of trial, and entry of his plea, Appellant represented himself but accepted standby counsel appointed by the court. Standby counsel attended each court proceeding with Appellant. Upon the State’s resting its case, Appellant indicated to the court that he wished to enter a plea. Outside the presence of the jury, and after consulting with standby counsel, Appellant ultimately decided to enter a plea of nolo contendere and stated that he reserved his right to appeal. However, Appellant did not specify any particular ruling or trial event for which he wished to reserve this right.

The trial court did not reiterate an offer of appointed counsel to Appellant immediately prior to the mid-trial entry of his plea. Rule 3.111(d)(5), Florida Rules of Criminal Procedure, requires that the court “renew” the offer of counsel “at each subsequent stage of the proceedings at which the defendant appears without counsel.” The entry of a plea is a critical stage of the proceedings at which point the offer for appointed counsel must ordinarily be renewed. Henretty v. State, 1D13-0504, 146 So.3d 55, 2014 WL 211491. However, the general rule requiring renewal of the offer of counsel does not apply in this case because standby counsel was appointed by the court, was accepted by Appellant, and was available for consultation at each stage of the proceedings. Knight v. State, 770 So.2d 663 (Fla.2000).

The transcript of the trial and the subsequent sentencing hearing shows that standby counsel was present and that Appellant repeatedly availed himself of the court’s invitations to consult with standby counsel. The court offered both Appellant and standby counsel the opportunity to present argument at all appropriate stages of the proceedings. In Knight, the Florida Supreme Court held that the presence of standby counsel, particularly where the defendant willingly accepted standby counsel and consistently relied upon him or her, “is a constant reminder to a self-representing defendant of his right to court-appointed counsel at any stage of the proceeding.” Knight, 770 So.2d at 670. The court ruled that a trial court’s failure to renew the offer of appointed counsel in that situation is not a ground for reversal. The court noted: “A defendant’s right to have court-appointed counsel discharged and right to represent himself becomes meaningless and a source of gamesmanship if the trial court has to offer counsel to the defendant each time he appears in court.” Id. at 670 n. 6; see also Brown v. State, 113 So.3d 134, 142 (Fla. 1st DCA 2013). Under these circumstances, the trial court’s failure to renew the offer of counsel as required by rule 3.111(d)(5) was not error. See McCarthy v. State, 731 So.2d 778 (Fla. 4th DCA 1999).

Appellant’s entry of his nolo con-tendere plea comported with all the requirements of rule 3.172. The trial court considered the State’s factual basis, particularly the testimony of the State’s witnesses. The court informed Appellant of the rights he was waiving and inquired about Appellant’s mental status and understanding of his rights. The transcript of the plea colloquy in the record confirms the trial court’s compliance with rule 3.172, including the defendant’s acknowledgement that he believed the plea to be in his best interest. Appellant stated to the court under oath that he was not promised anything, including any particular sentence, in exchange for the plea. He affirmatively represented to the court that he asked standby counsel if he could get drug treatment and she “informed me the only way I’d be able to get some type of treatment is that I would have to go through you, sir.” The court accepted Appellant’s plea, the jury was discharged, and the trial proceedings concluded.

The sentencing hearing took place a few weeks after the trial and entry of the plea. Appellant again represented himself, with standby counsel in attendance. As previously noted, rule 3.111(d)(5) requires that the court “renew” the offer of counsel “at each subsequent stage of the proceedings at which the defendant appears without counsel.” Sentencing is a critical stage of the proceeding, and ordinarily the trial court’s failure to renew the offer of counsel before sentencing is reversible error. Monte v. State, 51 So.3d 1196 (Fla. 4th DCA 2011). However, as was the case for the plea hearing, the trial court’s failure to reiterate an offer of appointed counsel to Appellant at the beginning of the sentencing hearing does not require reversal of the judgment and sentence due to the presence of standby counsel and Appellant’s frequent consultation with her during the proceedings. Knight, 770 So.2d at 670; Brown, 113 So.3d at 142.

Appellant stipulated to his prior convictions as presented by the State and the court found that he qualified as an HFO. § 775.084, Fla. Stat. The State and Appellant each presented argument regarding sentencing. The court adjudicated Appellant guilty of the charges and imposed a ten-year HFO sentence.

Later on the day of sentencing, Appellant filed his Motion to Withdraw Plea after Sentencing, pursuant to rule 3.170(i), Florida Rules of Criminal Procedure. He alleged that his plea was invalid because standby counsel had promised him he would receive drug treatment if he entered his plea, but his sentence did not contain any such condition. Essentially, Appellant alleged that standby counsel’s misrepresentation rendered his plea involuntary. The court denied the motion without a hearing.

The trial court correctly denied Appellant’s motion to withdraw his plea under rule 3.170(i). Appellant’s assertion that his plea was involuntary due to standby counsel’s misrepresentation could be cognizable on appeal under rule 9.140(b)(2)(A)(ii)c. However, Appellant was representing himself and was not represented by standby counsel. More importantly, Appellant’s allegation of fact— that standby counsel promised him drug treatment if he entered his plea—is directly contradicted in the transcript of Appellant’s own statement to the court, under oath, at the plea hearing. The trial court’s denial of the motion to withdraw plea was thus free from error.

Regarding the grounds for counsel’s finding his case to be “wholly frivolous” as stated in the Anders brief, Appellant’s motion to withdraw plea pertained to the voluntariness of the plea. Thus, this appeal was not procedurally barred by the entry of the nolo contendere plea. Rule 9.140(b)(2)(A)(ii)c. allows defendants to appeal from pleas of nolo contendere on grounds that the plea is “an involuntary plea, if preserved by a motion to withdraw plea.” The motion’s lack of merit and Appellant’s failure to prevail on his motion does not result in a procedural bar of this appeal but merely an unfavorable ruling on the motion and lack of reversible error in the denial.

Considering counsel’s assertion that this Court lacked jurisdiction to consider the appeal, we find that Appellant sufficiently invoked this Court’s appellate jurisdiction. Fla. R. App. P. 9.110(i). Appellant filed a notice of appeal a few days prior to the rendition of the judgment and sentence, but the appeal was not dismissed as premature. The final judgment and sentence were then rendered and thereafter, appellate counsel filed an amended notice of appeal correctly identifying the nature of the final judgment to be reviewed. Under these circumstances and rule 9.110(i), the premature notice of appeal effectively vested jurisdiction in this Court to review the final order.

We refrain from establishing practice requirements for Anders briefs in detail not already described by the United States Supreme Court and the Florida Supreme Court. However, it is clear from Anders that a “no-merit letter” (or brief which barely exceeds such statement), in which counsel merely states a bare conclusion that in counsel’s opinion, “there is no merit to the appeal,” is insufficient to meet counsel’s responsibility. Anders, 886 U.S. at 742, 87 S.Ct. 1396. “[T]he Anders brief is designed to assure the court that the indigent defendant’s constitutional rights have not been violated.” McCoy, 486 U.S. at 442, 108 S.Ct. 1895. Thus, in addition to citations to the record, Anders contemplated that the brief would include “ready references ... to the legal authoiities” applicable to the case. Anders, 386 U.S at 745, 87 S.Ct. 1396; see also Smith, 496 So.2d at 974 (“with appropriate citations to the record and pertinent authority”); For-rester, 542 So.2d at 1360 (“which includes any possible authority ... or, if no authority does in fact provide such support, an explanation of why cited authority is not controlling or persuasive”).

In this case, the brief does not mention the sufficiency of the proceedings under the applicable law pertaining to: Appellant’s self-representation; the court’s failure to renew the offer of counsel at the various stages of trial; the effect of standby counsel’s presence; the propriety of the plea proceedings; the propriety of the trial court’s denial of the motion to withdraw the plea; and whether the motion preserved any issue for appeal. While the brief did contain references to the record, the brief was insufficient to meet the requirements of Anders and the Florida Supreme Court’s opinion in In re Forrester because it contained no reference to governing legal authorities pertinent to the record material and no indication that counsel compared the proceedings in the record to those legal requirements. The string citation to Anders, Forrester, and Causey in the final paragraph of the Conclusion section of the brief did not cure this deficiency.

This court’s independent review of the record and applicable law revealed no reversible error in the circuit court’s proceedings. Accordingly, the conviction and sentence are AFFIRMED.

WOLF, J., concurs in result, and VAN NORTWICK, J., concurs.

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

        . Counsel properly refrained from filing a motion to withdraw at the outset. Payne v. State, 589 So.2d 1037 (Fla. 1st DCA 1991). In Payne, this Court established a general policy disapproving the filing of a motion to withdraw together with the initial brief because "[t]o allow counsel to withdraw would require the court to reappoint the attorney to represent appellant if supplemental briefing is required. Such a procedure would result in an unnecessary additional delay.” Payne, 589 So.2d at 1038. Accordingly, counsel’s forbearance was consistent with Payne and State v. Causey, 503 So.2d 321 (Fla.1987) (indigent appellants have constitutional right to assistance of counsel, including supplemental briefing upon court’s order).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: LEVINE, J.

text:
    Richard Steven KOZELL, Jr., Appellant, v. Theresa Ann KOZELL, Appellee.
    No. 4D12-2404.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.

      Karen O’Brien and Lori I. Steger of Steger & Steger, P.A., Stuart, for appellant.
    Matthew S. Nugent and Adam M. Zbo-rowski of Nugent Zborowski & Bruce, North Palm Beach, for appellee.
   ON MOTION FOR REHEARING

LEVINE, J.

We grant the wife’s motion for rehearing, withdraw our previous opinion, and substitute the following in its place.

The husband appeals an order denying his petition for modification of child support, entered after the trial court granted the wife’s motion to vacate an order granting modification of child support. We find that the trial court properly denied the motion for modification and affirm.

In November 2007, the trial court entered a final judgment of dissolution of marriage. The final judgment incorporated a marital settlement agreement. Pursuant to the agreement, the husband would pay $6,000 per month in child support. In July 2010, the husband petitioned for modification of child support due to a decrease in income. The case proceeded to an evidentiary hearing before a general magistrate.

After a hearing, the magistrate summarized the testimony of the witnesses in its findings of fact. The magistrate found that the husband is a self-employed entrepreneur who owns several companies that sell treated lumber for building docks. According to the magistrate, the husband testified that his income was up in 2007 due to people having damaged docks. The husband and his accountant both testified that his income started to decline in 2007. The wife’s accountant testified that the husband’s business levels in 2007 were “exceptional.” The wife’s accountant also testified that business levels in 2011 were consistent with business levels in 2008.

The magistrate further found:
Clearly the Former Husband is in complete control of how much income he receives and when he receives the income. Notwithstanding the information on the Former Husband’s financial affidavit it is clear that he has access to much greater income than that which is shown. Even according to his accountant his income for 2011 is not accurately known.... The Former Husband has assets totaling approximately $11,000,000.00.

The magistrate concluded that the husband “is able to manipulate his income from year to year” and that “it is not possible from the evidence presented to make a definitive determination as to his income.” Despite these findings, the magistrate recommended reducing the husband’s child support payments to $2,676 per month.

The trial court adopted the magistrate’s recommendations and granted the petition for modification. The wife moved for rehearing. The trial court granted the wife’s motion, vacated its previous order, and entered an order denying the motion for modification. In its order, the trial court reproduced the magistrate’s findings of fact and concluded that “the Magistrate misapplied the facts found by the Magistrate to the law.”

The trial court explained:

The law is settled that a party seeking to modify a judgment of support must allege and prove a substantial change in circumstances which was not contemplated at the time of the Final Judgment and that the change is significant, material, involuntary and permanent. The Magistrate’s findings show that the Husband failed to prove all the necessary elements.
The Magistrate found that the Husband was able to manipulate his income. His financial affidavit, based on the testimony at the hearing is knowingly false. As stated by the Magistrate, it is impossible from the evidence presented to make a definitive determination of his income. The change in his income was voluntary.
The Husband was also unable to show that the down turn in his business was not contemplated or that it was unexpected. The testimony showed that he knew the upswing in the business in 2007 was from the '04, '05, and '06 hurricane seasons. He testified that he knew in 2007 or 2008 the sales started to trickle out. In 2007, 2008 it started to change (i.e. for the bad). When he signed the settlement agreement, he knew and he knew at the time of the Final Judgment on November 1, 2007, that the business would fall off. The change was not unexpected.
Lastly assuming a change, the change was not permanent as the testimony of the CPA was that the business had returned to the 2008 level.

From this order, the husband appeals.

The standard of review governing a trial court’s decision to deny modification of child support is abuse of discretion. Escobar v. Escobar, 76 So.3d 958, 960 (Fla. 4th DCA 2011). A trial court’s decision to accept or reject a magistrate’s conclusions is also reviewed for an abuse of discretion. Perrone v. Frank, 80 So.3d 402, 404 (Fla. 4th DCA 2012). “A magistrate’s findings are subject to being set aside by the trial court when they are clearly erroneous or the magistrate misconceived the legal effect of the evidence.” McNamara v. McNamara, 988 So.2d 1255, 1258 (Fla. 5th DCA 2008). “[I]t is the duty of the court to examine and carefully consider the evidence and determine whether under the law and the facts the court is justified in entering the decree recommended by the Master.” Lyon v. Lyon, 54 So.2d 679, 680 (Fla.1951).

A party moving for modification of child support has the burden of proving the following factors: (1) a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment of dissolution; and (3) the change is sufficient, material, involuntary, and permanent in nature. Maher v. Maher, 96 So.3d 1022, 1022 (Fla. 4th DCA 2012). “When the original child support amount is based on an agreement by the parties, as here, there is a heavier burden on the party seeking a downward modification.” Id.

The husband argues that competent substantial evidence supports the magistrate’s finding that his income had decreased and that the trial court improperly reweighed the evidence and substituted its opinion for that of the general magistrate. Contrary to the husband’s contention, the trial court did not abuse its discretion in rejecting the magistrate’s conclusion and denying the motion for modification because the husband failed to allege and prove all of the elements necessary for modification. The husband’s petition for modification alleged only a decrease in income. He did not allege, nor did the magistrate find, that the decrease was not contemplated at the time of the final judgment, or that the decrease was involuntary and permanent in nature. Thus, the magistrate’s findings were insufficient to support modification of child support.

The trial court correctly determined the magistrate misconceived the legal effect of the evidence. The magistrate found that the husband “is in complete control of how much income he receives and when he receives the income” and that he has “access to much greater income than that which is shown” on his financial affidavit. The magistrate further found that the husband “is able to manipulate his income from year to year” and that “it is not possible from the evidence presented to make a definitive determination as to his income.” These findings support the trial court’s conclusion that the change in the husband’s income was voluntary.

The magistrate further found that the husband testified that his income was up in 2007 due to people having damaged docks. The wife’s accountant testified that business in 2007 was “exceptional” and that business levels in 2011 were consistent with business levels in 2008. The husband and his accountant both testified that the husband’s income started to decline in 2007. These findings support the trial court’s conclusion that the change in income was not unexpected at the time the settlement agreement and final judgment were entered in 2007.

In his initial brief, the husband also challenges an order denying his motion to disqualify the trial judge, which he filed a week and a half after the court denied his motion for rehearing. As the wife points out, this court lacks jurisdiction to review this order, as it is not mentioned in or attached to the notice of appeal. See Fla. R. App. P. 9.110(d); Greyhound Corp. v. Carswell, 181 So.2d 638, 640 (Fla.1966); Seaboard Air Line R.R. Co. v. Holt, 80 So.2d 354, 357 (Fla.1955). Even if we had jurisdiction, this issue would be without merit because the husband did not file the motion to disqualify until after the proceedings had already ended. Thus, the motion was untimely. See Fla. R. Jud. Admin. 2.330(d)(1), (e); Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986).

In sum, we affirm the order denying the husband’s petition for modification of child support. We dismiss the appeal to the extent the husband challenges the order denying his motion to disqualify the trial judge.

Affirmed in part and dismissed in part.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

      . Although the rules in effect in 2011 provided that a party had ten days to move for rehearing, see Florida Family Law Rule 12.491(f) and Florida Rule of Civil Procedure 1.530(b), the trial court's order granting modification expanded this timeframe to fifteen days.