Supreme Court of Florida _____________
No. SC2025-0110 _____________
JAMES D. FORD, Appellant,
vs.
STATE OF FLORIDA, Appellee.
February 7, 2025
PER CURIAM.
James D. Ford, a prisoner under sentence of death for whom a
warrant has been signed and an execution set for February 13,
2025, appeals the circuit court’s order summarily denying his third
successive motion for postconviction relief, which was filed under
Florida Rule of Criminal Procedure 3.851. We have jurisdiction.
See art. V, § 3(b)(1), Fla. Const. For the reasons below, we affirm.
I. BACKGROUND
On April 6, 1997, Ford brutally murdered Greg Malnory and
his wife, Kimberly, at the South Florida Sod Farm, where Ford and Greg were coworkers. The three had planned to go fishing that
afternoon at the sod farm. Greg was shot in the back of the head,
execution style, with a single-shot rifle. He had also been hit in the
head and face at least seven times with a blunt instrument,
consistent with an axe. His throat was slit nearly from ear to ear,
so deeply that underlying muscle tissue was exposed. The physical
evidence led to the inescapable conclusion that Greg was first shot
in the head, but only disabled by the bullet, resulting in Ford
savagely beating him to death and slitting his throat while Greg was
on his back in the middle of a field.
Kimberly suffered nine blunt force injuries to her head, one of
which fractured and penetrated her skull. Ford raped Kimberly and
stuck the barrel of his rifle in her mouth before firing through her
palate. Defensive wounds on the backs of Kimberly’s arms
indicated that she put up a struggle.
Near the bodies, in an isolated, wooded area of the vast sod
farm, the Malnorys’ twenty-two-month-old daughter was found
strapped in her car seat in the Malnorys’ truck, with the doors wide
open. The little girl had been exposed to the elements overnight
-2- and for more than eighteen hours. She was covered in mosquito
bites and her mother’s blood, dehydrated, and flushed with heat.
An abundance of physical evidence, including multiple DNA
matches and the murder weapons, as well as eyewitness testimony,
provided overwhelming proof that Ford was responsible for the
murders and the rape. He was convicted of two counts of first-
degree murder, sexual battery with a firearm, and child abuse.
Ford v. State, 802 So. 2d 1121, 1125-27, 1131 (Fla. 2001).
At the penalty phase, Ford presented more than two dozen
witnesses, including two mental health professionals. But the jury
recommended death for each murder by a vote of eleven to one.
The trial court ultimately sentenced Ford to death for each murder
based on four aggravating circumstances,1 two statutory mitigating
1. The court found that the following aggravating circumstances had been proven beyond a reasonable doubt for both murders and assigned each a degree of weight: (1) the murder was committed in an especially heinous, atrocious, or cruel manner (HAC) (great weight); (2) the murder was committed in a cold, calculated, and premeditated fashion (CCP) (great weight); (3) the murder took place during the commission of a sexual battery (great weight); and (4) Ford previously was convicted of another capital felony, i.e., the contemporaneous murder (great weight).
-3- circumstances, 2 and thirteen “nonstatutory” mitigating
circumstances. 3 Id. at 1126-27 & nn.1-3. This Court affirmed
Ford’s convictions and sentences on direct appeal. Id. at 1136. The
convictions and sentences became final when the United States
Supreme Court denied certiorari review in 2002. Ford v. Florida,
535 U.S. 1103 (2002).
In the decades since, Ford has unsuccessfully challenged his
convictions and sentences in state and federal court. See Ford v.
State, 955 So. 2d 550 (Fla. 2007) (affirming denial of Ford’s initial
motion for postconviction relief); Ford v. Sec’y, Dep’t of Corr., No.
2. The court found two statutory mitigating circumstances established as to both murders: (1) no significant history of prior criminal activity (some weight); and (2) the young mental age of the defendant (very little weight).
3. The court found the following “nonstatutory” mitigating circumstances established as to both murders: (1) Ford was a devoted son (very little weight); (2) Ford was a loyal friend (very little weight); (3) Ford is learning disabled (no weight); (4) developmental age of fourteen (no weight); (5) family history of alcoholism (no weight); (6) chronic alcoholic (very little weight); (7) diabetic (no weight); (8) excellent jail record (some weight); (9) engaged in self- improvement while in jail (some weight); (10) the school system failed to help (very little weight); (11) not a sociopath or a psychopath (no weight); (12) not antisocial (no weight); and (13) the alternative sentence is life without parole (no weight).
-4- 2:07-cv-333-FtM-99SPC, 2009 WL 3028886 (M.D. Fla. Sept. 17,
2009) (dismissing as untimely his federal habeas petition, filed
under 28 U.S.C. § 2254); Ford v. McNeil, 561 U.S. 1002 (2010)
(granting certiorari review and remanding the denial of a certificate
of appealability, vacating, and remanding for further consideration
in light of Holland v. Florida, 560 U.S. 631 (2010)); Ford v. Sec’y,
Fla. Dep’t of Corr., No. 2:07-cv-333-FtM-36SPC, 2012 WL 113523
(M.D. Fla. Jan. 13, 2012) (concluding after remand that Ford was
not entitled to equitable tolling for his federal habeas petition under
Holland); Ford v. State, 168 So. 3d 224 (Fla. 2015) (table) (affirming
denial of Ford’s first successive motion for postconviction relief and
denying his request to file a belated state petition for a writ of
habeas corpus); Ford v. State, 237 So. 3d 904 (Fla. 2018) (affirming
denial of Ford’s second successive motion for postconviction relief
and denying his petition for a writ of habeas corpus).
Governor Ron DeSantis signed Ford’s death warrant on
January 10, 2025. Ford then filed a third successive motion for
postconviction relief under rule 3.851, raising two claims: (1) Ford’s
death sentence is unconstitutional under Roper v. Simmons, 543
U.S. 551 (2005), and the Eighth and Fourteenth Amendments
-5- because his mental and developmental age is below eighteen; and
(2) executing Ford would violate his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments in light of Erlinger v. United
States, 602 U.S. 821 (2024). The circuit court summarily denied
both claims. This appeal follows.
II. ANALYSIS
Ford raised only two claims in his third successive motion, but
he comes to this Court with three. We address each in turn to
explain why no relief is warranted.
A. Applicability of rule 3.851(d)(2)
Ford claims for the first time on appeal from the denial of his
third successive motion that application of Florida Rule of Criminal
Procedure 3.851(d)(2) is unconstitutional when applied during
litigation under an active death warrant because it violates his right
to due process under the Fourteenth Amendment and the Florida
Constitution; his federal Eighth Amendment right to narrowly
tailored individualized sentencing and his Florida constitutional
right against cruel and unusual punishment; his federal Sixth
Amendment right to effective counsel; and his Florida constitutional
right to access the courts.
-6- Rule 3.851 limits the filing of a motion for postconviction relief
to within one year of the date the defendant’s conviction and
sentence become final, unless it alleges one of the following
exceptions set forth in subdivision (d)(2):
(A) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file the motion.
By asking this Court to find that this subdivision is
inapplicable to defendants under an active death warrant, Ford is
asking this Court to allow defendants upon the scheduling of an
execution date to be permitted to litigate anew any claim that was
(and likely those that should have been) raised previously and to
receive a ruling on the merits of those claims. Ford’s position is
without any legal support. In crafting the terms and conditions
that govern criminal appeals and collateral review, the Legislature
provided “that all terms and conditions of direct appeal and
collateral review be strictly enforced, including the application of
-7- procedural bars, to ensure that all claims of error are raised and
resolved at the first opportunity.” § 924.051(8), Fla. Stat. The
litigation of a successive motion for postconviction relief filed by a
defendant under an active death warrant is collateral review. If the
Legislature intended to suspend procedural bars for claims raised
by defendants under active death warrants, it could have done so.
See Cason v. Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 315 (Fla.
2006) (“[T]he Legislature ‘knows how to’ accomplish what it has
omitted in the statute in question.”).
Ford’s claim that the procedural bars applied to his claims
result in a denial of due process is conclusory. “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, 790 (Fla.) (quoting Asay v. State, 210 So. 3d 1, 27 (Fla.
2016)), cert. denied, 143 S. Ct. 2452 (2023). Ford does not allege
that he was denied notice and an opportunity to be heard. He is
simply objecting to the fact that he does not have the opportunity to
be reheard.
Ford also claims that procedural bars effectively deny him
access to courts and the right to counsel and subject him to cruel
-8- and unusual punishment. The fact that Ford is not permitted to
relitigate issues now does not violate his access to the courts to
litigate valid claims in accordance with the procedural rules of this
state. The fact that counsel cannot relitigate claims that have
already been raised does not deprive him of the right to counsel,
who was free to raise appropriate claims. And the application of
procedural bars after the signing of his death warrant did not
prevent Ford from attempting to show that his case is not among
the most aggravated and least mitigated at the appropriate time (or
times) and through the appropriate channels, nor did it deprive
Ford of an individualized sentencing or otherwise violate the Eighth
Amendment or article 1, section 17 of the Florida Constitution.
Rule 3.851(d)(2) was not unconstitutionally applied to Ford’s third
successive motion for postconviction relief. And Ford presents no
authorities that support his argument on this point.
B. Extension of Roper
Ford argues that the circuit court erred in summarily denying
Ford’s claim that because he has a mental and developmental age
below eighteen years, his death sentence is unconstitutional under
Roper v. Simmons, 543 U.S. 551 (2005), and the Eighth and
-9- Fourteenth Amendments. Because this claim is untimely and
meritless, summary denial was proper.
This claim was filed in Ford’s January 18, 2025, third
successive motion for postconviction relief, nearly twenty-three
years after his convictions and sentences became final. And even
assuming that Ford could not have raised the legal basis of this
claim until Roper was issued in 2005, his claim is still nearly two
decades too late. Ford does not allege that any of the exceptions in
rule 3.851(d)(2) apply to this claim. 4,5 Thus, this claim was properly
denied as untimely.
4. Although the circuit court believed that Ford was raising a newly discovered evidence claim based on the results of the neuropsychological testing done by Dr. Hyman Eisenstein on January 16, 2025, Ford stated more than once during the case management conference that this was not a newly discovered evidence claim.
5. Ford alleged in his third successive motion that this claim was timely raised because it was “not fully ripe until the signing of Ford’s death warrant on January 10, 2025, [and] the expert evaluation of Ford that occurred on January 16, 2025.” But Ford has not explained in the circuit court or this Court why the claim was not previously “ripe.” The signing of the warrant has nothing to do with whether Ford is eligible for execution based on his mental age, which has remained stable for the last twenty-five years. Nor does he explain why the January 16, 2025, evaluation was not done until the warrant was signed or why its results were necessary to
- 10 - Moreover, this Court has repeatedly rejected the argument
that Roper’s holding that the execution of an individual who was
younger than eighteen years at the time of the murder(s) violates
the Eighth Amendment should be extended to defendants whose
mental or developmental age was less than eighteen at the time of
their offenses. E.g., Barwick v. State, 88 So. 3d 85, 106 (Fla. 2011)
(rejecting claim that Roper should extend to Barwick, who was
nineteen when he committed the crimes, because his mental age
was less than eighteen); Stephens v. State, 975 So. 2d 405, 427
(Fla. 2007) (rejecting claim that Roper and the Eighth Amendment
barred execution of defendant who had a mental and emotional age
of less than eighteen years because his chronological age at the
time of his crimes was twenty-three); Hill v. State, 921 So. 2d 579,
584 (Fla. 2006) (rejecting an extension-of-Roper claim and holding
“Roper only prohibits the execution of those defendants whose
chronological age is below eighteen”). And because Ford was thirty-
six at the time of the murders, it is impossible for him to
raise this claim that is based on information that has been known to Ford for over twenty-five years.
- 11 - demonstrate that he falls within the ages of exemption, rendering
his claim facially insufficient and therefore properly summarily
denied. See Morton v. State, 995 So. 2d 233, 245 (Fla. 2008)
(“Because it is impossible for Morton to demonstrate that he falls
within the ages of exemption, his claim is facially insufficient and it
was proper for the court to deny Morton a hearing on this claim.”).
We have also explained that such claims are
without merit because this Court lacks the authority to extend Roper. The conformity clause of article I, section 17 of the Florida Constitution provides that “[t]he 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.” This means that the 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 prohibition against cruel and unusual punishment to provide protection that the Supreme Court has decided is not afforded by the Eighth Amendment. Because the Supreme Court has interpreted the Eighth Amendment to limit the exemption from execution to those whose chronological age was less than eighteen years at the time of their crimes, this Court is bound by that interpretation and is precluded from interpreting Florida’s prohibition against cruel and unusual punishment to exempt individuals eighteen or more years
- 12 - old from execution on the basis of their age at the time of their crimes.
Barwick, 361 So. 3d at 794 (alteration in original).
Ford is not entitled to relief on this claim.
C. Erlinger
Ford argues that the circuit court erred in denying his claim
that executing him would violate his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments in light of the United States
Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821
(2024). Under this claim, he had raised two subclaims: (i) Ford’s
Fifth Amendment due process rights and Sixth Amendment right to
a unanimous jury, as selectively incorporated through the
Fourteenth Amendment, are being violated, considering Erlinger;
and (ii) this new consideration of Ford’s proceedings further
establishes that his death sentence is arbitrary and capricious, in
violation of the Eighth Amendment. Ford conceded that this claim
could be resolved without an evidentiary hearing, and it was
summarily denied as untimely, procedurally barred, and meritless.
As the circuit court noted, the first sentences Ford wrote
under this claim in his third successive motion were:
- 13 - Ford’s death sentences are contrary to Hurst v. Florida, 577 U.S. 92 (2016)[,] and is [sic] in violation of Florida Statutes, section 921.141. He unequivocally asserts that based on Hurst, he was denied his right to a jury determination, proof beyond a reasonable doubt, and unanimity under the Sixth and Fourteenth Amendments. As a result of Florida’s failure to remedy these violations, Ford’s sentences violate the Eighth Amendment’s bar against excessive, arbitrary, and capricious punishment and equal protection under the Fourteenth Amendment.
Erlinger was not mentioned, and the “unequivocal[] assert[ion]” that
Ford “was denied his right to a jury determination” “based on Hurst”
identified this as essentially a Hurst claim.
On appeal, Ford modified the opening sentence to this claim
so that it mentions Erlinger. It now reads: “The Erlinger . . .
decision is a reminder that Ford’s death sentences are contrary to
Hurst v. Florida, 577 U.S. 92 (2016)[,] and Hurst v. State, 202 So. 3d
40 (Fla. 2016).” 6 But this change only confirms that this is a Hurst
6. In Hurst, the United States Supreme Court held that Florida’s capital sentencing scheme was unconstitutional because it “required the judge alone to find the existence of an aggravating circumstance.” 577 U.S. at 103. On remand from Hurst, this Court held in Hurst v. State that “before a sentence of death may be considered by the trial court in Florida, the jury must find the existence of the aggravating factors proven beyond a reasonable doubt, that the aggravating factors are sufficient to impose death, and that the aggravating factors outweigh the mitigating circumstances.” 202 So. 3d at 53. This Court then determined
- 14 - claim, as the allegation is that his sentences are contrary to Hurst,
not Erlinger. Ford has also forgotten to include the very important
subsequent history of Hurst v. State, in which “we recede[d] from
Hurst v. State except to the extent it requires a jury unanimously to
find the existence of a statutory aggravating circumstance beyond a
reasonable doubt.” State v. Poole, 297 So. 3d 487, 507 (Fla. 2020).
Erlinger does not apply to this case. It involved the federal
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which
imposes enhanced, lengthy, mandatory minimum prison terms on
certain defendants who have committed three violent felonies or
serious drug offenses on separate occasions. Erlinger, 602 U.S. at
825. The question presented in Erlinger was “whether a judge may
decide that a defendant’s past offenses were committed on separate
occasions under a preponderance-of-the-evidence standard, or
whether the Fifth and Sixth Amendments require a unanimous jury
that Hurst does not apply retroactively to cases in which the death sentence became final before the issuance of Ring v. Arizona, 536 U.S. 584 (2002), Asay, 210 So. 3d at 22, nor does Hurst v. State, Hitchcock v. State, 226 So. 3d 216, 217 (Fla. 2017). Four years after deciding Hurst v. State, this Court “recede[d] from Hurst v. State except to the extent it requires a jury unanimously to find the existence of a statutory aggravating circumstance.” State v. Poole, 297 So. 3d 487, 507 (Fla. 2020).
- 15 - to make that determination beyond a reasonable doubt.” Id. The
Court concluded that a jury must resolve the “ACCA’s occasions
inquiry unanimously and beyond a reasonable doubt.” Id. at 835.
But Erlinger was a direct-appeal case—not a postconviction case
like Ford’s—and it involved required jury findings regarding an
element. Based on these fundamental distinctions, it is clear that
Erlinger provides no support for vacating Ford’s death sentences.
Based on his opening sentence to this claim on appeal that
Erlinger is a reminder that Ford’s death sentences are contrary to
Hurst and Hurst v. State, we agree with the circuit court that this
claim is properly interpreted as a Hurst claim. Referencing both his
first and second successive motions for postconviction relief, Ford
admits that he “has consistently attempted to litigate issues
regarding the proper responsibility of jurors in capital sentencing.”
He also admits that in his first successive motion, he “specifically
challenged the lack of juror unanimity in his death
recommendation.” See Ford, 168 So. 3d at 224 (affirming summary
denial of claim “challenging this Court’s general jurisprudence that
nonunanimous jury recommendations of the death sentence are
constitutional”). In his second successive motion for postconviction
- 16 - relief, filed in 2017, Ford argued at length that he was entitled to
relief under Hurst and Hurst v. State. His claims were again
summarily denied and affirmed on appeal. Ford, 237 So. 3d at 905.
As this Court has held that neither Hurst nor Hurst v. State apply
retroactively to Ford’s case, this claim was properly denied as
procedurally barred and meritless.
Even if not procedurally barred and even if Hurst did apply
retroactively to Ford, he would still not be entitled to relief. Ford
complains that the instructions to his jury “only indicated they
should consider aggravating circumstances found to have been
proven beyond a reasonable doubt,” but “no factual findings were
ever made.” To the contrary, by convicting Ford of the
contemporaneous murder and sexual battery with a firearm of
Kimberly Malnory at the guilt phase, the jury found beyond a
reasonable doubt the aggravator that “[t]he defendant was
previously convicted of another capital felony or of a felony involving
the use or threat of violence to the person,” § 921.141(5)(b), Fla.
Stat. (1997). This Court decided a decade ago that those findings
“satisfy[] the constitutional requirements.” Ford, 168 So. 3d at 224
(“Thus, at the guilt phase the jury unanimously found that Ford
- 17 - committed another capital felony, the contemporaneous murder,
and the fact that both murders were committed during the
commission of a sexual battery, satisfying the constitutional
requirements.”). We reject Ford’s claim that he “never had an
actual jury during his sentencing proceedings” and his
categorization of his penalty phase jury as not “an actual jury” but
merely an “advisory panel.”
Ford also argues that his sentencing order does not specify the
standard of proof the court used to find that the aggravating factors
outweighed the mitigating circumstances. This Court has squarely
rejected arguments that whether the aggravating factors outweighed
the mitigating circumstances is a determination that must be made
beyond a reasonable doubt. See Rogers v. State, 285 So. 3d 872,
885-86 (Fla. 2019) (holding that determinations of whether the
aggravating factors were sufficient to justify the death penalty and
whether those factors outweighed the mitigating circumstances are
not subject to the beyond a reasonable doubt standard of proof);
Davidson v. State, 323 So. 3d 1241, 1247 (Fla. 2021); Craft v. State,
312 So. 3d 45, 57 (Fla. 2020); Santiago-Gonzalez v. State, 301 So.
- 18 - 3d 157, 177 (Fla. 2020); Bright v. State, 299 So. 3d 985, 998 (Fla.
2020); Doty v. State, 313 So. 3d 573, 577 (Fla. 2020).
Ford’s second subclaim focuses on the allegation that his
sentence is arbitrary and capricious, in violation of the Eighth
Amendment. He argues that his sentence is arbitrary because he
missed the cutoff to have Hurst applied retroactively to his
sentences by only twenty-seven days. But, as explained above,
even if a Hurst claim were not procedurally barred and Hurst
applied to Ford, he would not be entitled to relief, because his jury
also found him guilty of the contemporaneous murder and sexual
battery, which satisfies the constitutional requirement that a jury
unanimously find the existence of an aggravating factor beyond a
reasonable doubt.
Ford also continues to claim that he did not have a jury at his
penalty phase but only an advisory panel, “unlike all post-Hurst
defendants” who have “an actual sworn jury” to avoid being
“condemned to death in an arbitrary and capricious manner.” Ford
did have an actual sworn jury at his penalty phase. It was the
same actual sworn jury that found him guilty of the
- 19 - contemporaneous murder and sexual battery during the guilt
phase.
If Ford is presenting an actual argument 7 that the instructions
to his jury that its sentencing recommendation was only advisory
are contrary to Caldwell v. Mississippi, 472 U.S. 320 (1985), it is
both untimely and meritless. This Court has already rejected such
an argument in Allen v. State, 322 So. 3d 589, 597 (Fla. 2021).
Ford’s final argument that under the evolving standards of
decency, he cannot be sentenced to death unless a jury
unanimously determines that the aggravating factors are sufficient
for the imposition of death and that they outweigh the mitigation is
procedurally barred, untimely, and meritless. Ford relies on Hurst
v. State in making this argument. But as explained above, we have
“recede[d] from Hurst v. State except to the extent it requires a jury
unanimously to find the existence of a statutory aggravating
7. Ford phrased this argument hypothetically: “[T]he advisory panel was instructed that, although the court was required to give great weight to its recommendation, the recommendation was only advisory. Had this been an actual jury trial, this would have been contrary to Caldwell v. Mississippi, 472 U.S. 320 (1985) . . . .” (Emphasis added.)
- 20 - circumstance beyond a reasonable doubt.” Poole, 297 So. 3d at
507. And we have repeatedly declined invitations to reconsider
Poole. E.g., Herard v. State, 390 So. 3d 610, 623 (Fla. 2024); Wells
v. State, 364 So. 3d 1005, 1014-15 (Fla.), cert. denied, 144 S. Ct.
385 (2023); McKenzie v. State, 333 So. 3d 1098, 1105-06 (Fla.
2022); Davidson, 323 So. 3d at 1248. And the Supreme Court’s
decision in McKinney v. Arizona, 589 U.S. 139, 144 (2020), confirms
that our decision in Poole was correct. See id. (“Under Ring and
Hurst, a jury must find the aggravating circumstance that makes
the defendant death eligible. But importantly, in a capital
sentencing proceeding just as in an ordinary sentencing proceeding,
a jury (as opposed to a judge) is not constitutionally required to
weigh the aggravating and mitigating circumstances or to make the
ultimate sentencing decision within the relevant sentencing
range.”). Since Poole was not wrongly decided, Ford’s argument
that his execution will result in a manifest injustice is devoid of
merit.
- 21 - III. CONCLUSION
For the reasons stated, we affirm the circuit court’s order
summarily denying Ford’s third successive motion for
postconviction relief.
No motion for rehearing will be considered by this Court. The
mandate shall issue immediately.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur.
An Appeal from the Circuit Court in and for Charlotte County, Lisa Spader Porter, Judge Case No. 081997CF0003510001XX
Eric Pinkard, Capital Collateral Regional Counsel, Ali Shakoor, Assistant Capital Collateral Regional Counsel, and Adrienne Joy Shepherd, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,
for Appellant
John M. Guard, Acting Attorney General, Tallahassee, Florida, and Christina Z. Pacheco, Senior Assistant Attorney General, Stephen D. Ake, Senior Assistant Attorney General, and Jonathan S. Tannen, Assistant Attorney General, Tampa, Florida,
for Appellee
- 22 -