author: PER CURIAM. PARIENTE, J.,

text:
    Stephen SMITH, Appellant, v. STATE of Florida, Appellee. Stephen Smith, Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC12-53, SC12-1001.
    Supreme Court of Florida.
    Sept. 12, 2013.
    Rehearing Denied Nov. 13, 2013.

      Ali Andrew Shakoor, Capital Collateral Regional Counsel — Middle Region; Richard E. Kiley and James Viggiano, Assistant Capital Collateral Counsels, Tampa, FL, for Appellanl/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appel-lee/Respondent.
   PER CURIAM.

Stephen Smith appeals an order of the circuit court denying his motion to vacate his sentence of death filed under Florida Rule of Criminal Procedure 3.851. Smith also petitions this Court for a writ of habe-as corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the post-conviction court’s order and deny Smith’s petition.

I. BACKGROUND

In 2006, Smith was convicted of the first-degree murder of state correctional officer Darla K. Lathrem. On direct appeal, this Court set out the facts of the crime.

During 2003, [Smith and his codefen-dants, Dwight Eaglin and Michael Jones,] worked with a small group of other [Charlotte Correctional Institution (CCI) ] prisoners on renovations to the inmate dormitories. This construction work included plumbing and welding and thus provided inmate work crews with access to a number of tools. Beginning in early 2003, Smith, who was serving multiple life sentences, and Jones began to formulate an escape plan. They planned to build a ladder and escape over the perimeter fence. When their first plan was thwarted, however, Smith and Jones developed a new plan with Eaglin.
Under the new plan, the inmates would join ladders from the tool room at CCI by drilling holes and adding bracing. The amalgamated ladder would rise sixteen feet above the ground and span across the tops of both perimeter fences, which were at least twenty feet apart. With the ladder-bridge in place, Eaglin would go over the first perimeter fence and, when the guard truck drove by, attack the driver with a hammer. Because they needed access to ladders and other necessary tools, the trio planned to escape during the ongoing dormitory renovation project.
Smith and the others decided to escape before construction was completed on the final dormitory. To further facilitate the plan, Smith volunteered for the inmate crew that sometimes worked at night, which already included Jones and Eaglin. At such times, five or six prisoners worked in the empty dormitory under the supervision of a single corrections officer. In talking to other inmates about the plan, Smith said that he would kill any correctional officer guarding them and that he would be famous on the news. Smith preferred to escape when a female officer was on duty so that he could rape her — just in case he was killed during the escape.
On June 11, 2003, with renovations soon to be completed, the defendants put their plan into action. At 4:00 p.m., Officer Lathr[e]m took five inmates— the three defendants and two other inmates — to work in the dormitory for the evening. At 8:30 p.m., Lathr[e]m accounted for the five inmates, and about twenty minutes later, another officer personally picked up the count slip from Officer Lathr[e]m.
After the head count, Eaglin beat up one inmate[, John Beaston,] and locked him in a cell; Eaglin then returned with a sledgehammer and beat him to death. Smith and Jones told Officer Lathrem they needed something from a locked mop closet. They all went to the closet, where the officer began to search for the correct key. Eaglin struck her twice in the head with the sledgehammer. They took the officer’s radio and keys. While Eaglin struggled to put the officer’s body into the closet and lock the door, Smith and Jones left to assemble the ladders for the escape. Before joining Smith and Jones, Eaglin found the other inmate and hit him in the head with another hammer. Injuring the inmate was part of the plan because that inmate did not want to escape and did not want to be disciplined for cooperating with the escape plan. The defendants carried two large ladder sections outside and put them together. When they attempted to lift the ladder, however, it collapsed and fell against the perimeter fence, setting off an alarm.
Correctional officers responding to the alarm saw the three defendants attempting to escape. Eaglin stood between the perimeter fences; Smith was climbing a ladder leaning against the inner fence, with Jones standing nearby. Upon seeing the guards, Smith and Jones ran into the dormitory, where they were quickly apprehended. The correctional officers also discovered a pool of blood outside a locked mop closet. Officer Lathrem lay dead in the closet, a sledgehammer on the floor beside her. The responding officers also found the two other inmates, one with a head injury in one cell and the other dead in another cell.

Smith v. State, 998 So.2d 516, 520-21 (Fla.2008).

During the penalty phase, the State presented evidence about Smith’s 1990 convictions for murder, armed robbery, and armed burglary with assault; evidence about his other 1990 convictions for armed sexual battery, armed burglary, armed robbery, and kidnapping; evidence about a 1981 conviction for armed sexual assault of his sister; evidence from a medical examiner that Officer Lathrem was likely unconscious during the attack; and three victim impact statements. Smith presented various witnesses who testified about the supervision and safety policies and procedures at Charlotte Correctional Institution (CCI) at the time of the murder; family members and a former Rhode Island social worker who testified regarding his background and character; and Dr. Frederick Schaerf, an expert in forensic psychiatry, who testified that Smith had a history of depression, mood disorder, attention deficit disorder (ADD), childhood hyperactivity, low normal IQ, substance abuse, and antisocial personality disorder. Smith, 998 So.2d at 521.

The jury found Smith guilty of first-degree murder — under both a premeditated theory and a felony-murder theory— and recommended a sentence of death by a vote of nine to three. Id. at 521, 524. The trial court imposed the death sentence, finding the following aggravating factors: (1) Smith was a convicted felon under a sentence of imprisonment; (2) Smith had prior violent felony convictions; (3) the murder was committed for the purpose of escape from custody, and the victim was a law enforcement officer engaged in official duties (merged); and (4) the murder was cold, calculated, and premeditated (CCP). In mitigation, the trial court found: (1) Smith was raised by a dysfunctional, abusive family (great weight); (2) Smith expressed remorse for Officer Lathrem’s death (little weight); and (3) Smith suffered from mental and emotional health issues, including depression, ADD, and chronic substance abuse (some weight). Id. at 521-22; State v. Smith, No. 03-1526-CF (Fla. 20th Jud. Cir. order dated Aug. 18, 2006) (Sentencing Order).

Smith raised seventeen issues on appeal. This Court declined to address Smith’s claims of ineffective assistance of counsel and concluded that his remaining claims were without merit. Accordingly, this Court affirmed Smith’s conviction and sentence. Smith, 998 So.2d at 530.

In 2010, Smith filed an initial motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. Smith raised seven claims: (1) trial counsel performed ineffectively by failing to object to testimony that Smith hoped to sexually batter a female prison guard during his escape; (2) trial counsel performed ineffectively by failing to provide the defense’s mental health expert with sufficient materials to investigate mitigation; (3) section 921.141, Florida Statutes (2006), is unconstitutional; the jury did not receive proper guidance regarding its sentencing recommendation; and trial counsel was ineffective for failing to litigate these issues; (4) Florida’s capital sentencing scheme is unconstitutionally arbitrary and capricious, and trial and appellate counsel did not effectively raise these issues; (5) Florida’s capital sentencing scheme is unconstitutional as applied pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (6) cumulative error deprived Smith of a fair trial; and (7) Smith may be incompetent at the time of his execution. The trial court conducted an evidentiary hearing on claims one and two, at which Smith called Paul Sullivan, one of Smith’s trial attorneys, and Dr. Michael Maher, a forensic psychiatrist, to testify. In rebuttal, the State called Dr. Schaerf, who had testified for the defense during Smith’s penalty phase. In 2011, the postconviction court issued an order denying relief. State v. Smith, No. 03-CF-1526 (Fla. 20th Jud. Cir. order dated Dec. 2, 2011) (Postconviction Order).

Smith appeals the postconviction court’s denial of two of his claims that trial counsel was ineffective. In addition, Smith has filed a petition for a writ of habeas corpus, raising four claims.

II. MOTION FOR POSTCONVICTION RELIEF

Smith asserts that the postconviction court should have determined that trial counsel performed ineffectively by failing to: (A) object to testimony that Smith hoped to sexually batter a female prison guard during his escape; and (B) provide Dr. Schaerf with sufficient materials to investigate mental health mitigation.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that trial counsel’s pex'formance was deficient and that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. For the second prong, “Strick land places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different.” Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 390-91, 175 L.Ed.2d 328 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Strickland does not “require a defendant to show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of his penalty proceeding, but rather that he establish ‘a probability sufficient to undermine confidence in [that] outcome.’ ” Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 455-56, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052). This Court employs a mixed standard of review, deferring to the postconviction court’s factual findings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

A. Evidence of Intended Sexual Battery

In his first issue on appeal, Smith asserts that the postconviction court erred in denying his claim that trial counsel was ineffective for failing to object to the portion of Smith’s recorded statement in which he stated a desire to sexually batter a female prison guard during his escape, State -witness Kenneth Christopher Ly-kins’ testimony that Smith had stated an intention to sexually batter a prison guard, and the State’s closing arguments based on this evidence. We agree with the post-conviction court that Smith has not demonstrated deficiency.

During the guilt phase, the State presented a videotape of Smith discussing the attempted escape with law enforcement officer Steve Uebelacker as they walked through the crime scene. Smith made incriminating remarks during the conversation. After initially claiming that the plan was for Eaglin to knock inmate John Bea-ston unconscious so that it would not appear that Beaston was involved in the escape, Smith admitted that the plan was actually for Smith to hit Beaston “[g]ood enough to kill him” and that if Beaston died from his injuries, Smith would mind “not one bit” and would “spit on [Bea-ston].” Smith later reiterated that before he went over the fence, his plan was to “[e]liminate” Beaston. Smith explained that regarding the guard on duty during the escape, the plan was for Smith to hold the guard and Eaglin to knock out the guard. In addition, the plan included Eag-lin “whipping” inmate Charles Fuston and taking out a gun-truck driver by hitting him in the head.

In addition, the recorded statement contained the following exchange about the guard who was on duty during the escape attempt.

AGENT UEBELACKER: You didn’t [rape her]? Why not? I mean, you talked it in the preplan, right? I mean, that that would come up?
MR. SMITH: Right.
AGENT UEBELACKER: Tell me— tell me a little about that.
MR. SMITH: Well, when I — when [Eaglin] first knocked her out she was down, and I guess my nerves, sacredness [sic] and the fear, and then when he came around and hit her again, you know — you got a — you got a six sense. You can tell if an animal is dead.
AGENT UEBELACKER: Uh-huh.
MR. SMITH: Or hurt or just out like a light.
AGENT UEBELACKER: Right.
MR. SMITH: Well, when he hit her that second time, I knew she was gone.
AGENT UEBELACKER: So — I don’t understand. So you wouldn’t do it if she was dead? I don’t understand?
MR. SMITH: No. My intentions were to get the hell out of here.
AGENT UEBELACKER: Okay. But if she — if she wasn’t dead, what would have happened? What [were] your intentions?
MR. SMITH: Well, if it was earlier, if we had — if we had time, all three would a — probably would a got some.
AGENT UEBELACKER: Yea? When you say that what do you mean?
MR. SMITH: Probably would a got some pussy.
AGENT UEBELACKER: Okay. All right. But once you — once you saw that she was — or you believe she was dead, then you didn’t want to then?....
MR. SMITH: Nah. Too much fear, scared.

The possibility of Smith sexually battering the guard on duty during the escape was also raised by guilt phase witness Lykins. Lykins, an inmate, testified that he met Smith at Union Correctional Institute in the early 1990s and that in 2003, he was moved to CCI, where he again encountered Smith. Lykins stated that he heard Smith talking “[q]uite a few times” about a plan to escape. When asked whether Smith expressed an intention to try his escape plan when a particular officer was supervising the night work crew, the following exchange occurred.

[State]: And of the officers, did the defendant ever say to you that he knew which officers were [supervising the night work crew?]
[Lykins]: Pretty much so because the same officers pretty much came back-to-back every night. Sometimes it would be a different one and sometimes it wouldn’t.
[State]: Did the defendant indicate to you that [he] wanted to try to do this escape when any particular officer was there as opposed to a different one?
[Lykins]: Yes, he did.
[State]: What did he say about that?
[Lykins]: It had to do with a female officer.
[State]: Okay. He wanted to try this when there was a female officer in the dorm?
[Lykins]: Yes.
[State]: And how often did he tell you female officers supervised that crew?
[Lykins]: Not always, but more than male officers.
[State]: Now, with regard to not just escaping but killing someone, did the defendant say anything in your presence indicating an intent to kill anyone?
[Lykins]: Yes, he has.
[State]: And what was that?
[Lykins]: It was two people, not just one.
[State]: Okay.
[Lykins]: His first he wanted to kill James Be[a]ston — well, John Be[a]ston because he felt like he snitched on him the first time when he tried to escape and had him placed back on [close management]. So, therefore, he told me before he leaves that he was gonna hit John Be[a]ston in the head with whatever he — whatever weapon that he was gonna use. But he says, I want to kill that son of a bitch before I leave prison.
And the second one is that whoever else was in the building was gonna die. His statement to me was that they didn’t want nobody to alarm no other officer or inmates and to kill everything in there so they wouldn’t have to worry about somebody trying to alert nothing while they get over the fence.
[State]: They need time to assemble this ladder, right?
[Lykins]: Of course.
[State]: What—
[Lykins]: And that — •
[State]: What—
[Lykins]: — he made a statement to me sitting on the locker the night before that if a female officer happens to be present in the dorm the night that they escape that he was gonna rape her— well, his exact words is, I’m gonna get me a piece of pussy before I leave because if I get out there and I die, at least I know I got a shotta ass before I left. And my statement was to him is, is you’re a damn fool if you kill a[n] officer in the State of Florida.

A similar exchange occurred between Ly-kins and defense counsel on cross-examination.

The State then made three references to the intended sexual battery testimony in its guilt phase closing argument. First, the prosecutor argued: “And [Smith] talked about [Lathrem] being sweet. He described her like an animal, you got a sixth sense when you know they are dead, a little earlier I would have raped her.” Later, the prosecutor added:

The defendant said if it is a female officer he was going to get a piece of you know what before he escaped, and if he died he wanted to be in that position. That is what he thinks of human life and the situation.
In cross-examination he said kill everyone in the dorm so nobody can tell or alert the officers, kill and rape a female officer before he leaves, is what Lykins heard the defendant say.

And finally, the prosecutor argued: “[Smith tells] you about you got a sixth sense, you know, you can tell when an animal is dead or not. Any time earlier probably all three would have gotten some.” The State did not present any additional evidence of Smith’s desire to sexually batter a guard or make any argument on the subject during the penalty phase.

During the postconviction evidentiary hearing, attorney Sullivan testified that because he believed the evidence was relevant and admissible, he did not file a motion in limine or object at trial to the statements that Smith hoped to sexually batter a female prison guard. Sullivan reasoned that the evidence was admissible because it was inextricably intertwined with evidence of the charged offense.

Smith contends that the evidence that he expressed a desire to sexually batter the prison guard was not relevant to the charged offense of murder and that even if relevant, the evidence was inadmissible because the probative value was substantially outweighed by the danger of undue prejudice. He asserts that reasonably competent trial counsel would have objected to the evidence or sought a limiting instruction.

We conclude, however, that the postcon-viction court did not err in denying relief. Smith’s postconviction challenge related to the admission of the intended sexual battery portion of his recorded statement is without merit. Smith’s claim fails because he has not established that a defense objection on the basis of undue prejudice would have succeeded. See Schoenwetter v. State, 46 So.3d 535, 546 (Fla.2010) (“[C]ounsel cannot be deemed ineffective for failing to make a meritless objection.”) (quoting Hitchcock v. State, 991 So.2d 337, 361 (Fla.2008)).

Contrary to Smith’s claim, the evidence that Smith hoped to commit a sexual battery was relevant, and the danger of unfair prejudice did not substantially outweigh its probative value. In Florida, “[a]ll relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2006). Evidence of a defendant’s prior bad acts, in particular, is admissible “to establish!] the relevant context in which the [charged] criminal acts occurred” and to “paint[ ] an accurate picture of the events surrounding the crimes charged.” McGirth v. State, 48 So.3d 777, 787 (Fla.2010) (internal quotations omitted; first and second alterations in original); see also Victorino v. State, 23 So.3d 87, 99 (Fla.2009) (“Dissimilar fact evidence of uncharged misconducl^-which is governed by section 90.402’s general rule of relevancy— is admissible to ‘establish! ] the relevant context in which the [charged] criminal acts occurred.’ ” (quoting Caruso v. State, 645 So.2d 389, 394 (Fla.1994))).

In addition to establishing the context of the charged offense, dissimilar fact evidence may also be relevant if it is probative of the defendant’s state of mind at the time of the charged offense. For example, in Coolen v. State, 696 So.2d 738, 742 (Fla.1997), this Court concluded that a defendant’s statement that “ ‘eight years in maximum prisons up in Massachusetts’ had taught him not to take chances” was relevant to “explain Coolen’s actions and state of mind” when he stabbed an acquaintance during an argument. This Court also has concluded that threats made by the defendant may be relevant evidence of the defendant’s motive or intent regarding the charged offense. See, e.g., Floyd v. State, 18 So.3d 432, 448 (Fla.2009) (concluding that evidence of prior death threat to victim was relevant because it demonstrated the motive behind the murder and was inextricably intertwined with the murder).

The limit on the admissibility of relevant dissimilar fact evidence is that the State is not permitted to “make the evidence of other crimes the feature of the trial or to introduce the evidence solely for the purpose of showing bad character or propensity, ... and such evidence, even if relevant, should not be admitted if its probative value is substantially outweighed by undue prejudice.” Smith v. State, 866 So.2d 51, 61 (Fla.2004); see also § 90.403, Fla. Stat. (2006) (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”).

Here, the State charged Smith with first-degree murder and argued that he was guilty under a felony-murder theory and a premeditation theory. Smith in turn argued that the State did not prove that he was lawfully incarcerated for purposes of the crime of escape and that even if the escape attempt was felonious, he was only a minor participant in the felony murder— meaning he could not receive a capital sentence — and did not act with premeditation. See Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (holding that death penalty is permitted for felony murder if the defendant was a major participant in the felony and had reckless indifference to human life). Specifically, Smith argued that no particular guard was targeted in the escape plan, that Smith believed the guard would be incapacitated but not killed, and that Smith was merely following codefendant Eaglin’s lead.

When viewed in the context of the felony-murder charge and Smith’s defense theory, the evidence that Smith hoped to sexually batter a guard during the escape was relevant to the charged offense, not improper character evidence. Rather than merely showing a propensity for sexual violence, the evidence of the intended sexual battery demonstrated that Smith took an active role in planning the escape attempt. Smith’s remarks about the guard showed that he had an additional, independent agenda for the escape — that is, he was not blindly following Eaglin’s lead— and that a female guard was targeted. The evidence also refuted Smith’s defense that he thought the guard on duty would be knocked out and locked in a closet without suffering further harm. Overall, the evidence that Smith hoped to commit a sexual battery was intertwined with the narrative of how Smith, Jones, and Eaglin planned their escape attempt and helped the jury evaluate the circumstances leading to the charged murder.

The fact that Smith did not act on his desire to sexually batter the guard does not change this Court’s analysis of whether the evidence of his stated intent was admissible. In Griffin v. State, 639 So.2d 966, 970 (Fla.1994), this Court concluded that similar evidence of a proposed — but not perpetrated — burglary was admissible because the “focus of [the witness’s] testimony was the events surrounding the crimes for which Griffin was on trial” and “was relevant and necessary to adequately describe the events leading up to the” charged burglary and murder. Similarly, in Peede v. State, 955 So.2d 480, 499-500 (Fla.2007), this Court concluded that a law enforcement officer’s testimony that Peede stated a desire to kill two more victims— his ex-wife and her boyfriend — was “inextricably intertwined” with the criminal episode in which he killed his current wife, who he intended to use to lure the other victims.

As in Griffin and Peede, the evidence of criminal intent in Smith’s case was presented as part of the narrative of the events leading to the charged offense. Both Smith’s recorded statement and Ly-kins’ testimony focused on the circumstances surrounding the charged offense and explained Smith’s role in planning the attempted escape — upon which the felony — murder charge was based. The statement and testimony also were probative of Smith’s intent regarding the guard on duty. Thus, the evidence that Smith hoped to sexually batter a prison guard as part of the escape was relevant to the charged homicide.

The probative value of this relevant evidence was not substantially outweighed by the danger of undue prejudice. Smith’s callous comments about the guard no doubt tended to discredit Smith. But any danger of undue prejudice did not outweigh — much less, substantially outweigh — the probative value of the evidence, which was great. As discussed above, the evidence was probative of the degree of Smith’s participation in the escape attempt and his disregard for the guard’s safety, which were disputed issues at trial and relevant to the imposition of a capital sentence.

Given this balance of probativeness versus prejudice and this Court’s precedent— which has upheld the admission of dissimilar fact evidence of completed, not merely intended, sexual batteries — it was reasonable for trial counsel to not challenge the intended sexual battery evidence on undue prejudice grounds. See, e.g., McLean v. State, 934 So.2d 1248, 1263 (Fla.2006) (concluding that trial court did not err in determining that risk of undue prejudice from evidence of prior sexual battery of a minor did not substantially outweigh its probative value where the evidence was offered to corroborate the testimony of another witness); Christopher v. State, 407 So.2d 198, 201 (Fla.1981) (concluding potential for undue prejudice from evidence of sexual relationship between defendant and his minor daughter did not substantially outweigh relevance to the defendant’s motive for murdering the child’s guardians).

B. Mental Health Mitigation

In his second issue on appeal, Smith contends that his trial counsel failed to provide certain psychiatric records from the Florida Department of Corrections (DOC) to his mental health expert. Smith asserts that the records were significant because they documented that Smith was previously diagnosed with posttraumatic stress disorder (PTSD) and that had the mental health expert been provided those records, the expert would have offered a different diagnosis or explanation of Smith’s behavior, which would have persuaded the jury and the judge to sentence Smith to life in prison.

Smith is not entitled to relief on this appellate issue because the postconviction court correctly concluded that Smith did not demonstrate that any failure to provide the l’ecords to his mental health expert resulted in prejudice. Because Smith failed to establish prejudice, we do not review the postconviction court’s conclusion that Smith failed to carry his burden of proof regarding whether trial counsel provided the DOC psychiatric records to Dr. Schaerf. See Hurst v. State, 18 So.3d 975, 996 (Fla.2009) (“The Court need not reach both Strickland prongs in every case. ‘[W]hen a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.’ ” (quoting Preston v. State, 970 So.2d 789, 803 (Fla.2007))).

During the penalty phase, the defense called several of Smith’s relatives and a social worker who testified about the physical and sexual abuse within Smith’s family. The defense then called Dr. Schaerf, a forensic psychiatrist, to build on this testimony about Smith’s childhood. Dr. Schaerf testified that Smith was a victim of how he was raised. The doctor explained that Smith’s family was plagued by physical and sexual abuse, including incest, and that within this family, Smith did not receive any nurturing or have any role models. Dr. Schaerf explained that there was no sense of “right from wrong in the house,” just abuse. Dr. Schaerf stated that Smith “learned that coercion is the way we do things, not talking about rational understandings, not getting positive feedback” and “that you beat females.” Dr. Schaerf testified that this lack of guidance did not improve once Smith was removed from his family’s home. Rather, Smith was placed in psychiatric programs and juvenile facilities with other troubled children. Smith was then in jail or prison for all but four years of his adult life.

Based on his evaluation of Smith, interviews with individuals who knew Smith, and review of numerous documents, Dr. Schaerf informed the jury that Smith had several psychiatric disorders: a history of reoccurring depression — then currently in remission — that accounted for Smith’s six suicide attempts; ADD as a child; and substance abuse. Dr. Schaerf opined that Smith’s ADD particularly caused problems for him because his father was abusive and would punish Smith severely for any misbehavior. Dr. Schaerf additionally testified that Smith has low-normal IQ and antisocial personality disorder.

As for the attempted escape and the murder in June 2003, Dr. Schaerf testified that there was no evidence that Smith was suffering from depression at that time. Dr. Schaerf did opine, however, that Smith’s antisocial personality disorder affected Smith’s behavior at the time of the murder. Dr. Schaerf explained that due to his ADD and antisocial personality disorder, Smith’s “biology push[es]” him to act impulsively and that from a psychological standpoint, Smith suffers an “inability to really control his behavior, conform it to standards of society.” Dr. Schaerf testified that based on Smith’s life experience and his personality disorder, the escape and the violence were “just business as usual.” Dr. Schaerf further opined that Smith will never stop trying to escape from confinement.

At the postconviction evidentiary hearing, Smith called psychiatrist Dr. Maher, who evaluated Smith and reviewed records regarding Smith for purposes of the post-conviction proceedings. Dr. Maher agreed with Dr. Schaerfs conclusion that Smith suffers from depression, which is an Axis I disorder in the Diagnostic and Statistical Manual of Mental Disorders. Dr. Maher differed from Dr. Schaerf, however, in that he testified that — based in part on a review of the DOC psychiatric records that Smith alleges were not timely provided to Dr. Schaerf — Smith also should have been diagnosed with the Axis I disorders of anxiety and PTSD and should not have been diagnosed with antisocial personality disorder.

Dr. Maher explained that the DOC psychiatric records showed that prison medical personnel diagnosed Smith with PTSD between August 1996 and August 1999 and, at other times, with PTSD “by history,” which means that it “is a legitimate and proper diagnosis, but they don’t at the time of that visit see the symptoms of it.” Dr. Maher testified that he agreed with the PTSD diagnosis. Dr. Maher concluded that Smith developed the disorder in his childhood and that a stabbing in prison reactivated the disorder. Dr. Maher opined that while the disorder can, in some individuals, resolve itself, it “generally becomes a chronic underlying diagnosis” and in Smith’s case is likely chronic.

Dr. Maher further opined that violence during the escape attempt likely triggered Smith’s chronic anxiety and PTSD. Accordingly, Dr. Maher testified that Smith would have been under extreme emotional or mental disturbance at the time of the Lathrem murder and that while Smith understood that escaping was a criminal act, during the moments immediately leading up to Officer Lathrem’s death, Smith’s capacity to appreciate the criminality of his conduct was substantially impaired. Similarly, Dr. Maher testified that Smith had reported a history of dissociative experiences and that it was “certainly likely” that Smith would have responded to the stress of Officer Lathrem’s murder by dissociating.

In addition, Dr. Maher opined that based on Smith’s manner of speaking, the discrepancy between his verbal and performance IQ scores and his partial ambi-dextrousness, Smith more likely than not has brain damage or brain impairment. Dr. Maher suggested that this impairment could be identified by a PET or MRI scan but has been overlooked before because it is overshadowed by Smith’s psychological problems.

Finally, Dr. Maher testified that he thought it was understandable that — without the DOC psychiatric records discussed in the postconviction motion — any penalty phase expert would have concluded that Smith had antisocial personality disorder. Dr. Maher asserted, however, that the DOC psychiatric records, which document suicide attempts and psychotropic medications, would prompt a competent expert to look for an Axis I diagnosis.

In rebuttal, the State called Dr. Schaerf. Dr. Schaerf testified that he could not remember for certain if he had reviewed the DOC psychiatric records when preparing for the penalty phase. Dr. Schaerf went on to explain, however, that even assuming he had not considered the DOC psychiatric records in preparation for his penalty phase testimony, he was “not sure [that knowledge of their contents] would make a difference” to his presentation to the jury. Dr. Schaerf testified that while Smith was technically diagnosed with and treated for PTSD while incarcerated, he did not think PTSD was a “major issue” in Smith’s case and that even after reviewing the DOC psychiatric records, PTSD “wouldn’t be the [diagnosis] that I presented.”

Dr. Schaerf explained that he had doubts about the accuracy of the diagnosis of PTSD by the DOC medical personnel. Dr. Schaerf opined that in a treatment setting, a mental health practitioner may not be as strict about applying a diagnostic label to a patient as a practitioner would be in a forensic setting. A treating doctor is inclined to take a patient’s report of symptoms as accurate and try to do whatever he can to help the patient, whereas a forensic doctor must strive to reach an objectively accurate diagnosis. Dr. Schaerf also noted that rather than avoiding trauma while in prison, a symptom of PTSD, Smith was “creating it” by planning and participating in the escape attempt.

Dr. Schaerf further explained that he would not diagnose Smith as suffering from PTSD or dissociative disorder at the time of Lathrem’s murder in 2003. Dr. Schaerf stated that according to the DOC psychiatric records, Smith’s treatment for PTSD began in 1996; but in July 2000, Smith ceased taking medication for his mental health disorders, and in February 2001, he became asymptomatic and therefore ceased psychiatric treatment altogether. Dr. Schaerf testified specifically about one DOC form which indicated that when examined in 1998, Smith was diagnosed with PTSD, cocaine dependence, and antisocial personality disorder; but by the end of his treatment in February 2001, Smith’s diagnosis had changed to asymptomatic depression disorder, cocaine dependence, and antisocial personality disorder — but not PTSD.

Likewise, Dr. Schaerf testified that he did not think the failed escape attempt or murder triggered Smith’s PTSD or a dissociative disorder. Dr. Schaerf explained that during their 2006 clinical interview, Smith did not report any symptoms that prompted Dr. Schaerf to consider PTSD or dissociative disorder as proper diagnoses. Dr. Schaerf testified that avoidance or phobia is an element of a diagnosis of PTSD, but while Smith reported some harassment by prison guards following the murder, Smith did not report any other physical or psychological distress on work details or a need to avoid situations that would remind him of the murder of Officer Lathrem.

Dr. Schaerf testified that because he did not think Smith was suffering from PTSD at the time of the murder, he could not ethically make it a major focus of the penalty phase mitigation presentation. Dr. Schaerf stated: “I don’t think I would tell you that PTSD was one [diagnosis] that I would have focused on even if I included it as PTSD in remission.” The doctor summarized:

Would I put [the diagnosis of PTSD] in today in the presentation?
Pm not sure it would make a difference. Because when I interviewed Mr. Smith several times and gave him ample opportunity to discuss his full symptoma-tology and do a full forensic psychiatric evaluation, he really had no symptoms of post-traumatic stress disorder. He didn’t have symptoms ongoing of a major depression.
So the only thing that I think with diagnostic specificity and certainty would be that he suffered from his antisocial personality disorder and he was confined in a prison setting and the other things were not a real act of disease. Yes, there are some things in remission.
The only other thing I would add is that you could debate whether the other active diagnoses were some of his intellectual vulnerabilities that have been debated through his life, as well, in terms of does he have more aligned actual functioning at that testing, does he have low or average IQ and those kinds of things.

Smith’s argument for prejudice is that if his trial counsel had called a mental health expert who could have provided a nexus between Smith’s childhood and his mental state at the time of the crime, the judge and the jury would have realized how Smith was harmed by his background and would have found more mitigation. Specifically, Smith asserts that testimony that the abuse Smith suffered as a child and the violence he experienced in prison caused him to experience PTSD, as documented by the DOC psychiatric records, would have established additional mitigation. Smith’s argument is without merit.

First, Smith did not prove prejudice because he did not establish that as a result of being provided with the DOC psychiatric records, a reasonably competent mental health expert would have offered materially different testimony during the penalty phase than did Dr. Schaerf. While Dr. Maher testified that he believes that due to chronic PTSD, Smith was under extreme or emotional mental disturbance at the time of the Lathrem murder and had a substantially impaired capacity to appreciate the criminality of his conduct, Dr. Schaerf testified that even if he had reviewed the DOC psychiatric records, he would not have diagnosed Smith as suffering from PTSD at the time of the murder. Dr. Schaerf explained that Smith ceased receiving psychiatric treatment more than two years before the Lathrem murder and that according to the DOC records, as of February 2001, PTSD was no longer an active diagnosis for Smith. Dr. Schaerf further explained that he did not think Smith was suffering from PTSD at the time of the murder because instead of “avoiding trauma, [Smith was] creating it.” Even after reviewing the DOC psychiatric records, Dr. Schaerf concluded that he could not ethically make PTSD a major focus of the mitigation presentation.

In similar cases where a defendant asserted that counsel failed to provide relevant records to the defense’s mental health expert, this Court concluded that the defendant did not prove prejudice where the mental health expert testified that the information would not have materially changed his evaluation or testimony. See, e.g., Gaskin v. State, 822 So.2d 1243, 1250 (Fla.2002) (“[B]ecause Dr. Krop testified at the evidentiary hearing that his diagnosis of Gaskin would have changed little if counsel had given him Gaskin’s school records, Gaskin has not met his burden of showing that but for counsel’s alleged deficiency, the result of the penalty phase would have been different.”); Carroll v. State, 815 So.2d 601, 612-13 (Fla.2002) (“Dr. Gutman also reiterated that Carroll has a ‘malingering-like persona’ and that his diagnosis of malingering would still be present. Thus, even if we were to assume trial counsel was deficient for failing to provide the additional background information, ... Carroll has failed to demonstrate prejudice.”) (footnote omitted); Breedlove v. State, 692 So.2d 874, 877 (Fla.1997) (“[B]oth psychologists ... stated at the postconviction hearing that although additional information from Breedlove’s counsel might have been helpful, their opinions were unchanged.... In light of these opinions, we do not conclude that ... there is a reasonable probability that the result of the penalty phase would have been different.”).

Second, Smith is not entitled to relief as a result of Dr. Maher’s more favorable postconviction testimony. See Cherry v. State, 781 So.2d 1040, 1052 (Fla.2000) (“The fact that Cherry found a new expert who reached conclusions different from those of the expert appointed during trial does not mean that relief is warranted.”). In this case, while Dr. Maher disagreed with some of Dr. Schaerf s diagnostic conclusions, Dr. Maher also conceded that— based on Smith’s behavioral and criminal history — it was “understandable” that a mental health expert without access to the DOC psychiatric records would diagnose Smith with Axis II antisocial personality disorder rather than an Axis I disorder. Similarly, while Dr. Maher testified that Smith’s manner of speaking, verbal and performance IQ scores, and partial ambi-dextrousness were “broad indicator[s]” of brain damage or brain impairment and suggested that the brain deficiency perhaps could be identified by a PET or MRI scan, Smith did not present such a scan to establish the brain impairment allegedly overlooked by Dr. Schaerf. Moreover, Dr. Maher again stopped short of labeling Dr. Schaerfs evaluation inadequate, instead explaining that the possible brain impairment would be difficult to diagnose due to Smith’s “psychological, emotional, social, and other symptoms that he has acquired through his life beginning from childhood.”

Third, the record supports the postcon-viction court’s conclusion that “[e]ven had the diagnosis of PTSD by Department of Corrections staff, or any of the other 14 diagnos[e]s made by those staff, been presented to the jury, there is no reasonable probability of a different outcome.” Post-conviction Order at 10. Dr. Maher’s testimony about the conclusions of the DOC doctors and his opinion that the escape attempt and murder “likely” triggered Smith’s PTSD and dissociative disorder do not undermine confidence in Smith’s death sentence.

In this case, the jury heard evidence that Smith beat to death an elderly woman, kidnapped and sexually assaulted a minor, sexually assaulted his sister, and— while serving multiple life sentences — participated in an escape attempt which involved killing a guard and an inmate. Smith, 998 So.2d at 521. The jury also heard Smith’s recorded statement, in which he admitted that the plan for the escape involved beating the guard on duty, beating an inmate, killing another inmate, and attacking the gun-truck driver. In addition, the defense expert, Dr. Schaerf, informed the jury that in his opinion, Smith will never stop trying to escape from confinement. Given this record, Smith’s claim that jurors would recommend that Smith be returned to the general prison population as a result of hearing evidence that Smith may have chronic PTSD and dissociative disorder is patently unrealistic.

Smith has likewise failed to establish that Dr. Maher’s testimony about PTSD and dissociative disorder would prompt the sentencing judge to impose a lesser sentence. While the sentencing judge did not find any statutory mitigation in Smith’s case, the judge gave great weight to the mitigating factor that Smith was raised by an abusive family and gave some weight to the additional, interrelated factor of mental and emotional health issues. These weights indicate that the sentencing judge appreciated that Smith’s background affected his behavior, even without a mental health expert expressly tying Smith’s childhood abuse to a current mental health diagnosis. Furthermore, the sentencing judge concluded that the four aggravating factors in this case — under sentence of imprisonment, prior violent felony, committed for purpose of effecting an escape, and CCP — greatly outweighed the mitigating circumstances. Given these assessments of weight, our confidence in the trial court’s conclusion is not undermined by the possibility of additional evidence about the effect of Smith’s childhood on his mental status.

III. PETITION FOR WRIT OF HABEAS CORPUS

In his petition for a writ of habe-as corpus, Smith asserts that: (A) Florida’s capital sentencing scheme is unconstitutional as applied; (B) Florida’s capital sentencing scheme is unconstitutionally arbitrary and capricious, and trial and appellate counsel did not effectively raise this issue; (C) cumulative errors have deprived Smith of a fair trial; and (D) Smith may be incompetent at the time of his execution, The majority of these claims are not cognizable in a petition for habeas relief, and Smith’s properly raised claim of ineffective assistance of appellate counsel is without merit.

“[W]hile habeas corpus ... [is] still used in the postconviction process, [its] use is somewhat limited.” State ex rel. Butterworth v. Kenny, 714 So.2d 404, 409 (Fla.1998) (plurality opinion) (footnote omitted), receded from on other grounds by Darling v. State, 45 So.3d 444 (Fla.2010). Since the adoption of Criminal Procedure Rule No. 1 in 1963, “habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief.” Baker v. State, 878 So.2d 1236, 1241 (Fla.2004) (quoting Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001)). Rule No. 1—the predecessor to Florida Rules of Criminal Procedure 3.850 and 3.851—established a process by which collateral attacks on criminal convictions and sentences may be presented in the trial court that imposed the conviction and sentence. See In re Criminal Procedure Rule No. 1, 151 So.2d 634, 634 (Fla.1963). In adopting Rule No. 1, this Court explained that the procedure was intended to supplant most uses of the writ of habeas corpus.

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

Id. at 635. Rules 3.850 and 3.851 — which permit initial and, in some circumstances, successive postconviction motions — continue to provide an avenue for litigating most collateral attacks to a conviction or sentence. “Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postconviction proceedings. The habeas process is therefore most often used in death penalty cases to challenge the effectiveness of appellate counsel.” Wright v. State, 857 So.2d 861, 874 (Fla.2003) (citation omitted).

Smith’s claims that Florida’s capital sentencing scheme is unconstitutional as applied; that Florida’s capital sentencing scheme is unconstitutionally arbitrary and capricious, and trial counsel did not effectively raise this issue; and that cumulative errors resulted in an unfair trial all could have been — and in fact were — raised in his postconviction motion. Thus, they are not properly presented in a petition for a writ of habeas corpus.

Smith’s claim that he may be incompetent at the time of execution is likewise not cognizable. Such a claim can only be raised after a death warrant has been signed. See Fla. R.Crim. P. 3.811(c) (2013) (“No motion for a stay of execution pending hearing, based on grounds of the prisoner’s insanity to be executed, shall be entertained by any court until such time as the Governor of Florida shall have held appropriate proceedings for determining the issue pursuant to the appropriate Florida Statutes.”); Green v. State, 975 So.2d 1090, 1115-16 (Fla.2008) (“This claim is premature because a claim of incompetency to be executed cannot be asserted until a death warrant has been issued, and no death warrant has been issued in this case.”).

Smith’s habeas petition raises only one cognizable claim: his claim that appellate counsel performed ineffectively. Smith contends that appellate counsel should have argued on direct appeal that Florida’s capital sentencing scheme is unconstitutionally arbitrary and capricious. Smith has not shown that appellate counsel was deficient. This Court has rejected the arguments that Florida’s death penalty scheme fails to prevent the arbitrary and capricious imposition of death sentences by sufficiently narrowing application of the penalty and that it constitutes cruel and unusual punishment. See, e.g., Lugo v. State, 845 So.2d 74, 119 (Fla.2003). Because Smith’s challenges to Florida’s death penalty scheme are meritless, appellate counsel did not err by failing to raise the arguments on direct appeal and Smith is not entitled to habeas relief. See Davis v. State, 928 So.2d 1089, 1131 (Fla.2005) (“[A]ppellate counsel should not be deemed deficient for failing to raise this meritless issue on appeal.”).

IV. CONCLUSION

For the reasons stated above, we affirm the circuit court’s denial of Smith’s motion for postconviction relief and deny his petition for a writ of habeas corpus. It is so ordered.

POLSTON, C.J., and LEWIS, CANADY, LABARGA, and PERRY, JJ., concur. PARIENTE, J., concurs in result with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

concurring in result.

Although I agree that the order denying postconviction relief should be affirmed, I disagree with the majority’s analysis of the admissibility of the statements made by Smith regarding an intended rape. I would conclude that the admission of those statements was error but that confidence in the outcome of the guilt and penalty phases was not undermined by their admission.

My initial disagreement is with the majority’s discussion of the law pertaining to a defendant’s bad acts, see majority op. at 1045^16, as the statements by Smith that he initially considered the possibility of a sexual battery do not constitute “prior bad acts.” While I cannot disagree that the portions of the statements regarding Smith’s plan to escape could be deemed relevant, under the required evidentiary balancing test, “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. (2006).

In this case, Agent Uebelacker and State witness Lykins offered significant evidence that Smith helped to plan the murder. Lykins testified that Smith admitted that he planned on escaping when a female guard was watching the inmates and that Smith planned on killing at least two people: a fellow inmate who he wanted dead and any other guard or inmate who was in the building because he wanted to make sure no one would sound an alarm before the escape. Lykins’ testimony regarding Smith’s statement as to the possible rape and the derogatory terms that Smith used therefore was inflammatory and unnecessary in light of the abundant evidence of guilt before the jury. The prosecutor then improperly seized upon that testimony in closing argument.

I further disagree with the majority’s conclusion that the danger of unfair prejudice was outweighed by the probative value of the portions of testimony at issue— or that this portion of the evidence had any probative value at all. Specifically, Smith does not assert that his counsel was ineffective for failing to object to all of his statements pertaining to the planned escape; instead, his claim focuses upon only those specific portions of his statements pertaining to an intended sexual battery and the reason this battery did not occur. In particular, Smith objects to the admissibility of his alleged statements — i.e., that if a female guard was on duty at the time of the escape attempt, he wanted to rape the female guard before escaping, and testimony that Smith did not rape the guard because she was dead. These very inflammatory statements pertaining to an intended rape were irrelevant to the crimes charged and were separate and apart from Smith’s statements regarding his intent to kill the guard on duty. Moreover, these inflammatory statements were cumulative and unnecessary in light of all of Smith’s other admissions pertaining to his significant involvement in planning the escape attempt and Smith’s desire to kill the guard on duty.

For these reasons, I would conclude that trial counsel was deficient for failing to object to the statements Smith made about an intended rape, but would affirm the denial of postconviction relief because under the Strickland prejudice standard, confidence in the outcome of the guilt and penalty phases is not undermined. Thus, I concur in the result of the majority opinion but not the reasoning regarding the admissibility of Smith’s statements.

QUINCE, J., concurs.


source: Caselaw Access Project

author: GERBER, J.

license: Public Domain

text:
    John HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3269.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Carey Haughwout, Public Defender, and Christine Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant appeals from his conviction for second-degree murder with a weapon. He argues that he should receive a new trial because the trial court read to the jury the standard jury instruction on manslaughter by act in effect at that time, which instruction misstated the law on that crime. We agree with the defendant and reverse.

The instruction at issue is former Florida Standard Jury Instruction (Crim.) 7.7 (2007). That instruction provided, in pertinent part:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
2. a. (Defendant) intentionally caused the death of (victim).

According to the defendant, the instruction misstates the law because it requires a jury to find the defendant “intentionally caused the death” of the victim when the crime of manslaughter by act requires only an intent to commit an act which causes death. See § 782.07(1), Fla. Stat. (2007) (“The killing of a human being by the act ... of another, without lawful justification ... and in cases in which such killing shall not be excusable homicide or murder ... is manslaughter....”). This misstatement is significant, the defendant argues, because it may mislead a jury into convicting a defendant for the greater offense of second-degree murder if the jury finds that the defendant did not intend to kill the victim.

Our supreme court agreed with this argument in State v. Montgomery, 39 So.3d 252 (Fla.2010). There, the court held that: (1) the crime of manslaughter by act does not require proof that the defendant intended to kill the victim; (2) the standard jury instruction on manslaughter by act erroneously requires a jury to find that a defendant intended to kill the victim in order to convict the defendant of that crime; and (3) the use of the standard jury instruction constitutes fundamental error. Id. at 255-58. Based on those holdings, the court concluded that the use of the standard jury instruction requires a new trial. Id. at 258. Montgomery’s reasoning applies here as well.

The state acknowledges Montgomery, but argues that we should affirm based on our opinion in Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010). We reject that argument because Singh is distinguishable. There, the trial court’s instruction provided the jury with two options for finding the second element of manslaughter by act: (1) that the defendant “intentionally caused the death” of the victim; or (2) that the death “was caused by the culpable negligence” of the defendant. Id. at 851. We found that providing the jury with the second option removed any error because the jury “could have returned a verdict for the lesser-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill.” Id. (citation omitted). Singh does not apply here because the trial court did not provide the second option to this jury.

The state also argues that, assuming the trial court erred in giving the jury instruction in question, the error was harmless beyond a reasonable doubt because there was “overwhelming evidence” against the defendant. We reject this argument and take this opportunity to remind the state once again that “an ‘overwhelming evidence’ test is not the correct test for determining whether an error was harmless.” Johnson v. State, 53 So.3d 1003, 1006 n. 3 (Fla.2010). Rather, “[t]he question is whether there is a reasonable possibility that the error affected the verdict.” Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (citing State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)) (emphasis omitted). Here, while there may be “overwhelming evidence” of the defendant’s guilt, there is a reasonable possibility that the error affected the verdict. The jury, apparently confused by the instruction, asked the trial court to “[cjlarify the difference between manslaughter and second-degree murder with regard to intent to kill.” The court referred the jury back to the instructions as a whole, which of course included the erroneous instruction.

Based on the foregoing, we reverse the defendant’s conviction for second-degree murder and remand for a new trial. At the new trial, the trial court shall be able to instruct the jury on the supreme court’s current standard instruction on manslaughter by act. The current instruction provides, in pertinent part:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
2. a. (Defendant’s) act(s) caused the death of (victim).
In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death.

In re Amendments to Standard Jury Instructions in Criminal Cases—Instruction 7.7, 41 So.3d 853, 854-55 (Fla.2010).

Reversed and remanded for new trial.

HAZOURI and CONNER, JJ„ concur.


author: PER CURIAM.

text:
    Denilson RODRIGUES, Appellant, v. ONE WEST BANK, F.S.B., Appellee.
    No. 4D10-4067.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellant.
    Robert R. Edwards of Law Offices .of Marshall C. Watson, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

MAY, C.J., HAZOURI and CONNER, JJ., concur.


text:
    SHAMROCK JEWELERS, INC., a Florida corporation, Appellant, v. Robert L. SCHILLACI, RLS, Inc., an Illinois corporation, John R. Aranda, J.P. Arandy & Company, Inc., a Florida corporation, Peter J. Marasco, and Romar & Associates, Inc. of South Florida, a Florida corporation, Appellee.
    No. 4D10-4075.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Mark D. Kairalla of Evenson & Kairalla, P.L., Palm Beach Gardens, for appellant.
    No brief filed for appellees.
   PER CURIAM.

This is a case where the appellant challenges a dismissal for failure to prosecute, but there is no final, appealable order to support jurisdiction. We therefore relinquish jurisdiction to the circuit court with the observation that the trial judge may take a second look at the record activity and reconsider its earlier dismissal.

Shamrock Jewelers, Inc., filed a complaint against various defendants. Defaults were entered against each defendant. On January 22, 2009, Shamrock’s attorney filed a notice of change of address in the case. On July 8, 2010, the circuit court entered a motion, notice, and order of dismissal under the failure to prosecute section of Florida Rule of Civil Procedure 1.420(e). The court said that there had been no record activity within ten months, and then ordered, in part, as follows:

1. If no record activity occurs in the sixty (60) days immediately following service of this notice, and no stay has been issued or approved by this court, or if no good cause why the action should remain pending is shown in writing at least five (5) days before the hearing scheduled below and filed in the action with the Clerk of Court, with a courtesy copy sent directly to the judge’s office, THIS ACTION SHALL STAND DISMISSED FOR LACK OF PROSECUTION WITHOUT FURTHER ORDER OF COURT on [September 13, 2010], pursuant to Rule 1.420(e), Florida Rules of Civil Procedure.

The order provided that if record activity occurred within the 60 day period following service of the notice, then the court would hold a status conference on September 13, 2010.

Within the 60 day grace period provided by the order, Shamrock filed its first request to produce. At the September 13, 2010 status conference, the case was dismissed for lack of prosecution because there had been no record activity. Apparently, the circuit court was not aware that Shamrock had filed its discovery request.

A problem with this case is that the July 8, 2010 order is a non-appealable, non-final order. See Fla. R.App. P. 9.030(b)(1)(A). Shamrock filed a notice of appeal directed at the July 8 order. The circuit court entered no other order dismissing the case. The request to produce was record activity sufficient to preclude dismissal. See Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786 (Fla.2011); Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370 (Fla. 4th DCA 2011); Johnson v. Maroone Ford LLC, 944 So.2d 1059, 1061 (Fla. 4th DCA 2006) (holding that plaintiffs’ second request to produce constituted record activity sufficient to preclude dismissal). Because there was record activity, paragraph 1 of the July 8 order, providing for automatic dismissal in the absence of record activity, did not apply.

Under these circumstances, the July 8 order was a conditional order and not a final, appealable order. See Lynbrook Court Condo. Ass’n v. Arana, 711 So.2d 249, 250 (Fla. 3d DCA 1998). Due to the record activity, the automatic dismissal of paragraph 1 never took effect. Even if the judge orally dismissed the case at the status conference, the court would have had to reduce the dismissal to writing to create an appealable order. Where an appellant has prematurely filed an appeal, our procedure is to relinquish jurisdiction to the circuit court to give the appellant an opportunity to obtain a final appealable order. See Dobrick v. Discovery Cruises, Inc., 581 So.2d 645 (Fla. 4th DCA 1991). We follow that procedure in this case, and relinquish jurisdiction to the circuit court for 60 days to obtain a final order and file a copy of it with this court. Failure to do so will result in a sua sponte dismissal of this appeal. If Shamrock obtains a final order, an amended notice of appeal shall be filed in the circuit court. We note that on remand, the trial court is not required to enter a final order of dismissal; rather, the court is free to take a closer look at the record and reconsider whether there was “record activity” within the meaning of Rule 1.420(e).

POLEN, GROSS and CONNER, JJ., concur.


text:
    Leslie K. HARRIS, Appellant, v. BRISTOL LAKES HOMEOWNERS ASSOCIATION, INC., Aberdeen Property Owners Association, Inc., and Aberdeen Golf & Country Club, Inc., Appellees.
    No. 4D10-3548.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Leslie K. Harris, Boynton Beach, pro se.
    Scott A. Cole and Kristen A. Tajak of Cole Scott & Kissane, P.A., Miami, for appellee Aberdeen Property Owners Association, Inc.
    Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellee Aberdeen Golf & Country Club, Inc.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant the motion for clarification and correct the opinion to reflect more clearly the ruling of the trial court.

Leslie Harris, an owner in Bristol Lakes Homeowners Association, appeals from an order denying her motion for reconsideration of a final order dismissing with prejudice a case between Bristol Lakes and Aberdeen Property Owners Association based upon settlement. Harris had filed a motion to intervene in the action a week prior to the order of dismissal which was not ruled upon pi-ior to entry of the final order. She then filed a motion for reconsideration of the order of dismissal based upon her pending motion to intervene. The trial court denied the motion without prejudice to Harris filing an independent claim seeking to raise the issues she raised regarding the propriety of amendments to the governing documents of Bristol Lakes or Aberdeen Property Owners Association, and Harris appeals. We affirm, as the trial court did not abuse its discretion in denying the motion to reconsider the order of dismissal because of the pending late-filed motion to intervene. See Havanatur, S.A. v. 747 Travel Agency, Inc., 463 So.2d 404, 405 (Fla. 3d DCA 1985). As noted in Havanatur, “ ‘[T]he general rule-universally-is that intervention may not be allowed after final judgment,’ save “in the interests of justice”, Dickinson v. Segal, 219 So.2d 435, 436-37 (Fla.1969) (emphasis omitted) and cases collected; and there is no showing that the interests of justice required this intervention.”

Affirmed.

WARNER, POLEN, JJ., and EHRLICH, MERRILEE, Associate Judge, concur.


text:
    Carol M. WITTE, Petitioner, v. Robert D. WITTE, Respondent.
    No. 4D11-3520.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.
    Deborah S. Chames of Kluger Kaplan Silverman Katzen & Levine, P.L., and Cynthia L. Green of the Law Offices of Greene Smith & Associates, P.A., Miami, for petitioner.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Greg A. Lew-en of Greg A. Lewen, P.A., Fort Lauder-dale, for respondent.
   PER CURIAM.

Carol M. Witte (the wife), the petitioner in a dissolution of marriage proceeding pending below, seeks certiorari review of a non-final order in which the trial court determined that she had waived the attorney-client privilege as to communications with her attorney by having an estimated sixty to sixty-five percent of her communications with counsel in the presence of her daughter, and some in the presence of her son-in-law. We grant the petition.

While being deposed by the husband, Robert D. Witte, the wife and her attorney refused to answer certain questions, including questions as to how certain documents were obtained for the litigation, relying on the attorney-client privilege. At a non-evidentiary hearing on the husband’s motion to compel, counsel for the husband argued that the wife’s attorney-client privilege had been waived because much of her communications with counsel took place in the presence of unrepresented third parties: the parties’ daughter and, at times, their son-in-law.

At the hearing, the wife’s counsel relied on section 90.502, Florida Statutes (2011). Subsection 90.502(2) provides that “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” As to whether a communication is confidential, the statute provides as follows:

(c) A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:
1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2. Those reasonably nécessary for the transmission of the communication.

§ 90.502(l)(c), Fla. Stat. (2011).

The wife argued that her communications with counsel should remain protected because disclosure to third parties — here, her daughter and son-in-law — was reasonably necessary for the transmission of the communication, citing Gerheiser v. Stephens, 712 So.2d 1252, 1254 (Fla. 4th DCA 1998) (holding co-defendant’s mother’s conversation with an attorney whom she considered retaining for her incarcerated son, who had asked her to find him an attorney, was protected by attorney-client privilege; mother was acting as agent for son, and thus was reasonably necessary for transmission of communication). Though the wife in this case was not in jail, the facts were not so very different; her deposition transcript showed that the seventy-four-year-old wife suffered from a number of ailments, including short-term memory loss, glaucoma, and deafness. Furthermore, because she had been living in Israel since 1994, her financial documents were written in Hebrew, a language the wife could neither read nor speak; she had relied on her daughter and son-in-law to gather the documents for her. The wife’s conditions made it difficult for counsel to communicate with the wife, who frequently asked her daughter to repeat to her what counsel had said.

According to the wife’s counsel, the wife had a mind of her own, but she had limitations; for that reason, she required assistance, and the statute allows a disclosure to remain confidential, if the third party’s assistance is in furtherance of the rendition of legal services to the client, necessary for the transmission of communication, which was the case.

The trial court concluded that the privilege had been waived. Its order provides in pertinent part as follows:

The Court finds that there has been a voluntary waiver of the attorney-client privilege by the Wife. It is uncontested that 60-65 percent of her communications with her counsel occurred in the presence of the Wife’s daughter and some communications occurred in the presence of the Wife’s son-in-law. The waiver is not within the parameters of any exceptions to the attorney-client privilege which would make the communications with her counsel confidential.

As there are not many Florida appellate court opinions construing section 90.502(l)(c), the wife relies on a number of out-of-state decisions; her closest case , is Stroh v. General Motors Corp., 213 A.D.2d 267, 623 N.Y.S.2d 873, 874 (N.Y.App.Div. 1st Dept.1995) (reversing order compelling driver to answer deposition questions about her conversations with her attorney, holding attorney-client privilege applied even though conversations took place in presence of driver’s daughter; seventy-six-year-old driver had to recall traumatic experience; her daughter selected the law firm, transported her there, and put her sufficiently at ease to communicate with counsel, therefore she served as agent of the client to facilitate the communication). See also Cal. Oak Found. v. Cnty. of Tehama, 174 Cal.App.4th 1217, 94 Cal.Rptr.3d 902, 905 (2009) (finding not meritorious appellant’s claim of error in trial court’s denial of appellant’s motion to include in the record four letters from county’s outside law firm, rejecting appellant’s argument that the county’s sending the documents to counsel representing the real parties in interest abrogated attorney-client privilege; disclosure does not waive the privilege when it is necessary to accomplish the purpose for which the lawyer was consulted or reasonably necessary to further the interest of the litigant); State v. Sucharew, 205 Ariz. 16, 66 P.3d 59, 64-65 (2003) (affirming conviction, inter alia holding that attorney-client privilege applied to minor witness’s conferences with counsel in which his parents were present, where parents had hired counsel on their son’s behalf and had a parental interest and advisory role in their son’s legal affairs; general rule that presence of third party waives attorney-client privilege does not apply where the third party’s presence does not indicate lack of intent to keep the communication confidential).

Such decisions suggest that the presence of a close family member does not, in and of itself, waive the attorney-client privilege.

In opposition to the wife’s petition, the husband argues that the trial court made a factual determination that neither exception to the waiver of section 90.502(l)(c) applied, based on other hearings, on other issues, that already had taken place in the course of the proceeding; it did not make a legal ruling that the communications were not privileged merely because of the daughter and son-in-law’s presence for a substantial percentage of the communications.

However, as the wife maintains in her reply, no evidence was presented at the hearing on this issue, which was resolved based only on legal arguments.

The disputed factual issue of whether the wife waived the privilege cannot be determined as a matter of law based on the percentage of time a third party was present. We grant the petition to the extent of remanding the case to the trial court to make a factual determination, after the presentation of evidence, as to whether the wife’s communications with counsel in the presence of her daughter and son-in-law were intended to remain confidential as to other third parties, and whether the disclosure to the daughter and son-in-law, within the factual circumstances presented by this case, was reasonably necessary for the transmission of the communications.

Petition Granted.

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Jose BRIBIESCA-TAFOLLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2243.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his convictions for two counts of driving under the influence causing serious bodily injury. He argues that the state’s evidence was insufficient to prove the corpus delicti of the crime before the trial court allowed the state to introduce his admission of being the driver of the truck which caused the crash. We conclude that the state’s evidence was sufficient to prove corpus de-licti. We affirm.

The state presented the following evidence primarily through the investigating officer. At 7:10 a.m., the defendant and his friend were in a truck traveling southbound on U.S. 1 in Jupiter. The truck crossed into the northbound lane and struck a car, causing serious bodily injury to the car’s two occupants. The truck then flipped, and the defendant and his friend were ejected. The truck then struck another car.

The two cars’ occupants did not see who was driving the truck at the time of the crash. The police also were unable to identify who was driving the truck based on the locations where the defendant and his friend were found after the crash.

The defendant and his friend were taken to a hospital. There, the officer first met with the defendant’s wife. According to the wife, sometime between 2:00 and 2:30 a.m., the defendant received a phone call at their home in Jupiter. He told his wife that he was leaving to pick up a friend, and that they were going to play soccer in Jupiter later that day. His wife knew that the friend lived in Fort Pierce. The defendant then left in a truck registered to his wife. He was alone when he left.

The officer then met with the defendant. The defendant appeared to be impaired based on his bloodshot eyes, the odor of an alcoholic beverage on his breath, and how he spoke to the police. A sample of defendant’s blood was taken later. The sample showed that, five hours after the crash, the defendant’s blood alcohol level was .13. A sample of the defendant’s friend’s blood was not taken.

The officer read the defendant his Miranda warnings, and the defendant agreed to speak with the officer. Before the officer could testify further, the defendant objected. At sidebar, the defendant said that the officer was about to testify regarding the defendant’s admission of being the driver of the truck at the time of the crash. The defendant argued that the state’s evidence up to that point was insufficient to prove the corpus delicti of the crime without the defendant’s admission.

The trial court overruled the objection. The court recognized that the state’s evidence of who drove the truck at the time of the crash was circumstantial. However, the court found that the state’s evidence was sufficient, reasoning: “[The defendant’s wife] owns the car. She allows [him] to use it. He left alone.”

Following the ruling, the officer continued his testimony in front of the jury. According to the officer, the defendant admitted to driving the truck that caused the crash.

The state charged the defendant with five DUI counts: counts one and two— DUI causing serious bodily injury to the first car’s occupants; count three — DUI causing serious bodily injury to the defendant’s friend; count four — DUI causing damage to the second car; and count five — DUI causing damage to property owned by the Town of Jupiter.

The jury found the defendant guilty as charged of counts one and two, and guilty of the lesser included offenses of DUI in counts three, four, and five. The trial court dismissed counts three, four, and five as violating double jeopardy. The court then adjudicated and sentenced the defendant on counts one and two.

This appeal followed. The defendant argues that the state’s evidence was insufficient to prove the corpus delicti of DUI causing serious bodily injury before the trial court allowed the state to introduce his admission of being the driver of the truck at the time of the crash. We review the trial court’s decision for an abuse of discretion. See Tanzi v. State, 964 So.2d 106, 116 (Fla.2007) (“[T]he trial court did not abuse its discretion in finding the corpus delicti and admitting [the defendant’s] confession.”).

We conclude that the trial court did not abuse its discretion in finding the state’s evidence sufficient to prove the corpus de-licti of DUI causing serious bodily injury before allowing the state to introduce the defendant’s admission of being the driver of the truck at the time of the crash. We base our conclusion on a review of corpus delicti and its application in other driving under the influence cases.

Corpus delicti “means literally ‘the body of the crime.’ It is regularly used in appellate decisions to mean the legal elements necessary to show that a crime was committed.” State v. Allen, 335 So.2d 823, 824 n. 2 (Fla.1976). “[B]efore a confession is admitted the state has the burden of proving by substantial evidence that a crime was committed.” Id. at 824. “[Sjuch proof may be in the form of circumstantial evidence.” Id. The identification of the defendant as the guilty party is not a necessary predicate for the admission of a confession. Id. at 825. Instead, the state need only “bring forth ‘substantial evidence’ tending to show the commission of the charged crime.” Id. (footnote omitted). This “substantial evidence” standard “does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.” Id. (footnote omitted).

Thus, we turn to the elements of the crime of driving under the influence causing serious bodily injury. The elements are met if: (1) a person driving or in actual physical control of a vehicle, (2) who was under the influence of alcoholic beverages to the extent that the person’s normal faculties are impaired or has a blood or breath alcohol level of .08 or more, (3) causes or contributes to causing serious bodily injury to another person as a result of operating the vehicle. Esler v. State, 915 So.2d 637, 640 (Fla. 2d DCA 2005); Fla. Std. Jury Instr. (Crim.) 28.3 (2010); §§ 316.193(1) and 316.193(3)(a), (3)(b), (3)(c)2„ Fla. Stat. (2010).

Here, the first and second elements are at issue. If the state possessed evidence that both the defendant and his friend were impaired or had a blood or breath alcohol level of .08, then it would have been unnecessary for the state to prove which of the two men—the defendant or his friend—drove the truck at the time of the crash. See State v. Walton, 42 So.3d 902, 909 (Fla. 2d DCA 2010) (the exact identity of the driver of a car which caused a crash was not necessary to establish that DUI with serious bodily injury had occurred where all three occupants of the car “had been drinking, had been smoking marijuana, and showed signs of impairment”).

However, the state did not possess evidence that the defendant’s friend was impaired or had a blood or breath alcohol level of .08. Therefore, with the state possessing evidence that only the defendant was impaired or had a blood or breath alcohol level of .08, the state had to prove by substantial evidence that the defendant drove the truck at the time of the crash before the court could allow the state to introduce the defendant’s admission to that effect. See id. at 907 (although identifying a defendant as the driver generally is not a necessary predicate to the introduction of the defendant’s admission, such identification may be a necessary predicate if the defendant’s identity as the driver is critical to establishing that a crime occurred).

Here, we conclude that the state proved by substantial evidence that the defendant drove the truck at the time of the crash. The state met this burden of proof using a combination of three pieces of circumstantial evidence.

First, the state showed that the defendant was driving the truck when he left his home four to five hours before the crash. We recognize there is no exact amount of time by which to measure the likelihood that a defendant was driving a vehicle at the time of a crash. Compare Allen, 335 So.2d at 825 (corpus delicti shown where, among other things, the defendant was seen driving the car earlier in the day and was seen entering the vehicle’s driver’s side within five to ten minutes of the crash), with State v. Hepburn, 460 So.2d 422, 426 (Fla. 5th DCA 1984) (corpus delicti not shown where, among other things, the defendant was not known to be in possession of the vehicle until the day after the accident). However, we consider the four to five hour period to be significant here because it provided the defendant with a sufficient amount of time to drive from Jupiter to Fort Pierce, pick up his friend, and then return to Jupiter by the time of the crash.

Second, the state showed that the defendant’s course of travel at the time of the crash was consistent with his statement to his wife that he intended to drive from Jupiter to Fort Pierce, pick up his friend, and then return to Jupiter. At least one court has found a defendant’s course of travel to be significant in determining whether the defendant was driving the subject vehicle. See Syverud v. State, 987 So.2d 1250, 1252 (Fla. 5th DCA 2008) (corpus delicti shown where, among other things, the crash occurred on the only direct route from the place the defendant was seen earlier in the day to his home).

Third, the state showed that the truck in which the defendant was traveling was registered to his wife. We recognize that the fifth district has issued two opinions where the fact of a spouse’s ownership or registration of a subject vehicle resulted in two different outcomes as to whether corpus delicti was shown. Compare Syverud, 987 So.2d at 1252 (corpus delicti shown where, among other things, the defendant’s wife was the vehicle’s owner), with Hepburn, 460 So.2d at 426 (corpus delicti not shown where, among other things, the vehicle was registered to the defendant’s husband). However, we believe that a spouse’s ownership or registration of the subject vehicle should weigh in favor of determining that corpus delicti was shown in eases such as these.

While these three pieces of circumstantial evidence, by themselves, might not have been sufficient to prove beyond a reasonable doubt that the defendant drove the truck at the time of the crash, we conclude that they are, in the aggregate, sufficient circumstantial evidence to lay the predicate for the admission into evidence of the defendant’s admission to that effect. See Allen, 335 So.2d at 825-26 (“While the facts just recited might not constitute proof beyond a reasonable doubt that [the defendant] was driving the vehicle at the time of the accident ... they are in the aggregate sufficient circumstantial evidence to lay the predicate for the admission into evidence of [the defendant’s] confession that he was the driver.”) (footnote omitted).

In reaching this conclusion, however, we are compelled to note that, in some cases, courts have considered eyewitness identification and the location of bodies after a crash to be significant in determining whether sufficient circumstantial evidence exists to prove that the defendant was the driver. Compare Allen, 335 So.2d at 825 (corpus delicti shown where, among other things, the defendant was seen entering the vehicle’s driver’s side within five to ten minutes of the crash and was found at the crash site with his feet on the driver’s side, whereas the passenger’s body was found several feet from the vehicle), with State v. Colorado, 890 So.2d 468, 470-72 (Fla. 2d DCA 2004) (corpus delicti not shown where, among other things, no witnesses could identify the defendant as having driven the vehicle at any time and the state did not argue that it could meet its burden of proof based on the bodies’ locations). Here, the two cars’ occupants did not see who was driving the truck, and the police were unable to identify who was driving the truck based on the locations where the defendant and his friend were found after the crash.

However, we do not consider the lack of eyewitness identification and the police’s inability to identify who was driving the truck as precluding the state from relying on the circumstantial evidence cited above to establish a preliminary showing that the defendant was driving the truck at the time of the crash. As our supreme court stated in Allen:

We are well aware that varying interpretations of circumstantial evidence are always possible in a case which involved no eye witnesses. Circumstantial evidence, by its very nature, is not free from alternate interpretations. The state is not obligated to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant. Were those requirements placed on the state for these purposes, circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.

335 So.2d at 826.

Based on the foregoing, we conclude that the trial court did not abuse its discretion in finding the state’s evidence sufficient to prove the corpus delicti of DUI causing serious bodily injury before allowing the state to introduce the defendant’s admission of being the driver of the truck at the time of the crash. We affirm.

Affirmed.

MAY, C.J., and DAMOORGIAN, JJ., concur.


text:
    Sascha WLODYKA, Appellant, v. Michael MATTHEWS, Cynthia Matthews, American Consulting Engineers of Florida, LLC, and Weekley Asphalt Paving, Inc., Appellees.
    No. 4D11-127.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Paula J. Phillips and John S. Penton, Jr. of Cole, Scott & Kissane, P.A., Plantation, for appellant.
    Tracey A. DeCarlo of Daniels, Kashtan, Downs, Robertson & McGirney, Fort Lauderdale, for appellee American Consulting Engineers of Florida, LLC.
   On Motion for Written Opinion

PER CURIAM.

On motion for rehearing, rehearing en banc, and clarification from our affirmance of a final summary judgment, appellant contends that our per curiam affirmance is in conflict with various other opinions of this court and others which hold that a court.should not enter summary judgment when the opposing party has not completed discovery. See Lubarsky v. Sweden House Props. of Boca Raton, Inc., 673 So.2d 975, 977 (Fla. 4th DCA 1996) (quoting Brandauer v. Publix Super Mkts., Inc., 657 So.2d 932, 933 (Fla. 2d DCA 1995)).

We do not dispute the foregoing cases. The facts of this case are different. The rules provide that a defendant may move for summary judgment “at any time” after a claim has been brought against it. Fla. R. Civ. P. 1.510(b). Appellee American Consulting Engineers of Florida (“ACE”) was added as a co-defendant with appellant to the lawsuit of plaintiffs Michael and Cynthia Matthews for injuries they sustained in an auto accident with appellant. Four months after answering the complaint, ACE moved for summary judgment on a statutory defense. Appellant had not conducted any discovery between the time ACE was brought into the suit and the entry of the final summary judgment. Moreover, appellant did not make any motion for continuance of the summary judgment hearing. See Brandauer, 657 So.2d at 934. ACE filed affidavits supporting its statutory defense. Appellant presented no counter-affidavits in opposition. There is no transcript of the hearing on the motion to show whether a continuance was requested, a reason for the lack of discovery, or what discovery appellant needed. The court cannot be faulted for refusing to delay the summary judgment hearing for unfounded reasons.

Appellant has presented us with no reason to reverse our prior decision. We deny the motions.

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    Laurie LUCAS, Appellant, v. METROPOLITAN KNOXVILLE AIRPORT AUTHORITY, Appellee.
    No. 4D10-4777.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.
    David A. Geller of The Geller Law Group, P.A., Hollywood, for appellant.
    Gregory P. Sreenan of Sreenan & Associates, P.A., Miami, for appellee.
   PER CURIAM.

Affirmed. See Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245 (Fla. 4th DCA 2011); Trustees of Columbia Univ. v. Ocean World, S.A., 12 So.3d 788, 795 (Fla. 4th DCA 2009).

WARNER, STEVENSON and GROSS, JJ., concur.