Full Opinion

Supreme Court of Florida ____________ No. SC2026-1399 ____________ CURTIS W. BEASLEY, Appellant, vs. STATE OF FLORIDA, Appellee. September 22, 2026 PER CURIAM. Curtis W. Beasley is a prisoner under sentence of death. His death warrant has been signed and his execution date set for September 29, 2026. He appeals the circuit court’s order summarily denying his successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851 and requests a stay of execution. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.; see also State v. Fourth Dist. Ct. of Appeal, 697 So. 2d 70, 71 (Fla. 1997) (holding “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”). As we explain below, we affirm the summary denial of postconviction relief and deny his request for a stay of execution. I. FACTS AND PROCEDURAL BACKGROUND Beasley was convicted of the first-degree murder of Carolyn Monfort. Beasley v. State, 774 So. 2d 649, 657 (Fla. 2000). At the time of the murder, Beasley was staying temporarily at Monfort’s home and was doing maintenance work at an apartment complex that Monfort managed. Monfort knew Beasley through her daughter’s former husband, who was a high school classmate of Beasley’s. Id. at 653. Evidence established that Beasley brutally beat Monfort to death on or about August 21, 1995, stole several $100 bills from her, and stole her car. Id. at 653-56. The medical examiner testified to the extensive injuries that Monfort sustained: Mrs. Monfort had been struck with a blunt object, sustaining injuries on her face and head and typical defensive injuries to the backs of both hands (bruises and abrasions), on the back of the upper arms, and on the back of the left forearm (bruises). The left half of Mrs. Monfort’s face was severely injured. There was a large laceration (10 inches by ¾ inch) extending from almost the top of her head down to her mouth. There was a large bruise on the left half of her face, and -2- multiple lacerations in front of her left ear, on her left cheek, and in the area behind her left ear. There were bruises on both eyes and over her right cheek, and lacerations on the right half of her forehead. All of these injuries were inflicted antemortem. There was also a fracture of her cheekbone (“zygoma”), and a fracture of her left upper jaw (left “maxilla”). These were open fractures, well seen through the laceration on her face. The lacerations on her face and head ranged in size from ¾ by ¼ inch up to 10 inches by ¾ inch. There were about nine lacerations on the left side of her head and face; two more lacerations of the right aspect of her forehead; four lacerations on the back of her head, and two others behind her left ear. This made a total of fifteen to seventeen lacerations on (or blows to) Mrs. Monfort’s face and head, not including those consistent with being defensive lacerations. There was also a depressed fracture of the left temporal (skull) bone having the shape of a figure eight; each half of the shape was 1¾ inches in diameter, and consistent with being imposed with the round part of a hammer. Mrs. Monfort’s brain was lacerated from small fragment formation in the fracture area. There were subdural subarachnoid hemorrhages under the membrane that covered the brain (contusion hemorrhages into the superficial part of the brain, or the cortex). The cause of death, in the medical examiner’s opinion, was blunt trauma to the head; while a hammer could have caused the injuries, the impact pattern did not suggest whether the head or the claw end had been used. Id. at 655. After the murder, Beasley stole Monfort’s car and initially traveled to visit an acquaintance in Haines City whom he owed money. He gave that acquaintance one of the $100 bills he stole -3- from Monfort. The next day, Beasley arrived at a bus station in Miami. He had abandoned Monfort’s car in a parking lot located approximately two and a half miles from a bus station in Orlando. For a while, Beasley remained in Miami and resided with acquaintances. He later traveled to Alabama, where he began working and using another identity. Beasley was eventually located in Alabama where he was taken into custody and was brought back to Florida to face charges for the first-degree murder and robbery of Monfort and the grand theft of her car. Id. at 654 & n.1, 656-57. The jury convicted Beasley as charged and at the conclusion of the penalty phase recommended the death penalty by a vote of 10-2. Id. at 657. The trial court sentenced Beasley to death upon finding that multiple aggravating factors were proven beyond a reasonable doubt and that the aggravating factors outweighed the mitigating circumstances. In its sentencing order, the trial court found as aggravating factors that (1) Beasley was engaged in a robbery at the time of the murder (merged with the aggravating factor that the murder was committed for financial gain) (some weight), and (2) the murder was especially heinous, atrocious, or cruel (HAC) (very great -4- weight). Beasley v. State, 18 So. 3d 473, 480 n.1 (Fla. 2009).1 Beasley appealed his convictions and sentences. This Court affirmed in an opinion dated October 26, 2000, and denied rehearing on December 21, 2000.2 For postconviction timing 1. The trial court also found the following mitigating circumstances: (1) Beasley was a good citizen who served in the military, was a good worker, had a substance abuse disorder, was impacted by a friend’s suicide, had no prior criminal convictions for violent crimes, and maintained contact with his children and grandchildren (some weight); (2) Beasley’s marriage failed, he failed to complete college, had good manners and a good personality, was a good son, friend, brother, student, and athlete, participated in extracurricular activities throughout school and in church as a youth, was self-sufficient and reliant, had some periods of financial irresponsibility due to a recurrent substance abuse disorder and an alcohol problem, and was generally financially responsible (little weight); (3) Beasley was a musician (very little weight); (4) circumstances with regard to the results of his psychological tests (some weight); (5) Beasley’s ability to serve a life sentence without difficulty (little weight); and (6) Beasley’s post-incident conduct (being cooperative during his arrest, extradition, and incarceration, and maintaining good family relationships while incarcerated) (some weight). Id. 2. Beasley’s direct appeal raised seven issues: (1) the trial court erred in denying the motion for judgment of acquittal; (2) Beasley’s conviction for first-degree murder was not supported by competent, substantial evidence; (3) the trial court erred in failing to invoke the rule of sequestration as to the victim’s daughter and son (both were trial witnesses); (4) the trial court erred in finding HAC; (5) the trial court erred in finding the pecuniary gain/course of robbery aggravating circumstance; (6) the trial court erred in rejecting certain mitigating factors (Beasley’s poor, rural background, the death of his father, his expressions of sorrow -5- purposes, Beasley’s judgment of conviction and sentence of death became final on March 21, 2001, “on the expiration of the time permitted to file in the United States Supreme Court a petition for writ of certiorari seeking review of the Supreme Court of Florida decision affirming a judgment and sentence of death (90 days after the opinion becomes final).” Fla. R. Crim. P. 3.851(d)(1)(A). Since that time, Beasley has unsuccessfully challenged his death sentence in state and federal courts. See Beasley v. State, 18 So. 3d 473 (Fla. 2009) (affirming the denial of Beasley’s initial motion for postconviction relief); Beasley v. State, 234 So. 3d 553 (Fla. 2018) (opinion affirming the denial of Hurst3 relief in light of Hitchcock v. State, 226 So. 3d 216 (Fla. 2017)); Beasley v. Sec’y, Fla. Dep’t of Corr., No. 8:09-cv-01962 (M.D. Fla. Mar. 30, 2010) (denying federal habeas petition); Beasley v. Sec’y, Fla. Dep’t of Corr., regarding Monfort’s death and gratitude for her kindness (while maintaining his innocence), Beasley’s good behavior during the trial); and (7) the proportionality of Beasley’s death sentence. Beasley, 774 So. 2d at 657 n.4. 3. Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020). -6- No. 10-11750 (11th Cir. Oct. 15, 2010) (denying certificate of appealability), cert. denied, 563 U.S. 906 (2011). Governor Ron DeSantis signed Beasley’s death warrant on August 26, 2026. On August 28, 2026, Beasley filed in the circuit court a motion for stay of execution, which the circuit court denied without prejudice on August 29, 2026. On September 4, 2026, Beasley filed in the circuit court a renewed motion for stay of execution and a successive motion for postconviction relief under rule 3.851 raising four claims: (1) executing Beasley at age 77 and while he experiences corresponding cognitive decline would violate the Eighth Amendment; (2) the time period between the signing of Beasley’s death warrant and the scheduled execution deprives Beasley of due process and equal protection and violates the Eighth Amendment’s prohibition of cruel and unusual punishment; (3) the current procedure for death warrant selection and signing results in the arbitrary and capricious implementation of the death penalty in violation of the Eighth and Fourteenth Amendments, deprives defendants of due process, and violates the separation of powers doctrine; and (4) executing Beasley despite a nonunanimous jury verdict would violate the Fifth, Sixth, and Eighth Amendments. -7- The circuit court held a Huff 4 hearing on September 8, 2026, at the conclusion of which it determined that the resolution of Beasley’s postconviction claims did not require an evidentiary hearing. On September 11, 2026, the circuit court summarily denied each of Beasley’s successive postconviction claims and denied Beasley’s renewed motion to stay the execution. Beasley now appeals the circuit court’s denial of relief and requests a stay of execution. As we explain, Beasley is not entitled to relief. II. ANALYSIS A. Successive Motion for Postconviction Relief The “[s]ummary denial of a successive postconviction motion is appropriate ‘[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.’ ” Owen v. State, 364 So. 3d 1017, 1022 (Fla. 2023) (second alteration in original) (quoting Bogle v. State, 322 So. 3d 44, 46 (Fla. 2021)). We review the circuit court’s decision de novo, “accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows 4. Huff v. State, 622 So. 2d 982 (Fla. 1993). -8- that the movant is entitled to no relief.” Id. at 1022-23 (quoting Walton v. State, 3 So. 3d 1000, 1005 (Fla. 2009)). The circuit court did not err in summarily denying Beasley’s claims. B. Beasley’s Age at Time of Execution Beasley, who is 77 years old, asserts that he is currently experiencing cognitive decline, brain fog, depression, and risk factors for vascular dementia, that he performs in the low average range for verbal reasoning, and that he requires wheelchair assistance when moving farther than a short distance. Beasley points to United States Supreme Court decisions where the Court has interpreted the Eighth Amendment as prohibiting the execution of mentally incompetent individuals, 5 the intellectually disabled, 6 and juveniles, 7 and he maintains that the rationales underlying those prohibitions also demonstrate that executing him—an elderly person experiencing cognitive decline—would also constitute cruel and unusual punishment. Beasley has not raised an intellectual 5. Ford v. Wainwright, 477 U.S. 399 (1986). 6. Atkins v. Virginia, 536 U.S. 304 (2002). 7. Roper v. Simmons, 543 U.S. 551 (2005). -9- disability claim, and he has not claimed that he is incompetent to be executed. The circuit court denied Beasley’s claim as meritless, and there is no error in the circuit court’s conclusion. Beasley concedes that we have rejected arguments regarding the execution of the elderly in recent death warrant cases. See Occhicone v. State, No. SC2026-1042, 2026 WL 2097359, at *4 (Fla. July 21) (rejecting as-applied challenge to elderly appellant’s execution), cert. denied, No. 26-5158, 2026 WL 2164217 (U.S. July 28, 2026); Spencer v. State, 434 So. 3d 709, 718-19 (Fla.) (rejecting categorical exemption of the elderly from execution), cert. denied, No. 25-7648, 2026 WL 1827690 (U.S. June 25, 2026); Trotter v. State, 428 So. 3d 68, 73-74 (Fla.) (rejecting categorical exemption of the elderly from execution), cert. denied, 146 S. Ct. 755 (2026); Smithers v. State, 420 So. 3d 460, 464-66 (Fla.) (rejecting categorical exemption of the elderly from execution), cert. denied, 146 S. Ct. 323 (2025). In each of these cases, we observed that the United States Supreme Court has recognized only one age- based exemption from execution, which is the prohibition against executing individuals who were under age 18 at the time of their capital crimes. See Roper v. Simmons, 543 U.S. 551, 575 (2005) - 10 - (“holding that the death penalty cannot be imposed upon juvenile offenders”). Moreover, “[w]e have long held that the categorical bar of Atkins that shields the intellectually disabled from execution does not apply to individuals with other forms of mental illness or brain damage.” Dillbeck v. State, 357 So. 3d 94, 100 (Fla. 2023). In Connor v. State, 979 So. 2d 852, 867 (Fla. 2007), we rejected the appellant’s argument that he could not “be executed because of mental conditions that are not insanity or [intellectual disability]” because “the issue has been resolved adversely to his position.” Although Beasley suggests otherwise, we are bound here by the Eighth Amendment conformity clause set forth in article I, section 17 of the Florida Constitution. 8 We have explained: [T]he Supreme Court’s interpretation of the Eighth Amendment is both the floor and the ceiling for protection from cruel and unusual punishment in Florida, and this Court cannot interpret Florida’s 8. The conformity clause provides: “The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, 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. - 11 - prohibition against cruel and unusual punishment to provide protection that the Supreme Court has decided is not afforded by the Eighth Amendment. Smithers, 420 So. 3d at 466 (quoting Ford v. State, 402 So. 3d 973, 979 (Fla. 2025)). Beasley does not seek a categorical exemption for elderly persons. Instead, he argues that this Court should conduct an as- applied analysis and “consider on a case-by-case basis whether the execution would be cruel and unusual based on the defendant’s age and corresponding physical and mental state.” He urges us to conclude that given the combination of his age and his asserted cognitive decline, his case falls outside of the parameters of the conformity clause and permits this Court to conclude that executing him would constitute cruel and unusual punishment. We disagree. In Occhicone, the appellant raised an as-applied age-based challenge to his execution, citing multiple physical conditions “and the general physical deterioration associated with advanced age.” 2026 WL 2097359, at *4. We rejected that claim and explained that “[w]hether Occhicone seeks a categorical or as-applied exemption based on his advanced age is a distinction without a difference. - 12 - Either way, he asks this Court to recognize an age-based exemption that the [United States] Supreme Court has never recognized.” Id. at *5. Beasley seeks to distinguish Occhicone by observing that the as-applied challenge raised there did not involve a claim that the appellant was experiencing cognitive decline at that time. Even so, Beasley is not entitled to relief. In Occhicone, we noted the absence of any “authority that would allow our Court to vacate [Occhicone’s] death sentence based on the combination of his age and the litany of infirmities from which he allegedly suffers.” Id. The same reasoning applies to Beasley’s argument, and his as- applied challenge fails. 9 9. Moreover, we decline to reach Beasley’s argument that executing the elderly serves no retributive purpose and has no deterrent effect because, as we observed in Smithers, 420 So. 3d at 464, this Court’s precedent and the conformity clause are determinative of that argument. Also, to the extent that Beasley suggests that he has been on death row too long to be executed, we reject that claim here as we have done with similar claims. “Indeed, we have consistently rejected arguments that a lengthy time on death row requires setting aside a death sentence.” See Hutchinson v. State, 416 So. 3d 273, 281 (Fla.) (citing Orme v. State, 361 So. 3d 842, 845 (Fla. 2023)), cert. denied, 145 S. Ct. 1980 (2025). - 13 - C. Duration of Warrant Period Beasley also argues that under the totality of the circumstances, the length of his warrant period deprives him of due process, equal protection, and the right to be free from cruel and unusual punishment. The circuit court properly rejected this claim. First, Beasley’s due process claim is without merit. “Due process requires that a defendant be given notice and an opportunity to be heard on a matter before it is decided,” Barwick v. State, 361 So. 3d 785, 789-91 (Fla. 2023) (quoting Asay v. State, 210 So. 3d 1, 27 (Fla. 2016)), and Beasley has not shown that he was denied notice or an opportunity to be heard on any such matter. The circuit court observed the following: There is no claim that Mr. Beasley has had insufficient access to counsel or opportunity to be heard in Court. Indeed, his counsel asserts they have been “working around the clock.” Moreover, since the day his death warrant was signed, this court has given priority to the Defendant’s case, affording it the “drop-everything” attention the urgency of the cause demands. The Defendant fails to specify how such access to counsel and this court has been impeded. The circuit court also rejected Beasley’s due process argument that the compressed warrant period “interfere[s] with his ability to - 14 - complete necessary testing with his psychologist”: As this court has already observed, the claim of advanced age plus cognitive decline is without merit. Moreover, counsel for the Defendant represented at the Huff hearing that the issues being explored by the psychologist do not involve a concern with respect to competency. And there is no allegation that the Defendant is intellectually disabled. As such, an expanded warrant period would only facilitate the investigation of a futile claim. The Defendant is unable to demonstrate prejudice. We have consistently rejected claims similar to Beasley’s and held that “an expedited warrant litigation schedule does not deprive a defendant of his right to due process.” Jennings v. State, 422 So. 3d 107, 119 (Fla.) (quoting Windom v. State, 416 So. 3d 1140, 1150 (Fla. 2025)), cert. denied, 146 S. Ct. 402 (2025); see also Bates v. State, 416 So. 3d 312, 321 (Fla.) (“A thirty-day warrant period does not, in and of itself, deprive a capital defendant of the rights [to due process and counsel]. . . . Our precedent precludes the relief Bates seeks.”), cert. denied, 146 S. Ct. 66 (2025). Second, the circuit court did not err in rejecting Beasley’s equal protection argument. According to Beasley, his representation by registry attorneys who are a part of a small law firm constitutes disparate treatment compared to others under a - 15 - death warrant who are represented by Capital Collateral Regional Counsel (CCRC). Beasley’s registry attorneys are two experienced members of The Florida Bar who have represented him in postconviction matters for more than a decade. Concluding that Beasley failed to establish an equal protection violation, the circuit court explained in detail: As previously observed, [Beasley’s] attorneys have been working “around the clock.” His attorneys have been at every court appearance, filed public records demands, two motions for stay of execution, and a successive motion for postconviction relief. Additionally, his attorneys have successfully made requests for the appointment of a psychologist and an investigator. The Defendant fails to demonstrate how his attorneys’ status as registry attorneys has, in any meaningful way, resulted in less effective representation as compared to those represented by the CCRC operating under the same truncated warrant period. In short, the Defendant’s equal protection claim lacks merit. There is no basis for relief. In no way has Beasley demonstrated an equal protection violation. Third, Beasley has not shown how the length of his warrant period implicates the Eighth Amendment’s prohibition against cruel and unusual punishment. The circuit court did not err in summarily denying Beasley’s claim because he has not demonstrated any of the alleged - 16 - constitutional violations. D. Warrant Selection and Signing Process Beasley further contends that the Governor’s warrant selection and signing process is arbitrary and violates the Eighth and Fourteenth Amendments, and that it deprives him of due process and violates the separation of powers doctrine. The circuit court did not err in denying this claim. The warrant selection and signing process is subject to the Governor’s broad discretion and does not violate the Eighth and Fourteenth Amendments. Section 922.052(3), Florida Statutes, provides that “[t]he sentence [of death] shall not be executed until the Governor issues a warrant, attaches it to the copy of the record, and transmits it to the warden, directing the warden to execute the sentence at a time designated in the warrant.” “We have long recognized the Governor’s authority and discretion when signing death warrants.” Tanzi v. State, 407 So. 3d 385, 393 (Fla.), cert. denied, 145 S. Ct. 1914 (2025). Moreover, “[w]e have repeatedly held that the Governor’s broad discretion in selecting which death warrants to sign and when does not violate the United States Constitution or the Florida Constitution.” - 17 - Zakrzewski v. State, 415 So. 3d 203, 210 (Fla.), cert. denied, 146 S. Ct. 57 (2025). “We have consistently rejected the assertion that the warrant selection process is arbitrary because there are no standards that constrain the Governor’s discretion in determining which warrant to sign.” Dailey v. State, 283 So. 3d 782, 787-88 (Fla. 2019). Beasley argues that the death warrant selection process violates due process because condemned inmates are not given a reason for their selection and are without recourse to contest a death warrant as being arbitrary and capricious. Again, given the discretion vested in the Governor with respect to when to sign a death warrant and for whom, this argument is without merit. We also reject Beasley’s argument that the Governor’s power to determine who will be executed infringes on the functions and power of the judicial branch. In Valle v. State, 70 So. 3d 530, 551 (Fla. 2011), the appellant raised a similar claim, “asking this Court to second-guess the Governor’s decision in determining when to sign [his] death warrant.” Mindful of the Governor’s broad statutory authority to sign a death warrant, we explained that “this Court has always proceeded very carefully in addressing such a claim since it - 18 - triggers separation of powers concerns.” Id. at 552; see, e.g., Johnston v. State, 27 So. 3d 11, 26 (Fla. 2010) (“[W]e decline to depart from the Court’s precedent, based on the doctrine of separation of powers, in which we have held that it is not our prerogative to second-guess the executive on matters of clemency in capital cases.”); In re Advisory Op. of the Governor, 334 So. 2d 561, 562-63 (Fla. 1976) (“This Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government.”). We decline to depart from this precedent. E. Nonunanimous Jury Recommendation of Death Beasley maintains that his death sentence is unconstitutional because he was sentenced to death following a nonunanimous 10-2 jury recommendation of death. The circuit court properly denied this claim. First, Beasley’s claim is procedurally barred because he has essentially repackaged the claim he raised in a 2017 successive postconviction motion following this Court’s 2016 decision in Hurst (requiring a jury’s recommendation of death to be unanimous). See Beasley, 234 So. 3d at 553. The circuit court denied that motion, - 19 - and he appealed the denial of relief to this Court. This Court stayed the appeal pending the disposition of Hitchcock, which declined to extend the retroactivity of Hurst to defendants whose death sentences became final before the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). Concluding that Hitchcock was dispositive of Beasley’s appeal, we affirmed the denial of relief. 10 Despite this procedural bar, Beasley maintains that the jury’s nonunanimous recommendation of death renders his death sentence unconstitutional. In particular, he argues that the United States Supreme Court’s decision in Ramos v. Louisiana, 590 U.S. 83 (2020), establishes his Sixth Amendment right to a unanimous jury recommendation. However, we have previously explained that “[t]he holding in Ramos does not apply to a jury’s recommendation of death in a capital case because a jury’s recommendation [of death] is not equivalent to a verdict.” Hunt v. State, 428 So. 3d 43, 54 (Fla. 2025) 10. Beasley also maintains that under the circumstances, this issue raises a manifest injustice. This argument is procedurally barred. - 20 - (citation omitted), petition for cert. filed, No. 26-0078 (U.S. July 16, 2026). While Beasley emphasizes that the jury did not make specific findings during the penalty phase as to the existence of aggravating factors, the same jury did unanimously convict Beasley of the robbery of Monfort, thus forming the basis of the aggravating factor that Beasley murdered Monfort during the course of a robbery. Finding that the murder was committed while Beasley was engaged in the commission of a robbery, the trial court stated in the sentencing order: “The defendant, CURTIS W. BEASLEY, was charged and convicted of the crime of robbery. . . . This aggravating circumstance was proved beyond a reasonable doubt and this Court gave it some weight.” Beasley also argues that his death sentence violates the Eighth Amendment because the jury’s recommendation of death was not unanimous. However, we have previously explained and repeatedly held that the Eighth Amendment does not require that a jury’s recommendation of death be unanimous. See, e.g., Heath v. State, 426 So. 3d 1253, 1268-69 (Fla.) (rejecting claim that a nonunanimous jury recommendation violates the Eighth - 21 - Amendment), cert. denied, No. 25-6746, 2026 WL 363902 (U.S. Feb. 10, 2026); James v. State, 404 So. 3d 317, 327 (Fla.) (same), cert. denied, 145 S. Ct. 1351 (2025); Zack v. State, 371 So. 3d 335, 349-50 (Fla. 2023) (same); Dillbeck, 357 So. 3d at 104 (same). F. Stay of Execution Beasley argues that the circuit court erred in denying his original and renewed motions for a stay of execution. He requests that this Court stay his execution and remand his case to the circuit court for further proceedings. Having fully considered the issues that Beasley raises in this appeal, we deny Beasley’s request for a stay because he has failed to establish “any substantial grounds upon which relief might be granted if a stay had been ordered.” See Barwick, 361 So. 3d at 791 (citing Dillbeck, 357 So. 3d at 103). III. CONCLUSION For these reasons, we affirm the denial of Beasley’s successive motion for postconviction relief and deny his request for a stay of execution. No oral argument is required, no motion for rehearing will be considered, and the mandate shall issue immediately. - 22 - It is so ordered. COURIEL, C.J., and MUÑIZ, GROSSHANS, FRANCIS, BARRIOS, and TANENBAUM, JJ., concur. LABARGA, J., concurs in result. An Appeal from the Circuit Court in and for Polk County, Jon Kevin Abdoney, Judge Case No. 531995CF004842A1XXXX Bjorn E. Brunvand and J. Jervis Wise of Brunvand, Wise & Farinella, Clearwater, Florida, for Appellant James Uthmeier, Attorney General, Tallahassee, Florida, Jonathan S. Tannen, Senior Assistant Attorney General, Tampa, Florida, and Christina Z. Pacheco, Special Counsel, Assistant Attorney General, Tampa, Florida, for Appellee - 23 -