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PETER VENTURA, Appellant, v. STATE OF FLORIDA, Appellee. No. SC08-60

Thursday, January 29th, 2009

PETER VENTURA, Appellant,
v.
STATE OF FLORIDA, Appellee.
No. SC08-60
Supreme Court of Florida.
[ January 29, 2009]
Florida Rule of Criminal Procedure 3.851 governs Fla. R.Crim. P. 3.851(e)(2)(C) (emphasis supplied). Rule 3.851(f)(5)(B) permits the denial of a successive postconviction motion without an evidentiary hearing “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.”  A postconviction court’s decision regarding whether to grant a rule 3.851 evidentiary hearing depends upon the written materials before the court; thus, for all practical purposes, its ruling is tantamount to a pure question of law and is subject to de novo review.   See, e.g., Rose v. State, 985 So.2d 500, 505 (Fla.2008). In reviewing a trial court’s summary denial of postconviction relief, we must accept the defendant’s allegations as true to the extent that they are not conclusively refuted by the record.   See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). The Court will uphold the summary denial of a newly-discovered-evidence claim if the motion is legally insufficient or its allegations are conclusively refuted by the record.   See McLin v. State, 827 So.2d 948, 954 (Fla.2002). At the outset, Ventura failed to comply with rule 3.851(e)(2)(C) because he never attached any of the relevant lethal-injection documents to his successive postconviction motion and he did not proffer any witnesses to support his claims. For these reasons, Ventura’s successive motion is legally insufficient.   See Hunter, 33 Fla. L. Weekly at S722, S725 (holding that the defendant-appellant failed to comply with rule 3.851(e)(2)(C) because he did not attach relevant documents and did not proffer any expert witnesses to support his claim). However, even if Ventura had attached supporting documents and provided sufficient notice regarding expert witnesses, his lethal-injection claim would nonetheless remain meritless.   B. Ventura’s Lethal-Injection Claim i. Ventura has Merely Reiterated the Claims Presented by Lightbourne and Schwab We have repeatedly and consistently rejected Eighth Amendment   FN4 challenges to Florida’s current lethal-injection protocol.   See Tompkins v. State, 994 So.2d 1072, 1080-82 (Fla.2008); Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 33 Fla. L. Weekly S686, S691 (Fla. Sept. 18, 2008); Schwab v. State, 995 So.2d 922, 924-33 (Fla.2008); Woodel v. State, 985 So.2d 524, 533-34 (Fla.2008), cert. denied,129 S.Ct. 607 (2008); Lebron v. State, 982 So.2d 649, 666 (Fla.2008); Schwab v. State, 982 So.2d 1158, 1159-60 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326, 350-53 (Fla.2007). In his postconviction motion and brief to this Court, Ventura has simply re-alleged the criticisms of Florida’s revised protocol that Lightbourne and his expert, Dr. Heath, presented in 2007.   See Lightbourne, 969 So.2d at 347-49. Ventura has not presented any allegations beyond those of Lightbourne and Schwab (who predicated his claims upon those of Lightbourne). This Court has thus previously rejected each of these challenges to Florida’s lethal-injection protocol and-based upon the sound principle of stare decisis-we continue the same course here.   See, e.g., Lightbourne, 969 So.2d at 349-53; Schwab, 969 So.2d at 321-25. As we stated in Schwab,  “Given the record in Lightbourne and our extensive analysis in our opinion in Lightbourne v. McCollum, we reject the conclusion that lethal injection as applied in Florida is unconstitutional.”    Schwab, 969 So.2d at 325. ii. Baze Does Not Require Reconsideration of Lightbourne and Related Decisions The only “new” contention Ventura presents is that our recent lethal-injection decisions, including Lightbourne, have not applied the standard articulated by the Baze plurality. However, Ventura overlooks that we explicitly held in Lightbourne:   In light of the[ ] additional safeguards [present in the August 2007 lethal-injection protocol] and the amount of the sodium pentothal used, which is a lethal dose in itself, we conclude that [the petitioner] has not shown a substantial, foreseeable or unnecessary risk of pain in the DOC’s procedures for carrying out the death penalty through lethal injection that would violate the Eighth Amendment….  969 So.2d at 352-53 (footnote omitted) (emphasis supplied). Our analysis thus provided that Florida’s current lethal-injection protocol is constitutional under either a substantial-risk, foreseeable-risk, or unnecessary-risk standard. This Court also recently observed in Tompkins that “we have rejected contentions that Baze set a different or higher standard for lethal injection claims than Lightbourne.”  994 So.2d at 1081. We now take this occasion to explain why this is so. The disjunctive phrasing of our holding in Lightbourne has proven prescient because the United States Supreme Court has not yet adopted a majority standard for determining the constitutionality of a mode of execution.   See generally Baze v. Rees, 128 S.Ct. 1520 (2008). Specifically, the Baze plurality adopted a version of the substantial-risk standard, FN5 while Justice Breyer, concurring in the judgment, and Justices Ginsburg and Souter, dissenting, adopted a version of the unnecessary-risk standard.   See id. at 1525-38 (Roberts, C.J., joined by Kennedy and Alito, JJ.); id. at 1563-67 (Breyer, J., concurring in the judgment);   FN6   id. at 1567-72 (Ginsburg, J., dissenting, joined by Souter, J.). In contrast, Justices Thomas and Scalia renounced any risk-based standard in favor of a rule of law that would uphold any method of execution which does not involve the purposeful   FN7 infliction of “pain and suffering beyond that necessary to cause death.”  Id. at 1556-63 (Thomas, J., concurring in the judgment, joined by Scalia, J.). Justice Stevens did not provide a separate standard but, instead, expressed general disagreement with (1) the death penalty based upon his long experience with these cases and the purported erosion of the penalty’s theoretical underpinnings (deterrence, incapacitation, and retribution), and (2) the allegedly unnecessary use of the paralytic drug pancuronium bromide.   See id. at 1542-52 (Stevens, J., concurring in the judgment). Hence, the Baze Court did not provide a majority opinion or decision. In turn, this lack of consensus has complicated our duty to interpret article I, section 17 of the Florida Constitution “in conformity with the decisions of the United States Supreme Court ”   FN8 concerning the Eighth Amendment’s bar against “cruel and unusual punishments.”  Under normal circumstances, we would resort to the “narrowest grounds” analysis presented in Marks v. United States, 430 U.S. 188, 193 (1977), which provides that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)). However, there are no reliable means of determining the “narrowest grounds” presented in Baze because three blocks of Justices provided three separate standards for determining the constitutionality of a mode of execution. We addressed this issue in Henyard v. State, 992 So.2d 120 (Fla.2008): We have previously concluded in Lightbourne and Schwab that the Florida protocols do not violate any of the possible standards, and that holding cannot conflict with the narrow holding in Baze. Furthermore, we have specifically rejected the argument that Florida’s current lethal injection protocol carries “a substantial, foreseeable, or unnecessary risk of pain.”  Lightbourne, 969 So.2d at 353. Accordingly, we reject [appellant's] argument [that we should reconsider Lightbourne and Schwab in light of Baze ]. Id. at 130 (emphasis supplied). Consequently, Florida’s current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court (and would also easily satisfy the intent-based standard advocated by Justices Thomas and Scalia). We also recently upheld and adopted a trial court’s analysis concluding that Florida’s lethal-injection protocol is “substantially similar” to that of Kentucky.
See Schwab, 995 So.2d at 924-33. This holding brings Florida’s lethal-injection protocol squarely within the safe harbor created by the Baze plurality. Baze, 128 S.Ct. at 1537 (Roberts, C.J., joined by Kennedy and Alito, JJ.) (“A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.” (emphasis supplied)); see also Baze, 128 S.Ct. at 1569-71 (Ginsburg, J., dissenting, joined by Souter, J.) (favorably contrasting Florida’s consciousness assessment with that of Kentucky and strongly indicating that even the Baze dissenters would have approved Florida’s current lethal-injection protocol under an Eighth Amendment analysis). In its current form, Florida’s lethal-injection protocol ensures unconsciousness through a pause between the injection of a lethal dose of sodium pentothal (a potent coma-inducing barbiturate) and the injection of the second and third drugs, during which time the warden engages in a thorough consciousness assessment (brushing the condemned’s eye lashes, calling the condemned’s name, and shaking the condemned). Further, we have held that the condemned inmate’s lack of consciousness is the focus of the constitutional inquiry.   See generally Lightbourne, 969 So.2d 326 (repeatedly stressing the significance of the undisputed fact that a sufficient dose of sodium pentothal renders the condemned unconscious and that this lack of consciousness precludes the perception of any pain associated with the later injection of pancuronium bromide and potassium chloride). Accordingly, in light of Ventura’s failure to comply with rule 3.851(e)(2)(C) and the meritless nature of his lethal-injection claim, we affirm the circuit court’s summary denial of his most recent successive postconviction motion.   C. Ventura’s All-Writs Petition Following Ventura’s appeal from the summary denial of his most recent postconviction motion, he filed a pro se petition seeking to invoke our all-writs jurisdiction under article V, section 3(b)(7) of the Florida Constitution. FN9   Through this petition, Ventura requests that we: (1) Conduct a hearing under section 27.711(12), Florida Statutes (2007), to determine whether his appointed CCRC attorney incompetently and untimely filed his reply brief in the underlying postconviction appeal; (2) Grant him the opportunity to file a new rule 3.851 postconviction motion with the relevant circuit court; and (3) Appoint new postconviction counsel to represent him during this successive postconviction litigation. We deny this petition as meritless. Ventura invokes our supervisory authority under section 27.711(12) to monitor whether postconviction counsel is providing “quality representation.”  As previously stated, Ventura contends that his CCRC attorney untimely filed his reply brief in this case. However, Ventura is mistaken because appointed counsel timely served and filed the reply brief during August 2008. On February 29, 2008, we entered a briefing order requiring that Ventura serve his reply brief upon the State within forty days following service of the State’s answer brief. After an intervening motion for extension of time (which we granted), and the filing of Ventura’s initial brief, the State served its answer brief by U.S. mail upon Ventura’s CCRC attorney on June 18, 2008. Florida Rule of Appellate Procedure 9.420(e)-”Additional Time After Service by Mail”-provides as follows: If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period. (Emphasis supplied.) Consequently, because (1) the time period for service of Ventura’s reply brief was dependent upon service of the State’s answer brief, and (2) the State served its brief by mail, Ventura had forty-five days following June 18, 2008, FN10 in which to serve his reply brief. Forty-five days from Wednesday, June 18, 2008, was Saturday, August 2, 2008. However, pursuant to rule 9.420(f) a Saturday, Sunday, or enumerated legal holiday may not serve as the final day of the applicable time period. Instead, “the period shall run until the end of the next day that is neither a Saturday, Sunday, nor holiday,” which, in this case, was Monday, August 4, 2008.   Ventura’s CCRC attorney served the reply brief upon the State by U.S. mail on August 1, 2008, and the clerk’s office stamped the reply brief as filed on August 4, 2008.   Therefore, Ventura’s allegations that his CCRC attorney untimely filed the reply brief are unfounded, and we deny his all-writs petition. FN11   III. CONCLUSIONN For the reasons expressed in our analysis, we deny Ventura’s successive postconviction motion and all-writs petition. We further reiterate that nothing contained within the various opinions of Baze v. Rees, 128 S.Ct. 1520 (2008), affects the validity of our decisions upholding Florida’s current lethal-injection protocol. It is so ordered. QUINCE, C.J., and WELLS, PARIENTE, LEWIS, and POLSTON, JJ., concur. CANADY, J., specially concurs with an opinion. ANSTEAD, Senior Justice, specially concurs with an opinion, in which PARIENTE and LEWIS, JJ., concur. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. CANADY, J., specially concurring. I concur fully in the Court’s opinion with respect to Ventura’s postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.851. I would dismiss Ventura’s all-writs petition for failure to state a basis for relief. ANSTEAD, Senior Justice, specially concurring. I agree with the majority that our precedent mandates an affirmance on all issues. However, I also agree with appellant that recent decisions from the Eleventh Circuit demonstrate an error inherent in this Court’s repeated statements that death-sentenced inmates cannot be prejudiced by the lack of state-funded representation in section 1983 proceedings challenging Florida’s execution protocol, because they may, in lieu of filing a section 1983 action, have appointed counsel file a successive federal habeas petition to challenge the protocol. Under prevailing Eleventh Circuit law, filing a successive federal habeas petition is no longer an option for any defendant who has previously filed an initial federal habeas petition before Florida’s current execution protocol was adopted. The Eleventh Circuit, in its decision in In re Schwab, 506 F.3d 1369 (11th Cir.2007), and other decisions, has consistently indicated it will simply deny such a habeas petition as successive without addressing the merits. In fact, if an inmate has previously filed any federal habeas petition before Florida adopted its August 2007 protocol for execution, he will be barred from filing a successive federal habeas petition challenging Florida’s current lethal injection protocol “because [such a claim] neither relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, nor involves facts relating to guilt or innocence.”  In re Schwab, 506 F.3d at 1370 (citations omitted). Therefore, contrary to the rationale of our prior decisions, federal habeas review is no longer an available alternative to a section 1983 claim challenging Florida’s current lethal-injection protocol. On the other hand, the United States Supreme Court has ruled that defendants may utilize a section 1983 action to avoid the procedural bar applied in In re Schwab, and utilize such an action to challenge a state’s current execution protocol. Consequently, for the majority of Florida’s death-sentenced inmates to have any meaningful opportunity for federal review of the current lethal-injection protocol, they must file a section 1983 action. We should acknowledge this current law, and recede from that portion of our holdings in State ex rel. Butterworth v. Kenny, 714 So.2d 404 (Fla.1998), and subsequent decisions that rely on the existence of state-funded habeas proceedings as a basis for justifying the denial of state-funded counsel in section 1983 proceedings.   See, e.g., Diaz v. State, 945 So.2d 1136, 1154 (Fla.2006) (“Diaz did have an alternative avenue for challenging the lethal injection procedure in federal court [a federal habeas petition], but did not utilize it.”). PARIENTE and LEWIS, JJ., concur. Case No. 86-2822-CFAES
An Appeal from the Circuit Court in and for Volusia County, R. Michael Hutcheson, Judge -
Bill Jennnings, Capital Collateral Regional Counsel, Mark S. Gruber and Maria Perinetti, Assistant CCR Counsel, Meddle Region, Tampa, Florida, for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, Florida, for Appellee
PER CURIAM.
This case is before the Court on appeal from an order summarily denying Peter Ventura’s most recent successive postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.851. Through this motion, Ventura challenges the mode of his eventual execution (i.e., lethal injection). FN1   Ventura has also filed a pro se all-writs petition seeking the removal of his appointed Capital Collateral Regional Counsel (“CCRC”) attorney. We possess and exercise our jurisdiction to resolve these claims.   See art. V, § 3(b)(1), (7), Fla. Const. As explained in our analysis, we reject each of Ventura’s claims and affirm the circuit court’s summary denial of his successive postconviction motion. We also deny his all-writs petition.
I. BACKGROUND
In 1988, Ventura was convicted of the first-degree, premeditated murder of Robert Clemente. Through our prior opinions addressing Ventura’s direct and postconviction appeals, we have detailed the facts and procedural background surrounding this offense.   See Ventura v. State, 560 So.2d 217, 217-18 (Fla.1990) (“Ventura I ”), cert. denied,498 U.S. 951 (1990); Ventura v. State, 673 So.2d 479, 479-80 (Fla.1996) (“Ventura II ”); Ventura v. State, 794 So.2d 553, 558 (Fla.2001) (“Ventura III ”), cert. denied,535 U.S. 1098 (2002). We have repeatedly affirmed Ventura’s conviction and death sentence. Further, Ventura has experienced similar results in his related federal litigation.   See Ventura v. Florida, 498 U.S. 951 (1990) (No. 90-5607); Ventura v. Florida, 535 U.S. 1098 (2002) (No. 01-7125) (denying certiorari petitions); Ventura v. Moore, No. 602CV1159ORL19KRS, 2004 WL 3767535, at *34 (M.D.Fla.2004), aff’d419 F.3d 1269, 1292 (11th Cir.2005) (denying federal habeas petition).
Most recently, on October 22, 2007, Ventura filed his current successive motion for postconviction relief, which he claims is based upon “newly discovered evidence.”  In this motion, Ventura: (1) assails the constitutionality of lethal injection as currently administered in Florida; (2) asserts that section 27.702, Florida Statutes (2007), as interpreted by this Court, is unconstitutional facially and as applied because it prohibits CCRC from filing mode-of-execution challenges under 42 U.S.C. § 1983 (2000); (3) claims that section 945.10, Florida Statutes (2007), as interpreted by this Court, is unconstitutional because it prohibits him from discovering the identities of his executioners, which he contends precludes him from determining the adequacy of their qualifications and training; and (4) the ABA’s recent report, Evaluating Fairness and Accuracy in the State Death Penalty Systems: The Florida Death Penalty Assessment, published September 17, 2006, reveals that Florida’s death-penalty system is seriously flawed and unconstitutional. FN2
As explained below, Ventura’s motion is meritless. That aside, Ventura has also failed to comply with rule 3.851(e)(2)(C). See Hunter v. State, 33 Fla. L. Weekly S721, S722, S725 (Fla. Sept. 25, 2008) (holding that the defendant-appellant did not comply with rule 3.851(e)(2)(C)(iii) because he failed to attach copies of the documents upon which his postconviction claim relied). Ventura maintains that his “newly discovered evidence” is drawn from the following sources:
Florida’s 2006 lethal-injection protocol;
Factual information surrounding the December 13, 2006, execution of Angel Diaz;
The Report of the Governor’s Commission on the Administration of Lethal Injection in Florida;
The May 9, 2007, and August 1, 2007, lethal-injection protocols;
The Department of Corrections’ response to the report of the Governor’s Commission; and
The evidentiary-hearing testimony considered by the circuit court in Lightbourne v. State (which, as we noted, resulted in a record exceeding 6,500 pages, see Lightbourne v. McCollum, 969 So.2d 326, 330 (Fla.2007), cert. denied,128 S.Ct. 2485 (2008)).
However, there is no indication in the record that Ventura ever provided the postconviction court with any of the documents upon which his claim supposedly rests (and he never proffered any witnesses).   Cf. Hunter, 33 Fla. L. Weekly at S725.Pursuant to binding Florida precedent, the postconviction court summarily denied each of Ventura’s claims.
Ventura now appeals this summary denial. We write solely to address Ventura’s lethal-injection claim. FN3   We do so to outline our understanding of the positions offered by the justices of the United States Supreme Court in Baze v. Rees, 128 S.Ct. 1520 (2008), and to explain why the plurality decision presented in that case has not affected the validity of our decisions in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), and Schwab v. State, 969 So.2d 318 (Fla.2007).
II. ANALYSIS
A. Standard of Review
FN1. . As of January 2009, the Governor has not signed a death warrant for Ventura.
FN2. . On appeal, Ventura abandoned his fourth claim based on recent decisions from this Court holding that the ABA report is not newly discovered evidence and that, even if it were, the report does not reveal that Florida’s death-penalty system is unconstitutional.   See, e.g.,Tompkins v. State, 994 So.2d 1072, 1082-83 (Fla.2008) (citing Power v. State, 992 So.2d 218, 222-23 (Fla.2008)); Rolling v. State, 944 So.2d 176, 181 (Fla.2006) (citing Rutherford v. State, 940 So.2d 1112, 1117, 1118 (Fla.2006)).
FN3. . This Court has already addressed and rejected similar claims with regard to sections 27.702 and 945.10, Florida Statutes (2007).   See, e.g.,Henyard v. State, 992 So.2d 120, 128-29, 130 (Fla.2008), cert. denied,129 S.Ct. 28 (2008). We decline to recede from our prior precedent.
FN4. . The prohibition against “cruel or unusual punishment” present in the Florida Constitution “shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution.”  Art. I, § 17, Fla. Const.
FN5. . In relevant part, the plurality stated:
[A]n inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the State’s legitimate interest in carrying out a sentence of death in a timely manner….
… A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives.   A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard ….
… State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to “objectively intolerable risk,”  Farmer[ v. Brennan], 511 U.S. [825, 846,] and n.9 [ (1994) ], not simply the possibility of pain.
Baze, 128 S.Ct. at 1537 (Roberts, C.J., joined by Kennedy and Alito, JJ.) (emphasis supplied).
FN6. . Justice Breyer prefaced his concurrence in the judgment by stating: “In respect to how a court should review such a claim, I agree with Justice Ginsburg. She highlights the relevant question, whether the method creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering.”  Baze, 128 S.Ct. at 1563 (Breyer, J., concurring in the judgment) (citing Justice Ginsburg’s dissent at 1572) (some emphasis supplied).
FN7. . See Black’s Law Dictionary 1272 (8th ed.2004) (“purposeful, adj. Done with a specific purpose in mind; DELIBERATE.”).
FN8. . Art. I, § 17, Fla. Const. (emphasis supplied).
FN9. . Any exercise of jurisdiction with regard to Ventura’s pro se all-writs petition would necessarily aid this tribunal in the “complete exercise of its jurisdiction” concerning this capital case. Art. V, § 3(b)(7), Fla. Const.; see also art. V, § 3(b)(1), Fla. Const.; Williams v. State, 913 So.2d 541, 543 (Fla.2005) (“[T]he all writs provision [of article V, section 3(b)(7) ] does not constitute a separate source of original or appellate jurisdiction. Rather, it operates in furtherance of the Court’s ‘ultimate jurisdiction,’ conferred elsewhere in the [C]onstitution.”(emphasis supplied)); State v. Fourth Dist. Court of Appeal, 697 So.2d 70, 71 (Fla.1997) (“[W]e now hold that in addition to our appellate jurisdiction over sentences of death, we have exclusive jurisdiction to review all types of collateral proceedings in death penalty cases.”(emphasis supplied)); Coleman v. State, 930 So.2d 580, 580-81 (Fla.2006) (considering allegations with regard to the performance of assigned postconviction counsel under section 27.711(12), Florida Statutes (2005), and remanding to the circuit court with instructions for the assigned attorney to respond to these allegations).
FN10. . “In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.”  Fla. R.App. P. 9.420(f) (emphasis supplied).
FN11. . As part of his petition, Ventura also briefly alleges that at some undisclosed time, CCRC untimely filed a “federal petition for certiorari.”  Ventura does not further elaborate, and there is no evidence supporting this allegation.

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William Todd LARIMORE, Petitioner, v. STATE of Florida, Respondent. No. SC06-139

Thursday, January 29th, 2009

Supreme Court of Florida.
William Todd LARIMORE, Petitioner,
v.
STATE of Florida, Respondent.
No. SC06-139.
Dec. 11, 2008.
As Revised on Denial of Rehearing Jan. 29, 2009.
Background: Convicted sex offender filed petition for writ of prohibition seeking to prevent civil commitment proceedings against him by the State pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act. The District Court of Appeal, 917 So.2d 354, denied the petition and certified a direct conflict. Sex offender filed application for review.
Holdings: The Supreme Court, Pariente, J., held that:
(1) an individual must be in lawful custody when the State takes steps to initiate commitment proceedings pursuant to the Act in order for the circuit court to have jurisdiction to adjudicate the commitment petition;
(2) jurisdictional disclaimers in two subsections of the Act did not constitute a statutory waiver of the lawful custody requirement contained within the overall legislative scheme;
(3) reading the Act to require that an individual be in lawful custody when commitment proceedings are initiated was consistent with due process considerations; and
(4) sex offender was entitled to immediate release from any custody or commitment imposed as a result of civil commitment proceedings initiated against him when he was not in legal custody.
Decision of District Court of Appeal quashed.
Wells, J., dissented and filed opinion.
West Headnotes
[1] Mental Health 257A 455
257A Mental Health
     257AIV Disabilities and Privileges of Mentally Disordered Persons
          257AIV(E) Crimes
               257Ak452 Sex Offenders
                    257Ak455 k. Jurisdiction and Proceedings in General. Most Cited Cases
Convicted sex offender whose 15-year prison sentence had expired and who was on probation on effective date of the Involuntary Civil Commitment of Sexually Violent Predators Act was in lawful custody after effective date of Act and, thus, was subject to application of the Act, even though five-year sentence imposed after revocation of offender’s probation was deemed to have been fully satisfied due to the application of 15 years of credit for time served, where offender spent 82 days in county jail on the violation of probation charge before revocation of his probation. West’s F.S.A. § 394.910 et seq.
[2] Mental Health 257A 467
257A Mental Health
     257AIV Disabilities and Privileges of Mentally Disordered Persons
          257AIV(E) Crimes
               257Ak452 Sex Offenders
                    257Ak467 k. Appeal. Most Cited Cases
Whether a person must be in lawful custody for the State to initiate commitment proceedings against that individual pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act was a matter of statutory interpretation, and thus appellate review was de novo. West’s F.S.A. § 394.910 et seq.
[3] Statutes 361 181(1)
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k180 Intention of Legislature
                    361k181 In General
                         361k181(1) k. In General. Most Cited Cases
A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.
[4] Statutes 361 181(1)
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k180 Intention of Legislature
                    361k181 In General
                         361k181(1) k. In General. Most Cited Cases
To discern legislative intent, a court must look first and foremost at the actual language used in the statute.
[5] Statutes 361 206
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k206 k. Giving Effect to Entire Statute. Most Cited Cases
A statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.
[6] Statutes 361 223.2(1.1)
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k223 Construction with Reference to Other Statutes
                    361k223.2 Statutes Relating to the Same Subject Matter in General
                         361k223.2(1) Statutes That Are in Pari Materia
                              361k223.2(1.1) k. In General. Most Cited Cases
Doctrine of “in pari materia” is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.
[7] Statutes 361 208
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k208 k. Context and Related Clauses. Most Cited Cases
Statutes 361 223.1
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k223 Construction with Reference to Other Statutes
                    361k223.1 k. In General. Most Cited Cases
Related statutory provisions must be read together to achieve a consistent whole, and where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.
[8] Statutes 361 206
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k206 k. Giving Effect to Entire Statute. Most Cited Cases
Significance and effect must be given to every word, phrase, sentence, and part of a statute if possible, and words in a statute should not be construed as mere surplusage.
[9] Constitutional Law 92 4344
92 Constitutional Law
     92XXVII Due Process
          92XXVII(G) Particular Issues and Applications
               92XXVII(G)15 Mental Health
                    92k4341 Sexually Dangerous Persons; Sex Offenders
                         92k4344 k. Commitment and Confinement. Most Cited Cases
Supreme Court’s construction of the Involuntary Civil Commitment of Sexually Violent Predators Act had to be conducted with due regard to the basic tenets of fairness and due process given that the Act could impose on an individual a substantial deprivation of liberty, and one that was of indeterminate duration. U.S.C.A. Const.Amend. 14; West’s F.S.A. § 394.910 et seq.
[10] Mental Health 257A 455
257A Mental Health
     257AIV Disabilities and Privileges of Mentally Disordered Persons
          257AIV(E) Crimes
               257Ak452 Sex Offenders
                    257Ak455 k. Jurisdiction and Proceedings in General. Most Cited Cases
An individual must be in lawful custody when the State takes steps to initiate commitment proceedings pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act in order for the circuit court to have jurisdiction to adjudicate the commitment petition. West’s F.S.A. § 394.910 et seq.
[11] Statutes 361 211
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k211 k. Title, Headings, and Marginal Notes. Most Cited Cases
The title of an act is properly considered in determining legislative intent.
[12] Mental Health 257A 457
257A Mental Health
     257AIV Disabilities and Privileges of Mentally Disordered Persons
          257AIV(E) Crimes
               257Ak452 Sex Offenders
                    257Ak457 k. Petition and Application. Most Cited Cases
State attorney retains the right to file a civil commitment petition even if the person convicted of a sexually violent offense is released as a result of the state attorney’s failure to comply with the 48-hour time limitation after the multidisciplinary team has made an assessment. West’s F.S.A. § 394.9135(4).
[13] Statutes 361 205
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k205 k. In General. Most Cited Cases
Statutes 361 206
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k206 k. Giving Effect to Entire Statute. Most Cited Cases
Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.
[14] Statutes 361 208
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k208 k. Context and Related Clauses. Most Cited Cases
In interpreting a statute, court looks not only to the words themselves but also to the context in which the language lies.
[15] Statutes 361 206
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k206 k. Giving Effect to Entire Statute. Most Cited Cases
Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.
[16] Statutes 361 208
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k204 Statute as a Whole, and Intrinsic Aids to Construction
                    361k208 k. Context and Related Clauses. Most Cited Cases
A court can not read a statutory subsection in isolation, but must read it within the context of the entire section in order to ascertain legislative intent for the provision.
[17] Mental Health 257A 455
257A Mental Health
     257AIV Disabilities and Privileges of Mentally Disordered Persons
          257AIV(E) Crimes
               257Ak452 Sex Offenders
                    257Ak455 k. Jurisdiction and Proceedings in General. Most Cited Cases
Jurisdictional disclaimers contained in the “Notice to state attorney and multidisciplinary team of release” and “Immediate releases from total confinement” subsections of the Involuntary Civil Commitment of Sexually Violent Predators Act are not intended to and do not waive or dispense with the underlying requirement, otherwise clearly present in the Act, that the individual against whom commitment proceedings are brought must be in lawful custody when steps are taken to commence those proceedings in order for the circuit court to have jurisdiction. West’s F.S.A. §§ 394.913(4), 394.9135(4).
[18] Statutes 361 181(2)
361 Statutes
     361VI Construction and Operation
          361VI(A) General Rules of Construction
               361k180 Intention of Legislature
                    361k181 In General
                         361k181(2) k. Effect and Consequences. Most Cited Cases
A court is compelled to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences.
[19] Constitutional Law 92 4344
92 Constitutional Law
     92XXVII Due Process
          92XXVII(G) Particular Issues and Applications
               92XXVII(G)15 Mental Health
                    92k4341 Sexually Dangerous Persons; Sex Offenders
                         92k4344 k. Commitment and Confinement. Most Cited Cases
Reading the Involuntary Civil Commitment of Sexually Violent Predators Act to require that an individual be in lawful custody when commitment proceedings are initiated was consistent with due process considerations. U.S.C.A. Const.Amend. 14; West’s F.S.A. § 394.910 et seq.
[20] Constitutional Law 92 4041
92 Constitutional Law
     92XXVII Due Process
          92XXVII(G) Particular Issues and Applications
               92XXVII(G)1 In General
                    92k4041 k. Restraint, Commitment, and Detention. Most Cited Cases
Civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. U.S.C.A. Const.Amend. 14.
[21] Mental Health 257A 455
257A Mental Health
     257AIV Disabilities and Privileges of Mentally Disordered Persons
          257AIV(E) Crimes
               257Ak452 Sex Offenders
                    257Ak455 k. Jurisdiction and Proceedings in General. Most Cited Cases
Sex offender, who was not in legal custody when initial steps were taken to initiate civil commitment proceedings against him pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act, was entitled to immediate release from any custody or commitment imposed as a result of the proceedings. West’s F.S.A. § 394.910 et seq.
Application for Review of the Decision of the District Court of Appeal-Certified Direct Conflict of Decisions, First District-Case No. 1D05-3525 (Duval County).
Bill White, Public Defender, and Ward L. Metzger, Assistant Public Defender, Jacksonville, FL, for Petitioner.
Bill McCollum, Attorney General, Robert R. Wheeler, Assistant Attorney General, Bureau Chief Criminal Appeals, and Charles Richey McCoy, Senior Assistant Attorney General, Tallahassee, FL, for Respondent.
PARIENTE, J.
*1 This case is before the Court for review of the decision of the First District Court of Appeal in Larimore v. State, 917 So.2d 354 (Fla. 1st DCA 2005). The district court certified that its decision was in direct conflict with the decision of the Second District Court of Appeal in Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003). We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const.
In this case, we interpret the Involuntary Civil Commitment of Sexually Violent Predators Act, sections 394.910-.931, Florida Statutes (2004), commonly known as the “Jimmy Ryce Act” (the Act), and conclude that the Act requires that an individual be in lawful custody when the State takes steps to initiate civil commitment proceedings in order for the circuit court to have jurisdiction to adjudicate the commitment petition. For the reasons expressed below, we quash the district court’s decision in Larimore and approve of the Second District’s decision in Gordon.
FACTS AND PROCEDURAL HISTORY
[1] This case arises from the First District’s decision denying Larimore’s petition for writ of prohibition, in which Larimore sought to prevent civil commitment proceedings against him by the State pursuant to the Act. Larimore, 917 So.2d at 355. The facts are summarized in the First District’s opinion:
On August 29, 1991, after pleading guilty to lewd and lascivious acts on a child under 16 years of age in two separate cases, Larimore was sentenced pursuant to the guidelines to 15 years in prison in one case followed by five years of probation in the second case. On October 10, 1998, Larimore was released from prison due to the award of gaintime, and began serving probation. On February 29, 2000, Larimore’s probation was revoked, and he was sentenced to five years in prison. On August 12, 2002, [the First District] held that Larimore was entitled to credit pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), for the 15 years served on his prison sentence (which included both actual prison time served and gaintime) which had the effect of erasing his five-year sentence for violating probation. Larimore v. State, 823 So.2d 287 (Fla. 1st DCA 2002). Shortly thereafter, based on the revocation of probation, the Department of Corrections forfeited the gaintime (2,830 days) earned on Larimore’s 15-year prison sentence, relying on section 944.28(1), Florida Statutes.
On November 23, 2004, the state filed a petition to have Larimore declared a sexually violent predator and involuntarily committed pursuant to the Jimmy Ryce Act. However, on December 10, 2004, [the First District] held that Larimore was entitled to immediate release from custody because forfeiture of Larimore’s gaintime was not authorized pursuant to section 944.28(1) where Larimore’s offense occurred before the effective date of the amendment to section 944.28 authorizing the forfeiture of gaintime upon revocation of probation. Larimore v. Fla. Dep’t of Corr., 910 So.2d 847 (Fla. 1st DCA 2004), review denied,905 So.2d 125 (Fla.2005). Larimore then filed a motion to dismiss the state’s commitment petition under the Jimmy Ryce Act, arguing that he was not in lawful custody on the effective date of the Act. After the trial court denied the motion to dismiss, this petition for writ of prohibition followed [in the First District].
*2 Larimore, 917 So.2d at 355. The district court correctly concluded that even though Larimore was not in custody when the Jimmy Ryce Act was enacted, his subsequent incarceration in 2000 generally subjected him to application of the Act. Id. at 356-57.However, the district court also concluded that the fact that Larimore was not in lawful custody when the commitment petition was filed in 2004 was not grounds upon which to grant the writ of prohibition. See id. at 356.It is this latter point upon which our decision turns.
Relying on provisions of the Act that provide that compliance with certain requirements and time limitations are not jurisdictional, the district court held that “jurisdiction under the amended Act is not conditioned on a person being ‘in custody’ on the date the petition is filed.”Id. at 357.The First District therefore concluded that although Larimore was not in lawful custody when the State filed its petition on November 23, 2004, id. at 356, the trial court nevertheless had jurisdiction to adjudicate the commitment petition. Id. at 358.The First District explained:
While the Act as amended clearly contemplates that a commitment petition should be filed before a person is released from total confinement, there is nothing in the Act that provides that the petition must be filed before the person’s release. Rather, the Act clearly states that its time limitations are not jurisdictional and do not prevent the state from proceeding pursuant to the Act even if the person is released from custody.
Id. at 357.The First District also certified conflict on this issue with the Second District’s decision in Gordon, in which the Second District concluded that proceedings under the Act could not be initiated against a person who was no longer held in lawful custody by the State. Larimore, 917 So.2d at 357-58.
The court in Gordon had before it a case in which the individual had been released from the custody of the Department of Corrections and was in the civilian population when, two days after his release, the State obtained a warrant for his arrest in order that commitment proceedings could be filed against him. Gordon, 839 So.2d at 717. Only after he was placed back into custody did the multidisciplinary team make its evaluation and recommendation, after which an order of probable cause under the Act was entered. Id. Gordon filed a motion to dismiss alleging that he “was not in custody for purposes of the Act at the time the petition for involuntary commitment was filed.”Id. The Second District agreed and held that “for the Act to apply, the person must be in custody or in ‘total confinement,’ “  id., which the court interpreted to mean “that the person in question is being held at a secure facility.” Id. at 718.The Second District also concluded that the seizure of Gordon in order to commence commitment proceedings was unlawful and could not qualify as custody for purposes of the Act. See id. & n. 4.
*3 The Gordon court reasoned that “the Act contemplates that the circuit court make a determination prior to the expiration of the incarcerative sentence as to whether probable cause exists to hold the person as a sexually violent predator. This is consistent with our legal historical precedents requiring a probable cause determination prior to a person’s seizure.”Id. at 719.The Gordon court also found that section 394.9135 provides a “safety valve for a situation where ‘the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate.’ “  Id. As to the jurisdictional disclaimer provisions, the Gordon court stated: “We do not interpret subsection (4) to mean that the state attorney or the DCF [Department of Children and Family Services] may start proceedings against a person who is not in custody, since, as stated, that person would not be subject to the provisions of the Act.”  Id. at 720.The Second District concluded that “[t]here is no provision in the Act for commencing proceedings against a person under the Act where he or she is not in custody and is, in fact, living in society.”  Id. at 719.
The First District in Larimore chose not to follow Gordon because, in its view, Gordon did not follow the plain statutory language of the Act and could not be reconciled with this Court’s decision in Tanguay v. State, 880 So.2d 533 (Fla.2004).Larimore, 917 So.2d at 358. We conclude, however, that Tanguay does not control the analysis in this case and, as explained below, that lawful custody is required to initiate Jimmy Ryce proceedings; and further that the provisions of the Act relied on by the First District, which state that certain provisions and time limitations are not jurisdictional, do not constitute a statutory waiver of the lawful custody requirement contained within the overall legislative scheme.
ANALYSIS
[2] Larimore asserts that under the terms of the Act a person must be in lawful custody for the State to initiate commitment proceedings against that individual. Because this issue is a matter of statutory interpretation, our review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006). Because Larimore’s claim is predicated solely upon a construction of the provisions of the Act, we must give great deference to the actual language used by the Legislature.
[3][4][5][6][7] A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction. Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). To discern legislative intent, a court must look first and foremost at the actual language used in the statute. Id . (citing Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000)). Moreover, a “statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.”Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla.2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996)).“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.”Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla.2005). Similarly, “[r]elated statutory provisions must be read together to achieve a consistent whole, and … ‘[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ “  Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007) (quoting Woodham v. Blue Cross & Blue Shield, Inc., 829 So.2d 891, 898 (Fla.2002)).
*4 [8] We have long recognized that “[i]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.”Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla.2008) (quoting Fla. State Racing Comm’n v. McLaughlin, 102 So.2d 574, 575-76 (Fla.1958)). Equally important is the “elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.”Gulfstream Park Racing Ass’n v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006) (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003)).
Within the framework of these longstanding principles of statutory construction, we will first examine the provisions of the statutes at issue here to determine if the legislative intent was to require that a person be in lawful custody when steps are taken by the State to commit that person as a sexually violent predator. We will next examine whether any provisions of the Act dispense with the custody requirements of the Act and allow Jimmy Ryce proceedings to be initiated against a person not in lawful custody. We will also explore our prior precedent in the area of the Jimmy Ryce Act to determine if it is dispositive of the issues now before the Court.
The Jimmy Ryce Act
The Florida Legislature first passed the Act in 1998, and it went into effect on January 1, 1999. Seech. 98-64, § 24, at 455, Laws of Fla. As originally enacted, the Act appeared in chapter 916, which pertains to mentally ill defendants in criminal cases. See§§ 916.31-.49, Fla. Stat. (Supp.1998); ch. 98-64, §§ 1-24, at 445-55, Laws of Fla. The Act was later transferred to chapter 394, Florida Statutes, which pertains to civil mental health commitments. Seech. 99-222, §§ 1-29, at 1372-89, Laws of Fla. Although based on a criminal conviction for a sexually violent offense, Jimmy Ryce commitment proceedings have been held to be “civil in nature.”  See Mitchell v. State, 911 So.2d 1211, 1213 (Fla.2005). Even so, we have repeatedly emphasized the procedural safeguards provided by the Act that ensure an individual’s constitutional rights are protected. In holding the Act constitutional in the plurality opinion in Westerheide v. State, 831 So.2d 93 (Fla.2002), we specifically relied on the “range of procedural safeguards to the individuals” provided by the Act:
The parties being subjected to this state action are limited to those who have exhibited “past sexually violent behavior and [have] a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.”Although the individual’s liberty interest is at stake, that “interest is not absolute” and the “individual’s constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context” provided that “the confinement takes place pursuant to proper procedures and evidentiary standards.”Confinement under the Ryce Act is limited to those individuals who are likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. Further, the act provides a range of procedural safeguards to the individuals, including the assistance of counsel and mental health professionals at commitment proceedings, the right to a jury trial, the right to appeal a sexually violent predator determination, at least a yearly mental health examination to determine whether the person’s condition has so changed that it is safe for the person to be discharged, the right to petition for release, and in court hearings for the release of a committed person, the state bears the burden of proving by clear and convincing evidence that the person’s mental condition requires continued confinement.
*5 Id. at 104-05 (citations and footnotes omitted) (quoting Kansas v. Hendricks, 521 U.S. 346, 356-57, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)).
[9] Although Larimore has not raised a constitutional challenge to the Act, because the Act can impose on an individual a substantial deprivation of liberty-one that is of indeterminate duration-our construction of the Act must be conducted with due regard to “the basic tenets of fairness and due process.”State v. Atkinson, 831 So.2d 172, 174 (Fla.2002). In this light, we first examine the provisions of the Act to determine if the Legislature intended that persons against whom civil commitment proceedings are brought must be in lawful custody when those proceedings are initiated.
Custody Under the Act
As has previously been noted by this Court, as well as by the First District Court of Appeal below, the Legislature appears to have specifically contemplated that an individual would be lawfully in the State’s custody when civil commitment proceedings are commenced under the Act. State v. Goode, 830 So.2d 817, 825 (Fla.2002) (“[I]t appears that the Legislature intended that the State would initiate commitment proceedings while the inmate is still incarcerated.”(citing § 394.915(1), Fla. Stat. (1999))); Larimore, 917 So.2d at 357 (“[T]he Act as amended clearly contemplates that a commitment petition should be filed before a person is released from total confinement….”). The Act provides that the commitment process is initiated by the “agency with jurisdiction.”  FN1This is done in one of two ways-either by giving notice to the multidisciplinary team and state attorney under section 394.913(1), Florida Statutes (2004), which begins the detailed process under that section, see§§ 394.913(1)-(4), or by transferring the individual to the custody of the Department of Children and Family Services upon that person’s “immediate release from total confinement” under section 394.9135(1), Florida Statutes (2004). This latter procedure is followed to initiate commitment proceedings where it is anticipated that the individual will be immediately released from “total confinement” for any reason. See§ 394.9135(1), Fla. Stat. (2004).FN2
Section 394.913(1)(a) indicates that the person is to be in custody when proceedings are commenced because it specifically provides that the notice must be given to the multidisciplinary team and the state attorney at least 545 days prior to the person’s anticipated release from total confinement if the person is in custody of the Department of Corrections.FN3Notice must be given at least 180 days prior to release from a residential commitment if the person is in custody of the Department of Juvenile Justice or, where the person has been found not guilty of a sexually violent offense by reason of mental incapacity or insanity, from the custody of the Department of Children and Family Services. See§ 394.913(1)(b)-(c), Fla. Stat. (2004).
Specifically, section 394.913(1) provides that the agency with jurisdiction “shall give written notice to the multidisciplinary team, and a copy to the state attorney of the circuit where that person was last convicted of a sexually violent offense.”Subsection (1) further provides that if the person was never convicted of a sexually violent offense in Florida, but has been convicted of such an offense in another state or federal court, a copy of the notice shall be given to the state attorney of the circuit where the person was last convicted of any offense in this state. Subsection (1) provides that if the person is being confined in this state pursuant to interstate compact, notice shall also be given to the state attorney “of the circuit where the person plans to reside upon release  ” or, if no residence in this state is planned, the state attorney “in the circuit where the facility from which the person to be released is located.”Id. (emphases added).
*6 Subsection (2) of section 394.913 sets forth the information that the agency with jurisdiction must provide to the multidisciplinary team, including information such as the individual’s name, identifying characteristics, criminal history, mental health, mental status, and documentation of institutional adjustment. Subsection (2)(e) states that, “[i]f the person was returned to custody after a period of supervision, documentation of adjustment during supervision and any treatment received” shall be provided to the multidisciplinary team.
Section 394.913(3) provides for establishment of the multidisciplinary team or teams, and states that each team shall include at least two licensed psychiatrists or psychologists. Subsection (3) also provides that the assessment and evaluation shall include a review of the individual’s institutional history and treatment record, the person’s criminal background, and any other relevant factor. Subsection (3)(e) provides that within 180 days after receiving notice, there shall be a written assessment and recommendation, which shall be provided to the state attorney and to the Department of Children and Family Services. Following the receipt of the written assessment and recommendation from the multidisciplinary team, the state attorney may file a petition in the circuit court alleging that the person is a sexually violent predator. § 394.914, Fla. Stat. (2004). Section 394.915(1) then provides that upon finding probable cause to believe that an individual is a sexually violent predator, “the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person’s incarcerative sentence expires.Ӥ 394.915(1), Fla. Stat. (2004) (emphasis added).
Similarly, section 394.9135(3), which applies in cases where the individual is in total confinement but subject to immediate release, instructs that upon finding probable cause in a proceeding initiated under that section, “the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.”§ 394.9135(3), Fla. Stat. (2004) (emphasis added).Section 394.9135 is predicated on the underlying premise that the individual is in custody when initial steps are taken in the commitment process, addressing what must happen when “the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason.”§ 394.9135(1), Fla. Stat. (2004) (emphasis added). This would occur, for example, where the inmate obtains an order for release from an incarcerative sentence.FN4 Additionally, this section would apply where an inmate is about to be immediately released from an incarcerative sentence and the detailed procedures of section 394.913 and section 394.915(1) FN5 have not yet been followed to initiate commitment proceedings and retain the person in custody.
*7 Section 394.9135(1) provides that where an individual currently in total confinement is about to be released, “the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.Ӥ 394.9135(1), Fla. Stat. (2004). This provision allows the multidisciplinary team seventy-two hours after this transfer to “assess whether the person meets the definition of a sexually violent predator.Ӥ 394.9135(2), Fla. Stat. (2004). If the multidisciplinary team determines that the person does not meet the definition of a sexually violent predator, the person is immediately released. If the team determines that the person does meet the definition, “the team shall provide the state attorney … with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next working day thereafter.”Id. After that, within forty-eight hours of receipt of the written assessment and recommendation from the team, the state attorney has the option of filing a petition with the circuit court alleging that the person is a sexually violent predator. § 394.9135(3), Fla. Stat. (2004). “If a petition is not filed within 48 hours after receipt of the written assessment and recommendation by the state attorney, the person shall be immediately released.”Id. If a petition is timely filed pursuant to this section and the judge determines that there is probable cause, then “the judge shall order the person to be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.Ӥ 394.9135(3), Fla. Stat. (2004). These provisions of the Act all demonstrate legislative intent that the individual be in lawful custody when civil commitment proceedings are initiated.
[10] Therefore, as to the question of custody, we conclude that it is clear from a reading of all of the related provisions that the legislative intent of the Jimmy Ryce Act is that the person is in lawful custody at the time any initial steps are taken in the commitment process under either section 394.913 or 394.9135. There are no provisions in the Act that expressly provide or even imply that the State may initiate a civil commitment proceeding after a person has been released from custody and is living in society. We will next consider whether any sections of the Act constitute a statutory waiver of this custody requirement to allow the state to initiate Jimmy Ryce proceedings against an individual who is not in lawful custody.
Jurisdiction Under the Act
Because the First District based its conclusion that custody is not required under the Act on sections 394.913(4) and 394.9135(4), Florida Statutes (2003), a close examination of the text of those and the other provisions of sections 394.913 and 394.9135 is required to determine the legislative intent and legal effect of subsection (4) of each statute in the context of the entire statute. We must endeavor to ascertain the intent of the entirety of both statutes because all parts of a statute must be read together to discern the intent apparent in the whole. See GTC, Inc. v. Edgar, 967 So.2d 781, 787 (Fla.2007). This is in accord with the requirement that we “give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.”Heart of Adoptions, 963 So.2d at 199 (quoting Woodham, 829 So.2d at 898). These principles are especially applicable here where the disclaimer subsections expressly refer to the provisions or time limitations contained in the specific statute of which each subsection is a part.
*8 We will first set forth the actual text of each of the subsections relied upon by the district court because “[w]e endeavor to construe statutes to effectuate the intent of the Legislature.”Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). We have said many times that “legislative intent is the polestar” that guides the Court’s inquiry and “is determined primarily from the language of the statute.”Maggio v. Fla. Dep’t of Labor & Employment Sec., 899 So.2d 1074, 1076-77 (Fla.2005). Accordingly, “we begin with the ‘actual language used in the statute.’ “  Continental Cas. Co. v. Ryan Inc. Eastern, 974 So.2d 368, 374 (Fla.2008) (quoting Borden, 921 So.2d at 595).
The text of section 394.913(4), Florida Statutes (2004), provides as follows:
(4) The provisions of this section are not jurisdictional, and failure to comply with them in no way prevents the state attorney from proceeding against a person otherwise subject to the provisions of this part.
Section 394.9135(4), Florida Statutes (2004), also relied on by the First District Court of Appeal, states:
(4) The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part.
These provisions remain unchanged in the 2008 statutes.
We first turn to section 394.913(4). The language of the “jurisdictional disclaimer” provision in that section does not make any reference to the inmate being out of custody. The subsection refers only to the fact that the “failure to comply” with the “provisions of this part” will not prevent the state attorney from proceeding against a person otherwise subject to the statute. The provisions of the section to which the subsection refers involve notice to the multidisciplinary team, with a copy to the state attorney, of certain details regarding an individual who has been convicted of a sexually violent offense, including deadlines for the notice, specification of information to be contained in the notice, establishment of the multidisciplinary team, deadlines for its written assessment, and other time frames to be met by the state attorney.
[11] The entire statute is predicated on the inmate being in custody, as is evidenced by its very title, which includes the words “Notice to state attorney and multidisciplinary team of release.”This is also an appropriate consideration because the title of an act is properly considered in determining legislative intent. See Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So.2d 176, 182 (Fla.2007). Based on the text of section 394.913(4) and the provisions contained in the larger part to which it refers, we conclude that the provisions of this section for which compliance is waived by subsection (4) deal only with time frames for notice of the inmate’s release, the composition, duties and deadlines for the multidisciplinary team, and other specific matters relating to the assessment of the person-not the fact of the release or status of custody.
*9 We now turn to section 394.9135(4). Even though section 394.9135 is replete with references to the individual being in custody, the First District read the provisions of section 394.9135(4) to dispense with all custody requirements in the section. A close reading of the actual text of subsection (4), however, shows that it refers only to “failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense.Ӥ 394.9135(4), Fla. Stat. (2004) (emphasis added). The time limitations in section 394.9135 all pertain to actions that occur after the inmate has come into the custody of the Department of Children and Family Services directly from his or her incarcerative sentence, to be held in a secure facility by that department. The subsection (4) jurisdictional disclaimer, when given a plain reading in the context of the entire statute, can refer only to the two sections that provide time limitations-subsection (2) (seventy-two hours for the multidisciplinary team to make an assessment) and subsection (3) (forty-eight hours for the state attorney to file the petition).FN6 The only time limitation in section 394.9135 that would result in release if not met is the requirement that the state attorney file the petition within forty-eight hours pursuant to subsection (3). If the state attorney fails to file the petition within forty-eight hours after receipt of the written assessment, and the individual is released, subsection (4) would allow the state attorney to file a petition after the release. However, this jurisdictional disclaimer does not come into play until after the individual has been kept in secure custody by the Department of Children and Family Services, after a multidisciplinary team has made an assessment, and after the state attorney has failed to comply with a time limitation applicable to the filing of the petition, where that failure has resulted in the offender’s release. The Legislative intent of section 394.9135(4) appears to be a “safety valve” solely to prevent persons from bringing challenges to civil commitment proceedings on technical grounds, such as the giving of late notice of the anticipated release that is mandated by section 394.9135(1)(a) or the late filing by the state attorney. The status of an inmate who has been lawfully released and is no longer in custody, where no steps have been taken in the commitment process, is no mere technical requirement that the Legislature has indicated is waived under subsection (4).
[12] Therefore, based on the actual text of the jurisdictional disclaimer, the legislative intent of section 394.9135(4) is that the state attorney retains the right to file a petition even if the person is released as a result of the state attorney’s failure to comply with the forty-eight hour time limitation after the multidisciplinary team has acted. This is also supported by the title of the section: “Immediate releases from total confinement; transfer of person to department; time limitations on assessment, notification, and filing petition to hold in custody; filing petition after release.” § 394.9135, Fla. Stat. (2004) (emphases added); see Horowitz, 959 So.2d at 182. Even under the circumstances described in section 394.9135 where the person is released as a result of the state attorney’s failure to comply with the time limitations, steps in the commitment proceedings would have already been taken while that person was still in custody, pursuant to sections 394.9135(1) and (2). Thus, the jurisdictional disclaimer contained in section 394.9135(4) should not be extended beyond its actual text to dispense with the custody requirement where no steps in the proceedings have been initiated.
*10 [13][14] Neither section 394.913(4) nor section 394.9135(4) can be read in isolation. Rather, all parts of each statute should be read together, as we have endeavored to do in this analysis, in order to achieve a consistent whole. GTC, Inc., 967 So.2d at 787. This is in accord with the principle that “[e]very statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.”Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (quoting Fleischman v. Dep’t of Prof’l Reg., 441 So.2d 1121, 1123 (Fla. 3d DCA 1983)). This requires us, as we have done here, to “look not only to the words themselves but also to ‘the context in which the language lies.’ “  Horowitz, 959 So.2d at 182 (quoting Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995)).
[15][16][17] To construe sections 394.913(4) and 394.9135(4) to allow proceedings to be initiated after a person has been released from custody and is living in society, where no part of the process was begun while the person was in lawful custody, would require us to look only at those discrete subsections in isolation; and under the construction placed on the provisions by the First District, would also render without effect the other, detailed requirements of sections 394.913 and 394.9135. This would violate the “basic rule of statutory construction … that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.”Goode, 830 So.2d at 824. We cannot read a statutory subsection in isolation, “but must read it within the context of the entire section in order to ascertain legislative intent for the provision.”ContractPoint Fla. Parks, LLC, 986 So.2d at 1265. We conclude that when each statutory section is read in context, as a whole, to give effect to every clause, it is apparent that the jurisdictional disclaimers contained in the two subsections are not intended to and do not waive or dispense with the underlying requirement, otherwise clearly present in the Act, that the individual against whom commitment proceedings are brought must be in lawful custody when steps are taken to commence those proceedings in order for the circuit court to have jurisdiction.
Tanguay v. State
The First District also relied on the decision of Tanguay v. State, 880 So.2d 533 (Fla.2004), in reaching its decision in this case and the State relies on Tanguay here. Therefore, we must conduct a careful examination of that precedent to determine if it controls our decision in this case. For the reasons explained below, we conclude that Tanguay does not determine the question before the Court.
In Tanguay, the individual was actually in custody, although the custody was found to be unlawful. In holding that the circuit court had jurisdiction to adjudicate the commitment petition under the statute in effect at that time, a plurality of this Court in Tanguay stated that there was no “in custody” requirement in the applicable statute, specifically section 916.35(1), Florida Statutes (Supp.1998).880 So.2d at 537. That section provided: “If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall direct that the person be taken into custody and held in an appropriate secure facility.”§ 916.35(1), Fla. Stat. (Supp.1998) (emphasis added). In its holding in Tanguay, the plurality Court specifically pointed out that it was dealing with a version of the Jimmy Ryce Act that existed prior to its amendment in 1999. Tanguay, 880 So.2d at 535. Significantly, the statute in effect in Tanguay spoke in terms of the individual being “taken into custody,” a provision that does not appear in the text of the current section 394.915 or 394.9135.
*11 In 1999, the Jimmy Ryce Act was moved to chapter 394 and former section 916.35 was renumbered to section 394.915. Seech. 99-222, § 9, Laws of Fla. Although the title of section 394.915 remained the same, and includes the reference to “respondent taken into custody” as did the title to section 916.35, the text of section 394.915 was amended and no longer refers to the person being “taken into custody.” Instead, section 394.915 states:
(1) When the state attorney files a petition seeking to have a person declared a sexually violent predator, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person’s incarcerative sentence expires.
(2) Upon the expiration of the incarcerative sentence and before the release from custody of a person….
§ 394.915, Fla. Stat. (2004) (emphases added). Moreover, former section 916.35 made no reference to the expiration of the person’s incarcerative sentence, as does the amended version of the statute.FN7
Section 394.9135 was also added in 1999, providing procedures to be followed where the anticipated release of an inmate from total confinement becomes immediate for any reason-statutory procedures which were not applicable to the Court’s decision in Tanguay. Seech. 99-222, § 7, Laws of Fla. Since the Legislature added a section providing for special procedures where immediate release is anticipated, and amended section 394.915 to state that the person “remain in custody” rather than be “taken into custody,” there is no longer any statutory basis on which to hold that there is no “in custody” requirement in the Jimmy Ryce Act. Accordingly, Tanguay does not control our construction of the 2004 statutes or the jurisdictional disclaimers, first, because section 394.9135 now clearly spells out what is to occur when an inmate is to be immediately released and is expressly premised on the inmate being in custody; second, because section 394.915 has been amended to state that the person for whom probable cause has been found will “remain” in custody; and finally, because Tanguay was a plurality opinion and construed a statute that has now been amended to expressly refer to the person being in custody.
[18] Moreover, it is important to remember that nothing in the Jimmy Ryce Act expressly grants a circuit court jurisdiction over a commitment petition filed against a person not in lawful custody when the proceedings were initiated. We have previously interpreted the term “custody” as used in the Jimmy Ryce Act to mean “lawful custody.”  See Atkinson, 831 So.2d at 174 (holding that the Jimmy Ryce Act is limited to persons who were in lawful custody on its effective date). As we stated in Atkinson in interpreting the “applicability” provision of the Act, “[a] basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences” and “[i]t would be contrary to the basic tenets of fairness and due process” to interpret provisions of the Act as requiring only actual custody.”  Id. Similarly, interpreting the Jimmy Ryce Act as not requiring lawful custody for individuals who had been incarcerated at some point after the effective date of the Act but are not in lawful custody when commitment proceedings are initiated would be contrary not only to the overall intent of the Act but “would be contrary to the basic tenets of fairness and due process.”Id. Therefore, we will also consider, as we did in Atkinson, whether our interpretation of the Act is in accord with fairness and due process considerations.
Due Process Considerations
*12 [19] In accordance with our precedent, we must read the provisions of the Act consistent with basic tenets of fairness and due process. See Atkinson, 831 So.2d 172, 174. We conclude that our reading of the Act is consistent with due process considerations. The Florida Legislature modeled the Jimmy Ryce Act after Kansas’s similar statutory scheme. Goode, 830 So.2d at 821. In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the United States Supreme Court held that Kansas’s Sexually Violent Predator Act “comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking.”521 U.S. at 371, 117 S.Ct. 2072. A plurality of this Court likewise found the Jimmy Ryce Act to be constitutional in Westerheide. 831 So.2d at 112 (plurality opinion); id. at 113 (Quince, J., concurring in result only); id. at 114 (Pariente, J., concurring in part and dissenting in part).
Although we upheld the constitutionality of the Jimmy Ryce Act in Westerheide, we have repeatedly emphasized the importance of procedural safeguards and time constraints within the Act to ensure that an individual’s constitutional rights are protected. For example, this Court’s plurality opinion in Westerheide noted the “range of procedural safeguards” provided by the Act, including the assistance of counsel and mental health professionals, the right to a jury trial, the right to appeal, at least an annual review of the person’s condition, the right to petition for release, and the State’s burden of proving by clear and convincing evidence that the person requires commitment. 831 So.2d at 105;see also§§ 394.916(3)-(5), 394.917(1), (3), 394.918, 394.920, Fla. Stat. (2004).
[20] As repeatedly recognized by the United States Supreme Court, “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). We explained in Goode,“Civil commitment proceedings involve a serious deprivation of liberty and, thus, such proceedings must comply with the due process clauses of the Florida and United States Constitutions.”830 So.2d at 825-26. We noted in Goode that under the statutory scheme, “the State would have multiple opportunities to initiate and pursue these commitments before the respondent’s criminal sentence expires” and “when circumstances cause a legitimate delay but the inmate is scheduled to be released, the statute provides that a person can still be detained pending trial.”Id. at 826 & n. 8.
In Mitchell v. State, 911 So.2d 1211 (Fla.2005), we reiterated a concern we expressed in Goode that while “the Legislature intended that ‘the review process of potential sexual predators would be concluded while the person was still in prison’… ‘there is evidence that in practice this is not occurring and that often people are being detained for long periods after their scheduled release date without being taken to trial.’ “  Mitchell, 911 So.2d at 1219 (quoting Goode, 830 So.2d at 825 & n. 7). We further “emphasize[d] that the State should make every effort to initiate the commitment trial ‘well in advance of the [detainee's] date of release from prison[, so that] the due process concerns of commitment beyond imprisonment would be substantially alleviated.”  Mitchell, 911 So.2d at 1219 (quoting Goode, 830 So.2d at 826).
*13 Finally, in Kephart v. Hadi, 932 So.2d 1086 (Fla.2006), we examined the Jimmy Ryce Act’s “numerous safeguards to ensure that a prisoner’s due process rights are protected.”Id. at 1092.We explained, “The confinement of an individual past the expiration of his or her incarcerative sentence requires ‘scrupulous compliance’ with the Act’s requirements.”Id. at 1093.
Because the Jimmy Ryce Act, by its express terms, is founded upon the concept that the individual be in lawful custody when any portion of the commitment proceedings are initiated, and because of the due process considerations set forth above, we conclude that the Act requires that the individual be in lawful custody when commitment proceedings are initiated.FN8
CONCLUSION
Based on the foregoing analysis conducted in accord with our longstanding principles of statutory construction, we hold that an individual must be in lawful custody when the State takes steps to initiate commitment proceedings pursuant to the Jimmy Ryce Act in order for the circuit court to have jurisdiction to adjudicate the commitment petition. When effect is given to all the provisions of sections 394.913 and 394.9135, we conclude that the Legislature clearly intends that the individual be in lawful custody when steps are taken to initiate civil commitment proceedings under the Act. This is buttressed by the fact that the Legislature amended the Act to provide an expedited procedure where an inmate is to be immediately released. That amendment would not have been necessary if the Legislature did not fully intend for the proceedings to be initiated while the inmate was still in custody. We simply cannot construe each jurisdictional disclaimer subsection in isolation but must consider the entirety of not only each section but of the Act itself. After doing so, we find that the jurisdictional disclaimer provisions do not waive or dispense with the custody requirements of the Act.
[21] Accordingly, we quash the decision of the First District in Larimore and approve the decision of the Second District in Gordon.Because Larimore was not in legal custody when initial steps were taken to initiate civil commitment proceedings against him in this case, the State’s commitment petition is hereby dismissed with prejudice and Larimore shall be immediately released from any custody or commitment imposed as a result of the Jimmy Ryce Act proceedings that are the subject of this decision.
It is so ordered.
QUINCE, C.J., and ANSTEAD, and LEWIS, JJ., concur.
WELLS, J., dissents with an opinion.
CANADY and POLSTON, JJ., did not participate.
WELLS, J., dissenting.
I would approve the well-reasoned decision of the First District Court of Appeal in this case, which I conclude correctly applied the statute as intended by the Legislature.
FN1. “Agency with jurisdiction” is defined in section 394.912(1), Florida Statutes (2004), as follows:
[T]he agency that releases, upon lawful order or authority, a person who is serving a sentence in the custody of the Department of Corrections, a person who was adjudicated delinquent and is committed to the custody of the Department of Juvenile Justice, or a person who was involuntarily committed to the custody of the Department of Children and Family Services upon an adjudication of not guilty by reason of insanity.
§ 394.912(1), Fla. Stat. (2004). This definition of “agency with jurisdiction” presupposes that the person is in custody.
FN2. “Total confinement” is defined in section 394.912(11), Florida Statutes (2004), as follows:
[T]he person is currently being held in any physically secure facility being operated or contractually operated for the Department of Corrections, the Department of Juvenile Justice, or the Department of Children and Family Services. A person shall also be deemed to be in total confinement for applicability of provisions under this part if the person is serving an incarcerative sentence under the custody of the Department of Corrections or the Department of Juvenile Justice and is being held in any other secure facility for any reason.
§ 394.912(11), Fla. Stat. (2004).
FN3.Section 394.913(1) provides in pertinent part:
Except as provided in s. 394.9135, the written notice [to the multidisciplinary team] must be given: (a) At least 545 days prior to the anticipated release from total confinement of a person serving a sentence in the custody of the Department of Corrections, except that in the case of persons who are totally confined for a period of less than 545 days, written notice must be given as soon as practicable.
§ 394.913(1), Fla. Stat. (2004).
FN4. This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of Florida, which added section 394.9135. The Florida Senate Committee on Children and Families’ staff analysis stated that the section addresses situations where, “because of unforeseen circumstances, it is anticipated that a person’s release from total confinement will become immediate. This section … would assist in dealing with cases such as when inmates successfully challenge gain-time and early release statutes and win early judicially mandated release from prison.”Fla. S. Comm. on Child. & Fams., CS for SB 2192 (1999) Staff Analysis 25 (Mar. 30, 1999) [hereinafter Child. & Fams. Comm. SB 2192 Analysis]; see also Fla. S. Comm. on Judiciary, CS for SB 2192 (1999) Staff Analysis 12 (Apr. 8, 1999) (stating that section 394.9135“provide[s] an expedited involuntary civil commitment process for a person whose release becomes imminent due to factors such as successful gain-time challenges and early release statutes”) [hereinafter Judiciary Comm. SB 2192 Analysis]. The section is intended to assist the Department of Children and Families and state attorneys with expediting cases in such circumstances. Child. & Fams. Comm. SB 2192 Analysis at 25; Judiciary Comm. SB 2192 Analysis at 12.
FN5.Section 394.915(1) provides:
When the state attorney files a petition seeking to have a person declared a sexually violent predator, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person’s incarcerative sentence expires.
§ 394.915(1), Fla. Stat. (2004) (emphases added).
FN6. The Senate staff analyses support this reading of the section. The Florida Senate Committee on Children and Families’ staff analysis explains:
If the state attorney does not file a petition within 48 hours after receipt of the written assessment and recommendation from the team, the person must be immediately released from custody. However, simply because a person is released from custody because the petition was not filed within 48 hours does not mean that it would be dispositive of the case. Rather, the state attorney may still file a petition in the case and follow the procedures set out in the act to involuntarily commit a sexually violent predator. It is anticipated that if the person is released because the state attorney did not file a petition within 48 hours, a person could be taken back into custody and be held in an appropriate secure facility until there is a trial verdict if the judge finds probable cause on a late-filed petition.
Child. & Fams. Comm. SB 2192 Analysis at 25 (emphases added). Similarly, the Florida Senate Committee on Judiciary staff analysis explains:
If the state attorney does not file a petition within 48 hours after receipt of the written assessment and recommendation from the team, the person must be immediately released from custody. However, the state attorney retains the discretion to file a petition at any later time against the person subject to the Act.
Judiciary Comm. SB 2192 Analysis at 12 (emphases added).
FN7. In discussing the effect of a jurisdictional disclaimer contained in section 916.33, the predecessor statute to section 394.913(4), the Tanguay Court explained the provision in terms relating only to the failure to meet certain specified time deadlines:
The Legislature expressly provided that the requirements of section 916.33 are not jurisdictional and that failure to comply with these requirements would not prevent the State from proceeding under the Act.Id.  § 916.33(1). Therefore, if the State fails to strictly adhere to the provisions of this section (i.e., if the State does not provide the multidisciplinary team with notice precisely within 180 or ninety days, or if the multidisciplinary team fails to provide its recommendation within forty-five days ), the State may still proceed against the person.
Tanguay, 880 So.2d at 536 (emphasis added).
FN8. In this case Larimore’s entire resentencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody an order for immediate release for any reason. That issue is not before us.

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STATE of Florida, Petitioner, v. Robert RABEDEAU, Respondent. No. SC08-144

Thursday, January 29th, 2009

Supreme Court of Florida.
STATE of Florida, Petitioner,
v.
Robert RABEDEAU, Respondent.
No. SC08-144.
Jan. 29, 2009.
Application for Review of the Decision of the District Court of Appeal-Certified Direct Conflict of Decisions, Fifth District-Case No. 5D07-1105, (Brevard County).
Bill McCollum, Attorney General, Tallahassee, Florida, Mary G. Jolley and Wesley Heidt, Assistant Attorneys General, Daytona Beach, Florida, for Petitioner.
James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Respondent.
PER CURIAM.
*1 This case is before the Court for review of the decision of the Fifth District Court of Appeal in Rabedeau v. State, 971 So.2d 913 (Fla. 5th DCA 2007). The district court certified that its decision is in direct conflict with the decision of the Second District Court of Appeal in Gisi v. State, 948 So.2d 816 (Fla. 2d DCA 2007).Rabedeau, 971 So.2d at 914. We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const. We approve the Fifth District’s holding that defendants who are sentenced to concurrent terms in multiple cases are entitled to credit for time served in each of the cases upon resentencing, and we disapprove of the decision to the contrary in Gisi.
Proceedings to Date
The Fifth District’s opinion outlines the facts and proceedings leading up to this Court’s review:
Rabedeau was originally convicted of three counts of lewd and lascivious conduct-all second degree felonies. For those convictions, he was ordered to serve three concurrent two-year terms of community control, followed by three concurrent thirteen year terms of probation. He subsequently violated his community control and was sentenced to three concurrent five year prison terms, followed by three concurrent nine year terms of probation. After Rabedeau completed his prison term, the State filed an affidavit alleging that he had violated several conditions of his probation. Rabedeau ultimately entered a guilty plea to the violation of probation charges. The trial court sentenced Rabedeau to three consecutive ten year prison terms. Rabedeau was given credit for the five years already served in prison as to only one of the three counts.
Rabedeau subsequently filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). He contended he was entitled to five years of prison term credit on each of the three counts. Bound by the Gisi decision, the trial court denied Rabedeau’s motion.
Rabedeau, 971 So.2d at 914. The Fifth District, relying on the decisions and opinions in Singletary v. Slay, 688 So.2d 319 (Fla.1997); Turner v. State, 967 So.2d 962 (Fla. 1st DCA 2007); and Swain v. State, 845 So.2d 314 (Fla. 2d DCA 2003), reversed the trial court’s decision and held that Rabedeau was entitled to credit for time served on his concurrent sentences in each of the three cases for which consecutive sentences were subsequently imposed after he violated probation. Rabedeau, 971 So.2d at 914.
In a succinct opinion by Judge Evander, the Fifth District explained its ruling: “Because his sentences ran concurrently, Rabedeau completed the incarcerative portion of each sentence. Accordingly, he is entitled to credit on each sentence.”Id. We agree and approve the Fifth District’s opinion and decision, and disapprove the Second District’s earlier and conflicting decision in Gisi denying a defendant credit for time served concurrently on multiple sentences when the defendant was resentenced in those same cases.
ANALYSIS
*2 When a criminal defendant is sentenced after being convicted of a crime and serves some portion of that sentence, he or she is entitled to receive credit for the actual service of that sentence, or any portion thereof, in a resentencing for the same crime. Likewise, if multiple convictions result in concurrent sentences, credit must be awarded for time served on each sentence in any resentencing for the multiple convictions. The word “concurrently” simply means “at the same time,” and by imposing sentences to be served concurrently, a trial court is permitting a defendant to serve multiple sentences at the same time.
We reject the Second District’s contrary holding in Gisi and its characterization of a concurrent sentence as a “legal fiction.”  See Gisi, 948 So.2d at 819. There are a multiplicity of valid reasons why a trial court may properly exercise its discretion to have multiple sentences served concurrently rather than consecutively. Hence, concurrent sentences are a valid legal sentencing option rather than a legal fiction. As the Fifth District explained here:
We disagree with Gisi’s conclusion that acceptance of the defendant’s argument would “elevate a legal fiction into a reality.”[948 So.2d] at 819. By its very nature, concurrent sentences enable a defendant to serve two or more sentences at a single time. Consider, for example, if Rabedeau had originally been sentenced to three concurrent five year prison terms without probation to follow. Upon serving the five years in prison, Rabedeau would clearly be found to have completed his five year prison sentence as to each of the three felony offenses, not just as to one offense. Such a result would not be considered an elevation of a legal fiction into reality even though the defendant served five, not fifteen, years in prison.
Rabedeau, 971 So.2d at 914-15. Rabedeau completed the incarcerative portion of his split sentences on each of his three convictions by serving five years on each sentence that was ordered to be served concurrently. As the Fifth District noted, but for the probationary term of nine years on each count (also imposed concurrently), Rabedeau would have actually completed his sentences in all three cases.
On the other hand, the Second District in Gisi, by failing to recognize Gisi’s entitlement to credit for time served for each of the multiple sentences imposed and ordered to be served concurrently by the trial court, effectively voided the trial court’s decision to allow multiple sentences to be served concurrently. The Second District failed to recognize that once concurrent sentences were imposed, and Gisi began serving those sentences, his entitlement to credit for time served on each sentence was established in the same way that his entitlement would be established in a single case that was returned for resentencing. Once a defendant actually serves the time, credit naturally, and legally, follows.FN1
FN1. In Gisi, the Second District certified the question of a defendant’s entitlement to credit for prison time served on concurrent sentences upon resentencing for the same convictions: “Is a defendant, on resentencing, entitled to credit on each newly imposed consecutive sentence for prison time already served on the original concurrent sentences?”Gisi, 948 So.2d at 820. By our approval of the Fifth District’s decision today we have answered that question in the affirmative.
*3 Accordingly, we affirm and approve the decision of the Fifth District in Rabedeau and disapprove the Second District’s decision in Gisi.
It is so ordered.
QUINCE, C.J., WELLS, PARIENTE, and LEWIS, JJ., and ANSTEAD, Senior Justice, concur.
CANADY, J., dissents.
POLSTON, did not participate.

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Charles C. PETERSON, Appellant, v. STATE of Florida, Appellee. No. SC06-252

Thursday, January 29th, 2009

Supreme Court of Florida.
Charles C. PETERSON, Appellant,
v.
STATE of Florida, Appellee.
No. SC06-252.
Jan. 29, 2009.
An Appeal from the Circuit Court in and for Pinellas County, Linda R. Allen, Judge-Case No. CRC 00-05107 CFANO.
J. Marion Moorman, Public Defender, and Andrea M. Norgard, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
Bill McCollum, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee.
PER CURIAM.
*1 This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death arising from the fatal shooting of John Cardoso during a robbery on December 24, 1997. We have jurisdiction. Seeart. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the conviction and sentence.
I. FACTS AND PROCEDURAL HISTORY
The evidence presented at the trial of appellant Charles C. Peterson established the following. Karen Smith testified that she worked as an assistant manager at a Big Lots in St. Petersburg, Florida, on the evening of December 24, 1997. She testified that while she and two other employees were in the store’s office after the store closed at 6 p.m., she heard a “ruckus.” She explained that when she opened the locked office door, she was immediately confronted by a man pointing a gun at her. Maria Soto, who also worked as an assistant manager at the Big Lots on December 24, 1997, testified that while she was in the office after closing, she heard a noise from the break room that sounded like furniture banging or firecrackers. Soto confirmed that when Smith opened the door to investigate the noise, “[w]e walked right into a man with a nylon stocking [covering his face] and a gun in his hand.”Smith described the man as black, about five feet four inches or five feet six inches tall, weighing 130 to 140 pounds, with “pudgy cheeks.” He wore a “nylon scarf” over his face and off-white latex gloves. Soto described the man as black, between five feet six inches and five feet eight inches tall, and noted that he wore latex gloves.
Both witnesses testified that the man escorted the three employees from the office through the employee break room into the stockroom. The man held the gun to Smith’s head as they walked. Smith testified that John Cardoso, another employee, was lying on the floor of the break room when they entered. Soto testified that the man forced her and the other employees to step over Cardoso. Once in the stockroom, the three women and Josh McBride, another employee who had entered the stockroom, were made to get down on their hands and knees. Smith testified that the man repeatedly told them to “stay on your hands and knees you bitches and don’t look at me.”Soto testified that the man put the gun to her temple and told her not to look at him. After asking who was in charge, the man pulled Smith to her feet and told the others that “if [they] moved, he will kill her and anyone else.”Smith explained that the robber used her to lure the remaining store employee, Wanda Church, to the back of the store, after which he took Church to the stockroom. The man then forced Smith to go into the office with him. The man took a backpack from the merchandise area of the store and had Smith fill it with money. He stated that he wanted “all of the large money.” He told Smith to “hurry up you bitch” and demanded that she not look at him. Smith testified that after collecting money from the office, the man moved everyone into the break room and made them lie on the floor near Cardoso’s body. The man then exited through the store’s back emergency exit, which he previously had Smith unlock. After the man left, Soto and Church got up to seek help.
*2 Officer Richard L. McKee, of the City of St. Petersburg Police Department, testified that when he arrived at Big Lots at approximately 6:30 p.m. on December 24, 1997, he found a shooting victim lying face down in a break room and three other individuals who appeared to be in shock also lying face down in the room with their hands behind their heads.
Dr. Noel Palma, Associate Medical Examiner for Pinellas and Pasco Counties, testified as an expert in forensic pathology on behalf of the State. He testified that the cause of Cardoso’s death was a gunshot wound to the trunk. He testified that there were abrasions and contusions on the victim’s right back, arm, and hand that appeared to have been inflicted shortly before or certainly within the same day as death. Dr. Palma explained that a bullet entered Cardoso’s left back and was recovered from the right lobe of his liver, indicating that the bullet had traveled left to right, back to front, and downward across the body. Dr. Palma opined that given the soot pattern on the victim’s shirt, the gun muzzle was less than a foot from the victim when fired.
Smith testified that during the investigation of this crime, she identified the robber in a photopack shown to her by law enforcement officers. Although she could not previously identify the assailant, at trial Soto identified Peterson as the man she suspected of stealing from the Big Lots during operating hours on December 24, 1997, who she believed was the same man who later robbed the store because both men appeared to be wearing the same clothing that day. James Ronald Davis, who was a customer in Big Lots between 5:30 p.m. and 6 p.m. on December 24, 1997, testified that while shopping he encountered a black male pacing in the back aisle of the store. Davis testified that he observed the man for about five minutes and described him as five feet nine inches or five feet ten inches tall with a medium build and thin mustache. Davis stated that when he went to the front of the store to pay for his items two or three minutes after the last checkout announcement, the man remained in the back of the store. Davis testified that although he did not think he could identify that man from the store at the time of trial, in 1998 he identified Peterson from a photopack as the man he saw lingering in the back of Big Lots at closing on December 24, 1997.
Several law enforcement personnel associated with the City of St. Petersburg Police Department testified about the search of two residences pursuant to search warrants. One residence was the home of Peterson’s father, and the other was the home of Peterson’s sister. Two pieces of grayish-black nylon stockings were seized from a dresser in a bedroom of his father’s house. Three latex gloves were seized from a kitchen drawer in his sister’s house. A gray nylon cap and a piece of nylon stocking were found in vehicles owned and operated by Peterson.
Janet Staples Hillman Gosha, Peterson’s former girlfriend, testified that sometime between 1996 and September 1998, when looking for cleaning supplies, she found cash in bank wrappers in a box underneath the sink in their home. She testified that she saw money inside a safe at their residence that was not hers and that she once found a small, silver gun in a bedroom drawer with some of Peterson’s belongings. She stated that the gun did not belong to her or her adult son. She explained that while she drove one of Peterson’s vehicles when she lived with Peterson, she did not leave pantyhose in the car and that she did not recall Peterson wearing a wave cap or processing his hair in a manner that would require use of a wave cap.
*3 In addition, pursuant to Williams v. State, 110 So.2d 654, 663 (Fla.1959), the State presented evidence that Peterson had robbed a Family Dollar, a Phar-Mor, and a McCrory’s in the greater Tampa/St. Petersburg area between February of 1997 and August 1998.
Mary Palmisano, an employee who worked at a Family Dollar in Tampa, Florida, on February 14, 1997, testified that after she locked the doors that evening, she went into the store’s office and encountered a man with a gun. She stated that the man was black, about five feet eight inches or five feet ten inches tall and was wearing a mask that appeared to be made of thick stockings. Palmisano testified that the man asked for “big money,” referred to her and her female coworker as “bitches,” and repeatedly told them to not look at him. The man made her and her coworker lie face down on the floor and tied them up with cords from the office.
In order to avoid admitting unfairly prejudicial evidence of a sexual battery, the trial court read a stipulation that DNA was recovered in the Family Dollar crime. Testing revealed that this DNA matched Peterson’s known DNA sample.
Two employees of a St. Petersburg Phar-Mor testified about events in that store on May 12, 1998. Glendene Day testified that shortly after closing, she was confronted by a person in the storeroom who was not an employee. She described the person as a black male, about five feet six inches or five feet seven inches tall, medium build, wearing a mask, and carrying a gun. Day further described the mask as being made of black nylon that was “thin enough to see out of but thick enough that I couldn’t see in.”She stated that the man wore latex gloves, a black shirt, and tennis shoes. She explained that the man put the gun to her head, ordered her not to look at him, asked how many other employees were in the store, and told her she better not be lying. The man forced Day to call the other employees to the back room, where he ordered them to lie on the ground and used electrical tape, plastic strapping from boxes, and telephone cord to tie up two of the employees. Rather than bind Day, the man told her to walk him to where the money was kept. The man forced Day to unlock the office. He took manila envelopes from the office and directed Day to fill them with money. After gathering the money, she and the robber returned to the back room. The man made Day demonstrate that no alarm would sound when he opened the back exit and then bound Day with plastic strapping and telephone cord. The other employee to testify, Sirisone Vorasane, confirmed that after closing she was called to the warehouse, where she was confronted by an armed man who told her and her coworker to lie on the floor with their faces down and tied her hands and legs with plastic box ties. She described the man as “not that tall” with a petite build.
A hair was found on a piece of electrical tape used to bind a Phar-Mor employee. Testing of the hair established that mitochondrial DNA extracted from the hair was consistent with Peterson’s known mitochondrial DNA profile. Shoe prints matching tennis shoes seized from a storage unit rented by Peterson were found in the Phar-Mor office. Gosha testified that in May 1998 she was asked by law enforcement officers to watch a surveillance video from the Phar-Mor robbery. At that time, she identified the person entering the store as Peterson. The surveillance tape was played for the jury, and Gosha again identified the person she saw in the tape as Peterson. Similarly, Ron T. Hillman, Gosha’s brother, testified that he was previously asked by law enforcement officers to watch part of the Phar-Mor surveillance tape and that he identified the person he saw as Peterson. While on the stand, Hillman was shown the tape and again identified Peterson.
*4 Ann Weber, an employee who worked at a St. Petersburg McCrory’s on August 29, 1998, testified that just before 6 p.m., she went to the back of the store to have a cigarette and throw out the trash. When she walked through the dark stockroom, a man wearing a stocking over his face came out of the employee bathroom. Weber described the man as having “high, pudgy cheek bones.” She testified that the man held a small gun to her head and said, “Don’t fucking look at me or I’ll kill you.”Weber explained that the man asked her to deactivate the buzzer on the office door and then made her enter the office, crawl up the steps to where the money was kept so that no one in the store would see her, and open the safe. When Weber began to take the money out of the bags in which it was kept, the man said, “No, you stupid bitch.” Weber testified that the man asked her, “You close at six, right?” Upon being told that McCrory’s was open until 8 p.m., the man became “aggravated.” Weber testified that after collecting the money, the man took her to the employee bathroom, made her lie face down, and asked if there was any rope. He exited the store through the back door. Weber testified that she identified her assailant from a photopack during the investigation of the robbery and identified Peterson in the courtroom as the man who had robbed her. She explained that she was able to see his face through the stocking when she first encountered him because she was using a lighter to light her cigarette.
A law enforcement officer testified that when searching the home of Peterson’s father, he found a green bank bag behind a refrigerator in the garage. Inside the bag, he found a white plastic McCrory’s bag; about thirty documents including checks, a bank deposit slip, charge card receipts with McCrory’s store number; an air freshener with a fifty-cent price tag; a McCrory’s receipt for fifty cents; a $20 bill; and what appeared to be a firearm but was actually a pellet gun. Weber identified the green bank bag as the one kept in the McCrory’s safe and all the recovered documents as things that would have been kept in the bag-except the McCrory’s receipt for fifty cents. A latent print examiner testified that a fingerprint and a palm print matching Peterson’s were found on a check and the receipt.
On July 27, 2005, the jury found Peterson guilty of first-degree murder by general verdict. The trial court conducted a one-day penalty phase during which the State and the defense presented evidence.
During the State’s presentation, the parties stipulated that Peterson had been convicted previously of thirteen felonies involving the use or threat of violence, including multiple convictions for robbery with a firearm, sexual battery, and false imprisonment, resulting in nine life sentences. The parties also stipulated that Peterson was on life parole from March 3, 1992, through October 20, 1998, which included December 24, 1997, the date of the homicide. The State then presented the testimony of one witness. Dale Smithson testified that he was on duty at a Jimmy Spur gas station in St. Petersburg, Florida, on April 30, 1981. Smithson explained that after locking the door at closing, he was confronted by a man with a gun who demanded money. The robber was later proven to be Peterson.
*5 The defense called two mental health professionals and three lay witnesses to testify. On direct examination, Michael Scott Maher, M .D., a physician and psychiatrist, testified that Peterson functioned at the level of a mid-teenager, fourteen to sixteen years of age. He opined that “Mr. Peterson does have some capacity to conform his behavior to the requirements of the law, but that capacity is less than an average adult, substantially less than an average adult .”Based on Peterson’s age and history of only minor infractions while in prison, Dr. Maher opined that Peterson is likely to be well-behaved in prison. On cross-examination, Dr. Maher testified that Peterson meets the criteria for antisocial personality disorder. He testified at length about the general characteristics of individuals with that disorder and whether Peterson displayed those characteristics. Dr. Valerie R. McClain, a forensic psychologist, testified that she performed IQ testing on Peterson and that his full-scale score on the Wechsler Adult Intelligent Scale was 77, placing him in the borderline range. On cross-examination, Dr. McClain testified that Peterson graduated from high school with a 2.0 grade point average.
Linda Dyer, a classifications supervisor and custodian of records for the Pinellas County Sheriff’s Office, testified that Peterson had received only one disciplinary report since he came into the custody of the Pinellas County Sheriff on January 19, 2001. She opined that one disciplinary report in that amount of time was a good record. Annie Peterson, Peterson’s mother, testified that she never heard of Peterson getting in trouble in school and that after graduation he joined the Army. She testified that while paroled, Peterson worked in food and beverage service at the Marriott Hotel for seven years, part of that time as a manager. Laquanda Monique Peterson, Peterson’s niece, testified that Peterson was like a father to her.
On July 29, 2005, the jury recommended the death sentence by an eight-to-four vote. After conducting a hearing pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993), and considering post-trial motions, the trial court followed the jury’s recommendation and sentenced Peterson to death. State v. Peterson, No. CRC00-05107-CFANO-I (Fla. 6th Cir. order filed Jan. 6, 2006) (Sentencing Order). The trial court found and assigned weight to three aggravating factors,FN1 one statutory mitigating factor,FN2 and five nonstatutory factors.FN3Id. at 4-15.
FN1. The aggravating factors were: (1) Peterson was under a sentence of imprisonment at the time of the murder-life parole for three 1981 robberies (assigned great weight); (2) Peterson was previously convicted of a violent felony, based on thirteen convictions, resulting in a total of nine life sentences (assigned great weight); and (3) Peterson committed the murder during the commission of a robbery (assigned significant weight).
FN2. The trial court found the age statutory mitigating factor, despite Peterson’s age of thirty-eight at the time of the offense, based on expert testimony that he functioned at the emotional level of a fourteen-to sixteen-year-old. This factor was given little weight.
FN3. The nonstatutory mitigating factors were: (1) Peterson had a low to normal IQ (assigned little weight); (2) Peterson had some limited mental impairment (assigned little weight); (3) Peterson had a good relationship with at least two family members (assigned some weight); (4) Peterson had a consistent work history (assigned some weight); and (5) Peterson had an exemplary disciplinary record in jail and likely will behave properly when placed in prison (assigned little weight).
In this appeal, Peterson argues that (A) the trial court erred by admitting evidence of three collateral robberies; (B) death by lethal injection constitutes cruel and unusual punishment; (C) his death sentence is disproportionate; (D) the trial court erred in denying defense counsel’s motion for a new penalty phase due to the presentation of evidence and argument that Peterson lacked remorse; (E) Florida’s capital sentencing process is unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584 (2002); and (F) the penalty-phase jury instructions unconstitutionally shifted the burden of proof to the defendant. In addition to considering Peterson’s arguments on appeal, this Court reviews the record to confirm that sufficient evidence supports the jury’s verdict. SeeFla. R.App. P. 9.142(a)(6).
II. ANALYSIS
A. Admission of Collateral Crime Evidence
*6 In Williams, this Court held that “evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion.”110 So.2d at 663. The rule has since been codified in section 90.404(2)(a), Florida Statutes (2005), which provides:
Similar fact evidence … is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
This Court has held that before admitting collateral crime evidence, the trial court must make four determinations: whether there is sufficient evidence that defendant committed the collateral crime; whether the collateral crime meets the similarity requirements necessary to be relevant; whether the collateral crime is too remote, so as to diminish its relevance; and whether the prejudicial effect of the collateral crime substantially outweighs its probative value. Robertson v. State, 829 So.2d 901, 907-08 (Fla.2002). In McLean v. State, 934 So.2d 1248, 1255 (Fla.2006), this Court explained the substantial similarity requirement, stating:
[I]n cases where the purported relevancy of the collateral crime evidence is the identity of the defendant, we have required “identifiable points of similarity” between the collateral act and charged crime that “have some special character or [are] so unusual as to point to the defendant.”Drake v. State, 400 So.2d 1217, 1219 (Fla.1981). This is because “[t]he mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared.”Id . Thus, “[a] mere general similarity will not render the similar facts legally relevant to show identity.”Id.
The Court considers both similarities and dissimilarities between the collateral crimes and the charged offense when reviewing whether “a sufficiently unique pattern of criminal activity [justifies] admission.”Peek v. State, 488 So.2d 52, 55 (Fla.1986) (quoting Chandler v. State, 442 So.2d 171, 173 (Fla.1983)). A trial court’s determination that evidence is relevant and admissible “will not be disturbed absent an abuse of discretion.”Taylor v.. State, 855 So.2d 1, 21 (Fla.2003) (quoting Sexton v. State, 697 So.2d 833, 837 (Fla.1997)).
Peterson does not dispute that he committed the collateral robberies. His appellate counsel informed this Court that Peterson was either convicted or pled guilty to each collateral robbery. Instead, Peterson argues that the Family Dollar, Phar-Mor, and McCrory’s robberies were not sufficiently factually similar to the charged offense to be relevant and that the collateral crime evidence improperly became a feature of the trial. After reviewing the record, we find that the trial court did not abuse its discretion in allowing the collateral crime evidence.
*7 In Rogers v. State, 511 So.2d 526 (Fla.1987), the defendant was charged with murdering a man as he exited a Winn-Dixie grocery store after attempting to rob the store. This Court found that evidence of two robberies committed subsequent to the charged homicide was admissible. The Court explained:
The trial court, listing the following similarities, correctly deemed the collateral-crimes evidence a “close, well-connected chain of similar facts” between all the robberies:
1) Target is a chain-type grocery store.
2) Robbery takes place just prior to closing.
3) Two white males involved, one slightly taller than the other. Both in the mid twenties or early thirties.
4) Both wear nylon stocking masks.
5) Each carries an automatic type firearm (handgun).
6) One robber directs his attention to the cash registers, while the other seeks out the office and office safe area containing cash receipts.
7) Both robbers direct patrons and employees to “lay on the floor.”
8) Unnecessary violence and physical contact with victims is sought to be avoided.
9) Bags are used to secure money, plastic or pillow cases.
10) Tom McDermid was one of two participants.
Id. at 531.Similarly, in Black v. State, 630 So.2d 609, 618 (Fla. 1st DCA 1993), the First District Court of Appeal affirmed the admission of evidence of two collateral robberies because while none of the similarities between the crimes were sufficiently unique on their own, when considered “in conjunction” they did rise to the level of uniqueness required for admission. The First District found dispositive that in each crime
large retail stores were robbed at the end of weekend business; store employees were confined, given similar instructions, and telephones were dismantled; the robber in each instance appeared to have some prior knowledge of the business premises and, the robber in each instance wore a ski mask, gloves, carried a large automatic pistol, and had the same physical characteristics.
Id. at 618.
Rogers and Black refute Peterson’s claim that the cumulative pattern of crimes in his case was insufficient to establish relevance. The four crimes in Peterson all involved characteristics similar to and as numerous as those found in Rogers and Black: (1) all robberies took place in discount stores; (2) all robberies took place just after closing (or when the perpetrator believed store was about to close); (3) the perpetrator hid in a nonpublic area of the store and waited for an employee to come to him; (4) the perpetrator was a black male of slight to medium build; (5) the perpetrator wore a nylon stocking mask covering his whole face; (6) the perpetrator carried a small firearm which he held to employees’ heads; (7) the perpetrator used an employee to obtain cash from the store’s office; (8) the perpetrator used materials from the store to secure the stolen money; (9) the perpetrator directed employees to lie on the floor; (10) the perpetrator directed employees to not look at him; (11) the perpetrator referred to store employees as “bitches”; and (12) the perpetrator exited through the store’s back exit. When the circumstances of the crimes are considered cumulatively, “identifiable points of similarity … pervade the compared factual situations” and point to the defendant. Drake, 400 So.2d at 1219.
*8 In addition, the Court in Rogers did not find the dissimilarity of a murder occurring in one attempted robbery where violence had been avoided in the other robberies to render the collateral crime evidence irrelevant. Thus, Peterson’s argument that the sexual batteries during the Family Dollar robbery and the homicide during the Big Lots robbery render the collateral crime evidence irrelevant is unpersuasive. The sexual batteries and homicide are material differences between the crimes that must be considered in evaluating the admissibility of the collateral crime evidence. However, the trial court did not abuse its discretion because the substantial similarities among the crimes greatly outweighed the dissimilarities.
We also conclude that the trial court did not abuse its discretion by allowing the collateral crime evidence to become a feature of the trial. In Conde v. State, 860 So.2d 930 (Fla.2003), this Court explained that relevant evidence of collateral crimes impermissibly becomes a feature of the trial when the evidence “ ‘transcend[s] the bounds of relevancy to the charge being tried’ and the prosecution ‘devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.’ “  Id. at 945 (quoting Williams v. State, 117 So.2d 473, 475 (Fla.1960)). The Court found that it is “not solely the quantity but also the quality and nature of collateral crimes evidence in relation to the issues to be proven” that determines whether it became a feature of the trial. Id. at 946.The quality at issue is the relevancy of the evidence, not whether it is physical evidence or testimony. The Court noted that it had previously affirmed the admission of extensive collateral crime evidence where that evidence was wholly probative of material issues, see, e.g., Wuornos v. State, 644 So.2d 1000, 1006-07 (Fla.1994) (affirming admission of evidence of six collateral murders), and that where the Court had reversed the admission of extensive collateral crime evidence, it did so because the evidence lacked relevance. See, e.g., Steverson v. State, 695 So.2d 687, 690-91 (Fla.1997) (holding admission of evidence of resisting arrest was reversible error because “blow-by-blow” account of law enforcement officer’s injuries and recovery was irrelevant to charged offense); Billie v. State, 863 So.2d 323, 329 (Fla. 3d DCA 2003) (finding evidence of irrelevant prior “bad acts” impermissibly became feature of trial).
More specifically in Conde, the Court found no error where the trial court allowed evidence concerning five collateral murders presented over the course of three days in the prosecution of a sixth murder. The Court explained that “the length of this testimony was unavoidable given the fact that five collateral crimes were involved.”860 So.2d at 946-47. The Court further explained:
Additionally, the record reflects that the State limited its evidence regarding the five prior murders: a single medical examiner was called to summarize from the records of numerous other examiners the cause-of-death evidence for all five murders; only one serologist, one DNA criminologist, and one trace-evidence specialist gave summary testimony regarding the DNA and fiber evidence linking the collateral crimes; and the State rapidly introduced collateral crime-scene testimony from eight detectives, including cross-examination, over the course of only six hours. As for photographs, the State introduced approximately five for each collateral murder, each of which had a specific purpose of establishing the similarity between the crimes. Given the trial court’s vigilance in its duty to ensure that the collateral crimes evidence did not become a feature of the trial, we find that no abuse of discretion occurred in the admission of this evidence. In so concluding, we place special emphasis on the fact that the trial court repeatedly instructed the jury as to the proper purpose of this Williams rule evidence each time it was introduced.
*9 Id. at 947 (footnote omitted). Similarly, in Wuornos, 644 So.2d at 1006 (quoting United States v. Beechum, 582 F.2d 898 (5th Cir.1978)), the Court found that evidence about six collateral murders was not needless “overkill” where the evidence was relevant to refuting Wuornos’s claim of self-defense.
In this case, the trial court did not err in allowing evidence of the three collateral robberies to be presented because, as discussed above, all of the collateral robberies were sufficiently similar to the charged crime to be probative of identity, which rendered the evidence relevant and admissible. Moreover, as in Conde, the State limited its presentation of collateral crime evidence. Many of the collateral crime witnesses testified briefly, and much of the testimony was unavoidable due to the number of robberies involved. The State limited the emotional impact of its presentation by having only four victims testify and cooperated with the trial court and the defense to ensure that unduly prejudicial evidence was not admitted. Importantly, none of the evidence in Peterson was offered merely to demonstrate Peterson’s criminal propensity-all of the evidence was directed at proving he committed the collateral crimes and that the crimes were similar to the charged offense. The collateral crime evidence in this case was not like the testimony about child abuse that was found to be more unfairly prejudicial than probative in Sexton v. State, 697 So.2d 833, 837 (Fla.1997), where the testimony “had no bearing upon Sexton’s treatment of” the child he forced to commit the murder and “Sexton was not on trial for the maltreatment of his children.”
Also as in Conde, the trial court was “vigilan[t] in its duty to ensure that the collateral crimes evidence did not become a feature of the trial.”860 So.2d at 947. The trial court scrupulously instructed the jury on the proper use of Williams rule evidence before each collateral crime witness and as an additional precaution gave a “hybrid”  Williams rule instruction before each witness that would be testifying about both the charged offense and the collateral crimes.
In conclusion, we agree with the finding of the Fourth District Court of Appeal in Townsend v. State, 420 So.2d 615 (Fla. 4th DCA 1982), that collateral crime evidence does not become the impermissible feature of the trial simply because it is voluminous. The trial court did not abuse its discretion by allowing the collateral crime evidence because it was probative of material issues and its probative value was not substantially outweighed by the danger of unfair prejudice.
B. Lethal Injection
Peterson argues that Florida’s lethal injection process is unconstitutional because it employs a three-drug protocol that may cause undue pain and because it does not require trained medical personnel to participate in the execution. These arguments have been rejected previously by this Court. See Lightbourne v. McCollum, 969 So.2d 326, 350 n. 22 (Fla.2007) (rejecting arguments about whether execution team members are “adequately experienced” and “medically qualified” and whether pancuronium bromide should be part of protocol because it is used for “purely cosmetic reasons”); see also Schwab v. State, 969 So.2d 318, 324-25 (Fla.2007) (affirming summary denial of claim challenging three-drug protocol because Schwab did not allege existence of any new evidence about the chemicals not considered in Lightbourne or Sims v. State, 754 So.2d 657, 668 (Fla.2000)). Peterson does not point to any new evidence supporting these arguments. Furthermore, this Court has held that the Supreme Court’s decision in Baze v. Rees, 128 S.Ct. 1520 (2008), does not require reconsideration of Lightbourne and Schwab.See Henyard v. State, 992 So.2d 120, 129 (Fla.), cert. denied,129 S.Ct. 28 (2008). Thus, Peterson’s claim is without merit. See Tompkins v. State, 33 Fla. L. Weekly S897 (Fla. Nov. 7, 2008) (listing cases where Court has rejected lethal injection claims that do not raise new issues).
C. Proportionality
*10 To ensure uniformity of sentencing in death penalty proceedings, this Court considers the totality of circumstances and compares each case with other capital cases. The Court does not simply compare the number of aggravating and mitigating circumstances. Taylor v. State, 937 So.2d 590, 601 (Fla.2006). Peterson argues that this Court’s decision to reverse the death sentence in Terry v. State, 668 So.2d 954 (Fla.1996), demonstrates that his death sentence is likewise disproportionate. This argument is without merit.
In Terry, the defendant was convicted of shooting a customer during a convenience store robbery. Despite the trial court finding no mitigation, the Court found the death sentence disproportionate because there was comparatively weak aggravation:
The first aggravator (a capital felony committed during the course of an armed robbery/pecuniary gain) is based on the armed robbery being committed by appellant when the killing occurred. The second aggravator, prior violent felony, does not represent an actual violent felony previously committed by Terry, but, rather, a contemporaneous conviction as principal to the aggravated assault simultaneously committed by the codefendant Floyd who pointed an inoperable gun at Mr. Franco. While this contemporaneous conviction qualifies as a prior violent felony and a separate aggravator, we cannot ignore the fact that it occurred at the same time, was committed by a codefendant, and involved the threat of violence with an inoperable gun. This contrasts with the facts of many other cases where the defendant himself actually committed a prior violent felony such as homicide.
Id. at 965-66.The aggravating circumstances in the instant case are weightier than those found in Terry.The robbery aggravator was based on similar facts, but unlike Terry, Peterson has been convicted of thirteen other violent felonies and was on life parole at the time of the murder. Peterson is a case “where the defendant himself actually committed a prior violent felony.”Terry, 668 So.2d at 966.
Moreover, the facts of this case are comparable to other murders during robberies where this Court has found the death sentence to be proportionate. For example, in Blake v. State, 972 So.2d 839, 842 (Fla.2007), this Court found the death sentence to be proportionate where the defendant confessed to law enforcement officers that he shot the owner and operator of a convenience store after entering the store to rob it. The trial court found three aggravating factors: previous conviction of another capital felony; that the defendant was under sentence of imprisonment; and that the defendant was engaged in an attempt to commit the crime of armed robbery. The Court distinguished Blake from Terry because the prior violent felony aggravating factor was based on a murder during a separate robbery, not a contemporaneous conviction. Blake, 972 So.2d at 848-49.
Similarly, in Mendoza v. State, 700 So.2d 670, 679 (Fla.1997), this Court held that the death penalty was proportionate for a murder during a robbery where the prior violent felony aggravating circumstance was based on an entirely separate armed robbery conviction, not a contemporaneous conviction. Notably, the only aggravating circumstances in Mendoza were previous conviction of a violent felony and that the murder was committed during the commission of a robbery, merged with the fact that it was committed for pecuniary gain. Unlike Peterson, Mendoza was not found to be under sentence of imprisonment at the time of the murder.
*11 Peterson argues that he should receive a life sentence due to the mitigation found in his case, but, again, we find Blake analogous. In that case, the trial court found one statutory mitigating factor-age at the time of the offense-and seven nonstatutory mitigating factors: appropriate courtroom behavior; loving, nonviolent relationship with his family; remorse; cooperation with law enforcement officers; coparticipant sentenced to life imprisonment; only one prior violent felony conviction; and good adjustment to confinement. This Court affirmed the imposition of the death sentence in Blake.Peterson’s limited mental impairment, consisting of a low to normal IQ and some difficulty in school, is the only type of mitigation present in Peterson that was not present in Blake.This mitigation is not sufficiently weighty to compel a life sentence in Peterson.Overall, given the factual similarities to Blake and Mendoza, we find the death sentence is proportionate in this case.
D. Evidence and Argument about Lack of Remorse
Peterson argues that the trial court erred by allowing the State to introduce evidence indicating that Peterson lacked remorse and by allowing the State to argue lack of remorse during closing arguments. “The admissibility of evidence is within the sound discretion of the trial court, and the trial court’s determination will not be disturbed on appellate review absent a clear abuse of that discretion.”Brooks v. State, 918 So.2d 181, 188 (Fla.2005). Likewise, appellate courts apply an abuse-of-discretion standard when considering whether a trial court erred in overruling objections to comments made during closing arguments. McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001) (citing Moore v.. State, 701 So.2d 545 (Fla.1997)).
This Court’s precedent prohibits presenting evidence about lack of remorse in support of an aggravating factor. “[T]his Court held that ‘lack of remorse is not an aggravating factor’ and that ‘lack of remorse should have no place in the consideration of aggravating factors.’ “  Tanzi v. State, 964 So.2d 106, 114-15 (Fla.2007) (quoting Pope v. State, 441 So.2d 1073, 1078 (Fla.1983)), cert. denied,128 S.Ct. 1243 (2008). This Court has further held that the State ordinarily may not present evidence or argument about a defendant’s lack of remorse in the context of discussing a diagnosis of antisocial personality disorder. For example, in Atwater v. State, 626 So.2d 1325, 1328 (Fla.1993), the Court held that the trial court erred in permitting the State to ask on cross-examination whether persons with antisocial personality disorder showed remorse. See also Robinson v. State, 520 So.2d 1, 5-6 (Fla.1988). This Court has further held that the State may not circumvent the prohibition against lack-of-remorse evidence by using synonymous words and phrases. See, e.g., Sireci v. State, 587 So.2d 450, 454 (Fla.1991) (holding that trial court erred in allowing State witness to testify that “after Sireci read about the murder in the newspaper, ‘he seemed rather proud of it.’ ”).FN4
FN4. The Court has recognized an exception to the prohibition against presenting evidence of lack of remorse. The Court held that evidence about lack of remorse may be used to rebut the proposed mitigating factors of remorse for the crime or rehabilitation. See Singleton v. State, 783 So.2d 970, 978 (Fla.2001). This exception is not applicable in this case. While Dr. Maher testified that due to Peterson’s age, he expected that in prison Peterson would “tend to be less impulsive, less aggressive, less violent,” the defense did not propose rehabilitation as a mitigating factor.
*12 Peterson argues that the State’s cross-examination of expert witness Dr. Maher about lack of empathy and contemptuousness as symptoms of antisocial personality disorder was tantamount to questioning and argument about lack of remorse. The State contends that the questioning about Peterson’s lack of empathy and contempt for his victims was not improper because empathy refers to the defendant’s mental and emotional state at the time of the crime whereas remorse refers to the defendant’s mental and emotional state after the crime. We agree that this is a relevant distinction. Florida’s statutory aggravating and mitigating factors recognize the defendant’s mental and emotional state at the time of the crime as factors relevant to sentencing. See§ 921.141(5)-(6), Fla. Stat. (2008). The majority of the State’s questioning of Dr. Maher properly focused on Peterson’s state of mind at the time of the offense as it related to the proposed statutory mitigating factor of substantially impaired capacity to appreciate the criminality of his conduct.FN5
FN5. Peterson also challenges the State’s closing argument based on Dr. Maher’s testimony. After reviewing the record, we find that the prosecutor’s closing argument did not discuss Peterson’s state of mind after the crime. The prosecutor properly focused his argument on the proposed mitigating factors and did not discuss whether Peterson felt remorse or the equivalent thereof after the murder. Because we find that the State’s closing argument was proper, there is no need to address whether this issue was preserved for review.
A few of the State’s questions did solicit testimony about Peterson’s after-the-fact feelings towards the victims of his crimes. While these questions arguably solicited testimony about remorse without using the term “remorse,” any error was harmless beyond a reasonable doubt. See Franklin v. State, 965 So.2d 79, 95 (Fla .2007) (applying harmless error analysis to erroneously admitted evidence). We find that the brief references to Peterson’s refusal to acknowledge his wrongdoing did not influence the jury’s recommendation or the trial court’s sentencing decision. The State’s closing argument was proper, and there was significant, undisputed aggravation and relatively weak mitigation-specifically Peterson had been convicted of thirteen prior felonies and was on probation at the time of the murder compared to no evidence of major mental illness or other compelling mitigating circumstances.FN6Moreover, while the trial court considered the proper portions of Dr. Maher’s testimony as it related to Peterson’s state of mind at the time of the crime, it did not rely on the arguably improper evidence or argument in reaching its decision to impose the death penalty. Based on the foregoing, Peterson is not entitled to a new penalty phase. See Randolph v. State, 562 So.2d 331, 338 (Fla.1990) (holding one improper question about lack of remorse harmless beyond reasonable doubt in light of totality of evidence); Atwater, 626 So.2d at 1328 (holding cross-examination of expert witness about whether persons with antisocial personality disorder show remorse was harmless error).
FN6. Peterson argues that a St. Petersburg Times article demonstrates that the jury considered lack of remorse in reaching its recommendation. The article states that the jury forewoman stated that she wondered if there would have been another result had Peterson taken the stand and said he was sorry. This Court has held that a juror’s consideration of a defendant’s decision not to testify is a matter that inheres in the verdict. Sims v. State, 444 So.2d 922, 925 (Fla.1983). In Devoney v. State, 717 So.2d 501, 504-05 (Fla.1998), the Court found that a juror’s allegation that one or more jurors deliberated about a matter they were told to disregard was a matter inhering in the verdict. As a result, the majority of the Court held that the trial court erred in granting a new trial based on the jury’s improper deliberation. Under Devoney, this Court may not consider the alleged comments by the jury forewoman in deciding whether Peterson was entitled to a new penalty phase.
E. Ring Claims
Peterson argues that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). This Court has repeatedly held that where a death sentence is supported by the prior violent felony aggravating factor, as is the case here, Florida’s capital sentencing scheme does not violate Ring. See, e.g., Frances v. State, 970 So.2d 806, 822 (Fla.2007), cert. denied,128 S.Ct. 2441 (2008); Lebron v. State, 982 So.2d 649 (Fla.2008). This Court has found that “Ring did not alter the express exemption in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that prior convictions are exempt from the Sixth Amendment requirements announced in the cases.”Frances, 970 So.2d at 822;see also Johnston v. State, 863 So.2d 271, 286 (Fla.2003) (“[The] prior violent felony conviction alone satisfies constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt.”).
*13 Peterson’s argument that this Court has erred in unanimously finding Ring inapplicable where the prior violent felony aggravating factor is present is procedurally barred because Peterson did not raise that argument to the trial court. The argument is also without merit. Peterson argues that since, as held in Cox v. State, 819 So.2d 705 (Fla.2002), evidence may be admitted during the penalty phase to show more than the mere fact of a prior conviction, not requiring a unanimous jury finding that the aggravator was proven violates Ring.We disagree. Because the operative jury where the prior violent felony aggravating factor is present is the jury that convicted the defendant of the prior felony, not the sentencing jury, it is irrelevant for constitutional purposes that the sentencing jury may hear evidence beyond that required to prove the fact of conviction.
F. Penalty-Phase Jury Instructions
Peterson claims that the standard penalty-phase jury instructions given in his case unconstitutionally shifted the burden of proof to him to establish mitigating circumstances and to show that those factors outweighed the aggravating circumstances. His arguments are without merit. Similar arguments have been rejected previously by this Court. See, e.g., Johnson v. State, 969 So.2d 938, 961-62 (Fla.2007) (rejecting arguments that standard instructions unconstitutionally place burden of proof on defendant to prove death sentence is inappropriate and that instructions improperly restrict evidence that jury may consider in mitigation).
G. Sufficiency of Evidence
Peterson does not contest the sufficiency of the evidence, but in death penalty appeals, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence. SeeFla. R.App. P. 9.142(a)(6). In this case, the State argued that both felony murder and premeditated murder theories were applicable to the crime, and the jury delivered a general verdict. “A general guilty verdict rendered by a jury instructed on both first-degree murder alternatives may be upheld on appeal where the evidence is sufficient to establish either felony murder or premeditation.”Crain v. State, 894 So.2d 59, 73 (Fla.2004).
While we find insufficient evidence of premeditation in this case, the first-degree murder conviction is supported by competent, substantial evidence of felony murder. The State proved beyond a reasonable doubt that a robbery occurred at the Big Lots store on December 24, 1997, and that John Cardoso was killed during that robbery. Karen Smith testified that a masked, gloved man forced her at gunpoint to collect money from the store and to give the money to him. Maria Soto testified that an armed man threatened “to kill us, to do to us what he had done to … John.”The State and defense stipulated that the body found in the Big Lots store after the robbery was John Cardoso and that Cardoso was dead. No witness testified that more than one person committed the robbery. The State also proved that Peterson was the man who robbed the store. In addition to the collateral crime evidence circumstantially connecting Peterson to the Big Lots robbery, as summarized above, the State presented several witnesses who identified Peterson as the robber. This evidence is sufficient to support the conviction under a felony murder theory. See, e.g., Blake, 972 So.2d at 850 (holding evidence supported first-degree felony murder conviction where Blake admitted entering store with handgun to commit robbery and to shooting victim).
III. CONCLUSION
*14 Based on the foregoing, we affirm Peterson’s conviction for first-degree murder and his sentence of death.
It is so ordered.
QUINCE, C.J., WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., and ANSTEAD, Senior Justice, concur.

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Matthew JOHNSON, Appellant, v. STATE of Florida, Appellee. No. 1D06-5043

Wednesday, January 28th, 2009

District Court of Appeal of Florida, First District.
Matthew JOHNSON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D06-5043.
Jan. 28, 2009.
An appeal from the Circuit Court for Gadsden County. P. Kevin Davey, Judge.
Nancy Daniels, Public Defender, M.J. Lord, Assistant Public Defender, and Jamie N. Spivey, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
PADOVANO, J.
*1 We conclude that the evidence presented on two of the charges against the defendant was insufficient in that it consists entirely of hearsay. Accordingly, the case is remanded for a judgment of acquittal on those charges. The remaining conviction is supported by the testimony of a witness having first-hand knowledge of the event. That conviction is affirmed.
The defendant was charged with two crimes against his six-year-old son, M.J. (sexual battery on a child under twelve and lewd or lascivious molestation); one crime against his ten-year-old daughter, L.J. (lewd or lascivious molestation); and one crime against his eleven-year-old niece, S.J. (lewd or lascivious molestation). All of the charges were tried in a single jury trial.
Another of the defendant’s children, P.J., who was not herself a victim, originally reported the offenses against M.J. and L.J. to adults. Eventually, all three of the children accused the defendant of the offenses. A child protection team videotaped interviews with the victims, M.J. and L.J., in which they said that the defendant had molested them.
The defendant sought to exclude all of these statements on the ground that they were unreliable and therefore did not qualify for admission as child hearsay under section 90.803(23), Florida Statutes (2004). He also argued that the admission of the statements would violate his Sixth Amendment right to confront the witnesses against him. The trial court rejected these arguments based on detailed findings that the statements were reliable, and the prosecutor’s representation that the children would be called as witnesses at trial. We find no error in either of these rulings.
At trial, the state presented the testimony of several adults, who related the statements the three children had made to them. The state also introduced the videotapes made by the child protection team worker. However, M.J. and L.J. did not testify consistently with the statements they had made earlier, and their testimony was not otherwise sufficient to prove that the crimes had been committed.
When M.J. was called as a witness at trial, he testified that the things he said on the videotape had not happened. The prosecutor asked why he would have told the child protection team worker that his father had molested him, and he replied, “I don’t know.” When pressed further on the issue, he said that his sister P.J. had convinced him to make the accusation against his father. M.J. said several times that he was not sure whether the testimony he was giving in court was true. However, at no point did he repeat or adopt the accusation he had made earlier against his father.
Likewise, L.J. testified at trial that the accusations she had made about her father were not true. She explained that she had joined her brother, sister, and cousin in making up the story about him. When asked why she would do such a thing, she said that her father was mean. The prosecutor questioned L.J. in detail about the accusations she had made to adults and about the videotaped statement she had given to the child protection team worker, but she did not confirm the truth of any of the statements.
*2 S.J. told the jury that the defendant was her uncle and that he was living in the same house with her for a time when she was eleven years old. She testified that one night, the defendant came into her bedroom and “had [her] touch his thing and rub it with her hands.”He then lifted her leg, at which point she kicked him, and he left. The state introduced a drawing on which S.J. had circled the body part the defendant had made her rub. S.J. testified that she had not witnessed anything inappropriate between the defendant and either M.J. or L.J.
When the state rested its case, the defendant moved for judgment of acquittal on the three charges involving his own children, M.J. and L.J. He argued these charges were supported only by hearsay statements that were recanted by the children in their trial testimony. The trial court granted the motion as to the charge pertaining to the defendant’s daughter, L.J., but denied it as to the two charges pertaining to the defendant’s son, M.J. The court reasoned that M.J. had testified at trial that he did not know if he was telling the truth, so his testimony was not actually a recantation of the statements that had been related to the jury under section 90.803(23).
At the conclusion of the trial, the defendant renewed his motion for a judgment of acquittal as to the charges involving M.J., and it was once again denied. The jury returned a verdict of guilty as charged for the two crimes against M.J. (sexual battery of a child under twelve and lewd or lascivious molestation), and guilty as charged for the crime against the defendant’s niece, S.J. (lewd or lascivious molestation). The trial court sentenced the defendant to a term of life on the sexual battery charge and to thirty years on the remaining two charges.
Whether the evidence presented in a criminal case is sufficient to sustain the defendant’s conviction is an issue of law. The sufficiency of the evidence is tested at trial by a motion for a judgment of acquittal under rule 3.380 of the Florida Rules of Criminal Procedure, and reviewed on appeal by the de novo standard. See Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001). We conclude that the evidence in this case was not sufficient to sustain the convictions for either of the alleged crimes against the defendant’s son, M.J., and that the defendant is therefore entitled to a judgment of acquittal on those two charges.
The hearsay statement of a child alleging sexual abuse may be admissible in evidence under section 90.803(23), but the statement alone is not sufficient to sustain a conviction for a crime. See State v. Green, 667 So.2d 756 (Fla.1995); State v. Moore, 485 So.2d 1279 (Fla.1986). The state must still prove the elements of the crime through the testimony of the child at trial or by other substantive evidence. If the only evidence of guilt is a child victim’s out-of-court statement admitted under section 90.803(23), and if the child has recanted the accusation in court, the trial court must grant a motion for judgment of acquittal. See Baugh v. State, 961 So.2d 198 (Fla.2007); Beber v. State, 887 So.2d 1248 (Fla.2004).
*3 The state argues that these cases do not apply here because the child’s testimony does not qualify as recantation. This argument is based on the fact that the child testified at trial that he did not know whether he was telling the truth when he said that the accusation had been made up. However, despite the fact that the child often answered “I don’t know” to questions by the lawyers, he did plainly state on several occasions that the abuse he had earlier reported had not actually occurred. This kind of testimony (repeated answers of “I don’t know” or that the child does not recall, combined with his testimony that the defendant did not commit the alleged acts) is precisely the kind the supreme court has characterized as a recantation. See Beber, 887 So.2d at 1252.
The most that could be said of M.J.’s trial testimony is that it leaves open the possibility that his earlier accusation was true. That is not proof of guilt. The child was reluctant and equivocal, but at no point did he adopt or support the accusation he had made in his out-of-court statement. The state has the burden of proving beyond a reasonable doubt that the defendant is guilty of the crime charged. That burden cannot be established by testimony that the victim does not know whether he is telling the truth by retracting an earlier accusation. It can only be established by affirmative evidence that the crime was committed. Because there was no evidence of the crimes against M.J. in this case other than the child’s out-of-court statements, we must reverse the defendant’s convictions for those crimes.
The remaining conviction for the crime of lewd and lascivious molestation of the defendant’s niece, S.J., presents a different situation. Unlike the other victims, S.J. testified at trial that the defendant had, in fact, sexually molested her. The argument for reversal as to this conviction is that the trial judge should not have admitted the pretrial statements of M.J., L.J., and P.J. However, these statements were limited to the alleged crimes involving the defendant’s children, M.J. and L.J., and did not implicate him in the alleged crime against his niece, S.J.
The defendant maintains that the admission of these statements operated like erroneously admitted collateral crime evidence. He posits that the jurors had the benefit of the statements and videotaped interviews showing that the defendant had committed sex offenses against his own children, M.J. and L.J., so they must have considered it more likely that he did, in fact, molest his niece, S.J., as she said. This argument overlooks the fact that the statements and videotapes relating to the alleged crimes against M.J. and L.J. were admitted in evidence at a time when charges were still pending against the defendant for those offenses. These statements were not evidence of collateral crimes, as the defendant suggests; they pertained directly to charges contained in the information in this case. If the trial of these offenses in a single jury trial resulted in some prejudice to the defendant, a point we need not address now, that is an issue that could have been raised in a motion to sever the offenses under rule 3.152(a) of the Florida Rules of Criminal Procedure.
*4 For these reasons, we reverse the convictions for sexual battery and lewd and lascivious molestation, the alleged crimes against M.J. The defendant is entitled to a judgment of acquittal as to these crimes. We find no error in the conviction or sentence for lewd and lascivious molestation of the defendant’s niece, S.J., and on that count, we affirm.
Affirmed in part and reversed in part.
HAWKES, C.J., and KAHN, JJ., CONCUR.

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Anthony E. SMITH, Appellant, v. The STATE of FLORIDA, Appellee. No. 3D05-90

Wednesday, January 28th, 2009

District Court of Appeal of Florida, Third District.
Anthony E. SMITH, Appellant,
v.
The STATE of FLORIDA, Appellee.
No. 3D05-90.
Jan. 28, 2009.
An Appeal from the Circuit Court for Miami-DadeCounty, Thomas M. Carney, Judge.
Carlos J. Martinez, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and John D. Baker, Assistant Attorney General, for appellee.
Before RAMIREZ, ROTHENBERG, and SALTER, JJ.
On Motion for Rehearing
ROTHENBERG, Judge.
*1 The defendant’s motion for rehearing is denied. We, however, withdraw our former opinion dated January 31, 2007, and substitute the following opinion in its stead.
The sole issue raised in this appeal is whether the trial court erred in denying defense counsel’s peremptory challenge of a prospective juror. As we find no error, we affirm.
During jury selection, the defense moved to exercise a peremptory challenge to strike juror Buchholz. The following took place:
DEFENSE: We are going to ask for a peremptory on Mr. Buchholz, No. 12.
STATE: Judge, I would-
COURT: Wait a minute. What about Buchholz? You are peremptorily challenging him?
DEFENSE: Yes, sir.
COURT: Are you requiring an explanation?
STATE: Yes, Judge.
DEFENSE: Is he a member of a distinct minority group which would render him-
COURT: Buchholz?
DEFENSE: Yes.
COURT: Sounds to me like a German name.
DEFENSE: This is a recognized minority group within the law, I believe. Mr. Buchholz-
COURT: I suppose there is-anybody qualifies under our present great, deeply thought out appellate decisions.
DEFENSE: He is a victim of a house robbery which makes him a victim of a crime. And he can harbor bias or any difficulty in this case-
COURT: The Court will rule that is not a genuine objection and it is overruled.
The defendant claims that the State’s objection to the peremptory challenge of juror Buchholz was insufficient and, therefore, argues that the trial court erred in conducting a NeilFN1 inquiry and in requiring the defense to provide a race-neutral reason for the challenge. We disagree.
FN1.State v. Neil, 457 So.2d 481 (Fla.1984).
While the opponent of a peremptory challenge must make a timely objection, identify the distinct racial or ethnic class or gender of the juror being challenged, and request that the trial court ask the striking party to articulate its reason(s) for the strike, Melbourne v. State, 679 So.2d 759, 764 (Fla.1996), there is no magical incantation which must be uttered to satisfy this requirement. The opponent need only alert the court to his or her objection. Franqui v. State, 699 So.2d 1332, 1335 (Fla.1997); State v. Holiday, 682 So.2d 1092, 1093 (Fla.1996); Alsopp v. State, 855 So.2d 695, 696 (Fla. 3d DCA 2003).“[A]ny doubt concerning whether the objecting party has met its initial burden must be resolved in that party’s favor.”Holiday, 682 So.2d at 1093 (quoting Valentine v. State, 616 So.2d 971, 974 (Fla.1993)).
The defendant argues that the State’s objection was insufficient to require the defense to articulate its reason(s) for challenging Buchholz. However, while the law does not require the trial court to make an inquiry as to the striking party’s reason(s) for exercising a peremptory challenge of a prospective juror unless there is a timely objection and the party objecting to the peremptory challenge identifies the distinct racial or ethnic class or gender of the juror being challenged, the trial court may exercise its discretion to do so if it clearly understands the nature of the objection.
*2 In 1997, the Florida Supreme Court emphasized in Franqui that “trial courts have broad discretion in determining the propriety of the exercise of peremptory challenges,”id. at 1334-35, and drew a distinction between those cases in which reversal is being sought when the trial court failed to make a required inquiry and those in which an inquiry was made even though the objection levied did not require it to do so.
In Franqui, defense counsel claimed that the trial court erred in denying its exercise of a peremptory challenge of a juror because the State did not satisfy its burden to trigger a Neil inquiry to which the defense was required to respond. In rejecting this argument, the majority in Franqui stated:
We cannot agree with the dissenting opinion that the State’s objection was insufficient to permit the trial court to make inquiry with respect to whether juror Diaz was being challenged for nonracial reasons. In support of their position, the dissenters rely on Windom v. State, 656 So.2d 432 (Fla.), cert denied, [516] U.S. [1012], 116 S.Ct. 571 (1995), 133 L.Ed.2d 495….
….
Our holding in Windom was that there was not a sufficient objection to reverse the trial court for not requiring the challenging party to provide race-neutral reasons for the challenge. Thus, the rationale of Windom would be pertinent if the trial court in the instant case had declined to inquire into the racial basis for the challenge. Here, however, the trial court clearly understood that the objection to the challenge of a venireperson in Dade County, who was born and raised in Havana, Cuba, and whose name was Aurelio Diaz, was being made on racial grounds. This is especially true because there was never any contention made to the trial court that prospective juror Diaz was not a member of a cognizable minority or that there should not be a Neil inquiry. Moreover, we have encouraged trial judges to err on the side of holding a Neil inquiry.
Franqui, 699 So.2d at 1335 (first and third emphasis added) (footnote omitted). Thus, in Franqui, while the State’s objection was arguably insufficient to require the trial court to conduct a Neil inquiry, the Florida Supreme Court affirmed Franqui’s convictions after concluding that the trial court did not abuse its discretion in requesting the defense to provide a race-neutral reason for its peremptory challenge of the juror since it was clear that the trial court understood that the objection was made on racial grounds.
This Court and the other district courts of this State have likewise repeatedly held that as long as the trial court understands the nature of the objection, an inquiry may be made. See Murray v.. Haley, 833 So.2d 877, 879 (Fla. 1st DCA 2003) (rejecting appellees’ argument that appellant failed to satisfy step one because counsel never requested the trial court to make a Neil inquiry and, therefore, did not mandate further inquiry by the trial court and holding that “[a]lthough appellants never actually requested that the trial court ask appellees to articulate a gender-neutral reason for their challenges, it is apparent that the trial court understood the nature of the objections. It would elevate form over substance to conclude that, even though the trial court understood the nature of the objections, those objections were insufficient to preserve the issue for appellate review”); Alsopp, 855 So.2d at 697 (holding that “where it is clear that the challenged juror is a member of a racial or ethnic group and the court is aware of the fact, a general objection is sufficient to trigger an inquiry”); Foxx v. State, 680 So.2d 1064, 1065 (Fla. 3d DCA 1996) (finding the State’s comment that “we would ask for a Neil inquiry” sufficient where it was clear from the record that the prospective juror was a member of a distinct racial group and the trial court was aware of this fact); Joseph v. State, 636 So.2d 777, 781 (Fla. 3d DCA 1994) (rejecting State’s argument that because there was no showing that a juror was, in fact, Jewish, the defendant had not met the threshold requirement of Neil, finding, instead, that because “[t]here is no question that the trial judge understood the basis of the defendant’s objection” an inquiry was required).
*3 We reject the premise that an inquiry cannot be made by the trial court unless the threshold is met, a premise clearly rejected by the Florida Supreme Court and this Court. We also find that the defendant’s reliance upon Windom, 656 So.2d at 436-38, is misplaced, as in Windom the issue was whether the trial court erred in failing to make an inquiry,not whether it erred for making one, which is the issue before us. Thus, we conclude, as did the Florida Supreme Court in Franqui, that the trial court did not abuse its discretion in requesting the defense to provide a race-neutral reason for its peremptory challenge of prospective juror Buchholz. Because the trial court found that the reasons proffered were not genuine and did not permit the peremptory challenge of Buchholz, and the record clearly supports the trial court’s finding, we affirm.
Affirmed.

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Dirk SCHUSTER, Appellant, v. STATE of Florida, Appellee. No. 4D07-1014

Wednesday, January 28th, 2009

District Court of Appeal of Florida, Fourth District.
Dirk SCHUSTER, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-1014.
Jan. 28, 2009.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 05-19729CF10A.
Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
*1 Dirk Schuster was charged with two counts of lewd and lascivious molestation under section 800.04(5)(a), Florida Statutes (2007), and four counts of lewd and lascivious battery against a minor, contrary to section 800.04(4)(a). The jury found Schuster guilty of four counts of lewd and lascivious battery, one count of lewd and lascivious molestation, and one count of an unnatural and lascivious act, section 800.02, as a lesser included offense.
The charges arose from one visit by the 12 year old victim to appellant’s house. The two watched pornographic movies and appellant asked the victim to “massage his back.” The child agreed and began to massage appellant’s back. During the massage, appellant asked the victim to lay on top of him. He complied. Appellant then asked the child if he “was willing to try” the types of things occurring in the pornographic movies. The child agreed and appellant touched the child’s penis with his hand. Afterwards, appellant performed fellatio on the child; the child performed fellatio on appellant. Next, appellant “took his penis and put it in [the child's] behind” until the child complained that “it was hurting … and he stopped.”Then the child “stuck [his] penis inside [appellant's] butt,” which appellant facilitated by putting “something” on the child’s penis to make penetration easier. The child asked appellant if he wanted the child “to take it out when [he] was fixing to do it.”Appellant said, “Go ahead and do it inside.”After the child ejaculated, both parties dressed and appellant instructed: “Don’t tell nobody nothing.”
We find no double jeopardy violation because the sexual acts were serial, distinct in character, and appellant had sufficient time between each act to reflect and form a new criminal intent. See Schwenn v. State, 898 So.2d 1130, 1132 (Fla.(Fla. 4th DCA DCA 2005); Samuel v. State, 925 So.2d 475 (Fla.(Fla. 4th DCA DCA 2006).See also State v. Meshell, 34 Fla. L. Weekly S41A (Fla. Jan. 23, 2009); Meshell v. State, 980 So.2d 1169 (Fla. 5th DCA 2008).
Affirmed.
GROSS, C.J., POLEN and HAZOURI, JJ., concur.

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Eric Edward PRATT, Appellant, v. STATE of Florida, Appellee. No. 4D07-2365

Wednesday, January 28th, 2009

District Court of Appeal of Florida, Fourth District.
Eric Edward PRATT, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-2365.
Jan. 28, 2009.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; William J. Berger, Judge; L.T. Case No.2006CF015152 AXX.
Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
FARMER, J.
*1 Defendant was on trial for aggravated battery in the beating of his stepdaughter and pregnant wife. The State sought to present evidence that during the 18 months preceding the beatings, defendant had beaten his wife on 3 different occasions-the most recent barely a few months before the alleged crimes. The judge allowed this Williams rule FN1 evidence over the objection of defendant. We reverse.
FN1.See§ 90.404(2)(a), Fla. Stat. (2008) (similar fact evidence of other crimes or acts is admissible when relevant to a material fact in issue, e.g. motive, intent, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident; but it is inadmissible when the evidence proves only bad character or propensity); see also Williams v. State, 110 So.2d 654 (Fla.1959).
These are the events. One morning the daughter heard defendant say something to the effect that he was unhappy with the mother and stepdaughter. Hearing footsteps behind her, the daughter turned around and defendant punched her in the face. As she lay on the ground, defendant hit her in the face with a ceramic object. She passed out briefly and awoke to hear her mother screaming while trying to pick her up. Whereupon defendant began punching her mother, who tried to run from him. Defendant caught her and hit her again. Mother fell to the ground, and defendant grabbed her by her robe and dragged her into the living room. Mother tried to run out the front door, but defendant fell upon her again, while the daughter tried to pull him from her. Defendant continued hitting her, and then turned toward daughter who, by then, was attempting to call police. A neighbor saw the events at the front door and summoned help. Defendant drove away before police arrived.
This is the Williams rule evidence. In the oldest incident, defendant had pushed his wife into a wall. In the second he had pushed her into the sink. And in the most recent to the crimes on trial, he had pulled a door from its hinges and hit her in the back of her head. Nothing in the similar crimes evidence pointed to a signature crime or some unique feature of the aggravated battery charges on trial.
The State’s theory of relevance as to the Williams rule evidence is that it proved motive, intent, or absence of mistake or accident, or rebutted a possible claim of self-defense. In allowing this evidence the trial court held that it was relevant to the issues of intent, motive, absence of mistake and to rebut self-defense.
In the circumstances of this case, these earlier incidents of violence do nothing more than demonstrate his propensity for violence with his family members. Neither party did anything to make motive or intent significant to any contested fact. No one suggested any factual issue as to a specific reason for battering the two women. Nor did he claim that his actions were by mistake. Motive, intent and mistake were simply not made pertinent issues in the trial.
This leaves self-defense as the basis for admitting Williams rule evidence. Defendant did not make self-defense an issue with regard to his wife. His defense was instead that he never hit her. Yet the Williams rule evidence was admitted as part of the State’s case in chief, not as a response to evidence presented by defendant seeking to make a case for self-defense.
*2 It is well accepted that evidence of past crimes is not admissible when its only function is to show a propensity for the criminal conduct on trial.McLean v. State, 934 So.2d 1248, 1255 (Fla.2006). It is also settled that Williams rule evidence must meet a high standard of relevance, be strikingly similar to the crime charged and share some unique characteristics distinguishing the past crime and the crime on trial from other offenses.Macias v. State, 959 So.2d 782, 785 (Fla. 4th DCA 2007). Even then the proponent of the evidence must demonstrate that its probative value is greater than the unfair prejudice associated with such evidence. McLean, 934 So.2d at 1256. The evidence in this case satisfies none of these requirements.
Erroneous admission of collateral crimes evidence is presumptively harmful.Robertson v. State, 829 So.2d 901, 913-14 (Fla.2002); Gore v. State, 719 So.2d 1197, 1199 (Fla.1998); Czubak v. State, 570 So.2d 925, 928 (Fla.1990); Castro v. State, 547 So.2d 111, 116 (Fla.1989); Straight v. State, 397 So.2d 903, 908 (Fla.), cert. denied,454 U.S. 1022 (1981). The error may be found harmless only “if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error.”Ciccarelli v. State, 531 So.2d 129, 132 (Fla.1988). We are unable to say beyond a reasonable doubt that the admission was harmless.
Reversed.
POLEN and HAZOURI, JJ., concur.

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Franklin Manuel VALDEZ, Appellant, v. The STATE of Florida, Appellee. No. 3D08-2529

Wednesday, January 28th, 2009

District Court of Appeal of Florida, Third District.
Franklin Manuel VALDEZ, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-2529.
Jan. 28, 2009.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-DadeCounty, Israel Reyes, Judge.
Steven P. Befera, for appellant.
Bill McCollum, Attorney General, for appellee.
Before COPE, RAMIREZ, and SALTER, JJ.
SALTER, J.
*1 Franklin Valdez appeals a trial court order denying his 2008 motion to vacate a 1993 plea under Florida Rule of Criminal Procedure 3.850. During the original plea colloquy, the trial court did not provide the “subject to deportation” warning required by Florida Rule of Criminal Procedure 3.172(c)(8). In denying the motion to vacate plea in 2008, the trial court reasoned that the motion was time-barred FN1 because Valdez had received the requisite warning in a 1996 plea colloquy. That colloquy, however, occurred in connection with a violation of probation hearing-a separate plea (though the probation in question was part of the sentence entered following the 1993 plea), and one which apparently has not resulted in any notice for deportation.
FN1.Rule 3.850(b) generally requires such motions to be filed within two years from the date the judgment and sentence become final. “A defendant filing outside the two-year limitation period must allege and prove that he or she could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period.”State v. Green, 944 So.2d 208, 219 (Fla.2006). A special two-year window (October 26, 2006 through October 26, 2008) was established in Green for claims that were not already “unquestionably time-barred” (because the claimants had received actual notice of the deportation consequences of their pleas).State v. Freijo, 987 So.2d 190, 195 (Fla. 3d DCA 2008).
We reverse and remand for an evidentiary hearing. The existing record does not demonstrate that the United States Department of Homeland Security (“DHS”) notice of removability served on Valdez in 2006 FN2 is based on any matter other than the original 1993 plea and conviction. It is that DHS notice-and not the warning provided as part of the 1996 violation of probation plea colloquy-that was the basis for Valdez’s motion to vacate plea. And it was the 1993 plea, not the 1996 plea, which subjected Valdez to deportation.
FN2. Valdez’s 2008 motion to vacate plea was timely (on the face of the motion) under Green.
Under Florida law, Valdez’s violation of probation was “not itself an independent offense punishable at law in Florida.”Lambert v. Young, 545 So.2d 838, 841 (Fla.1989). Unless the State establishes otherwise on remand, it does not appear that Valdez’s entry of a plea in 1996 regarding the probation violation provides any independent basis for deportation by DHS.FN3 It follows that a Rule 3.172(c)(8) warning regarding the possible immigration consequences of that plea would not cure the defective 1993 plea at issue here.
FN3.See, e.g., State v. De Armas, 988 So.2d 156 (Fla. 3d DCA 2008). On remand, the State may also attempt to determine whether Valdez received any notice of removability from DHS before the November 2006 notice described in the motion.
Reversed and remanded for further proceedings in accordance with this opinion.

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Kevin BRADLEY, Appellant, v. STATE of Florida, Appellee. No. 4D08-3671

Wednesday, January 28th, 2009

District Court of Appeal of Florida, Fourth District.
Kevin BRADLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-3671.
Jan. 28, 2009.
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 04-13031 CF10A.
Kevin Bradley, Indiantown, pro se.
Bill McCollum, Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
*1 Kevin Bradley appeals the denial of a rule 3.800(a) motion to correct an illegal sentence. Because his sentence for four offenses was calculated on a single Criminal Punishment Code scoresheet when the primary offense occurred prior to the enactment of the CPC, the scoresheet was in error, and it adversely affected the length of his sentence. The state concedes error, and we reverse.
On October 14, 2004, Bradley entered a plea in four cases (98-10196, 99-11406, 99-17622, and 04-013031) and was sentenced to concurrent terms of 5.9 years in prison, the lowest permissible sentence on his CPC scoresheet. The record reflects that this was not a negotiated sentence. The offense in 04-013031 was possession of cocaine, a third degree felony punishable by a maximum of five years in prison unless the CPC score exceeded the statutory maximum. § 921.0024(2), Fla. Stat. (2004).
In his rule 3.800(a) motion, Bradley argued that the scoresheet was improperly calculated. The offense of burglary of a dwelling in the 1998 case (98-10196) was committed on April 22, 1998 before the effective date of the CPC and should not have constituted the primary offense on a CPC scoresheet. He asked the court to resentence him to the lowest permissible sentence based on a corrected scoresheet. In its response below, the state argued that the offenses were properly scored. The trial court denied Bradley’s motion.
Bradley is correct that the burglary offense, which was committed April 22, 1998, should not have been listed as the primary offense on his CPC scoresheet. The CPC applies only to offenses committed on or after October 1, 1998. § 921.002, Fla. Stat. Separate scoresheets should have been prepared for the offenses committed before and after the effective date of the CPC. Section 921.002(2), Florida Statutes, provides:
When a defendant is before the court for sentencing for more than one felony and the felonies were committed under more than one version or revision of the former sentencing guidelines or the code, each felony shall be sentenced under the guidelines or the code in effect at the time the particular felony was committed….
See alsoFla. R.Crim. P. 3.704(d)(3); Dillard v. State, 728 So.2d 725 (Fla.1999) (recognizing that pending offenses committed under different versions of the sentencing guidelines require separate scoresheets).
In this case, the 1998 burglary should have been scored as a primary offense on a separate guidelines scoresheet, and it appears that the attempted strong arm robbery in 99-17622 should have been listed as the primary offense on the CPC scoresheet.
Accordingly, we reverse and remand for the trial court to resentence appellant with corrected scoresheets.
Reversed and remanded for resentencing.
GROSS, C.J., WARNER and DAMOORGIAN, JJ., concur.

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