author: per Curiam.

text:
    Terry SMITH, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1076.
    Supreme Court of Florida.
    Jan. 16, 2014.
    Rehearing Denied May 22, 2014.

      Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Carolyn Snurkowski, Associate Deputy General, Tallahassee, FL, for Appellee.
   per Curiam.

This case is before the Court on appeal from Terry Smith’s first-degree murder convictions and sentences of death for the killings of Berthum Gibson and Keenethia Keenan, and his first-degree murder conviction and life sentence for the killing of Desmond Robinson. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the convictions and sentences.

1. BACKGROUND

While looking for narcotics on June 5, 2007, Terry Smith, then age nineteen, called an acquaintance, Breon Williams. Williams, a street level drug dealer, informed Smith that he was going to purchase some drugs and invited Smith to join him. Smith took Williams up on his offer. In the late evening of June 5, Williams picked Smith up from the home of Smith’s mother. From there they rode on Williams’ motorized scooter to a house in Jacksonville, Florida, where Desmond Robinson and Berthum Gibson sold drugs.

Williams had previously purchased drugs from Desmond Robinson at that location. On previous occasions, Williams had entered through the back door of the home, which was locked and contained a sheet of Plexiglas on its interior. When Williams and Smith arrived at the house, they pulled into the driveway, parked Williams’ scooter, and walked up to the back door. Williams knocked on the door, and Robinson let them in.

After Williams and Smith entered the kitchen, Robinson locked the door and left the key in it. When they entered, Gibson and Keenethia Keenan were sitting at a table in the kitchen and dining room area of the home. Williams walked to the kitchen counter, which was located near the door, and began to count his money to determine how much cocaine he could purchase. While Williams was counting his money, he heard Smith say “[g]ive it up,” followed by gunshots. Williams turned to run out of the residence, which required turning the key that was already in the door to unlock it. Before exiting, Williams saw Smith shoot Robinson multiple times. Williams was in such a hurry to leave the house that he left approximately $400 on the kitchen counter and his scooter in the driveway.

The State then presented circumstantial evidence that instead of escaping out the back door after killing Robinson, Smith stepped over Robinson’s body and proceeded into the hallway, where he shot in the direction of Gibson and Keenan. Gibson and Keenan each died from a single gunshot wound that was attributed to Smith’s ten millimeter handgun. Keenan’s body was found unarmed in the back of the southeast bedroom, where she died within seconds of the gunshot piercing her heart. When police arrived, they found Gibson, who was still alive despite a gunshot wound to his abdomen. He was leaning against the bed in the same bedroom with a rifle in his hands. Paramedics transported Gibson to the hospital, where he died due to internal injuries from the gunshot wound. Police found shell casings from the gun used by Smith in the kitchen and dining room area as well as in the living room area of the home. They also found shell casings from the rifle used by Gibson in the southeast bedroom and the hallway leading up to the bedroom.

After shooting Gibson and Keenan, Smith ran out the back door of the house, touching the Plexiglas portion of the door on his way out. When police arrived, they found Williams’ money on the kitchen counter and drugs on the dining room table. After exiting the crime scene, Smith called Ullysses Johnson to pick him up from the area. At the time, Johnson was at home playing video games with his brother Raylan Johnson and Jonathan Peterson. The three then picked Smith up near the crime scene. In the car, Smith told them that he had shot three people.

After arriving at the Johnsons’ home, Ullysses Johnson and Peterson went inside, while Smith and Raylan Johnson remained outside. Smith gave his gun to Raylan Johnson, who buried it in the yard and then sold it a few days later to Walter Dumas. They also burned Smith’s clothes in a bin that was in the yard.

The jury found Smith guilty of first-degree murder for the deaths of Robinson, Gibson, and Keenan. The jury found Smith guilty of first-degree murder under both the felony murder and premeditated theories in the deaths of Gibson and Keenan, and guilty under only the felony murder theory in the death of Robinson. The jury also found Smith guilty of attempted armed robbery.

The jury recommended a life sentence in the first-degree murder of Robinson. The jury recommended sentences of death by a vote of eight to four for the first-degree murder of Gibson and by a vote of ten to two for the first-degree murder of Keenan.

The trial court held a hearing pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993), prior to sentencing Smith to death for the first-degree murders of Gibson and Keenan and to life imprisonment for the first-degree murder of Robinson. The court gave great weight to the aggravating circumstances that Smith was previously convicted of another capital felony, § 921.141(5)(b), Fla. Stat. (2011), and that the capital felony was committed while Smith was engaged in an attempt to commit robbery, § 921.141(5)(d), Fla. Stat. (2011), merged with the aggravator that Smith committed the capital felony for pecuniary gain, § 921.141(5)(f), Fla. Stat. (2011). The court found the statutory mitigating circumstance of Smith’s age at the time of the crime, nineteen, established and gave it moderate weight. Regarding the nonstatutory mitigating factors sought by Smith, the court concluded that the following factors were established: (1) Smith’s mental status was mitigating (moderate weight); (2) Smith loves his children and their mothers and they love him (some weight); (3) Smith was a good brother to his siblings (little weight); (4) Smith took care of his sister’s seven children while she was at work (moderate weight); (5) Smith is dependable (some weight); (6) Smith was a good employee and therefore he would do well in prison (slight weight); (7) Smith was well behaved during court proceedings (no weight because it is not mitigating); (8) Smith could be rehabilitated in prison and make positive contributions to society (little weight); (9) Breon Williams was never charged with a crime arising out of the murders on June 5, 2007 (no weight because it is not mitigating); (10) Smith grew up in a “terrible” neighborhood (some weight).

II. ANALYSIS

On appeal of his convictions and sentences Smith raises four issues: (A) the evidence is insufficient to support his convictions for premeditated murder for the killings of Gibson and Keenan; (B) the trial court erred in giving additional weight to the felony murder aggravating circumstance on the basis that the murders were premeditated; (C) Smith’s sentence is disproportionate; and (D) the trial court erred in sentencing Smith to death because Florida’s capital sentencing proceedings are unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

A. Sufficiency of the Evidence

In his first claim on appeal, Smith claims that the trial court erred in denying his motions for judgments of acquittal because the evidence is insufficient to support his convictions for first-degree premeditated murder in the deaths of Gibson and Keenan. Specifically, Smith asserts that the evidence does not refute his claim that he acted in self-defense. As we explain below, Smith did not preserve this claim for review. In any event, under this Court’s independent review of the evidence, Smith’s argument lacks merit. Sufficient evidence supports Smith’s three first-degree murder convictions.

“Florida Rule of Criminal Procedure 3.380(b) states that a motion for judgment of acquittal ‘must fully set forth the grounds on which it is based.’ ” Victorino v. State, 23 So.3d 87, 103 (Fla.2009). This Court has further held that when a defendant does not raise in the trial court the same grounds for granting the motion argued on appeal, the claim is not preserved for appeal. See id.; Archer v. State, 613 So.2d 446, 448 (Fla.1993). After the State rested its case, Smith moved for a judgment of acquittal “as to each count in the Indictment, in that the State has not established a prima facie case of evidence. No further argument.” The trial court denied Smith’s motion. After the close of evidence, Smith’s counsel renewed the “motion for judgment of acquittal and all of [his] previously made motions.” The trial court denied the renewed motion for judgment of acquittal. Smith did not argue to the trial court, as he argues on appeal, that he killed Gibson and Keenan in self-defense. Therefore, Smith failed to preserve his self-defense claim for appeal.

Even though Smith failed to preserve his claim that the trial court erred in denying his motions for judgment of acquittal, “this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence.” Davis v. State, 2 So.3d 952, 966-67 (Fla.2008) (citing Fla. R.App. P. 9.142(a)(6)). The jury found Smith guilty of the first-degree murder of victims Gibson and Keenan under two theories: felony murder and premeditated murder. Additionally, the jury found Smith guilty of the first-degree murder of victim Robinson under the felony murder theory. The evidence is sufficient to support all three convictions.

Two standards of review apply to the determination of whether the evidence of guilt is sufficient. Where the evidence of guilt is direct, either in whole or in part, this Court reviews whether “a rational trier of fact, upon reviewing the evidence in the light most favorable to the State, could find that the elements of the crime have been established beyond a reasonable doubt.” Twilegar v. State, 42 So.3d 177, 188 (Fla.2010). However, where the evidence of guilt is wholly circumstantial, “not only must the evidence be sufficient to establish each element of the offense, but the evidence also must be inconsistent with any reasonable hypothesis of innocence proposed by the defendant.” Id. “The issue of inconsistency is a jury question and the verdict will be sustained if supported by competent, substantial evidence.” Id.

In order for the State to obtain convictions for first-degree murder under the felony murder theory in this case, it must prove beyond a reasonable doubt that the unlawful killings of Gibson, Keenan, and Robinson were committed while Smith was engaged “in the attempt to perpetrate” robbery. § 782.04(1)(a)2.d., Fla. Stat. (2012). “In order to prove attempted armed robbery, the State must show: (1) the formation of an intent to commit the crime of robbery; (2) the commission of some physical act in furtherance of the robbery; and (3) the use of a firearm.” Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997). Section 812.13(1), Florida Statutes, defines robbery as “the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.”

The direct evidence standard of review applies to the convictions for the murders of Robinson, Gibson, and Keenan under the felony murder theory. See Twilegar, 42 So.3d at 189-90. Here, the State presented the testimony of Breon Williams, an eyewitness to those crimes. Williams testified that: (1) he went with Smith to buy narcotics; (2) when they arrived at the house, Robinson opened the door, and Gibson and Keenan were sitting at the dining room table; (3) Smith went to the dining room with Robinson; (4) he heard Smith say “[g]ive it up;” (5) seconds later he heard gunshots; and (6) as he ran out of the house, he saw Smith shoot Robinson. Further, forensic evidence— Smith’s palm print on the Plexiglas interi- or of the back door — established that Smith had been at the crime scene, which contradicts his initial assertion that he had never been inside the house.

A rational trier of fact, when viewing the above evidence in the light most favorable to the State, could conclude that the State proved each element of first-degree felony murder beyond a reasonable doubt in the deaths of Gibson, Keenan, and Robinson. First, a rational trier of fact could conclude that Smith attempted to commit armed robbery when he told Robinson to “[g]ive it up” while holding a firearm. Next, a rational trier of fact could also conclude that Gibson, Keenan, and Robinson were unlawfully killed while Smith was attempting to perpetrate the armed robbery based on: (1) Williams’ testimony that he saw Smith shoot Robinson; (2) Williams’ testimony that he saw Gibson and Keenan in the same room a few seconds before the attempted armed robbery; (3) the testimony of law enforcement officers that they found Gibson and Keenan with gunshot wounds at the crime scene shortly after-wards; and (4) the evidence that the gunshot wounds sustained by all three victims were inflicted by the same gun.

In reviewing the sufficiency of the evidence of premeditation in the murders of Gibson and Keenan, the circumstantial evidence standard applies. See id. at 188. The evidence to prove premeditation in the murders of Gibson and Keenan is wholly circumstantial because there were no witnesses to these two murders and Smith’s admission — made in the car as he fled the crime scene — that he shot three people did not establish premeditation. At trial, Smith argued that he was innocent of all crimes charged and the witnesses against him were not credible. On appeal, Smith for the first time claims that the murders of Gibson and Keenan were “reflexive” in response to being shot at by Gibson and Keenan and that the State did not present any evidence to contradict this theory of self-defense. The relevant inquiry regarding whether the circumstantial evidence of guilt is inconsistent with the defense’s theory of innocence is based on the evidence presented and the theory argued to the jury at trial. See id.; State v. Law, 559 So.2d 187, 188 (Fla.1989). Further, even if this Court were to consider Smith’s new self-defense argument on appeal, the evidence conclusively refutes Smith’s claim that Keenan was shooting at him.

This Court has defined premeditation as requiring

more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose to kill may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.

Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (quoting Wilson v. State, 493 So.2d 1019, 1021 (Fla.1986)). This Court has further explained that “[e]videnee from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Twilegar, 42 So.3d at 190 (quoting Larry v. State, 104 So.2d 352, 354 (Fla.1958)).

The evidence of Smith’s guilt under the premeditation theory includes the following: (1) Smith brought a gun with him to the crime scene; (2) Gibson and Keenan retreated to the bedroom area of the house during the brief period of time between Smith’s entering the home and his murdering Robinson; (3) Smith could have left the house through the same door that opens into the kitchen that he used to enter the house and that Williams used to run out of the house; (4) Smith had to move from the kitchen and dining room area into the living room area to shoot Gibson and Keenan; (5) shell casings from Smith’s gun were found in the living room; (6) the shell casings from Smith’s gun that correlated to the wounds sustained by Robinson were found in the kitchen and dining room area; (7) Keenan could not have been shooting at Smith because she was unarmed when police discovered her body and she died within seconds as a result of a gunshot wound piercing her heart; and (8) all of the shell casings from the rifle fired by Gibson were found in the bedroom and hallway area. This evidence establishes that rather than leaving the home after shooting Robinson, Smith made a deliberate choice to locate and shoot Gibson and Keenan, who had retreated to the bedroom area. Therefore, the evidence cannot be reconciled with Smith’s hypothesis of innocence. Accordingly, the evidence of Smith’s guilt is sufficient to support his convictions under both the felony murder and premeditation theories.

B. Weight Assigned to Murder During the Course of a Felony Aggravating Factor

Smith claims that the trial court erred in giving great weight to the murder committed during the course of an attempted armed robbery aggravating factor in the deaths of Gibson and Keenan. The trial court did not err. This Court has stated that “the weight to be accorded to an aggravator is within the discretion of the trial court and will be affirmed if based on competent substantial evidence.” Sexton v. State, 775 So.2d 923, 934 (Fla.2000). “A court abuses its discretion only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Frances v. State, 970 So.2d 806, 817 (Fla.2007) (quoting Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000)) (alteration in original; internal quotation marks omitted). A trial court does not abuse its discretion when it considers the specific facts and circumstances of a defendant’s felony in determining the weight that it should assign to aggravating factors based on that felony. See Carter v. State, 980 So.2d 473, 483 (Fla.2008) (concluding that trial court did not abuse its discretion by considering facts of burglary in assigning great weight to felony committed in the course of burglary aggravator); Owen v. State, 862 So.2d 687, 702-03 (Fla.2003) (concluding that trial court did not abuse its discretion in assigning great weight to aggravating factor that murder was committed in the course of burglary where defendant broke into home to murder babysitter).

Based on the foregoing, the trial court did not err in considering the circumstances of Smith’s crimes when determining the appropriateness of Smith’s two death sentences. Smith was convicted of three contemporaneous murders that occurred after he attempted to rob the occupants of the house he went to with Williams.

Smith, however, asserts that by taking into account the fact that the murders of Gibson and Keenan were premeditated, the trial court impermissibly relied on a nonstatutory aggravator. Smith argues that this Court disapproved of the consideration of premeditation as an aggravating factor in Brown v. State, 381 So.2d 690, 696 (Fla.1980). Brown is distinguishable because the trial court in Brown considered premeditation as a separate aggravating circumstance for the murder. Here, the trial court concluded that the weight that it should apply to the committed during the course of an enumerated felony aggravating factor was increased by the premeditated nature of two of the murders that occurred during the attempted armed robbery.

Smith further asserts that the trial court’s erroneous consideration of premeditation regarding the murders of Gibson and Keenan was exacerbated by the State’s failure to present sufficient evidence of premeditation. For the reasons discussed above regarding the sufficiency of the evidence, the evidence of Smith’s premeditation in the murders of Gibson and Keenan was sufficient. Accordingly, the trial court did not abuse its discretion nor did it apply a nonstatutory aggravating factor by giving great weight to the felony murder aggravating circumstance.

C. Proportionality

To ensure uniformity of sentencing in death penalty proceedings, this Court considers the totality of circumstances and compares each case with other capital cases. The Court does not simply compare the number of aggravating and mitigating circumstances. Taylor v. State, 937 So.2d 590, 600 (Fla.2006). “Further, in a proportionality analysis, this Court will accept the weight assigned by the trial court to the aggravating and mitigating factors.” Hayward v. State, 24 So.3d 17, 46 (Fla.2009). “In performing a proportionality review, a reviewing court must never lose sight of the fact that the death penalty has long been reserved for only the most aggravated and least mitigated of first-degree murders.” Urbin v. State, 714 So.2d 411, 416 (Fla.1998).

Smith’s death sentences are proportional under Florida law. The trial court found two aggravating circumstances for each of Smith’s death sentences: (1) prior capital felony based on the other two contemporaneous murders; and (2) murder in the course of attempted armed robbery merged with pecuniary gain. The trial court found Smith’s age at the time of the crime, nineteen, as the only statutory mitigation and gave it moderate weight. Additionally, the trial court found the following nonstatutory mitigating factors were established: (1) Smith’s mental status (moderate weight); (2) Smith loves his children and their mothers and they love him (some weight); (3) Smith was a good brother to his siblings (little weight); (4) Smith took care of his sister’s seven children while she was at work (moderate weight); (5) Smith is dependable (some weight); (6) Smith was a good employee and therefore he would do well in prison (slight weight); (7) Smith was well behaved during court proceedings (no weight because it is not mitigating); (8) Smith could be rehabilitated in prison and make positive contributions to society (little weight); (9) Breon Williams was never charged with a crime arising out of the murders on June 5, 2007 (no weight because it is not mitigating); (10) Smith grew up in a “terrible” neighborhood (some weight). Smith has not demonstrated that the trial court erred in weighing these factors.

Smith’s death sentences are comparable to the death sentences upheld as proportional in Hayward, 24 So.3d at 46-47 (concluding death sentence proportional where aggravators were prior violent felony resulting from previous second-degree murder, given great weight, and murder committed in the course of a robbery merged with pecuniary gain, given great weight, no statutory mitigation, and eight nonstat-utory mitigators, given very little to some weight), and Bevel v. State, 983 So.2d 505, 523-25 (Fla.2008) (concluding death sentence proportional where single aggravating factor of prior violent felony for contemporaneous murder and attempted murder convictions, given very great weight, no statutory mitigation, and six nonstatutory mitigators, given between very little and minimal weight). Given this record, we conclude that Smith’s death sentences are proportional.

D. Ring Claim

Smith is not entitled to relief on his claim that his death sentences are unconstitutional under Ring. This Court has repeatedly held that Ring is satisfied when the defendant has previously been convicted of a violent felony based on a contemporaneous murder. See, e.g., Chandler v. State, 75 So.3d 267, 269 (Fla.2011); Frances, 970 So.2d at 822-23. Further, this Court has repeatedly held that Ring is satisfied when the defendant commits the murder in the course of an enumerated felony. See, e.g., Gudinas v. State, 879 So.2d 616, 617 (Fla.2004); Owen v. Crosby, 854 So.2d 182, 193 (Fla.2003). Smith was convicted of three contemporaneous first-degree murders and attempted armed robbery by a unanimous jury. Accordingly, Smith’s death sentences are not unconstitutional under Ring.

III. CONCLUSION

For the reasons stated above, we conclude that Smith is not entitled to relief from his convictions and sentences for the first-degree murders of Berthum Gibson, Keenethia Keenan, and Desmond Robinson. Accordingly, we affirm Smith’s convictions and sentences.

It is so ordered.

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


source: Caselaw Access Project

author: CANADY, J.

license: Public Domain

text:
    Leonard J. ACCARDO, et al., Petitioners, v. Gregory S. BROWN, etc., et al., Respondents.
    No. SC11-1445.
    Supreme Court of Florida.
    March 20, 2014.
    Rehearing Denied May 22, 2014.

      Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, Florida; Talbot D’Alemberte and Patsy Palmer of D’Alemberte & Palmer, PLLC, Tallahassee, FL, for Petitioners.
    J. Elliott Messer and Thomas Marshall Findley of Messer, Caparello & Self, P.A., Tallahassee, FL; Roy Van Andrews of Lindsay, Andrews & Leonard, Milton, FL, for Respondents.
    Edward Paul Fleming and Randall Todd Harris of McDonald Fleming Moorhead of Pensacola, FL, for Amicus Curiae Beach Club Towers Homeowners Association, Inc.
    Benjamin K. Phipps, II and Adam Schuyler Brink of Phipps & Howell, Tallahassee, FL, for Amicus Curiae Florida Association of Property Tax Professionals.
   CANADY, J.

In this case, we consider whether the land and improvements on certain leaseholds in Navarre Beach on Santa Rosa Island that were created under long-term leases granted by Santa Rosa County, are subject to the intangible personal property tax rather than the ad valorem real property tax.

In Accardo v. Brown, 63 So.3d 798 (Fla. 1st DCA 2011), the First District Court rejected the claim of the petitioner taxpayers that they were entitled to the benefit of a statutory provision found in section 196.199(2)(b), Florida Statutes (2006), under which certain leasehold or other pos-sessory interests in real property owned by a political subdivision of the State are exempt from ad valorem taxation and subject only to taxation as intangible personal property. The First District concluded that given the nature of their perpetual leasehold interests, the taxpayers are the equitable owners of the real property and the improvements thereon and that the statutory provision relied on by the taxpayers is therefore inapplicable. Accardo, 63 So.3d at 801-02. The District Court certified the following question as one of great public importance:

WHETHER SECTION 196.199(2)(b), FLORIDA STATUTES, IS INAPPLICABLE TO THE REAL PROPERTY AT ISSUE BECAUSE APPELLANTS ARE THE EQUITABLE OWNERS OF THAT PROPERTY?

Id. at 802.

We determined to exercise our discretionary jurisdiction under article V, section (b)(4), Florida Constitution. For the reasons we explain, we answer the certified question in the affirmative and approve the decision reached by the First District.

I. THE LEASEHOLDS IN NAVARRE BEACH

The properties at issue in this case— consisting largely of residential condominiums with some single-family residential units and commercial properties — are located on the portion of Santa Rosa Island known as Navarre Beach, on lands conveyed to Escambia County by the United States in 1947. The deed permitted Es-cambia County to lease the land for purposes it deemed to be in the public interest but provided that the land was “never to be otherwise disposed of or conveyed” by Escambia County. These Navarre Beach lands were leased in 1956 by Escambia County to Santa Rosa County under a lease providing for an initial term of ninety-nine years, “automatically” renewable for a further term of ninety-nine years “on the like covenants, provisions and conditions,” “including the right in lessee for further renewals.” Santa Rosa County subsequently entered into various subleases with private parties for the development of the Navarre Beach lands.

The subleases granted by Santa Rosa County — tracking the renewal provisions of the lease by Escambia County to Santa Rosa County — generally provide for an initial ninety-nine-year term and renewal for a further term of ninety-nine years on like terms “including an option for further renewals.” The subleases provide for the payment of rentals and include no option to purchase. The subleases provide that title to any buildings or improvements on the land vests in the lessor upon the termination of the lease and prohibit the sub-lessee from removing any such improvements. The order of the trial court granting summary judgment to the respondents describes the undisputed features of the interests of the taxpayers arising under the subleases granted by Santa Rosa County:

All of the [taxpayers’] interests at issue in this action are used for purely private purposes. The [taxpayers] enjoy the capital appreciation and rental income derived from these interests. The [taxpayers] have the right to convey their interests without restraint; they have the right to encumber their properties with mortgages; they bear all of the risks of ownership; they bear the responsibility for insurance, maintenance and repair; and they are typically responsible by the terms of the lease documents for taxes imposed upon their interests.

II. THE STATUTORY FRAMEWORK

As provided in section 196.199(1), Florida Statutes (2013), property owned by governmental units is not generally subject to the ad valorem tax. But government property leased to private parties may be subject to ad valorem taxation. Section 196.199(2) provides generally that where government owned property is “used by nongovernmental lessees,” the leasehold interest in the government property shall be exempt from ad valorem taxation only when the lessee serves or performs the governmental, municipal, or public purpose or function as specifically defined by law. This rule regarding the taxation of private leasehold interests in governmental property is qualified by section 196.199(2)(b), which is specifically referenced in the certified question and is central to the petitioners’ argument.

Section 196.199(2) provides in pertinent part:

(2) Property owned by the following governmental units but used by nongovernmental lessees shall only be exempt from taxation under the following conditions:
(b) Except as provided in paragraph (c), the exemption provided by this subsection shall not apply to those portions of a leasehold or other interest defined by s. 199.023(1)(d), Florida Statutes 2005, subject to the provisions of subsection (7). Such leasehold or other interest shall be taxed only as intangible personal property pursuant to chapter 199, Florida Statutes 2005, if rental payments are due in consideration of such leasehold or other interest. All applicable collection, administration, and enforcement provisions of chapter 199, Florida Statutes 2005, shall apply to taxation of such leaseholds. If no rental payments are due pursuant to the agreement creating such leasehold or other interest, the leasehold or other interest shall be taxed as real property. Nothing in this paragraph shall be deemed to exempt personal property, buildings, or other real property improvements owned by the lessee from ad valorem taxation.
(c) Any governmental property leased to an organization which uses the property exclusively for literary, scientific, religious, or charitable purposes shall be exempt from taxation.

Section 196.199(7) provides that “[p]rop-erty which is originally leased for 100 years or more, exclusive of renewal options, or property which is financed, acquired, or maintained utilizing in whole or in part funds acquired through the issuance of [certain governmental bonds], shall be deemed to be owned for purposes of this section.”

The central provision of section 196.199(2)(b) is tied to section 199.023(1)(d), Florida Statutes (2005), which defines intangible personal property as including, subject to an exception not relevant here, “all leasehold or other pos-sessory interests in real property owned by [governmental entities], which are undeveloped or predominantly used for residential or commercial purposes and upon which rental payments are due.” (Emphasis added.)

The provisions in section 196.199(2)(b) were first adopted in 1980 and have not been materially altered since then. Compare § 196.199(2)(b), Fla. Stat. (2013), with § 196.199(2)(b), Fla. Stat. (1980).

III. THE TAXPAYERS’ ARGUMENTS

The petitioners argue that because their leaseholds all are on county property that is either undeveloped or used for residential or commercial purposes, rental payments are due under their leases and their initial lease terms are for less than 100 years, under the plain terms of section 196.199(2)(b), the leasehold interests are taxable only as intangible personal property. They contend that the statute precludes ad valorem taxation “if a leaseholder is declared to have an ‘other interest,’ such as ‘equitable ownership,’ if the lessee is not an actual owner of the property under Florida law.” Petitioners’ Revised Initial Brief on the Merits at 10. The petitioners further argue that in any event, they are not equitable owners. According to the petitioners, there can be no equitable ownership absent the right to acquire legal title. They contend that “[i]f there were ownership, there would be no payment of rent, the leaseholders would have no obligation to construct, insure, or replace the property, and they would be free to move the improvements to another location.” Petitioners’ Revised Initial Brief on the Merits at 24. They further argue that subjecting their renewable ninety-nine-year leases to ad valorem taxation is inconsistent with the provision of section 196.199(7) regarding the taxation of “[pjroperty which is originally leased for 100 years or more, exclusive of renewal options.” The petitioners make some additional arguments that we have determined do not merit discussion.

IV. EQUITABLE OWNERSHIP AND AD VALOREM TAXATION

“The concept of equitable ownership in ad valorem taxation has long been a part of Florida law.” Leon Cnty. Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 528 (Fla.1997). In Bancroft Investment Corp. v. City of Jacksonville, 157 Fla. 546, 27 So.2d 162, 170-71 (1946), we held that the vendee in possession under a contract for deed from the United States — where the United States retained legal title as security — was “the owner of the taxable interest in the property in question, that the United States ha[d] abandoned such use of it as gave it an exemption status” and that the property therefore was subject to ad valo-rem taxation. We recognized that our pri- or decisions had “held that the one who holds the equitable interest is the owner for taxing purposes.” Id. at 171 (citing Porter v. Carroll, 84 Fla. 62, 92 So. 809 (1922) (stating that owner of property for ad valorem tax purposes was not the person who “held the legal title only” but was instead the contract vendee who held “the equitable interest which is the substantial interest”); Dean v. State, 74 Fla. 277, 77 So. 107, 109-110 (1917) (holding that persons who were “vendee[s] in possession” of property had “an equitable freehold estate in the land” and thus were properly allowed to vote as freeholders — that is, ad valorem taxpayers — in election regarding issuance of bonds)). Following our decision in Bancroft, the district courts have repeatedly applied the equitable ownership doctrine in the ad valorem taxation context.

In Mikos v. King’s Gate Club, Inc., 426 So.2d 74, 75-76 (Fla. 2d DCA 1983), the Second District Court held that mobile home tenants who did not have legal title to the lots on which their mobile homes were located should nevertheless be deemed equitable owners of the lots for ad valorem tax purposes. Fee simple ownership of the mobile home park real property was vested in a nonprofit corporation, which was prohibited from selling or leasing any lot or site in the park. Id. at 74-75. The mobile home park had 331 lots. Id. at 75. The corporation had a corresponding number of authorized memberships. Id. The certificates issued to each of the members entitled the member to locate a mobile home at a site designated by the corporate directors, provided for the payment of a monthly maintenance fee, were transferable by sale with the corporation having the right of first refusal, and stated that the certificate holder did not own any interest in the land. Id. The district court thus recognized that “no member owns legal title to the site upon which his mobile home is situated.” Id. The court nonetheless concluded that the mobile home owners held equitable title to their respective lots by virtue of the interest conferred on them as members of the nonprofit corporation. Id. at 76. In reaching this result, the court relied on the provisions regarding homestead exemption in article VII, section 6(a), Florida Constitution, which provides that the homestead exemption is applicable to real estate that is held by “equitable title.” Id. The Second District reasoned that if the mobile home owners “are qualified to obtain homestead exemption on these sites, it follows that their interest in the respective sites is one of ownership.” Id. The court further observed that “[t]o permit the members of the [mobile home park corporation] to avoid the payment of real estate taxes because they maintain their interest in the mobile home sites through the vehicle of a nonprofit corporation would unfairly place a disproportionate burden on other taxpayers of the county.” Id. Because “[e]ach member has practical dominion over his designated site which is essentially equivalent to ownership,” the Second District held that each member’s interest was subject to ad valorem taxation. Id.

In Hialeah, Inc. v. Dade County, 490 So.2d 998, 999-1000 (Fla. 3d DCA 1986), the Third District Court specifically considered application of the version of section 196.199(2) then in force, along with the corresponding definition of intangible personal property contained in section 199.023. The circumstances considered by the court involved a sale-leaseback transaction in which the City of Hialeah purchased the land portion of the Hialeah Park Race Track from Hialeah, Inc., and then leased it back to Hialeah, Inc., for a thirty-year term, with lease payments due from Hialeah, Inc., in an aggregate amount equivalent to the principal and interest due on municipal revenue notes secured by a purchase money mortgage for the funds the city borrowed to-finance the purchase. Id. at 998-99. Upon the payment of the full outstanding indebtedness with an additional $100 payment, Hialeah, Inc., had the option to purchase the city’s fee simple interest in the property. Id. at 998. The Third District rejected the argument of Hialeah, Inc., that its interest in the land was subject only to the intangible personal property tax. Id. at 999-1000.

Rejecting the claim that only leasehold interests falling within the scope of section 196.199(7) — relating to properties originally leased for 100 years or more, exclusive of renewal options, or properties financed by certain governmental bonds — would qualify for ad valorem tax treatment, the court reasoned that the provisions of section 196.199 and section 199.023 concerning taxation as intangible personal property only came into play after a determination that the property was owned by the government. Id. at 1000. In determining whether the property at issue was government owned, the Third District turned to our holding in Bancroft regarding equitable ownership: “Bancroft establishes that property is not government owned under applicable taxing statutes where the government merely holds legal title as security and a taxpayer is the beneficial owner in equity.” Id. at 1000. The court therefore concluded that the Hialeah Park Race Track property was “not government owned because the city holds legal title to the property merely as security” and that Hialeah, Inc., was “the true and equitable owner.” Id. at 1001. The property thus was subject to ad valorem taxation. Id.

In First Union National Bank of Florida v. Ford, 636 So.2d 523, 527 (Fla. 5th DCA 1993), the Fifth District Court resolved a case it described as “the reverse or mirror image of Hialeah, Inc.” The case concerned taxation of property that Bre-vard County used “as its primary governmental and administrative offices.” Id. at 523. The county utilized a financing arrangement “whereby individual investors purchased certificates of participation to raise sufficient funds to build” the county governmental center on donated land. Id. at 524. Title to the land was held by the First Union Bank as trustee for the holders of the certificates of participation. Id. The property was leased by the bank to the county for a projected twenty-five-year term, running from year to year and automatically renewable. Id. Rental payments made by the county were used solely to retire the principal and interest on the debt owed to the owners of the certificates of participation. Id. Under the terms of the lease, once the indebtedness was paid in full, the “Bank must convey legal title to the property in fee to the County.” Id.

The Fifth District concluded “that the County has retained sufficient rights and duties regarding the realty and its improvements, to make it the equitable owner.” Id. The court focused on the fact that “neither the Bank nor the certificate holders have a right nor prospect of ever occupying or using the land and buildings” and reasoned that “the County holds substantially all the burdens and benefits of ownership relating to the property sought to be taxed.” Id. at 524, 527. Accordingly, the Fifth District held that the bank was not liable for ad valorem tax on the property. Id. at 527.

In Leon County Educational Facilities Authority, we considered circumstances similar to those at issue in Ford and reached a result in accord with the result reached by the Fifth District in Ford. The Authority, a governmental entity authorized “to own, lease, and finance higher educational facilities,” decided to undertake a dormitory and food service project. Leon Cnty. Educ. Facilities Auth., 698 So.2d at 527. To accomplish this, a nonprofit corporation was created, and the Authority entered into a lease with an option to purchase agreement with the corporation under which the corporation “as the lessor would acquire, construct, and equip the project and lease it to the Authority in exchange for periodic rental payments.” Id. Certificates of participation were issued to obtain financing for the project under the lease. Id. Once the indebtedness owed to the certificate of participation holders was satisfied, the Authority had the right to purchase the project for one dollar. Id.

After discussing Ford, Bancroft, and Hialeah, Inc., and referring to Mikos, we observed that “[fjairness dictates that the doctrine of equitable ownership should be applied evenhandedly regardless of whether a tax is being imposed or an exemption is being claimed.” Id. at 529. We rejected the argument that Ford was distinguishable and stated that “[t]he fact that legal title to the project does not automatically pass to the Authority upon the termination of the lease as in Ford is not significant in this instance where the Authority can acquire title by paying the nominal consideration of one dollar.” Id. at 529. Based on the facts presented, we held that “the project is not subject to ad valorem taxation because the Authority holds virtually all the benefits and burdens of ownership.” Id. at 530.

V. WARD v. BROWN

Prior to the case now before us, the taxation of leaseholds at Navarre Beach was dealt with most recently in Ward v. Brown, 919 So.2d 462, 463 (Fla. 1st DCA 2005), where the First District Court considered whether the taxpayers bringing the challenge were “equitable owners of the property improvements placed on their leaseholds,” which derived from the lease granted by Escambia County to Santa Rosa County. In evaluating this question, the First District stated:

It is undisputed that appellants have the right to renew their own assigned interests in this land lease for the same term of Santa Rosa County’s lease term from Escambia County, thereby providing appellants with the same right to perpetual renewals. Appellants have the right to use or rent the improvements, encumber their interests, transfer their property rights, and realize any appreciation in value from sale or rental income. They must ensure and maintain the improvements and are responsible for the payment of any taxes.

Id. (footnote omitted).

Based on these circumstances, the First District concluded that the “appellants are equitable owners” of the improvements and subject to ad valorem taxation. Id. The court relied on case law establishing that the lessee under a perpetual lease is in effect the owner of the property. Id. at 463-64 (citing Thompson v. First Nat’l Bank of Hollywood, 321 So.2d 466, 468 (Fla. 4th DCA 1975) (relying on definitions of “[pjerpetual lease” as “renewable forever at the lessee’s option” and “[a] lease of lands which may last without limitation as to time”); J.W. Perry Co. v. City of Norfolk, 220 U.S. 472, 478-79, 31 S.Ct. 465, 55 L.Ed. 548 (1911) (concluding that leases “for ninety-nine years, renewable forever” were perpetual leases in which the tenants were effectively the owners of the property); Wells v. City of Savannah, 181 U.S. 531, 544, 21 S.Ct. 697, 45 L.Ed. 986 (1901) (concluding that lessees under a perpetual lease had rights in the property resembling ownership rather than those of an ordinary tenant); Wright Runstad Props. Ltd. P’ship v. United States, 40 Fed.Cl. 820, 825 (1998) (stating that “where the lease term is perpetual or will outlast the useful life of the capital improvement for which the special assessment is levied, the lessee may be responsible for the assessment since he or she is the sole beneficiary of the improvement”); Penick v. Atkinson, 139 Ga. 649, 77 S.E. 1055, 1057 (1913) (concluding that a perpetual lease is the substantial equivalent of a fee reserving rent)).

The First District specifically rejected the argument that section 196.199(7) “provides a safe harbor from being taxed as equitable owners.” Ward, 919 So.2d at 464. The court stated that “[t]his provision only provides a bright-line test for leases having an initial term of 100 years or more, by deeming them as owned without the need to further address whether there are sufficient rights and duties to consider the lessees as equitable owners.” Id. In reaching this conclusion, the court relied on the analysis in Hialeah, Inc. concerning the scope of section 196.199(7). See Ward, 919 So.2d at 464.

The First District also rejected the appellant taxpayers’ argument that because they were “required to maintain and rebuild the improvements, and the improvements [were] required to be conveyed to Santa Rosa County at the termination of the lease[s]” they could not be deemed the equitable owners of the improvements. Id. at 463 n. 1. The court found this argument unpersuasive “because there is no end to the lease.” Id.

VI. THE EQUITABLE OWNERSHIP OF THE NAVARRE BEACH PROPERTIES

We conclude that Ward correctly applied the doctrine of equitable ownership in holding that the improvements on the leasehold properties were subject to ad valorem taxation. And we conclude that there is no basis for declining to extend the application of the doctrine of equitable ownership to the underlying land that is subject to the perpetually renewable leases. Under the perpetual leases, the interest of the petitioner taxpayers in the underlying land is not materially different from their interest in the improvements. The taxpayers hold “virtually all the benefits and burdens of ownership” of both the improvements and the land. Leon Cnty. Educ. Facilities Auth., 698 So.2d at 530.

We reject petitioner taxpayers’ argument that an equitable ownership interest is an “other” interest referred to in section 196.199(2)(b) and section 199.023(1)(d) that is subject to taxation only as intangible personal property. This argument ignores the full context of the statutory provisions. First, the argument does not take into account the threshold question of whether the property in question is “real property owned by” a governmental entity. § 199.023(1)(d), Fla. Stat. (2005). Our case law regarding the application of the equitable ownership doctrine makes clear that the person or entity holding equitable title to real property will be deemed the owner of the property for ad valorem tax purposes. See Leon Cnty. Educ. Facilities Auth., 698 So.2d at 530; Bancroft, 27 So.2d at 171. The statutory provisions do nothing to alter that preexisting legal rule. Second, the core phrase in the definitional provision is “all leasehold or other possessory interests.” § 199.023(1)(d), Fla. Stat. (2005) (emphasis added). Equitable ownership is not a mere possessory interest. See, e.g., Ward, 919 So.2d at 464; Hialeah, Inc., 490 So.2d at 1000-01. Accordingly, the reference to “other” interests in the definitional provision can have no reference to an equitable ownership interest.

As the First District did in Ward, we also reject the petitioner taxpayers’ argument that equitable ownership can exist under a leasehold only where there is a right ultimately to acquire legal title. The interest of a lessee under a perpetually renewable lease is not materially different from the interest of a lessee under a lease for a term of years providing the right for the lessee to obtain title for nominal consideration upon the termination of the lease. In both circumstances, the lessee effectively has the right to exercise perpetual dominion over the property.

Similarly, we reject the argument that the payment of rent and the other obligations imposed on the petitioner taxpayers by their leases are sufficient to establish that the taxpayers are not the owners of the properties for ad valorem tax purposes. The payment of rent and the bearing of other obligations are typically incident to leaseholds under which the tenant has equitable ownership, just as the payment of purchase money and the bearing of other obligations is a part of a contract for deed under which the vendee will be deemed the equitable owner. Furthermore, many of the obligations of the petitioner taxpayers here are like the obligations typically imposed on owners under a declaration of condominium or the restrictive covenants in a subdivision. None of the obligations imposed on the petitioner taxpayers are sufficient to defeat the conclusion that they hold “virtually all the benefits and burdens of ownership” of the improvements and the land. Leon Cnty. Educ. Facilities Auth., 698 So.2d at 530.

Finally, we reject the petitioner taxpayers’ argument that subjecting their leasehold interests to ad valorem taxation is inconsistent with the provision of section 196.199(7) regarding the taxation of “property which is originally leased for 100 years or more, exclusive of renewal options.” We agree with Ward and Hialeah, Inc. that it must first be determined that the governmental entity is the “owner” of the property — not the mere holder of bare legal title — before there is any reason to consider whether the bright line one-hundred-year rule of section 196.199(7) is applicable. Here, for ad valorem tax purposes, the “owner” of the property is not a governmental entity.

VII. CONCLUSION

We therefore conclude that the taxpayers are the equitable owners of the real property at issue and that section 196.199(2)(b), Florida Statutes, is inapplicable here. The certified question of great public importance is answered in the affirmative, and the decision of the First District Court is approved.

It is so ordered.

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

      . We also decide a related case concerning the taxation of improvements on certain leaseholds in Pensacola Beach on Santa Rosa Island in Escambia County. See 1108 Ariola, LLC v. Jones, 139 So.3d 857, 2014 WL 1057281 (Fla.2014).

      . The petitioner taxpayers point out that some of the subleases are not perpetually renewable, but they do not make an argument that is specific to those leases.


text:
    1108 ARIOLA, LLC, et al., Petitioners, v. Chris JONES, etc., et al., Respondents.
    No. SC11-2231.
    Supreme Court of Florida.
    March 20, 2014.
    Rehearing Denied May 22, 2014.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, FL; Talbot DAlemberte and Patsy Palmer of DAlem-berte & Palmer, PLLC, Tallahassee, FL; Robert Bruce George and Katie L. Dear-ing of Liles, Gavin, Costantino, George & Dearing, P.A., Jacksonville, FL, for Petitioners.
    J. Elliott Messer, Thomas Marshall Findley, and Robert J. Telfer, III of Mes-ser, Caparello & Self, P.A., Tallahassee, FL, for Respondents.
    Edward P. Fleming and Randall Todd Harris of McDonald Fleming Moorhead, Pensacola, FL, for Amicus Curiae Portofi-no Tower One Homeowners Association at Pensacola Beach, Inc.
   CANADY, J.

In this case, we consider whether the improvements on certain leaseholds in Pensacola Beach on Santa Rosa Island that were created under leases granted by-Escambia County are subject to the intangible personal property tax rather than the ad valorem real property tax.

In 1108 Ariola, LLC v. Jones, 71 So.3d 892, 897-98 (Fla. 1st DCA 2011), the First District Court rejected the claim of the petitioner taxpayers that the improvements were not subject to ad valorem taxation. The First District concluded that the taxpayers are the equitable owners of the improvements and that the improvements are therefore subject to ad valorem taxation. Id. at 893. In so holding, the court specifically relied on its earlier decision in Ward v. Brown, 919 So.2d 462 (Fla. 1st DCA 2005), which concerned the ad valorem taxation of the improvements on certain perpetual leaseholds on the portion of Santa Rosa Island located at Navarre Beach in Santa Rosa County. 1108 Ariola, LLC, 71 So.3d at 897-98. By subsequent order, the First District Court certified the following question as one of great public importance:

WHETHER THE APPELLANT-LEASEHOLDERS ARE EQUITABLE OWNERS OF THE LEASEHOLD IMPROVEMENTS ON THE SUBJECT REAL PROPERTY WHEN THEY HAVE NEITHER A PERPETUAL LEASE OF THE UNDERLYING REAL PROPERTY NOR AN OPTION TO PURCHASE SUCH PROPERTY FOR NOMINAL VALUE.

We determined to exercise our discretionary jurisdiction under article V, section (b)(4), Florida Constitution. For clarity, we now rephrase the certified question as follows:

WHETHER A LESSEE CAN HAVE EQUITABLE OWNERSHIP — FOR PURPOSES OF AD VALOREM TAXATION — OF IMPROVEMENTS ON REAL PROPERTY ONLY IF THE LESSEE HAS A PERPETUAL LEASE OF THE UNDERLYING REAL PROPERTY OR THE RIGHT ULTIMATELY TO PURCHASE THE PROPERTY FOR NOMINAL VALUE.

For the reasons we explain, we answer the rephrased certified question in the negative and approve the decision reached by the First District. We address a related question concerning equitable ownership in Accardo v. Brown, 139 So.3d 848, 2014 WL 1057291 (Fla.2014).

I.

Like the properties located in Santa Rosa County that are the subject of the First District’s decision in Ward and of our decision in Accardo, the Escambia County properties at issue here are located on lands conveyed to Escambia County by the United States in 1947. The First District summarized the relevant facts as follows:

All of the leases at issue are for 99-year initial terms. Although many of these leases include renewal options, some contain no renewal option, and none of the leases are automatically renewable .... [A]ll of appellants’ leases here provide that legal title to any building or improvement of a permanent character erected on the premises shall vest in Escambia County, subject to the terms of the leases. The leases require the lessee to make improvements on the property and to repair and maintain those improvements. The leases provide that a leaseholder must rebuild any damaged or destroyed improvement so as to place it in its former condition and that no leaseholder may remove any improvement of a permanent character from the leasehold.
Despite these restrictions, the leaseholders have significant benefits: they may mortgage or otherwise encumber their leaseholds without prior approval of the lessors; they have the ability to convey their leasehold interests by a sublease or assignment; they have the right to rent their leasehold interests for the production of income; and they receive the full benefit of any capital gains or appreciation in the values of their properties. Although there are some variations in the leases, in this proceeding, the parties treated these leases as identical for purposes of determination of the issues in this case.

1108 Ariola, LLC, 71 So.3d at 895.

II.

The petitioner taxpayers argue that they have no equitable ownership interest in the properties at issue because the rights and obligations associated with the leaseholds are similar to those associated with ordinary leases. Their primary argument is that because they have neither the opportunity to acquire legal title to the improvements nor the right to perpetual renewal of their leases, they cannot be deemed the equitable owners of the improvements. The petitioners offer some additional arguments that we have determined do not merit discussion.

III.

In Accardo, we explain at length the significance of the doctrine of equitable ownership in Florida’s law regarding ad valorem taxation and discuss the interaction of the equitable ownership doctrine with the statutory provisions— § 196.199(2), (7), Fla. Stat. (2006); § 199.023(1)(d), Fla. Stat. (2005) — providing for the taxation as intangible personal property of certain leasehold and other possessory interests in property owned by a government entity. No. SC11-1445 at 4-6. In Accardo, we conclude that the taxpayers there are equitable owners who hold “virtually all the benefits and burdens of ownership of both the improvements and the land.” Id. at 16. We reject the “argument that equitable ownership can exist under a leasehold only where there is a right ultimately to acquire legal title.” Id. at 17. Although we have recognized that equitable ownership may exist where a lessee under a lease for a limited term has the right to acquire legal title for nominal consideration, that right is not always a feature of equitable ownership.

Our holding in Accardo that the taxpayers in that case are the equitable owners of both the improvements and the underlying land, turns on the fact that the leases are perpetually renewable. In contrast, this case presents leaseholds that are not perpetually renewable. We conclude, however, that this distinction — along with the absence of the right to obtain legal title for a nominal consideration — is not sufficient to remove the improvements on the properties at issue here from the scope of the equitable ownership doctrine.

Florida law recognizes that regardless of how legal title is held, the improvements on lands owned by a governmental entity may — for ad valorem tax purposes — be “owned” by the lessee of the lands. The final sentence of section 196.199(2)(b) provides that “[njothing in this paragraph shall be deemed to exempt personal property, buildings, or other real property improvements owned by the lessee from ad valorem taxation.” Of course, the reference to “owned by the lessee” must be viewed in the context of Florida’s law concerning equitable ownership and thus cannot be restricted to the holders of legal title to improvements. And nothing in the text of the statute or in the broader legal context suggests that this provision for the ad valorem taxation of “improvements owned by the lessee” is limited to circumstances where the lease of the land is perpetually renewable or the lessee has the right to acquire legal title for a nominal consideration.

Long ago, we held in Gay v. Jemison, 52 So.2d 137, 138-39 (Fla.1951), that improvements constructed by a lessee on government owned lands under a seventy-five-year lease were to be treated as property owned by the lessee. Our reasoning in Gay focused on the fact that the “probable useful life of the buildings” would not exceed the limited term of the leasehold. Id. at 138. Although the issue in Gay was the application of the state sales tax, the reasoning of Gay concerning the ownership of leasehold improvements on lands subject to a lease for a limited term is properly applied in the ad valorem taxation context. See also Offutt Housing Co. v. Cnty. of Sarpy, 351 U.S. 253, 261, 76 S.Ct. 814, 100 L.Ed. 1151 (1956) (holding that the lessee of federal lands under seventy-five-year lease was properly considered the owner of the improvements for purposes of state taxation where the lessee would “enjoy[ ] the entire worth of the buildings and improvements”). Here, the petitioner taxpayers have presented this Court no specific argument concerning the useful life of the improvements.

We thus reject the petitioner taxpayers’ primary argument that the district court’s conclusion that they are the equitable owners of the improvements is defeated by the fact that they have neither the right ultimately to acquire title nor the right to perpetually renew their leases. We also reject the petitioners’ general argument concerning their rights and obligations under the leases for the same reasons we reject a similar argument in Accardo.

IV.

The petitioner taxpayers have failed to present any argument establishing that they do not hold “virtually all the benefits and burdens of ownership” of the improvements at issue. Leon Cnty. Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 530 (Fla.1997). The rephrased certified question is answered in the negative and the decision reached by the First District is approved.

It is so ordered.

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

      . The record does show, however, that some of the leases at issue are perpetually renewable.


author: LABARGA, J. CANADY, J.,

text:
    Dennis J. DORSEY, Petitioner, v. Robert J. REIDER, Respondent.
    No. SC12-2197.
    Supreme Court of Florida.
    March 27, 2014.
    Rehearing Denied May 22, 2014.

      Stewart Dorian Williams of Hunter, Williams & Lynch, P.A., Lauri Waldman Ross and Theresa L. Girten of Ross & Girten, Miami, FL, and Phillip Arthur Hubbart of Wetherington Klein & Hub-bart, Coral Gables, FL, for Petitioner.

      Mark David Tinker and Charles William Hall of Banker Lopez Gassier P.A., St. Petersburg, FL, for Respondent.
   LABARGA, J.

Dennis J. Dorsey seeks review of the decision of the Third District Court of Appeal in Reider v. Dorsey, 98 So.3d 1223 (Fla. 3d DCA 2012), based on misapplication conflict with the decision of this Court in McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the decision of the Third District in Reider and remand for proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

Dennis J. Dorsey brought a personal injury action against Robert J. Reider in the circuit court for Miami-Dade County for injuries Dorsey sustained in 2007 in an altercation that occurred when Dorsey was at bar with Reider and Reider’s friend, Russell Noordhoek, in Pinecrest, Florida. A jury trial was held and the jury returned a verdict for Dorsey, awarding $10,342 for past medical expenses, $40,855 for past lost wages, $669,600 for past pain and suffering, and $850,000 for future pain and suffering. The trial court denied Reider’s motion for a judgment in accordance with his prior motion for a directed verdict. The facts concerning the altercation are set forth in the decision of the district court below as follows:

On August 31, 2007, Dorsey was drinking with Reider and Reider’s friend, Russell Noordhoek, at a neighborhood bar. All three men were intoxicated over the legal limit. While in the bar, Reider became boisterous and belligerent, saying he wanted to fight everyone. Dorsey finally told Reider he was “acting like an asshole,” stood up, and walked out of the bar. Reider and Noordhoek followed, with Reider demanding to know why Dorsey called him an “asshole.” Dorsey ignored Reider and kept walking.
Dorsey’s path took him between Reid-er’s parked truck and an adjacent car. As Dorsey walked between the vehicles, Reider hustled around the other side of his truck and managed to trap Dorsey between the truck bed of his truck and the adjacent car before Dorsey was able to emerge from between the vehicles. Noordhoek followed Dorsey between the vehicles. Reider continued to accost Dorsey over the epithet.
Several minutes into the altercation, Dorsey heard the truck’s door open behind him, turned, and saw Noordhoek reach into Reider’s truck and retrieve a tomahawk — a tool which Reider uses as part of his work to help him clear land. Dorsey turned back to Reider and asked, “what is this?” There was no response. Dorsey then grabbed Reider and attempted to push him to one side in order to escape. Dorsey testified the two men grappled for about fifteen seconds, when all of a sudden, Noordhoek struck Dorsey in the head with the tomahawk, rendering him temporarily unconscious. Noordhoek and Reider fled the scene. Dorsey regained consciousness and drove himself to the hospital. Reider could recall nothing about the tomahawk or Noordhoek’s actions.

Reider, 98 So.3d at 1225. Dorsey had been acquainted with Reider, but Dorsey had never met Noordhoek before that night.

On appeal, the Third District Court of Appeal reversed and remanded for entry of a judgment for Reider, holding that Reider did not owe a relevant duty of care to Dorsey when Dorsey was attacked by Noordhoek, and cannot be held liable for Dorsey’s injuries. Id. at 1228. The district court held that “[i]t might be, indeed it is probable, that Reider’s resistance to Dorsey’s efforts to escape Noordhoek’s blow enabled the strike.” Id. at 1228. Even so, the district court concluded that there was no evidence Reider “colluded with Noordhoek” or knew that Noordhoek had the tomahawk and would strike Dorsey. Id. Because collusion with Noor-dhoek or advance knowledge of the exact injury that might be inflicted on Dorsey are not the tests for determining if Reider owed Dorsey a duty of care under these circumstances, we quash the decision below.

ANALYSIS

We recognized in McCain that the duty of care arises from four potential sources: (1) legislative enactments or administrative regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case. 593 So.2d at 503 n. 2 (emphasis added) (citing Restatement (Second) of Torts § 285 (1965)). We also explained in McCain that the determination of the existence of a common law duty flowing from the general facts of the case depends upon an evaluation and application of the concept of foreseeability of harm to the circumstances alleged. Id. at 502-04. When a person’s conduct is such that it creates a “foreseeable zone of risk” posing a general threat of harm to others, a legal duty will ordinarily be recognized to ensure the conduct is carried out reasonably. Id. at 503. “The duty element of negligence focuses on whether the defendant’s conduct fore-seeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” Id. at 502. This requirement is a “minimal threshold legal requirement for opening the courthouse doors.” Id. (footnote omitted). Once the courthouse doors are opened based on the existence of a legal duty, the proximate cause element still remains and “is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” Id.

We explained in McCain:

The statute books and case law, in other words, are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care. Rather, each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element. For the same reasons, duty exists as a matter of law and is not a factual question for the jury to decide: Duty is the standard of conduct given to the jury for gauging the defendant’s factual conduct. As a corollary, the trial arid appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.

Id. at 503. We further cautioned in McCain that it is important to note the difference between the type of foreseeability required to establish duty as opposed to that which is required to establish proximate causation — establishing the existence of a duty is primarily a legal question and requires demonstrating that the activity at issue created a general zone of foreseeable danger of harm to others. Id. at 502. Establishing proximate cause requires a factual showing that the dangerous activity foreseeably caused the specific harm suffered by those claiming injury. Id. We conclude that the district court erred in finding the facts of this case did not establish a legal duty on the part of Reider. His conduct in blocking Dorsey’s ability to escape from the escalating situation created a foreseeable zone of risk posing a general threat of harm to others. We turn next to the question of whether Reider’s duty to Dorsey extended to injuries caused by the misconduct of a third person, Noordhoek.

In the instant case, the district court correctly noted that generally a party has no legal duty to prevent the misconduct of third persons. See Reider, 98 So.3d at 1225 (citing Carney v. Gambel, 751 So.2d 653, 654 (Fla. 4th DCA 1999)); see also K.M. ex rel. D.M. v. Publix Super Markets, Inc., 895 So.2d 1114, 1117 (Fla. 4th DCA 2005). We also agree with the district court that in determining the duty of care concerning misconduct of third persons, the courts have carved out exceptions where such a duty might arise: where “the defendant is in actual or constructive control of: (1) the instrumentality; (2) the premises on which the tort was committed; or (3) the tortfeasor.” See Reider, 98 So.3d at 1225-26 (quoting Michael & Philip, Inc. v. Sierra, 776 So.2d 294, 297-98 (Fla. 4th DCA 2000)). In deciding if Reid-er met any of these exceptions, the district court indicated that it would judge the applicability of the exceptions through the “foreseeable zone of risk” analysis set forth in McCain and the requirement that “where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon the defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” Reider, 98 So.3d at 1226 (quoting McCain, 593 So.2d at 504). However, in applying this foreseeable zone of risk test, the district court concluded that it must “evaluate whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that ‘in the field of human experience’ the same type of result may be expected again.” Reider, 98 So.3d at 1226 (quoting Michael & Philip, Inc., 776 So.2d at 296-97) (quoting Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 345 (Fla. 4th DCA 1998)). This interpretation of our McCain decision and the proper test to be applied when determining if the defendant’s conduct has created a broad zone of foreseeable risk is incorrect. We made clear in McCain that “[a]s to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” 593 So.2d at 504. The facts of this case clearly establish that Reider’s conduct created a broader zone of foreseeable risk to Dorsey. The inquiry then turns to whether the duty of care created by this conduct extends to the misconduct of Noordhoek, a third party.

The district court concluded that evidence showing Reider failed to lock his truck doors and that he thwarted Dorsey’s efforts to escape both before and after Noordhoek retrieved the tomahawk from the truck was not evidence establishing that Reider had actual or constructive control over the instrumentality or over Noor-dhoek’s conduct. Reider, 98 So.3d at 1226. The cases cited by the district court to support this conclusion are inapposite. In Michael & Philip, the Fourth District Court of Appeal concluded that a gymnasium had no liability for injuries caused when an individual took a patron’s keys from an unsecured area and stole that patron’s car. The district court in Michael & Philip held that “the foreseeable zone of risk created by the placement of a key board on a gymnasium wall does not include a motorist injured many miles and many hours away.” 776 So.2d at 299. In the instant case, the foreseeable zone of risk was created by Reider immediately next to his unsecured truck in which the weapon was located and accessible to Noordhoek, and Reider was present and participating in the altercation when the injury was inflicted. The district court below also relied on Mathis v. American Fire & Casualty Co., 505 So.2d 652 (Fla. 2d DCA 1987), and Keenan v. Oshman Sporting Goods, Co., 629 So.2d 210 (Fla. 5th DCA 1998), in which the courts held that gun owners had no duty of care to the injured parties when third parties took the owners’ guns and shot the plaintiffs’ decedents. In Mathis, the gun owner was out of town when his wife found his gun and killed Mathis. Mathis, 505 So.2d at 652. In Keenan, the gun was stolen from a store’s gun display case, and the thief later used the gun to kill the plaintiffs decedent. See Keenan, 629 So.2d at 210 (Dauksch, J., dissenting to per curiam af-firmance).

After discussing these cases, the district court below stated, “These three cases share a common theme: Merely providing access to an instrument — even a potentially dangerous one and even if that access is the result of negligence — does not equate to a duty to control another person’s use. of that instrument.” Reider, 98 So.3d at 1228. However, in none of those cases were the defendants present and able to exercise any control over the instrumental-ities when the injuries occurred. In this case, Reider was present and had the ability to control access to his truck in which the tomahawk was located. As the district court noted, the evidence indicated that Reider had a remote key device in his pocket. See Reider, 98 So.3d at 1226 n. 3. Moreover, Reider did not “merely provide access” to the tomahawk, he blocked Dorsey’s escape and was present when the instrument was used to injure Dorsey. And, significantly, Reider was in a position to retake control of the tomahawk and prevent the injury — Dorsey testified that when Noordhoek took the tomahawk out of Reider’s truck, Dorsey asked Reider: “Bobby, what is this?” Dorsey testified that ten or fifteen seconds passed before he was struck. In that amount of time, Reider had the opportunity to see Noor-dhoek with the tomahawk before Noor-dhoek struck Reider. We conclude that the totality of the circumstances takes this case out of the “general rule” that one is not liable for injuries caused by a third party.

Reider left a dangerous tool in his unlocked truck, fully accessible to his friend Noordhoek, who obtained the tomahawk and injured Dorsey while Reider was present and blocking Dorsey’s escape. Not only did Reider have, constructive control over the instrumentality, he had actual control over the area — that is, “the premises” — in which Dorsey was trapped and injured.

The district court also concluded that a foreseeable zone of risk was not created by Reider blocking Dorsey’s escape because, although it was probable that such conduct did enable Noordhoek to strike Dorsey with the tomahawk, Reider did not have advance knowledge that Noordhoek was going to do so. Id. However, our McCain decision does not require that to find a duty of care under these circumstances, there must be evidence that the defendant colluded with the third party to cause harm or knew exactly what form that harm might take — only that his conduct created a general zone of foreseeable danger of harm. The exact type of injury that results is not required to be anticipated. See McCain, 593 So.2d at 502, 504.

As we have explained, establishing the existence of a duty requires demonstrating that the activity foreseeably created a “broader ‘zone of risk’ that poses a general threat of harm to others.” Id. at 502. The facts of this case show that Reider’s actions created a broader zone of risk that posed a general threat of harm to others, ie., Dorsey, who was between the two men and unable to escape. The minimal legal threshold to establish duty was therefore met. Whether that duty was breached in a particular instance is ordinarily reserved for the fact-finder. See Williams v. Davis, 974 So.2d 1052, 1057 n. 2 (Fla.2007) (citing McCain, 593 So.2d at 504). We also conclude that this case meets the exception to the general rule that a duty of care does not extend tó misconduct of third parties. Under the specific facts of this case, Reid-er’s duty of care extended to the misconduct of a third party, Noordhoek. Thus, the district court misapplied our precedent in McCain when it concluded as a matter of law that the evidence failed to demonstrate that Reider owed a legal duty of care to Dorsey under the facts of this case.

CONCLUSION

For the foregoing reasons, we quash the decision of the Third District in Reider v. Dorsey and remand this case for reinstatement of the trial court’s judgments.

It is so ordered.

PARIENTE, QUINCE, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

LEWIS, J., recused.

CANADY, J.,

dissenting.

Because I conclude that there is no basis for this Court to exercise jurisdiction, I would discharge this case. Contrary to the view adopted by the majority, the decision of the Third District Court in Reider v. Dorsey, 98 So.3d 1223 (Fla. 3d DCA 2012), does not expressly and directly conflict with McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). I therefore dissent.

In McCain, the plaintiff was injured when the blade of the trencher he was operating struck an underground Florida Power Corporation electrical cable after “[a]n employee of Florida Power had come out earlier and marked those areas where it would be safe to use the trencher.” Id. at 501. The Court concluded that Florida Power owed a duty of care to the plaintiff. Id. at 504. The Court’s decision was partially based on the heightened duty of care owed by power companies based on the nature of their business. Id.

In reaching its conclusion, the Court explained:

Contrary to the tacit assumption made by the district court, foreseeability relates to duty and proximate causation in different ways and to different ends. The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open. As is obvious, a defendant might be under a legal duty of care to a specific plaintiff, but still not be liable for negligence because proximate causation cannot be proven.

Id. at 502-08 (footnote and citations omitted). The Court went on to state: “As to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” Id. at 504. Additionally, the Court stated that power companies “must shoulder a greater-than-usual duty of care in proportion to the greater-than-usual zone of risk associated with the business enterprise they have undertaken.” Id.

In Reider, the Third District addressed the issue of whether Reider owed Dorsey a duty of care to prevent Noordhoek from striking Dorsey with a tomahawk owned by Reider during an altercation in a bar parking lot. 98 So.3d at 1225. In reaching its conclusion that Reider did not owe a duty of care to Dorsey, the Third District applied the “ ‘foreseeable zone of risk’ analysis” outlined in McCain. Id. at 1226. The Third District concluded that because Reider did not have control over Noor-dhoek or control over the tomahawk, Reid-er did not owe a duty of care to Dorsey. Id. at 1228.

McCain is distinguishable from Reider because the negligent act was committed by the defendant’s employee instead of an independent third party. Further, the Court’s decision in McCain was partially based on a power company owing a heightened duty of care. See McCain, 593 So.2d at 504.

The Third District did not misapply McCain within the four corners of its opinion. See Reider, 98 So.3d at 1228. The majority’s conclusion that the Third District misapplied McCain appears to be based on its disagreement with the result reached by the Third District. However, disagreement with the result reached by a district court applying one of our decisions does not warrant the conclusion that the decisions expressly and directly conflict. Accordingly, Reider and McCain are factually distinguishable and do not provide a basis for exercising this Court’s jurisdiction.

POLSTON, C.J., concurs.

      . See Jaimes v. State, 51 So.3d 445, 446 (Fla.2010) (identifying misapplication of decisions as a basis for express and direct conflict jurisdiction under article V, section 3(b)(3), Florida Constitution); Wallace v. Dean, 3 So.3d 1035, 1040 & n. 6 (Fla.2009) (same).

      . The medical testimony established that Dorsey suffered a closed head injury, neck injury, and other injuries, including a severe laceration to his head, closed fracture of his nasal bones, and nerve damage causing long-term numbness in the back of his head and neck. The injuries also resulted in blurred vision, dizziness, and chronic headaches.


author: PER CURIAM.

text:
    Charles H. BURNS, et al., Petitioner, v. PALMS WEST HOSPITAL, etc., et al., Respondent.
    No. SC12-1387.
    Supreme Court of Florida.
    May 22, 2014.
    Scott Donaldson of Donaldson & Weston, P.A., Stuart, FL; Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, FL, for Petitioner.
    Donna M. Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, FL; Mark Hicks and Jedidiah Van-der Klok of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Fourth District Court of Appeal in Palms West Hospital Ltd. Partnership v. Burns, 83 So.3d 785 (Fla. 4th DCA 2011), based on express and direct conflict with Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974 (Fla.2002), Joseph v. University Behavioral LLC, 71 So.3d 913 (Fla. 5th DCA 2011), Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004), Lake Shore Hospital, Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000), Lynn v. Mount Sinai Medical Center, Inc., 692 So.2d 1002 (Fla. 3d DCA 1997), and Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995). See art. V, § 3(b)(3), Fla. Const.; Burns v. Palms W. Hosp., No. SC12-1387, 2013 WL 6978501 (Fla. order entered June 3, 2013). However, upon further consideration, we have determined that we should exercise our discretion to discharge jurisdiction in this cause. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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

CANADY, J., concurs in result.

QUINCE, J., dissents.

PARIENTE, J., recused.


author: LEWIS, J.

text:
    Jeffrey FAWDRY, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-1179.
    Supreme Court of Florida.
    May 22, 2014.
    Lara Nezami of Finnell, McGuinness, Nezami & Andux, P.A., Jacksonville, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, FL, for Respondent.
   LEWIS, J.

We have for review Fawdry v. State, 70 So.3d 626, 627 (Fla. 1st DCA 2011), in which the First District Court of Appeal affirmed a trial court order that denied a motion to suppress evidence found on a cellular phone without a search warrant. The First District certified the following question as one of great public importance:

DOES THE HOLDING IN U.S. v. ROBINSON, 414 U.S. 218 [94 S.Ct. 467, 38 L.Ed.2d 427] (1973) ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST?

Id. at 630-31. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending the disposition of Smallwood v. State, 113 So.3d 724 (Fla.2013). When Smallwood became final, we issued an order directing Respondent to show cause why this Court should not accept jurisdiction, summarily quash the decision in Faw-dry, and remand for reconsideration in light of the decision in Smallwood. Respondent filed a response, but Petitioner did not reply.

Upon consideration of the response, we grant the petition for review, quash the decision in Fawdry, and remand this case to the First District Court of Appeal for further proceedings consistent with the decision in Smallwood.

It is so ordered.

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

CANADY, J., dissents.