Florida Criminal Law Opinions

DANIELLE DEVITA WILLIAMS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-4917.

District Court of Appeal of Florida, Second District.

Opinion filed February 20, 2009.

Appeal from the Circuit Court for Hillsborough County, Ronald N. Ficarrotta, Judge.

James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Danielle Devita Williams challenges her judgment and sentence for aggravated battery. We affirm without comment. However, the postconviction court failed to enter an amended cost order after partially granting Williams’ Florida Rule of Criminal Procedure 3.800(b) motion to correct illegal sentence. Accordingly, we remand for the limited purpose of the entry of an amended cost order reflecting that certain costs were previously stricken. See Jackson v. State, 950 So. 2d 1267 (Fla. 2d DCA 2007).

Affirmed; remanded with directions.

KELLY, J., and GALLEN, THOMAS M., ASSOCIATE SENIOR JUDGE, Concur.

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HUGH JAMES BUTLER, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-1695.

District Court of Appeal of Florida, Second District.

Opinion filed February 20, 2009.

Appeal from the Circuit Court for Hillsborough County, William Fuente, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Hugh James Butler appeals his judgments and sentences for burglary, battery, and criminal mischief. We affirm the judgments on the burglary and battery charges and affirm the sentences without comment. We remand for correction of the judgment on the charge of criminal mischief.

The record reflects that the jury was instructed on, and Mr. Butler was convicted of, second-degree misdemeanor criminal mischief (count 3). Mr. Butler was sentenced to time served. However, the judgment erroneously lists the conviction as first-degree misdemeanor criminal mischief. Mr. Butler raised this issue in his motion to correct sentencing error. In its order, the trial court correctly noted that the sentence imposed on count 3 was for time served. However, the trial court failed to correct the judgment to reflect the proper degree of the crime. On remand, the trial court shall amend the judgment to reflect that Mr. Butler was convicted of second-degree misdemeanor criminal mischief rather than first-degree misdemeanor criminal mischief.

Affirmed and remanded for corrections to the judgment.

KELLY, VILLANTI, and WALLACE, JJ., Concur.

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DWAYNE A. DEBOSE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-2143.

District Court of Appeal of Florida, First District.

Opinion filed February 19, 2009.

An appeal from the Circuit Court for Alachua County, Peter K. Sieg, Judge.

Dwayne A. Debose, pro se, Appellant.

Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant challenges a final order by which the trial court summarily denied his amended Florida Rule of Criminal Procedure 3.850 motion for postconviction relief raising seventeen grounds of ineffective assistance of trial counsel. Because we conclude that two of these grounds are facially sufficient, we reverse in part and remand for further proceedings.

In his seventh ground for relief, the appellant alleged, among other things, that his trial counsel was ineffective for failing to investigate or present certain medical evidence at trial that would have supported his assertion that he was subjected to excessive police force during the incident giving rise to the offenses at hand. In his twelfth ground for relief, he alleged that trial counsel was ineffective for failing to call a particular eyewitness to testify concerning this alleged excessive police force. We conclude that both claims are facially sufficient and reverse those portions of the order by which the trial court summarily denied them. We direct the trial court, on remand, to either attach portions of the record conclusively refuting these claims or to convene an evidentiary hearing to address the merits of these claims. The order is otherwise affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, PADOVANO, and ROBERTS, JJ., CONCUR.

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LLOYD DUEST, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC07-162.

Supreme Court of Florida.

February 19, 2009.

An Appeal from the Circuit Court in and for Broward County, Susan Lebow, Judge — Case No. 82-4283 CF 10A

Todd G. Scher of the Law Office of Todd G. Scher, P.L., Miami Beach, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Celia Terenzio, Assistant Attorney General, West Palm Beach, Florida, for Appellee.

PER CURIAM.

This case is before the Court on appeal from an order denying appellant Lloyd Duest’s motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. For the reasons stated in this opinion, we affirm the denial of postconviction relief.¹

FACTS AND PROCEDURAL HISTORYAppellant, Lloyd Duest, was convicted of first-degree murder and sentenced to death for the killing of John Pope. On direct appeal, this Court set forth the following relevant facts:

On February 15, 1982, defendant was seen by witnesses carrying a knife in the waistband of his pants. Subsequently, he told a witness that he was going to a gay bar to “roll a fag.” Defendant was later seen at a predominantly gay bar with John Pope, the victim. The two of them then left the bar in Pope’s gold Camaro. Several hours later, Pope’s roommate returned home and found the house unlocked, the lights on, the stereo on loud, and blood on the bed. The sheriff was contacted. Upon arrival, the deputy sheriff found Pope on the bathroom floor in a pool of blood with multiple stab wounds. Defendant was found and arrested on April 18, 1982.

Duest v. State, 462 So. 2d 446, 448 (Fla. 1985). The conviction and sentence were affirmed on appeal. Id. Subsequently, Duest’s sentence was vacated because of the reversal of his Massachusetts felony conviction, which conviction had been introduced into evidence in the penalty phase.² At resentencing, the jury recommended death by a ten-to-two vote. The trial court followed the jury’s recommendation and sentenced Duest to death.³ The sentence was affirmed by this Court on direct appeal. See Duest, 855 So. 2d at 49.⁴

Duest then filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851, raising five claims.⁵ Following a case management conference, the trial court summarily denied all of Duest’s claims except the portion of Claim III relating to the medical examiner’s changed testimony at Duest’s resentencing.

At the evidentiary hearing, Duest presented only the testimony of Carlos Llorente, counsel from his resentencing, who testified about his cross-examination and impeachment of the medical examiner at the resentencing. The State presented no witnesses in rebuttal. After the evidentiary hearing, the trial court issued its order denying relief. Duest appeals, raising two issues, including numerous subisssues, for this Court’s review.⁶

ANALYSIS TC “1.” “1.”2 Claims Denied After an Evidentiary Hearing TC ” — ” ” — “2 Dr. Wright’s TestimonyDuest’s first claim of error involves the deposition and testimony of Dr. Ronald Wright, the medical examiner who conducted the autopsy of Mr. Pope. Duest attacks both his original conviction for first-degree murder and death sentence on the basis of his claim that the change in testimony constitutes newly discovered evidence, that counsel rendered deficient performance when confronted with the change in Dr. Wright’s testimony, and that the State suppressed evidence of the changed testimony.

By way of background, before affirming the sentence on direct appeal from Duest’s second penalty phase, this Court denied Duest’s 2001 motion to relinquish jurisdiction to the trial court to consider a change in Dr. Wright’s testimony. This request arose because in Dr. Wright’s original deposition taken in 1983, he estimated that the time of death occurred ten to fifteen seconds to no more than five minutes after the victim suffered a stab wound to the right side of his heart.⁷ At Duest’s initial trial in 1983, Dr. Wright testified that Mr. Pope died of multiple stab wounds, but did not specify the length of the time lapse between Mr. Pope’s attack and his death. However, at the 1998 resentencing, Dr. Wright testified that loss of consciousness would occur fifteen to twenty minutes after the blows and death after another five to ten minutes. Dr. Wright also stated at the resentencing that the victim could have survived if he had called for help immediately but did not do so, opining that Mr. Pope was attempting to conceal his homosexual lifestyle. During the cross-examination of Dr. Wright at the resentencing, defense counsel questioned Dr. Wright about his opinion concerning how the victim was wounded and the amount of time that passed before death occurred. Once Dr. Wright revealed that he estimated death to have occurred within fifteen to twenty minutes, counsel impeached him with his deposition from 1983 in which he testified that the victim died within five minutes.

In affirming Duest’s sentence on direct appeal from the resentencing, this Court declined to address his Brady claim seeking a new guilt-phase trial based on the changed testimony, but stated that Duest was not precluded from raising this claim in a postconviction motion. Duest, 855 So. 2d at 39. Specifically, this Court stated:

Duest asserts that the testimony in the new penalty phase by medical examiner Dr. Ronald Wright as to the manner of the victim’s death constitutes material, exculpatory evidence unlawfully withheld by the State. . . . Duest claims that this change in testimony shows that the assailant left the victim alive and therefore calls into question the intent to kill, requiring a new trial on his guilt of first-degree murder.

We conclude that Duest’s challenge to the murder conviction, which became final in 1985, is not properly before this Court in an appeal from the reimposition of a death sentence after the previous death sentence was vacated. Duest did not object to the testimony below, instead impeaching Dr. Wright on his change in testimony from 1983 to 1998. Nor has Duest filed a motion for postconviction relief asserting that the change in testimony constitutes either undisclosed exculpatory evidence or newly discovered evidence entitling him to a new trial. The absence of a pending motion for postconviction relief distinguishes this case from Way v. State, 630 So. 2d 177 (Fla. 1993), in which this Court reversed the summary denial of a motion for postconviction relief raising a Brady claim and withheld ruling on the direct appeal from resentencing pending disposition of the postconviction motion. Id. at 179. In recognition of Duest’s efforts to raise this issue during the direct appeal, our affirmance is without prejudice to Duest raising the issue in the trial court via Florida Rule of Criminal Procedure 3.851 after this appeal.

Duest, 855 So. 2d at 39-40 (footnote omitted).

Duest filed a 3.851 motion and the trial court granted an evidentiary hearing regarding the change in Dr. Wright’s testimony.⁸ At the evidentiary hearing, Carlos Llorente, counsel from Duest’s resentencing, testified that it was “obvious” that Dr. Wright’s testimony had changed between the time of the guilt phase and resentencing. Moreover, he testified that he did not receive a discovery notice, memorandum, or other communication from the State notifying him that Dr. Wright had changed his testimony. With this background in mind, we now focus on the issue of whether the change in Dr. Wright’s testimony satisfies the standard for granting a new trial either because it constituted newly discovered evidence under Jones v. State, 709 So. 2d 512 (Fla. 1998) (Jones III), was prejudicial to Duest under Strickland v. Washington, 466 U.S. 668 (1984), or constituted material evidence under Brady.

We begin with Duest’s claim that the change in testimony constitutes newly discovered evidence which entitles him to a new guilt phase. To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones III, 709 So. 2d at 521. Newly discovered evidence satisfies the second prong of the Jones III test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla. 1996) (Jones II)).

In determining whether the evidence compels a new trial, 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.” Jones v. State, 591 So. 2d 911, 916 (Fla. 1991). (Jones I). 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 the 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.

Jones III, 709 So. 2d at 521 (citations omitted).

We deny the newly discovered evidence claim because Dr. Wright’s revised testimony does not meet the second prong of Jones III in that it is not of such nature that it would probably produce an acquittal on retrial. Although Duest asserts that the changed testimony would have affected the State’s ability to convince the jury that the murder was premeditated, we agree with the trial court’s finding that the “material elements of Dr. Wright’s testimony would have had no impact on [Duest's] intent to kill . . . .” The evidence introduced at trial established that Duest told a witness that he was going to a gay bar to “roll a fag.” Duest, 462 So. 2d at 449. Duest was subsequently seen at a gay bar with the victim and driving with the victim in the victim’s car. Id. Later, Duest was seen driving the victim’s car alone. Id. Moreover, Duest was seen on the day of the murder with a knife in his waistband and the victim was found to have died from multiple stab wounds. Id. The attack was vicious and the wounds life-threatening.

As this Court found on Duest’s direct appeal from his resentencing regarding his assertion that there was a lack of an intent to kill, “there is little or no basis to conclude that after inflicting the multiple wounds, Duest knowingly left Pope alive and with some prospect for survival.” Duest, 855 So. 2d at 47. In addition, we concluded that there was already ample evidence presented at the guilt phase, absent Dr. Wright’s testimony, to support the trial court’s instruction on the CCP aggravator, which requires a finding that “`the defendant exhibited heightened premeditation.’” Id. at 45 (quoting Jackson v. State, 648 So. 2d 85, 89 (Fla. 1994)). Specifically, the instruction on CCP was supported by evidence of Duest’s “prearranged plan to beat up and rob a gay man and Duest’s act of returning to his temporary residence to obtain a knife while in the victim’s company.” Duest, 855 So. 2d at 45. Consistent with our prior conclusion on direct appeal that Dr. Wright’s changed testimony did not negate a finding of the CCP aggravator, see id., we likewise conclude that the testimony has no effect on the premeditated aspect of this murder and is not of such a nature as to probably produce an acquittal on retrial. Because Duest’s claim does not meet the second prong of the newly discovered evidence test the trial court properly rejected the claim.

In his next claim of error concerning Dr. Wright’s testimony, Duest asserts that counsel rendered ineffective assistance at his resentencing. The essence of this claim is Duest’s assertion that faced with the changed testimony, counsel should have sought sanctions based on a Richardson⁹ violation or sought to have the guilt phase reopened. We have already disposed of the second aspect of this claim by concluding that there is no basis to grant a new guilt phase.¹⁰ Therefore, we analyze only the first aspect of this claim to determine whether Duest is entitled to a new penalty phase. The trial court ultimately found that counsel had not provided ineffective assistance, a conclusion with which we agree.

The yardstick by which we measure ineffective assistance of counsel claims is the seminal decision of the United States Supreme Court in Strickland. First, the defendant must establish that counsel’s performance was deficient. Second, the defendant must establish that counsel’s deficient performance prejudiced the defendant. To establish the deficiency prong under Strickland, the defendant must prove that counsel’s performance was unreasonable under “prevailing professional norms.” Garcia v. State, 949 So. 2d 980, 987 (Fla. 2006). To establish the prejudice prong under Strickland, the defendant must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” White v. State, 964 So. 2d 1278, 1285 (Fla. 2007) (quoting Strickland, 466 U.S. at 694).

During the cross-examination of Dr. Wright at the resentencing, counsel questioned Dr. Wright about his opinion on how the victim was wounded and the amount of time that passed before death occurred. Once Dr. Wright revealed that he estimated death to have occurred within fifteen to twenty minutes, counsel impeached him with his deposition from 1983, where he testified that the victim died within five minutes. During closing argument, counsel relied on Dr. Wright’s testimony that the victim lived up to twenty minutes after the attack and could have survived had he sought help, and argued to the jury that this could be considered a mitigating circumstance. The question before us is whether counsel’s conduct in vigorously cross-examining Dr. Wright instead of pursuing other alternative courses undermines confidence in the outcome of the penalty phase.

Duest argues that counsel should have requested that sanctions be imposed by alleging a discovery violation under Richardson. To understand whether trial counsel’s actions were reasonable or whether prejudice can be demonstrated, we review the case law regarding Richardson. Once a trial court has notice of an alleged failure to disclose a witness, the trial court is obligated to conduct a Richardson inquiry. See Pagan v. State, 830 So. 2d 792, 812 (Fla. 2002). The focus of this hearing is to determine “whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.” Richardson, 246 So. 2d at 775. Yet, even assuming a Richardson hearing had been held and a discovery violation determined to have occurred, we must consider the available sanctions, which could have ranged from providing counsel an opportunity to redepose Dr. Wright to striking Dr. Wright’s testimony to granting a mistrial.

Regarding the option of deposing Dr. Wright, counsel in the penalty phase was fully able to cross-examine the doctor. Notably, counsel did not testify at the evidentiary hearing as to anything else that could have been done to further impeach Dr. Wright if counsel had been provided an opportunity to redepose him during trial. As to the possible sanction of granting a mistrial, there is likewise nothing in the record to show that there would have been any additional or different testimony presented at a new penalty phase regarding Dr. Wright’s testimony. Lastly, as to the sanction of striking Dr. Wright’s testimony completely, this would be an extreme remedy and there is nothing in this record to show that such a remedy would have been justified. See McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007) (“Florida Rule of Criminal Procedure 3.220(n)(1) authorizes a trial court to exclude evidence as a sanction for a violation of the discovery rules, but this sanction should only be imposed when there is no other remedy.”).

Based on a review of the possible outcomes of the sanctions, even if Duest were to establish that counsel’s failure to request the hearing constituted deficient performance, we find that Duest has not demonstrated prejudice. Importantly, the only aggravator found by the trial court that relied on Dr. Wright’s testimony was HAC, which was also found by the trial court at Duest’s initial sentencing proceeding. As the trial court stated in its denial of this claim:

Dr. Wright’s revised opinions did not alter or cast any reasonable doubt about the facts and evidence that Mr. Pope was alive and conscious when he received the multiple stab wounds and that he lived at least several minutes before he died from these wounds or that the aggravators would not have been established or the mitigators would have outweighed the aggravators in this case.

In this case, there is nothing in the record to show that the prosecutor attempted to argue HAC at the resentencing based on Dr. Wright’s changed testimony. At the original trial, the trial court found the HAC and CCP aggravators, despite the fact that Dr. Wright was not specific as to how long Mr. Pope lived after the attack. On appeal, this Court affirmed these findings. Duest, 462 So. 2d at 449-50. Additionally, as this Court found on Duest’s direct appeal from his resentencing, Dr. Wright’s resentencing testimony does not negate a finding of the HAC aggravator or an instruction on the CCP aggravator. See Duest, 855 So. 2d at 45-47.¹¹ In neither of its affirmances did this Court rely on a specific time estimate in Dr. Wright’s testimony to find that competent, substantial evidence supported the HAC or CCP aggravators.¹² We evaluate prejudice by determining whether our confidence in the outcome of the penalty phase is undermined, which includes evaluating the probable effect of any ineffective assistance error on the jury’s recommendation. In this case, based on our analysis of the role Dr. Wright’s testimony played, there is no basis to conclude that his resentencing testimony affected the finding of the HAC aggravator or the jury’s ultimate death recommendation. For all the reasons stated, our confidence in the outcome is not undermined and we uphold the trial court’s denial of this claim.

Finally, we address Duest’s argument that he is entitled to a new guilt and penalty phase based on the State’s failure to disclose that Dr. Wright had significantly changed his testimony. This claim is also without merit. Under the United States Supreme Court decision in Brady, the State is required to disclose material information within its possession or control that tends to negate the guilt of the defendant. Mordenti v. State, 894 So. 2d 161, 168 (Fla. 2004). To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence—either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Way v. State, 760 So. 2d 903, 910 (Fla. 2000). To meet the materiality prong, the defendant must demonstrate a reasonable probability that had the suppressed evidence been disclosed the jury would have reached a different verdict. Strickler, 527 U.S. at 289. As with prejudice under Strickland, materiality under Brady requires a probability sufficient to undermine confidence in the outcome. See Way, 760 So. 2d at 913; see also Strickler, 527 U.S. at 290; United States v. Bagley, 473 U.S. 667, 682 (1985) (expressly applying the Strickland standard of “reasonable probability” to Brady cases).

We do not reach the issue of materiality because Duest has not established that evidence of Dr. Wright’s changed testimony was suppressed by the State.¹³ As to the guilt phase, there was no evidence presented to suggest that Dr. Wright changed his opinion before the end of the guilt phase and that the State was aware of the change before Duest was convicted. Duest’s claim also fails as it relates to his resentencing because Duest became aware of the new testimony during Dr. Wright’s cross-examination before the resentencing had concluded. See Doorbal v. State, 983 So. 2d 464, 480 (Fla. 2008) (finding that defendant failed to establish that the State suppressed evidence where impeaching evidence had been referred to during a pretrial hearing and was brought out on witness cross-examination). Thus, Duest’s allegation of a Brady violation by the State is without merit.

TC “2.” “2.”2 Brady Claims Summarily DeniedIn addition to his claim of error regarding Dr. Wright’s testimony, Duest argues that the court erred in summarily denying his remaining Brady claims. An evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, and 3.993, 772 So. 2d 488, 491 n.2 (Fla. 2000) (endorsing the proposition that “an evidentiary hearing is mandated on initial motions which assert . . . legally cognizable claims which allege an ultimate factual basis”); see also Fla. R. Crim. P. 3.851(f)(5)(A)(i) (providing that, on initial motions, an evidentiary hearing is required “on claims listed by the defendant as requiring a factual determination”). On an initial rule 3.851 motion, to the extent there is any question as to whether the movant has made a facially sufficient claim requiring a factual determination, the trial court must presume that an evidentiary hearing is required. See Amendments, 772 So. 2d at 492 n.2 (stating that adoption of provision addressing evidentiary hearings is consistent with Court’s endorsement of a presumption in favor of evidentiary hearings on initial postconviction motions raising factually based claims). Moreover, when reviewing the summary denial of an initial rule 3.851 postconviction motion, this Court must accept the movant’s factual allegations as true. See Rose v. State, 985 So. 2d 500, 505 (Fla. 2008). However, “postconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Owen v. State, 986 So. 2d 534, 543 (Fla. 2008) (quoting Connor v. State, 979 So. 2d 852, 868 (Fla. 2007)). After a review of the record in this case, we conclude that the trial court was proper in its summary denial of Duest’s remaining claims asserting a Brady violation.

First, Duest contends that the State withheld from the defense an exculpatory memorandum written by Assistant State Attorney Richard Garfield, the prosecutor for Duest’s initial trial. In the memo, Garfield stated, “The case is borderline on sufficiency of evidence, which is totally circumstantial.” The trial court denied this claim, agreeing with the State’s argument that the “statement at issue was the opinion of an attorney, and therefore not discoverable. It was privileged and therefore not Brady material . . . .”

We agree with the trial court’s findings. The prosecutor’s views on the strength of the case were no more than that: the prosecutor’s views on the strength of the evidence. Unlike Young v. State, 739 So. 2d 553, 556 (Fla. 1999), which involved notes from the State Attorney’s Office regarding interviews with key witnesses and thus were held to constitute Brady material, id. at 559, the prosecutor’s statement in this case is pure opinion. The statement is neither admissible nor leads to the discovery of admissible evidence; therefore, it does not constitute exculpatory evidence under Brady and does not change this Court’s finding that there was sufficient circumstantial evidence to support Duest’s premeditated murder conviction. See Duest, 462 So.2d at 449. Because this evidence was not exculpatory or admissible, this claim is not one which requires a factual determination, and we conclude that the trial court did not err in summarily denying this claim.

In his final Brady claim, Duest alleges that the State withheld the results of a polygraph that had been administered to Mr. Shifflett, a witness for the State and the victim’s roommate. In the instant postconviction proceedings, the State turned over to the defense a notebook from law enforcement officers investigating the death of Mr. Pope and any involvement by Duest. The notebook included a handwritten note that stated: “2-16-82, 5 PM, Polygraph by Raoul Vincel, Passed.” The State also disclosed an investigative continuation report that stated:

At 5:00 p.m., Februrary [sic] 16th, 1982, David Shifflett was given a polygraph test by Rauel [sic] Vincel, of the Broward Sheriff’s Office Polygraph Unit, at the Lauderhill Substation. At the conclusion of the test, this writer was advised by Deputy Vincel that there was no indication¹⁴ in the polygraph administered including the key questions whether or not [unintelligible] Shifflett participated in, set up, or actually murdered the deceased, John Pope.

Duest asserts that the handwritten notes in the notebook together with the investigative report indicates that Mr. Shifflett was administered a polygraph examination during the investigation. In addition, Duest alleges that the State withheld the polygraph results of other witnesses. Duest now requests that the State disclose the identity of all witnesses subjected to polygraph examinations, the results of the examinations, and the polygraph reports, including all witness statements given prior to and during the examination. The trial court summarily denied this claim, finding that Duest had failed to establish any of the requirements for a Brady violation. We agree.

We recognize that polygraph evidence is generally inadmissible, but the issue we focus on for purposes of determining a Brady violation is whether the evidence would lead to admissible substantive or impeachment evidence. See Rogers v. State, 782 So. 2d 373, 383 n.11 (Fla. 2001). Rivera v. State, 995 So. 2d 191 (Fla. 2008), this Court held that a trial court erred in summarily denying the defendant’s Brady claim and ineffective assistance claim, which were based in part on the State’s failure to disclose or counsel’s failure to uncover that a State’s witness had lied in polygraph examinations in other cases. Id. at 195.

In contrast to Rivera, in this case the polygraph report does not even indicate that witness Shifflett made contradictory statements during his exam. Rather, the conclusion from the polygraph was that Mr. Shifflett was truthful as to his lack of involvement in the crime. Based on the information contained in the investigative report about Mr. Shifflett’s polygraph examination, Duest cannot establish that the polygraph reports are exculpatory as to his involvement in the killing of Mr. Pope. Moreover, Duest has not alleged that any of the other polygraph reports or witness statements taken at the time of the examination are exculpatory or impeaching. Accordingly, the trial court did not err in its summary denial of this claim.¹⁵

Summary Denial of Ineffective Assistance of Counsel ClaimsIn his next claim on appeal, Duest argues that the trial court erred in summarily denying his claim of ineffective assistance of counsel, in which he asserted that counsel’s failure to present several witnesses to the jury at resentencing constituted deficient performance that resulted in prejudice. Duest asserts counsel’s failure to present the witnesses was due to counsel’s inadequate preparation for the resentencing.

As stated previously, an evidentiary hearing must be held on an initial rule 3.851 motion whenever the movant makes a facially sufficient claim that requires a factual determination. See Amendments, 772 So. 2d at 491 n.2. This Court determines the facial sufficiency of an ineffective assistance of counsel claim by applying Strickland‘s two-pronged test of deficiency and prejudice. Spera v. State, 971 So. 2d 754, 758 (Fla. 2007). However, we need not resolve the issue of deficient performance because we conclude that prejudice cannot be demonstrated. See Whitfield v. State, 923 So. 2d 375, 384 (Fla. 2005) (“[B]ecause the Strickland standard requires establishment of both [the deficient performance and prejudice] prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.”) (quoting Stewart v. State, 801 So. 2d 59, 65 (Fla. 2001)).

In reaching this conclusion, we have reviewed the record to determine if there is any need for factual development as to Duest’s claim of prejudice. According to the record, counsel urged the trial court to set a certain date for the resentencing because he had “eighteen witnesses coming in from Massachusetts.” He again stated on June 29, 1998, while the court was considering a trial date, that he needed time to bring in his out-of-state witnesses. Subsequently, the court set September 28, 1998, as the resentencing trial date. However, the trial was postponed by one week due to a hurricane. On October 2, 1998, the court heard Duest’s motion for a continuance¹⁶ where counsel stated to the court that several out-of-state witnesses would be unavailable to testify at the resentencing. The court also heard from Duest, who stated that twelve out of twenty-six witnesses indicated that they would not be able to attend the proceeding because the trial had been delayed. The court denied the motion, but ruled that the unavailable witnesses could testify at any subsequent Spencer¹⁷ hearing. Subsequently, at the resentencing, counsel presented the testimony of eleven witnesses who testified about Duest’s difficult background and upbringing and his good qualities. After the jury recommended a sentence of death, the court held a Spencer hearing, at which counsel presented the testimony of seven additional witnesses through videotaped depositions.

Even assuming an evidentiary hearing should have been held to explore what actions counsel took to prepare for the penalty phase and then for the unanticipated change of trial schedule due to the hurricane, we conclude that the record conclusively refutes any prejudice. Many cases assessing an ineffective assistance claim arising from counsel’s failure to present additional mitigation at trial compared the testimony from trial with the testimony presented at the evidentiary hearing. See, e.g., Jones v. State, 949 So. 2d 1021, 1036 (Fla. 2006); Duckett v. State, 918 So. 2d 224, 236 (Fla. 2005). This case differs from those cases in that Duest is comparing the testimony presented before the jury at the penalty phase with the testimony presented at the Spencer hearing. Further, the additional witnesses presented at the Spencer hearing were lay witnesses as opposed to the mental health expert and lay witnesses presented by Duest at the penalty phase. In this regard, this case is in marked contrast to Williams v. State, 987 So. 2d 1 (Fla. 2008), where this Court concluded that ineffective assistance of counsel had been demonstrated because defense counsel failed to present any mental health expert to the jury and the mental health evidence outlined substantial evidence of mitigation that would have supported the jury’s life recommendation and prevented the trial judge’s override. See id. at 11-14.

At the penalty phase, counsel presented the testimony of Nancy and Richard Duest, Duest’s mother and father, Nancy Kerrigan, Duest’s sister, Clare Guzzetti, Duest’s cousin, Joseph Duveau, a childhood friend, and Maria Craig, a pen pal, as well as the testimony of John Boone, an expert in corrections, Michael Lynch, a Broward County Sheriff’s Corrections Officer, John Gelosi, a Broward County Jail employee, Robert Huber, an employee at the Wooden Rogers Education Center, and expert testimony from Dr. Patricia Fleming, a psychologist.

Mr. Boone testified about the institutional abuse that existed while Duest was imprisoned at Walpole State Prison. Mr. Gelosi stated that Duest had assisted him in translating sign language. Mr. Huber testified that Duest was a gifted artist. Mr. Lynch testified that Duest had saved his life by warning him that another inmate had planned to kill him and escape. Dr. Fleming testified that Duest was abused as a child, became addicted to drugs, and was extremely affected by his first incarceration.

As to the testimony from Duest’s family and friends, Ms. Craig testified that she knew Duest as her father and would talk to him about her family problems. Ms. Guzzetti testified that Duest was abused by his father and later converted to Christianity. Duest’s mother, Mrs. Duest, Mr. Deaveau and Ms. Kerrigan testified that Duest had been abused by his father and the father admitted to the abuse. Finally, Mr. Deaveau and Ms. Kerrigan testified that Duest had a drug abuse problem.

At the Spencer hearing, Mr. Llorente presented the videotaped depositions of seven witnesses—Deborah Lavanche, Duest’s sister, Paul Duest, Jr., Duest’s brother, Edward Lavanche, Duest’s friend, Lillian Duest, Duest’s sister-in-law, and Duest’s nieces, Jennifer Duest, Darlene Duest, and Leighanne Duest. Ms. Levanche testified about Duest’s abusive childhood, his drug addiction and his artwork. Paul Duest, Jr., testified that his family loved Duest and that Duest was good to his children and a great artist. Mr. Lavanche and Lillian Duest also testified that Duest was a gifted artist. Lillian further testified that the communication Duest had with her daughters was positive. Jennifer Duest stated that Duest gave her good advice about school. Darlene Duest also testified that Duest would give her good advice. Finally, Leighanne Duest testified that she would communicate with Duest.

The common theme throughout the testimony presented at the resentencing was Duest’s troubled background, his artistic talent, and his good nature. More importantly, in considering whether the testimony is truly cumulative, we consider which witnesses were presented to the jury versus the witnesses presented only to the judge. In this case, there was both strong mental health testimony presented to the jury and testimony from those who knew Duest well. Importantly, the trial court found that the most notable testimony confirming the abuse Duest suffered by his father came from Duest’s sister, Ms. Kerrigan, whose testimony was presented to the jury.

At most, the testimony from these additional witnesses would support nonstatutory mitigation such as (1) physically and emotionally abusive childhood; (2) childhood traumatization and deprivation of love; (3) history of drug and alcohol abuse; and (4) artistic ability. Because the additional evidence presented at the Spencer hearing mirrored the lay testimony at the earlier resentencing, it was merely cumulative to the lay testimony presented before the jury. Accordingly, we conclude as a matter of law that Duest cannot demonstrate prejudice under Strickland such that the failure to present the witnesses at the penalty phase would undermine our confidence in the outcome of these proceedings, especially in light of the three aggravators found. For all of these reasons, we affirm the summary denial of Duest’s ineffective assistance claim as to counsel’s presentation of mitigation at the resentencing.

Finally, Duest asserts that the trial court erred in denying his ineffective assistance claim regarding mental health expert testimony as procedurally barred. In his postconviction motion, Duest argued that counsel was ineffective by presenting the testimony of Dr. Patricia Fleming, a psychologist, during his resentencing. This mental health testimony, Duest alleges, was insignificant and allowed for Duest’s prior criminal history to be introduced. We agree that the trial court improperly denied this ineffective assistance claim as procedurally barred, but conclude that no reversible error occurred because summary denial was otherwise proper.

As part of his mitigation presentation at the resentencing, Duest presented Dr. Fleming. Upon cross-examination and over the objection of defense counsel, Dr. Fleming testified that she had reviewed Duest’s criminal history in formulating her opinion of Duest. She then listed the crimes in his criminal history, which included larceny, breaking and entering of a building during the daytime and nighttime, firearm possession, and breaking and entering with intent to commit a felony. On direct appeal, this Court held that the trial court did not err in allowing the State to elicit testimony from Dr. Fleming identifying Duest’s past crimes after she testified that she had considered his convictions in arriving at her opinions. Duest, 855 So. 2d at 49 (citing Johnson v. State, 608 So. 2d 4, 10-11 (Fla. 1992) and § 90.705(1), Fla. Stat.).

In its order on the case management conference, the trial court ruled that Duest’s claim regarding Dr. Fleming’s testimony was procedurally barred because it had been raised and rejected on direct appeal and thus summarily denied the claim. This conclusion was incorrect. As this Court stated Bruno v. State, 807 So. 2d 55 (Fla. 2001):

Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland claim is whether trial counsel was ineffective. Both claims may arise from the same underlying facts, but the claims themselves are distinct and-of necessity-have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal. A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal.

Id. at 63 (footnotes and emphasis omitted).

Notwithstanding the trial court’s error in finding a procedural bar, Duest’s ineffective assistance claim was still properly denied without an evidentiary hearing. Although we take issue with Duest’s assertion that Dr. Fleming’s mental health testimony was insignificant, we also determine that no prejudice can be demonstrated because in the absence of Dr. Fleming’s testimony, the jury still would have been aware of Duest’s prior criminal history. First, the State indicated in its opening statement at the resentencing that it would present evidence that Duest had been previously convicted of other violent felonies. These prior violent felonies were armed robbery and escape with a weapon. Compared to these violent felonies, the crimes briefly brought out during Dr. Fleming’s cross-examination consisted only of the less severe offenses of larceny, burglary, and firearm possession.

Second, the defense presented testimony from Mr. Boone, the corrections expert and Commissioner of Corrections for Massachusetts while Duest was incarcerated, who testified concerning the dangerous conditions that existed at Walpole when Duest was transferred to the maximum security unit at age nineteen. Based on this testimony and the evidence of the prior violent felonies, the jury had before it evidence of Duest’s previous criminal activity, irrespective of any testimony from Dr. Fleming. Because Duest’s criminal history became apparent at the resentencing through other testimony and evidence presented at the proceeding, and because the cross-examination of Dr. Fleming on the criminal history was brief, Duest would be unable to demonstrate prejudice. Accordingly, we affirm the trial court’s summary denial of this aspect of Duest’s ineffective assistance claim.¹⁸

CONCLUSIONFor the reasons explained above, we affirm the trial court’s denial of Duest’s motion for postconviction relief.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., concur.

LABARGA, J., did not participate.

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

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Notes:

1. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has mandatory jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution.

2. Our opinion on direct appeal from the resentencing explains this part of the procedural history. See Duest v. State, 855 So. 2d 33, 38 n.2 (Fla. 2003).

3. The trial court found three aggravating factors: (1) the murder was committed in the course of a robbery or for pecuniary gain; (2) Duest was previously convicted of a crime of violence; and (3) the murder was especially heinous, atrocious, or cruel (HAC). Duest, 855 So. 2d at 38. The court found no statutory mitigation and the following twelve nonstatutory mitigators:

(1) physically and emotionally abusive childhood (great weight), (2) childhood traumatization and deprivation of love (great weight), (3) history of drug and alcohol abuse (some weight), (4) defendant was under influence of drugs or alcohol at time of crime (some weight), (5) institutional abuse and corruption in the Massachusetts prison system, which Duest entered at age 17 (some weight), (6) influence by peer group, particularly a cousin, to commit crimes (some weight), (7) defendant’s diagnosis with lymphoma (some weight), (8) mutual care and love with friends and family (little weight), (9) willingness and ability to rehabilitate (little weight), (10) artistic ability (little weight), (11) lack of intent to kill victim, who was alive when defendant left residence and could have called for help (very little weight), and (12) defendant treated unfavorably by others and had troubled childhood (very little weight).

Id. at 38 n.3.

4. In his second direct appeal, Duest argued:

(1) The testimony of the medical examiner in the resentencing constitutes undisclosed evidence that calls into doubt the reliability of the verdict at trial; (2) the denial of a defense motion to have the State disclose criminal records of out-of-state witnesses deprived him of due process; (3) the trial court’s exclusion of evidence regarding Duest’s alibi deprived him of his rights to confrontation and to present a defense; (4) the trial court erroneously excluded evidence and denied an instruction on residual doubt of guilt; (5) the trial court erroneously instructed the jury on the cold, calculated and premeditated aggravator and erroneously denied instructions on two mental mitigating circumstances; (6) the trial court erroneously precluded a defense mental health expert from testifying that mental mitigating factors were present; (7) the trial court erred in permitting the State to elicit testimony identifying Duest’s prior convictions from the defense mental health expert; (8) the trial court erred in giving the jury recommendation great weight; (9) the trial court erroneously found that the killing was especially heinous, atrocious, or cruel, and erroneously refused to find two mental health mitigators; (10) the death sentence is unconstitutionally disproportionate; and (11) the death sentence violates the Sixth Amendment right to a trial by jury.

Duest, 855 So. 2d at 39 n.4.

5. Duest’s claims were: (1) Duest should be permitted to amend his motion after the court’s in-camera inspection of public records exempted from disclosure by the State Attorney’s Office; (2) the State failed to disclose information pursuant to Brady v. Maryland, 373 U.S. 83 (1963); (3) Duest was deprived of his right to a reliable adversarial testing at the guilt phase, his right to due process under the Fourteenth Amendment and his rights under the Fifth, Sixth, and Eighth Amendments because the State failed to disclose material exculpatory evidence or presented misleading evidence or both; further, newly discovered evidence entitles him to a new guilt phase; (4) Duest was denied a reliable adversarial testing at his resentencing in violation of the Sixth, Eighth and Fourteenth Amendments of the U.S. Constitution; and (5) Ring v. Arizona, 536 U.S. 584 (2002), establishes that the State was precluded from using Duest’s prior conviction as an aggravating circumstance because the conviction did not exist at the time of the offense.

6. These issues are: (1) whether Duest was denied a reliable adversarial testing at the guilt and resentencing phases of his trial in violation of the Sixth and Fourteenth Amendments of the United States Constitution and whether the trial court erred in summarily denying various issues attendant to this claim, and (2) whether Duest was denied a reliable adversarial testing at his resentencing in violation of the Sixth, Eighth and Fourteenth Amendments and whether the trial court erred in summarily denying this claim without an evidentiary hearing.

7. Dr. Wright also changed his testimony concerning where the victim was attacked. We note that in our 2003 opinion from Duest’s direct appeal of his resentencing, we made the following observation:

In his 1983 testimony at deposition and trial in this case, Dr. Wright testified that the victim was initially attacked both on his bed and in the bathroom, and died soon after a final blow in the bathroom, and that death would have occurred from ten to fifteen seconds to no more than five minutes after the stab wound to the right side of the heart. After reviewing the evidence, including crime-scene photographs, Dr. Wright testified in the 1998 penalty phase that the evidence showed that the stab wounds were inflicted only in the bedroom and that the victim then made his way to the bathroom, where he collapsed and died.

Duest, 855 So. 2d at 39. Upon another review of Dr. Wright’s testimony from his deposition, the initial trial and the resentencing, we conclude that Dr. Wright never clearly stated where the attack occurred.

8. Although Duest argues he was restricted in what testimony he could present related to Dr. Wright at the evidentiary hearing, we have independently reviewed the trial court’s order and conclude that nothing limited the scope of the hearing regarding Dr. Wright only to issues related to counsel’s alleged ineffective assistance as opposed to the broader issue of a Brady violation.

9. Richardson v. State, 246 So. 2d 771 (Fla. 1971).

10. Duest argues on appeal that his trial counsel at resentencing was ineffective for failing to seek to vacate his conviction in light of Dr. Wright’s changed testimony, entitling him to a new guilt phase trial. We reject this argument for the same reason we have determined that the trial court did not err in denying Duest’s newly discovered evidence claim concerning Dr. Wright’s testimony, which presumably could have been raised in a motion for new trial by his trial counsel during resentencing.

11. The trial court instructed the jury on the CCP aggravator but ultimately found that the aggravator was not proven beyond a reasonable doubt. See Duest, 855 So. 2d at 45. However, the court did find the HAC aggravator. Id. at 38.

12. In concluding that the killing was CCP on Duest’s initial direct appeal, the Court relied on the following findings from the trial court:

Evidence adduced at trial indicated that defendant informed witness Demezio some two days prior to the murder that he brings homosexuals back to their apartments, beats them up, and takes their money or jewelry. Defendant on the day of the murder went to his temporary residence with the victim, went into the closet where Demezio kept a dagger and left the residence with John Pope, Jr., the victim. The dagger was later discovered missing, and John Pope, Jr. was later discovered at his home, dead. His car and jewelry box were missing.

Duest, 462 So. 2d at 449-50. In its conclusion that the killing was HAC, this Court stated “the evidence presented at trial shows that the victim received eleven stab wounds, some of which were inflicted in the bedroom and some inflicted in the bathroom. The medical examiner’s testimony revealed that the victim lived some few minutes before dying.” Id. at 449. On direct appeal from resentencing, the Court noted that the number of stab wounds referenced in the initial direct appeal differed from the resentencing testimony that Mr. Pope had been stabbed twelve times. Duest, 855 So. 2d at 47 n.11. Further, the Court stated, “HAC connotes an utter indifference to the victim’s suffering, which we find supported by the record.” Id. at 47 (citation omitted). As to the CCP instruction, this Court stated:

This Court approved the trial court finding of CCP in Duest’s direct appeal from his judgment and sentence, on virtually the same evidence presented in his resentencing hearing, specifically the prearranged plan to beat up and rob a gay man and Duest’s act of returning to his temporary residence to obtain a knife while in the victim’s company. Dr. Wright’s testimony in the new penalty phase, that Pope was attacked only in his bedroom, remained alive and conscious for at least fifteen minutes, and might have survived had he promptly sought treatment, does not warrant a different conclusion.

Id. at 45 (citation omitted).

13. Although we do not reach the issue of materiality, we do summarily reject Duest’s assertion that the change in Dr. Wright’s testimony was exculpatory—the first prong of Brady. Duest argues that counsel could have raised a guilt-phase argument that the victim was stabbed in the course of a domestic dispute by his roommate, David Shifflett, as evidenced by the victim’s failure to get help after the attack. However, Duest has not pointed to any other evidence which implicates Mr. Shifflett as the killer.

14. The word “deception” was handwritten in the report above the word “indication.”

15. We further conclude, in light of our review of Duest’s Brady claims in this appeal and his prior collateral proceedings and the effect of Dr. Wright’s testimony on both the guilt and penalty phases of Duest’s trial, that the trial court did not err in failing to conduct a cumulative error analysis. See Israel v. State, 985 So. 2d 510, 520 (Fla. 2008) (“Because the alleged individual errors are without merit, the contention of cumulative error is similarly without merit.”).

16. The motion requested a continuance to further investigate into mitigating evidence and “other grounds to be argued ore tenus.”

17. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

18. While we conclude that no reversible error has been demonstrated as to the summary denial, we also take this opportunity to urge trial courts not to take a piecemeal approach to evidentiary hearings. Once defense counsel was on the witness stand, it would have been relatively easy to inquire into his trial preparation regarding the Massachusetts witnesses and the decision to call Dr. Fleming.

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Courtesy of David Edelstein

JEFFREY ALLEN MUEHLEMAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC05-353.

Supreme Court of Florida.

February 19, 2009.

An Appeal from the Circuit Court in and for Pinellas County, Brandt C. Downey, III, Judge — Case No. CRC83-04924CFANO.

Charles E. Lykes, Jr., Clearwater, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

Jeffrey Allen Muehleman appeals his death sentence for the first-degree premeditated murder of Earl Baughman imposed after resentencing proceedings. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the sentence.

FACTS AND PROCEDURAL HISTORYJeffrey Allen Muehleman, who was eighteen years old at the time of the murder, was convicted in 1984 of the May 4, 1983, first-degree murder of ninety-seven-year-old Earl Baughman in Pinellas Park, Florida. After Muehleman’s motion to suppress his confessions was denied, he pled guilty. After the first penalty phase hearing, at which Muehleman’s counsel presented mitigation, including some mental mitigation, the jury recommended death by a ten-to-two vote. In the first sentencing order, the trial court found four aggravating factors and one mitigating factor, and sentenced Muehleman to death. On direct appeal after the first penalty phase hearing, Muehleman challenged his conviction and his death sentence, which were both affirmed. See Muehleman v. State, 503 So. 2d 310, 317 (Fla.), cert. denied, 484 U.S. 882 (1987).¹ Upon postconviction review, however, this Court reversed the death sentence and ordered that a new penalty phase proceeding be held. Muehleman v. State, 833 So. 2d 774 (Fla. 2002) (table). When the 2002 order was entered, Muehleman was pro se in this court, having been granted that right after a Faretta² hearing was held in the trial court during a period of relinquishment for determination of a public records issue.³ The order reversing for a new penalty phase directed the trial court to “immediately advise Muehleman of his right to counsel.”

The Second Penalty Phase ProceedingThe new penalty phase trial was held June 23-24, 2003. Muehleman represented himself after being advised of his right to counsel at numerous pretrial hearings and after another Faretta hearing was held on May 19, 2003. At the second penalty phase proceeding, the State presented many of the same witnesses presented in the first penalty phase. In addition to evidence of the circumstances of the murder, the State presented victim impact evidence without objection—Joanne Wood, the victim’s granddaughter, and Jessie Battle, a grandson, who testified to the unique character of Earl Baughman and his loss to the family and the community. TC “The Sentencing Order” “The Sentencing Order” 2

The testimony and evidence established the following facts. Jeffrey Muehleman, age eighteen, was hired as a live-in helper by Earl Baughman, a ninety-seven-year-old man who lived alone in Pinellas Park. Calling himself Jeff Williams or Williamson, Muehleman took the job on Monday, May 2, 1983, which involved helping Baughman around the house and driving him on errands in Baughman’s 1961 Cadillac. Muehleman drove Baughman’s Cadillac to a garage apartment that Muehleman rented from Marie and Jeff Woodward and the Woodwards saw him driving the vehicle.

Virginia Peterson, a friend of Baughman, met Muehleman at the Baughman residence on Wednesday, May 4. Muehleman drove Baughman and Mrs. Peterson to the bank where Baughman cashed his social security check. Muehleman was aware that Baughman had cashed a check for about $500 and decided some time that day to rob him. Later that same day, Muehleman took Baughman to Mrs. Peterson’s house where, unbeknownst to Muehleman, Baughman gave her all but about $150 of the money for safekeeping. Baughman’s daughter, Virginia Battle, met Muehleman at Baughman’s home on the evening of May 4, 1983.⁴ He told her his name was Jeff Williams. She testified that everything seemed fine when she left.

Sometime that night, Muehleman decided it was time to rob and kill Baughman. He had attempted to enlist the help of a friend, Richard Wesley, in a plan to kill Baughman, but when Wesley did not show up, Muehleman proceeded alone. After Baughman went to bed, Muehleman stood outside Baughman’s door for several hours thinking about what to do. He then took a frying pan from the kitchen and went into the bedroom where he struck Baughman five or six times with it, splattering blood around the bedroom. Muehleman later reported most of the details of the crime to a jail inmate, Ronald Rewis. He told Rewis that before he hit Baughman, he had set up the dining room table with coffee cups and crumbs to make it appear that Baughman had eaten breakfast there. He also told Rewis that when he hit Baughman, it made a “gong sound,” and Muehleman laughed about it. At one point, Baughman was groaning and cried out, “Oh, Jeff.”

When Baughman did not die after being hit repeatedly with the frying pan, Muehleman decided to strangle him. After he strangled Baughman for what Muehleman said “seemed like ten minutes,” Baughman was still breathing, and Muehleman decided to suffocate Baughman with plastic newspaper bags. He stuffed two bags down Baughman’s throat into his windpipe. After attempting to breathe through the plastic bags, Baughman finally died.

Muehleman wiped down the house for fingerprints, cleaned the rug, removed bloody sheets from the bed and remade it, hid a blood stain on the curtain, and burned the sheets and Baughman’s wallet in the backyard. Muehleman tied a plastic bag around Baughman’s head to “collect some of the blood,” and placed him in the trunk of the Cadillac wrapped in a blanket. Muehleman took about $150 in cash, an engraved cigarette lighter, a hat, shoes, and some toiletries, all of which were later found by law enforcement officers in Muehleman’s possession. Muehleman also took an 1886 silver dollar that Baughman kept to commemorate the year of his birth, which Muehleman traded to Mrs. Woodward for some cigarettes.

After watching TV until morning traffic started to pick up, Muehleman drove the Cadillac some distance into St. Petersburg to his garage apartment where he left the items he had taken. With Baughman in the trunk, Muehleman then drove around and finally left the Cadillac parked in front of an apartment complex where he locked the car, wiped it down to remove his fingerprints, took the keys, and returned home.

When Baughman could not be located by his friends and family that day, a photograph of him and a description of the Cadillac were publicized on the news. Marie Woodward, Muehleman’s landlady, believed that Muehleman, whom she knew only as “Jeff,” worked for the missing man and notified law enforcement on May 6, 1983. Muehleman’s landlord, Jeff Woodward, also called the Sheriff’s office on May 6 and told deputies he had seen his tenant driving the Cadillac. An anonymous caller also called on May 6 and reported to deputies that the suspect was leaving the area of the apartment. Deputies went to the garage where Muehleman had been staying and found him returning from the store on a bicycle. Muehleman attempted to flee from deputies and hid his face, but was detained. He told deputies his name was Ed Buchanan, a name with initials that matched those on Baughman’s engraved lighter. After being given his Miranda⁵ warnings, Muehleman admitted to working for Baughman and to taking some items from him, but denied knowing anything about his disappearance. Muehleman was arrested on charges of obstructing justice by false information on May 6 and continued to deny knowledge of Baughman’s disappearance. He invoked his right to remain silent on May 9, 1983.

On May 14, 1983, the Cadillac was located and Baughman’s body was found in the trunk in a moderately decomposed state. The current medical examiner testified that autopsy reports prepared by the former medical examiner in 1983 indicated Baughman died from suffocation, had a fractured hyoid bone in his throat and did not appear to have a skull fracture. Baughman still had two plastic bags stuffed down his windpipe. Baughman could have been alive for several minutes after the bags were forced down his throat.

Muehleman continued to proclaim his innocence in several interviews he initiated with detectives, but ultimately gave detectives two taped confessions after being advised of his Miranda rights each time. He also confessed to jail inmate Ronald Rewis, who taped part of the conversation.⁶ While in jail, Muehleman approached Rewis and began to discuss many details of the killing, including some not made public. Rewis approached jail authorities and agreed to secretly record any future conversations with Muehleman, although he contended he never raised the subject himself. On June 8, 1983, Muehleman met with detectives, was informed of the evidence that had been gathered, and confessed in some detail. Muehleman told detectives that he did not decide to kill Baughman until after he had hit him with the frying pan and then realized he did not want Baughman to suffer. Muehleman was formally booked on a charge of first-degree murder. He also confessed to a St. Petersburg Times newspaper reporter, who printed the article on June 9, 1983. Muehleman requested another meeting with detectives on June 10, was again given Miranda warnings, and provided a final taped statement, adding more details of the crime.

At the penalty phase trial, Muehleman represented himself. He presented no mitigation testimony or evidence and, at the conclusion of the proceeding, the jury recommended a sentence of death by a ten-to-two vote. Even though Muehleman presented no mitigation, the State’s sentencing memorandum outlined potential mitigation, including Muehleman’s age of eighteen at the time of the crime and his good prison record. Pursuant to Muhammad v. State, 782 So. 2d 343 (Fla. 2001),⁷ the State also provided the trial court with a summary of the mitigation evidence in the record, which was presented in the first penalty phase, including Muehleman’s medical and social problems from birth to the time of trial and the opinions of a clinical psychologist and a psychiatrist who testified in the first penalty phase.

Muehleman appeared pro se at the Spencer⁸ hearing held on September 5, 2003. When offered appointed counsel, he again declined and did not present any mitigation evidence or testimony. The trial court entered its sentencing order on October 10, 2003, finding five aggravating factors (although two were merged) and one statutory mitigating factor—the age of the defendant at the time of the crime (eighteen years old). The court concluded that Muehleman’s emotional age was not any different than his chronological age and gave the mitigator moderate weight. The aggravators found by the court were: (1) and (2) (merged) the murder was committed during a robbery; the murder was committed for financial gain; (3) the murder was committed to avoid lawful arrest or effect an escape; (4) the murder was especially heinous, atrocious or cruel (HAC); and (5) the murder was cold, calculated and premeditated (CCP).

The trial court found that “[t]he aggravating circumstances far outweigh the one mitigating circumstance of the Defendant’s age (18) at the time he committed the crime.” After weighing the aggravators against the mitigator, the trial court followed the jury’s ten-to-two recommendation and imposed a sentence of death.

TC “This Appeal” “This Appeal” 2 This AppealMuehleman raises five main issues in this appeal: (A) whether the trial court disobeyed this Court’s order to immediately advise him of his right to counsel and whether the court correctly allowed Muehleman to represent himself; (B) whether the trial court reversibly erred in denying Muehleman’s motion to restore assignment of the case to the original presiding judge; (C) whether the trial court reversibly erred in permitting members of the State Attorney’s Office to read former testimony from now-unavailable witnesses who testified in Muehleman’s first penalty phase proceeding; (D) whether jail inmate and State’s witness Ronald Rewis was a state agent and whether his testimony was improperly admitted in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (E) whether cumulative error requires reversal. In addition to the claims asserted by Muehleman, the Court must also review the issue of proportionality of the death sentence.

ANALYSIS Muehleman’s Self-RepresentationMuehleman contends that the trial court erred by failing to follow this Court’s September 17, 2002, order, which reversed for a new sentencing proceeding and directed the trial court to immediately advise Muehleman that he had a right to be represented by appointed counsel during his resentencing. He also contends that the trial court failed to hold a proper Faretta⁹ hearing before allowing him to waive counsel and represent himself at his resentencing. We find no merit in either of these contentions. The record reflects that the trial court adequately followed our September 17, 2002, directive that Muehleman be immediately advised of his right to counsel and that he was afforded a proper Faretta hearing before the commencement of the penalty phase trial.

As noted earlier, Muehleman was granted leave to represent himself by the trial court in an order dated March 31, 1999, which was entered after a Faretta hearing held during relinquishment of jurisdiction from this Court. Even so, a defendant’s right to counsel applies at each crucial stage of the proceedings, and “[w]here the right to counsel has been properly waived, the State may proceed with the stage at issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.” Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992); see also Ibar v. State, 938 So. 2d 451, 469 (Fla. 2006); Fla. R. Crim. P. 3.111(d)(5) (2003) (“If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”). As explained below, Muehleman insisted on his right to represent himself throughout the resentencing proceedings, even though the trial court advised him of his right to appointed counsel at every critical stage in the proceedings and urged him to accept appointed counsel or standby counsel on several occasions due to the complexities of the proceeding and the serious nature of the possibility of a sentence of death. The record also reflects that the trial court held a proper Faretta hearing before allowing Muehleman to represent himself at his resentencing proceeding.

On December 12, 2002, at the first hearing held after remand, the judge began by indicating that “one of the first things we need to determine right off the bat is an attorney.” Muehleman immediately cut off that line of discussion with his announcement that he was “not going to have one” and that he desired to represent himself. No formal Faretta hearing was held at that time, although the court did warn Muehleman that he was concerned about waiver of an attorney because Muehleman was facing another possible death sentence. At that same first pretrial hearing, the court also offered to appoint standby counsel for Muehleman, which he refused. The lengthy colloquy with Muehleman about appointed counsel, which occurred at the first hearing held after our order of remand, satisfied our directive that Muehleman be immediately advised of his right to counsel. Moreover, the trial court properly offered counsel to Muehleman at subsequent proceedings.

During the January 21, 2003, pretrial hearing the issue of waiver of counsel was again discussed briefly. At the February 12, 2003, hearing the judge asked Muehleman if he still wanted to represent himself and was advised that he did. The issue of standby counsel was again discussed, but none was appointed because Muehleman said he was looking into the possibility of private counsel. When the State asked the court to conduct another Faretta hearing, Muehleman immediately objected to any further Faretta inquiry, arguing that the prior Faretta inquiry “is still in force.”

The State again asked that a Faretta inquiry be conducted at the April 15, 2003, pretrial conference and Muehleman again objected. He stated that the only thing that was required of the court was that he be offered assistance of counsel at each subsequent stage. Muehleman then stated, “The court has fulfilled it. It has been made clear that I am standing pro se.” At that same April 15 hearing, the trial court expressed concern that Muehleman had claimed brain damage in the first penalty phase. Muehleman responded that “[i]t’s waived” and “there is no present mental or medical reason that prohibits me from presenting this defense.” Muehleman did not raise any issue of competency in the proceedings below or in this appeal. When the trial court asked Muehleman to confirm that he wanted to represent himself, Muehleman did so, and further expressly rejected any standby counsel, even though the judge advised him he would be at a tremendous disadvantage in the resentencing hearing without an experienced death penalty attorney available to assist him. When the State expressed concern about Muehleman’s rejection of counsel, Muehleman again objected to any Faretta type inquiry.

On May 16, 2003, the State asked the court to appoint counsel to consult with Muehleman about his expressed intent not to offer any mitigation. Muehleman objected to any counsel being forced on him and said, “There is nothing wrong with my present mental competence.” He made clear that he “opted this case out of state-provided representation.” The trial court again warned Muehleman that if he presented no mitigation at the new penalty phase, he would have waived the right to ever present it.

At the next hearing, on May 19, 2003, the trial court again offered Muehleman appointed counsel and indicated it would conduct a full Faretta inquiry at that time. Muehleman objected to the Faretta inquiry and refused to answer many of the questions posed to him. Muehleman now contends the inquiry that was conducted was inadequate. We disagree.

At that May 19 hearing, the court advised Muehleman of his right to appointed counsel and asked him if he understood that an attorney would be appointed if he could not afford one. Muehleman would not respond. Muehleman did confirm having received a copy some years earlier of the charge against him, and said that he discussed the charge with the attorney representing him at that time. When asked if he understood the possible penalty was death, Muehleman confirmed that he knew the two possible penalties that could be imposed—death or life in prison. When asked if he had ever been diagnosed with or treated for a mental illness, he did not answer. The court asked Muehleman about his level of education and Muehleman again did not respond, but confirmed that he could read and write. Muehleman refused to answer many of the questions posed by the court, but it was apparent on the record, from his pro se verbal and written appearances before the court, that he was articulate, understood the charges and possible penalty, knew various aspects of the law pertaining to the penalty phase, and knew that he had both a right to appointed counsel and a right to represent himself. Muehleman was also advised that a lawyer would possess experience and knowledge necessary in the case and that Muehleman would be at a great disadvantage if he represented himself. When the issue of standby counsel was again raised by the court, Muehleman objected to appointment of standby counsel and thus none was appointed.

In addition to making the inquiry required by Faretta, the trial court also advised Muehleman that his stated “jurisdictional” objection to Judge Brandt Downey presiding over the case, rather than Judge Crockett Farnell, the original judge in the case, was not likely to be upheld on appeal and that Muehleman’s non-participation on this basis would be a waiver of his right to present mitigation. Muehleman confirmed that he understood this. At the conclusion of the Faretta inquiry, the court stated on the record that Muehleman was competent to represent himself, understood the significance of his actions, understood the nature of the proceedings, and was entitled to represent himself.

On June 23, 2003, when the second penalty phase proceeding began with jury selection, the trial court again offered Muehleman the assistance of counsel, which he rejected. He was again offered, but rejected, counsel at the Spencer hearing on September 5, 2003.

Clearly, Muehleman insisted on the right to represent himself throughout the proceedings. Under the United States Supreme Court’s ruling in Faretta and this Court’s precedent, “once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.” Tennis v. State, 997 So. 2d 375, 378 (Fla. 2008) (citing Hardwick v. State, 521 So. 2d 1071, 1074 (Fla. 1988)). The Supreme Court stated in Faretta:

The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.”

Faretta, 422 U.S. at 834. Faretta also advised:

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”

422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).

The United States Supreme Court Indiana v. Edwards, 128 S. Ct. 2379 (2008), reaffirmed the importance of Faretta as the “foundational `self-representation’ case,” because the “Sixth and Fourteenth Amendments include a `constitutional right to proceed without counsel when’ a criminal defendant `voluntarily and intelligently elects to do so.’” Edwards, 128 S. Ct. at 2383 (quoting Faretta, 422 U.S. at 807). Edwards makes clear, however, that the constitution permits states to insist upon representation by counsel for those defendants competent enough to stand trial “but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 2388.

Florida Rule of Criminal Procedure 3.111 also recognizes the right of an accused to represent himself or herself, and sets forth certain requirements that must be met before waiver of counsel may be found by the trial court. The rule provides in pertinent part:

(d) Waiver of Counsel.

. . . .

(2) A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.

(3) Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.

We noted in Tennis that the Supreme Court in Edwards gave trial courts more discretion in the context of a Faretta inquiry to examine a defendant’s mental competency and mental capacity to represent himself and that “in certain instances a defendant may be precluded from exercising his or her right to proceed pro se after the trial court conducts a Faretta inquiry.” Tennis, 997 So. 2d at 378.¹⁰

The record reflects that the trial court’s inquiry regarding Muehleman’s demands to represent himself and the court’s determination on the record met the requirements of both Faretta and rule 3.111, as modified by the considerations mandated by Edwards. The trial court ruled on the record, after the Faretta hearing held May 19, 2003, as follows:

Pursuant to Faretta, again I will make a finding, as did Judge Farnell back, I believe, it was in March of ’99, make a finding that Mr. Muehleman is competent to represent himself, he understands the significance of his actions, he understands the proceedings that we are going to be going into, he is educated, he can read, he can write, and under Faretta, he is certainly entitled to represent himself.

The record in this case supports the judge’s findings and shows that Muehleman was lucid, literate, articulate, and appeared to have a clear understanding of what he was facing. We also emphasize that Muehleman has not alleged either in the trial court or this Court, nor does the record provide any basis to find, that he suffered from a “severe mental illness to the point where [he was] not competent to conduct trial proceedings by [himself].” Edwards, 128 S. Ct. at 2388.

“[O]nce a court determines that a competent defendant of his or her own free will has `knowingly and intelligently’ waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented.” Hernandez-Alberto v. State, 889 So. 2d 721, 729 (Fla. 2004) (quoting State v. Bowen, 698 So. 2d 248, 251 (Fla. 1997)). When that occurs, “[t]he court may not inquire further into whether the defendant `could provide himself with a substantively qualitative defense,’ for it is within the defendant’s rights, if he or she so chooses, to sit mute and mount no defense at all.” Id. (citation omitted) (quoting Bowen, 698 So. 2d at 251). Moreover, “[w]here a competent defendant `knowingly and intelligently’ waives the right to counsel and proceeds unrepresented `with eyes open,’ he or she ipso facto receives a `fair trial’ for right to counsel purposes.” Potts v. State, 718 So. 2d 757, 759-60 (Fla. 1998) (quoting Bowen, 698 So. 2d at 252).

The trial court’s inquiry satisfied the constitutional predicate for allowing self-representation. It also provided the trial court with a proper basis to determine that Muehleman made a knowing and intelligent waiver of his right to appointed counsel. The record is replete with clear indications that Muehleman knew he had a right to appointed counsel, was offered counsel at every critical stage of the proceedings, and was advised of the risks of self-representation, but expressly and unequivocally rejected counsel in favor of self-representation at every turn. Muehleman made clear, over and over, that he did not want counsel forced upon him and that it was his personal and constitutional right to represent himself. He rejected any concern that he had a mental deficiency that could affect his ability to represent himself. Muehleman made the choice “with eyes open,” see Faretta, 422 U.S. at 835, confirming to the trial court that he knew he was gambling his life on that self-representation.

In this case, the fact that Muehleman was granted his request to represent himself, and subsequently chose to present no mitigation whatsoever, does not establish that the trial court erred in allowing him to follow that chosen path. The record supports a finding that Muehleman proceeded down that path voluntarily, knowing he was staking his life on the choices he made. Muehleman has demonstrated no error in the rulings of the trial court on this issue and, accordingly, relief is denied on this claim.

Claim of Error in Judicial AssignmentMuehleman next claims that the trial court erred in allowing the resentencing proceeding to be conducted by a circuit judge who did not hear the first penalty phase trial. Muehleman took the firm position in the trial court that Judge Brandt Downey, the judge who was assigned to handle criminal cases in the Sixth Judicial Circuit at the time of the resentencing, had no jurisdiction to preside over the resentencing proceeding because Judge Crockett Farnell presided over the first penalty phase proceeding and the postconviction proceedings.¹¹ Muehleman further refused, in large part, to “participate” in the proceedings below based on his erroneous belief that to do so would be waiving his jurisdictional claim. We disagree with Muehleman’s contention and conclude that the issue of jurisdiction is not implicated. Further, no error has been shown in the court’s refusal to reassign Judge Farnell to hear the case.

First, as to Muehleman’s jurisdictional claim, this Court explained Rodriguez v. State, 919 So. 2d 1252 (Fla. 2005), that administrative orders of judicial assignment “do not limit the lawful authority of any judge of the court, nor do they bestow rights on litigants.” Id. at 1278 (quoting Kruckenberg v. Powell, 422 So. 2d 994, 996 (Fla. 5th DCA 1982)). At issue in Rodriguez was an internal court policy relating to judge assignments, while Muehleman complains here of an alleged violation of a rule promulgated by this Court, but the principle is the same. As a circuit judge, Judge Downey clearly had jurisdiction to preside over the case. Judicial assignment rules are “designed to promote judicial efficiency, so courts have wide discretion in this field.” Rodriguez, 919 So. 2d at 1278-79 (citing Jonathan L. Entin, The Sign of “The Four”: Judicial Assignment and the Rule of Law, 68 Miss. L.J. 369 (1998)). The Court further explained in Rodriguez that “a litigant must establish prejudice from any improper judicial assignment.” 919 So. 2d at 1278. Muehleman has not identified any prejudice that flowed from the chief judge’s refusal to reassign Judge Farnell to preside over the resentencing. Muehleman’s suggestion that Judge Farnell’s “institutional knowledge” of the case was lost in the resentencing does not support a claim of prejudice. Because resentencing occurred after a new penalty phase jury trial, the sentence could not be based on a judge’s prior knowledge of the facts of the case or of the aggravating or mitigating factors.

Muehleman also argues that Florida Rule of Criminal Procedure 3.700 is mandatory and requires the assignment of Judge Farnell to preside at his resentencing unless a showing of necessity is made for assignment of any judge “other than the judge who presided at the capital trial” to preside at a sentencing proceeding. We disagree. Rule 3.700(c)(2) provides:

(c) Sentencing Judge.

. . . .

(2) Capital Cases. In any capital case in which it is necessary that sentence be pronounced by a judge other than the judge who presided at the capital trial, the sentencing judge shall conduct a new sentencing proceeding before a jury prior to passing sentence.

The rule simply requires that where a new judge is assigned to pronounce sentence in a capital case, there must be a new sentencing proceeding in front of a jury, which is exactly what occurred in this case—Muehleman was given a completely new sentencing proceeding in front of a jury. The rationale behind rule 3.700(c)(2) is that a substitute judge “who does not hear the evidence presented during the penalty phase of the trial must conduct a new sentencing proceeding before a jury to assure that both the judge and jury hear the same evidence.” Ferguson v. Singletary, 632 So. 2d 53, 55 (Fla. 1993). We earlier stated this same principle Corbett v. State, 602 So. 2d 1240, 1244 (Fla. 1992), where we recognized the unique responsibilities of the sentencing judge in a capital case and concluded that “fairness in this difficult area of death penalty proceedings dictates that the judge imposing the sentence should be the same judge who presided over the penalty phase proceeding.” Id. at 1244. Moreover, “this Court has consistently applied the `clean slate’ rule to resentencing proceedings”. . . “[and a] resentencing is to proceed in every respect as an entirely new proceeding.” Merck v. State, 975 So. 2d 1054, 1061 n.4 (Fla. 2007) (citation omitted) (citing Preston v. State, 607 So. 2d 404, 408-09 (Fla. 1992)). Muehleman’s resentencing proceeded as an entirely new proceeding, before a jury, in which Judge Downey heard all the evidence as to the circumstances of the murder and sentenced Muehleman accordingly.

Because Judge Downey had jurisdiction to preside over the resentencing, which was conducted as an entirely new proceeding in front of a jury, relief is denied on this claim. TC “ISSUE-3 Whether the trial court erred reversibly in permitting members of the state attorney’s office to read testimony from witnesses now unavailable given at Muehleman’s prior penalty phase proceeding.”

Former Testimony of Unavailable WitnessesMuehleman next contends that the trial court erred in allowing the State to present the former testimony of several witnesses who testified in the first penalty phase proceeding but who were found to be unavailable at the time of the resentencing. The State presented investigator Scott Hopkins who testified that he conducted a search for witnesses Virginia Battle, the victim’s daughter, and Virginia Peterson, the victim’s friend. He discovered they were both deceased and their death certificates were admitted into evidence. Hopkins and his assistants also conducted an extensive search for Ronald Rewis, the jailhouse informant who taped conversations with Muehleman. Hopkins testified that Rewis could not be located and had not been heard from by his family since 1991. Government records also showed no activity for him since 1991. Assistant State Attorneys were allowed to read the testimony of Peterson, Battle, and Rewis. Muehleman does not challenge the finding of unavailability of these witnesses but contends that the State should not have been allowed to present the testimony through witnesses who were associated with the State Attorney’s Office. We find no error in the procedure followed by the trial court.

A trial court’s decision to admit prior testimony is reviewed for abuse of discretion. See Thompson v. State, 995 So. 2d 532 (Fla. 2d DCA 2008); Outlaw v. State, 269 So. 2d 403, 404 (Fla. 4th DCA 1972). This standard is applied, however, with due regard for the principles set out Crawford v. Washington, 541 U.S. 36 (2004). The Supreme Court in Crawford held that where an out-of-court testimonial statement is offered, it must be established that the defendant had the prior opportunity to cross-examine the declarant and that the witness must be shown to be unavailable. Id. at 68. Section 90.804(2)(a), Florida Statutes (2003), similarly provided that former testimony may be received under certain circumstances, where the declarant is unavailable, as follows:

(a) Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Similar principles were also reflected in Florida Rule of Criminal Procedure 3.640(b) (1992), which was in effect at the time of resentencing.¹² In the case of a retrial in a criminal case, as occurred here with the new penalty phase proceeding, rule 3.640 in effect in 2003 provided:

(b) Witnesses and Former Testimony at New Trial. The testimony given during the former trial may not be read in evidence at the new trial unless it is that of a witness who at the time of the new trial is absent from the state, mentally incompetent to be a witness, physically unable to appear and testify, or dead, in which event the evidence of such witness on the former trial may be read in evidence at the new trial as the same was taken and transcribed by the court reporter. Before the introduction of the evidence of an absent witness, the party introducing the evidence must show due diligence in attempting to procure the attendance of witnesses at the trial and must show that the witness is not absent by consent or connivance of that party.

This Court, Ibar v. State, 938 So. 2d 451 (Fla. 2006), also explained the circumstances under which prior testimony will be allowed into evidence, stating as follows:

The use of prior testimony is allowed where (1) the testimony was taken in the course of a judicial proceeding; (2) the party against whom the evidence is being offered was a party in the former proceeding; (3) the issues in the prior case are similar to those in the case at hand; and (4) a substantial reason is shown why the original witness is not available.

Id. at 464 (quoting Thompson v. State, 619 So. 2d 261, 265 (Fla.1993)). Those same factors were established in this case. The prior testimony was taken in Muehleman’s first penalty phase, in a judicial proceeding, on the same issues, subject to cross-examination, and the unavailability of the witnesses was established.

Muehleman’s complaint here is that the former testimony was read by persons associated with the State Attorney’s Office. No statute or rule dictates who must be utilized to read former testimony. Muehleman does not allege, nor does the record demonstrate, that the witnesses acted as advocates or attorneys in the trial, or that they shaded the testimony or presented it in an improper fashion. Muehleman has cited only the fact that the readers were well-respected members of the State Attorney’s office, and that an especially well-respected assistant state attorney read the testimony of Rewis, the jail inmate, thereby allegedly adversely affecting the jury’s ability to evaluate the credibility of Rewis. However, this same complaint would appear to apply to anyone who might have read Rewis’s testimony, other than Rewis himself. Because Muehleman has not demonstrated that the procedure followed by the trial court violated the provisions of section 90.804, Florida Statutes, or the principles set forth in Crawford, we deny relief on this claim.

Admissibility of Ronald Rewis’s TestimonyMuehleman’s next claim asserts error in the admission of the former testimony of witness Ronald Rewis, a jail inmate incarcerated with Muehleman before he was charged with the murder. Rewis’s testimony, given at the first penalty phase and read into the record of the second proceeding, included incriminating statements that Muehleman made to him revealing details of the murder that had not been made public. The record establishes that Rewis was not recruited by law enforcement to obtain the statements, but did report Muehleman’s statements to the authorities, who then requested that Rewis wear a body bug to record any further statements Muehleman might make. Rewis agreed and obtained a number of incriminating statements that were presented to the jury through his testimony. Muehleman objected to admission of this testimony on the grounds that the State should be precluded from presenting “false” testimony from this “jail agent.” He now argues on appeal that Rewis’s testimony violated his right against self-incrimination and right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966).

The claim Muehleman now makes is procedurally barred for two reasons. First, this specific contention was not made to the trial court below. See F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (stating that for an issue “to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below”) (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)). Second, and more importantly, the very same issue Muehleman presents in this appeal was raised and ruled upon in the direct appeal from the first penalty phase. The law of the case doctrine bars consideration of those issues actually considered and decided in a former appeal in the same case. Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 107 (Fla. 2001). In the first appeal, we stated:

Muehleman’s next claim involves an alleged violation of his sixth amendment right to counsel. He contends that fellow inmate Ronald Rewis became a state agent for the impermissible purpose of acquiring incriminating evidence which properly lay beyond the state’s reach. Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985); United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). We find in this case no violation of Muehleman’s sixth amendment rights, as a review of the facts discloses that his incriminating admissions were not a product of a “`stratagem deliberately designed to elicit an incriminating statement.’” Miller v. State, 415 So. 2d 1262, 1263 (Fla. 1982), cert. denied, 459 U.S. 1158, 103 S. Ct. 802, 74 L. Ed. 2d 1005 (1983) (quoting Malone v. State, 390 So. 2d 338, 339 (Fla. 1980), cert. denied, 450 U.S.1034, 101 S. Ct. 1749, 68 L. Ed. 2d 231 (1981)).

First, Muehleman, apparently eager to talk, approached Rewis and began to repeatedly attempt to discuss details of the crime with him. Second, after unsuccessfully attempting to dissuade Muehleman from “talking too much,” Rewis approached the authorities on his own initiative. Bottoson v. State, 443 So. 2d 962 (Fla. 1983), cert. denied, 469 U.S. 873, 105 S. Ct. 223, 83 L. Ed. 2d 153 (1984); Barfield v. State, 401 So. 2d 377 (Fla. 1981). Third, Rewis was at that point instructed not to initiate any conversations with the suspect. Finally, no evidence exists in the record that Rewis’ efforts were induced by promises of any form of compensation. The contingent fee arrangement reflecting an improper relationship between police and informant in Henry is absent in this case.

Muehleman v. State, 503 So. 2d at 314.

Rewis’s testimony in the second penalty phase was identical to that presented on direct examination in the first penalty phase. Muehleman brought up the subject of the murder and persisted in talking about it even after Rewis attempted to dissuade him from doing so. The State did not approach him with a request that he get close to Muehleman to obtain the statements, and there is no evidence that Rewis was promised anything. Just as this Court found in the first appeal, Rewis’s testimony was not the result of a State stratagem, Rewis was “instructed not to initiate any conversations with the suspect,” and “no evidence exists in the record that Rewis’ efforts were induced by promises of any form of compensation.” Muehleman, 503 So. 2d at 314. Rolling v. State, 695 So. 2d 278, 291 (Fla. 1997), we explained that whether a violation such as alleged here has occurred “turns on whether the confession was obtained through the active efforts of law enforcement or whether it came to them passively.” We also explained our holding in Muehleman’s direct appeal by stating:

Likewise, in Muehleman v. State, we interpreted the “deliberately elicited” standard in terms of its plain meaning and found that the defendant’s right to counsel had not been violated because his statements were not a product of a “stratagem deliberately designed to elicit an incriminating statement.”

Rolling, 695 So. 2d at 291 (citations omitted) (quoting Muehleman, 503 So. 2d at 314).

We recognize that “[t]his Court has the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.” Parker v. State, 873 So. 2d 270, 278 (Fla. 2004) (quoting State v. Owen, 696 So. 2d 715, 720 (Fla. 1997)). However, Muehleman has provided no basis upon which we can conclude our prior ruling was erroneous or should be revisited.

Because this claim is procedurally barred by Muehleman’s failure to raise it below and also by this Court’s decision in the first direct appeal, and because no exceptional circumstances or manifest injustice have been shown to require reversal of that ruling, relief is denied on this claim.

Cumulative ErrorFinally, Muehleman claims that the cumulative effect of the alleged errors mandates that his sentence be reversed for a new penalty phase. Because Muehleman’s claims are individually without merit or are procedurally barred, his claim of cumulative error claim must fail. See Israel v. State, 985 So. 2d 510, 520 (Fla. 2008) (“Because the alleged individual errors are without merit, the contention of cumulative error is similarly without merit.”); see also Williams v. State, 987 So. 2d 1, 14 (Fla. 2008); Pooler v. State, 980 So. 2d 460, 473 (Fla.), cert. denied, 129 S. Ct. 255 (2008).

Proportionality of the Death SentenceMuehleman does not challenge the proportionality of his death sentence, but this Court reviews a 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). Because the death penalty is “reserved only for those cases where the most aggravating and least mitigating circumstances exist,” Terry v. State, 668 So. 2d 954, 965 (Fla. 1996), we make a “comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.” Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003) (citation omitted). Our review is not a quantitative analysis of the number of aggravators versus the number of mitigators, but entails “a qualitative review” of the basis for each aggravator and mitigator. Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998).

In reviewing the sentence for proportionality, this Court will accept the jury’s recommendation and the weight assigned by the trial judge to the aggravating and mitigating factors. See Bates v. State, 750 So. 2d 6, 12 (Fla. 1999). The trial court found the following aggravators: (1) and (2) (merged) the murder was committed during a robbery and the murder was committed for financial gain; (3) the murder was committed to avoid lawful arrest or effect an escape; (4) the murder was especially heinous, atrocious or cruel (HAC); and (5) the murder was cold, calculated and premeditated (CCP). The trial court weighed these aggravators against the one statutory mitigating factor of the young age of the defendant at the time of the murder and concluded that, based on the circumstances of the murder, the aggravators vastly outweighed the one statutory mitigator, thereby justifying the sentence of death. We agree.

The circumstances of the murder in this case show that Baughman was killed so that Muehleman could steal approximately $150 and various small items including a hat, shoes, a monogrammed lighter, and an 1886 silver dollar. Muehleman also admitted he took the job working for Baughman to steal money to return to Illinois, thereby establishing aggravators (1) and (2). Muehleman admitted that he killed Baughman because the victim could identify him; and he tried to conceal the blood-stained mattress and burned the bloody linens and Baughman’s wallet. The evidence showed that even before the murder, Muehleman set the table to make it appear the victim had eaten breakfast. Muehleman cleaned up the crime scene, concealed the body in the car trunk, and moved the car and body to avoid suspicion. These facts support aggravator (3) found by the trial court.

The murder was not instantaneous. Muehleman admitted hitting Mr. Baughman with a cast iron frying pan, splattering blood around the room, while the victim pled with him to no avail. Muehleman then strangled Mr. Baughman for a lengthy period of time, which did not succeed in killing him, so Muehleman shoved plastic bags down his throat. Even then, the victim struggled and continued to try to breathe for several more minutes. These facts show that the murder was especially heinous, atrocious or cruel, as found in aggravator (4). Finally, the murder was carefully planned in advance. Muehleman tried to enlist the help of a friend in advance of the murder and he admitted to thinking about killing the victim for several hours while waiting for him to fall asleep. After trying to suffocate Baughman with a plastic bag, Muehleman watched as the victim attempted to keep breathing. Clearly, the murder was cold, calculated and premeditated, as found in the trial court’s aggravator (5).

The Court has affirmed the death sentence in cases involving similar type murders, in which similar aggravation but even more mitigation was present. For instance, Hoskins v. State, 965 So. 2d 1 (Fla. 2007), cert. denied, 128 S. Ct. 1112 (2008), the eighty-year-old victim was bludgeoned, strangled and raped. The trial court in Hoskins found HAC, which is “one of the most serious aggravators in the statutory sentencing scheme,” along with two other aggravators. Id. at 22 (quoting Douglas v. State, 878 So. 2d 1246, 1262 (Fla. 2004)). After weighing the aggravators against one statutory mitigator, mental age, and fifteen nonstatutory mitigators, the trial court found that any one aggravator outweighed the mitigators and sentenced Hoskins to death. Id. at 6-7. This Court found the sentence proportionate and affirmed.

Beasley v. State, 774 So. 2d 649 (Fla. 2000), also a bludgeoning death, the trial court found HAC, financial gain, and commission in course of a robbery. This was weighed against substantial statutory and nonstatutory mitigation. This Court found the death sentence proportionate and affirmed. Id. at 673. Salazar v. State, 991 So. 2d 364 (Fla. 2008), petition for cert. filed, (U.S. Dec. 11, 2008) (No. 08-7801), the defendant attempted to suffocate the victim for a period of time by taping a plastic bag to her head, but she was ultimately shot because it was taking too long. Id. at 369.¹³ The trial court found that the aggravators of prior violent felony, HAC, CCP and commission during a burglary outweighed the six nonstatutory mitigators. On appeal, this Court affirmed the death sentence, finding it proportionate. Id. at 380.

Finally, LaMarca v. State, 785 So. 2d 1209 (Fla. 2001), the defendant waived counsel and waived presentation of any mitigation at the penalty phase of his trial. The trial court found only one aggravator (prior violent felony) and some insubstantial nonstatutory mitigation. Id. at 1216. On appeal, this Court found the sentence proportionate under the specific facts of the case. Id. at 1217.

The instant case involved bludgeoning, strangling, and finally suffocating Earl Baughman. The trial court found that the weighty aggravator of HAC, along with the CCP, financial gain, and avoid arrest aggravators, when weighed against only one statutory mitigator, supported a sentence of death. We agree and conclude that the death sentence in this case is proportionate.

CONCLUSIONAfter a complete review of all the issues raised by Muehleman, and after our own independent review of the proportionality of the sentence, we affirm Muehleman’s sentence of death.

It is so ordered.

WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., concur.

QUINCE, C.J., recused.

LABARGA, J., did not participate.

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

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Notes:

1. Muehleman raised the following issues on direct appeal: (1)(A) the trial court erred in refusing to suppress statements Muehleman made to law enforcement authorities, to alleged state agent Ronald Rewis, and to reporter Christopher Smart, as the statements were the fruit of an illegal warrantless search, and some were obtained in violation of Muehleman’s right to counsel and right to remain silent; (1)(B) the trial court erred in refusing to suppress physical evidence obtained from Muehleman and his garage apartment, as such evidence was the fruit of an illegal arrest, and was obtained without a warrant in violation of the Fourth Amendment; (2) Muehleman’s conviction and sentence should be vacated, as they were predicated upon inadmissible evidence; (3) Muehleman’s absence from portions of the proceedings below violated his constitutional right to be present; (4) the trial court erred in allowing the State to introduce during the defense’s case a document entitled “Juvenile Social History Report,” which was hearsay and contained prejudicial and irrelevant material, invaded the province of the jury, and violated the trial court’s pretrial ruling on discovery; (5) the trial court erred in allowing the State to present during its case in rebuttal evidence of other crimes allegedly committed by Muehleman; (6) the trial court erred in permitting the State to introduce as rebuttal evidence the transcript of a taped interview with Richard Wesley; (7) the trial court erred in restricting Muehleman’s presentation of evidence in mitigation and evidence relevant to the credibility of a key State witness; (8) the trial court erred in permitting the prosecutor to make a number of improper and prejudicial comments to the jury during his closing argument; (9) the trial court erred in giving incomplete and misleading instructions to the jury; and (10) the trial court erred in sentencing Muehleman to death because the sentencing weighing process included improper aggravating circumstances and excluded existing mitigating circumstances, rendering the death sentence unconstitutional under the Eighth and Fourteenth Amendments. Muehleman presented an additional issue via a supplemental brief claiming that his death sentence must be vacated because the record did not reflect that the trial court made the requisite findings of fact as to aggravating and mitigating circumstances prior to orally imposing the death sentence, and the trial court did not file written findings as to aggravating and mitigating circumstances until after it lost jurisdiction.

2. Faretta v. California, 422 U.S. 806 (1975).

3. In 1998, the trial court dismissed the Capital Collateral Representative as not providing competent representation and new counsel was appointed. Several months after being given new counsel, Muehleman sought a Faretta hearing, which was held March 30, 1999. He was granted leave to represent himself by order of the trial court dated March 31, 1999. The relinquishment and public records litigation continued with Muehleman acting pro se until the case returned to this Court on May 9, 2001. The appeal resulted in the Court entering a September 17, 2002, order reversing the death sentence for an entirely new penalty phase.

4. Mrs. Peterson and Mrs. Battle died before the resentencing and their testimony from the first trial was read into evidence at the resentencing.

5. Miranda v. Arizona, 384 U.S. 436 (1966).

6. Rewis could not be located and was found to be unavailable for the resentencing. His testimony was read into the record at the second penalty phase hearing.

7. In Muhammad, we emphasized “the duty of the trial court to consider all mitigating evidence `contained anywhere in the record, to the extent it is believable and uncontroverted.’” 782 So. 2d at 363 (quoting Farr v. State, 621 So. 2d 1368, 1369 (Fla. 1993)).

8. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

9. Faretta v. California, 422 U.S. 806, 835 (1975) (holding that a trial court may not impose counsel on a “literate, competent, and understanding” defendant who has voluntarily waived his or her right to counsel). “[W]hen there is an unequivocal request for self-representation, a trial court is obligated to hold a Faretta hearing to determine if the request for self-representation is knowing and intelligent.” Tennis v. State, 997 So. 2d 375, 380 (Fla. 2008).

10. In light of the holding in Edwards, the Court now has under consideration an amendment to subdivision (d)(3) of rule 3.111, which would require the trial court, before finding a knowing and intelligent waiver of counsel, to determine that the defendant does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself. See In re Amendments to Florida Rule of Criminal Procedure 3.111, No. SC08-2163 (Fla. petition filed Nov. 20, 2008). All other provisions of rule 3.111 would presumably remain unchanged.

11. Muehleman filed Defendant’s Motion for Chief Judge to Restore Proper Assignment of Original Presiding Judge to Case on January 21, 2003. The motion alleged in part that, without notice to the defense and without a valid reason, Judge Brandt Downey had “hijacked the assignment of the above captioned Capital case from its properly assigned original trial judge, and took it as his own case.” The motion sought the reassignment of Judge Farnell, the judge who presided in the first penalty phase and in the postconviction proceedings. The Chief Judge, David Demers, entered an order on February 6, 2003, denying the requested reassignment of Judge Farnell to this case and stating that Judge Farnell had since rotated out of Division C, that Judge Downey was currently assigned to Division C, and that the proceeding was a new sentencing proceeding. The order stated that both judges were fully qualified to handle this case and there was no legal requirement that Judge Farnell be reassigned to the case.

12. Rule 3.640 was amended in 2007 to remove subsection (b). See In re Amendments to the Florida Rules of Criminal Procedure (Three Year Cycle), 942 So. 2d 407 (Fla. 2006). This subsection was found to have been superseded by the subsequently enacted evidence code, chapter 90, Florida Statutes, which addresses this subject. Id. at 408.

13. Two victims were involved and both had bags taped to their heads and were shot, although one victim survived. Salazar, 991 So. 2d at 369.

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Anthony Manchild McDonald, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-95.

District Court of Appeal of Florida, Third District.

Opinion filed February 18, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Lower Tribunal No. 03-31676.

Anthony Manchild McDonald, in proper person.

Bill McCollum, Attorney General, for appellee.

Before WELLS, SUAREZ, and SALTER, JJ.

PER CURIAM.

We affirm the trial court’s order denying McDonald’s postconviction motion filed under Florida Rule of Criminal Procedure 3.800(a). The trial court denied relief without attaching supporting documents conclusively refuting McDonald’s claim.

In this case, however, we have taken judicial notice of McDonald’s previous filings in this Court. See, e.g., Romeo v. State, 965 So. 2d 197, 198 (Fla. 3d DCA 2007) (taking judicial notice of a postconviction movant’s previous filings). In Case No. 3D07-2277, McDonald submitted the transcript from the applicable sentencing hearing. The transcript reveals McDonald stipulated to his prior burglary convictions. Additionally, evidence was introduced at the hearing that McDonald was released from prison some three years prior to his arrest for, and eventual conviction of, the burglary that led to his current sentence. These portions of transcript make it clear McDonald was eligible for the sentence enhancement he received as a violent career criminal pursuant to section 775.084(1)(d) of the Florida Statutes. The order on appeal is therefore affirmed.¹

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. Because the subject postconviction claim is conclusively refuted by the record, we deny as moot McDonald’s motion for an extension of time to file his initial brief.

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Courtesy of David Edelstein

JENNIFER MARSHALL, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4495.

District Court of Appeal of Florida, Fourth District.

February 18, 2009.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Andrew L. Siegel, Judge, L.T. Case No. 04-1098 CF10A.

Richard F. Della Fera of Entin & Della Fera, P.A., Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant Jennifer Marshall appeals the trial court’s summary denial of her Florida Rule of Criminal Procedure 3.850 motion for post conviction relief alleging ineffective assistance of trial counsel and involuntary plea. Specifically, she alleged in her motion that her trial counsel advised her that if she entered an open, no contest plea to two counts of exploitation of an elderly person, she would receive probation and would have to pay restitution. Instead, she was sentenced to concurrent terms of fifteen (15) years in prison. She alleged counsel did not explain the consequences of an open plea, and that she would not have entered her pleas if she had been properly advised and had not been promised probation and restitution only.

The trial court summarily denied this motion without a State response or record attachments to its order to refute these legally cognizable claims. State v. Leroux, 689 So. 2d 235 (Fla. 1996). Summary denial of this motion was improper, and requires reversal and remand for further proceedings. Dieudonne v. State, 958 So. 2d 516 (Fla. 4th DCA 2007).

The State has argued in a response filed in this court that review of the record from appellant’s direct appeal¹ will refute her claims. Even if this court still had possession of the record on appeal, it is the trial court’s burden to attach portions of the record refuting the motion or to conduct an evidentiary hearing if the motion is legally sufficient.

Reversed and Remanded for further proceedings.

Farmer, Taylor and May, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. Marshall appealed her sentences to this Court, which dismissed the appeal for lack of jurisdiction as the only claim of error was the denial of a downward departure sentence. Marshall v. State, 978 So. 2d 279 (Fla. 4th DCA 2008).

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GREGORY JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4184.

District Court of Appeal of Florida, Fourth District.

February 18, 2009.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Stanton S. Kaplan, Judge, L.T. Case Nos. 05-16213 CF10A, 05-17999 CF10A, 05-18173 CF10A & 06-5366 CF10B.

Gregory Johnson, Blountstown, pro se.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant Gregory Johnson appeals the trial court order denying his motion for post-conviction relief filed in four criminal cases. We affirm without discussion the trial court’s summary denial of his second ground for relief, alleging ineffective assistance of trial counsel for failure to move to suppress evidence in his cases. The transcript of his plea colloquy, attached to the trial court’s order, adequately refutes that claim. However, we reverse and remand appellant’s first ground, in which he alleged ineffective assistance of his trial counsel for failure to advise him of the facts of his four cases and that he could have moved to suppress the evidence in each of these cases. Appellant’s claim on this ground was legally insufficient under Hill v. Lockhart, 474 U.S. 52 (1985); Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004), because he did not allege but for counsel’s failure to advise him on this basis, he would not have pleaded nolo contendere and would have insisted on going to trial in the four cases.

Since ground one was insufficiently pleaded, the trial court should have given appellant at least one opportunity to file an amended motion to cure its defects. See Spera v. State, 971 So. 2d 754 (Fla. 2007); Nelson v. State, 977 So. 2d 710 (Fla. 1st DCA 2008).

Therefore, we reverse the summary denial of ground one and remand for the post conviction court to deny relief with leave to amend to file a facially-sufficient motion on that ground within a reasonable time. We affirm the summary denial of ground two.

Affirmed in part, reversed in part and remanded.

Warner, Polen and Hazouri, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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KEVIN F. WHITTY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4169.

District Court of Appeal of Florida, Second District.

Opinion filed February 18, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County, Edward J. Volz, Jr., Judge.

VILLANTI, Judge.

We affirm the order of the trial court dismissing Kevin Whitty’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 as untimely. We write only to state that if the sworn motion contains false statements of fact, Whitty may be prosecuted for perjury. See State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993).

Whitty’s motion contained the following signed oath: “UNDER PENALTIES OF PERJURY, I declare that I have read the foregoing motion for Post-Conviction Relief/Motion to Enforce Plea Agreement and that the facts stated in it are true and correct.” This is a sufficient oath upon which to base a perjury prosecution. Id. Whitty’s motion and the attachments thereto indicate that Whitty was released from prison on conditional release on March 10, 2005. In the motion, Whitty averred under oath that he would not have pleaded to the charged offenses had he been aware that he would be placed on conditional release and therefore subject to supervision upon his early release from prison. Whitty further averred that he was unaware that he would be released subject to the provisions of conditional release until the actual day of his release.

Section 947.1405(5), Florida Statutes (2003, 2004), requires that, within 180 days prior to an eligible inmate’s tentative release date or provisional release date, the inmate be interviewed in person by a representative of the Department of Corrections for the purpose of determining the inmate’s release plan, including his planned residence and employment. The Department’s representative is then required to forward the inmate’s release plan to the Florida Parole Commission and to recommend to the Commission the terms and conditions of conditional release. Therefore, had the Department followed the strictures of section 947.1405(5), at a minimum, Whitty would have been aware that he was going to be released subject to the provisions of conditional release at a time considerably prior to the date of his actual release from prison. If this were the case, Whitty’s sworn allegation that he was unaware he was going to be released on conditional release until his actual release date of March 10, 2005, would constitute a false statement of fact under oath.

We take this opportunity to remind pro se litigants of the significance of the oaths they sign:

Postconviction movants should also remain aware that penalties for direct contempt of court or perjury may be imposed when movants are untruthful in postconviction proceedings. See Roberts v. State, 515 So. 2d 434 (Fla. 5th DCA 1987) (approving a finding of direct contempt of court where the movant’s testimony was diametrically opposed to prior sworn testimony); see also Emanuel v. State, 601 So. 2d 1273 (Fla. 4th DCA 1992) (explaining that a prosecution for perjury is the preferred alternative, but delineating under what circumstances direct contempt of court is appropriate).

Unless a credible threat of sanctions exists, postconviction movants have little incentive against saying whatever they choose in postconviction proceedings, regardless of truth. An organized system of justice cannot operate without respect for truth. Those seeking justice must respect truth. As Justice Anstead has observed, “[p]erjury poisons the well from which justice flows.” Emanuel, 601 So. 2d at 1276.

Oquendo v. State, 33 Fla. L. Weekly D2721, D2723 (Fla. 4th DCA Nov. 26, 2008).

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

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

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RICARDO FERRER, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3027.

District Court of Appeal of Florida, Fourth District.

February 18, 2009.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 04-14428 CF10A.

Ricardo Ferrer, Arcadia, pro se.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

We affirm the trial court’s order summarily denying appellant’s motion for postconviction relief on all grounds except one. As to that claim, he maintains that he was deprived of his right to testify because of his attorney’s misadvice that the state could impeach him with the facts and nature of his prior convictions. See Hope v. State, 960 So. 2d 912 (Fla. 4th DCA 2007); Tyler v. State, 793 So. 2d 137, 141 (Fla. 2d DCA 2001). We conclude that appellant’s motion is legally sufficient to state a claim on this ground on both the deficient performance and prejudice prongs of the Strickland test. See Oisorio v. State, 676 So. 2d 1363 (Fla. 1996). We reverse for the trial court to conduct an evidentiary hearing on the issue or attach portions of the record conclusively refuting this claim.

We affirm as to the other grounds raised. We specifically affirm the claim that counsel was deficient in failing to move to suppress appellant’s recorded conversation at the police station with his codefendant. The conversations were not the result of law enforcement deliberately fostering an expectation of privacy. See Larzelere v. State, 676 So. 2d 394, 405 (Fla. 1996); Allen v. State, 636 So. 2d 494, 496-97 (Fla. 1994); Williams v. State, 982 So. 2d 1190, 1194 (Fla. 4th DCA 2008). Their admission also did not violate appellant’s right of confrontation, as they were not testimonial statements under Crawford v. Washington, 541 U.S. 36 (2004).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Gross, C.J., and Damoorgian, J., concur.

Not final until disposition of timely filed motion for rehearing.

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