source: Caselaw Access Project

author: LABARGA, J.

license: Public Domain

text:
    CHOCTAWHATCHEE ELECTRIC COOPERATIVE, INC., Appellant, v. Art GRAHAM, etc., et al., Appellees.
    No. SC11-1830.
    Supreme Court of Florida.
    Jan. 9, 2014.

      Norman H. Horton Jr. and Robert J. Telfer III of Messer, Caparello & Slef, P.A., Tallahassee, FL; Marsha E. Rule and Martin P. McDonnell of Rutledge, Ecenia & Purnell, P.A., Tallahassee, FL; and William B. Willingham and Michelle Hersehell of Florida Electric Cooperatives Association, Inc., Tallahassee, FL, for Appellants.
    S. Curtis Kiser, General Counsel, Samantha M. Cibula, Attorney Supervisor, and Kathryn G.W. Cowdery, Senior Attorney of the Florida Public Service Commission, Tallahassee, FL; Steven R. Griffin, Jeffrey A. Stone, and Russell A. Badders of Beggs & Lane, LLP., Pensacola, FL, for Appellees.
   LABARGA, J.

We review a decision of the Florida Public Service Commission (the Commission) relating to the service of a public utility providing electric service. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. The Commission settled a territorial dispute between two utilities: appellant Choc-tawhatchee Electric Cooperative, Inc. (CHELCO), and appellee Gulf Power Company (Gulf Power). CHELCO and Gulf Power each sought the right to provide electric service for Freedom Walk, a proposed multi-purpose development located in Okaloosa County. The Commission awarded Gulf Power the right to serve Freedom Walk. For the reasons explained below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Freedom Walk is an approximately 179-acre proposed development within the city of Crestview in Okaloosa County. The development, owned by Emerald Coast Partners, LLC, was designated by local ordinance in 2007 as a Community Development District. The developer’s plans for Freedom Walk include both residential and commercial establishments.

In 2010, CHELCO petitioned the Commission to resolve a territorial dispute between CHELCO and Gulf Power regarding the right to provide electric service to Freedom Walk. In 2011, the Commission held a hearing on the dispute, following which the Commission issued its order resolving the dispute in favor of Gulf Power. In the order, the Commission concluded that because the multiple factors it considered were substantially equal, customer preference would determine the outcome of the dispute. The Commission concluded that customer preference favored Gulf Power and awarded Gulf Power the right to serve Freedom Walk. The Commission also determined that Gulf Power was entitled to a preference as an investor-owned utility.

On appeal, CHELCO challenges the Commission’s findings and conclusions in four areas: (1) cost to provide service; (2) ability to provide service; (3) uneconomic duplication of facilities; and (4) customer preference as the determining factor. The Florida Electric Cooperatives Association (FECA) filed an amicus brief in support of CHELCO.

ANALYSIS

Standard of Review

CHELCO’s appeal of the Commission’s order invokes this Court’s mandatory jurisdiction under article V of the Florida Constitution. Specifically, our mandatory jurisdiction includes review of actions by the Public Service Commission related to electric service. See art. V, § 3(b)(2), Fla. Const. As we fulfill our constitutional obligation, we are mindful of the scope of our review, and we afford deference to the Commission’s findings. As we have consistently observed, “[c]om-mission orders come to this Court clothed with the presumption that they are reasonable and just.” W. Fla. Elec. Coop. Ass’n v. Jacobs, 887 So.2d 1200, 1204 (Fla.2004) (citing Gulf Coast Elec. Coop. v. Johnson, 727 So.2d 259, 262 (Fla.1999)). Thus, CHELCO cannot prevail on appeal unless the Commission departed from the essential requirements of law. Id. (citing Amer-iSteel Corp. v. Clark, 691 So.2d 473, 477 (Fla.1997)). We will not disturb the Commission’s findings and conclusions if they are supported by competent substantial evidence in the record and are not clearly erroneous. Id.

Applicable Law

We now turn to the law that applies to the Commission’s resolution of disputes between electric utilities. The jurisdiction of the Commission is set forth in chapter 366, Florida Statutes (2010), which governs public utilities. Specifically, the Commission’s authority to settle territorial disputes such as the present one between CHELCO and Gulf Power is found in section 366.04(2), which provides that “the commission shall have power over electric utilities ... [t]o resolve, upon petition of a utility or on its own motion, any territorial dispute involving service areas between and among rural electric cooperatives, municipal electric utilities, and other electric utilities under its jurisdiction.” § 366.04(2)(e), Fla. Stat. (2010).

When resolving territorial disputes, the Commission must be especially mindful of its responsibility to avoid “further uneconomic duplication of generation, transmission, and distribution facilities.” § 366.04(5), Fla. Stat. (2010). Moreover, the Commission is guided by multiple factors that are set forth by statute and by administrative rule. The statutory factors, which are not exclusive, include “the ability of the utilities to expand services within their own capabilities and the nature of the area involved, including population, the degree of urbanization of the area, its proximity to other urban areas, and the present and reasonably foreseeable future requirements of the area for other utility services.” § 366.04(2)(e), Fla. Stat. (2010). Additionally, rule 25-6.0441, contained in the Florida Administrative Code, provides as follows:

25-6.0441. Territorial Disputes for Electric Utilities
(2) In resolving territorial disputes, the Commission may consider, but not be limited to consideration of:
(a) The capability of each utility to provide reliable electric service within the disputed area with its existing facilities and the extent to which additional facilities are needed;
(b) The nature of the disputed area including population and the type of utilities seeking to serve it, and degree of urbanization of the area and its proximity to other urban areas, and the present and reasonably foreseeable future requirements of the area for other utility services;
(c) The cost of each utility to provide distribution and subtransmission facilities to the disputed area presently and in the future; and
(d) Customer preference if all other factors are substantially equal.

Fla. Admin. Code R. 25-6.0441 (2010).

The Freedom Walk Dispute

Because the Commission determined that the factors it considered with respect to CHELCO and Gulf Power were substantially equal, it relied on customer preference to settle the dispute. CHELCO argues that certain factors were not substantially equal and that therefore, the Commission should not have reached the issue of customer preference. To the extent that the Commission did ultimately rely on customer preference, CHELCO also argues that the Commission erred when it determined that customer preference favors Gulf Power. As we evaluate CHELCO’s claims, we stress the deference to which the Commission’s order is entitled, and we emphasize that the Court will not substitute itself as the finder of fact. Indeed, as we observed in Chicken ‘N’ Things v. Murray, 329 So.2d 302, 305 (Fla.1976), even when this Court differs with the Commission’s view as to the effect of the evidence as a whole, an order will be upheld “so long as there is competent substantial evidence to support the orders.” We now address CHELCO’s claims, beginning with the factors that CHELCO argues are not substantially equal. We then turn to the issue of customer preference.

Cost to Extend Service to Freedom Walk

CHELCO challenges the Commission’s findings and conclusions related to the two utilities’ costs to extend service to Freedom Walk. Rule 25-6.0441(2)(c) of the Florida Administrative Code provides that the Commission may consider “[t]he costs of each utility to provide distribution and subtransmission facilities to [Freedom Walk] presently and in the future.” As a part of this analysis, the Commission evaluated both CHELCO’s and Gulf Power’s costs to extend service to the Freedom Walk development.

The Commission concluded that CHEL-CO would not incur any cost to extend service to Freedom Walk apart from existing facilities and planned upgrades, and CHELCO does not challenge that conclusion. However, CHELCO does challenge the Commission’s findings and conclusions as to Gulf Power’s actual cost to extend service to Freedom Walk. Moreover, CHELCO argues that the difference in the two utilities’ costs demonstrates that those costs are not substantially equal.

The parties agree that in order to provide service to Freedom Walk, Gulf Power would have to extend its existing three-phase utility line that runs along Old Be-thel Road by 2,180 feet in order to reach the Freedom Walk area. The existing utility line would be extended at a cost of $89,788. Gulf Power offered testimony that this line extension project is the only investment or upgrade necessary to extend electric service to Freedom Walk that is independent of existing facilities and planned upgrades. Ultimately, the Commission determined that $89,738 is the total cost that Gulf Power would incur in order to extend service to Freedom Walk.

However, CHELCO contends that the Commission erred when it excluded a $40,000 transformer upgrade cost from Gulf Power’s total cost to extend service to Freedom Walk. The record indicates that Gulf Power planned a large substation conversion project that would occur over the course of several years. One aspect of the project would upgrade Gulf Power’s Airport Road substation. Although the Airport Road substation upgrade would eventually serve Freedom Walk, the completion of the conversion was not dependent on Gulf Power being awarded the right to serve the development. Gulf Power estimated that the Airport Road substation upgrade would happen between the years of 2011 and 2015. However, in the event that the project became delayed, Gulf Power acknowledged the possibility that it would need to upgrade three single-phase transformers at the Airport Road substation at a cost of $40,000 in order to meet Freedom Walk’s electricity demand.

The Commission concluded that the $40,000 cost should not be attributed to Gulf Power’s cost to extend service to Freedom Walk because Gulf Power would only incur that cost if the large conversion project did not proceed as planned. The Commission stated: “We believe that the transformer replacement project is not a project that Gulf intends to complete, but was identified for the purposes of this docket in order to obtain a clear picture of Gulf [Power]’s existing facilities and how their currently planned projects would impact their ability to serve the Freedom Walk development.” In re Petition to Resolve Territorial Dispute with Gulf Power Company in Okaloosa County by Choda- whatchee Electric Cooperative, Inc., Docket No. 100304, Order No. PSC-11-0340-FOF-EU, 2011 Fla. Puc. Lexis 239, 2011 WL 3646464, at 38 (F.P.S.C. Aug. 15, 2011) (“Order”). The Commission reached its findings and conclusions as to Gulf Power’s actual cost after considering extensive testimony from both parties, and we will not disturb the Commission’s determination that $89,738 is Gulf Power’s cost to extend service to Freedom Walk.

CHELCO also maintains that even if Gulf Power’s cost is only $89,738, because CHELCO would not incur any additional cost to extend service to Freedom Walk, the Commission erred when it concluded that the two utilities’ costs were substantially equal. CHELCO contends that two of our prior cases support its argument: Gulf Coast Elec. Coop. Inc. v. Clark, 674 So.2d 120 (Fla.1996), and Gulf Power Co. v. Pub. Serv. Comm’n, 480 So.2d 97 (Fla.1985).

In Gulf Power, the earlier of the two cases, Gulf Coast Electric Cooperative (Gulf Coast) filed a petition seeking to resolve a territorial dispute between it and Gulf Power, as both utilities “sought to provide electrical service to [a subdivision].” 480 So.2d at 98. After the petition was filed but before the Commission ruled on the dispute, Gulf Power extended its utility lines a distance of 2.2 miles in order to reach the subdivision and built a substation that would allow it to satisfy the subdivision’s anticipated power needs. Id. The cost to Gulf Power was approximately $200,480. Id.

The Commission found that the cost to Gulf Coast to extend service to the subdivision amounted to approximately $27,000, and that the reason for the difference in the two utility providers’ costs (approximately $173,480) was the closer proximity of Gulf Coast’s existing facilities to the subdivision. Id. The Commission concluded that Gulf Power’s “relatively extravagant expenditures in providing service” were “reckless and irresponsible” and resulted in “an uneconomic duplication of electrical facilities.” Id. Consequently, the Commission awarded Gulf Coast the right to provide electric service to the subdivision. Id. On appeal, we rejected Gulf Power’s invitation to reweigh the evidence and substitute our judgment for that of the Commission. Id. (stating that “... Gulf Power’s attacks on the [Commission’s] analysis represent a thinly veiled attempt to have this Court reweigh and reevaluate the evidence presented to the [Commission], This we cannot do.”).

We subsequently compared the difference in costs in Gulf Power with the $14,583 difference in another electric service territorial dispute and concluded that the smaller amount was “de minimis in comparison.” Clark, 674 So.2d at 123. In Clark, the Gulf Coast cooperative spent $14,583 to upgrade a single-phase line to a three-phase line to enable it to provide service to a new prison. Id. at 122. The Commission found that the upgrade was uneconomic and relied in part on this factor in awarding competitor Gulf Power the right to serve the prison. Id. at 122-23. This Court concluded that competent substantial evidence did not support, among other findings, that the $14,583 difference in costs was considerable. Id. This Court said:

Compare, for instance, the costs incurred for the upgrade in this case with the costs incurred in Gulf Power Co. v. Public Service Commission, 480 So.2d 97 (Fla.1985) (difference between Gulf Coast’s $27,000 cost to provide service and Gulf Power’s $200,480 cost to provide service found to be considerable). The cost differential in this case is de minimis in comparison to the cost differential in that case.

Id. at 123.

We decline to simply apply the costs discussed in Gulf Power and Clark as firm indicators for what differences in costs are de minimis and what differences are excessive. Despite CHELCO’s reliance on these cases, we are mindful of the highly fact-specific nature of the territorial disputes that come before the Commission. As a result, Gulf Power and Clark do not provide a one-size-fits-all formula for evaluating costs, nor do they mandate the conclusion that Gulf Power’s and CHEL-CO’s costs to extend service to Freedom Walk are not substantially equal. Consequently, we affirm the Commission’s findings and conclusions.

Capability to Provide Adequate and Reliable Service

CHELCO also argues that Gulf Power is not capable of providing Freedom Walk with adequate and reliable service because it must build additional facilities and incur the costs of doing so. Under rule 25-6.0441(2)(a), the Commission may consider “[t]he capability of each utility to provide reliable electric service within the disputed area with its existing facilities and the extent to which additional facilities are needed.” Fla. Admin. Code R. 25-6.0441(2)(a) (2010).

The Commission evaluated the overall ability of each utility to provide Freedom Walk with adequate and reliable service and concluded that each one was similarly capable of doing so. The Commission considered the nature of each utility’s existing facilities and the extent to which each would need additional facilities. We note that the language of rule 25-6.0441(2)(a) provides for the Commission’s consideration of “the extent to which additional facilities are needed” and find this language instructive because it highlights the Commission’s duty to weigh the evidence in light of the facts of each dispute. Id.

Moreover, the Commission properly considered each utility’s history of providing adequate and reliable service. The record reveals that both utilities have provided service in the local area for decades and have responded to utility outages in a reasonable manner. Moreover, both utilities have adequate resources in the vicinity. Competent substantial evidence supports the Commission’s determination that both utilities are capable of providing adequate and reliable service to Freedom Walk, and we will not disturb the Commission’s findings and conclusions.

Uneconomic Duplication

CHELCO also challenges the Commission’s conclusion that awarding Gulf Power the right to serve Freedom Walk would not result in uneconomic duplication of facilities. The Florida Legislature has emphasized the Commission’s duty to avoid uneconomic duplication in section 866.04(5), which provides as follows:

The commission shall further have jurisdiction over the planning, development, and maintenance of a coordinated electric power grid throughout Florida to assure an adequate and reliable source of energy for operational and emergency purposes in Florida and the avoidance of further uneconomic duplication of generation, transmission, and distribution facilities.

§ 366.04(5), Fla. Stat. (2010). We have observed that certain factors are relevant to a determination of whether uneconomic duplication is likely to occur. These factors, which are not exclusive, include the utilities’ costs to provide service, “lost revenues for the non-serving utility, aesthetic and safety problems, proximity of lines, adequacy of existing lines, whether there has been a ‘race to serve,’ and other concerns ...” Clark, 674 So.2d at 123. A utility’s historical presence in an area may also be relevant to the Commission’s analysis. W. Fla. Elec. Coop. Ass’n, Inc. v. Jacobs, 887 So.2d 1200, 1205 (Fla.2004).

Not all duplication of facilities is “uneconomic.” Id. Where some duplication of facilities may occur, the duplication may nonetheless avoid being deemed uneconomic if the difference in costs between the utilities is de minimis. Id. However, there is no bright-line rule for evaluating whether a difference in costs is de minimis, and the Commission evaluates the cost differential within the context of other case-specific factors.

The Commission considered whether an award to either CHELCO or Gulf Power would result in uneconomic duplication. In doing so, the Commission considered each utility’s existing facilities and planned upgrades. Notably, the Commission considered that if awarded the right to serve Freedom Walk, Gulf Power would have to extend its existing utility line and spend $89,738 to do so, and determined that this project is solely triggered by the prospect of Gulf Power providing electric service to Freedom Walk.

CHELCO raises three issues relating to uneconomic duplication: (1) Gulf Power will duplicate existing CHELCO facilities; (2) the Commission failed to consider all elements necessary to determine whether duplication of facilities is uneconomic; and (3) CHELCO’s historical presence is relevant to determining uneconomic duplication. We examine each argument in turn.

Duplication of CHELCO Facilities

CHELCO argues that Gulf Power’s extension of its three-phase utility line along Old Bethel Road will result in an uneconomic duplication of existing CHELCO facilities. The Commission concluded that some duplication of facilities would result if either utility was awarded the right to serve Freedom Walk:

The record is clear that both CHEL-CO and Gulf have had lines close to the Freedom Walk development for more than 40 years. CHELCO’s three-phase line is on Old Bethel Road at the northern boundary of the development. In addition, CHELCO has a single-phase service line, with a 1967 easement, that previously served a residence within the Freedom Walk property, but unrelated to the development. Gulfs three-phase line is 2,130 [feet] from the Freedom Walk development; however, Gulf has had a single-phase line within 30 feet of the eastern boundary of the development since 1955. Further, CHELCO’s single-phase line running along Old Be-thel Road appears to run parallel with Gulfs three-phase line which serves the schools. Based on these facts, it appears that Gulfs existing lines are in the immediate vicinity of CHELCO’s existing lines. Further, because of the close proximity of the lines, the provision of service to the development by either CHELCO or Gulf could result in a further duplication of facilities.

Order, 2011 WL 3646464, at *47.

The Commission received competent substantial evidence in the form of witness testimony and detailed exhibits that depicted the location of each utility’s existing lines relative to the location of Freedom Walk. CHELCO argues that the Commission’s analysis of uneconomic duplication should not have included CHELCO’s single-phase utility line that runs parallel to Gulf Power’s three-phase line. CHELCO argues that the location of these utility lines is too removed from Freedom Walk to be relevant to the determination of uneconomic duplication. This argument improperly asks this Court to substitute its judgment with that of the Commission on a matter that is clearly within the Commission’s expertise. This we will not do. The Commission determined that the locations of specific utility lines are relevant to its analysis of uneconomic duplication; its judgment is entitled to deference by this Court.

CHELCO also contends that uneconomic duplication results from the $89,738 difference in the two utilities’ costs to extend service to Freedom Walk. CHELCO challenges the Commission’s conclusion that the $89,738 difference in the two utilities’ costs is not significant and argues that the difference in costs is especially egregious because, as the Commission found, CHEL-CO would not incur any additional costs in order to extend service to Freedom Walk.

The Commission considered four tests that were testified to at length by Theodore Spangenberg, Jr., a Gulf Power witness: (1) “the magnitude of the cost to extend facilities to the development in contrast to the total investment to serve Freedom Walk”; (2) “the [cost of the] investment to extend service to Freedom Walk as a percentage of the estimated annual non-fuel revenue Gulf [Power] expects to gain from serving the development”; (3) “the ratio of total investment, including the investment required for facilities within the disputed area, to Gulf [Power]’s estimated annual non-fuel revenue from Freedom Walk”; and (4) “whether the facilities that might initially be perceived as dupli-cative would have a reasonable prospect for future use in addition to just serving the area in dispute.” The Commission concluded that each of the tests demonstrated that uneconomic duplication would not occur if Gulf Power was awarded the right to serve Freedom Walk.

CHELCO contests the Commission’s reliance on the four tests. However, the Commission’s conclusion did not solely rely on the tests. The Commission also considered whether service by either CHELCO or Gulf Power could result in duplication of facilities, whether each utility would be able to serve Freedom Walk with existing facilities, whether the existing facilities will be used “regardless of which party is approved to provide service to Freedom Walk,” and whether either party would have a stranded investment if not awarded the right to serve Freedom Walk. Additionally, although the Commission did not find the factor weighty as to either party, it did take into consideration each utility’s historical presence. We will not disturb the Commission’s findings and conclusions.

Evaluation of Necessary Factors

CHELCO also argues that the Commission failed to consider all of the necessary factors in determining whether uneconomic duplication would result from awarding Gulf Power the right to serve Freedom Walk. We reject CHELCO’s assertion that the Commission’s order was inadequate. Our review of the order revealed that in considering uneconomic duplication, the Commission evaluated the pertinent factors. The Commission addressed the proximity of each utility’s lines to the other’s and concluded that some duplication, but not uneconomic duplication, would occur if either utility was awarded the right to serve Freedom Walk. The Commission also addressed the difference in each utility’s costs to extend service to Freedom Walk, lost revenues for the non-serving utility, the adequacy of each utility’s existing lines, whether each utility’s existing facilities would continue to be used regardless of which utility was awarded the right to serve Freedom Walk, whether either utility’s upgrades and plans were triggered by the Freedom Walk project, and whether any of the utilities’ existing investments would become stranded if not awarded the right to serve Freedom Walk. CHELCO’s argument is without merit.

Historical Presence

CHELCO also contends that the Commission did not give the proper weight to CHELCO’s historical presence. This Court has observed that “[t]he historical presence of one utility in an area thus may be relevant in determining whether uneconomic duplication would result from an award of service to another.” Jacobs, 887 So.2d at 1205.

CHELCO’s argument is without merit. The Commission did not overlook historical presence; it considered the historical presence of both utilities. Competent substantial evidence in the record demonstrates that both Gulf Power and CHEL-CO have utility lines in proximity to Freedom Walk. Moreover, each utility has a decades-long historical presence in the area. Although CHELCO argues that this case is similar to Jacobs, we disagree. Unlike Jacobs, the record in this case does not indicate a disparate historical presence that favors CHELCO.

In sum, we will not disturb the Commission’s findings and conclusions related to uneconomic duplication because they are supported by competent substantial evidence and are not clearly erroneous.

Customer Preference

CHELCO also challenges the Commission’s findings and conclusions with respect to customer preference. Rule 25-6.0441(2)(d) provides that “if all other factors are substantially equal,” customer preference may be considered in resolving territorial disputes. Fla. Admin. Code R. 25-6.0441(2)(d) (2010). CHELCO argues two points. First, CHELCO contends that customer preference should not have been taken into account because the other factors considered by the Commission were not substantially equal. Given our resolution of the issues already raised by CHELCO, we reject this argument at the outset. Second, without conceding that customer preference was properly considered, CHELCO argues that the developer’s preference should not have been deemed customer preference for the purpose of rule 25-6.0441(2)(d). This argument is also without merit.

The record reveals that in September 2008 and February 2011, developer Emerald Coast Partners, LLC, sent letters to Gulf Power indicating its preference that Gulf Power serve as the electric utility provider for Freedom Walk. Both letters were sent to Gulf Power by the developer’s managing partner, Bruce Houle. The 2011 letter also indicated that Gulf Power remained the developer’s preferred utility despite the ongoing dispute with CHELCO. Competent substantial evidence supports the Commission’s findings and conclusions as to customer preference.

CHELCO also argues that developer Emerald Coast Partners, LLC, should not be a proxy for the customer because the interests of the developer and the end-user customer might be inconsistent with one another. CHELCO points to the Commission’s reluctance in prior disputes to substitute the developer’s preference for end-user customer preference. In this case, the developer was the only reasonable proxy for future Freedom Walk residents. Based on the letters sent to Gulf Power, which were the only evidence in the record of customer preference, the developer expressed a preference that Gulf Power provide electric service to Freedom Walk.

CHELCO urges this Court to reweigh and reconsider the evidence and to read additional requirements into the consideration of customer preference. For example, CHELCO notes that other customer preference decisions discussed in the Commission’s order involved cases where the Commission considered developer preference as well as at least some end-user customer preference. Where the facts demonstrate that a developer is the only reasonable proxy for the customer, we reject the invitation to limit the consideration of developer preference to situations where there is also end-user customer input. CHELCO also invites this Court to examine the motives behind the developer’s preference for Gulf Power. Again, we will not usurp the Commission’s proper

role as the finder of fact. The Commission did not depart from the essential requirements of law when it considered the developer’s preference for Gulf Power. Competent substantial evidence in the record reflects that preference.

CONCLUSION

In sum, the Commission’s findings and conclusions are supported by competent substantial evidence and are not clearly erroneous. For these reasons, we affirm the Commission’s order granting Gulf Power the right to serve the Freedom Walk development.

It is so ordered.

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

QUINCE, J., dissents.

      . The Commission issued its order entitled "Order Resolving a Territorial Dispute and Awarding Territory in Okaloosa County to Gulf Power Company.” The Commission divided the order into the following sections: (I) Background; (II) Approved Stipulations; (III) Boundaries of the Area That is the Subject of This Territorial Dispute; (IV) Commission’s Jurisdiction to Enforce or Apply Provisions of Chapter 425, F.S.; (V) Is Freedom Walk Development a "Rural Area” as Defined in Section 425.03(1), F.S.; (VI) If the Freedom Walk Development Is Not Found to be "Rural” in Nature, Is CHELCO Prohibited From Serving the Freedom Walk Development; (VII) Nature of the Freedom Walk Development; (VIII) Existing and Planned Load to Be Served in the Freedom Walk Development; (IX) Necessary Facilities and Associated Costs for CHELCO to Extend Adequate and Reliable Service to the Freedom Walk Development; (X) Necessary Facilities and Associated Costs for Gulf to Extend Adequate and Reliable Service to the Freedom Walk Development; (XI) Necessary Facilities and Associated Costs for CHELCO and Gulf to Provide Adequate and Reliable Service Within the Freedom Walk Development; (XII) Uneconomic Duplication of Existing Facilities; (XIII) Capability of Each Utility to Provide Adequate and Reliable Electric Service to the Freedom Walk Development; (XIV) Customer Preference; and (XV) Awarding of the Right to Serve the Freedom Walk Development.

      . Moreover, even if the costs in Gulf Power and Clark provided absolute parameters for determining whether a difference in costs is significant, the $89,738 difference at issue in this case is almost in the middle. However, by a margin of $5,107, the cost in this case is actually closer to the "de minimis” $14,583 cost differential in Clark.

      . Although CHELCO argues that the developer is not an appropriate proxy for the customer, CHELCO chief executive officer Leigh Grantham conceded at the hearing that a developer acts as an agent on behalf of the end-user customer.


author: MAKAR, J. WETHERELL, J.,

text:
    James MADISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2210.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Michael Ufferman, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Virginia Chester Harris, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appel-lee.
   MAKAR, J.

The United States Supreme Court recently reminded us that the Sixth Amendment right to counsel “commands, not that a trial be fair, but that a particular guarantee of fairness be provided-to wit, that the accused be defended by the counsel he believes to be best.” U.S. v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); see also Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.”). Justice Scalia, for the Court in Gonzalez-Lopez, stated that “an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.” 548 U.S. at 144, 126 S.Ct. 2557. At issue in this case is whether the denial of a second continuance of trial, sought for the purpose of replacing existing private counsel with new counsel, violated the defendant’s constitutional right to the attorney of his own choosing. We hold that it did under the circumstances presented and reverse.

I.

On December 31, 2009, James Madison, an eighteen year-old with no prior criminal record, was charged with armed robbery with a firearm and attempted armed robbery with a firearm arising out of two incidents on the evening of December 6, 2009. Shortly after his arrest, Madison was appointed a public defender; a month later, in January of 2010, his family hired private counsel who was substituted for the public defender. The record shows that neither the public defender nor the initial private counsel did any significant work on Madison’s case during the brief times they were counsels of record; two continuances of pre-trial conferences occurred during this time period.

A few months later, in May 2010, Madison’s family retained new private counsel. Other than a waiver of Madison’s right to speedy trial and a continuance of trial, the record reflects little activity on Madison’s case from the time she became counsel of record until slightly less than a month prior to the trial date, when Madison sent a letter dated February 2, 2011, to the trial judge. His handwritten letter expressed his dissatisfaction with current counsel:

Dear your honorable [judge] ... my name is James C. Madison I am a defendant in your courtroom. I am writing you to ask for a continuation of my trial due to my dissatisfication with my current lawyer. Your honour I am very unhappy with my lawyers preformances on my current case(s). If I continue to allow her to represent me, in my honest opionion, I will spend half my life in prison due to her poor performances. Some of the issues I have with her is that it is very difficult contacting her and she has failed to file motions I have requested. She always speaks negitive about my situation, she shows up late to my court dates, does not have confidence in herself as my lawyer, barely comes to viste me to inform me of what is coming up and she has also misinformed me of what I am going to trial for. Your honour I am seeking another lawyer immediatley and I apoligize for the last minute change. I understand my trial is less than a month away but I am only trying to secure a fighting chance.

Respectfully sumimited

/s/ James C. Madison

In addition to Madison’s letter, the trial court received a lengthy letter from Mr. Madison, his father, discussing the history of the case, his concerns about Madison’s counsel, as well as other matters (most of which would be improper ex parte communications).

Over two weeks later, on February 17, 2011, the trial court held a hearing on Madison’s motion — eight days before trial. The attorney Madison was seeking to discharge appeared and was first to speak. She defended her actions in the case, noting that on the previous day she had for the first time taken depositions of one of the two victims and the law enforcement officers. She had yet to take the deposition of the other victim (who spoke only Spanish), the only witness who could connect Madison with the crime; she had also not yet found an interpreter for this deposition. She told the trial court that she intended to file a written motion to suppress an alleged confession by Madison but had not yet done so, indicating that replacement counsel would be in a position to do so.

After allowing Madison’s current counsel to speak, the trial court expressed concern that the case had “been set for trial for a while now” and initially asked Madison why he wanted a continuance. The judge interrupted him, however, and then focused almost exclusively on Madison’s ability to pay for replacement counsel and his identity. The trial court then passed over the motion to hear unrelated matters, saying “this case is fairly old and we can’t keep continuing it[.]”

After taking up the matter again, the trial court asked Madison’s father essentially one question: whether replacement counsel had been retained. Mr. Madison explained that replacement counsel had agreed to take Madison’s case if the continuance was granted; replacement counsel did not file the motion for continuance or make an appearance because “he did not want to step on another lawyer’s toes so to speak.”

The prosecutor spoke next. Though recognizing the underlying incident occurred in December 2009, she erroneously told the trial court the case was “nearly three years old” when it was a little over a year old. She said the “State is ready to go” but did not elaborate on any prejudice that would result from a continuance. She asserted the case was “very straightforward” and that the “victims have a right to speedy resolution just as much as the defense.” She said the State had been “more than accommodating with continuances” (apparently referring to the continuances of pre-trial conferences and the one continuance of trial).

After the prosecutor finished speaking, and as the trial court was preparing to rule, Madison’s counsel asked to “put one thing on the record.” The trial judge allowed her to speak, saying “we need to move this case_Okay. But go ahead.” At that point, counsel disclosed that she had recently learned that she had represented children of one of the victims in a prior case, but felt it would not be a conflict of interest. The trial court made no inquiry about the conflict issue.

The trial court then denied the continuance (“We’re going to leave it set for trial”). She again said “we need to move on this ease” at which point Madison interjected, “Your Honor ... can I say something?” The trial court allowed Madison to speak:

I’m just — I’m—I’m only going to ask for a continuance. I’m just trying to make sure that I have like a fair trial, you know, because it’s not — my case is not straight up. It’s got a lot of flaws. And I’m trying to get my — I’m trying to get my lawyer to see that. That’s why—

It interrupted, however, to admonish Madison that “You’ve had four — you’ve had four lawyers in this case, Mr. Madison. This would be your fourth lawyer.... And this case is set for trial. It’s 400 days old. [Current counsel] is a very competent lawyer who’s been representing you throughout this process.” The trial court then confirmed that it would be a “one day” trial and concluded the hearing; it made no explicit factual findings in writing or otherwise.

Absent the continuance, Madison proceeded to trial with the lawyer he did not want. She presented no case-in-chief and never filed a written motion to suppress; instead, she raised an ore terms motion during trial that was denied. Madison was convicted and sentenced to a mandatory minimum twenty-year prison term.

II.

Madison raises four issues. We discuss only the first: whether the trial court deprived him of his Sixth Amendment right to counsel of his choice in denying a second continuance to replace existing counsel.

Our review of the trial court’s denial of Madison’s motion for continuance is under the deferential abuse of discretion standard. Brown v. State, 942 So.2d 12, 14 (Fla. 1st DCA 2006); see also Ungar v. Sarafite, 376 U.S. 575, 589-90, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). Review is contextual, very much dependent on the “circumstances” presented in each case. Gordon v. State, 48 So.3d 1021, 1022 (Fla. 1st DCA 2010) (reversing denial of continuance for trial to substitute counsel in criminal case). In cases where a constitutional right — such as the assistance of counsel under the Sixth Amendment — is at issue, the Florida Supreme Court has indicated that a bifurcated standard of review applies whereby factual findings are accorded great deference while legal conclusions are not. Stephens v. State, 748 So.2d 1028, 1031-32 (Fla.1999). As to the former, the Court noted the importance of deference to a trial court’s factual findings, which in Stephens comprised a number of pages of “detailed” findings of fact. Id. at 1031-32, 1034-35. The Court cautioned, however, that this ordinarily deferential standard of review does not abdicate an “appellate court’s obligation to independently review mixed questions of fact and law of constitutional magnitude” to “ensure that the law is applied uniformly in decisions based on similar facts and that the defendant’s representation is within constitutionally acceptable parameters.” Id. at 1034. This obligation, which the court characterized as “an extremely important appellate principle,” is “especially critical because the Sixth Amendment right to assistance of counsel is predicated on the assumption that counsel “plays the role necessary to ensure that the trial is fair.” Id. (quoting Strickland, 466 U.S. at 685, 104 S.Ct. 2052).

Our scope of review is addressed in this Court’s decision in McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986), where we recognized that the trial court’s discretion to manage its caseload creates tension with the Sixth Amendment right to counsel, which “is not absolute but at some point must bend before countervailing interests involving the effective administration of the courts.” The analysis in McKay was in the context of a request for continuance on the “eve of trial” to secure alternative private counsel of the defendant’s choice. Id. Here, we are not dealing with a continuance on the “eve of trial” as that phrase has been used in other cases, such as the day of trial, see Ungar, 376 U.S. at 590, 84 S.Ct. 841; Bowman v. United States, 409 F.2d 225, 226 (5th Cir.1969), or a few days before trial, see Hurtado v. State, 760 So.2d 279, 280 (Fla. 4th DCA 2000). Cf. Brown, 942 So.2d at 13-14 (defendant filed a series of four motions for continuance beginning two weeks prior to date of trial). Instead, we are presented with a motion made three weeks before trial.

Even so, McKay applies, timeliness being among the seven factors that we, and by implication a trial court, must consider in balancing the interests at stake:

(1) time available for preparation,
(2) likelihood of prejudice from the denial,
(3) defendant’s role in shortening preparation time,
(4) complexity of the case,
(5) availability of discovery,
(6) adequacy of counsel actually provided, and
(7) skill and experience of chosen counsel and his pre-retention experience with either the defendant or the alleged crime.

McKay, 504 So.2d at 1282; Brown, 942 So.2d at 14 (appellate court “must” consider these factors in reviewing denial of a continuance). Our sibling courts have adopted or applied the McKay factors as well as other factors such as whether (1) the defendant’s request was made in bad faith or for the purpose of delay, (2) the State’s case would be prejudiced by a continuance, or (3) the trial court’s schedule would not permit a continuance. See, e.g., Jackson v. State, 979 So.2d 442, 445 (Fla. 4th DCA 2008). We view these latter factors as subsumed within the McKay factors.

At the outset, we note that the trial court did not consider each of the McKay factors; but it should have, even if pressed for time. Brown v. State, 66 So.3d 1046, 1048-49 (Fla. 4th DCA 2011) (“While the trial court appeared frustrated by the defendant’s last minute request, it was incumbent on the court to review the criteria before denying the motion simply to move the case to trial.”). We do not suggest that counsel and the trial court must engage in an elaborate discussion of caselaw; instead, a trial court’s exercise of discretion need only be based on consideration of the McKay factors. Brown, 942 So.2d at 14 (“Neither party specifically argued McKay nor any other cases during the motion hearings; however, the factors listed in McKay were essentially argued before the court.”). Absent application of or findings related to these factors, a trial court’s order is more likely to be subject to reversal. See Jackson, 979 So.2d at 445 (reversing denial of continuance where trial court made no findings regarding whether request was in bad faith or for delay, whether State would suffer prejudice from delay, or whether trial court’s schedule would not allow for a continuance).

In this regard, the trial court understood it was not conducting a Nelson hearing, but its focus nonetheless was essentially limited to the factors relevant in such an inquiry: the quality of counsel’s representation and trial preparation issues. Jackson, 979 So.2d at 445 (“Here, the trial court’s findings and the discussion preceding them on the discharge of counsel issue were done in a Nelson context and therefore focused solely on the quality of counsel’s representation and preparedness for trial.”). This focus was too narrow; the broader inquiry and balancing of factors outlined in McKay was required. As the Fourth District in Jackson noted: “In cases such as the present, where Nelson is not applicable, the appropriate focus is on balancing the defendant’s right to discharge his attorney and obtain another against the court’s interest in judicial administration and avoiding unreasonable delay.” Id. at 444.

We stop short of reversing simply because the trial court did not consider the McKay factors. Reversal on this basis may be warranted because a trial judge who fails to do so cannot be said to have properly exercised discretion; stated differently, it would be unreasonable for a judge to pass judgment on a motion for continuance without having considered the required factors. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980) (“Where a trial judge fails to apply the correct legal rule ... the action is erroneous as a matter of law. This is not an abuse of discretion. The appellate court in reviewing such a situation is correcting an erroneous application of a known rule of law.”). We choose to review the extent to which the McKay factors are reflected in the record, however, leaving for another day whether a more rigid approach is warranted. See Brown, 942 So.2d at 14.

The first factor (the “time available for preparation”) is related to the third (the “defendant’s role in shortening preparation time”), both collectively focusing on the age of the case and the extent to which a defendant has caused unnecessary delay. As to these factors, the central precept of the trial court was that because Madison’s case was “fairly old” it should not be continued. While this view may be an acceptable starting point where, for example, a case has languished due to a defendant’s dilatory tactics, there is no indication that was Madison’s motivation. The unrebut-ted evidence shows that Madison — and his father — were both genuinely concerned that Madison would not receive a fair trial given their perceived shortcomings of existing counsel. No evidence suggests anything other than good faith motives on their part; the State makes no argument to the contrary. Of course, an accused may not manipulate the system and obstruct the progress towards trial by repeatedly seeking continuances to replace counsel; but that is not the case here. Cf. Lawson v. State, 884 So.2d 540, 546 (Fla. 4th DCA 2004) (defendant’s request for continuance to represent himself and discharge effective counsel denied where “case had been pending for nearly four years at the time of trial” and defendant “manipulate^ the judicial system”).

While it is technically true that Madison was seeking a continuance to add what would be his fourth lead attorney in the ease, the record shows that the first two served only very briefly; the third served for a number of months but accomplished little until shortly before the scheduled trial date and only after Madison had filed his motion to replace her. As to delay, the State and Madison’s counsels jointly had agreed to continuances of pre-trial conferences, as well as the continuance of the December 21, 2010 trial date to February 21, 2011. These agreed-upon postponements of the trial process, even if chargeable primarily to Madison, do not weigh heavily against him under the circumstances. Instead, the genuineness of his good faith concerns about his counsel, and the lack of any evidence that he sought the second continuance of trial solely for delay, tip solidly in his favor.

Turning to the second factor, the “likelihood of prejudice from the denial” of a continuance, the record shows no prejudice to the State from a continuance. The State said it was “ready to go” but did not describe any prejudice that a continuance would cause. The State was far from the mark in describing the case as over three years old; were it that old, we would have greater concern for the timely administration of justice. The prosecutor commendably noted that victims have an interest in the timely resolution of criminal cases; indeed, our state constitution states that “[victims of crime ... are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.” Art. I, § 16(b), Fla. Const. But again, no specific prejudice was suggested.

Tellingly, nothing in the record shows that the trial court’s schedule was so crowded or inflexible that it could not accommodate a short continuance for a one day trial. Instead, Madison’s case— though one of the oldest on the trial court’s docket — was one of many set for trial on the court’s docket for the week of February 21, 2011. In this regard, the United States Supreme Court in Gonzalez-Lopez recognized that a criminal defendant’s Sixth Amendment right is subject to the trial court’s “wide latitude in balancing the right to counsel of choice against the needs of fairness ... and against the demands of its calendar.” 548 U.S. at 152, 126 S.Ct. 2557. While it is proper, indeed important, for trial courts to consider case management when ruling on motions for continuances, neither the needs of fairness nor the demands of the trial court’s calendar weighed against granting a limited continuance of a one day trial given this record. On appeal, the State suggests the trial court implicitly determined that it would be inconvenient to reset a trial date; the court made no explicit or implicit finding of inconvenience, however. Moreover, no support exists in the record that the trial court was unable to accommodate a new trial date or that the State would have been prejudiced by a continuance. The State also suggests on appeal that evidence and witness memory inherently degrade over time, but these factors are present in every case; and no mention was made at the hearing about any witness or evidence that formed a specific concern of the State.

As to prejudice to Madison, the record establishes that he demonstrated a genuine concern — from his perspective — regarding his current counsel’s performance. His handwritten letter said it was difficult to contact her, that she failed to file motions as promised, that she shows up late to court, and that she misinformed him about trial matters; his father’s letter expressed similar sentiments. The prosecutor presented nothing to counter these concerns, and the trial court made no inquiry into, or findings regarding, these matters. This can be an awkward inquiry for a trial judge to make, particularly with the lawyer-sought-to-be-replaced present, but it must be done. It is no more awkward than the discomfort that Madison as a pro se movant must have felt in displaying his dissatisfaction, in writing and then in person with his current lawyer present; it is certainly less awkward than the discomfort that Madison must have felt at his trial, represented by an attorney in whom he had lost confidence.

Given Madison’s concerns, the obvious prejudice to him was having the defense of his liberty in the hands of a lawyer he felt was inadequate. Brown, 66 So.3d at 1049 (“The likelihood of prejudice is great. Without a doubt the defendant did not think his counsel was adequate.”). Indeed, some of Madison’s fears appear to have been realized: his counsel did not file a written suppression motion prior to trial and put on no case-in-chief at trial. We need not ruminate on whether these inac-tions were strategic or harmless because we find the potential for prejudice existed under the circumstances.

As for the fourth and fifth factors, complexity of the case and the availability of discovery, this case — though not as complex as others — hinged upon a victim/witness who had not yet been deposed and a confession that had yet to be challenged. The prosecutor claimed, without elaboration, that the case was “very straightforward”; critical discovery was lacking with days left before trial. On balance, the case lacks the complexity of others where continuances were granted, see, e.g., Trocola, 867 So.2d at 1231 (involving “multiple counties and multiple law enforcement agencies”), and the availability of discovery appears to be a modest concern. These factors overall neither support nor detract from Madison’s request.

Finally, only brief mention was made at the hearing as to the sixth and seventh factors — adequacy of Madison’s current counsel and the skill and experience of his replacement counsel. After denying the continuance, the trial court told Madison that his attorney was a “very competent lawyer”; it made little inquiry other than the name, payment for, and availability of Madison’s proposed replacement counsel.

Based on our review of the record, we hold that the trial court erred in denying a continuance of trial under the circumstances. The fact that a prior continuance of trial was granted, just a few months earlier, does not change our view. It is an abuse of discretion to not perform the analysis under McKay even if prior continuances had been granted. Brown, 66 So.3d at 1049 (“Even though prior continuances had been granted, this unique set of circumstances warranted at the very least a full consideration of the facts to determine if a continuance was needed to ensure the defendant’s right to counsel and a fair trial.”). Had the trial court done so, the weight of the McKay factors falls decidedly in Madison’s favor on the record presented.

We do not break new ground in this case, emphasizing again that the State made no showing of any bad faith intent on Madison’s part to delay the proceedings for an improper purpose; no prejudice to the State’s interest was shown; and, the court made no finding that its schedule could not accommodate the requested continuance. These shortfalls alone are enough to justify reversal. See Jackson, 979 So.2d at 445 (“The trial court made no finding that appellant’s request was made in bad faith or for purposes of delay, that the State’s case would suffer prejudice, or that the court’s schedule would not permit a continuance. The record does not support a conclusion that any of these scenarios existed.”). Moreover, the absence of these types of findings distinguishes cases like Miller v. State, 764 So.2d 640 (Fla. 1st DCA 2000), in which this Court affirmed denials of requests for continuances to replace counsel. In Miller, five weeks before trial the defendant moved for a thirty-day continuance to obtain substitute counsel. Id. at 642. The trial court held two hearings where the issue was “thoroughly discussed” and the defendant “was permitted to explain in full his several reasons for seeking to discharge” counsel. Id. The trial court in Miller specifically found the defendant engaged in dilatory tactics and could have hired replacement counsel sooner; the State had argued prejudice due to issues of witness availability. Id. at 643. The facts of Miller are readily distinguishable from those in this case. Unlike in Miller, Madison’s motion was not thoroughly reviewed and Madison was not “permitted to explain in full” his reasons for replacing his existing counsel; nor was a showing made that Madison engaged in “dilatory tactics” in seeking a continuance.

III.

In concluding, we note that the hearing on the motion for continuance was not a model for emulation. It was Madison’s motion, not that of his current legal counsel in whom he had lost confidence. The trial court spent much time on the latter’s viewpoints but little on those of the primary party in interest: Madison. We are sympathetic to the trial court’s motivation to keep cases moving on its docket. As Judge David Monaco of the Fifth District, and a former state trial judge, stated:

Trial courts are under constant pressure to move cases through the criminal justice system. All judges are fully aware that unless cases are efficiently processed, the burden of backlog begins to choke, and unwanted delays multiply exponentially. One of our primary functions, however, is to make sure that trials are fair. We cannot lose sight of that laudable goal in the name of expediency.

Trocola, 867 So.2d at 1232. Trial docket efficiency is important, but nothing in this case suggests that Madison’s motion was other than a genuine, good faith request that could have been accommodated without prejudice to all involved.

Having determined that Madison’s right to counsel of his choice was impeded, we are required to reverse. Gonzalez-Lopez, 548 U.S. at 150, 126 S.Ct. 2557. Reversal is compelled because the “[djeprivation of the right is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.” Id. at 148, 126 S.Ct. 2557. Appellant’s conviction and sentence are REVERSED and the case is REMANDED for a new trial.

CLARK, J., concurs. WETHERELL, J., dissents with opinion.

WETHERELL, J.,

dissenting.

I dissent. I would not second-guess the trial court’s sound exercise of discretion in ruling on Appellant’s motion for a continuance, and I would affirm Appellant’s judgment and sentence, except for the cost and jail credit issues on which the State conceded error.

This Court has held that trial judges have “wide discretion” in ruling on motions for continuances, Holley v. State, 484 So.2d 634, 636 (Fla. 1st DCA 1986), and the Florida Supreme Court has held that the denial of such a motion should not be reversed on appeal unless there has been “a palpable abuse of this judicial discretion” that “clearly and affirmatively appear[s] in the record.” Magill v. State, 386 So.2d 1188, 1188 (Fla.1980). Accordingly, as the majority correctly recognizes, the trial court’s ruling on Appellant’s motion for a continuance is to be reviewed under the deferential abuse of discretion standard of review.

Under this standard, “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). As recently noted by our sister court, “[t]his standard of review rarely results in relief because it requires affirmance of the trial court order unless no reasonable judge could have reached the decision challenged on appeal.” Clark v. State, 95 So.3d 986, 987 (Fla. 2d DCA 2012); see also Reyner v. State, 745 So.2d 1071, 1073 (Fla. 1st DCA 1999) (“Under [the abuse of discretion] standard of review, we can find an abuse of discretion only if we conclude that no reasonable trial judge would have reached the conclusion being appealed.”). The majority purports to apply this standard, but its analysis does not support the conclusion that the trial court acted unreasonably in denying Appellant’s motion for a continuance.

Putting logic aside, my disagreement with the majority is simple: unlike the majority, I do not think it was unreasonable — ie., “[i]rrational; foolish; unwise; absurd; silly; preposterous; senseless; stupid” — for the trial court to deny Appellant’s motion for a continuance under the circumstances of this case. The argument on the motion addressed the McKay factors (albeit not by name or number), and notwithstanding the majority’s criticism of the trial court’s handling of the motion (which, in my view, is unwarranted and unsupported by the hearing transcript), it is reasonable and appropriate for us to assume that the court considered these factors in ruling on the motion.

The majority grounds its decision largely on the fact that the trial court emphasized a need to “move this case.” It was not improper for the court to consider case management concerns in ruling on the motion; McKay expressly recognized that such concerns are “countervailing interests” that may be sufficient to overcome the defendant’s right to counsel of his choosing. See 504 So.2d at 1282. Moreover, even if the denial of the continuance was partially motivated by ease management concerns, that does not mean that the ruling was necessarily an abuse of discretion. Indeed, in Brown v. State, su- pro, this Court affirmed the denial of a motion for a continuance under somewhat similar circumstances despite the trial court’s reference to its “policy” of denying continuances based on the late substitution of counsel.

It is noteworthy that the Brown court affirmed the denial of a motion for a continuance even though “[n]either party specifically argued McKay ... during the motion hearings” and the trial court made no findings on the McKay factors. 942 So.2d at 14. It was sufficient in that case that the McKay factors were “essentially argued before the court” and, thus, implicitly considered by the trial court in denying the continuance. Id. The same is true here.

The presumption of correctness that the trial court’s ruling is supposed to be afforded on appeal requires us to infer that the court properly considered all of the circumstances presented at the hearing on Appellant’s motion for a continuance in ruling on the motion. Those circumstances included: this case had been pending for more than a year and Appellant was already on his third lawyer, Barbara Hobbs; the trial had already been continued once at the request of the defense, and there had also been considerable delay in setting the original trial date because of numerous defense-requested continuances of pre-trial hearings; the trial date that Appellant sought to continue had been on the calendar for three months, but Appellant waited until three weeks before the trial date to file a motion for a continuance even though according to the motion and the letter submitted by Appellant’s father, Appellant had been dissatisfied with Ms. Hobbs for- quite some time; Appellant had not discharged Ms. Hobbs or retained a new lawyer by the time the motion was heard the week before trial, nor did he give the court any indication how long of a continuance might be needed for Appellant’s prospective new lawyer to be prepared for trial (assuming he was ever retained); the case was straightforward and not complex since Appellant admitted to the crimes and his confession was consistent with the testimony of the victims; and Ms. Hobbs, whom the trial court found to be competent (and who is now a trial judge), was substantially prepared for trial even though she had not yet filed a written motion to suppress Appellant’s confession.

In my view, most, if not all, of these circumstances support the trial court’s ruling on Appellant’s motion for a continuance. The only circumstance identified by the majority that arguably cuts against the trial court’s ruling is that the State did not articulate any specific prejudice that would result if the trial was delayed. However, even if it might have been reasonable, or even preferable, for the trial court to grant a short continuance under these circumstances, it was certainly not unreasonable for the court to rule the way it did.

In sum, because the trial court did not act unreasonably in denying Appellant’s motion for a continuance, I would affirm the ruling. And because the other substantive issue raised by Appellant lacks merit, I would affirm Appellant’s judgment and sentence, except for the cost and jail credit issues on which the State conceded error.

      . Amend. VI, U.S. Const. ("In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.”). Similarly, the Counsel Clause of our state constitution has been interpreted to include "the right to choose one's manner of representation against criminal charges,” which "necessarily entails two corresponding rights — the right to conduct one's own defense and the right to assistance of counsel.” Traylor v. State, 596 So.2d 957, 968 & n. 23 (Fla.1992) (interpreting article I, section 16(b), of the Florida Constitution, which states: "In all criminal prosecutions the accused shall, upon demand, ... have the right ... to be heard in person, by counsel or both ...”).

      . In Gonzalez-Lopez, the Court held that a violation of the Counsel Clause is a structural error that requires reversal of the conviction; harmless error analysis does not apply. 548 U.S. at 150, 126 S.Ct. 2557.

      . A trial continuance was entered on November 24, 2010; this reset the December 21, 2010 trial date to February 21, 2011.

      . We distinguish between Madison, the son, by referring to his father as Mr. Madison.

      . Circuit Judge Angela Dempsey presided over the trial, but not the hearing on Madison’s motion.

        . The trial court made no mention of Mr. Madison’s letter, which claimed that counsel initially made contact with Madison and his family "at least twice a week” but that her contact soon became meager to the point that "her visit with James was far and few in between. We continued to call her asking her to visit our son and keep us informed on the status of James’ case with no response.”

      . Counsel said she "had talked to Mr. Madison about” the conflict, but the record does not reflect whether "Mr. Madison” was Appellant or his father.

      . He was found guilty on both of the original charges as well as a third charge, added in an amended information dated February 14, 2011, of possession of an illegal weapon.

      .Because a new trial is in order, we do not pass upon the question of whether Madison’s confession was inadmissible. We note, however, that the State commendably concedes error as to the issues related to the entitlement to jail credit and the imposition of lump-sum fines and costs.

      . We recognize the frustration of Judge Wetherell in trying to deconstruct and harmonize the overall logic of a one-size-fits-all standard of review, which appellate commentators have recognized and attempted to rationalize and explain over the years. See, e.g., Laura Whitmore, Abuse of Discretion: Misunderstanding the Deference Accorded Trial Court Rulings, 79 Fla. B.J. 83 (June 2005) (focusing on the "gross abuse of discretion" versus "abuse of discretion” conundrum); Nancy Ryan, Containing Canakaris: Tailoring Florida's One-Size-Fits-Most Standard of Review, 78 Fla. B.J. 40 (April 2004) (explaining how Canakaris’s progeny has evolved and, in cases involving constitutional issues, resulted in a bifurcated standard of review). We find comfort in our application of the standard of review by relying only on cases that involved continuances of criminal trials or the constitutional right of counsel, excepting only Cana-karis which outlined the parameters of the bifurcated standard of review. See Whitmore, supra, at 83 (noting that courts temper "abuse of discretion” standard "by the nature of the issue on appeal” and that "it is the underlying policies associated with the specific legal issues, not the verbiage of the standard of review that apportions power over the finality of judgments between trial and appellate courts”).

      . M.F. v. State, 920 So.2d 1252, 1254 (Fla. 2d DCA 2006) (applying McKay factors); Trocola v. State, 867 So.2d 1229, 1231 (Fla. 5th DCA 2004) ("While not intending to imply that this list [from McKay ] is exclusive, we agree that the factors are fair, well-considered and reasonable, and provide a sound basis to evaluate the present case.”); D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003) (applying McKay factors).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973); see generally Angela D. McCravy, Self-Representation and Ineffective Assistance of Counsel: How Trial Judges Can Find Their Way Through the Convoluted Legacy of Faretta and Nelson, 71 Fla. B.J. 44 (Oct. 1997) (discussing Nelson and the type of hearing conducted when court-appointed counsel is claimed to be ineffective).

      . Madison’s counsel represented to the trial court that the prosecutor had told her that Madison's case "was a backup anyway”— meaning it was not at the top of the queue and might not even be tried during the week for which it was set. The prosecutor, however, offered no hint of flexibility in rescheduling (until after the trial court denied the continuance, when the prosecutor offered to "bump” Madison's case closer to the front of the line).

      . The trial court also made no inquiry into the disclosure at the hearing by Madison’s counsel — apparently for the first time — of a potential conflict of interest with her representing Madison; it should have done so due to the potential prejudice to Madison and to enable appellate review of the issue. Brown, 66 So.3d at 1049 (noting "we are unable to discern from this record precisely what legal problem his counsel faced and how they would impact his effectiveness at trial. We cannot tell how long the defendant was aware of the issue and whether there was any delay in raising the issue. The likelihood of prejudice is great”).

      . The majority also confusingly suggests that it may have been legal error (presumably subject to de novo review) for the trial court not to expressly consider and make findings on the McKay factors in ruling on Appellant’s motion for a continuance. However, the majority correctly stops short of reversing on this basis, presumably because such a holding would conflict with Brown v. State, 942 So.2d 12 (Fla. 1st DCA 2006), in which this Court implicitly rejected the more rigid approach that the majority purports to leave for another day.

      . The application of the Canakaris standard presents a logical conundrum where, as here, the judges on the appellate court disagree amongst themselves as to the propriety of the trial court’s ruling, but the majority votes to reverse. The problem arises because the proposition — "if P [reasonable judges disagree as to the propriety of the trial court's ruling], then Q [the trial court did not abuse its discretion]," or P-*Q — is not logically sound if P is true and Q is false. Thus, if the majority is correct that Q is false (i.e., the trial court abused its discretion), then it logically follows under the modus tollens rule that P cannot be true (i.e., reasonable judges disagree as to the propriety of the trial court’s ruling). But, here, at least one (presumably) reasonable judge agrees with the trial court’s ruling on Appellant's motion for a continuance, thereby making P true and requiring Q to be true as well under the modus ponens rule. Illogically, however, the majority holds that the trial court abused its discretion (Q is false) despite the fact that reasonable judges disagree as to the propriety of the trial court's ruling (P is true).

        . Black's Law Dictionary 1538 (6th ed. 1990) (defining "unreasonable”).

      . I recognize the potential for prejudice to a defendant who is forced to go to trial with a lawyer in whom he has lost confidence. However, in my view, any such prejudice in this case was self-inflicted by Appellant when he chose not to discharge Ms. Hobbs (which he was free to do without the trial court’s involvement because she was retained, not appointed) and hire a new lawyer despite having ample time to do so, both before and after filing the motion for a continuance. Moreover, contrary to the implication in the majority opinion, Appellant was not prejudiced by Ms. Hobbs’ failure to file a written motion to suppress his confession because she made an ore tenus motion at trial to exclude the confession. The trial court recessed the trial and held a full hearing on the motion at which evidence and extensive argument were presented, and the court ruled on (and properly denied) the motion before the videotape of the confession was played for the jury. Also, even though Ms. Hobbs did not put on a case-in-chief (which, contrary to the implication in the majority opinion, is not at all uncommon in criminal cases), she ably cross-examined the State’s witnesses and did the best she could in closing argument to minimize the State’s most damning evidence against Appellant: his videotaped confession in which he admitted that he robbed both of the victims in this case at gunpoint and that he possessed and discharged a sawed-off shotgun during one of the robberies.

      . Appellant’s argument that the trial court erred in denying his ore terms motion to suppress his confession is meritless. The record clearly establishes that, after being advised of and waiving his Miranda rights, Appellant freely and voluntarily admitted the crimes charged in this case, and Appellant’s claim that he was intimidated or coerced into confessing is conclusively refuted by the videotape and transcript of his interrogation.