source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Ex parte Willie B. SMITH III. (In re Willie B. Smith III v. State of Alabama).
    1111480.
    Supreme Court of Alabama.
    Nov. 16, 2012.
    Kathryn R. Eldridge of Maynard, Cooper & Gale, P.C., Birmingham; Hugh A. Abrams of Sidley Austin LLP, Chicago, Illinois; and Tung Nguyen of Sidley Austin LLP, Dallas, Texas, for petitioner.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   STUART, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and WOODALL, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., dissents.

MAIN and WISE, JJ., recuse themselves.


author: PER CURIAM.

text:
    John Errol FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. SC12-2115.
    Supreme Court of Florida.
    Oct. 17, 2012.
    Benjamin J.O. Lewis of Hogan Lovells U.S. LLP, New York, NY, Christopher T. Handman, Hrishikesh Hari, Erica M. Knievel, and E. Desmond Hogan of Hogan Lovells U.S. LLP, Washington, DC, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Scott Andrew Browne and Stephen D. Ake, Assistant Attorneys General, Tampa, FL, for Appellee.
    Angela Coin Vigil of Baker & McKenzie LLP, Miami, FL and Paul F. Enzinna of Brown Rudnick LLP, Washington, DC, for Amici Curiae.
   PER CURIAM.

John Errol Ferguson appeals an order entered by the Eighth Judicial Circuit Court finding him competent to be executed. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons expressed below, we affirm the circuit court’s Order Finding John Errol Ferguson Sane to be Executed.

On September 5, 2012, Governor Rick Scott signed a death warrant for Ferguson and set the execution for Tuesday, October 16, 2012. On September 24, 2012, Ferguson submitted filings to the Governor, wherein he claimed that he is incompetent to be executed. As required by section 922.07, Florida Statutes (2012), the Governor temporarily stayed Ferguson’s execution on September 26, 2012, and appointed a commission of three psychiatrists to examine Ferguson. As a group, the psychiatrists conducted their examination and issued a joint report declaring Ferguson sane to be executed. After receiving the report of the commission, the Governor determined that Ferguson had the mental capacity to understand the nature of the death penalty and the reasons why it was being imposed upon him. The Governor lifted the stay and the execution remained set for Tuesday, October 16, 2012.

On October 3, 2012, Ferguson filed a motion for stay and hearing after the Governor’s determination of sanity to be executed in the Eighth Judicial Circuit pursuant to Florida Rule of Criminal Procedure 3.811(d) and 3.812. The circuit court issued an order setting the evidentiary hearing for October 9 and 10, 2012. The court then issued a second order staying Ferguson’s execution until 4:00 p.m. Wednesday, October 10, 2012.

On October 8, 2012, Ferguson filed a motion to stay his execution with this Court. This Court denied the stay, but clarified that its scheduling order did not prohibit the circuit court from entering a longer stay if the circuit court deemed it necessary. Upon this clarification, the circuit court extended the stay until Friday, October 12, 2012. Ferguson filed another motion for stay with this Court on October 11, 2012. This Court granted the stay until October 18, 2012.

At the evidentiary hearing, held on October 9 and 10, 2012, the circuit court heard testimony from Dr. George Woods, Dr. Richard Rogers, Dr. Wade Myers, Dr. Tonia Werner, Sgt. Randall Mobley, Correctional Officer Jay Taylor, Sgt. Gerald Whitehead, Warden John Palmer, Assistant Warden Brad Whitehead, Jennifer Sagle, Dr. Enrique Suarez, and one of Ferguson’s counsel who was present at the interview — Patricia Brannan. The experts testified regarding Ferguson’s competency. The lay witnesses testified regarding their daily interactions with Ferguson and all noted that he was not in the habit of making unusual requests or of being uncooperative. After hearing the testimony, on October 12, 2012, the circuit court entered an Order Finding John Errol Ferguson Sane to be Executed. This is Ferguson’s appeal, wherein Ferguson raises two issues.

Sanity to be Executed

Ferguson alleges that the circuit court improperly found him sane to be executed based on its finding that Ferguson’s delusions are a manifestation of a normal Christian belief. Consequently, Ferguson argues that there is not competent, substantial evidence to support the circuit court’s determination. Alternatively, Ferguson argues that the circuit court’s determination was a misapplication of the standard pronounced in Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and that this Court’s opinion in Provenzano v. State, 760 So.2d 137 (Fla.2000), is no longer good law. The State maintains that Ferguson is competent and that no evidence in the record supports his assertion that he is currently insane to be executed. The circuit court found “that though Ferguson does have a diagnosed mental illness, paranoid schizophrenia, there is no evidence that his mental illness interferes, in any way, with his ‘rational understanding’ of the fact of his pending execution and the reason for it.” Ferguson v. State, No. 04-2012-CA-000507 at 18 (Fla. 8th Cir. Oct. 12, 2012) (Order). Because the trial court specifically found that Ferguson suffers from mental illness and rejected the State’s argument that Ferguson malingers, the narrow question for this Court is whether there is competent, substantial evidence to support the trial court’s determination that Ferguson’s mental illness does not interfere with his rational understanding of the fact of his pending execution. Whether Ferguson’s convictions are representative of mainstream Christian principles or delusions that derive from his mental illness does not affect our inquiry. For the reasons expressed below, we find competent, substantial evidence to affirm the circuit court’s order finding Ferguson sane to be executed.

“In order for insanity to bar execution, the defendant must lack the capacity to understand the nature of the death penalty and why it was imposed.” Johnston v. State, 27 So.3d 11, 26 n. 8 (Fla.) (citing § 922.07(3), Fla. Stat. (2009)), cert. denied, — U.S. -, 131 S.Ct. 459, 178 L.Ed.2d 292 (2010); Provenzano v. State, 760 So.2d 137, 140 (Fla.2000) (quoting Fla. R.Crim. P. 3.812(b) (“whether the prisoner lacks the mental capacity to understand the fact of the pending execution and the reason for it”)). The proper standard of review of a trial court’s order pursuant to rule 3.812 is whether the record contains competent, substantial evidence to support the trial court’s finding. See id.; Medina v. State, 690 So.2d 1255, 1256 (Fla.1997).

Florida’s method of determining a prisoner’s competence to be executed stems from the United States Supreme Court’s opinion in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). In Ford, the United States Supreme Court, in a plurality decision, pronounced that “the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford, 477 U.S. at 409-410, 106 S.Ct. 2595. Ford had been sentenced to death in Florida, and his death warrant signed. At the time, when a prisoner raised a question of his sanity to be executed, the Governor alone made the determination and there was no review of the determination by the courts. The United States Supreme Court held that the Eighth Amendment entitled prisoners to an adversarial proceeding where a defendant can present evidence to support the assertion that the defendant is insane to be executed and cross-examine the witnesses presented by the State in support of the defendant’s competence. In response, Florida promulgated Florida Rule of Criminal Procedure 3.812 (providing for a hearing on the prisoner’s insanity to be executed where the court may admit evidence it deems relevant to the issues).

In Provenzano, we explained that Florida, through rule 3.812, adopted the standard promoted by Justice Powell in his concurring opinion in Ford. Provenzano, 760 So.2d at 140 (quoting Fla. R.Crim. P. 3.812(b)). We found that despite the case being troubling due to Provenzano’s mental health problems, “in this context, the Eighth Amendment only requires that defendants be aware of the punishment they are about to suffer and why they are to suffer it.” Id. at 140 (citing Ford, 477 U.S. at 422, 106 S.Ct. 2595 (Powell, J., concurring)).

Ferguson argues that the United States Supreme Court’s decision in Panetti clarified the holding in Ford and constitutes a change in the standard to be applied in rule 3.812 proceedings to represent a stricter standard than that adopted by this Court in its decision in Provenzano. We disagree. The Panetti court explicitly declined to extend its ruling to all competency proceedings. Furthermore, to the extent that Panetti represents any change in the Court’s jurisprudence, the change does not alter our decision in Provenzano.

The issue in Panetti was whether “[t]he state court’s failure to provide the procedures mandated by Ford constituted an unreasonable application of clearly established law as determined by [the Supreme] Court.” Panetti, 551 U.S. at 948, 127 S.Ct. 2842. The Fifth Circuit Court of Appeals required only that Panetti knew the fact of his impending execution and the factual predicate for the execution. Panetti, 551 U.S. at 942, 127 S.Ct. 2842. Acknowledging that “[t]he opinions in Ford ... did not set forth a precise standard for competency,” the Court nevertheless found that the Fifth Circuit’s standard was not sufficient. Panetti, 551 U.S. at 957-60, 127 S.Ct. 2842. The Court stated that “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it [and] Ford does not foreclose inquiry into the latter.” Panetti, 551 U.S. at 959, 127 S.Ct. 2842. The Court, accordingly, rejected the standard pronounced by the Fifth Circuit, but specified that it would “not attempt to set down a rule governing all competency determinations.” Panetti, 551 U.S. at 960-61, 127 S.Ct. 2842. Consequently, Panetti is a narrowly tailored decision that does not overturn this Court’s decision in Pro-venzano.

Similar to the facts in our decision in Provenzano, there is evidence that Ferguson suffers from some mental illness. Specifically, the circuit court found that Ferguson has a documented history of paranoid schizophrenia. Further, the circuit court found “little evidence ... [that leads the circuit court] to believe that Ferguson’s ‘Prince of God’ delusion is anything other than genuine belief.” Additionally, unlike the record in. Provenzano, the circuit court here found a “lack of sufficient evidence of malingering.” However, the record also indicates that Ferguson understands what is taking place and why. Specifically, the record indicates that Ferguson is aware that he has never before had a death warrant signed on his behalf and that he would be the first person to receive Florida’s current protocol of medications for lethal injection.

In this context, the Eighth Amendment requires only that defendants be aware of the punishment they are about to receive and the reason they are to receive it. See Ford, 477 U.S. at 422, 106 S.Ct. 2595 (Powell, J., concurring). Our decision in Provenzano requires that Ferguson understand the connection between his crime and the punishment he is to receive for it. Provenzano, 760 So.2d at 139. In finding Ferguson sane to be executed, the circuit court found that “Ferguson is aware that the State is executing him for the murders he committed and that he will physically die as a result of the execution. There is no evidence that in his current mental state Ferguson believes himself unable to die or that he is being executed for any reason other than the murders he was convicted of in 1978.” Order at 18. We find that there is competent, substantial evidence to support the circuit court’s determination that Ferguson is sane to be executed.

Due Process

In his second argument on appeal, Ferguson alleges that he failed to receive a full and fair hearing because: (1) the State did not give him forewarning of its theory that his delusions constituted mainstream Christian beliefs; (2) he was not permitted to cross examine an expert witness; and (3)he was forced to proceed without a key witness. We have carefully reviewed the parties’ arguments and the record in this case, and find each of these claims to be without merit.

Conclusion

For the foregoing reasons, we affirm the order of the circuit court finding Ferguson sane to be executed. No rehearing will be entertained by this Court. The mandate shall issue immediately. We vacate the stay previously entered.

It is so ordered.

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


text:
    Larry Eugene MANN, Appellant, v. STATE of Florida, Appellee. Larry Eugene Mann, Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC13-425, SC13-458.
    Supreme Court of Florida.
    April 2, 2013.

      John W. Jennings, Capital Collateral Regional Counsel and Marie-Lousie Sam-uels Parmer and Maria E. Deliberato, Assistant Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Carol Marie Dittmar, Katherine Vickers Blanco and Candance Sabella, Assistant Attorneys General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Larry Eugene Mann, a prisoner under sentence of death and under an active death warrant, appeals the circuit court’s orders denying his motion to vacate sentence and public records requests filed pursuant to Florida Rules of Criminal Procedure 3.851 and 3.852 and petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court’s orders denying relief and public records requests and deny Mann’s petition for a writ of habeas corpus.

BACKGROUND

Mann was convicted and sentenced to death for the kidnapping and murder of ten-year-old Elisa Nelson. We affirmed his conviction on direct appeal, but remanded for resentencing because the trial court improperly found the aggravating circumstance of a prior conviction of a felony involving violence. Mann v. State, 420 So.2d 578, 581 (Fla.1982). After re-sentencing, when Mann was again sentenced to death, we affirmed his sentence. Mann v. State, 453 So.2d 784 (Fla.1984).

Governor Bob Graham signed the first death warrant for Mann and scheduled the execution to take place on February 4, 1986. Mann filed his initial postconviction motion under Florida Rule of Criminal Procedure 3.850, which was denied. He appealed to this Court and filed an application for a stay of execution. We affirmed the circuit court’s summary denial and denied Mann’s application for a stay of execution. Mann v. State, 482 So.2d 1360, 1362 (Fla.1986). We likewise denied his petition for a writ of habeas corpus. Id.

Mann filed a petition for a writ of habe-as corpus in the federal district court, which was also denied. He then appealed to the Eleventh Circuit Court of Appeals. The Eleventh Circuit Court reversed Mann’s sentence for failure to comply with Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 281 (1985), and remanded for resentencing. Mann v. Dugger, 844 F.2d 1446, 1458-59 (11th Cir.1988). Mann was again sentenced to death, which was affirmed on direct appeal. Mann v. State, 603 So.2d 1141 (Fla.1992).

We affirmed the denial of Mann’s second postconviction motion. Mann v. State, 770 So.2d 1158, 1164 (Fla.2000). Mann filed a subsequent petition for a writ of habeas corpus, which we denied. Mann v. Moore, 794 So.2d 595, 602 (Fla.2001). We also affirmed the denial of Mann’s third post-conviction motion. Mann v. State, 868 So.2d 524 (Fla.2004) (table). Lastly, we affirmed the denial of Mann’s fourth post-conviction motion, finding that he was not entitled to relief on any of his claims. Mann v. State, 4 So.3d 677 (Fla.2009) (table).

Mann filed the instant motion pursuant to rule 3.851 after Governor Rick Scott signed his death warrant on March 1, 2013, with execution set for April 10, 2013. He raised three claims. The circuit court summarily denied relief on all claims. Mann appeals the denial of his postconviction motion and the denial of his public records requests. He argues that (1) the postconviction court erred in summarily denying Mann’s claim that Florida’s death penalty statute, which allows a non-unanimous verdict, is unconstitutional and violates evolving standards of decency that mark the progress of a maturing society; (2) the postconviction court erred in summarily denying Mann’s claim that Florida’s death warrant selection process is unconstitutional; (3) he has been denied access to public records to which he is entitled, in violation of Florida Rule of Criminal Procedure 3.852, Chapter 119, Florida Statutes, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (4) the United States Supreme Court’s decision in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), operates to permit Mann’s claim that initial review postconviction counsel failed to properly raise and obtain a hearing on a claim of ineffectiveness of trial counsel for failing to present mitigation at Mann’s re-sentencing trial. For the reasons set forth below, we affirm the circuit court’s orders denying postconviction relief and the requests for certain public records and deny Mann’s petition for a writ of habeas corpus.

ANALYSIS

Mann’s postconviction claims are governed by rule 3.851. Whenever a mov-ant makes a facially sufficient claim that requires a factual determination, the circuit court must hold an evidentiary hearing. Amends, to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000); see also Reynolds v. State, 99 So.3d 459, 470-71 (Fla.2012), cert. denied, — U.S. -, 133 S.Ct. 1633, 185 L.Ed.2d 620 (2013); Walker v. State, 88 So.3d 128, 135 (Fla.2012). However, “claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Marek v. State, 8 So.3d 1123, 1127 (Fla.2009)(quoting Connor v. State, 979 So.2d 852, 868 (Fla.2007)). “Because a postconviction court’s decision whether to grant an evi-dentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review.” Id. at 1127 (citing State v. Coney, 845 So.2d 120, 137 (Fla.2003)).

Non-unanimous Jury Verdicts

Mann asserts that Florida’s death penalty scheme that permits the sentence of death based on a simple majority jury recommendation does not conform to society’s evolving standards of decency. We reject this argument by concluding that it is subject to our general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional. The circuit court found this claim procedurally barred because it did “not present any cognizable claim under rule 3.851(d)(2)” and is without merit. Mann argues that the circuit court erred in not holding an evidentiary hearing and improperly denied his claim. We disagree.

A successive rule 3.851 motion may be denied without an evidentiary hearing if the records of the case conclusively show that the movant is entitled to no relief. See Fla. R.Crim. P. 3.851(f)(5)(B). This Court reviews the circuit court’s decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the mov-ant 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, 132 S.Ct. 1904 (2012)). Because Mann raised purely legal claims that have been previously rejected by this Court, the circuit court properly summarily denied relief.

Death Warrant Selection Process

In his second issue on appeal, Mann argues that the unfettered discretion of the Governor to select inmates for execution is unconstitutional because there are no checks on the Governor’s process for selection. The circuit court found that the claim was untimely and without merit.

We have previously and repeatedly denied similar claims. See, e.g., Ferguson v. State, 101 So.3d 362, 366 (Fla.), cert. denied, - U.S. -, 133 S.Ct. 497, 184 L.Ed.2d 312 (2012); Gore, 91 So.3d at 779-80 (holding that the Governor’s unfettered discretion under the Florida Rules of Executive Clemency and separation of powers concerns apply to claims relating to the Governor’s authority to sign death warrants), cert. denied, — U.S. -, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012); Valle v. State, 70 So.3d 530, 551-52 (Fla.) (rejecting a claim that the Governor’s absolute discretion to sign death warrants renders Florida’s death penalty structure unconstitutional), cert. denied, — U.S. -, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011); Marek v. State, 14 So.3d 985, 998 (Fla.2009) (citing Marek v. State, 8 So.3d 1123, 1128-29 (Fla.2009)). Because Mann has not presented any reason for this Court to recede from its prior decisions, Mann’s claim is without merit and was properly denied.

Public Records

In Mann’s third issue on appeal, he argues that he has been denied his constitutional right to access public records. The circuit court denied Mann’s records requests because they failed to meet the requirements of Florida Rule of Criminal Procedure 3.852.

Florida Rule of Criminal Procedure 3.852(i)(2) requires production of public records upon a finding of the following:

(A) collateral counsel has made a timely and diligent search of the records repository;
(B) collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository;
(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and
(D) the additional records request is not overly broad or unduly burdensome.

See Valle, 70 So.3d at 549 (quoting Fla. R.Crim. P. 3.852(i)(2)). We have stated that “a defendant must show how the requested records relate to a colorable claim for postconviction relief and good cause as to why the public records request was not made until after the death warrant was signed.” Tompkins v. State, 872 So.2d 230, 244 (Fla.2003) (citing Glock v. Moore, 776 So.2d 243, 254 (Fla.2001); Bryan v. State, 748 So.2d 1003, 1006 (Fla.1999)). In Sims v. State, 753 So.2d 66, 70 (Fla.2000), we made clear that while the language of the rule and statute provide for the production of records after a death warrant has been signed by the Governor, “this discovery tool is not intended to be a procedure authorizing a fishing expedition for records unrelated to a colorable claim for postconviction relief.” Accordingly, where a defendant cannot demonstrate that he or she is entitled to relief on a claim or that records are relevant or may reasonably lead to the discovery of admissible evidence, the trial court may properly deny a public records request. See Pardo v. State, — U.S. -, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012); Valle, 70 So.3d at 547-49; Tompkins v. State, 994 So.2d 1072, 1090 (Fla.2008).

Here, the circuit court found that Mann failed to demonstrate that the requested public records were relevant to any colorable claim. The underlying claim for which these records were sought is that the Governor’s selection of Mann for a death warrant was somehow tainted ’by public input. However, as we discussed above, Mann’s claim regarding the Governor’s discretion is without merit. Accordingly, even if the records Mann sought could have helped him to accurately support his allegation, the claim is not cognizable. Because the requested records were not relevant to a colorable claim, the trial court properly denied the requests.

Martinez v. Ryan

In his last issue on appeal, Mann argues that the United States Supreme Court’s decision in Martinez operates to permit him to bring an ineffective assistance of counsel claim despite any procedural bar. Mann further argues that our decision in Gore was wrongly decided. The circuit court denied Mann’s claim after finding that Martinez does not provide relief in state court.

As we stated in Gore:

While the decision in Martinez does contain expansive language, a proper analysis reveals that the Supreme Court specifically declined to address the issue of whether a constitutional right to effective assistance of collateral counsel exists:
While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.
Id. at 1313. Even Justice Scalia in his dissent acknowledged that the majority chose to evade this issue. See id. at 1326 (Scalia, J., dissenting) (noting that the reframing of the issue “avoid[ed] the Court’s need to confront the established rule that there is no right to counsel in collateral proceedings”). It appears that Martinez is directed toward federal habeas proceedings and is designed and intended to address issues that arise in that context.

Gore, 91 So.3d at 778. We do not find Mann’s argument persuasive and do not recede from this analysis. Furthermore, because the record demonstrates that Mann’s counsel did present evidence in mitigation, Mann’s underlying ineffective assistance of counsel claim is without merit.

Habeas Petition

Additionally, Mann petitions this Court for a writ of habeas corpus. Mann’s habeas petition contains a restatement of his argument on appeal that Florida’s death penalty scheme, which allows a non-unanimous jury to recommend a sentence of death, is unconstitutional. We deny his petition as procedurally barred. We have previously stated that “habeas corpus petitions are not to be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in a rule 3.850 motion.” Wyatt v. State, 71 So.3d 86, 112 n. 20 (Fla.2011) (quoting Hardwick v. Dugger, 648 So.2d 100, 105 (Fla.1994)). Because Mann’s argument in the instant petition is a restatement of the first argument contained in his postconviction motion and on appeal, we reject the claim. See id. As discussed above, we have discussed and rejected the merits of the claim.

CONCLUSION

Based on the foregoing, we affirm the circuit court’s order denying Mann’s motion for postconviction relief and order denying Mann’s request for public records. We also deny Mann’s petition for a writ of habeas corpus. No rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

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

QUINCE, J„ recused.

      . We described the aggravating and mitigating factors as follows:
      In his written findings the trial judge found that Mann had a prior violent felony conviction, that he committed this murder during the commission of a felony, and that this murder was especially heinous, atrocious, or cruel. The judge found that no statutory mitigators had been established, but that the following nonstatutory mitigators had been: Mann suffered from psychotic depression and feelings of rage against himself because of strong pedophilic urges; Mann had been an exemplary inmate; he had a long history of alcohol and drug dependency; he had demonstrated great remorse; he had developed his artistic talents; and he had maintained a relationship with his family and friends.

        Mann, 603 So.2d at 1142.

      . See Parker v. State, 904 So.2d 370, 383 (Fla.2005) ("This Court has repeatedly held that it is not unconstitutional for a jury to recommend death on a simple majority vote.” (citing Whitfield v. State, 706 So.2d 1 (Fla.1997); Thompson v. State, 648 So.2d 692 (Fla.1994); Brown v. State, 565 So.2d 304 (Fla.1990), abrogated by Jackson v. State, 648 So.2d 85 (Fla.1994); Alvord v. State, 322 So.2d 533 (Fla.1975), abrogated by Way v. State, 760 So.2d 903 (Fla.2000))); Davis v. State, 859 So.2d 465, 479 (Fla.2003) ("This Court has repeatedly rejected [this] argument and held that a capital jury may recommend a death sentence by a majority vote.” (citing Sexton v. State, 775 So.2d 923, 937 (Fla.2000); Thompson, 648 So.2d at 698)).

      . Martinez v. Ryan, - U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).


author: CANADY, J. LABARGA, J.,

text:
    Alejandro ROSADO, Petitioner, v. DAIMLERCHRYSLER FINANCIAL SERVICES TRUST, etc., et al., Respondents.
    No. SC09-390.
    Supreme Court of Florida.
    April 4, 2013.
    Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, FL, and Matthew E. Kaplan of Kaplan and Freedman, P.A., Miami, FL, for Petitioner.
    Michael B. Buckley and Eric W. Neilsen of Buckley Law Group, P.A., St. Peters-burg, FL, for Respondents.
   CANADY, J.

In this case, we once again consider the preemptive scope of the federal law known as the Graves Amendment, 49 U.S.C. § 30106 (2006), which provides that the owner of a motor vehicle who leases the vehicle shall not be vicariously hable for harm that results from the use, operation, or possession of the vehicle during the lease. Specifically, we consider whether the Graves Amendment preempts liability under section 324.021(9)(b)(1), Florida Statutes (2002), which defines when a long-term lessor remains the owner of a leased motor vehicle and thereby subject to vicarious liability for damages caused by the vehicle under Florida’s dangerous instrumentality doctrine. We have for review the decision of the Second District Court of Appeal in Rosado v. DaimlerChrysler Financial Services Trust, 1 So.3d 1200, 1206 (Fla. 2d DCA 2009), in which the Second District certified a question to this Court as one of great public importance: “DOES THE GRAVES AMENDMENT, 49 U.S.C. § 30106, PREEMPT SECTION 324.021(9)(b)(1), FLORIDA STATUTES (2002).” We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we answer the certified question in the affirmative. The Graves Amendment preempts section 324.021(9)(b)(1). Accordingly, we approve the decision under review.

I. BACKGROUND

On January 15, 2003, the LaMon-due Law Firm, located in Virginia, leased a vehicle from Tysinger Motor Company, who later assigned the lessor’s interest to DaimlerChrysler Financial Services Trust (DaimlerChrysler). The four-year lease required the law firm to insure the car for not less than $100,000 per person and $300,000 per accident in bodily injury coverage and $50,000 in property coverage. The law firm permitted Terrell Parham to drive the vehicle, and on June 29, 2003, Parham crossed the median of a Florida highway and collided with a car driven by Alejandro Rosado. The day before the accident, the insurance policy on the vehicle lapsed for nonpayment. Rosado, 1 So.3d at 1202.

Rosado, who sustained injuries in the collision, filed suit in Florida against Carl LaMondue, who executed the lease, the law firm, Parham, and DaimlerChrysler. Rosado alleged that because Daimler-Chrysler had failed to comply with the insurance requirements of section 324.021(9)(b)(1), Florida Statutes (2002), DaimlerChrysler was vicariously liable for Parham’s negligent operation of the car under Florida’s dangerous instrumentality doctrine. DaimlerChrysler moved for summary judgment, contending that its liability, if any, should be based on Virginia tort law and that if Florida law applied, section 324.021(9)(b)(1) was preempted by the Graves Amendment. The trial court concluded that Florida law applied but that the Graves Amendment did preempt section 324.021(9)(b)(1). The trial court, therefore, granted summary judgment in favor of DaimlerChrysler. Rosado, 1 So.3d at 1203.

Rosado appealed the summary judgment in the Second District. First, Rosado asserted that the Graves Amendment was unconstitutional as a violation of the Commerce Clause. Second, he argued that the Graves Amendment was inapplicable to his case because the accident occurred and the lawsuit commenced before the enactment of the Graves Amendment. Third, Rosado asserted that the Graves Amendment did not preempt section 324.021(9)(b)(1) because the federal legislation includes a savings clause that exempts state financial responsibility laws from its preemptive reach. Rosado, 1 So.3d at 1204.

The Second District affirmed the trial court’s ruling that the Graves Amendment preempted section 324.021(9)(b)(1). After rejecting Rosado’s first argument as without merit and his second argument as procedurally barred, the Second District discussed Rosado’s third argument in detail. The Second District concluded that the Graves Amendment precludes states from imposing vicarious liability on automobile lessors and that section 324.021(9)(b)(1) was not an exempted financial responsibility law under the Graves Amendment. The Second District reasoned that 324.021(9)(b)(l) does not “impos[e] financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle” or “impose liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.” Rosado, 1 So.3d at 1205 (quoting 49 U.S.C. § 30106(b)) (alteration in original).

Before this Court, Rosado contends that section 324.021(9)(b)(l) is a financial responsibility law and therefore not preempted by the Graves Amendment. We are not persuaded by Rosado’s argument.

II. ANALYSIS

Under the Supremacy Clause of the United States Constitution, U.S. Const, art. VI, cl. 2, state laws may be preempted by federal laws in three situations: (1) where express federal statutory language so provides; (2) where federal law has so thoroughly occupied a legislative field as to create a reasonable inference that there is no room for the state to supplement it; or (3) where a state law conflicts with a federal law. Vargas v. Enter. Leasing Co., 60 So.3d 1037, 1040-41 (Fla.) (citing N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995); Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983)), cert. denied, — U.S. -, 132 S.Ct. 769, 181 L.Ed.2d 486 (2011). “Whether state law is preempted by federal law is a pure question of law that is subject to de novo review.” Vreeland v. Ferrer, 71 So.3d 70, 73 (Fla.2011), cert. denied, — U.S. -, 132 S.Gt. 1557, 182 L.Ed.2d 166 (2012).

The Graves Amendment, titled “Rented or leased motor vehicle safety and responsibility,” was first enacted in 2005 and provides in part:

(a) IN GENERAL. — An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—
(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and
(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).
(b) FINANCIAL RESPONSIBILITY LAWS. — Nothing in this section supersedes the law of any State or political subdivision thereof—
(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or
(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.

The statute at issue in this case, section 324.021(9), which defines words and phrases used in chapter 324, Florida Statutes, provides in part:

(9) OWNER; OWNER/LESSOR.—
(a) Owner. — A person who holds the legal title of a motor vehicle; or, in the event a motor vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this chapter.
(b) Owner/lessor. — Notwithstanding any other provision of the Florida Statutes or existing case law:
1. The lessor, under an agreement to lease a motor vehicle for 1 year or longer which requires the lessee to obtain insurance acceptable to the lessor which contains limits not less than $100,000/ $300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000 combined property damage liability and bodily injury liability, shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility for the operation of said motor vehicle or for the acts of the operator in connection therewith; further, this subparagraph shall be applicable so long as the insurance meeting these requirements is in effect. The insurance meeting such requirements may be obtained by the lessor or lessee, provided, if such insurance is obtained by the lessor, the combined coverage for bodily injury liability and property damage liability shall contain limits of not less than $1 million and may be provided by a lessor’s blanket policy.
2. The lessor, under an agreement to rent or lease a motor vehicle for a period of less than 1 year, shall be deemed the owner of the motor vehicle for the purpose of determining liability for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the lessee or the operator of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the lessor shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the lessor for economic damages shall be reduced by amounts actually recovered from the lessee, from the operator, and from any insurance or self-insurance covering the lessee or operator. Nothing in this sub-paragraph shall be construed to affect the liability of the lessor for its own negligence.
3.The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage.... Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.

This Court has concluded that section 324.021(9)(b)(2), the portion of section 324.021(9) concerning short-term lessors, conflicts with and is thus preempted by the Graves Amendment. See Vargas, 60 So.3d at 1041. In Vargas, this Court concluded that section 324.021(9)(b)(2), enacted in 1999, “clearly preserved” the existing Florida law imposing vicarious liability on short-term lessors, whereas the Graves Amendment “clearly sought to eliminate vicarious liability” for lessors. 60 So.3d at 1042. This Court then rejected the argument that section 324.021(9)(b)(2) was a financial responsibility law within the savings clause of the Graves Amendment:

Section 324.021(9)(b)2 does not require insurance or its equivalent as a condition of licensing or registration. It also does not require an owner/lessor to meet any financial responsibility or liability insurance requirements under state law, and the liability contemplated — i.e., vicarious liability for damages caused by the negligence of lessees— does not flow from any failure to meet such requirements. Rather, as explained above, section 324.021(9)(b)2 preserves Florida common law vicarious liability by deeming short-term (less than one year) lessors to be “owners” for vicarious liability purposes, while limiting their exposure to damages for such claims. Therefore, it conflicts with and is thus preempted by the Graves Amendment.

Vargas, 60 So.3d at 1042-43.

Rosado contends that this Court should not follow Vargas regarding the long-term lessor portion of section 324.021(9)(b). Rosado relies on section 324.021(9)(a), which since 1955 has provided that “in the event a motor vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement,” “such conditional vendee ... shall be deemed the owner for the purpose of this chapter.” Rosado asserts that under this definition of “owner” in section 324.021(9)(a), a long-term lessor who enters into a lease agreement that includes a right to purchase the vehicle — such as the lease between DaimlerChrysler and the LaMondue Law Firm — is not an owner and therefore not subject to vicarious liability under Florida’s dangerous instrumentality doctrine. Based on this conclusion that section 324.021(9)(a) shields long-term lessors from an owner’s vicarious liability under the dangerous instrumentality doctrine, Rosado asserts that the vicarious liability contemplated by section 324.021(9)(b)(l) must instead be a punishment for long-term lessors who fail to comply with the insurance standards set out in the statute.

Rosado’s argument is without merit. This Court has previously rejected the premise that the definition of “owner” in section 324.021(9)(a) renders a long-term lessor such as DaimlerChrysler not an owner for purposes of the dangerous instrumentality doctrine. A long-term lessor in Florida is by default the owner of the leased vehicle and, as a result of its status as owner, subject to vicarious liability stemming from the operation of that vehicle by the lessee.

In Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363 (Fla.1990), the lessor, General Motors Acceptance Corporation (GMAC), contended that under section 324.021(9)(a), Florida Statutes (1989), it could not be held vicariously liable under the dangerous instrumentality doctrine for the actions of its lessee because the long-term rental argument included an option to purchase the vehicle. This Court rejected the argument that the lessee’s status as an “owner” under section 324.021(9)(a) absolved the long-term lessor of vicarious liability under the dangerous instrumentality doctrine. Kraemer, 572 So.2d at 1366. After explaining that the dangerous instrumentality doctrine was held applicable to lessors in Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959), and that until the district court decision underlying Kraemer, there had been “no subsequent Florida appellate decision limiting the liability of a lessor for hire under the dangerous instrumentality doctrine,” the Kraemer Court concluded that a lease agreement — even one that includes a purchase option — does not pass full beneficial ownership to the lessee and thus “does not warrant the creation of a wholesale exception to the dangerous instrumentality doctrine for long-term leases.” Id. at 1365-66. In other words, where an owner chooses to lease — rather than sell— a vehicle, the lessor-owner remains subject to vicarious liability under Florida’s dangerous instrumentality doctrine.

Furthermore, while concluding that section 324.021(9)(b) was inapplicable to the case due to GMAC’s failure to maintain insurance coverage, the Court expressly stated in Kraemer that section 324.021(9)0) — not section 324.021(9)(a)— provided a limited avenue by which a long-term lessor in Florida could avoid vicarious liability under the dangerous instrumentality doctrine. 572 So.2d at 1367; see also Abdala v. World Omni Leasing, Inc., 583 So.2d 330, 331-32 (Fla.1991) (“Kraemer held that, under Florida’s dangerous instrumentality doctrine, long-term lessors of automobiles are liable for damages caused by drivers of the leased automobiles. In addition, Kraemer recognized that the [Legislature acted to eliminate long-term lessors’ liability under the dangerous instrumentality doctrine, upon the satisfaction of specified preconditions ... as codified at subsection 324.021(9)(b).”).

Under Kraemer and Abdala, long-term lessors are owners subject to vicarious liability under the dangerous instrumentality doctrine — unless they avail themselves of the opt-out options prescribed by section 324.021(9)(b)(l). In Florida, a lessor’s financial responsibility for the negligence of a lessee flows from its status as the owner of the vehicle and Florida’s dangerous instrumentality doctrine, not from the lessor’s failure to purchase insurance. Thus, while the Graves Amendment “clearly sought to eliminate vicarious liability” for all lessors, Vargas, 60 So.3d at 1042, Florida law provides that a long-term lessor is — absent an affirmative action to rid itself of ownership status under section 342.021(9)(b)(l) — the owner of a vehicle and subject to vicarious liability under the dangerous instrumentality doctrine. Accordingly, unless section 324.021(9)(b)(1) is a financial responsibility law within the savings clause of the Graves Amendment, the federal and state laws conflict.

The reasoning from Vargas demonstrates that section 324.021(9)(b)(l) is not such a financial responsibility law. Contrary to the dissent’s claim, a long-term lessor who chooses not to obtain the insurance outlined by section 324.021(9)(b)(l) will not incur any new or additional liability as a result of that decision. Like section 324.021(9)(b)(2), the plain language of section 324.021(9)(b)(l) “does not require insurance or its equivalent as a condition of licensing or registration” and “does not require an owner/lessor to meet any financial responsibility or liability insurance requirements under state law.” Vargas, 60 So.3d at 1042. Rather than requiring a lessor to purchase insurance, the statute creates an option. Under section 324.021(9)(b)(l), a long-term lessor can choose to remain the “owner” of the motor vehicle — and subject to vicarious liability under Florida’s dangerous instrumentality doctrine — or the long-term lessor can opt out of owner status by obtaining a certain amount of insurance coverage or ensuring that the lessee maintains a certain amount of coverage. The Legislature could have chosen to make the insurance limits contemplated in section 324.021(9)(b)(l) mandatory, but instead that Legislature chose to require owners and operators to have proof of only the lesser amount of insurance mandated by section 324.021(7), Florida Statutes (2002), titled “Proof of Financial Responsibility.” As a result, a long-term lessor who chooses not to obtain the insurance outlined by section 324.021(9)(b)(l) will not incur a new financial obligation. Such a long-term lessor will continue to face the existing vicarious liability and financial responsibility imposed by Florida’s common law and other statutes. A long-term lessor who does not obtain insurance will be in the same financial position as he or she would have been if section 324.021(9)(b)(l) had never been enacted.

Rosado also argues that section 324.021(9)(b)(l) should be interpreted as a financial responsibility law because — unlike section 324.021(9)(b)(2) — the statute uses the terms “requires” and “requirements” in regard to insurance coverage. The plain language of section 324.021(9)(b)(1) refutes this argument. “Requires” and “requirements” are used in section 324.021(9)(b)(l) to explain what type of optional coverage will trigger the statutory exception to the dangerous instrumentality doctrine. The statute does not use the terms to indicate that the acquisition or maintenance of insurance is mandatory under Florida law. Section 324.021(9)(b)(l) creates a “mere financial inducement!]” to purchase insurance, not a legal requirement to do so. Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1248 (11th Cir.2008).

Finally, Rosado argues in the alternative that if this Court determines that the Graves Amendment preempted section 324.021(9)(b)(l), DaimlerChrysler should be required to indemnify Rosado for $1,000,000 due to DaimlerChrysler’s failure to maintain insurance. Rosado did not raise this alternative argument for relief in the trial court. As a result, the issue is not preserved for appellate review. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985))).

III. CONCLUSION

Section 324.021(9)(b)(1) is not a law that imposes “financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle” or “liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.” 49 U.S.C. § 30106(b). Rather than imposing financial responsibility or insurance standards, the statute creates a process by which long-term lessors can avoid the default financial responsibility imposed upon them by Florida’s dangerous instrumentality doctrine. As a result, the Graves Amendment preempts section 324.021(9)(b)(l), Florida Statutes (2002). Accordingly, we answer the certified question in the affirmative and approve the decision of the Second District.

It is so ordered.

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

LEWIS, J., concurs in result.

LABARGA, J., dissents with an opinion, in which PARIENTE, J., concurs.

LABARGA, J.,

dissenting.

I respectfully dissent. Section 324.021(9)(b)(l) imposes financial responsibility upon DaimlerChrysler and liability for failure to meet financial responsibility requirements under Florida law. Therefore, the statute is not preempted by the Graves Amendment.

Section 324.021(9)(b)(l) provides that a lessor who, pursuant to an agreement, leases a motor vehicle for one year or longer and requires the lessee to obtain a minimum amount of insurance shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility. In this case, the executed lease was for a period of four years and did indeed require the minimum insurance limits set forth in the statute. Thus, at first glance, under section 324.021(9)0X1), long-term lessor DaimlerChrysler would seem to be exempt from being deemed the owner of the vehicle. However, the story does not end there.

In this case, the vehicle’s insurance coverage lapsed the day before the accident. Section 324.021(9)(b)(l) also provides that this subparagraph, which can potentially relieve a long-term lessor such as Daimler-Chrysler of its role as owner, “shall be applicable so long as the insurance meeting these requirements is in effect.” (Emphasis added). Consequently, because the requisite insurance was no longer in effect at the time of the accident, for the purposes of section 324.021(9)(b)(l), Daimler-Chrysler was the owner of the vehicle when the accident occurred.

The portion of the statute providing that a long-term lessor “shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility” no longer applies in this case because the insurance coverage was not in effect at the time of the accident. It follows, then, that DaimlerChrysler shall be deemed the owner of said motor vehicle for the purpose of determining financial responsibility. Thus, the statute does impose a financial responsibility requirement. The language “for the purpose of determining financial responsibility” could not make this point more clearly.

The failure of the long-term lessor to ensure that sufficient insurance is maintained on a vehicle exposes the long-term lessor to vicarious liability for the negligence of a lessee. The only way that the long-term lessor will avoid such exposure is to assure its own financial responsibility. The statute even directs that where the long-term lessor obtains the insurance, “the combined coverage for bodily injury liability and property damage liability shall contain limits of not less than $1 million and may be provided by a lessor’s blanket policy.” § 324.021(9)(b)(l), Fla. Stat. (2002) (emphasis added). In fact, a long-term lessor must obtain this coverage in order to ensure that it does not end up in the position that DaimlerChrysler found itself on the day of the accident, holding a lease where the lessee’s insurance coverage lapsed.

The savings clause contained in subsection (b)(1) of the Graves Amendment shields from preemption a state law that imposes financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle. The majority here, as it did in Vargas v. Enterprise Leasing Company, 60 So.3d 1037, 1042-43 (Fla.), cert. denied, — U.S. -, 132 S.Ct. 769, 181 L.Ed.2d 486 (2011), suggests that a law that is clearly a financial responsibility law is in essence something else because it does not specify that its purpose is to allow the privilege of registering and operating a motor vehicle. That is what financial responsibility laws do. In order to register a vehicle, proof of financial responsibility is required. In order to operate a vehicle, the vehicle must be registered. A statute that subjects the long-term lessor to liability, should the lessee’s insurance coverage as outlined in section 324.021(9)(b)(1) lapse, indeed imposes a financial responsibility requirement. What the majority opinion refers to as an “option,” majority op. at 1170-71, is no option at all. A long-term lessor must assure its own financial responsibility consistent with section 324.021(9)(b)(1) in order to guarantee that it is not exposed to liability. The Graves Amendment does not preempt section 324.021(9)(b)(1).

Moreover, I agree with the portion of Judge Altenbernd’s concurring in part and dissenting in part opinion where he concludes that subsection (b)(2) of the Graves Amendment savings clause applies:

Subsection (b)(2) exempts state laws “imposing liability on business entities engaged in the trade or business of ... leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.” In Florida, the liability was imposed by common law and the statute provides an insurance option to avoid that liability. If a leasing company fails to meet the liability insurance requirements in section 324.021(9)(b)(l), then Florida common law as explained in Ady [v. Am. Honda Fin. Corp., 675 So.2d 577 (Fla.1996) ] and earlier cases will impose liability on that business. In combination, the common law and section 324.021(9)(b)(1) fits squarely within exception (b)(2) of the Graves Amendment.
I believe that the plain language of exception (b)(2) allows Florida to continue to impose liability on lease car companies that fail to provide the insurance designated in section 324.02[l](9)(b)(l).

Rosado v. DaimlerChrysler Fin. Serv. Trust, 1 So.3d 1200, 1209 (Fla. 2d DCA 2009) (Altenbernd, J., concurring in part and dissenting in part).

DaimlerChrysler is the owner of the motor vehicle for the purpose of determining financial responsibility. The Graves Amendment does not preempt motor vehicle financial responsibility laws nor laws that impose liability on entities like DaimlerChrysler who fail to meet financial responsibility or liability insurance requirements. Therefore, I dissent.

PARIENTE, J., concurs.


text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.516.
    No. SC13-73.
    Supreme Court of Florida.
    April 4, 2013.
    Alexandra V. Rieman, Chair, Judicial Administration Committee, Fort Lauder-dale, FL, John F. Harkness, Jr., Executive Director and Jodi Jennings, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

Before the Court are proposed out-of-cycle amendments to recently adopted Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Documents), which requires e-mail service of pleadings and documents between parties. See Fla. Rule Jud. Admin. 2.140(e). The amendments are proposed by The Florida Bar’s Rules of Judicial Administration Committee (Committee) in response to inquiries received by the Committee, The Florida Bar, and the Clerk of this Court concerning the implementation and interpretation of the new rule. We have jurisdiction and adopt all the Committee’s proposals, except the proposal to change the word “e-mail,” as used throughout the rule, to “email.”

After considering the proposals, we amend rule 2.516 as follows. Subdivisions (b)(1) (Service by Electronic Mail (“email”)) and (b)(1)(B) (Exception to E-mail Service on Attorneys) are amended to allow parties to stipulate to methods of service other than e-mail. Subdivision (b)(1)(A) (Service on Attorneys) is amended to clarify that an attorney need not file a separate designation of e-mail address. Subdivision (b)(1)(D) (Time of Service) is amended to clarify when e-mail service is complete. Subdivision (b)(2) (Service by Other Means) is amended to clarify that if more than one method of service is used, the computation of time is based on the method of service that provides the shortest response time. Finally, we adopt the proposed stylistic changes, other than the proposal to change the word “e-mail” to “email” throughout the rule.

Accordingly, Florida Rule of Judicial Administration 2.516 is amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 2.516 SERVICE OF PLEADINGS AND DOCUMENTS

(a) [No Change]

(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.

(1) Service by Electronic Mail (“email”). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. Whe%~in-addition ■to — service by e-mail, the sender also utilizes-another means of service-provided for in subdivision-(-b)(2),any differing time-limits-and other provisions applicable to that other-means of service control.

(A)Service on Attorneys. Upon appearing in a proceeding, an attorney must serve a designation ofdesig-nate a primary e-mail address and may designate no more than two secondary e-mail addresses. Thereafter, service must be directed to all designated e-mail addresses in that proceeding. Every document filed by an attorney thereafter must include the primary e-mail address of that attorney and any secondary e-mail addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.

(B) Exception to E-mail Service on Attorneys. Service by-an attorney on another attorney must-be-made by e-mail unless excused by — the.court. Upon motion by an attorney demonstrating that the attorney has no email account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision (b)(2) of this rule.

(C) [No Change]

(D) Time of Service. Service by e-mail is complete whenon the date it is sent.

(i) An-e-mail 'is deemed served on the-date-it-is sent.

the sender learns that the email did not reach the address of the person to be served, the sender must immediately send another copy by e-mail, or by a means authorized by subdivision (b)(2) of this rule.

(iii) E-mail service is treated as service by mail for the computation of time.

(E) Format of E-mail for Service. Service, of a document by e-mail is made by an e-mail sent to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.

(i)-(ii) [No Change]

(iii) Any document served by e-mail may be signed by any of the “/s/,” “/s,” or “s/” formats, as long as the filed originaldocument is signed in accordance with the applicable rule of procedure.

(iv) [No Change]

(2) Service by Other Means. In addition to, and not in lieu of, service by email, service may also be made upon attorneys by any of the means specified in this subdivision (b)(2). If a document is served by more than one method of service, the computation of time for any response to the served document shall be based on the method of service that provides the shortest response time. Service on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on .and by all attorneys excused from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or attorney at their last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail is complete upon mailing. Delivery of a copy within this rule is complete upon:

(A)-(F) [No Change]

(c) [No Change]

(d) Filing. All original documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules. If the original of any bond or other document required to be an original is not placed in the court file or deposited with the clerk, a certified copy must be so placed by the clerk.

(e)-(h) [No Change]

      . See In re Amends, to Fla. Rules of Jud. Admin., Fla. Rules of Civ. Pro., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Rules of Traffic Court, Fla. Small Claims Rules, Fla.

        Rules of Juv. Pro., Fla. Rules of App. Pro., and Fla. Family Law Rules of Pro.-E-mail Service Rule, 102 So.3d 505, 509 (Fla.2012) (adopting new .rule 2.516 and conforming amendments to other bodies of rules).

      . The Board of Governors of the Florida Bar approved the proposals by a vote of 28-0.

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

      . See The Gregg Reference Manual ¶ 847(g) (11th ed. 2011) (noting that the hyphenated form of the word e-mail is the one most commonly used and in order to maintain a consistent style, it is better to retain the hyphen in the reference to "e-mail” in rule 2.516, numerous other rules of court and forms have been amended to reference "email.” See, e.g., Fla. Rules Jud. Admin. 2.514(b) (Computing and Extending Time; Additional Time after Service by Mail or Email)), 2.525 (Electronic Filing); Fla. R.Crim. P. 3.070 (Additional Time after Service by Mail, when Permitted, or E-Mail); Fla. Prob. R. 5.042(d) (Time; Additional Time after Service by Mail or E-mail); Fla. Fam. Law R.P. Form-12.900(b); Fla. Sup.Ct. Appr. Fam. Law Form 12.915. The Committee does not propose changing those references.

      . See In re Amends, to Fla. Rules of Jud. Admin., Fla. Rules of Civ. Pro., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Rules of Traffic Court, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rides of App. Pro., and Fla. Family Law Rules of Pro. — E-mail Service Rule & In re Amends, to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., & Fla. Family Law Rules of Pro. — Electronic Filing, Nos. SC 10-2101 & SCI 1-399 (Fla. order filed Oct. 9, 2012) (providing for fast-track consideration of proposed amendments to new e-mail service and e-filing rules).

      . All comments must be filed with the Court on or before June 3, 2013, with a certificate of service verifying that a copy has been served on the Committee Chair, Alexandra V. Rie-man, Broward County Courthouse, 201 S.E. 6th Street, Suite 880, Fort Lauderdale, Florida 33301-3351, arieman@17th.flcourts.org, and on the Bar Staff Liaison to the Committee, Jodi Jennings, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, penning® flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until June 24, 2013, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.