Florida Criminal Law Opinions

J.F., A CHILD, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-3489

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

June 29, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Roger J. McDonald, Judge.

DISPOSITION:  

Order STRICKEN; case REMANDED.

COUNSEL:   James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PALMER, J. THOMPSON and MONACO, JJ., concur.

OPINION BY:   PALMER

OPINION  

PALMER, J.

J.F. appeals her juvenile disposition order, contending that the trial court reversibly erred by ordering her to pay attorney’s fees in the amount of $ 400.00 without providing her proper notice of her right to contest the amount as required by section 938.30 of the Florida Statutes (2005) and rule 3.720(d) of the Florida Rules of Criminal Procedure. The State properly concedes error. Accordingly, the order requiring J.F. to pay attorney’s fees is hereby stricken, without prejudice. On remand, the fee obligation may be re-imposed, provided the trial court complies with the provisions of the rule. See D.B. v. State, 761 So. 2d 1130 (Fla. 4th DCA 1998). Furthermore, based upon our review of the record, we direct that, on remand, this case must be assigned to a different judge.

Order STRICKEN; case  [*2]  REMANDED.

THOMPSON and MONACO, JJ., concur.

Courtesy of David Edelstein

KIB B. SOUTHERS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5801

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

June 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Anthony K. Black and Robert A. Foster, Jr., Judges.

DISPOSITION:  

Affirmed.

JUDGES:   WHATLEY and DAVIS, JJ., Concur.

OPINION BY:   CANADY

OPINION  

CANADY, Judge.

Kib B. Southers appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of Southers’ claims without comment. We note that Southers’ motion for rehearing and the postconviction court’s stay of that motion are nullities. The filing of the notice of appeal foreclosed any consideration by the postconviction court of the motion for rehearing either during or after the appeal. Cf. Cabrera v. State, 623 So. 2d 825 (Fla. 2d DCA 1993) (holding that defendant’s subsequent filing of notice of appeal was an abandonment of a pending motion for rehearing and divested the trial court of jurisdiction to consider it).

Affirmed.

WHATLEY and DAVIS, JJ., Concur.

Courtesy of David Edelstein

JEREMY DEWAYNE FOXWORTH, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-2401

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

June 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the circuit court for Escambia County. Michael Jones, Judge.

DISPOSITION:  

REVERSED and REMANDED, with directions.

COUNSEL:   Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   WEBSTER, LEWIS, and THOMAS, JJ., CONCUR.

OPINION  

PER CURIAM.

In this direct criminal appeal, appellant, who was originally sentenced as a youthful offender and successfully completed the Department of Corrections’ boot camp program, challenges as illegal his 76.5-month sentence imposed following revocation of his community control. He contends that he could not legally be sentenced to a term of more than 364 days following revocation of his community control. The state concedes error. We agree. See §§ 958.045(5)(c) & 958.04(2)(b), Fla. Stat. (2001); Thomas v. State, 825 So. 2d 1032 (Fla. 1st DCA 2002). Accordingly, we reverse appellant’s 76.5-month sentence, and remand for resentencing, with directions that the sentence imposed not exceed 364 days, although it may be imposed to run consecutively to his 56-month sentence.

REVERSED and REMANDED, with directions.

WEBSTER,  [*2]  LEWIS, and THOMAS, JJ., CONCUR.

Courtesy of David Edelstein

PATRICK JOSEPH KELSO, Petitioner, vs. STATE OF FLORIDA, Respondent.

No. SC05-597

SUPREME COURT OF FLORIDA

June 28, 2007, Decided

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY:    [*1]

Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions. Fourth District – Case No. 4D03-2924. (Martin County).
Kelso v. State, 898 So. 2d 1023, 2005 Fla. App. LEXIS 3067 (Fla. Dist. Ct. App. 4th Dist., 2005)

COUNSEL:   Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Celia A. Terenzio, Bureau Chief, and Jeanine M. Germanowicz, Assistant Attorneys General, West Palm Beach, Florida, for Respondent.

JUDGES:   WELLS, PARIENTE, CANTERO, and BELL, JJ., concur. PARIENTE, J., concurs with an opinion, in which, WELLS, J., concurs. QUINCE, J., concurs in result only. ANSTEAD, J., dissents.

OPINION BY:   LEWIS

OPINION  

LEWIS, C.J.

We have for review the decision in Kelso v. State, 898 So. 2d 1023 (Fla. 4th DCA 2005), in which the Fourth District certified conflict with the Fifth District’s decisions in Wilson v. State, 776 So. 2d 347 (Fla. 5th DCA 2003), and Scarola v. State, 889 So. 2d 108 (Fla. 5th DCA 2004), and the Second District’s decision in Thompson v. State, 888 So. 2d 89 (Fla. 2d DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS AND PROCEDURAL HISTORY

The instant matter presents a purely legal  [*2]  question with regard to whether it is permissible to have convictions for multiple theft offenses arising from a single criminal transaction. The pertinent facts reveal that Kelso was charged and convicted of, among other offenses, third-degree grand theft of a firearm under section 812.014(2)(c)(5) of the Florida Statutes and second-degree grand theft under section 812.014(2)(b)(1) of the Florida Statutes. See § 812.014(2)(b)(1), (c)(5), Fla. Stat. (2003). It is undisputed that the offenses were committed during a single criminal transaction.

On appeal, Kelso contended that the two theft convictions under section 812.014 of the Florida Statutes were a violation of the constitutional prohibition against double jeopardy. The Fourth District, relying on the opinion of this Court in State v. Getz, 435 So. 2d 789 (Fla. 1983), held that the convictions did not violate double jeopardy principles. See Kelso, 898 So. 2d at 1024-25. Quoting at length from Getz, the Fourth District reasoned that the Legislature intended for the theft of a firearm and the various other items of property specifically enumerated under section 812.014 to be considered “separate and distinct offenses, even where the  [*3]  thefts occur in a single criminal episode.” Kelso, 898 So. 2d at 1024 (quoting Getz, 435 So. 2d at 791). The court concluded that the value of a stolen firearm is irrelevant to the grading of the theft crime under section 812.014, and attributed this to “the special nature of firearms, as distinct from other property which could be stolen.” Kelso, 898 So. 2d at 1024. The Fourth District certified its holding to be in direct conflict with the decisions of the district courts in Wilson, Scarola, and Thompson, and this review followed.

ANALYSIS

Modeled after the double jeopardy provision of the Fifth Amendment to the United States Constitution, article I, section 9 of the Florida Constitution states that “no person shall . . . be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. This Court has explained that “where multiple punishments are imposed at a single trial, ‘the role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments arising from a single criminal act.’” Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)).  [*4]  This Court has stated that “[t]he prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’” Gordon v. State, 780 So. 2d 17, 19 (Fla. 2001) (quoting M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996)). The power to define criminal offenses is relegated to the Legislature. See Hayes, 803 So. 2d at 699.

Originally in Florida, the common law “single transaction rule,” which limited a conviction to only the most serious offense arising from a single criminal transaction, governed whether multiple convictions could result from the same criminal episode. See id. (citing Borges v. State, 415 So. 2d 1265, 1266 (Fla. 1982)). In 1976, however, the single transaction rule was legislatively replaced when section 775.021(4) of the Florida Statutes was enacted to read:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included  [*5]  offenses during said criminal episode . . . .Ch. 76-66, § 1, at 115, Laws of Fla.; § 775.021(4), Fla. Stat. (Supp. 1976). Nevertheless, it still remained within the province of the Legislature to define criminal offenses. If the Legislature clearly defined two offenses such that within a single event a violation of both could occur, the amendment to section 775.021 dictated that a defendant could be convicted and sentenced for both offenses. If, however, the statutory language with respect to the definition of an offense was ambiguous, the rule of lenity, earlier codified in the original passage of section 775.021, dictated that the ambiguity “be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (Supp. 1974); see also Carawan v. State, 515 So. 2d 161, 168 (Fla. 1987) (“[W]e find that Florida’s lenity requirement constitutes a rule of construction coequal to the Blockburger test codified in section 775.021(4).”).

In 1983, this Court issued its opinion in Getz, which specifically addressed whether convictions for multiple theft offenses stemming from the same criminal episode were authorized by the Legislature, stating:

It is our view that as the theft statute [n1] is written,  [*6]  the legislature intended to make theft of a firearm under subsection (2)(b)3 and theft of property worth less than one hundred dollars under subsection (2)(c) separate and distinct offenses, even where the thefts occur in a single criminal episode. It is clear from a reading of section 812.014 that the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses. We note that if a firearm is stolen, its value is not an element of the offense and it is grand theft even if the firearm is worth less than one hundred dollars.Getz, 435 So. 2d at 791 (emphasis supplied). In Getz, we looked directly to the theft statute to determine whether convictions and sentences for multiple theft offenses arising from one criminal episode are authorized by the Legislature. See id. The Getz decision clearly established that the Legislature intended to distinguish between the theft of the various items enumerated under the theft statute for the purpose of allowing multiple convictions and sentences for each theft that occurs during the course of one criminal transaction. See id.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -1

The Getz opinion analyzed  [*7]  the 1979 version of section 812.014 of the Florida Statutes. Under that version of the statute, theft of a firearm was listed under subsection (2)(b)(3) and was characterized as “grand theft of the second degree,” and subsection (2)(c) addressed petit theft. See § 812.014, Fla. Stat. (1979). Under the 2003 version of section 812.014, which was applied to Kelso in the instant matter, theft of a firearm is listed under subsection (2)(c)(5) and is characterized as “grand theft of the third degree,” and petit theft is addressed by subsection (3)(a). See § 812.014, Fla. Stat. (2003). Despite the renumbering and the reclassification of certain offenses in terms of degree, as illustrated above, section 812.014 has not been amended in any way that affects the analysis of the statute outlined by the Court in Getz.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

In 1983, n2 the Florida Legislature again amended section 775.021(4), in an effort to expressly incorporate the test announced by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), regarding whether offenses are separate under a double jeopardy analysis. The 1983 amendment added the following language:

For the purposes of this subsection, offenses  [*8]  are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.Ch. 83-156, § 1, at 556, Laws of Fla.; § 775.021(4), Fla. Stat. (1983). The amendment also deleted language from subsection (4) regarding “two or more criminal statutes” and replaced it with a reference to “separate criminal offenses.” See ch. 83-156, § 1, at 556, Laws of Fla. In the title of chapter 83-156, the Legislature stated that the amendment was “clarifying the term ‘separate criminal offenses’ for the purpose of requiring a separate sentence for each offense.” Therefore, the replacement of “two or more criminal statutes” with “separate criminal offenses” demonstrates that the Legislature had determined that it was possible for multiple offenses to be defined within a single criminal statute. See id.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -2

Although the Getz opinion was released in July of 1983, subsequent to the effective date of the 1983 amendment to section 775.021(4), the opinion clearly cites to and relies on the 1979 version of the statutory subsection. See Getz, 435 So. 2d at 790. Therefore, we analyze the 1983 amendment and its possible impact on the reasoning  [*9]  in Getz subsequent to our discussion of the Getz decision.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

The 1983 amendment to 775.021(4) enhanced the reasoning in the Getz opinion that different degrees of theft can be “separate criminal offenses” even though defined in the same statute. See Getz, 435 So. 2d at 790-91; ch. 83-155, § 1, at 556, Laws of Fla.; § 775.021(4), Fla. Stat. (1983). Similarly, the Blockburger test for separate offenses, which was codified in that amendment, confirmed the determination of this Court in Getz that “the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses.” Getz, 435 So. 2d at 791. Under the Blockburger test, thefts of different types of property listed under section 812.014 of the Florida Statutes constitute “separate offenses” because each requires proof of a unique element, the specific property stolen, that the other does not. See § 812.014, Fla. Stat. (2003).

However, essential to an analysis in the instant matter and creating arguable confusion with regard to the Getz holding, the Florida Legislature again amended section 775.021(4) in 1988 to emphasize the preference for the  [*10]  Blockburger analysis over the rule of lenity, and listing exceptions to that general preference, as follows:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.Ch. 88-131, § 7, at 709-10, Laws of Fla.; § 775.021(4)(b), Fla. Stat. (Supp. 1988); see also Gordon, 780 So. 2d at 24 (“[T]he Legislature amended section 775.021, explicitly enunciating its intent that crimes be separately punished without regard to the rule of lenity. We have noted repeatedly that the Legislature effectively overruled Carawan.”). Under the amended statute, the Legislature provided three exceptions to the general rule that offenses which are “separate” under the Blockburger analysis should be separately convicted and sentenced. In the instant  [*11]  matter, Kelso asserts that the second of these exceptions, for “[o]ffenses which are degrees of the same offense as provided by statute,” precludes the two theft convictions because third-degree grand theft of a firearm under section 812.014(2)(c)(5) of the Florida Statutes and second-degree grand theft under section 812.014(2)(b)(1) of the Florida Statutes are degrees of the same offense of theft.

This Court has established that

the prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature “intended to authorize separate punishments for the two crimes.” Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section 775.021, to determine whether separate offenses exist.Gordon v. State, 780 So. 2d 17, 19-20 (Fla. 2001) (citations and footnote omitted) (quoting M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996)). Therefore, if the theft statute itself is a “clear statement of legislative intent” with regard to whether convictions and sentences for multiple theft offenses can result from a single  [*12]  criminal transaction, then resort to the analysis outlined in section 775.021(4) of the Florida Statutes, as urged by defendant Kelso in the instant matter, is inappropriate.

We today affirm the reasoning of this Court in Getz that section 812.014 of the Florida Statutes constitutes a “clear statement of legislative intent” that convictions and sentences for multiple theft offenses arising from the same criminal episode are permitted. See Getz, 435 So. 2d at 791. Section 812.014 is structured so that thefts of the various enumerated properties constitute separate offenses. The Legislature intended these thefts to be separate offenses and to constitute different crimes. The types of property specifically enumerated demonstrate that strong policy concerns motivated the Legislature to single out these theft offenses for separate punishment. See, e.g., § 812.014(2)(c)(5), Fla. Stat. (2003) (theft of a firearm); § 812.014(2)(c)(8), Fla. Stat. (2003) (theft of a fire extinguisher); § 812.014(2)(c)(11), Fla. Stat. (2003) (theft of a stop sign). Specifically with regard to the offense of theft of a firearm under section 812.014(2)(c)(5) of the Florida Statutes, the Legislature clearly had a  [*13]  strong policy concern for singling out the theft of such dangerous instrumentalities that are widely used in the commission of violent crimes. As noted in Getz, “if a firearm is stolen, its value is not an element of the offense and it is grand theft even if the firearm is worth less than one hundred dollars.” Getz, 435 So. 2d at 791. The same is true for all of the properties which are specifically enumerated in section 812.014. The values of those items of property are irrelevant to the grading of the corresponding theft offense. See § 812.014, Fla. Stat. (2003). Therefore, we conclude that in section 812.014, the Legislature has expressed its clear intent that thefts of the various enumerated properties are to be charged and punished as separate offenses, even when the offenses arise out of the same criminal episode. Therefore, it is unnecessary to look to the rules of construction set out in section 775.021(4), and the assertions of Kelso stemming from the exceptions found in that statutory section must fail.

Although we recognize that the 1988 amendment to section 775.021(4) creates concern because section 812.014 describes the theft of the various enumerated properties in terms  [*14]  of degree, and the exception to the preference for separate convictions and sentences listed in section 775.021(4)(b)(2) is for “offenses which are degrees of the same offense as provided by statute,” the assertions of Kelso in the instant matter ultimately fail because section 812.014 offers a clear statement of legislative intent, thereby negating the need to look to the rules of construction found in section 775.021 to determine whether convictions for multiple degrees of theft arising from the same criminal episode are permitted. Accordingly, the convictions and sentences of Kelso in the instant matter for third-degree grand theft of a firearm under section 812.014(2)(c)(5) of the Florida Statutes and second-degree grand theft under section 812.014(2)(b)(1) of the Florida Statutes do not violate double jeopardy principles. We note that this would not be the case if the convictions were for theft of a firearm and theft of the monetary value of that firearm. However, the convictions for theft of a firearm and theft of separate property arising from the same criminal episode are proper under current Florida law.

In construing section 812.014 of the Florida Statutes, we have attempted  [*15]  to ascertain the intent of the Legislature and give independent meaning and effect to the words and structure selected for this legislation. If the interpretation we have afforded this section today is misdirected, we are confident our Legislature will review the pertinent legislation and take any action it deems appropriate.

CONCLUSION

We hold that the opinion of this Court in Getz remains the controlling law following the 1988 amendment to section 775.021 because section 812.014 constitutes a clear expression of legislative intent that thefts of the various enumerated properties under the statute be punished separately, even when the offenses arise from the same criminal episode. Therefore, the multiple theft convictions in the instant matter are permitted under Florida law and do not violate double jeopardy principles. Accordingly, we approve the decision of the Fourth District below and disapprove the decisions of the district courts in Wilson, Scarola, and Thompson, to the extent that they conflict with this decision.

It is so ordered.

WELLS, PARIENTE, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs with an opinion, in which, WELLS, J., concurs.

QUINCE, J., concurs in result only.

ANSTEAD,  [*16]  J., dissents.

CONCUR BY:   PARIENTE

CONCUR  

PARIENTE, J., concurring.

I concur with the majority because the Court decided this issue in State v. Getz, 435 So. 2d 789 (Fla. 1983). I write to elaborate on the majority’s explanation as to why section 775.021(4)(b), Florida Statutes (2006), has no effect on the holding in Getz or this case.

In Getz, the Court held that theft of a firearm and theft of other property valued at a certain dollar threshold are

separate and distinct offenses, even where the thefts occur in a single criminal episode. It is clear from a reading of section 812.014 that the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses.Id. at 791. The clarity of intent in the theft statute distinguishes Getz from Carawan v. State, 515 So. 2d 161 (Fla. 1987), in which the Court found “no evidence that the legislature intended multiple punishments” for attempted manslaughter and aggravated battery because both “address essentially the same evil.” Id. at 170.

In Carawan, the Court held that “absent a violation of constitutional right, specific, clear and precise statements of legislative intent  [*17]  control regarding intended penalties. Only where no clear intent exists does any other rule of construction come into play.” Id. at 165. The Court noted that specifically, the “same elements” test of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), codified in section 775.021(4), and the “rule of lenity” contained in section 775.021(1), become relevant only when legislative intent is otherwise unclear. Carawan, 515 So. 2d at 167-68. Finding no clear legislative intent to authorize multiple punishments, the Court in Carawan applied both the Blockburger test and, to greater effect, the rule of lenity, and concluded that multiple punishments were not authorized. Id. at 170-71.

Responding to Carawan, the Legislature narrowed the circumstances in which the rule of lenity could be used to determine legislative intent to authorize multiple convictions and sentences:

The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical  [*18]  elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.Ch. 88-131, § 7, at 709-10, Laws of Fla. (codified at § 775.021(4)(b)).

As the majority notes, this Court has repeatedly held that section 775.021(4)(b) overruled Carawan. It did so by limiting the use of the rule of lenity, which is available in the first place only where legislative intent is unclear, to the three scenarios specified in the provision. If legislative intent to authorize multiple punishments is clear, the rule of lenity does not apply regardless of whether the convictions meet the criteria of the three exceptions in subsection (4)(b).

Under Getz, legislative intent to authorize separate convictions for theft of a firearm and theft of other property valued at a specific statutory threshold is clear. Thus, even if we were to conclude that grand theft of a firearm and grand theft of property valued at $ 20,000 or more “are degrees of the same offense as provided by statute” within the meaning of section 775.021(4)(b)(2), we would have no occasion to resort to the rule of lenity  [*19]  in section 775.021(1) and no basis to conclude that multiple convictions constitute double jeopardy.

WELLS, J., concurs.

Courtesy of David Edelstein

JOSEPH KELLY, Petitioner, vs. STATE OF FLORIDA, Respondent.

No. SC06-842

SUPREME COURT OF FLORIDA

June 28, 2007, Decided

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY:    [*1]

Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions Fourth District – Case No. 4D04-4009 (Broward County).
Kelly v. State, 924 So. 2d 69, 2006 Fla. App. LEXIS 2302 (Fla. Dist. Ct. App. 4th Dist., 2006)

COUNSEL:   Fred Haddad, Fort Lauderdale, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Celia A. Terenzio, Bureau Chief, and Diane F. Medley, Assistant Attorney General, West Palm Beach, Florida, for Respondent.

JUDGES:   LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION  

PER CURIAM.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Kelly v. State, 924 So. 2d 69 (Fla. 4th DCA 2006). On motion for rehearing, the district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Johnson v. State, 695 So. 2d 861 (Fla. 2d DCA 1997), and Frazier v. State, 630 So. 2d 1237 (Fla. 2d DCA 1994), and the First District Court of Appeal in Vickery v. State, 515 So. 2d 396 (Fla. 1st DCA 1987). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that the Legislature intended that the mandatory minimum sentences for the two crimes in question in this case could be  [*2]  imposed consecutively, we approve the decision of the district court below denying Kelly’s motion under Florida Rule of Criminal Procedure 3.850.

FACTS AND PROCEDURAL HISTORY

Pursuant to a plea agreement, Kelly pled guilty to conspiracy to traffic in cocaine and trafficking in cocaine of more than 400 grams. Kelley [sic] v. State, 821 So. 2d 1255, 1256 (Fla. 4th DCA 2002) (Kelly I). He then violated his plea agreement and was sentenced to twenty years in prison with a fifteen-year mandatory minimum provision, consisting of two concurrent fifteen-year mandatory minimum sentences. Id. In sentencing Kelly, the judge explained that she had no discretion to deviate below the statutorily mandated minimum sentence of fifteen years for the trafficking charge without the prosecutor’s waiver. Id. Kelly filed a Motion to Correct Sentencing Error pursuant to Florida Rule of Criminal Procedure 3.800(b), arguing that the judge should have exercised discretion to sentence him to less than the mandatory minimum since he intended to purchase only an ounce of cocaine but ultimately purchased a kilogram due to police entrapment and inducement. Id. This motion was denied, and Kelly then appealed his sentence  [*3]  to the Fourth District, again arguing that the sentencing judge had the discretion to depart below the mandatory minimum sentence since Kelly was induced by the police into buying the larger amount of cocaine. Id. at 1256-57. The Fourth District affirmed Kelly’s sentence. Id. at 1258.

Kelly then filed a rule 3.850 motion for postconviction relief, subject of the instant case, alleging that trial counsel was ineffective for advising him that he was potentially facing a thirty-year mandatory prison term, consisting of stacked fifteen-year mandatory minimum sentences, one each for the trafficking charge and for the conspiracy to traffic charge. Kelly, 924 So. 2d at 69 (Kelly II). Kelly argued that since the mandatory minimums for these two crimes could only run concurrently under governing case law, he was actually only faced with a fifteen-year mandatory term. Id. at 70. Kelly alleged that but for this bad advice regarding a possible thirty-year mandatory term, he would not have taken the State’s plea agreement. Id. The trial court summarily denied the 3.850 motion, and Kelly appealed this summary denial to the Fourth District, arguing that he set forth a legally sufficient claim of ineffective  [*4]  assistance of counsel. Id. at 69.

In affirming the trial court’s denial of relief, the Fourth District concluded that there was no misadvice, because the trial court could properly have imposed the mandatory minimum terms consecutively. Id. First, the court below looked to the exact language of the governing statute, section 893.135, Florida Statutes, which reads in pertinent part:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:

. . . .

(b)1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as “trafficking in cocaine,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:

. . . .

c. Is 400 grams or more, but less than 150 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $ 250,000.

. . . .

(5)  [*5]  Any person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by subsection (1) commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act. Nothing in this subsection shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any violation of subsection (1).Kelly II, 924 So. 2d at 70 (quoting § 893.135(1), (5), Fla. Stat. (2005)). The lower court concluded that the statute clearly “authorizes convictions and sentences, with mandatory minimums for both the trafficking and conspiracy, even though they may arise out of the same transaction.” Id. The Fourth District then turned to two opinions from this Court, Daniels v. State, 595 So. 2d 952 (Fla. 1992), and Hale v. State, 630 So. 2d 521 (Fla. 1993), to determine whether the mandatory minimum terms could be imposed consecutively. Kelly II, 924 So. 2d at 70-71. Utilizing to the “Daniels/Hale analysis,” the court below held that trial counsel correctly advised Kelly that his sentences could be stacked because the statute specifically requires a mandatory minimum sentence for each separate crime.  [*6]  Id. at 71. “Paraphrasing Daniels, because the statute prescribing the penalty for [Kelly's] offenses does contain a provision for a minimum mandatory sentence, Kelly’s minimum mandatory sentences imposed for the crimes he committed arising out of the same criminal episode may be imposed consecutively.” Id.

The lower court acknowledged that its holding was in conflict with case law from other districts courts establishing that sentences for trafficking and conspiracy to traffic in the same cocaine on the same day cannot be stacked. Id. However, the Fourth District reasoned that Vickery, the primary case in conflict, was superseded by Daniels and Hale. Kelly II, 924 So. 2d at 71. Thus, the Fourth District held that the trial court was correct in denying Kelly’s motion for postconviction relief since he was not misadvised regarding the trial court’s ability to order consecutive mandatory minimum sentences for his two crimes. Id. at 71-72.

ANALYSIS

Kelly argues on appeal that the Fourth District incorrectly concluded that the mandatory minimum prison terms for trafficking and conspiracy to traffic in the same cocaine could be imposed consecutively. We disagree. We begin our analysis by noting  [*7]  that the intent of the Legislature as expressed in the plain language of the applicable sentencing statutes guides our decision as to whether the trial judge could have imposed consecutive mandatory minimum prison terms in Kelly’s case. See State v. Sousa, 903 So. 2d 923, 928 (Fla. 2005) (“The fundamental rule of construction in determining legislative intent is to first give effect to the plain and ordinary meaning of the language used by the Legislature.”).

Kelly asserts that the Fourth District’s conclusion below runs contrary to the weight of authority from other district courts, where a number of cases have held that sentences for trafficking and conspiracy to traffic in the same narcotic cannot be stacked when they arise out of the same criminal episode. Notably, in Vickery, the First District clearly held that mandatory minimum sentences imposed for trafficking and conspiracy to traffic in cocaine pursuant to section 893.135 could only be imposed concurrently, not consecutively. 515 So. 2d at 397. In reaching this conclusion, that court held that the cocaine offenses “constituted a single criminal episode and were neither separate nor distinct,” and thus the mandatory sentences  [*8]  could not be imposed consecutively for each offense. Id. The “single criminal episode” reasoning evidenced in Vickery has been followed by a number of other district courts, 1. including the Second District in Frazier, which the court below also certified as conflicting with the instant case. In that case, again involving convictions for trafficking in cocaine and conspiracy to traffic in cocaine, as well as possession of marijuana, the court analogized to Vickery in concluding that the mandatory minimum sentences were improperly stacked “[b]ecause of the similarity in time, place and amounts of cocaine, the facts show the same criminal episode.” Frazier, 630 So. 2d at 1237. The Second District again employed the “same criminal episode” analysis in Johnson when it held, “Consecutive minimum mandatory sentences may not be imposed for trafficking in cocaine and conspiracy to traffic in cocaine, when those offenses arise out of the same criminal episode and involve the same contraband.” 695 So. 2d at 861. Thus,  [*9]  Kelly correctly asserts that the lower district courts have consistently held that sentences for trafficking and conspiracy to traffic in the same substance must be imposed concurrently.

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See, e.g., Peoples v. State, 576 So. 2d 783, 789 (Fla. 5th DCA 1991) (“Consecutive minimum mandatory sentences are not appropriate when the multiple offenses for which sentences are imposed are committed during a single continuous episode. This rationale is applicable to sentences imposed pursuant to section 893.135.” (citing to Vickery and Palmer v. State, 438 So. 2d 1 (Fla. 1983))) approved in result, 612 So. 2d 555 (Fla. 1992); Short v. State, 572 So. 2d 1007, 1007 (Fla. 3d DCA 1991) (reversing consecutive mandatory minimum sentences for conspiracy to traffic in cocaine and trafficking in cocaine and holding “[b]ecause the offenses of trafficking and conspiracy to traffic in cocaine arose from a single criminal episode involving the same contraband, the offenses were ‘not sufficiently distinct to permit consecutive mandatory sentences.’” (quoting Vickery, 515 So. 2d at 397)).
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However, we believe that more recent precedent from this Court better resolves the instant question, as it focuses our inquiry  [*10]  on the Legislature’s intent as expressed in the applicable sentencing statutes. In Daniels, we answered a certified question of great public importance from the First District regarding a trial judge’s decision to impose three consecutive mandatory minimum sentences for first-degree felonies committed by a habitual violent felony offender. 595 So. 2d at 952-53. The defendant in Daniels was convicted of burglary while armed, sexual battery with a deadly weapon, and armed robbery, all arising out of a single criminal episode. Id. at 953. He was sentenced to three fifteen-year mandatory minimum sentences, designated to run consecutively. Id. The consecutive mandatory minimum sentences, however, were predicated on Daniels’ status as a habitual violent felony offender under statutory enhancement provisions; the applicable statutes prescribing the individual punishments for the underlying felonies contained no authorization for mandatory minimum penalties. Id. at 953-54. We therefore analogized to Palmer v. State, 438 So. 2d 1 (Fla. 1983), 2. in holding, “[Daniels'] minimum mandatory sentences imposed for the crimes he committed arising out of the same criminal episode may only be imposed  [*11]  concurrently and not consecutively.” 595 So. 2d at 954. Thus, in Daniels, we were not persuaded to stack mandatory minimum sentences when the underlying felony statute contained no authorization for a mandatory term.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -2.

In Palmer, defendant Palmer was convicted of thirteen counts of robbery, one count of aggravated assault, and one count of carrying a concealed firearm after robbing mourners at a funeral parlor during a wake. 438 So. 2d at 2. In addition to the other sentences for other charges, the trial court sentenced him to a mandatory minimum sentence of three years for each robbery for a total of thirty-nine years mandatory time on the robbery charges. Id. The statutory authority for the mandatory minimums was apparently derived from a firearm enhancement statute, section 775.087(2), Florida Statutes (1981); another statute, section 775.021(4), Florida Statutes (1981), provided that trial judges were allowed to issue consecutive prison sentences for separate offenses occurring during the same criminal episode. 438 So. 2d at 3. Thus, since Palmer robbed thirteen individuals at gunpoint at the funeral home in one criminal episode, the trial judge imposed thirteen consecutive three-year  [*12]  mandatory terms for the robberies. Id. We reversed, however, ruling that the applicable firearm enhancement sentencing statute did not authorize a trial court to deny a defendant the eligibility for parole for a period greater than three calendar years, and accordingly the robbery sentences could only be imposed concurrently. Id. at 3-4.
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In Hale, we relied upon Daniels in deciding whether sentences for the sale of cocaine and possession of cocaine with intent to sell could be imposed consecutively. 630 So. 2d at 524. The defendant in Hale was also designated a habitual violent felony offender, allowing the trial judge to sentence him to consecutive ten-year mandatory terms for each count. Id. at 522-23. Addressing whether the trial court erred in imposing the sentences consecutively in light of our recent decision in Daniels, we held that Hale’s consecutive sentences had to be reversed since his mandatory terms were likewise the result of an enhancement statute and were not expressly provided for in the statute. Id. at 524.

In [Daniels] we distinguished statutory sentences in which the legislature had included a minimum mandatory sentence . . . from sentences in which there is no minimum  [*13]  mandatory penalty although one may be provided as an enhancement through the habitual violent offender statute. . . . We find that the same principle applies in the instant case. None of the statutes under which Hale was sentenced contain a provision for a minimum mandatory sentence.Id. While the trial court was permitted to impose separate consecutive sentences for the possession of the cocaine and for the sale of the cocaine, we held that it was not allowed to first enhance Hale’s sentence as a violent offender and then make the enhanced sentence for each charge run consecutively without specific legislative authority. Id. at 525.

Turning to the instant case, it is our view that the plain language of the statutes permit the prescribed mandatory minimum sentences for conspiracy to traffic and trafficking in the same cocaine to be stacked. As quoted above, the conspiracy to traffic statute, section 893.135(5), provides that “[a]ny person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by [the trafficking statute] commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act.” § 893.135(5), Fla. Stat.  [*14]  (2005). By the plain wording of the statute, the Legislature provides that the punishment for a conspiracy to traffic offense should mirror that for an actual trafficking offense; the penalty for trafficking as prescribed in the applicable statute requires a mandatory minimum prison term of fifteen years. See § 893.135(1)(b)1.c. The conspiracy statute then specifically provides that “[n]othing in this [conspiracy] subsection shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any violation of [the trafficking statute].” § 893.135(5). Thus, the governing statutes provide that a defendant is to be sentenced separately for conspiracy and for trafficking, with each crime requiring a mandatory minimum prison term. Accordingly, we find that the Fourth District was correct in concluding that Kelly’s minimum mandatory sentences for conspiracy to traffic and trafficking in cocaine could have been imposed consecutively.

CONCLUSION

Since section 893.135, Florida Statutes, prescribes a separate fifteen-year mandatory minimum sentence for conspiracy to traffic in cocaine and for trafficking in cocaine, we agree with the Fourth District’s conclusion  [*15]  that the trial court could have imposed these mandatory minimum sentences consecutively. Kelly’s ineffective assistance of counsel claim was properly denied, as trial counsel did not misadvise Kelly that he was potentially facing a thirty-year mandatory term. We disapprove of the decisions in Johnson, Frazier and Vickery to the contrary. The Fourth District’s decision herein is approved.

It is so ordered.

LEWIS, C.J., aGo To FL Supreme Court Brief(s)nd WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

Courtesy of David Edelstein

JESSE GUARDADO, Appellant, vs. STATE OF FLORIDA, Appellee.

No. SC05-2035

SUPREME COURT OF FLORIDA

June 28, 2007, Decided

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court in and for Walton County, Kevin C. Wells, Judge – Case No. 6604-CC-000903A.

COUNSEL:   Nancy A. Daniels, Public Defender, and W. C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida for Appellant.

Bill McCollum, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee.

JUDGES:   LEWIS, C.J., and WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur. ANSTEAD, J., recused.

OPINION  

PER CURIAM.

We have on appeal the judgment and sentence of the trial court finding Jesse Guardado guilty of murder in the first degree and imposing a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the convictions and sentences.

Procedural and Factual History

Guardado was indicted on charges of murder in the first degree and robbery with a weapon based on events occurring on or about September 13, 2004, in Walton County, Florida. Guardado pled guilty to both counts on October 19, 2004. Before the penalty phase, Guardado filed several motions that were denied, including a motion to declare Florida’s death penalty unconstitutional. On September 12-15, 2005, a penalty  [*2]  phase jury convened and heard evidence in support of aggravating and mitigating factors.

At the time these crimes were committed, Guardado had served time in prison, having been sentenced to twenty years for the crime of robbery with a deadly weapon in Orange County, Florida, and fifteen to twenty years for the crimes of robbery and robbery with a weapon in Seminole County, Florida. The Seminole County sentences ran concurrent with the Orange County sentence. He was placed on conditional release supervision on January 1, 2003, with the conditional release to expire on February 6, 2014.

Guardado had known the victim of the present crimes, 75-year-old Jackie Malone, since 2003, and had rented places to live from her. Guardado had been a guest in her home, including a few overnight stays when he was between rentals. He received assistance from Ms. Malone on numerous occasions including financial assistance, and she had assisted him in getting the job with the local water treatment plant which he held at the time of the crime. Guardado knew certain things about Ms. Malone, including the fact that she kept some money on hand in her wallet.

On the day in question, September 13, 2004, Guardado  [*3]  wanted to get high and continue his recent crack cocaine binge. Desperate for money to fix his truck and obtain drugs, Guardado decided to rob a local grocery store. His attempted robbery with a knife was thwarted by one of the employees. Still desperate for money, Guardado decided to rob and murder Ms. Malone that night because she lived in a secluded area and because she would open her home to him based on their prior trusting relationship.

Guardado arranged to drive his girlfriend’s vehicle to work for the night shift. He generally maintained a change of clothes in his girlfriend’s car because of the nature of his work at the treatment plant. On this occasion he made sure there were clothes in the car because a hurricane was due to make landfall in a few days. In addition to leaving clothes in the car, Guardado armed himself with a metal “breaker bar.” He next drove to the parking lot at the Wal-Mart in DeFuniak Springs, where he got a kitchen knife from his disabled truck that was parked there. With both weapons in his possession, he then drove his girlfriend’s car to Ms. Malone’s house.

Ms. Malone had already retired for the night so Guardado continually knocked on her door to awaken  [*4]  her. Guardado identified himself by name when she came to the door. She greeted Guardado, and he told her he needed to use the telephone. When she turned away to allow him to enter the house, he pulled the “breaker bar,” which was hidden behind his back in his pants, and struck her repeatedly about her head. Ms. Malone raised her hands in defense, and then fell to the living room floor. Ms. Malone did not die from the numerous blows with the “breaker bar,” so Guardado pulled the kitchen knife and stabbed her several times, then slashed her throat.

Guardado said he hit her on the head with the “breaker bar” and thought that would have killed her, but it did not, so he hit her several more times. He also said that when she fell on the floor behind the couch it seemed she was not going to die so he stabbed her with the knife, including to the heart, so it would be over. However, Guardado confessed, “It just seemed not to go that way, she would not die.” After beating and stabbing Ms. Malone, Guardado went to her bedroom, looked through her belongings for money and valuables, and took her jewelry box, briefcase, purse, and cell phone.

Dr. Minyard, a forensic pathologist and Chief Medical  [*5]  Examiner for Walton County, testified concerning the cause of death and her review of the autopsy report and photographs. Dr. Minyard testified that Ms. Malone suffered several injuries including (1) at least twelve abrasions, contusions, and lacerations of the skin on the head, neck and face, (2) bruising under the surface of the scalp, (3) a subarachnoid hemorrhage, (4) at least two incised wounds on the neck, (5) five stab wounds to the chest, (6) a fracture of the finger, and (7) incised wounds to the right hand. The evidence further revealed Ms. Malone was conscious at least through the time that Guardado inflicted the stab wound to her heart. Dr. Minyard said the fracture and wounds to Ms. Malone’s hands were consistent with the victim attempting to fend off repeated blows from the breaker bar and her attacker, by reaching or grabbing for the knife.

On September 15, 2005, the jury returned a unanimous recommendation that Guardado be sentenced to death. After the jury’s advisory sentence, Guardado waived a Spencer 1. hearing, and the trial court found his waiver to be voluntary. The trial court stressed however, that Guardado would be offered another opportunity to present additional  [*6]  mitigation before sentencing. The trial court set final sentencing for September 30, 2005, and requested sentencing memoranda from the State and Guardado. The State requested a Spencer hearing despite Guardado’s waiver of such a hearing. On September 30, 2005, over Guardado’s continued assertion of waiver, the trial court held a Spencer hearing, received additional mitigation evidence, and set final sentencing for October 13, 2005.

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Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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On October 13, 2005, based on the evidence presented at the penalty phase proceeding and the Spencer hearing, the trial court sentenced Guardado to death for the first-degree murder of Ms. Malone. On the count of robbery with a weapon, Guardado was sentenced to thirty years’ imprisonment with the sentence to run consecutive to the murder count.

The trial court made detailed findings on the aggravating and mitigating factors. The court found five aggravating factors: (1) the capital felony was committed by a person under sentence of imprisonment or on conditional release supervision; (2) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the  [*7]  person (to wit: armed robbery, April 9, 1984; robbery with a deadly weapon, July 6, 1990; robbery, January 23, 1991; robbery with a weapon, January 23, 1991; attempted robbery with a deadly weapon, February 17, 2005); (3) the capital felony was committed while the defendant was engaged in the commission of, or attempt to commit, or escape after committing, a robbery with a weapon; (4) the capital felony was especially heinous, atrocious, or cruel (HAC); and (5) the crime was committed in a cold, calculated and premeditated manner (CCP).

Guardado did not ask the trial court to consider any statutory mitigating circumstances, and the trial court did not find any. The trial court did find nineteen nonstatutory mitigating factors (ten as requested by Guardado, seven additional ones based upon review and consideration of the defense expert at the Spencer hearing, and two that were suggested by the State). 2. The trial court gave the jury’s advisory sentence and recommendation great weight and considered and weighed the aggravating and mitigating circumstances. The trial court found, as did the jury, that the aggravating circumstances outweighed the mitigating circumstances. Guardado raises  [*8]  four issues on this direct appeal, which we address below.

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The nonstatutory mitigating factors and the weight given by the trial court are: (1) defendant entered a plea of guilty to first-degree murder without asking for any plea bargain or other favor in exchange (great weight); (2) defendant has fully accepted responsibility for his actions and blames nobody else for this crime (great weight); (3) defendant is not a psychopath pursuant to expert testimony and would not be a danger to other inmates or correctional officers should he be given a life sentence (moderate weight); (4) defendant could contribute to an open prison population and work as a plumber or an expert in wastewater treatment plant operations should he be given a life sentence (little weight); (5) defendant fully cooperated with law enforcement to quickly resolve the case to the point of helping law enforcement officers recover evidence to be used against him at trial (great weight); (6) defendant has a good jail record while awaiting trial with not a single incident or discipline report (little weight); (7) defendant has consistently shown a great deal of remorse for his actions (great weight); (8) defendant has  [*9]  suffered most of his adult life with an addiction problem to crack cocaine which was the basis of his criminal actions (some weight); (9) defendant has a good family and a good family support system that could help him contribute to an open prison population (moderate weight); (10) defendant testified he would try to counsel other inmates to take different paths than he has taken should he be given a life sentence (moderate weight); (11) as a child, defendant suffered a major trauma in his life by the crib death of a sibling (moderate weight); (12) as a child, defendant suffered another major trauma in his life by being sexually molested by a neighbor (moderate weight); (13) defendant has a lengthy history of substance abuse (marijuana and Quaaludes during early teen years, graduating to alcohol and cocaine and substance abuse treatment beginning about age 14 or 15 (little weight); (14) defendant’s biological father passed away before defendant developed any lasting memories of him (little weight); (15) defendant was raised by his mother, whom he always considered loving, thoughtful and concerned, and by a stepfather he later came to respect (little weight); (16) defendant was under  [*10]  emotional duress during the time frame of this crime (little weight); (17) defendant does not suffer a mental illness or major emotional disorder (little weight); (18) defendant offered to release his personal property, including his truck, to his girlfriend (little weight); and (19) defendant previously contributed to state prison facilities as a plumber and in wastewater treatment work (little weight).
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Discussion of Issues

NELSON INQUIRY

Guardado argues the trial court erred by failing to comply with the requirements outlined in Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), when he expressly asked the court to remove his court-appointed counsel. Guardado maintains that his continued request to discharge counsel was a request to represent himself and that the trial court’s denial violated his right of self-representation. The State asserts most of Guardado’s complaints were generalized complaints about counsel and did not require a Nelson inquiry, and that other complaints about counsel were meritless as a matter of law, and thus they were properly denied. Additionally, the State argues Guardado never asked to represent himself.

Guardado’s history of self-representation and representation  [*11]  by counsel is a convoluted one. It is clear, however, that the only issue before this Court is whether or not Guardado should have been allowed to represent himself at the Spencer hearing. Guardado was allowed, after proper inquiry by the trial court, to represent himself at the plea hearing. After the guilt phase proceedings were concluded, Guardado, at his own request, was represented by counsel during the presentation of evidence at the penalty phase. We find under the circumstances presented here that the trial court did not err in its ruling on the complaints made by Guardado concerning counsel at the Spencer hearing.

A trial court’s decision involving withdrawal or discharge of counsel is subject to review for abuse of discretion. See Weaver v. State, 894 So. 2d 178, 187 (Fla. 2004). Where a defendant seeks to discharge his lawyer on grounds of ineffective assistance, the trial court is required to make a series of inquiries. See Hardwick v. State, 521 So. 2d 1071, 1074-75 (Fla. 1988) (quoting Nelson v. State, 274 So. 2d 256, 258-59 (Fla. 4th DCA 1973)). However, any inquiry by the trial court can only be as specific as the complaints made by the defendant. When the defendant  [*12]  makes generalized complaints about counsel, the trial court need not make a Nelson inquiry. See Morrison v. State, 818 So. 2d 432, 441 (Fla. 2002); Sexton v. State, 775 So. 2d 923, 930-31 (Fla. 2000); Gudinas v. State, 693 So. 2d 953, 962 n. 12 (Fla. 1997).

At the plea hearing, the trial court asked Guardado about appointment of an attorney for the penalty phase. Guardado stated he did not want counsel appointed. At this point Guardado entered his plea of guilty, and the trial court accepted the plea. A date for the penalty phase was set, and the trial court told Guardado that if he changed his mind about the appointment of counsel at any time before the penalty phase, the court would consider any request. Ultimately, counsel was appointed and the penalty phase occurred as scheduled. 3. There was no request by Guardado to discharge appointed counsel prior to the completion of evidence at the penalty phase proceeding.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -3.

The record does not clearly reflect under what circumstances or why Guardado changed his mind about representation at the penalty phase. At best the record indicates that Guardado’s family wanted him to have counsel and that he acquiesced to their desires.
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Guardado testified  [*13]  at the penalty phase, after which the court made certain inquiries directly to the defendant in regards to whether there was any other evidence he knew of at that time that he would like to present. Guardado was hesitant about answering before speaking with his attorneys. After Guardado conferred with counsel, the trial court again inquired if there was any other mitigation evidence he would like to present. Guardado informed the trial court that he had no other evidence.

After the jury recommendation, the trial court discussed the Spencer hearing and the consideration of any further mitigation evidence. Guardado’s counsel advised the court that Guardado was waiving the Spencer hearing and wanted to proceed straight to sentencing. The trial court inquired of Guardado and found his decision to waiver the hearing was done knowingly, voluntarily, and intelligently. The trial court set sentencing for September 30, 2005, and requested sentencing memoranda from the parties.

However, after receipt of the sentencing memoranda and the State’s request for a Spencer hearing, the trial court held a Spencer hearing on September 30, 2005. Guardado’s counsel again reiterated Guardado’s desire not to  [*14]  have a Spencer hearing and his wish to proceed to sentencing. The trial court again inquired of Guardado under oath concerning other mitigation evidence, to which he responded, “I have no knowledge of any further mitigation that I can present.” The proceeding continued and the trial court asked the defendant if he was in fact instructing his attorneys not to present any further mitigation on his behalf. In response to the trial court’s inquiry Guardado began his complaints about penalty phase counsel. Guardado told the trial court that counsel spent less than an hour in actual conference with him before the trial. He constantly asked his attorney for information about the case and did not receive anything. Guardado also stated that when the trial court ruled on his motions, he asked counsel when he would see him again because he needed to speak with him and counsel said he would see him on Monday, the day of trial. Guardado said he had someone call to say he no longer wished counsel to represent him. However, his mother was distraught about this decision so he allowed counsel to proceed against his (Guardado’s) better judgment. In essence, Guardado generally did not like his counsel’s  [*15]  performance. Guardado also made general complaints about the evidence that counsel presented and about counsel’s failure to object to other evidence. In the final analysis, Guardado was complaining that he wanted to be sentenced on that day, that he did not want a Spencer hearing, and that his case was not proceeding in an expeditious manner.

In Morrison v. State, 818 So. 2d 432, 440 (Fla. 2002), this Court cited to Hardwick and the procedure to be followed when a defendant complains that his counsel is incompetent. We noted that “the trial judge is required to make a sufficient inquiry of the defendant to determine whether or not appointed counsel is rendering effective assistance to the defendant.” Morrison, 818 So. 2d at 440 (citing Howell v. State, 707 So. 2d 674, 680 (Fla. 1998)). However, “as a practical matter, the trial judge’s inquiry can only be as specific as the defendant’s complaint.” Id. (citing Lowe v. State, 650 So. 2d 969 (Fla. 1994)). We found in Morrison that although Morrison made several requests to replace counsel, the claims “centered principally around Morrison’s dissatisfaction with the amount of communication between him and counsel.” Id. at 441. Furthermore,  [*16]  we noted, “[a] lack of communication, however, is not a ground for an incompetency claim.” Id. Additionally, Morrison “expressed displeasure with counsel’s refusal to provide copies of legal documents and efforts in contacting witnesses.” Id. We found Morrison was not entitled to a Nelson hearing because “[t]hese complaints can best be described as general complaints about his attorney’s trial preparation.” Id. The record reflects Guardado made several general complaints that did not warrant a Nelson/Hardwick hearing. Guardado complained that counsel did not spend a lot of time with him and that he did not receive information about his case. This type of general complaint does not rise to the requisite level to warrant a Nelson/Hardwick hearing. In Sexton v. State, 775 So. 2d 923, 931 (Fla. 2000), we found defendant’s statement asking for a delay of trial until he could obtain attorneys he could have confidence in merely expressed general dissatisfaction with the trial preparation of his lawyer. We found it was not a sufficient basis to support a contention that his attorney was incompetent. Similarly, in Gudinas v. State, 693 So. 2d 953, 961-62 (Fla. 1997), the defendant objected  [*17]  to his exclusion from an in-chambers discussion between the attorneys and the trial judge. We found defendant never specifically claimed defense counsel was acting in a legally incompetent manner and thus was essentially making a general complaint about trial strategy, a complaint that did not require a Nelson inquiry. Pursuant to Morrison, Sexton, and Gudinas, a Nelson inquiry is not required where defendant states generalized grievances.

In this case, the record supports the conclusion that the trial court did not abuse its discretion in its handling of Guardado’s complaints about counsel. His complaints about counsel occurred at the Spencer hearing, a hearing that he had attempted to waive. Apparently disgruntled by the lack of expediency he desired, Guardado complained that he was “shown a great indifference” by counsel, which is the type of general grievance that does not require a Nelson hearing. Under the circumstances of this case, Guardado’s complaints in total are analogous to a lack of confidence in and dissatisfaction with counsel’s trial strategies and a request for sentencing on that day, complaints which do not require a Nelson hearing. Therefore, the trial court did  [*18]  not abuse its discretion in not conducting a Nelson hearing.

AGGRAVATORS

Heinous, Atrocious, or Cruel Aggravator

Guardado argues that the evidence was insufficient to establish the heinous, atrocious or cruel (HAC) aggravating circumstance and that the trial court erred when it instructed the jury it could consider the HAC circumstance based on these facts. Conversely, the State asserts there is competent, substantial evidence to support the trial court and jury’s consideration and finding of HAC. We agree with the State, and affirm the trial court’s determination that HAC is applicable to this case.

The standard of review this Court applies to a claim regarding the sufficiency of the evidence to support an aggravating circumstance is that of competent, substantial evidence. See England v. State, 940 So. 2d 389, 403 (Fla. 2006), cert. denied, 127 S. Ct. 1916, 167 L. Ed. 2d 571 (2007). This Court has found competent, substantial evidence to support the HAC aggravator in a number of cases involving brutal beatings. See Dennis v. State, 817 So. 2d 741, 766 (Fla. 2002) (HAC affirmed where both victims suffered skull fractures and were conscious for at least part of the attack as they had defensive wounds to  [*19]  their hands and forearms); Bogle v. State, 655 So. 2d 1103, 1109 (Fla. 1995) (HAC affirmed where victim was struck seven times on the head, victim was alive during infliction of most of the wounds, and the last blows caused death); Wilson v. State, 493 So. 2d 1019, 1023 (Fla. 1986) (HAC affirmed where victim was brutally beaten while attempting to fend off the blows before being fatally shot). We have also upheld the HAC aggravator in cases where the victim has been repeatedly stabbed. See Owen v. State, 862 So. 2d 687, 698 (Fla. 2003) (citing Cox v. State, 819 So. 2d 705, 720 (Fla. 2002)); Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 1998) (affirming the HAC aggravator where the victim was stabbed or cut eighteen times and was alive when all the wounds were inflicted).

In this case the trial court found the capital felony was especially heinous, atrocious, or cruel pursuant to section 921.141 (5)(h), Florida Statutes (2004). The trial court said:

[T]his murder was indeed a conscienceless, pitiless crime, which was unnecessarily torturous to the victim. The evidence establishes beyond a reasonable doubt that the defendant administered a savage attack on Ms. Malone first by repeated blows  [*20]  about her head and limbs with a metal bar, which she tried to fend off and sustained a finger fracture; that the defendant observed Ms. Malone still alive and lying on the floor despite that flurry of blows; that the defendant then mindful of his previous prison job slaughtering cattle, took out a kitchen knife that he brought with him and twice slashed Ms. Malone’s throat and stabbed her (including the fatal stab to her heart) while she grabbed for the knife further trying to fend off or fight her attacker. The defendant admitted the facts concerning the crime.The record supports this determination.

Guardado confessed that he killed the victim. The autopsy revealed the victim was beaten about the head several times, stabbed repeatedly (including a mortal wound to the heart), and her throat slashed. Specifically, the medical examiner testified the victim had “multiple abrasions, contusions and lacerations of head and face.” There were twelve lacerations to the head, five stab wounds to the chest and two incise wounds to the neck. The examiner also testified there were incise wounds to the victim’s right hand, the type that happens when “the victim tries to grab the assailant’s weapon  [*21]  and in so doing, is cut with the sharp blade.” The medical examiner said she believed the victim was conscious during the attack because “she does have the defense wounds on her hands,” indicative she was “still conscious enough to try to grab the assailant’s weapon.” This evidence supports the trial courts finding of HAC.

Contrary to Guardado’s assertions, the victim did not lose consciousness quickly after the initial blows to her head. The defensive wounds are indicative of consciousness up to the time of the fatal stab wound to the heart. Under similar circumstances, we have affirmed findings of HAC where defensive wounds revealed awareness of impending death. See, e.g., Boyd v. State, 910 So. 2d 167, 191 (Fla. 2005) (finding of HAC affirmed where victim was repeatedly stabbed and evidence revealed victim was alive and conscious for some of the attack and was struggling with her attacker). More recently in Reynolds v. State, 934 So. 2d 1128, 1156 (Fla. 2006), cert. denied, 127 S. Ct. 943, 166 L. Ed. 2d 721 (2007), we noted with approval the fact that the medical examiner’s testimony established the victims had defensive wounds indicating consciousness during some part of the attack. Furthermore, “we  [*22]  have upheld the application of HAC even where ‘the medical examiner determined the victim was conscious for merely seconds.’” Id. (quoting Francis v. State, 808 So. 2d 110, 135 (Fla. 2001)).

The trial court properly found HAC under the facts of this case, and the trial court properly instructed the jury on this aggravating circumstance.

Cold, Calculated and Premeditated

Guardado next argues the evidence was insufficient to establish the cold, calculated and premeditated (CCP) aggravator and that the trial court erroneously instructed the jury it could consider the CCP aggravator under these facts. Conversely, the State asserts there is competent, substantial evidence to support the trial court’s finding of CCP. This Court has noted that to support the CCP aggravator, a jury must find (1) that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic or a fit of rage (cold); (2) that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); (3) that the defendant exhibited heightened premeditation; and (4) that the defendant had no pretense of moral or legal justification. See Buzia v. State, 926 So. 2d 1203, 1214 (Fla.)  [*23]  (citing Jackson v. State, 648 So. 2d 85, 89 (Fla. 1994)), cert. denied, 127 S. Ct. 184, 166 L. Ed. 2d 129 (2006).

In this case, the CCP aggravator was proven beyond a reasonable doubt. The evidence reveals Guardado was desperate for money for drugs and to fix his vehicle. He first attempted to rob a local grocery store. When that robbery was thwarted by the victim, Guardado arranged to drive his girlfriend’s vehicle to work for the night shift. Guardado knew he had a change of work clothes in the car because of the nature of his work at the water treatment plant and because a hurricane was expected to strike the area in the near future. Guardado told the police that he chose Ms. Malone to murder and rob that night because of the “secluded location of her home,” and because she would open her home to him (even at night) due to their prior relationship. Before going to Ms. Malone’s house, Guardado armed himself with the kitchen knife and a “breaker bar” to use as the murder weapons. Guardado said in his confession that “he knew what he was going to do when he drove to the victim’s home.” When he was asked if he planned to kill Ms. Malone he responded, “Yes, and get the money.” These facts clearly show that  [*24]  the murder was the result of cool and calm refection, with a careful plan, with the purpose of robbing the victim of her money so that the defendant could get high on drugs and fix his vehicle.

Contrary to Guardado’s assertions that his drug use negates CCP, we have concluded that a chronic drug abuser can act “acted according to a deliberate plan,” where the evidence shows he “was fully cognizant of his actions on the night of the murder.” Robinson v. State, 761 So. 2d 269, 278 (Fla. 1999). In Robinson, the victim was beaten and then stabbed by a chronic drug abuser. Similarly to this case, Robinson confessed he stole the victim’s property to pawn for money to purchase drugs. See Robinson, 767 So. 2d at 271. The trial court found the CCP aggravator, and we affirmed without discussion. In this case, there is likewise no evidence to support a conclusion that Guardado’s drug use robbed him of the ability to plan and execute this murder. We therefore affirm the trial court’s determination that the CCP aggravator is applicable to this situation.

Ring Issue

Guardado argues the trial court erred in denying his motion to dismiss because the death penalty statute is unconstitutional pursuant  [*25]  to Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Guardado asks this Court to reconsider its position in Bottoson v. Moore, 833 So. 2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S. Ct. 662, 154 L. Ed. 2d 564 (2002) and King v. Moore, 831 So. 2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S. Ct. 657, 154 L. Ed. 2d 556 (2002), because Ring represents a major change in the law. The State argues that this Court has repeatedly rejected Ring claims and that Guardado is asking this Court to reconsider Bottoson and King in general and not based on the specifics of his case. The State maintains there was no violation of Guardado’s Sixth Amendment right to a jury trial because he pled guilty to the charges, and Guardado had a jury in the penalty phase that unanimously recommended death. We deny relief based on precedent from this Court and based on the fact that one of the aggravating circumstances found in this case is a prior violent felony.

In numerous cases that have been decided since the Ring decision, this Court has rejected similar arguments that Florida’s death penalty statute is unconstitutional based on Ring. See Marshall v. Crosby, 911 So. 2d 1129, 1134 n. 5 (Fla. 2005). In addition, this Court has repeatedly found that the prior violent felony aggravator  [*26]  takes a case outside the scope of Ring. See Marshall, 911 So. 2d at 1135 & n.6; see also Smith v. State, 866 So. 2d 51, 68 (Fla. 2004) (denying relief on a Ring claim and noting that one of the aggravating factors present in the case was a prior violent felony); Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003) (finding that the existence of a prior violent felony conviction satisfies the constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt).

Guardado is not entitled to relief based on the Ring decision.

Sufficiency of the Evidence

Guardado has not raised sufficiency of the evidence to support his conviction in this case. However, the State asserts this case is an exception because Guardado waived any claim based on the sufficiency of the evidence by entering a guilty plea and stipulating to the factual basis. Notably, this Court has held that although a defendant has not challenged the sufficiency of the evidence to support the murder conviction, “we have the independent duty to review the record in each death penalty case to determine whether competent, substantial evidence supports the murder conviction.” Buzia v. State, 926 So. 2d 1203, 1217 (Fla. 2006).  [*27]  Moreover, “‘[w]hen a defendant has pled guilty to the charges resulting in a penalty of death, this Court’s review shifts to the knowing, intelligent, and voluntary nature of that plea.’” Tanzi v. State, 32 Fla. L. Weekly S223, S227 (Fla. 2007) (quoting Winkles v. State, 894 So. 2d 842, 847 (Fla. 2005)).

The record reflects Guardado pled guilty to the charges and elected to waive the reading of the factual basis for each charge. However, the State read the factual basis for the charges from the indictment and Guardado did not object to any of the facts. Additionally, during the plea colloquy, Guardado expressed an understanding of the plea and the possibility that he could be given the death penalty. Furthermore, Guardado testified at the penalty phase regarding his crimes and essentially admitted his guilt. Accordingly, there is competent, substantial evidence in the record supporting Guardado’s conviction for first-degree murder.

Proportionality

Although Guardado has not raised this issue, this Court “conducts a review of each death sentence for proportionality, regardless of whether the issue is raised on appeal.” England v. State, 940 So. 2d 389, 407 (Fla. 2006); see also Fla. R. App. P. 9.142(a)(6). 4.  [*28]  In deciding whether a death sentence is proportionate, this Court must consider the totality of the circumstances and compare the case with other similar capital cases. See Sexton v. State, 775 So. 2d 923, 935 (Fla. 2000). This analysis “is not a comparison between the number of aggravating and mitigating circumstances.” Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990). Instead, this Court must look to the nature of and the weight given to the aggravating and mitigating circumstances. For purposes of proportionality review, this Court accepts the jury’s recommendation and the trial judge’s weighing of the aggravating and mitigating evidence. See Bates v. State, 750 So. 2d 6, 12 (Fla. 1999).

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -4.

Rule 9.142 (a)(6) is entitled “Scope of Review” and reads as follows: “In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”
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In this case, the trial court gave the jury’s advisory sentence and recommendation great weight. The trial court found five aggravators, including prior violent felony, HAC and CCP; no statutory mitigators; and nineteen  [*29]  nonstatutory mitigators, including the entry of plea, cooperation with the authorities, a good jail record, addiction to cocaine, could counsel other inmates about making better choices, and remorse. The trial court and the jury found the aggravating circumstances outweighed the mitigating circumstances. This Court has found death to be the appropriate penalty in other cases involving similar aggravating and mitigating circumstances. See e.g., Duest v. State, 855 So. 2d 33 (Fla. 2003) (finding death sentence proportionate where victim was stabbed multiple times and the trial court found several aggravators including prior violent felony and HAC, no statutory mitigators and twelve nonstatutory mitigators, including a history of drug and alcohol abuse, willingness and ability for rehabilitation, lack of intent to kill, and a physically and mentally abusive childhood); Morrison v. State, 818 So. 2d 432 (Fla. 2002) (finding death sentence proportionate where the victim was stabbed several times and the trial court found several aggravators including prior violent felony and HAC; no statutory mitigators; and eight nonstatutory mitigators, including good jail conduct, cooperation with the  [*30]  police, alcohol and cocaine abuse, and only borderline intellectual ability).

This Court found the death penalty proportionate in a recent case where similar aggravators and two statutory mitigators were found. See Buzia v. State, 926 So. 2d 1203 (Fla. 2006) (finding death sentence proportionate where the victim was beaten and the trial court found several aggravators including prior violent felony, HAC, and CCP plus two statutory mitigators and seven nonstatutory mitigators). In Buzia we said both the HAC and CCP aggravators are “two of the most serious aggravators set out in the statutory sentencing scheme.” Buzia, 926 So. 2d at 1216 (quoting Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999)). Both of these serious aggravators are applicable in this case.

In sum, we find the factual circumstances and the nature and weight given to the aggravating and mitigating circumstances in this case demonstrate that the sentence of death is proportional to other murder cases involving similar factual circumstances and similar aggravating and mitigating circumstances.

Conclusion

For all of the reasons expressed above, we affirm the judgments and sentences, including the sentence of death imposed by  [*31]  the trial court.

It is so ordered.

LEWIS, C.J., and WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, J., recused.

Courtesy of David Edelstein

WILLIAM THOMAS ZEIGLER, JR., Appellant, vs. STATE OF FLORIDA, Appellee.

No. SC05-1333

SUPREME COURT OF FLORIDA

June 28, 2007, Decided

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court in and for Orange County, Reginald Karl Whitehead, Judge. Case Nos. 48-1988-CF-5355-O and 48-1988-CF-5356-O.
Zeigler v. Crosby, 543 U.S. 842, 125 S. Ct. 280, 160 L. Ed. 2d 67, 2004 U.S. LEXIS 5975 (2004)

COUNSEL:   John Houston Pope of Epstein, Becker, and Green, P.C., New York, New York, Dennis H. Tracey, III and Laurence L. Robin-Hunter of Hogan and Hartson, LLP, New York, New York, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, Florida, for Appellee.

JUDGES:   LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION  

PER CURIAM.

William Thomas Zeigler, Jr., appeals an order denying his successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the trial court’s denial of Zeigler’s postconviction motion.

I. PROCEDURAL & FACTUAL BACKGROUND

“In 1976, Zeigler was convicted of the first-degree murders of Eunice Zeigler, his wife, and Charlie Mays, a friend, and the second-degree murders of his in-laws, Perry and Virginia Edwards.” Zeigler v. State, 654 So. 2d 1162, 1163 (Fla. 1995). In Zeigler’s 1995 postconviction appeal,  [*2]  this Court explained the procedural history of Zeigler’s numerous state proceedings as follows:

The trial judge overrode the jury’s recommendation of life imprisonment and imposed two death sentences. [This Court] in Zeigler v. State, 402 So. 2d 365 (Fla. 1981), cert. denied, 455 U.S. 1035, 102 S. Ct. 1739, 72 L. Ed. 2d 153 (1982), . . . affirmed Zeigler’s convictions and sentences of death.

Zeigler subsequently pursued postconviction relief. See Zeigler v. State, 452 So. 2d 537 (Fla. 1984) (remanded for an evidentiary hearing on claim of judicial bias); Zeigler v. State, 473 So. 2d 203 (Fla. 1985) (affirmed trial court’s denial of judicial bias claim); State v. Zeigler, 494 So. 2d 957 (Fla. 1986) (reversed trial court’s order which had granted an evidentiary hearing on claim that the trial judge did not consider nonstatutory mitigating circumstances). Zeigler then petitioned this Court for habeas corpus relief. We ordered resentencing, holding that the trial judge did not realize that the nonstatutory mitigating evidence was pertinent. Zeigler v. Dugger, 524 So. 2d 419 (Fla. 1988).

Resentencing occurred in August of 1989. The trial court (presided over by a different judge because the original trial judge was unavailable)  [*3]  again overrode the jury’s recommendation of life and imposed two death sentences. We affirmed the sentences on appeal. Zeigler v. State, 580 So. 2d 127 (Fla. 1991), cert. denied, 502 U.S. 946, 112 S. Ct. 390, 116 L. Ed. 2d 340 (1991). Thereafter, we affirmed the denial of a postconviction motion which had been pending during resentencing. Zeigler v. State, 632 So. 2d 48 (Fla. 1993), cert. denied, 513 U.S. 830, 115 S. Ct. 104, 130 L. Ed. 2d 52 (1994). This motion only addressed issues arising out of the conviction phase.

Zeigler then filed [another] postconviction motion seeking to vacate the death sentences imposed on resentencing. . . .

At the hearing on the 3.850 motion, Zeigler also filed a motion for release of evidence and appointment of an expert, which requested that the bloodstain evidence introduced at his trial be re-examined utilizing modern DNA testing procedures.Id. In 1995, we affirmed the trial court’s denial of Zeigler’s postconviction motion as well as the trial court’s decision that Zeigler’s DNA claim was procedurally barred. Id. at 1164-65.

However, in 2001, the trial court granted Zeigler’s motion for release of evidence for DNA testing. Zeigler’s motion had stated a desire to test the evidence for clemency proceeding purposes. In  [*4]  2003, after the testing was completed, Zeigler filed a motion to authorize (nunc pro tunc) DNA testing and the instant motion to vacate convictions based upon newly available evidence. In April 2005, after holding a two-day evidentiary hearing, the trial court denied Zeigler’s motion, concluding that “even if the alleged newly discovered evidence resulting from the DNA testing had been admitted at trial, there is no reasonable probability that Defendant would have been acquitted.”

Although this Court has set forth the facts of this case in prior opinions, we restate the following facts from the direct appeal that are relevant to our evaluation of Zeigler’s newly discovered evidence claim:

On Christmas Eve, December 24, 1975, Eunice Zeigler, wife of defendant (hereinafter referred to as wife), and Perry and Virginia Edwards, parents-in-law of defendant (hereinafter referred to as Perry and Virginia), were shot to death in the W. T. Zeigler Furniture Store in Winter Garden, Florida. In addition, Charles Mays, Jr., (hereinafter referred to as Mays), was beaten and shot to death at the same location. Times of death were all estimated by the medical examiner as within one hour of 8:00 P.M.  [*5]  The defendant was also shot through the abdomen.

The state’s theory of the case may be summarized as follows:

Edward Williams had known defendant and his family for a number of years. Williams testified that in June 1975 defendant inquired of him about obtaining a “hot gun.” Williams then went to Frank Smith’s home and arranged for Smith to purchase two RG revolvers. The revolvers were delivered to defendant. Also, during the latter part of 1975 defendant purchased a large amount of insurance on the life of his wife. Thus was shown the means and the motive.

Mays and his wife came to defendant’s furniture store during the morning of December 24 and Mays agreed to meet defendant around 7:30 P.M. The store was closed around 6:25 P.M.

Mays left his home around 6:30 P.M. He went to an Oakland beer joint and saw a friend, Felton Thomas, who accompanied Mays to the Zeigler Furniture Store.

The theory of the state’s case is that defendant had two appointments on Christmas Eve, one with Mays and one with Edward Williams. Prior to these appointments he took his wife to the store and in some manner arranged for his parents-in-law to go there. He killed his wife, Eunice, quickly, and for her, unexpectedly,  [*6]  since she was found with her hand in a coat pocket, shot from behind.

Because of the location of her body, Virginia was probably trying to hide among the furniture. Perry probably surprised defendant with his strength and stamina as they struggled for some time. After defendant subdued Perry and rendered him harmless, defendant shot him. Considering the fact that a bullet penetrated Virginia’s hand, the state said it was likely she was huddled in a protective position when she was executed.

Defendant then left the store, returning to meet with Mays who had arrived there at about 7:30. He was probably surprised to see the presence of another man, Felton Thomas, with Mays. He took Thomas and Mays to an orange grove to try the guns. The state says that the purpose of the trip was to get the two to handle and fire the weapons in the bag. From the grove he returned to the store, but was unsuccessful in getting Mays or Thomas to provide evidence of a break-in. He did, however, get Thomas to cut off the lights in the store. The three returned to defendant’s home. Defendant got out, went to the garage, came back and took a box of some kind to Mays and told him to reload the gun. They returned  [*7]  to the store. Defendant could not persuade Thomas to enter the store, so Thomas lived. When Thomas disappeared, the defendant returned to his home and picked up Edward Williams. Defendant had killed Mays.

Defendant was successful in getting Williams partially inside the back hallway. Defendant put a gun to Williams’ chest and pulled the trigger three times, but the gun did not fire. Williams said, “For God’s sake, Tommy, don’t kill me,” and ran outside, refusing to return to the store. The state says that the empty gun was as much a surprise to defendant as it was to Williams. The state says that in all probability defendant thought he was holding the gun that Mays had shot in the orange grove and which defendant told Mays to reload.

When he was unable to get Williams into the store, the defendant became desperate and conceived the idea that he would appear uninvolved if he happened to be one of the victims. Accordingly, he shot himself and then called Judge Vandeventer’s residence where he knew the police officers would be.

The defendant denies that he had any contact with Smith or purchased any guns from him. He says that the increase in the amount of the insurance policy [on his wife's  [*8]  life] was pursuant to advice on an estate plan. Defendant says that his wife, Perry, and Virginia were killed during the course of a robbery; that Mays was involved in the robbery but was killed by his confederates; that he was shot by the burglars and left to die. The jury obviously did not believe the testimony of the defendant. To have believed his story, the jury would necessarily have had to disbelieve the testimony of Smith, Thomas, and Williams and would have had to have found no significance in the other substantial evidence.Zeigler v. State, 402 So. 2d 365, 367-68 (Fla. 1981).

II. ISSUES RAISED ON APPEAL

Zeigler argues that the trial court erred in denying his postconviction motion by applying an incorrect standard and by ignoring portions of the record. n1 More specifically, Zeigler asserts that the DNA test results corroborate Zeigler’s theory that Mays and two others committed the murders because the testing indicated the presence of Perry Edwards’ blood on Mays’ clothing. Zeigler also asserts that the DNA test results rebut the State’s theory that Zeigler struggled with Perry Edwards since the testing identified the presence of Mays’ blood on Zeigler’s shirts, but not the  [*9]  presence of Perry Edwards’ blood. However, for the reasons explained below, we affirm the trial court’s order.

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Zeigler also claims that the trial court (1) erroneously limited the scope of the evidentiary hearing to the DNA test results; and (2) erroneously denied Zeigler’s request to conduct further DNA testing. However, we find that these claims are without merit. First, the claims that the trial court excluded from consideration at the evidentiary hearing are procedurally barred. See Jones v. State, 709 So. 2d 512, 522 n.7 (Fla. 1998). Second, Zeigler abandoned the DNA testing motion when he filed a notice of appeal before the trial court ruled on the testing motion. See In re Forfeiture of $ 104,591 in U.S. Currency, 589 So. 2d 283, 285 (Fla. 1991).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

This Court has described “the standard that must be satisfied in order for a conviction to be set aside based on newly discovered evidence” [:]

First, the “asserted facts ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’ ” [Jones v. State, 591 So. 2d 911,] 916 [(Fla. 1991)] (quoting Hallman v. State, 371 So. 2d 482, 485 (Fla. 1979)).  [*10]  Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Jones, 591 So. 2d at 915. In determining whether the evidence compels a new trial under Jones, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. at 916. This determination includes

whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether this evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.Rutherford v. State, 926 So. 2d 1100, 1107-08 (Fla. 2006) (quoting Jones, 709 So. 2d at 521).

In reviewing a trial court’s denial of a newly discovered evidence claim after an evidentiary hearing, this Court respects a trial court’s findings of fact as long as the findings are supported by competent, substantial evidence in the record. Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997).  [*11]  The same is true regarding “the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.” Id. (quoting Demps v. State, 462 So. 2d 1074, 1075 (Fla. 1984)). However, as with rulings on other postconviction claims, this Court reviews the trial court’s application of the law to the facts de novo. Gore v. State, 846 So. 2d 461, 468 (Fla. 2003).

We find that the trial court applied the proper standard for the second prong of the newly discovered evidence test, the only prong contested in this case. Applying the proper legal standard, the trial court listed the following findings in its thorough order denying relief:

Defendant admitted that he was at the crime scene, and there is no dispute that his blood, as well as the blood of the four victims, was present at the scene. Although the DNA testing identified, in some cases, whose blood was on the clothing of both Defendant and Mays, it did not conclusively eliminate Defendant as the perpetrator of the crimes.

The bodies of both Mays and Perry were found at the back of the furniture store within a few feet of each other. While the blood found on Mays’ shoes and the stains on his pants leg and cuff areas  [*12]  revealed a genetic profile consistent with Perry, these findings are consistent with Mays standing next to Perry, or being in close proximity to his body, after Perry was killed. These findings do not show, as Defendant asserts, that Mays was the perpetrator, rather than a victim of the crimes. Instead, if Mays were involved in a struggle with Defendant while in close proximity with Perry’s bloodied body, it would not be surprising that Perry’s blood ended up on Mays’ shoes and pants during the altercation.

Testimony given at both the trial and evidentiary hearing indicated that the stains on the back of Defendant’s red shirt were not transferred from the floor, as Defendant claims, but instead were consistent with a beating wherein the instrument used in the beating caused the blood to initially spray upward, then fall back onto the shirt. Even though all the stains on the shirt were not tested, testimony was adduced that if the spatters on the Defendant’s shirt came from Mays, Defendant was the one who beat Mays to death. No findings were introduced which contradicted this testimony.

Patterns made by smeared blood were present on Mays’ sweatshirt and on top of those patterns were stains  [*13]  from force consistent with a beating. The blood patterns had dried for fifteen to thirty minutes before the spatter landed on top of them. Testimony at the evidentiary hearing indicated that while the bloodstains could have been transferred from Mays’ sweatshirt to Defendant’s shirt, merely crawling over the shirt, as Defendant claims he did, would not be sufficient; instead, Defendant would have to lie across Mays’ torso in order to achieve those particular stains.

Finally, the fact that only Mays’ blood was found on the left arm of Defendant’s t-shirt does not exonerate Defendant or even tend to exonerate Defendant. As Weiss stated at the evidentiary hearing, it was possible to miss blood on the shirt, due to deterioration and improper storage. It was also possible to have a mixed stain, from multiple contributors, in the same area. Thus, the presence of Mays’ blood, and the absence of Perry’s, on Defendant’s t-shirt does not conclusively show that Defendant did not hold Perry in a headlock and beat him.

The trial court’s findings of fact are supported by competent, substantial evidence in the record, particularly the evidentiary hearing testimony of the blood stain expert and the  [*14]  DNA testing analyst as well as the 1976 trial testimony of Zeigler and the original blood stain expert. In fact, the bloodstain expert who testified during the evidentiary hearing after examining the evidence presented at the 1976 trial indicated that all of the blood spatter evidence on Zeigler’s clothing would be explained if Zeigler was the perpetrator. Moreover, in 1995 this Court came to the same conclusion as the trial court while assuming that the DNA evidence would prove more favorable to Zeigler than it actually did. n2 This Court stated “that even if the DNA results comported with the scenario most favorable to Zeigler, he still would not have been able to show that the evidence would have probably produced an acquittal.” Zeigler v. State, 654 So. 2d at 1164. We explained that “[t]he State’s case was not entirely circumstantial, and in order to accept Zeigler’s theory of the case, the jury would have had to disbelieve at least three witnesses who testified at the trial.” Id. Given the above, we affirm the trial court’s order denying relief.

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Zeigler originally argued “that DNA testing may rebut the State’s hypothesis that the type ‘A’ bloodstains found on Zeigler’s clothing  [*15]  originated from a struggle with Mays or [Perry] Edwards.” Zeigler 654 So. 2d at 1163-64. However, the DNA testing of portions of Zeigler’s shirts revealed genetic markers consistent with Mays. Thus, the DNA results did not rebut a struggle with Mays.
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III. CONCLUSION

For the reasons expressed above, we affirm the trial court’s order denying Zeigler’s postconviction motion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

Courtesy of David Edelstein

CHADWICK WILLACY, Appellant, vs. STATE OF FLORIDA, Appellee. CHADWICK WILLACY, Petitioner, vs. JAMES R. MCDONOUGH, etc., Respondent.

Nos. SC05-189 & SC05-2021

SUPREME COURT OF FLORIDA

June 28, 2007, Decided

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court in and for Brevard County, J. Preston Silvernail, Judge — Case No. 05-1990-CFA-16062-XX And an Original Proceeding — Habeas Corpus.
Willacy v. State, 696 So. 2d 693, 1997 Fla. LEXIS 558 (Fla., 1997)

COUNSEL:   Brian M. Onek of Balgo, Onek and Mawn, P.A., Melbourne, Florida, and Elizabeth Siano Harris of Stadler and Harris, P.A., Titusville, Florida, for Appellant/Petitioner

Bill McCollum, Attorney General, Tallahassee, Florida, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, Florida, for Appellee/Respondent.

JUDGES:   LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION  

PER CURIAM.

Chadwick Willacy appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons stated below, we affirm the circuit court’s order denying Willacy’s rule 3.850 motion and deny his writ petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

n1

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See Willacy v. State, 640 So. 2d 1079 (Fla. 1994) (hereinafter Willacy I) and Willacy v. State, 696 So. 2d 693 (Fla. 1997) (hereinafter Willacy II).
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On September 5, 1990, Marlys Sather returned  [*2]  home unexpectedly to find Willacy, her next-door neighbor, burglarizing her house. Willacy bludgeoned Sather and bound her ankles with wire and duct tape. He choked and strangled her with a cord with a force so intense that a portion of her skull was dislodged. Willacy then obtained Sather’s ATM pin number, her ATM card, and the keys to her car; drove to her bank; and withdrew money out of her account. Willacy hid Sather’s car around the block while he made trips to and from the house. He placed stolen items on Sather’s porch for later retrieval, took a significant amount of property from Sather’s house to his house, and then drove the car to Lynbrook Plaza where he left it and jogged back to Sather’s home. Upon his return, Willacy disabled the smoke detectors, doused Sather with gasoline he had taken from the garage, placed a fan from the guest room at her feet to provide more oxygen for the fire, and struck several matches as he set her on fire.

When Sather failed to return to work after lunch, her employer notified the Sather family of her absence. Sather’s son-in-law went to her home and found a shotgun and several electronic items lying on the back porch. Inside the home, he found  [*3]  Sather’s body. Medical testimony established that her death was caused by inhalation of smoke from her burning body.

Law enforcement officers conducted an investigation into Sather’s murder, uncovering a large amount of evidence linking Willacy to the murder. Willacy’s fingerprints were found on the fan at Sather’s feet, the gas can, and a tape rewinder at Sather’s house. Witnesses reported seeing a man matching Willacy’s description near Sather’s house and driving Sather’s car on the day of the murder. Further, Willacy’s girlfriend, Marisa Walcott, telephoned law enforcement officers after discovering a woman’s check register in Willacy’s wastebasket. Law enforcement officers recognized the check register as belonging to Sather and subsequently arrested Willacy. While executing a search warrant on Willacy’s home, law enforcement agents uncovered some of Sather’s property, as well as several articles of clothing containing blood consistent with Sather’s blood type.

Willacy was charged by indictment with first-degree premeditated murder, burglary, robbery, and arson. Judge Theron Yawn presided over the trial. On October 17, 1991, the jury convicted Willacy on all four counts. Following  [*4]  the penalty phase, the jury recommended death by a vote of nine to three, and Judge Yawn sentenced Willacy to death. n2

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Judge Yawn found four aggravating factors: the murder was committed (1) while engaged in the commission of arson; (2) for pecuniary gain; (3) in an especially heinous, atrocious, or cruel manner; and (4) to avoid arrest. The sole statutory mitigating factor was Willacy’s lack of prior criminal activity, and the two nonstatutory mitigating factors were Willacy’s history of nonviolence and his attempts at self-improvement while in jail.
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Willacy appealed to this Court but subsequently moved for temporary relinquishment of jurisdiction in order for the trial court to hold an evidentiary hearing on his motion for a new trial. In his motion for a new trial, Willacy claimed that juror Clark, the foreman of Willacy’s trial in 1991, was under prosecution for grand theft. Jurisdiction was relinquished and on October 12, 1992, Judge Yawn conducted a hearing on Willacy’s motion. Among the witnesses at the hearing, the court heard testimony from Willacy’s trial counsel, the prosecutors in his case, and juror Clark. The prosecutors testified that they became aware of Clark’s status  [*5]  during Willacy’s trial and immediately informed Willacy’s trial counsel. Willacy’s trial counsel denied receiving this information during trial. Following the hearing, Judge Yawn issued an order denying Willacy’s motion for a new trial, finding that the State informed Willacy’s trial counsel of Clark’s status during trial.

During oral argument on direct appeal, the parties thoroughly debated the issue of juror Clark’s eligibility. n3 Willacy’s counsel asserted that Clark was under prosecution and, therefore, statutorily ineligible to serve as a juror until he entered into a pretrial intervention (PTI) agreement. According to Willacy’s counsel, because Clark did not sign a PTI contract until after Willacy’s trial, Clark was disqualified. The State countered that Clark was eligible to serve because he was approved for PTI prior to Willacy’s trial. Alternatively, the State argued that because Willacy’s trial counsel failed to object to Clark during trial, the matter was waived. This Court affirmed the convictions but vacated the death sentence and remanded the case for a new penalty phase based on Willacy’s claim that the trial court did not give defense counsel an opportunity to rehabilitate  [*6]  a juror who said she was opposed to the death penalty. Willacy I, 640 So. 2d at 1082. As to the controversy regarding juror Clark, this Court held:

Since Clark was not under prosecution, Willacy’s motion for a new trial was properly denied. Moreover, during the trial the State informed Willacy’s counsel of Clark’s status and his counsel voiced no objection. By failing to make a timely objection, Willacy waived the claim he now seeks to assert. We affirm the trial court’s decision.Willacy I, 640 So. 2d at 1083.

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The eight issues raised on direct appeal were: (1) the court committed reversible error when it refused the defense an opportunity to rehabilitate a prospective juror; (2) a prospective juror was improperly challenged based on his race; (3) the jury foreman was ineligible to serve; (4) the court improperly found that Willacy’s statements were voluntarily made; (5) the killing was not committed to avoid arrest; (6) the killing was not heinous, atrocious, or cruel; (7) the court improperly weighed the mitigating and aggravating factors; and (8) death is an inappropriate penalty. Willacy I, 640 So. 2d at 1081 n.2.
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At resentencing, Willacy was represented by new counsel and Judge  [*7]  Yawn again presided. The State presented evidence of the crime and testimony of Sather’s son and two daughters. Willacy presented the testimony of relatives and friends. The court followed the jury’s eleven-to-one recommendation and sentenced Willacy to death, finding five aggravating factors, n4 no statutory mitigating factors, and thirty-one nonstatutory mitigating factors of little weight. n5 On direct appeal after resentencing, Willacy raised eleven issues. n6 This Court denied each of those claims and affirmed Willacy’s death sentence. Willacy II, 696 So. 2d at 694.

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The five aggravating factors were: (1) the murder was committed in the course of a felony; (2) the murder was committed to avoid lawful arrest; (3) the murder was committed for pecuniary gain; (4) the murder was especially heinous, atrocious, or cruel (HAC); and (5) the murder was committed in a cold, calculated, and premeditated manner (CCP).5

The nonstatutory mitigating factors were that Willacy (1)-(3) exhibited kindness, compassion, and concern for others; (4) enjoyed the love and affection of his family; (5)-(6) enjoyed the respect and admiration of his peers and his family; (7) demonstrated a desire and a willingness  [*8]  to help others; (8)-(9) was a leader and a role model to his peers; (10) maintained strong ties to his family; (11) exhibited appropriate demeanor and behavior during the resentencing hearing; (12) exhibited love for his family; (13)-(14) was a good and loyal friend and a good and obedient son; (15) was unselfish; (16) contributed to the lives of others; (17) showed the proper respect for his elders; (18)-(19) demonstrated honesty and responsibility; (20) was a hard worker; and (21) voluntarily sought help for his drug problem. While in school, Willacy (22) enjoyed the respect and confidence of his teachers and coaches; (23) did not experience any academic or disciplinary problems; (24) was a disciplined and dedicated member of his high school track team; (25) demonstrated a willingness to help his teammates and otherwise be a team player; (26) was the captain of his high school track team and enjoyed numerous honors in connection with his talents as a runner; (27) had no history of previous violent conduct; and (28) had a good upbringing without serious disciplinary problems. Judge Yawn also considered (29)-(30) any other aspect of Willacy’s character or background; and (31) any other  [*9]  factor deemed appropriate.6

The eleven issues Willacy raised on direct appeal after resentencing were: (1) the denial of Willacy’s motion for recusal of the judge; (2) the admission of inflammatory evidence; (3) the finding that the murder was heinous, atrocious, or cruel (HAC); (4) the finding that the murder was committed to evade arrest; (5) the finding that the murder was committed for pecuniary gain; (6) the finding that the murder was committed in a cold, calculated, and premeditated manner (CCP); (7) the proportionality of the death sentence; (8) the admission of victim impact evidence; (9) the refusal to strike jurors for cause; (10) cumulative error; and (11) the constitutionality of the death penalty statute.
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On May 11, 1998, Willacy filed a motion to vacate judgment of conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850 with special request for leave to amend. On March 18, 2002, Willacy filed an amended motion for postconviction relief in which he raised thirty-one issues. Seventeen of Willacy’s claims were summarily denied by order on September 24, 2003. n7 An evidentiary hearing was granted on Willacy’s remaining fourteen claims. n8 The evidentiary  [*10]  hearing was held on December 3 through 5 and 19, 2003, and February 16, 2004. On November 23, 2004, the trial court issued an order denying the remaining fourteen claims. Willacy timely filed this appeal.

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Willacy’s claims that were summarily denied included: (3) Willacy was denied a fair trial due to the State’s failure to inform the court of juror Clark’s statutory ineligibility; (4) counsel was ineffective for waiving the appointment of independent counsel to litigate the facts and circumstances regarding juror Clark’s pending felony charges; (5) counsel was ineffective for failing to fully present to the trial court during the hearing on October 12, 1992, all aspects of the pretrial intervention program and juror Clark’s status as pending prosecution at the time of his jury service; (6) counsel was ineffective for failing to object to juror Clark’s ineligibility to serve as a juror; (8) the trial court applied an incorrect standard of review or law in denying Willacy’s motion for a new trial; (9) Willacy was denied a fair trial due to juror misconduct; (11) counsel was ineffective for failing to timely move to disqualify Judge Yawn from presiding over the second penalty phase  [*11]  proceeding; (12) the trial court erred by failing to follow the procedure outlined in Spencer v. State, 615 So. 2d 688 (Fla. 1993), in resentencing Willacy in 1995; (14) jurors were not sworn prior to voir dire in the original trial as required by Florida Rule of Criminal Procedure 3.300(a); (15) counsel was ineffective for failure to object to the trial court’s failure to swear the jury prior to voir dire in the original trial; (16) the trial court erred in concluding that there was probable cause for Willacy’s arrest and search of his home; (20) the trial court erred in failing to properly instruct the jury during the 1995 penalty phase proceeding on the distinction between regular premeditation and the higher standard of cold, calculated, and premeditated murder; (26) the indictment violated the Sixth Amendment and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because it failed to include aggravating circumstances; (27) Florida’s death penalty statute is unconstitutional under the Sixth Amendment and Apprendi because the jury was not instructed that they must unanimously find beyond a reasonable doubt any aggravating circumstance; (28) the trial court’s failure to instruct the jury  [*12]  that they must unanimously find that the aggravating circumstances outweigh the mitigating circumstances in order to recommend a death sentence violated the Sixth Amendment and Apprendi; (29) the trial court’s failure to require a unanimous binding jury verdict as to the death penalty was unconstitutional under Apprendi; (30) lethal injection and Florida’s procedures implementing lethal injection constitute cruel or unusual punishment in violation of the Eighth Amendment and article I, section 17 of the Florida Constitution.8

These claims all pertained to the ineffectiveness of trial counsel: (1) failure to raise an independent act defense; (2) failure to investigate potentially exculpatory evidence; (7) failure to inquire of juror Clark during voir dire regarding his eligibility to serve; (10) failure to prepare fully and adequately for trial by retaining a fingerprint or crime scene expert; (13) failure to seek to disqualify the trial judge based on the trial court’s use of a sentencing order which had been prepared prior to the Spencer hearing; (17) failure to object to evidence introduced at trial; (18) failure to request a jury instruction on felony murder and the law of principals;  [*13]  (19) failure to request an Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), jury instruction; (21) failure to present evidence of a statutory mitigating circumstance pursuant to section 921.141(6)(f), Florida Statutes (Supp. 1990); (22) failure to present statutory mitigating circumstances pursuant to section 921.141(6)(b), Florida Statutes (Supp. 1990); (23) failure to present statutory mitigating circumstances pursuant to section 921.141(6)(h), Florida Statutes (Supp. 1990); (24) failure to present mental health testimony to rebut the State’s claim that the murder was committed in a cold, calculated, and premeditated manner; (25) waiver of the presentencing investigation report; and (31) cumulative error.
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II. 3.850 MOTION FOR POSTCONVICTION RELIEF

Willacy appeals the denial of his motion for postconviction relief, raising seven issues: (1) the trial court erred in denying an evidentiary hearing on claims 4, 6, and 15 of his motion for postconviction relief; (2) counsel was ineffective for failing to assert the independent act defense; (3) counsel was ineffective for failing to move to recuse the trial judge at the resentencing proceeding; (4) counsel was ineffective for failing to investigate  [*14]  and present evidence of statutory and nonstatutory mitigating factors; (5) counsel was ineffective for failing to inquire regarding juror Clark’s status; (6) the trial court erred in failing to retroactively apply this Court’s decision in Lowrey v. State, 705 So. 2d 1367 (Fla. 1998); and (7) the trial court erred in denying Willacy’s motion for postconviction DNA testing.

A. Trial Court’s Denial of Evidentiary Hearing

Willacy first claims that the trial court erred in denying an evidentiary hearing on claims 4, 6, and 15 of his motion for postconviction relief. “To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” Finney v. State, 831 So. 2d 651, 656 (Fla. 2002) (quoting Peede v. State, 748 So. 2d 253, 257 (Fla. 1999)). Because a court’s decision as to whether to grant an evidentiary hearing on a rule 3.850 motion filed in a capital case is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So. 2d 120, 137 (Fla. 2003) (holding that “pure questions of law” that are discernible  [*15]  from the record “are subject to de novo review”).

The trial judge denied Willacy an evidentiary hearing on claim 4, in which Willacy asserted that trial counsel, Kurt and Susan Erlenbach, were ineffective for failing to request the appointment of independent counsel at the hearing on his motion for a new trial. The judge did so because he found that “no conflict of interest existed requiring the appointment of an independent counsel at the evidentiary hearing.” Order Denying in Part Defendant’s Amended Motion for Postconviction Relief, Granting an Evidentiary Hearing on Specified Claims, and Scheduling an Evidentiary Hearing (hereinafter Order Denying Postconviction Relief) at 7 (Sept. 24, 2003). We agree.

Willacy essentially argues that, because the Erlenbachs were necessary witnesses at the post-trial hearing on his motion for new trial, they were required by Rule of Professional Conduct 4-3.7, Rules Regulating the Florida Bar, to seek the appointment of independent counsel. He claims that their failure to do so created a conflict of interest. With some exceptions, rule 4-3.7 provides that “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary  [*16]  witness on behalf of the client.” (Emphasis supplied.) However, this rule does not mandate the withdrawal of counsel who must testify in a post-trial hearing such as occurred here. See Columbo v. Puig, 745 So. 2d 1106, 1107 (Fla. 3d DCA 1999). The hearing on Willacy’s motion for new trial was a very limited, post-trial evidentiary hearing regarding juror Clark’s status and whether information about juror Clark was exchanged between opposing counsel. The Erlenbachs’ testimony was brief and entirely favorable to the defendant. As the trial court stated:

Kurt Erlenbach testified that no one told him that Juror Clark was pending prosecution. Similarly, Susan Erlenbach testified that she never had a conversation with [the prosecution] regarding this issue. The Erlenbachs’ testimony was favorable to the defense and all testimony at the hearing was under oath. The facts would not have changed so how the outcome would have changed with the use of independent counsel at the motion for new trial hearing who may have used a different strategy is inconceivable and pure speculation at best.Order Denying Postconviction Relief, at 7-8 (Sept. 24, 2003) (record references omitted). We agree with the  [*17]  trial court that, under these circumstances, rule 4-3.7 does not mandate the appointment of independent counsel.

Outside of this purported violation of rule 4-3.7, Willacy fails to allege any conflict of interest which would necessitate withdrawal of defense counsel and appointment of independent counsel. As the United States Supreme Court has held:

[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) (citation omitted) (citing Holloway v. Arkansas, 435 U.S. 475, 487-91, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978); Glasser v. United States, 315 U.S. 60, 72-75, 62 S. Ct. 457, 86 L. Ed. 680 (1942)). Because Willacy’s counsel was not required under rule 4-3.7 to seek the appointment of independent counsel and there is no other allegation that the Erlenbachs were actively representing conflicting interests, Willacy has not established the predicate for his claim of ineffective assistance. The trial court’s denial of this  [*18]  claim without an evidentiary hearing is affirmed.

Next, the record conclusively refutes Willacy’s claim that the trial court improperly denied an evidentiary hearing on claim 6, that counsel was ineffective for failing to object to juror Clark’s ineligibility to serve. As we have previously held, counsel is not ineffective for failing to make a futile objection. See Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986). Here, the trial court had already conducted an evidentiary hearing with regard to the juror Clark issue when it was deciding Willacy’s motion for a new trial. Judge Yawn found that the Erlenbachs were informed of Clark’s status at some point during the trial, but failed to object. Therefore, Judge Yawn determined that Willacy waived objection on this matter. On direct appeal, the parties thoroughly explained to this Court the sequence of events leading up to Clark’s entry into the pretrial intervention (PTI) program and his service on Willacy’s jury. We held on the merits that Clark was eligible to serve. Thus, even if the Erlenbachs had sought to have Clark disqualified, their objection ultimately would have failed. Therefore, because this claim is conclusively refuted  [*19]  by the record, we affirm the trial court’s denial of an evidentiary hearing.

Finally, the trial court denied Willacy an evidentiary hearing on claim 15, in which Willacy argued that trial counsel was ineffective for failing to object to the trial court’s failure to swear the jury prior to voir dire. Florida criminal procedure does not mandate that a judge swear the jury after the venire has already been sworn by the jury clerk. See Lott v. State, 826 So. 2d 457, 458 (Fla. 2d DCA 2002), review denied, 845 So. 2d 891 (Fla. 2003). Therefore, Willacy’s ineffective assistance of counsel claim is legally insufficient. No evidentiary hearing was required.

B. Ineffective Assistance of Trial Counsel n9

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In addition to the ineffectiveness claims discussed below, Willacy argues that trial counsel was ineffective for failing to inquire into juror Clark’s status during voir dire and that this Court’s holding in Lowrey v. State, 705 So. 2d 1367 (Fla. 1998), should be applied retroactively to this case. As stated above, because this Court determined on direct appeal that Clark was not under prosecution during Willacy’s trial, these claims have no merit, are procedurally barred, and require no further  [*20]  discussion.
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Willacy raises three claims of ineffective assistance of counsel, including the failure to (1) assert the independent act defense; (2) move to recuse the trial judge at the resentencing proceeding; and (3) investigate and present evidence of statutory and nonstatutory mitigating factors. Each claim fails under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

This Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied under Strickland:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.Dufour v. State, 905 So. 2d 42, 51 (Fla. 2005) (quoting Maxwell, 490 So. 2d at 932). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial  [*21]  evidence but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004). There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689.

Claims that could have been brought on direct appeal are procedurally barred in postconviction proceedings. Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995). “Postconviction proceedings cannot be used as a second appeal.” Swafford v. Dugger, 569 So. 2d 1264, 1267 (Fla. 1990); (see also Medina v. State, 573 So. 2d 293, 295 (Fla. 1990) (“[I]t is inappropriate to use a different argument to relitigate the same issue.” (citing Quince v. State, 477 So. 2d 535 (Fla. 1985))). “Allegations of ineffective assistance cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal.” Medina, 573 So. 2d at 295 (citing Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987);  [*22]  Sireci v. State, 469 So. 2d 119 (Fla. 1985)).

(1) Counsel’s Failure to Assert the Independent Act Defense

First, Willacy alleges that trial counsel was ineffective for failing to assert the independent act defense. In his statement to law enforcement officers following his arrest, Willacy admitted his involvement in the robbery, but claimed that two other men, Lonzo Love and Carlton Chance, committed the murder. Before trial, Mr. Erlenbach succeeded in moving the court to suppress Willacy’s robbery confession. Erlenbach chose to suppress the confession because Love and Chance had alibis and there was no other evidence linking them to the crime. At the hearing on Willacy’s motion for postconviction relief, Erlenbach testified that he pursued a trial strategy of eliminating evidence and creating reasonable doubt. The postconviction trial court denied relief, finding that Erlenbach’s evidence-elimination technique was a sound trial strategy under the circumstances of the case and that Willacy failed to show prejudice. The court stated that there was no competent evidence presented by the defense at the evidentiary hearing or in the record that anyone other than Willacy participated in the  [*23]  crimes.

The trial court’s conclusion is supported by competent, substantial evidence. See Orme v. State, 677 So. 2d 258, 262 (Fla. 1996); Johnson v. State, 660 So. 2d 637, 644 (Fla. 1995). In Ray v. State, 755 So. 2d 604 (Fla. 2000), this Court explained:

The “independent act” doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, “which fall outside of, and are foreign to, the common design of the original collaboration.” Dell v. State, 661 So. 2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward v. State, 568 So. 2d 452 (Fla. 3d DCA 1990)). Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act.Id. at 609. Erlenbach’s choice to forego the independent act defense did not amount to deficient performance. Other than Willacy’s statements to law enforcement officers that Love and Chance were involved in the murder, there was no other evidence supporting the independent act defense. Moreover, Willacy’s statements to law enforcement officers regarding his involvement in the robbery are essentially  [*24]  a confession to felony murder because Willacy admitted his involvement in the burglary. Consequently, the independent act defense would have been extremely risky compared to the evidence-elimination strategy employed by Erlenbach. Also, given all of the evidence linking Willacy to the murder, there is no reasonable probability that the jury would have acquitted Willacy even if his statements had been introduced into evidence. n10 See Caballero v. State, 851 So. 2d 655, 661 (Fla. 2003) (“[W]e do not second-guess the trial court’s factual findings; instead, we limit our review to ensuring that the trial court applied the correct rule of law and, if so, that there is competent, substantial evidence to support its findings.”). We affirm the trial court’s conclusion that counsel was not ineffective for failing to assert the independent act defense.

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Law enforcement agents uncovered a large amount of evidence linking Willacy to the murder: (1) Willacy was Sather’s next-door neighbor and she knew him; (2) Willacy’s fingerprints were found on a fan motor placed at the victim’s feet to fan the flames; (3) Willacy’s fingerprint was also found on a gas can left in the kitchen that was apparently  [*25]  used to pour gas on the victim before using matches to set her on fire; (4) another one of Willacy’s fingerprints was found on a tape rewinder found on the back porch where Willacy left stolen items to be retrieved later; (5) law enforcement agents found blood consistent with the victim’s on a paper towel, a tennis shoe, and a pair of shorts taken as a result of the search of Willacy’s home; (6) some of Sather’s property was found hidden in Willacy’s home in a gym bag underneath his bed; (7) law enforcement agents found Sather’s check registry, jewelry, and coins in Willacy’s house; (8) Willacy was seen alone driving Sather’s car; (9) Willacy was seen alone in photographs taken at an ATM while he used Sather’s ATM card.
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(2) Counsel’s Failure to Move for Recusal of the Trial Judge at Resentencing

Next, Willacy claims trial counsel was ineffective for failing to move to recuse the trial judge at the resentencing proceeding. Willacy claims that his resentencing counsel, James Kontos, should have moved to recuse Judge Yawn after the new trial hearing because he refused to follow the procedure outlined in Spencer v. State, 615 So. 2d 688 (Fla. 1993). n11

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Specifically, Judge Yawn entered  [*26]  a previously prepared sentencing order immediately following the hearing rather than taking a recess after the defense evidence was complete. The postconviction trial court stated that Willacy showed no prejudice under the Strickland standard. The trial court reasoned that even if Kontos had moved to recuse Judge Yawn, the motion would have been denied because there were no grounds requiring recusal. Therefore, the postconviction trial court ruled that Kontos was not ineffective for failing to make a futile request.
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This claim is barred because it should have been raised on direct appeal after resentencing. See Medina, 573 So. 2d at 295. Moreover, Willacy cannot overcome this procedural bar by raising the issue in the form of an ineffective assistance of counsel claim. See id. Therefore, we affirm the trial court’s denial of this claim.

(3) Counsel’s Failure to Investigate and Present Mitigating Evidence

Willacy next claims that trial counsel was ineffective for failing to investigate and present evidence of statutory and nonstatutory mitigating factors. In particular, Willacy claims that counsel failed to present evidence that (1) Willacy was suffering from Attention Deficit Hyperactivity  [*27]  Disorder (ADHD); n12 (2) Willacy was under the influence of extreme mental or emotional disturbance; n13 (3) Willacy was physically abused by his father during childhood and adolescence; and (4) Willacy was in a drug-induced psychosis at the time of the homicide. The postconviction trial court held (1) that Kontos was not ineffective in failing to present testimony of mental illness or ADHD; (2) that Kontos was not ineffective for failing to present evidence of physical abuse by Willacy’s father; and (3) that Willacy presented no evidence that he was under the influence of cocaine at the time of the murder.

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -12

See § 921.141(6)(f), Fla. Stat. (2004).13

See § 921.141(6)(b), Fla. Stat. (2004).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

“Under Strickland, ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’” Marshall v. State, 854 So. 2d 1235, 1247 (Fla. 2003) (quoting Strickland, 466 U.S. at 691); see also Carroll v. State, 815 So. 2d 601, 614-615 (Fla. 2002) (same). This Court has stated:

In evaluating claims that counsel was ineffective for failing to present mitigating evidence, . . . [t]he principal concern . . . is not whether a case was made  [*28]  for mitigation but whether the “investigation supporting counsel’s decision not to introduce mitigating evidence . . . was itself reasonable” from counsel’s perspective at the time the decision was made.Holland v. State, 916 So. 2d 750, 757 (Fla. 2005) (quoting Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)), cert. denied, 547 U.S. 1078, 126 S. Ct. 1790, 164 L. Ed. 2d 531 (2006). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (quoting Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 521-22 (quoting Strickland, 466 U.S. at 691).

At resentencing, Willacy’s counsel, James Kontos, sought to portray Willacy as a life worth saving and, therefore, avoided presenting evidence that Willacy was a sociopath. Kontos  [*29]  called a number of witnesses who testified to Willacy’s good deeds. The postconviction trial court found that this was sound strategy, noting that humanizing a defendant is an accepted strategy that falls within the broad range of reasonably competent performance under prevailing professional standards. See Haliburton v. Singletary, 691 So. 2d 466, 471 (Fla. 1997); Bryan v. Dugger, 641 So. 2d 61, 64 (Fla. 1994). The postconviction trial court also stated that any mental mitigation evidence would have opened the door to aggravating facts, such as testimony about Willacy’s threat to kill a teacher, setting a school bulletin board on fire, setting squirrels on fire, and running squirrels over with a lawnmower, and descriptions by a school principal of Willacy as incorrigible and needing counseling. The court further stated that the facts of the case show a deliberate, methodical process, not the activities of someone under the influence of an extreme emotional disturbance or cocaine intoxication, who is unable to conform his conduct to the requirements of the law. Also, the court noted that there was overwhelming evidence of Willacy’s guilt of first-degree premeditated murder, and there  [*30]  was substantial, compelling aggravation found by the jury and the trial court. In addition, the postconviction trial court pointed out that, throughout the penalty phase in 1991 and the resentencing in 1995, Willacy and his family members, while under oath, repeatedly denied that Willacy was physical abused as a child.

The postconviction trial court’s findings are supported by competent, substantial evidence. Kontos conducted a reasonable investigation into Willacy’s mental condition and family history and made a reasonable strategic choice to forego presentation of negative mitigation evidence. First, Kontos consulted with psychologist Dr. William Riebsame prior to trial. Dr. Riebsame told Kontos that, based on preliminary testing, Willacy might be a sociopath or psychopath. As a result, Kontos decided not to employ Dr. Riebsame or allow him to proceed further to see if that diagnosis was accurate. Kontos believed that the jury would not be receptive to a depiction of Willacy as antisocial, sociopathic, or psychopathic. Dr. Riebsame testified at resentencing that Willacy met the diagnosis for ADHD, Antisocial Personality Disorder, and probably cocaine intoxication and cocaine withdrawal.  [*31]  However, Dr. Riebsame stated that Willacy’s ability to appreciate the criminality of his conduct was not impaired, and that Willacy’s ability to conform his conduct to the law was impaired but not substantially. Further, because Willacy and his family concealed his childhood abuse, Kontos was unable to discover it. Thus, the postconviction trial court properly concluded that Kontos’s performance was not deficient based on a failure to further investigate Willacy’s family and mental health background.

Also, Willacy has not shown prejudice because presenting this mitigating evidence “would likely have been more harmful than helpful.” Evans v. State, 946 So. 2d 1, 13 (Fla. 2006); Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987) (concluding counsel’s limited investigation was reasonable because he interviewed all witnesses brought to his attention, discovering little that was helpful and much that was harmful); Darden v. Wainwright, 477 U.S. 168, 186, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) (concluding that counsel engaged in extensive preparation and that the decision to present a mitigation case would have resulted in the jury hearing evidence that petitioner had been convicted of violent crimes and spent much of his life in  [*32]  jail); see Griffin v. State, 866 So. 2d 1, 9 (Fla. 2003) (“Trial counsel is not deficient where he makes a reasonable strategic decision to not present mental mitigation testimony during the penalty phase because it could open the door to other damaging testimony.”). In Reed v. State, 875 So. 2d 415 (Fla. 2004), we stated:

[E]ven if [defense] counsel had . . . investigated further, the testimony that could have been presented was just as likely to have resulted in aggravation against rather than mitigation for [the defendant].

An ineffective assistance claim does not arise from the failure to present mitigation evidence where that evidence presents a double-edged sword.Id. at 436-37. “Furthermore, this Court has acknowledged in the past that antisocial personality disorder is ‘a trait most jurors tend to look disfavorably upon.’ ” Id. at 437 (quoting Freeman v. State, 852 So. 2d 216, 224 (Fla. 2003)). Thus, there is no reasonable probability that the outcome of the proceeding would have been different if Kontos had chosen to focus on Willacy’s abuse and mental health issues rather than on the positive aspects of Willacy’s life. Accordingly, counsel was not ineffective for failing to  [*33]  present this evidence.

C. Postconviction DNA Testing

Willacy seeks DNA testing on several items pursuant to Florida Rule of Criminal Procedure 3.853, claiming that he will be exonerated, including DNA testing of blood on a napkin and a pair of men’s multicolored shorts found in his house, and DNA testing of a green tank top and man’s white shirt found at the victim’s house. Willacy claims that he will be exonerated because testing will show that the blood on the napkin and the multicolored shorts came from Willacy’s girlfriend and not the victim. Willacy also alleges that the green tank top and white shirt had been worn by the murderer, and that DNA testing would determine the identity of the wearer, thereby excluding Willacy as the perpetrator.

The applicable law is set forth in section 925.11(2), Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.853, as well as Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004). Section 925.11(2) states:

(a) The petition for postsentencing DNA testing must be made under oath by the sentenced defendant and must include the following:

. . . .

3. A statement that the sentenced defendant is innocent and how the DNA testing requested by the petition  [*34]  will exonerate the defendant of the crime for which the defendant was sentenced or will mitigate the sentence received by the defendant for that crime . . . .See also Fla. R. Crim. P. 3.853. Further, in Hitchcock, 866 So. 2d at 27, this Court stated:

The clear requirement of these provisions is that a movant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.

The postconviction trial court denied Willacy’s 3.853 motion, concluding that Willacy failed to explain with reference to the specific facts about the crime how DNA testing of these items would exonerate him or mitigate his death sentence. We agree with the postconviction trial court. At trial, the State presented a plethora of other evidence upon which the jury could have based its decision in convicting Willacy of Sather’s murder. Willacy’s fingerprints were found on the gas can  [*35]  and a fan at the murder scene, and Willacy matched the description of the suspect seen in the neighborhood on the day of the murder. Also, Willacy’s picture was taken by an ATM machine when he used the victim’s credit card, and he matched the description of the man seen driving the victim’s car the day of the murder. Thus, because DNA testing would not eliminate significant and substantial evidence directly linking Willacy to Sather’s murder, it would not give rise to a reasonable probability of acquittal or a lesser sentence. Therefore, we affirm the postconviction trial court’s denial of Willacy’s claim for postconviction DNA testing.

III. PETITION FOR WRIT OF HABEAS CORPUS

In his petition for writ of habeas corpus, Willacy raises seven issues: (1) appellate counsel was ineffective for failing to raise on direct appeal lack of probable cause to arrest Willacy or to search Willacy’s residence; (2) Willacy was denied his constitutional right to a fair trial by having a juror who was pending prosecution serve as the foreman on his jury; (3) appellate counsel was ineffective for failing to raise on direct appeal the fundamental error resulting from the trial court’s failure to swear prospective  [*36]  jurors; (4) appellate counsel was ineffective for failing to argue that the jury was improperly instructed as to the aggravating circumstance of cold, calculated, and premeditated (CCP); (5) Willacy was sentenced to death in violation of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002);(6) death by lethal injection violates article I, section 17 of the Florida Constitution and the Eighth Amendment of the United States Constitution; and (7) Willacy’s Eighth Amendment right against cruel and unusual punishment may be violated as he may be incompetent at the time of execution. Issues (2), (5), (6), and (7) are either without merit or not yet ripe for review and need not be discussed in detail. n14

- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -14

Because this Court determined on direct appeal that juror Clark was eligible to serve on Willacy’s jury, issue (2) is without merit. Issue (3) is essentially the same as claim 15 of Willacy’s motion for postconviction relief and was already disposed of above. Willacy’s Ring claim fails because Ring does not apply retroactively. See Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004); Johnson v. State, 904 So. 2d 400 (Fla. 2005). Also without merit is Willacy’s claim challenging Florida’s procedure of execution  [*37]  by lethal injection. See Sims v. State, 754 So. 2d 657, 668 (Fla. 2000). Finally, Willacy’s claim that he may be incompetent at the time of execution is not yet ripe for review. See Robinson v. State, 913 So. 2d 514, 524 n.9 (Fla. 2005).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -

A. Counsel’s Failure to Raise Lack of Probable Cause

(1) Lack of Probable Cause to Arrest Willacy

Willacy claims that appellate counsel was ineffective during his direct appeal for failing to raise lack of probable cause to arrest Willacy. The original trial court found that there was probable cause to arrest Willacy, and this finding is supported by the record. Detective George Santiago testified that he went to the victim’s home on September 6, 1990. He saw household items on the back porch and noticed a strong odor of gasoline in the house. Willacy lived next door to Sather. Detective Santiago initially questioned Willacy to determine whether Willacy’s house had also been burglarized. However, after walking through his house, Willacy advised that nothing was missing. When Detective Santiago asked for fingerprints to eliminate Willacy, Willacy refused to give them. Although Willacy agreed to go to the police station around 5 p.m., he never appeared.  [*38]  A sixteen-year-old boy reported seeing someone matching Willacy’s description driving Sather’s car around the time of the murder. A neighbor also reported seeing a muscular black male exit the wooded area next to Sather’s home and get into a two-toned, four-door car. Willacy matched these descriptions. Further, Roland Sasscer reported attempting to visit Sather on the day of the murder to discuss purchasing her car, but no one answered the door. The next day, Detective Santiago interviewed Willacy at Willacy’s house. During the interview, Willacy stated that he was working on his roof the day of the murder but never saw Sasscer. Later that evening, Detective Santiago received a telephone call from Willacy’s girlfriend, Marisa Walcott, informing him that she discovered a woman’s check ledger in the wastebasket of Willacy’s bathroom. Walcott stated that Willacy was asking her to give him the ledger, but she would not let him have it. Detective Santiago returned to Willacy’s house, and Willacy pointed out the checkbook ledger in the wastebasket. Detective Santiago recognized the handwriting as Sather’s from his earlier investigation. At that point, Detective Santiago arrested Willacy  [*39]  and secured his house. Before trial, defense counsel moved to suppress statements made by Willacy after he was arrested on the ground that law enforcement officers lacked probable cause to arrest Willacy. The trial court granted the motion to suppress based on a Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), violation but held that officers had probable cause to arrest Willacy. Appellate counsel did not raise the issue on direct appeal.

The record reflects that reasonable grounds existed at the time Willacy was arrested to believe that he had committed the murder. A law enforcement officer has probable cause to arrest if he has reasonable grounds to believe that the person arrested has committed a felony. Shriner v. State, 386 So. 2d 525, 528 (Fla. 1980). “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). The trial court’s probable cause determination is correct. “If a legal issue ‘would  [*40]  in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000) (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)). Appellate counsel cannot be deemed ineffective for failure to raise a meritless issue. Id. Because this claim lacked merit, appellate counsel was not ineffective for failing to raise it on direct appeal.

(2) Lack of Probable Cause to Search Willacy’s Home

Similarly, appellate counsel was not ineffective for failing to raise lack of probable cause to search Willacy’s home because the trial court’s finding that probable cause existed to sustain the search warrant is supported by the record. A trial court’s duty upon reviewing the magistrate’s decision to issue the search warrant is not to conduct a de novo determination of probable cause but to determine whether substantial evidence supported the magistrate’s finding that, based on the totality of the circumstances, probable cause existed to issue the warrant. State v. Van Pieterson, 550 So. 2d 1162, 1164 (Fla. 1st DCA 1989).  [*41]  A magistrate’s determination should be accorded a presumption of correctness and not disturbed absent a clear demonstration that the issuing magistrate abused his discretion. State v. Price, 564 So. 2d 1239, 1241 (Fla. 5th DCA 1990). The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id.

Here, the record supports the trial court’s finding that the search warrant was supported by probable cause. The evidence existing at the time the search warrant was issued, especially the finding of Sather’s check register in Willacy’s home and the finding of Willacy’s fingerprints in Sather’s home, created a fair probability that evidence of the murder would be found in Willacy’s home. See Price, 564 So. 2d at 1241. Thus, there is no indication that the magistrate committed an abuse of discretion or that the officers acted in bad faith in relying on the search warrant. Because the claim of lack of probable cause to search Willacy’s house was without merit, appellate counsel was not ineffective for failing to raise  [*42]  it. See Rutherford, 774 So. 2d at 643.

B. Counsel’s Failure to Argue Improper Instruction on Cold, Calculated, and Premeditated (CCP)

Finally, Willacy claims that appellate counsel was ineffective for failing to argue that the jury was improperly instructed as to the aggravating circumstance of cold, calculated, and premeditated (CCP). Because the record does not indicate that counsel specifically requested a jury instruction distinguishing between “ordinary premeditation” and the premeditation required for the CCP aggravator “cold, calculated and premeditated,” the issue was not preserved for appeal. Therefore, appellate counsel was not ineffective for failing to raise this claim. See Rutherford, 774 So. 2d at 643.

V. CONCLUSION

For the reasons expressed above, we affirm the trial court’s denial of Willacy’s motion for postconviction relief and deny Willacy’s petition for writ of habeas corpus.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

Courtesy of David Edelstein

DEVON A. MARSHALL, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-4115

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

2007 Fla. App. LEXIS 10024

[June 27, 2007$, Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 03-13751 CF.
Marshall v. State, 916 So. 2d 806, 2005 Fla. App. LEXIS 18559 (Fla. Dist. Ct. App. 4th Dist., 2005)

COUNSEL:   Devon A. Marshall, Bushnell, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   POLEN, J. STONE, J. concurs. GROSS, J., dissents with opinion.

OPINION BY:   POLEN

OPINION  

POLEN, J.

Devon A. Marshall (the “Defendant”) appeals the trial court’s denial of his motion for post-conviction relief. We reverse and remand for further proceedings.

A jury convicted the Defendant of aggravated battery and battery on his girlfriend. He appealed his conviction and sentence, but this court affirmed. Marshall v. State, 916 So. 2d 806 (Fla. 4th DCA 2005). The Defendant then filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 claiming that he was denied effective assistance of trial counsel based upon counsel’s alleged failure to interview and depose crime-scene witnesses. The trial court denied the motion following an evidentiary hearing without making any factual findings or legal conclusions.

The rule governing motions for post-conviction relief provides that, “If an evidentiary hearing is required,  [*2]  the court shall grant a prompt hearing thereon and shall cause notice thereof to be served on the state attorney, determine the issues, and make findings of fact and conclusions of law with respect thereto.” Fla. R. Crim. P. 3.850(d) (emphasis added).

It is impossible for this court to determine on appeal whether the trial court’s ruling is based on competent substantial evidence without the benefit of the court’s findings. We therefore remand this cause to the trial court for its entry of an order containing factual findings and legal conclusions as required by Rule 3.850(d). See Dillbeck v. State, 882 So. 2d 969 (Fla. 2004).

Reversed and Remanded with Instructions.

STONE, J., concurs.

GROSS, J., dissents with opinion.

DISSENT BY:   GROSS

DISSENT  

GROSS, J., dissenting.

Appellant’s 3.850 motion was based upon his lawyer’s purported failure to interview and depose crime scene witnesses. At the evidentiary hearing, appellant testified that he gave trial counsel the names of witnesses favorable to his defense. Trial counsel testified that appellant did not give her any such names. The trial court denied appellant’s motion for post conviction relief. From this I conclude that the trial court believed the lawyer and  [*3]  disbelieved appellant. I do not believe that reversal and remand is necessary.

Courtesy of David Edelstein

CORY PETRUNY, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-2391

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

June 27, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case Nos. 01-16671CF10B and 01-17499CF10B.
Petruny v. State, 944 So. 2d 481, 2006 Fla. App. LEXIS 19948 (Fla. Dist. Ct. App. 4th Dist., 2006)

COUNSEL:   Cory Petruny, Miami, Pro se.

Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   POLEN, GROSS AND TAYLOR, JJ., concur.

OPINION  

PER CURIAM.

Cory Petruny appeals the summary denial of his multi-claim postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of one point.

Petruny claims that his plea is involuntary in light of trial counsel’s failure to move to suppress statements. Petruny alleges that there was a defect in the Miranda warnings that were administered by police. See Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004), rev. denied, 892 So. 2d 1014 (Fla. 2005)) (finding that the warning given was insufficient to satisfy Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), because it failed to advise of the right to have counsel present during questioning and advised merely that defendant could have counsel present before questioning). As this court has recognized, a  [*2]  defendant cannot voluntarily waive defenses of which he is not informed. Rouzard v. State, 952 So. 2d 1290 (Fla. 4th DCA 2007); see also Wilson v. State, 871 So. 2d 298 (Fla. 1st DCA 2004); Ethridge v. State, 766 So. 2d 413, 414 (Fla. 4th DCA 2000).

The record before this court does not reveal that comparable and sufficient warnings were given. Compare Canete v. State, 921 So. 2d 687 (Fla. 4th DCA) (en banc), rev. denied, 944 So. 2d 986 (Fla. 2006). If no records are available to refute Petruny’s claim, the trial court on remand must determine whether Petruny has shown there is a reasonable probability that, “but for counsel’s failure to inform him of the deficiency in the warnings and failure to file a motion to suppress, he would not have entered the plea.” Rouzard, 952 So. 2d at 1292 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)). The summary denial of the remaining claims is affirmed.

POLEN, GROSS AND TAYLOR, JJ., concur.

Courtesy of David Edelstein