author: PER CURIAM. QUINCE, C.J.,

text:
    Herman LINDSEY, Appellant, v. STATE of Florida, Appellee.
    No. SC07-1167.
    Supreme Court of Florida.
    July 9, 2009.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee.
   PER CURIAM.

Herman Lindsey appeals from á conviction of first-degree murder and a sentence of death. Because we find the evidence presented at trial legally insufficient to support the convictions, we reverse and direct that a judgment of acquittal be entered. See Ballard v. State, 923 So.2d 475 (Fla.2006).

I. FACTS AND PROCEDURAL HISTORY

The felony murder charge against Lindsey resulted from the shooting death of Joanne Mazollo, who was killed during the course of a pawn shop robbery on April 19, 1994. Ms. Mazollo’s body was found in the back room of the Big Dollar pawn shop where she had worked as a clerk. The medical examiner concluded that Ms. Ma-zollo died from a single gunshot wound to the head and that her death was likely instantaneous. Twelve years later, in 2006, Lindsey was charged with the crime, adjudicated guilty, and sentenced to death.

The evidence presented at Lindsey’s trial established that, between 8:00 and 8:30 on the morning of the murder, the owner of the pawn shop, Gerald Singer, went to Big Dollar to set up the store for the day. He spoke to Ms. Mazollo by phone around 9:30 a.m. that morning, as was his routine, and she let him know that she had arrived and everything was okay. Thereafter, around 10:30 a.m., Singer called the shop several times but Ms. Mazollo did not answer. Concerned, Singer got in his car and drove to Big Dollar, where he discovered her dead body slumped in a chair in the back room. Singer testified that between five and seven firearms were missing from the store and that the cash drawer he had filled that morning was empty. Additionally, he stated there were around fifty individual envelopes of jewelry and a blue velvet Crown Royal bag containing jewelry missing from the safe in the back room.

In October 1995, Lindsey gave a taped statement' to police, which was played for the jury, in which he implicated Ronnie LoRay for the crime. He said that on the day of the robbery, LoRay came over to his house and was very upset. He said that LoRay said that “they” robbed a place and that he heard a shot but did not know if the woman was dead or not. Lindsey said LoRay had gold jewelry in his pockets, a few hundred dollars, and a gun. Lindsey admitted being in the store prior to the crime and pawning his Sega under a false name. He also admitted that he sometimes helped LoRay get rid of stolen merchandise. But he denied being involved in the robbery.

The prosecution also played portions of three separate phone conversations Lindsey made from prison. During one of those conversations, Lindsey claimed that he was home with his wife at the time of the crime. In a subsequent call to his mother, Lindsey stated that he was afraid that, because the police had LoRay’s fingerprints, LoRay would try to get a deal with the police by implicating Lindsey. Lindsey said he needed to talk to LoRay and assure him that he would not betray him and to let him know he was not alone. He also stated that he believed that his ex-wife was going to implicate him for the crime.

Several witnesses who testified for the State presented evidence by which the State sought to establish Lindsey’s guilt. First, Demeatres Gause (“Nikki”), Lindsey’s ex-wife, testified that a few days before the murder, she went to Big Dollar with Lindsey and LoRay and that the clerk in the store greeted Lindsey as if she knew him. She further testified that, on the morning of the murder, Lindsey was not in the apartment where she sometimes stayed with him when she awoke between 10:30 and 11:00 a.m., although she admitted he could have been downstairs. Then later, sometime before noon, Lindsey and LoRay arrived at the apartment together, just before the story of the Big Dollar robbery and Ms. Mazollo’s murder appeared on the twelve o’clock news. Nikki noted that Lindsey asked her to turn up the volume on the news report.

At some point later, Nikki diseovei’ed a Crown Royal bag containing jewelry in a closet in the apartment, and she indicated that it had not been there before. Nikki also admitted that several other people lived at the apartment where she only “sometimes” stayed with Lindsey, including Ronnie LoRay, a girl named Marvet, and Marvet’s children. But she said that Lindsey eventually sold the jewelry at a flea market, that she never asked him about the jewelry, and that Lindsey never told her anything about it or the murder and robbery of the pawn shop.

Next, Alfonzer Harrold, described as a very close friend of Nikki’s, testified that he occasionally hung out with Lindsey and LoRay and that the three of them went to Big Dollar pawn shop the day before the murder. Harrold said they were looking around as if they were going to buy something. At first, there was a woman working there alone but then a man came out of the back room so they all left a few minutes later. The next day, LoRay and Lindsey came over to Harrold’s house, and Harrold noticed that LoRay was wearing a new bracelet. Harrold said he later told the police what he knew because he hoped to receive a $1,000 reward that he could use to buy cocaine.

Mark Simms also testified for the State about some comments Lindsey made to him. Simms stated that he met Lindsey in jail on May 20, 1994, about a month after the crime at Big Dollar. A few days later, the two men had a “macho” conversation about robberies. Simms admitted to Lindsey that he was involved in a robbery where someone got shot but not killed. Lindsey replied that Simms should have handled the situation better and that Simms should have killed the person because he saw Simms’s face. Lindsey also told Simms that he had to do that once. Lindsey said he had to kill someone. Simms admitted he had no idea what Lindsey was talking about at the time.

Other evidence revealed that LoRa/s fingerprint was found on a stun gun box that was located in the back room of Big Dollar pawn shop next to the safe. And Lindsey’s thumbprint was recovered from a pawn slip dated March 31, 1994, under the name of David Ashley, the name Lindsey used to pawn his Sega.

At the conclusion of the presentation of the evidence, Lindsey moved for judgment of acquittal, contending that the evidence was insufficient for a conviction and that the State failed to prove its case. The trial court denied the motion.

II. ISSUES ON APPEAL

On appeal, Lindsey raises eighteen issues: (1) the trial court erred in admitting irrelevant testimony; (2) the trial court erred in denying Lindsey’s motion for judgment of acquittal; (3) the trial court erred in allowing a witness to testify that the victim knew Lindsey; (4) the trial court erred in allowing the State to redact a portion of Lindsey’s statements; (5) the trial court erred in admitting evidence that Lindsey had been in jail; (6) the trial court erred in denying Lindsey’s motion to dismiss the indictment; (7) the trial court erred in admitting an autopsy photo into evidence; (8) the trial court erred in sending unrequested evidence to the jury; (9) the trial court erred in denying Lindsey’s request for a new trial; (10) the trial court erred in finding the avoid arrest aggravator; (11) the trial court erred in denying Lindsey’s request for a special jury instruction; (12) the trial court erred in instructing the jury on the avoid arrest aggravator; (13) the death sentence is not proportionate to the crime; (14) the trial court erred in allowing the prosecution to question Lindsey about guilt phase issues during the penalty phase; (15) the trial court erred in allowing the prosecution to impeach Curtis Fox; (16) the trial court erred in giving great weight to the jury’s recommendation of the death sentence; (17) Florida’s death penalty law is unconstitutional; and (18) Florida’s felony murder aggravator is unconstitutional.

Because we find that the trial court erred in denying Lindsey’s motion for a judgment of acquittal, we do not address the other issues.

III. ANALYSIS

Preliminarily, we note that this case is based completely on circumstantial evidence. And, “where a conviction is based wholly upon circumstantial evidence, a special standard of review applies.” Reynolds v. State, 934 So.2d 1128, 1145 (Fla.2006) (quoting Darling v. State, 808 So.2d 145, 155 (Fla.2002)). The special standard requires that the circumstances lead “to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.” Frank v. State, 121 Fla. 53, 163 So. 223, 223 (1935). And, in order for the facts to be “consistent with the defendant’s guilt,” the State must establish every element of the offense. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). As this Court has explained,

[e]vidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.

Ballard, 923 So.2d at 482 (quoting Davis v. State, 90 So.2d 629, 631-32 (Fla.1956)). And, “[although the jury is the trier of fact, a conviction of guilt must be reversed on appeal if it is not supported by competent, substantial evidence.” Id. (quoting Crain v. State, 894 So.2d 59, 71 (Fla.2004)).

In Ballard, we held that it is the duty of “the courts to ensure that the State is held to its burden of proof when someone is charged with a serious crime and liberty and life are at risk.... [When a] case is purely circumstantial, we must determine whether competent evidence is present to support an inference of guilt ‘to the exclusion of all other inferences.’ ” Id. at 485 (quoting Crain, 894 So.2d at 71). In Ballard, investigators determined that one of the four fingerprints found on the bed frame near the victim’s upper torso belonged to the defendant. Id. at 478. In addition, a forensic scientist determined that one of several hairs found in the hand of the victim was consistent with the arm hair of Ballard; but he was unable to determine whether Ballard’s arm hair had fallen out naturally or if it had been forcibly removed. Id. at 479-80. At the close of the State’s evidence, “Ballard moved for a judgment of acquittal, contending that there was a reasonable hypothesis of innocence in that the only evidence that linked Ballard to the case [was] equally consistent with the fact that he was often a guest in [the victims’] apartment.” Id. at 481. This Court agreed. It stated:

In capital cases, this Court has recognized that it has a fundamental obligation to ascertain whether the -State has presented sufficient evidence to support a conviction. Ballard contends that although the State proved that [the victims] were robbed and killed, and one of his hairs and fingerprints was in the apartment, the State failed to prove that Ballard was the perpetrator of those crimes.

Id. at 482.

We find that the present case is controlled by Ballard in that the State’s evidence, while perhaps sufficient to create some suspicion, is simply not sufficient to support a conviction. The entire circumstantial case against Lindsey consists of the following evidence: (1) a Crown Royal bag containing jewelry was taken during the robbery of Big Dollar pawn shop; (2) Nikki found a Crown Royal bag containing jewelry in a closet of an apartment where she sometimes stayed with Lindsey and several other individuals, including LoRay; (2) Lindsey eventually sold the jewelry from the bag in the closek at a flea mar-két; (3) Lindsey told Simms that Simms should always kill witnesses to crimes and that Lindsey had to do that. No evidence shows that the bag of jewelry Nikki found in the closet is the same bag of jewelry that was missing from the pawn shop safe. In addition, no evidence shows that Lindsey placed the bag in the closet or that he ever had possession of it before he sold the items at a flea market. Furthermore, while we specifically decline to address whether Simms’s testimony was even admissible on relevancy grounds, we nevertheless find that there is nothing in Lindsey’s statements to Simms that, when combined with all the other evidence, is sufficient to convict him for the murder of Ms. Mazollo.

The State established that Lindsey made several visits to the pawn shop prior to the murder and that Ms. Mazollo appeared to know him. Yet, the State failed to produce any evidence in this case placing Lindsey at the scene of the crime at the time of the murder. Even if Lindsey was not home at the time the crime occurred, it does not mean that he was out robbing the Big Dollar pawn shop or killing Ms. Mazollo. Indeed, we find that the evidence here is equally consistent with a reasonable hypothesis of innocence. Even if the State had proved that the bag of jewelry Nikki discovered was the same bag of jewelry missing from the pawn shop, it would not be dispositive here because LoRay, as well as several other people, had access to the closet where Nikki discovered the bag containing jewelry; and Lindsey admitted that he sometimes helped LoRay get rid of stolen merchandise.

Consequently, we find that the evidence presented to support an inference of guilt does not exclude all other inferences. While we agree that the evidence here does seem suspicious, even a “deep suspicion the appellant committed the crime charged is not sufficient to sustain conviction.” Williams v. State, 143 So.2d 484, 488 (Fla.1962); see also Ballard, 923 So.2d at 482 (“Suspicions alone cannot satisfy the State’s burden of proving guilt beyond a reasonable doubt....”).

IY. CONCLUSION

Accordingly, we conclude that the evidence here is insufficient to support Lindsey’s conviction. Therefore, we reverse and vacate the conviction and sentence and remand with directions that a judgment of acquittal be entered.

It is so ordered.

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

QUINCE, C.J., concurs with an opinion, in which PARIENTE and PERRY, JJ., concur.

QUINCE, C.J.,

concurring.

I concur in the majority’s decision that the evidence is insufficient to support Lindsey’s conviction, but write separately because I find the State’s line of questioning of Lindsey during the penalty phase improperly exceeded the scope of cross-examination and that the trial court erred in allowing the prosecution to question Lindsey about guilt phase issues.

During the penalty phase, Lindsey took the stand and testified during direct examination solely about his family and childhood. Then, on cross-examination, the prosecution began by asking, “Mr. Lindsey, tell me about the first time you met the lady at the pawn shop.” Defense counsel timely objected, and a sidebar conference ensued. At sidebar, the State argued that the defense brought in the guilt phase because it had presented witnesses during the penalty phase to attack the credibility of State witness Mark Simms. The court ruled: “What’s good, as they say, for the gander. Going to, of course, the aggravating circumstances. You can’t go into every last thing, but going into the aggravating circumstances, those specifically relating to the Simms’ issues. Overruled.”

Thereafter, the prosecution continued to question Lindsey about Joanne Mazollo and the pawn shop:

Prosecutor: Tell me about the first time you met the lady at the pawn shop.
Lindsey: I don’t remember.
Prosecutor: Okay. You don’t remember going in and pawning something under the name of David Ashley?
Lindsey: Yes, I do remember that.
Prosecutor: And you don’t remember the lady who was there?
Lindsey: Not right off hand, no.
Prosecutor: When we heard your ex-wife Nikki testify that she was in the pawn shop with you a couple of days before the murder, and you and the woman greeted each other, because you knew each other, tell me about that.
Lindsey: She said that when I came in it was like we knew each other. Any place I go, I always show respect for the person that’s there.
Prosecutor: So you were there, met the lady that day. Tell me what you remember about it.
Lindsey: I’m not saying I was there that particular day. I’m just saying, when I go into places, I’d be respectful of people.
Prosecutor: Okay. How about the day before the murder?
Lindsey: I don’t recall.
Prosecutor-: Do you recall when you went back in there with Ronnie Lo-Ray and Alfonzer Harrold?
Lindsey: I don’t recall that.
Prosecutor: You don’t remember that?
Lindsey: No, I don’t remember that.
Prosecutor: She was seated in a chair.
She didn’t resist you, did she?
Defense: Objection. Argumentative.
Court: Sustained.
Prosecutor: Why did you put a gun to her head and pull the trigger?
Lindsey: I didn’t.
Defense: Objection, Your Honor, goes to—
Prosecutor: Goes to why he did it.
Defense: —what we said at sidebar.
Court: Overruled.
Prosecutor: Why did you do that?
Lindsey: I didn’t.
Prosecutor: So the jury is wrong?
Lindsey: I think the jury is mistaken.

Section 90.612(2), Florida Statutes (2006), provides:

Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.

“Thus, as a general rule, the questions on cross-examination must be no more broad in scope than those on direct.” Green v. State, 688 So.2d 301, 305 (Fla.1996) (holding that it was error to allow questions on cross-examination related to a witness’s prior use of alcohol when questions on direct were limited to use of alcohol on the night of the murder); Salas v. State, 972 So.2d 941, 956 (Fla. 5th DCA 2007) (“[C]ross examination must relate to credibility of the witness or be germane to the matters brought out on direct examination.”) (citing Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982)). These rules regarding cross-examination apply to all witnesses, including a defendant who takes the witness stand as Lindsey did in this case.

This Court has also defined the permissible scope of cross-examination as follows:

When the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere pai’ts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief.

Zerquera v. State, 549 So.2d 189, 192 (Fla.1989) (quoting Coxwell v. State, 361 So.2d 148, 151 (Fla.1978)). And if a party wishes to elicit testimony on cross-examination that goes beyond what has been testified to in the direct examination, he must make the witness his own. Steinhorst, 412 So.2d at 337. To be clear, a party cannot use cross-examination as a vehicle for presenting evidence. Id.

Here, the prosecution’s questioning of Lindsey greatly exceeded the allowable scope of cross-examination. Lindsey never broached the subject of Mazollo or the pawn shop murder during his direct examination. Rather, Lindsey’s testimony on direct was limited solely to his childhood and his relationship with his family. The prosecutor’s entire questioning of Lindsey on cross-examination regarding Mazollo (i.e., how Lindsey knew the woman at the pawn shop; the fact that the woman was seated and did not resist Lindsey; why Lindsey put the gun to the woman’s head and pulled the trigger) had nothing to do with Lindsey’s relationship with his family or his childhood.

Thus, the trial court abused its discretion in allowing the prosecution to exceed the scope of direct during its cross-examination of Lindsey during the penalty phase. See Salas, 972 So.2d at 956 (“An appellate court reviews a trial court’s ruling concerning the scope of cross-examination for an abuse of discretion.”). I conclude that this error was not harmless. The prosecution’s comments were not only improper, but were also prejudicial and made with the apparent goal of inflaming the jury. Therefore, it cannot be concluded that these comments did not affect the jury’s decision to impose the death penalty. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

PARIENTE and PERRY, JJ., concur.

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

      . LoRay is currently incarcerated for second-degree murder for the death of Ms. Mazollo and the robbery of Big Dollar pawn shop. LoRay was arrested in December 2005, a few months before Lindsey was charged.

      . Although the State contended in its opening argument that Nikki would testify that Lindsey and LoRay came into the apartment on the morning of the robbery and murder carrying bags of jewelry, her actual testimony at trial was that she saw a Crown Royal bag of jewelry in a closet at some later date.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eddie Lee STEADMAN, Petitioner, v. STATE of Florida, Respondent.
    No. SC08-2469.
    Supreme Court of Florida.
    July 9, 2009.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Susan M. Shanahan, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review Steadman v. State, 997 So.2d 417 (Fla. 2d DCA 2008) (table), in which the Second District Court of Appeal cited as authority its decision in Gisi v. State, 948 So.2d 816 (Fla. 2d DCA 2007), quashed, 4 So.3d 613 (Fla.2009). At the time the Second District issued its Stead-man decision, Gisi was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending our disposition of State v. Rabedeau, 2 So.3d 191 (Fla.2009) (disapproving the Second District’s Gisi decision), and Gisi v. State, 4 So.3d 613 (Fla.2009) (quashing the Second District’s Gisi decision). We then issued an order directing respondent in the present ease to show cause why we should not accept jurisdiction, quash the Second District’s underlying Steadman decision and remand for reconsideration in light of our decisions in Rabedeau and Gisi. Upon considering respondent’s response, and petitioner’s reply thereto, we have determined to so proceed.

We accordingly accept jurisdiction and grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Second District for reconsideration upon application of this Court’s decisions in Rabedeau and Gisi

It is so ordered.

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


text:
    Bruce MADEIROS a/k/a Bruce Medeiros, Petitioner, v. STATE of Florida, Respondent.
    No. SC08-2153.
    Supreme Court of Florida.
    July 9, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and August A. Bonavita, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Madeiros v. State, 992 So.2d 370 (Fla. 4th DCA 2008), in which the Fourth District Court of Appeal cited as authority the Second District Court of Appeal’s decision in Gisi v. State, 948 So.2d 816 (Fla. 2d DCA 2007), quashed, 4 So.3d 613 (Fla.2009), and certified conflict with the Fifth District Court of Appeal’s decision in Rabedeau v. State, 971 So.2d 913 (Fla. 5th DCA 2007), approved, 2 So.3d 191 (Fla.2009). At the time the Fourth District issued its Madeiros decision, both Gisi and Rabedeau were pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending our disposition of State v. Rabedeau, 2 So.3d 191 (Fla.2009) (approving the Fifth District’s Rabedeau decision and disapproving the Second District’s Gisi decision), and Gisi v. State, 4 So.3d 613 (Fla.2009) (recognizing approval of the Fifth District’s Rabedeau decision and quashing the Second District’s Gisi decision). We then issued an order directing respondent in the present case to show cause why we should not exercise jurisdiction, quash the Fourth District’s underlying Madeiros decision and remand for reconsideration in light of our decisions in Rabedeau and Gisi Respondent in its response concedes that it cannot show such cause.

We have accordingly determined to exercise jurisdiction and grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fourth District for reconsideration upon application of this Court’s decisions in Rabedeau and Gisi.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Robert Gene BRUCE, Respondent.
    No. SC08-2127.
    Supreme Court of Florida.
    July 9, 2009.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Donna A. Gerace, Assistant Attorneys General, Tallahassee, FL, for Petitioner.
    Nancy A. Daniel, Public Defender, and Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction in the case of Bruce v. State, 993 So.2d 155 (Fla. 1st DCA 2008), in which the First District Court of Appeal ruled upon a question certified to be of great public importance. See art. V, § 3(b)(4), Fla. Const. Having-considered the First District’s opinion and the briefs of the parties, upon further review, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss review.

It is so ordered.

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

CANADY, J., dissents.


text:
    Johnathan R. STEELE, a/k/a Jonathan Steele, Petitioner, v. STATE of Florida, et al., Respondents.
    No. SC08-1865.
    Supreme Court of Florida.
    July 9, 2009.
    Jonathan Steele, pro se, Daytona Beach, FL, for Petitioner.
   PER CURIAM.

Jonathan R. Steele, an inmate in state custody, filed a pro se petition for writ of mandamus. For several years, Steele has been unsuccessfully attempting to collaterally attack his conviction and the sentence imposed by the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, in State v. Steele, Case No. CR96-CF-3036. In June 1996, Steele was convicted of second-degree murder and sentenced to seventeen years and six months of imprisonment, to be followed by twenty years under community control.

Since Steele’s conviction and sentence became final, he has filed numerous petitions in this and other courts. The Fifth District Court of Appeal has previously barred Steele from filing any petitions for extraordinary writ relief related to his conviction and sentence unless such requests for relief are signed by a member in good standing of The Florida Bar. See Steele v. State, 989 So.2d 1223 (Fla. 5th DCA 2008).

On or about October 1, 2008, Steele filed the instant petition and a supplement thereto. Steele requests us to compel the Department of Corrections to allow him to inspect and copy records related to his conviction. Steele asserts that these records will provide him with exculpatory evidence with which to overturn his conviction and sentence. After considering the filings, on December 11, 2008, we denied Steele’s mandamus petition as successive. In so doing, we also expressly retained jurisdiction to pursue possible sanctions against Steele. Steele v. State, 998 So.2d 1146 (Fla.2008) (table report of unpublished order) (No. SC08-1865). On the same day, we ordered Steele to show cause why the Clerk of this Court should not be directed to reject any future pleadings, petitions, motions, letters, documents, or other filings submitted to this Court by him related to his conviction or sentence.

In his response to our order to show cause, Steele first argues that the facts and law support a conclusion that his instant petition is not successive and, therefore, our order denying the petition should be vacated. Next, Steele argues that he is actually innocent of the crime for which he was convicted. Steele further argues that the initiation here of his previous twenty-six cases was not an abuse of process because we never ruled on the merits of those cases. Finally, Steele argues that his body of litigation before this Court has not risen to the level of the “egregious abuse of process” necessary to warrant sanctioning a pro se litigant as contemplated by State v. Spencer, 751 So.2d 47 (Fla.1999). For the reasons that follow, we reject Steele’s arguments and impose the appropriate sanction.

Since 1999, Steele has initiated twenty-seven separate proceedings in this Court, including this petition involving his conviction or sentence entered by the Ninth Judicial Circuit Court in and for Orange County, Florida, in Case No. CR96-CF-3036. We have never granted Steele any relief that he has requested. See Steele v. State, No. SC08-1790 (Fla. Mar. 19, 2009), 2009 WL 746898 (table) (discretionary review denied); Steele v. State, 974 So.2d 387 (Fla.2008) (table) (notice to invoke discretionary jurisdiction dismissed); Steele v. State, 966 So.2d 968 (Fla.2007) (table) (prohibition petition dismissed as moot); Steele v. McDonough, 961 So.2d 934 (Fla.2007) (table) (mandamus petition dismissed for lack of jurisdiction); Steele v. State, 961 So.2d 934 (Fla.2007) (table) (mandamus petition dismissed for lack of jurisdiction); Steele v. State, No. SC05-2095 (Fla. Jan. 18, 2006) (mandamus petition transferred to Ninth Judicial Circuit); Steele v. State, 917 So.2d 195 (Fla.2005) (table) (mandamus petition denied); Steele v. State, 915 So.2d 1197 (Fla.2005) (table) (all writs petition dismissed for lack of jurisdiction); Steele v. State, 914 So.2d 955 (Fla.2005) (table) (notice of appeal dismissed for lack of jurisdiction); Steele v. Crosby, No. SC05-681 (Fla. Apr. 25, 2005) (notice of appeal transferred to Fifth District); Steele v. State, 901 So.2d 120 (Fla.2005) (table) (prohibition petition dismissed for lack of jurisdiction); Steele v. Crosby, No. SC05-267 (Fla. Mar. 7, 2005) (habeas corpus petition transferred to Ninth Judicial Circuit); Steele v. State, 862 So.2d 728 (Fla.2003) (table) (prohibition petition dismissed as premature); Steele v. State, 857 So.2d 197 (Fla.2003) (table) (all writs petition dismissed for lack of jurisdiction); Steele v. State, 853 So.2d 1071 (Fla.2003) (table) (notice to invoke discretionary jurisdiction dismissed); Steele v. Gardner, 847 So.2d 979 (Fla.2003) (table) (notice to invoke discretionary jurisdiction dismissed); Steele v. State, 837 So.2d 412 (Fla.2003) (table) (mandamus petition dismissed for lack of jurisdiction); Steele v. State, 835 So.2d 270 (Fla.2002) (table) (mandamus petition dismissed for lack of jurisdiction); Steele v. State, No. SC02-1800 (Fla. Sept. 25, 2002) (prohibition petition transferred to Fifth District Court of Appeal); Steele v. State, 828 So.2d 389 (Fla.2002) (table) (all writs petition dismissed for lack of jurisdiction); Steele v. Moore, 805 So.2d 810 (Fla.2001) (table) (habeas corpus petition dismissed in part, transferred in part); Steele v. Beary, 786 So.2d 1189 (Fla.2001) (table) (all writs petition dismissed for lack of jurisdiction); Steele v. Beary, 773 So.2d 57 (Fla.2000) (table) (notice to invoke discretionary jurisdiction dismissed); Steele v. State, 762 So.2d 918 (Fla.2000) (table) (notice to invoke discretionary jurisdiction voluntarily dismissed); Steele v. State, 751 So.2d 1254 (Fla.2000) (table) (notice to invoke discretionary jurisdiction dismissed); Steele v. Sentinel Commc’ns, 748 So.2d 510 (Fla.1999) (table) (petition denied on the merits).

These filings were either, like the instant petition, devoid of merit or inappropriate for review in this Court. Steele’s response shows neither justification for using nor remorse about misusing the limited judicial resources of this Court. In addition, Steele’s assertion that his mandamus petition was erroneously denied, contrary to our determination that the claim was successive, is wholly without merit. Thus, Steele has failed to show cause why he should not be sanctioned. We conclude that, unless he is stopped, Steele will continue filing meritless requests for relief in this Court regarding his conviction or sentence.

This Court and the United States Supreme Court have, when necessary, exercised inherent judicial authority to sanction abusive litigants. See, e.g., Martin v. D.C. Court of Appeals, 506 U.S. 1, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992); In re Sindram, 498 U.S. 177, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991); In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989); Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Tate v. McNeil, 983 So.2d 502 (Fla.2008); Sibley v. Fla. Jud. Qual Comm’n, 973 So.2d 425 (Fla.2006); Lanier v. State, 908 So.2d 332 (Fla.2005); Jean v. State, 906 So.2d 1055 (Fla.2005); Armstead v. State, 817 So.2d 841 (Fla.2002); Peterson v. State, 817 So.2d 838 (Fla.2002); Jackson v. Fla. Dept of Corr., 790 So.2d 398 (Fla.2001); Rivera v. State, 728 So.2d 1165 (Fla.1998); Attwood v. Singletary, 661 So.2d 1216 (Fla.1995).

One important purpose for a court-imposed sanction is to protect the rights of other petitioners to have the Court conduct timely reviews of their legitimate filings. See Martin, 506 U.S. at 3, 113 S.Ct. 397 (imposing sanction where petitioner’s filings for certiorari review had a deleterious effect on the Court’s fair allocation of judicial resources); see also Peterson, 817 So.2d at 840 (“This Court has a responsibility to ensure every citizen’s right of access to the courts.... A limitation on [the petitioner’s] ability to file would further the constitutional right to access for other litigants because it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others.”).

The United States Supreme Court has also stated that “[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. at 184, 109 S.Ct. 993.

In Pettway, after the petitioner had initiated his twentieth case in this Court that was either devoid of merit or inappropriate for review, this Court barred any further pro se filings related to the petitioner’s conviction and sentence. 987 So.2d at 22-23. Similarly, in Tate, this Court barred any further pro se filings related to the petitioner’s conviction and sentence after he had initiated his eighteenth case that was either devoid of merit or inappropriate for review here. 983 So.2d at 503-04. Following our review of Steele’s filings in this Court, we conclude that Steele has repeatedly initiated frivolous proceedings, has abused the processes of this Court, and has hindered the ability of this Court to resolve other cases that are properly before it. Therefore, sanctions are merited on this record.

Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Jonathan R. Steele that are related to his conviction or sentence in Ninth Judicial Circuit Case No. CR96-CF-3036 unless such filings are signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Steele is not being wholesale denied access to the Court. Steele may petition the Court about his conviction or sentence in Case No. CR96-CF-3036 through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith. However, Steele’s abusive pro se filings related to his conviction or sentence must immediately come to an end.

Furthermore, since we have in this opinion found that Steele has repeatedly initiated frivolous proceedings, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2008), to forward a certified copy of this opinion to the Department of Corrections’ institution where Steele is incarcerated.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . See Jenkins v. Wainwright, 322 So.2d 477, 478 (Fla.1975) (plurality opinion) (dicta) (de-daring that one may not pursue the same relief by the same writ in more than one court).


text:
    ADVISORY OPINION TO THE ATTORNEY GENERAL RE REFERENDA REQUIRED FOR ADOPTION AND AMENDMENT OF LOCAL GOVERNMENT COMPREHENSIVE LAND USE PLANS.
    No. SC06-521.
    Supreme Court of Florida.
    July 9, 2009.

      Bill McCollum, Attorney General, Louis F. Hubener, Solicitor General and Leah L. Marino, Deputy Solicitor General, Tallahassee, FL, for Petitioner.
    Ross Stafford Burnaman, Esquire, on behalf of Florida Hometown Democracy, Inc., Tallahassee, FL, as Sponsor.
   PER CURIAM.

The Attorney General of Florida has requested this Court’s opinion as to the validity of a financial impact statement that relates to an initiative petition circulated pursuant to article XI, section 3 of the Florida Constitution. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10), Fla. Const.

In 2006, this Court approved for placement on the ballot a proposed constitutional amendment relating to amending comprehensive land use plans. See Advisory Op. to Att’y Gen. re Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 938 So.2d 501 (Fla.2006) (Land Use Plans I). This proposed amendment would require local governments to submit a new comprehensive land use plan, or an amendment to an existing plan, to a vote by referendum prior to adoption.

While this Court considered the validity of the petition, the Attorney General also requested that we review the corresponding financial impact statement to evaluate whether it complied with section 100.371, Florida Statutes (2006). In our initial decision, we concluded that we had jurisdiction to review and, if necessary, reject proposed financial impact statements. See Advisory Op. to Att’y Gen. re Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 963 So.2d 210, 213-14 (Fla.2007) (Land Use Plans II). We determined that the statement in its then-current form did not meet the statutory requirements and remanded the statement to the Financial Impact Estimating Conference (FIEC) to be redrafted. See id. at 214-15.

After the statement was revised, the Attorney General requested that we again review the revised financial impact statement to evaluate whether it complied with section 100.371, Florida Statutes (2007). For a second time, we rejected and remanded the statement to the FIEC, holding that this second statement “suffer[ed] from the same flaw which led us to hold that the impact statement in Land Use Plans II did not comply with the requirements of section 100.371.” In re Advisory Op. to Att’y Gen. re Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 992 So.2d 190, 192 (Fla.2008) (Land Use Plans III).

On October 14, 2008, the Attorney General filed the second revised financial impact statement with this Court and requested an opinion with regard to whether the second revised statement complies with section 100.371, Florida Statutes (2008). The statement provides:

The amendment’s impact on local government expenditures cannot be estimated precisely. Local governments will incur additional costs due to the requirement to conduct referenda in order to adopt comprehensive plans or amendments thereto. The amount of such costs depends upon the frequency, timing, and method of the referenda, and includes the costs of ballot preparation, election administration, and associated expenses. The impact on state government expenditures will be insignificant.

The proponent of the amendment now asserts that the second revised financial impact statement is proper. For the reasons addressed below, we hold that this statement complies with section 100.371.

ANALYSIS

This Court’s review is narrow: the Court is to determine only whether the statement complies with the requirements provided in the Florida Constitution and the statutes. Article XI, section 5, Florida Constitution, addresses financial impact statements and provides in relevant part:

(c) The legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by initiative pursuant to section 3.

(Emphasis supplied.) Pursuant to article XI, section 5(c), the Legislature set forth the following provisions, addressing the financial impact statement:

(5)(a) Within 45 days after receipt of a proposed revision or amendment to the State Constitution by initiative petition from the Secretary of State, the Financial Impact Estimating Conference shall complete an analysis and financial impact statement to be placed on the ballot of the estimated increase or decrease in any revenues or costs to state or local governments resulting from the proposed initiative. The Financial Impact Estimating Conference shall submit the financial impact statement to the Attorney General and Secretary of State.
(c)....
2. Principals of the Financial Impact Estimating Conference shall reach a consensus or majority concurrence on a clear and unambiguous financial impact statement, no more than 75 words in length, and immediately submit the statement to the Attorney General. Nothing in this subsection prohibits the Financial Impact Estimating Conference from setting forth a range of potential impacts in the financial impact statement. Any financial impact statement that a court finds not to be in accordance with this section shall be remanded solely to the Financial Impact Estimating Conference for redrafting. The Financial Impact Estimating Conference shall redraft the financial impact statement within 15 days.

§ 100.371(5), Fla. Stat. (2008).

Based on these statutory requirements, in reviewing a financial impact statement, the Court has “limited itself only to address whether the statement is clear, unambiguous, consists of no more than seventy-five words, and is limited to address the estimated increase or decrease in any revenues or costs to the state or local governments.” Land Use Plans II, 963 So.2d at 214. In addressing whether the financial impact statement is clear and unambiguous, we review whether the statement of potential impact is misleading, vague, or confusing.

Here, the initial financial impact statement provided as follows:

The direct impact of this amendment on local government expenditures cannot be determined precisely. Over each two year election cycle, local governments cumulatively will incur significant costs (millions of dollars statewide). Costs will vary depending on the processes employed by cities and counties in obtaining approval for plan amendments. The direct impact on state government expenditures will be insignificant. There will be no direct impact on government revenues.

Land Use Plans II, 963 So.2d at 214. We found the second sentence was defective, explaining:

Specifically, [the sentence] states that “[o]ver each two year election cycle, local governments cumulatively will incur significant costs (millions of dollar's statewide).” This statement, however, assumes that numerous local governments will have out-of-cycle changes to their respective comprehensive land use plans, necessitating special elections. Although the Financial Impact Estimating Commission is speculating that local government will be holding special out-of-cycle elections, the statement itself does not indicate that the estimated millions of dollars is dependant upon how many times counties and cities throughout the State will attempt out-of-cycle amendments to their comprehensive land use plans. In fact, the apparent purpose of the proposed amendment is to limit the amount of revisions to a county’s or a city’s comprehensive land use plan. The Commission’s assumption assumes that the proposed amendment will not have its intended effect.

Id. at 214-15.

After remand, the FIEC revised the financial impact statement to provide:

The direct impact of this amendment on local government expenditures cannot be determined precisely. It is probable that local governments will incur significant costs (millions of dollars statewide) with actual costs dependent upon the frequency and method of referenda. Costs will include those for ballot preparation and additional administrative costs and expenses for the referenda. The direct impact on state government expenditures will be insignificant. There will be no direct impact on government revenues.

Land Use Plans III, 992 So.2d at 192. We found this revised statement to be defective for the same reasons. We first held that the statement was problematic because the statement gave “the misleading impression that the proposed amendment will not have its intended effect” and that it assumed that special elections would be an inevitable result of this amendment. Id. at 192-93. Second, the financial impact statement was misleading because it concluded “that local governments will incur ‘millions of dollars’ statewide if the amendment is approved” and that this estimate was based upon “purely speculative assumptions,” including assumptions as to how often local governments will adopt or amend their comprehensive land use plans, whether the amendment or adoption of the plan will require a special election, and the costs and expenses of any election. Id. at 193. On a related issue, we found that the vague reference to “significant costs” and “millions of dollars” was problematic because such terminology could lead citizens to “believe that the implementation of the amendment would automatically cost hundreds of millions of dollars.” Id.

The current financial impact statement does not suffer from the same defects as the prior two versions. First, the statement no longer implies that the proposed amendment will automatically require any out-of-cycle elections; thus, there is no longer any concern that the financial impact statement will lead voters to believe that the proposed constitutional amendment will not have its intended effect of reducing the number of plan amendments. Second, the statement eliminates the prior vague terms that could be interpreted as requiring the expenditure of millions of dollars if the financial impact statement is approved. While the financial impact statement clearly notes that local governments will incur additional costs to conduct referenda, it simply lists those items that will clearly be required by the plan amendment, including the costs of preparing and printing the ballot and relating to election administration and associated expenses.' The financial impact statement no longer speculates on these expenses, acknowledging that the precise cost is highly variable and listing the factors upon which the costs depend. Because the statement is “clear, unambiguous, consists of no more than seventy-five words, and is limited to address the estimated increase or decrease in any revenues or costs to the state or local governments,” Land Use Plans II, 963 So.2d at 214, we find that the financial impact statement as currently drafted complies with the mandates of Section 100.371, Florida Statutes (2008).

It is so ordered.

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

CANADY and POLSTON, JJ., concur in result only.


author: CANADY, J. LEWIS, J.,

text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Petitioners, v. P.E., Respondent.
    No. SC09-169.
    Supreme Court of Florida.
    July 16, 2009.

      Bill McCollum, Attorney General, Tallahassee, FL, Kelley Schaeffer, Assistant Attorney General, Tampa, FL and Jeffrey Dana Gillen, Statewide Appeals Director, Department of Children and Families’ Children’s Legal Services, West Palm Beach, FL; and M. Linville Atkins, General Counsel, Mercedes E. Scopetta, Regional Counsel, and Annette Lizardo, Appellate Counsel, Statewide Guardian Ad Litem, Orlando, FL, for Petitioners.
    Lorena L. Kiely, Plant City, FL, for Respondent.
   CANADY, J.

We have for review the decision in In re H.E., 3 So.3d 341 (Fla. 2d DCA 2009), review granted, sub nom. Florida Department of Children & Family Services v. P.E., 4 So.3d 676 (Fla.2009), in which the Second District Court of Appeal addressed a question of statutory construction regarding a parent’s implied consent to termination of parental rights under section 39.801(3)(d), Florida Statutes (2007), The statute provides for entry of such consent upon a parent’s “failure to personally appear at the adjudicatory hearing.” § 39.801(3)(d). The Second District held that when the trial court enters a parent’s consent to termination under the statute, the Department of Children and Family Services (Department) is not required to present evidence to support any of the statutory grounds for termination alleged in the petition.

On that point, the Second District certified conflict with the Third District Court of Appeal’s opinions in S.S. v. State Department of Children & Family Services, 976 So.2d 41 (Fla. 3d DCA 2008), and R.H. v. Department of Children & Family Services, 860 So.2d 986 (Fla. 3d DCA 2003), and the Fifth District Court of Appeal’s opinion in Department of Children & Families v. A.S., 927 So.2d 204 (Fla. 5th DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we agree with the Second District’s resolution of the conflict issue, but we disapprove of a portion of its reasoning. Accordingly, we quash its decision in part and disapprove of the Third and Fifth Districts’ holdings on the conflict issue.

I. BACKGROUND

In early August 2005, the six-month-old child ELE. was removed from P.E., the mother, and placed in shelter care by the Department. The child was later adjudicated dependent, and in July 2007 the Department filed a petition for termination of parental rights, alleging the following statutory grounds: abandonment; continued involvement of the parent threatens the child irrespective of services; continued abuse; abandonment or neglect after filing a case plan; and material breach of the case plan. See § 39.806(1), Fla. Stat. (2007).

The mother appeared at the advisory hearing held on July 5, 2007. The trial court expressly informed her of the date, time, and location of the adjudicatory hearing and told her that her presence was necessary and that she could lose her parental rights if she failed to appear at the adjudicatory hearing. The court also appointed counsel for the mother and instructed P.E. to call her attorney that day. Before she left the hearing, the mother signed a “Notice to Appear” that contained the dates, times, and locations of both the pretrial conference and the adjudicatory hearing and which contained the following warning:

FAILURE TO PERSONALLY APPEAR FOR A SCHEDULED TERMINATION OF PARENTAL RIGHTS ADJUDICATORY HEARING, [sic] CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF YOUR CHILD(REN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.

On July 80, the court issued an order after the pretrial conference with counsel for the parties, which again provided the information regarding the date, time, and location of the adjudicatory hearing. Copies of the order were sent to the parties, including the mother and her counsel.

The trial court convened the adjudicatory hearing on August 20, 2007, and upon report that P.E. was not present, sent the bailiff to sound the halls for her. The mother’s counsel was present but offered no information regarding P.E.’s whereabouts. Finally, the trial court found that the mother had been given the required notice and that her failure to appear constituted consent to the allegations in the petition for termination of parental rights under section 39.801(3)(d). Because the guardian ad litem was unexpectedly unavailable to testify, the court set a permanency hearing for September 25.

Eighteen days later, on September 7, the mother through counsel filed a “Motion for Rehearing” seeking to vacate the consent entered by the trial court when she failed to appear at the adjudicatory hearing. Without factual elaboration, the mother alleged that her failure to appear was “not willful” and resulted from a “misunderstanding.” At the hearing on the mother’s motion held on September 21, the mother testified, admitting that at the advisory hearing she signed the notice to appear. However, she testified that although she could have, she did not read the information about the adjudicatory hearing in the notice. She claimed that she appeared at court on the wrong day based on incorrect information from the child’s father and that she then called her attorney only to discover the adjudicatory hearing was previously held. The case manager testified that after the July 5 advisory hearing she told the mother of the importance of attending the adjudicatory hearing and the consequence of nonattendance. She also stated that the mother had the written documents containing the pertinent hearing information.

The trial judge reviewed the transcript from the adjudicatory healing and found that she had specifically informed the mother of the hearing dates and the consequences for failing to appear and that the mother also received written notice. Further, the trial court found the mother’s testimony was not credible. Accordingly, the court denied the mother’s motion.

At the subsequent hearing on September 25, the guardian ad litem testified regarding the child’s manifest best interests and recommended the termination of parental rights. At the conclusion of the hearing, the trial court entered an order terminating the mother’s parental rights, based on the mother’s statutory consent to termination resulting from her failure to appear at the adjudicatory hearing. The court also found that termination was in the manifest best interests of the child and was the least restrictive means for protecting the child.

On appeal, the mother raised three issues, but the Second District addressed only one — the mother’s contention that despite the trial court’s entry of the mother’s consent, the Department was required to prove the grounds for termination alleged in the petition. In re H.E., 3 So.3d at 342. As explained below, the district court rejected this contention and certified conflict with two other district courts on the issue. Id. at 343-44.

II. CONFLICT IN THE DISTRICT COURTS

The question presented to the Second District — and now to this Court — concerns the interplay of several statutes that govern the termination of parental rights. To clarify the conflict, we first outline the operation of the relevant statutory provisions.

Under section 39.802, Florida Statutes (2007), the operation of the provisions for terminating a parent’s parental rights begins with the filing of a petition. The statute provides for the contents of the petition as follows:

(4) A petition for termination of parental rights filed under this chapter must contain facts supporting the following allegations:
(a) That at least one of the grounds listed in s. 39.806 has been met.
(b) That the parents of the child were informed of their right to counsel at all hearings that they attended and that a dispositional order adjudicating the child dependent was entered in any prior dependency proceeding relied upon in offering a parent a case plan as described in s. 39.806.
(c) That the manifest best interests of the child, in accordance with s. 39.810, would be served by the granting of the petition.

§ 39.802(4) (emphasis added). Section 39.806(1), in turn, provides specific statutory grounds for termination. One of the grounds is voluntary surrender through which a parent formally consents to termination:

(a) When the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption and the department is willing to accept custody of the child.
1. The surrender document must be executed before two witnesses and a notary public or other person authorized to take acknowledgments.
2. The surrender and consent may be withdrawn after acceptance by the department only after a finding by the court that the surrender and consent were obtained by fraud or under duress.

§ 39.806(1) (emphasis added). The other grounds for termination listed in the statute are involuntary in nature. See § 39.806(l)(b)-(i). In this case, for example, the Department alleged several involuntary grounds under the statute, such as abandonment and that continued parental involvement threatened the child irrespective of services. See id. § 39.806(l)(b)-(c).

After the petition is filed, the case is set for an advisory hearing. See § 39.802(3). Section 39.801 establishes requirements for service and notice and specifically addresses the problem presented in this case of a parent who fails to appear at the adjudicatory hearing. Section 39.801(a) requires that parents be given notice of the advisory hearing and served with a copy of the petition and specifies the language of the notice as follows:

The document containing the notice to respond or appear must contain, in type at least as large as the type in the balance of the document, the following or substantially similar language: “FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.”

The consequence for failing to appear at the advisoiy hearing or the adjudicatory hearing is clearly stated in the statute as follows:

(d)If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice. If a parent appears for the adviso7y hearing and the court orders that parent to personally appear at the adjtidicato'ry hearing for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjtidicatory hearing shall constitute consent for termination of parental rights.

§ 39.801(d) (emphasis added).

In H.E., the Second District examined these statutes to determine whether they require the Department to present evidence of one of the grounds alleged in the petition under section 39.806 after a parent’s consent to termination is entered under section 39.801(3)(d) for failure to appear. 3 So.3d at 342-43. The Second District reasoned that the statutorily required implied consent for failure to appear is a voluntary termination essentially equivalent to the voluntary surrender in section 39.806(l)(a) described above, which is one of the statutory grounds for termination. Id. at 343. Accordingly, the Second District concluded that once the consent is entered, the Department is not “required to present evidence of an additional ground for termination.” Id.

The Second District certified conflict with opinions from the Third and Fifth District Courts of Appeal “to the extent that those cases require the Department to present evidence as to the grounds for termination once a consent for nonappearance is entered.” In re H.E., 3 So.3d at 343-44. As explained below, each of these cases conflicts with the Second District’s holding in P.E.

In R.H., the Third District reached the opposite result on similar facts. When the father failed to attend the adjudicatory hearing, the trial court entered the parent’s consent under section 39.801(3)(d) and later denied the father’s motion to vacate the consent. R.H., 860 So.2d at 987-88. The Third District reversed on several grounds, one of which was the trial court’s error in terminating “the father’s parental rights without the taking of any evidence in support of such termination.” Id. at 988. The district court expressly rejected the contention that the consent alone was sufficient for termination. Id. Then, in S.S., the court relied on R.H. in addressing the mother’s second issue on appeal — the claim that entry of the implied consent of section 39.801(3)(d) based on her nonappearance at the advisory hearing was insufficient to support the termination of parental rights. S.S., 976 So.2d at 42. The district court stated that even when the statutory implied consent is entered, the Department “nevertheless must prove, by competent substantial evidence, those allegations in the petition.” Id.

The Third District’s opinion in S.S. also relied on the Fifth District’s decision in AS., the third conflict case. Although the procedural posture of the case differs from the other cases, including H.E., the Fifth District in A.S. addressed the questions of whether the trial court’s entry of the implied consent of section 39.801(3)(d) upon a parent’s failure to appear constitutes a voluntary or an involuntary termination and whether, despite entry of the consent, the Department must prove the grounds alleged in the petition. AS., 927 So.2d at 205. The Fifth District concluded that “the Legislature never intended for consent under section 39.801(3)(d) to be a ground for termination,” id. at 207, and “that the Legislature never intended that presumed, implied, or constructive consent under section 39.801(3)(d) transforms an involuntary proceeding into one that is voluntary,” id. at 208-09. Because the implied consent is neither voluntary nor a ground for termination, the Fifth District reasoned that “consent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination.” Id. at 208.

III. ANALYSIS

The question presented is whether when a consent to termination of parental rights has been entered under section 39.801(3)(d) upon the parent’s failure personally to appear at the adjudicatory hearing, the trial court must nevertheless receive evidence on the grounds for termination alleged in the petition for termination of parental rights. This issue is one of statutory interpretation; accordingly, our review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007). Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning. Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1, 5 (Fla.2004). Where the statute’s language is clear or unambiguous, courts need not employ principles of statutory construction to determine and effectuate legislative intent. See Polite v. State, 973 So.2d 1107, 1111 (Fla.2007); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Further, “[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992).

We have previously acknowledged the balancing of interests evidenced in the statutes governing the termination of parental rights:

[T]he district court correctly recognizes that unwarranted delay is an evil that should be avoided in termination of parental rights proceedings. As a result of the backlog inherent in termination cases, many children are left in legal limbo as their custody status is argued in the courts. Additionally, these proceedings place a tremendous cost and hardship on the State. In response, the Legislature has attempted to resolve this monumental burden by enacting legislation which swiftly moves these cases toward resolution, while at the same time guarding the rights and liberties of the parties involved.

J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1065-66 (Fla.2000) (citation omitted). In J.B., we addressed the constitutional sufficiency of notice given under the predecessor version of the statute at issue here. That earlier version of the statute, like section 39.801(3)(d), required entry of a consent to termination where the parent failed to appear at the advisory hearing. Although in J.B. we found that the one day’s notice of hearing given the father was constitutionally inadequate, we expressly did not hold that “a consent by default can never be entered.” Id. at 1066-67. Rather, we upheld the constitutionality of the default provision. Id. at 1068 (“[W]e do not find that the consent by default provision ... is unconstitutional.”). Further, we agreed with the district court that the consent by default provision “is necessary to ensure that the object of the petition is not defeated by the parent’s neglect of the proceeding. It enables the trial court to bring a termination of parental rights case to conclusion even if the parent has chosen not to participate.” Id. at 1067 (quoting J.B. v. Fla. Dep’t of Children & Family Servs., 734 So.2d 498 (Fla. 1st DCA 1999)).

As was the case with the predecessor provision at issue in J.B., the Legislature’s clear intent in this successor statute is evidenced in the plain language of section 39.801(3)(d), which provides that when a parent has been ordered “to personally appear at the adjudicatory hearing-” and has been given the required notice concerning the time and place of the hearing, “then failure of that parent to personally appear at the adjudicatory heaving shall constitute consent for termination of parental rights.” (Emphasis added.) The Legislature has unequivocally provided that the parent’s failure to personally appear evidences a parent’s consent to the termination of his or her parental rights. The trial court’s entry of the consent for the parent essentially constitutes entry of a default, i.e., a consent to the allegations in the petition and termination of parental rights. See J.B., 768 So.2d at 1067 (referring to the court entering a “consent by default”).

The conflict presented in this case concerns the effect of entering the parent’s constructive consent under section 39.801(3)(d) in the further proceedings on the termination of parental rights. The Third and Fifth Districts — unlike the Second District — have determined that despite entry of the parent’s consent by failure to appear, the Department must present evidence on the statutory ground or grounds for termination alleged in the petition. See S.S., 976 So.2d at 42; A.S., 927 So.2d at 208; R.H., 860 So.2d at 988. In sum, these district courts reason that (1) under section 39.802(4)(a), a petition for termination of parental lights must be based on at least one of the grounds for termination provided in section 39.806(1); (2) section 39.801(3)(d)’s implied consent is not listed as a section 39.806 ground; (3) neither section 39.801 nor section 39.806 refers to the other; and, therefore, (4) section 39.801 (3)(d) is not a statutory ground for termination and evidence must be presented on the grounds in the petition.

It is undeniable that consent to termination based on the parent’s failure to appear is not among the grounds for termination listed in section 39.806(1). We therefore disagree with the Second District’s analysis, which equates section 39.801(3)(d)’s constructive consent with the voluntary surrender under section 39.806(1)(a). See In re H.E., 3 So.3d at 343. A voluntary surrender under section 39.806(1)(a) is only accomplished by the parent’s execution of “a written surrender of the child,” with the “surrender document [being] executed before two witnesses and a notary public or other person authorized to take acknowledgments.” A constructive consent for failure to appear pursuant to section 39.801(3)(d) clearly is different in character from a “written surrender” under 39.806(l)(a).

On the core issue, however, we agree with the Second District that the Department was not required to proceed with its burden to present evidence on the alleged grounds for termination; otherwise the consent pursuant to section 39.801(3)(d) “would be rendered meaningless.” In re H.E., 3 So.3d at 343. Once the trial court has deemed the parent to have consented to the termination, there is no basis for the parent to complain that the trial court did not consider evidence establishing the existence of a ground for termination under section 39.806(1). The constructive consent provision of section 39.801 (3)(d) can only be reasonably understood as providing a basis for termination which precludes a defaulting parent’s objection to the absence of proof of a ground for termination under section 39.806(1). No other plausible understanding of the meaning of the constructive consent provision has been advanced. The interpretation adopted by the Third and Fifth Districts effectively drains section 39.801(3)(d) of any meaning. That interpretation therefore must be rejected.

Accordingly, we hold that where an order has been properly entered determining that a parent’s failure to appear constitutes consent pursuant to section 39.801(3)(d), the parent may not challenge the basis for the termination of parental rights. Allowing a parent to contest a termination of the parent’s rights in such circumstances would be manifestly inconsistent with the statutory provision that the parent’s failure “to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.” § 39.801(3)(d). A parent who has consented cannot thereafter be heard to object. With the finding that the mother constructively consented to termination and with no objection being made to the termination by any other party, no purpose would have been served by requiring the Department to present evidence regarding the statutory grounds for termination.

As with other defaults, a constructive consent to termination entered pursuant to section 39.801(3)(d) may be set aside under the “usual three-part test.” E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004); see also Fla. R. Civ. P. 1.540(b)(1). Under that test, “the party seeking to vacate the default [must] act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.” E.S., 878 So.2d at 496; see In re A.N.D., 883 So.2d 910, 914 n. 3 (Fla. 2d DCA 2004) (“At a minimum, a ‘meritorious defense’ should include any meritorious arguments regarding the grounds for termination, the manifest best interests of the child, and the least restrictive means for protecting the child.”). Motions to vacate such defaults are liberally granted and “courts should ... refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent’s control.” A.N.D, 883 So.2d at 914; see also E.A. v. Dep’t of Children & Families, 894 So.2d 1049, 1051 (Fla. 5th DCA 2005) (“The purpose of this rule ... is not to terminate parental rights on a ‘gotcha’ basis”).

In this case, the mother sought to vacate her consent, but the trial court found her testimony was not credible, and the mother did not offer any evidence on the third prong. In this appeal, we have been presented with no argument that the trial court erred in failing to set aside the default. The mother therefore remains bound by the statutory consent.

Finally, we turn to the Department’s argument that the Second District erred in reversing the judgment terminating the mother’s parental rights. Although the Second District determined that no evidence need be presented on the alleged grounds for termination of parental rights, the court nevertheless reversed because it found that the trial court terminated the mother’s parental rights before hearing evidence on the manifest best interests of the child. The record before us shows — as the Department has pointed out — that the trial court terminated the mother’s parental rights only after hearing the relevant testimony concerning manifest best interests. At the September 25, 2007, hearing, the trial court first heard the guardian ad litem’s testimony regarding the child’s best interests and then entered the order terminating P.E.’s parental rights that same day. Since there is no basis to justify the reversal of the termination judgment, we quash the district court’s decision to reverse and remand for the entry of an order affirming the trial court’s decision.

IY. CONCLUSION

As explained above, we hold that when a parent’s consent to termination of parental rights is entered under section 39.801(3)(d), such consent necessarily precludes the parent from objecting to the Department’s failure to present evidence to establish the grounds for termination alleged in the petition for termination. To the extent the Second District’s opinion is consistent with the foregoing analysis, we approve it, but we quash the decision to reverse the trial court. Further, we disapprove the conflict cases to the extent they are inconsistent with our reasoning here.

It is so ordered.

PARIENTE, POLSTON, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result only with an opinion, in which QUINCE, C.J., concurs.

LEWIS, J.,

concurring in result only.

I concur in result only because the majority articulates the principle that it simply follows the clear and unambiguous language of the applicable statute, although it in fact proceeds to interpret and construe statutory provisions that are actually unclear and ambiguous, as evidenced by the multiple district courts of appeal that have addressed the identical issue through statutory construction. Contrary to the statutory analysis employed in our decision today, the Third and Fifth District Courts of Appeal have each construed and applied the precise language of the subject statutory provisions and reached a different conclusion to resolve the issue before us. See S.S. v. Dep’t of Children & Family Servs., 976 So.2d 41, 42-43 (Fla. 3d DCA 2008); Dep’t of Children & Families v. A.S., 927 So.2d 204, 207-09 (Fla. 5th DCA 2006); R.H. v. Dep’t of Children & Family Servs., 860 So.2d 986, 990-91 (Fla. 3d DCA 2003) (Gersten, J., concurring). In writing for a unanimous court in AS, Judge Sawaya articulated a rational process based upon the plain language of the statutory provisions that we must address in the present case. Following a thorough, constructive analysis of the relevant statutory provisions, the Fifth District concluded that its construction gave full effect to all of the pertinent provisions and construed them in harmony with one another. See A.S., 927 So.2d at 209. In S.S., the Third District looked to, and agreed with, the analysis of Judge Sawaya to apply the statutory scheme. See 976 So.2d at 43.

Logically, the difference in the results reached by the district courts demonstrates that the statutes we consider today are not clear and unambiguous, but unquestionably require construction and interpretation, which is exactly what the majority has accomplished in this decision. When the plain language of a statute is unclear or ambiguous as to its meaning, the Court must resort to traditional rules of statutory construction to ascertain legislative intent. See Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla.2008) (citing Starr Tyme, Inc. v. Cohen, 659 So.2d 1064 (Fla.1995)); see also Kasischke v. State, 991 So.2d 803, 807 (Fla.2008) (applying canons of statutory construction where the plain language of a statute was “undeniably susceptible to multiple and irreconcilable interpretations”); Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000) (stating that the canons of statutory construction control when the language of a statute is unclear). The majority recognizes that the failure of a parent to appear for a hearing, along with the consequences of section 39.801(3)(d), Florida Statutes (2007), are not statutorily listed bases or grounds for the termination of rights in section 39.806. See majority op. at 235-36. It is only through interpretation and construction that the result we reach today may be attained under these ambiguous provisions. Therefore, I concur in result only because although the majority professes that the plain language of the statute supports the decision today, it is far too obvious that statutory construction and interpretation are required to produce this result.

QUINCE, C.J., concurs.

      . The Department sought termination of the father's parental rights in the same petition. However, he appeared and voluntarily surrendered his parental rights at the pretrial conference. He was not a party in the appeal to the district court.

      . It appears that the trial court issued a written order entering the mother’s consent that was sent to tire parties, including the mother, but that none of the parties requested that the record here be supplemented with it.

      . On appeal, P.E. also argued that the trial court erred by entering the consent because she had insufficient notice of the consequence for her failure to appear and that the trial court abused its discretion by denying her motion to vacate the consent. The Second District implicitly rejected these arguments.

      . The Third District reversed because the mother had not received the statutory notice, the “condition precedent” to entry of the parent’s consent for failure to appear. S.S., 976 So.2d at 42. The court addressed the second issue, discussed above, in the event the mother again failed to appear at the new hearing.

      . The predecessor provision addressed only failure to appear at the advisory hearing: “If the person served with notice under this section fails to respond or appear at the advisory hearing, the failure to respond or appear shall constitute consent for termination of parental rights by the person given notice.” § 39.462(1)(d), Fla. Stat. (1995); see In re A.L., 711 So.2d 600, 601 (Fla. 2d DCA 1998) (reversing entry of default in termination proceeding because rules of civil procedure did not apply and there was no statutory authority for default for failure to appear at adjudicatory hearing — only the advisory hearing). The statute was amended in 1999 to require the parent "personally” to appear and add the requirement of entering the statutory consent when a parent failed to appear at the adjudi-calory hearing. See ch. 99-193, § 42, Laws of Fla. (amending and renumbering the statute).

      . We need not and do not consider an)' of the parties' arguments or the district courts' discussions regarding the impact of a termination predicated on a section 39.801 (3)(d) consent on hypothetical future termination of parental rights proceedings concerning siblings under section 39.806(1 )(i). Whether a termination based on constructive consent pursuant to section 39.801 (3)(d) should be considered an involuntary termination for purposes of section 39.806(l)(i) is simply not at issue in this case.

      . In this case, no argument has been presented to this Court concerning whether evidence must be received by the trial court on the manifest best interests issue where a constructive consent has been entered and no other party objects to the termination of parental rights. We therefore need not address that question.


author: CANADY, J.,

text:
    Leonardo FRANQUI, Appellant(s) v. STATE of Florida, Appellee(s).
    No. SCSC05-830.
    Supreme Court of Florida.
    July 16, 2009.
   Leonardo Franqui, a prisoner under sentence of death, has appealed the denial of his postconviction claims, including the circuit court’s denial of his claim in which he alleged mental retardation pursuant to Florida Rule of Criminal Procedure 3.203 and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and in which he sought an evidentiary hearing regarding the claim. By order entered November 30, 2007, this Court relinquished jurisdiction to the trial court “to allow the trial court to enter an order on appellant’s claim based on mental retardation.” During the relinquishment, the circuit court entered its order summarily denying the claim of mental retardation on February 21, 2008. Jurisdiction was returned to this court for briefing and oral argument, which was held March 12, 2009.

Having reviewed the record in this case, including prior proceedings, we reverse the summary denial of Franqufs claim for mental retardation and temporarily relinquish jurisdiction to the circuit court for ninety days for an evidentiary hearing to be held on Franqui’s mental retardation claim. In making a determination of whether Franqui is mentally retarded, the circuit court shall consider the requirements set forth in Cherry v. State, 959 So.2d 702 (Fla.2007), including the following requirement:

[The defendant] must establish that he has significantly subaverage general intellectual functioning. If significantly subaverage general intellectual functioning is established, [the defendant] must also establish that this significantly sub-average general intellectual functioning exists with deficits in adaptive behavior. Finally, he must establish that the significantly subaverage general intellectual functioning and deficits in adaptive behavior manifested before the age of eighteen.

Id. at 711. We express no opinion on the merits of his mental retardation claim.

We reserve ruling on all other claims currently pending in this appeal. The parties and the trial court shall proceed in an expedited manner, and an evidentiary hearing on Franqui’s mental retardation claim shall be held and an order entered within ninety days of this order.

The court reporters shall have thirty days after completion of the above proceedings in which to file any transcripts with the trial court clerk, and the trial court clerk shall have twenty days after receipt of the transcripts in which to file a record of the entire relinquishment proceeding with this Court. Per this Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, the court reporters are directed to transmit a copy of any transcripts, in addition to paper copies, in an electronic format as required by the provisions of that order. The electronic version for this Court shall be submitted to the following e-mail address: e-file@flcourts.org.

Counsel for the parties are hereby directed to file status reports with this Court every thirty days as to the progress of the relinquishment proceeding.

It is so ordered.

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

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

PERRY, J., did not participate.

CANADY, J.,

dissenting.

Because Franqui’s claim is untimely and facially insufficient, I dissent.

When Florida Rule of Criminal Procedure 3.203 became effective on October 1, 2004, Franqui’s initial postconviction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, was pending in the trial court. Franqui therefore was subject to rule 3.203(d)(4)(C), which permitted him to “amend the [pending] motion to include a claim under [rule 3.203] within 60 days after October 1, 2004.” Franqui simply failed to act within that sixty-day period. He has never asserted any basis for excusing his failure to timely file an amendment to his postconviction motion.

Furthermore, the untimely claim filed by Franqui is facially insufficient under the definition of mental retardation contained in rule 3.203(b). Franqui has never alleged facts sufficient to show a prima facia mental retardation claim. Most.saliently, he has never alleged that there was any significantly subaverage intellectual functioning with deficits in adaptive behavior that was “manifested during the period from conception to age 18.” Fla. R.Crim. P. 3.203(b) (emphasis added). This is an essential element of a mental retardation claim which is totally lacking in Franquf s allegations.

There is no basis for reversing the trial court’s denial of Franqui’s claim. I would affirm.

POLSTON, J., concurs.


author: ALTENBERND, Judge.

text:
    Vincent Keith RAINES, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-142.
    District Court of Appeal of Florida, Second District.
    May 1, 2009.
    Rehearing Denied Aug. 14, 2009.
    Julianne M. Holt, Public Defender, and Joseph P. Kuss, Assistant Public Defender, Tanipa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Vincent Raines appeals an order denying his petition for writ of habeas corpus. Although we affirm this order, we do so for reasons other than those contained in the order. The sentence imposed in Aioril 1990 in case number 89-20755-A by Judge Harry Lee Coe was an illegal sentence. Nevertheless, Mr. Raines has fully served that sentence. When he filed this petition, he was serving an unrelated state sentence. He claimed in his petition that the 1990 state sentence had affected a 1994 federal sentence, which he is currently serving in federal prison. Even if the trial court had correctly acknowledged that his fully served sentence had been illegal, this acknowledgment would not have authorized the state trial court to order his release or to alter the conditions of his imprisonment as a federal prisoner. If Mr. Raines is entitled to any relief at this point, he must seek it from a federal court.

In 1989, Mr. Raines sold counterfeit crack cocaine to an undercover police officer. Accordingly, he was charged with the third-degree felony described in section 817.563(1), Florida Statutes (1989). When his case was called for trial on April 4, 1990, over the objection of the State, the trial judge directly negotiated a plea with Mr. Raines’ counsel for a sentence of two years’ community control followed by three years’ probation. During these negotiations, there was no discussion that the sentence would be imposed with a habitual offender designation. Thereafter, during a very abbreviated plea and sentencing hearing, Judge Coe asked whether Mr. Raines had been “noticed as a habitual offender,” but then discussed the guidelines range for the sentence and never actually conducted. the hearing or made any of the determinations required by section 775.084(3), Florida Statutes (1989). Most significantly, Judge Coe never orally announced that Mr. Raines was to be sentenced as a habitual offender. The written sentence prepared after this hearing imposed community control and probation and referred to Mr. Raines as a “subsequent felony offender.”

Less than two weeks after this sentence was imposed, an affidavit of violation of probation was filed because Mr. Raines did not report to the probation office and did not remain confined to his home. On April 27, 1990, Mr. Raines was resentenced on violation of community control to ten years’ incarceration as a habitual offender.

Although Mr. Raines’ petition for writ of habeas corpus does not allege the basis for his imprisonment at the time he filed his petition for writ of habeas corpus in 2007, the public records of the Department of Corrections indicate that he finished serving the 1990 sentence in June 1998. Thereafter, he was convicted of other state offenses for which he served a three-year sentence. He was serving this three-year sentence when he filed the petition for writ of habeas corpus as an inmate at Baker Correctional Institution. He was released by the Department of Corrections in July 2007 but did not inform the trial court of this fact. Thus, the trial court assumed he was still in a state prison when it denied the petition in November 2007. The first time that Mr. Raines apparently revealed that he had been transferred to a federal prison was his notice of change of address in this appellate proceeding.

Mr. Raines alleged in his petition that his ten-year sentence on the violation of probation was illegal because he had not been declared a habitual offender when he was placed on community control, and the court could not impose a habitual offender sentence on a violation of community control under those circumstances. The trial court denied this petition, claiming that the issue should have been raised earlier, either on direct appeal or by a motion pursuant to Florida Rule of Civil Procedure 3.850. It declined to treat the motion as a claim of illegal sentence under rule 3.800(a) because it construed the claim as based on procedural requirements for ha-bitualization rather than on substantive requirements of notice.

We are not confident that the trial court’s reasoning is correct. The supreme court has held that rule 3.800(a) can be used to challenge a discrepancy between an oral and a written sentence when the written sentence is illegal in light of the oral pronouncement. See Williams v. State, 957 So.2d 600 (Fla.2007). There is no suggestion here that the transcript does not accurately reflect the pronouncement in the trial court. Cf. Blocker v. State, 968 So.2d 686 (Fla. 2d DCA 2007). If Mr. Raines was not sentenced to community control as a habitual offender, then the case law supports his argument that his subsequent ten-year sentence as a habitual offender was illegal. See Bowers v. State, 845 So.2d 243 (Fla. 2d DCA 2003); Chaney v. State, 805 So.2d 1039 (Fla. 2d DCA 2002); Pankhurst v. State, 796 So.2d 618 (Fla. 2d DCA 2001).

The problem, of course, is that this illegal sentence «was fully served and expired a decade before Mr. Raines filed this petition. At least as a general rule, a sentence cannot be challenged after it has been fully served and has expired because any sentencing issue is moot thereafter. See Miller v. State, 996 So.2d 954 (Fla. 1st DCA 2008). At best, rule 3.800(a) might be useful to correct a sentencing error in a current state-court sentence as a result of an earlier illegal state-court sentence. See Mills v. State, 6 So.3d 77 (Fla. 2d DCA 2009); Tucker v. State, 679 So.2d 1261-62 (Fla. 2d DCA 1996). A petition for habeas corpus must normally be filed in a court that has jurisdiction over the location where the prisoner is confined. See Valdez-Garcia v. State, 965 So.2d 318 (Fla. 2d DCA 2007). There can be no question that the circuit court in Florida’s Thirteenth Judicial Circuit has no authority to order Mr. Raines’ release from a federal prison in South Carolina. We candidly are uncertain whether there is a mechanism in the federal courts by which Mr. Raines could obtain a change in his federal sentence based on a determination that his 1990 sentence in Florida was illegal, but if there is, that relief must be sought in the appropriate federal court.

Affirmed.

CASANUEVA and LaROSE, JJ., concur.

      .When section 775.084 was first enacted in 1971, it did not use the phrase "habitual offender,” and instead referred to "subsequent felony offenders.” See § 775.084, Fla. Stat. (1971); ch. 71-136, Laws of Fla. This sentencing statute was substantially revised in 1975, adding a definition of "habitual offender” and a set of procedures to use when imposing such sentences. See ch. 75-116, Laws of Fla. This amendment eliminated all references to "subsequent felony offenders.” Unfortunately, fifteen years later, Judge Coe was still prone to use the old terminology and often the old procedures. See, e.g., Bowers v. State, 845 So.2d 243 (Fla. 2d DCA 2003); Thornton v. State, 830 So.2d 267 (Fla. 2d DCA 2002); Bogush v. State, 597 So.2d 420 (Fla. 2d DCA 1992); Hubbard v. State, 588 So.2d 75 (Fla. 2d DCA 1991). So long as the sentence complied with the applicable "habitual offender” sentencing requirements, this court never regarded references to alternative terms such as "subsequent felony offender” or "career criminal” to be errors that invalidated the defendant’s status as a habitual offender.

      . Actually, as he often did, Judge Coe had the standard form altered to reflect that the sentence was a "subsequent felony” sentence.

      . We note that Mr. Raines’ notice of appeal was filed by private counsel. The trial court allowed that counsel to withdraw and appointed the public defender to prosecute this appeal. Under the facts as we now understand them, it seems unlikely that the public defender needed to be appointed to prosecute this appeal. See McCaskill v. State, 638 So.2d 567, 568 (Fla. 5th DCA 1994).


author: VAN NORTWICK, J.

text:
    Patricia DANNEMANN, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC.; Thomas M. Beaver, M.D.; Sigurd J. Normann, M.D.; Diana Cardona, M.D.; and University of Florida Board of Trustees, Respondents.
    No. 1D08-3923.
    District Court of Appeal of Florida, First District.
    May 11, 2009.

      James J. Taylor, Jr. of Taylor & Taylor, P.A., Keystone Heights, for Petitioner.
    Susan L. Kelsey, Kelsey Appellate Law Firm, P.A., Tallahassee, for Respondents Thomas M. Beaver, M.D.; Sigurd J. Nor-mann, M.D.; Diana Cardona, M.D.; and the University of Florida Board of Trustees.
    Alan E. McMichael, The McMichael Law Firm, PL, Gainesville, for Amicus Curiae The Florida Justice Association.
   On Motion for Rehearing and Clarification

VAN NORTWICK, J.

Upon consideration of the Motion for Rehearing and Clarification, our opinion of March 13, 2009, is withdrawn and the following substituted therefor.

Patricia Dannemann, the plaintiff in a suit which alleges that employees of Shands Teaching Hospital and Clinics, Inc. (Shands) negligently caused the death of her husband, seeks certiorari review of an order denying her motion to prohibit pre-deposition conferences between nonparty physicians, Dr. Beaver, Dr. Normana, and Dr. Cardona, employed by the University of Florida Board of Trustees (UFBOT), also a nonparty, and the counsel hired by the University of Florida Self Insurance Program (SIP), to represent these physicians at their depositions. SIP insures and defends both Shands and the University. The order would allow the physician witnesses to discuss the decedent’s medical condition. Because this case is controlled by our previous decision in Hannon v. Roper, 945 So.2d 534 (Fla. 1st DCA 2006), and the Florida Supreme Court’s decision in Acosta v. Richter, 671 So.2d 149 (Fla.1996), we grant the petition and quash the trial court’s order.

Hannon also involved a suit against Shands for alleged medical malpractice causing the death of Hannon’s son. This court held in Hannon that the clear, unambiguous language of the patient confidentiality statute, section 456.057(6), Florida Statutes (2005), presently numbered as subsection (8), prohibits any nonparty physician from disclosing the decedent’s medical condition and history to the counsel hired by the defendant’s insurer to represent the physician at a deposition. We explained that there are only four circumstances that would allow a health care practitioner or provider to discuss a patient’s medical condition and treatment, Hannon, 945 So.2d at 536, and none of those circumstances are present in this case. The legislature created the physician-patient privilege by statute “where none existed before, and [provided] an explicit but limited scheme for the disclosure of personal medical information.” Acosta, 671 So.2d at 154. Though respondents believe the statute is ill-conceived, that is a matter for the legislature to address.

Respondents raise the same constitutional issues that were raised in Hannon. Specifically, respondents contend that our application of section 456.057 in Hannon violates the physicians’ constitutional right to counsel protected by the free speech clause of the First Amendment and their rights under the due process clause of the Fourteenth Amendment. Amend. I, U.S. Const.; Amend. XIV § 1, U.S. Const. Respondents urge us to address these issues, arguing that they were unresolved in Han-non. Certainly, “no decision is authority on any question not raised and considered .... ” State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930). Even though this court in Hannon did not discuss the constitutional issues raised there, the court’s silence supports the necessary conclusion that those issues were considered and rejected. In Hannon, the court granted relief based upon section 456.057(6), which it could not have done had it been persuaded the statute was constitutionally infirm. We are bound by Hannon under the doctrine of stare deci-sis. N. Fla. Women’s Health and Counseling Servs., Inc. v. State, 866 So.2d 612, 637 (Fla.2003) (“The doctrine of stare deci-sis, or the obligation of the court to abide by its own precedent, is grounded on the need for stability in the law and has been a fundamental tenet of Anglo-American jurisprudence for centuries.”). Further, we note that in Acosta the Supreme Court rejected the argument thát the limitations on disclosure in section 455.241(2), Florida Statutes (1993), are “somehow violative of a defendant physician’s First Amendment rights to free speech.” Acosta, 671 So.2d at 156.

The petition for writ of certiorari is GRANTED and the trial court’s order is QUASHED.

PADOVANO, AND CLARK, JJ., concur.