Florida Criminal Law Opinions

YANCY B. CLAYTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-2020.

District Court of Appeal of Florida, Second District.

Opinion filed June 26, 2009.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Highlands County, Peter F. Estrada, Judge.

KHOUZAM, Judge.

Yancy B. Clayton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised two grounds for relief. We reverse.

In ground one of his motion, Clayton alleged that his counsel was ineffective for failing to file a motion to disqualify the judge who presided over his cases. Clayton alleged that the judge was a former assistant state attorney who had previously prosecuted him in other cases. Clayton claimed that he feared he would not receive a fair trial and that he asked his counsel to file a motion to disqualify the judge. Clayton contended that but for counsel’s failure to file the motion, he would not have entered a plea and would have proceeded to trial.

The postconviction court denied the claim on the theory that a motion to disqualify based on Clayton’s allegations was legally insufficient and, consequently, counsel could not have been ineffective for failing to file a futile motion. However, the legal sufficiency of a motion to disqualify depends on “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Thompson v. State, 990 So. 2d 482, 490 (Fla. 2008) (quoting Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983)). The fact that the presiding judge prosecuted a defendant in a previous case is sufficient to support the defendant’s claim of a well-founded fear that he would not receive a fair trial before the judge. Goines v. State, 708 So. 2d 656, 659 (Fla. 4th DCA 1998).

Therefore, we reverse the summary denial of this claim. On remand, if the court records contain documents establishing that the cases were handled by another prosecutor, the postconviction court should attach those documents to refute the allegations.See Penoyer v. State, 945 So. 2d 586, 588 (Fla. 2d DCA 2006). If the records do not refute Clayton’s claim, the court must conduct an evidentiary hearing.

In ground two, Clayton alleged that his counsel was ineffective for failing to disclose a conflict of interest because his counsel and the judge were former co-workers. The postconviction court found that Clayton failed to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), and denied the claim. However, the court applied the incorrect legal standard to Clayton’s conflict of interest claim.

“Claims of ineffective assistance based on conflict of interest have generally been analyzed under an exception to the standard two-pronged Strickland test.” Alessi v. State, 969 So. 2d 430, 435 (Fla. 5th DCA 2007). To establish an ineffectiveness claim based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that the conflict adversely affected counsel’s performance. Hunter v. State, 817 So. 2d 786, 791 (Fla. 2002). Once a defendant satisfies both of these elements, prejudice is presumed. Id. at 792.

Accordingly, we reverse and remand for the postconviction court to apply the correct legal standard to this claim. If the court again summarily denies the claim, it must attach record excerpts conclusively refuting the claim. If the record does not refute the claim, the court must conduct an evidentiary hearing.

Reversed and remanded.

CRENSHAW, J., Concurs.

ALTENBERND, Concurs with opinion.

ALTENBERND, Judge, Concurring.

I concur with the panel’s disposition as to ground one of Mr. Clayton’s motion. As to ground two, I concur with some reluctance. I doubt that the claim alleging a conflict of interest is facially sufficient as alleged, but I am inclined to believe that he should have the option to amend his motion to allege the claim with greater specificity.

Our record contains little information about the proceedings below because the trial court attached nothing to its order. Mr. Clayton apparently was convicted of multiple counts of grand theft, felony petit theft, fraudulent use of a credit card, and burglary on April 10, 2006. Because a conflict prevented the public defender from representing Mr. Clayton, he was represented at that time by Derek Christian. With Mr. Christian’s assistance, Mr. Clayton entered into a negotiated plea by which he received a thirty-year sentence of imprisonment that was fully suspended in exchange for eighteen years’ probation. Mr. Clayton apparently had a significant prior record and nothing suggests that this negotiated plea was anything but favorable for Mr. Clayton.

Mr. Clayton was arrested for a violation of his probation within two months. While represented by a new attorney, in August 2007, the trial court found him in violation of probation and sentenced him to the thirty-year sentence. He did not appeal the judgments, the orders on violation of probation, or the sentences.

Mr. Clayton filed this postconviction motion in February 2008. As to the allegation of a conflict involving his attorney, Derek Christian, he merely alleges that his second attorney informed him that Judge Estrada and Mr. Christian “were previously co-workers in the prosecutor’s office.” As the majority correctly observes, prejudice—as the second prong of Strickland—is presumed in cases involving an attorney’s conflict of interest. However, to receive the benefit of this presumption, the defendant must demonstrate “that counsel `actively represented conflicting interests’ and that `an actual conflict of interest adversely affected his lawyer’s performance.’ “ Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). In effect, this appears to be a substitution of a different two-prong test for claims of conflict. To state a facially sufficient claim involving a conflict of interest, I believe a defendant must plead allegations that, if proven, would satisfy both prongs of Cuyler. Compare Ey v. State, 982 So. 2d 618, 623 (Fla. 2008) (“To raise a facially sufficient claim of ineffective assistance of counsel, a defendant must allege specific facts meeting both of Strickland‘s prongs.”).

In this case, Mr. Clayton has merely alleged that his attorney and the trial judge once worked in the state attorney’s office. He has alleged no theory by which this relationship caused his attorney to represent conflicting interests or that it created an actual conflict that affected his lawyer’s performance. Frankly, having a defense attorney who has prior knowledge and understanding of the presiding judge is often helpful to a defendant. I think I can take judicial notice that many lawyers who start out in the state attorney’s office end up either on the bench or in private practice as defense attorneys. I am unwilling to accept that such a co-worker relationship creates any presumption of prejudice without additional and exceptional factual allegations.

Given that Mr. Clayton’s first claim must be remanded to the trial court, I have no objection to remanding the second claim as well. However, in my opinion, Mr. Clayton will need to allege more facts establishing a conflict before this claim is facially sufficient. If he can allege those facts, he will bear the burden of establishing both of the components of Cuyler at any evidentiary hearing.

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

Courtesy of David Edelstein

JEFFREY JAY MCDONALD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1906

District Court of Appeal of Florida, Fifth District.

Opinion filed June 26, 2009.

Appeal from the Circuit Court for Volusia County, Frank Marriott, Judge.

James S. Purdy, Public Defender, and Rebecca M. Becker and Michael S. Becker, Assistant Public Defenders, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, Jr., R., Senior Judge,

Jeffrey McDonald entered an open plea of no contest to lewd or lascivious molestation, a first-degree felony under section 800.04(5)(a)-(b), Florida Statutes (1999). In this direct appeal he challenges the trial court’s ruling on his motion to correct a sentencing error, arguing the offense should have been classified as a second-degree felony instead of a first-degree felony. We agree with the trial court’s determination that the offense to which he pled was a first-degree felony but remand for a minor correction.

McDonald contends that since the information alleged he molested his daughter “on or between 1998 through 2007,” he must be sentenced under the most lenient version of section 800.04 in effect during that period. The most lenient version defined the crime of “lewd, lascivious, or indecent assault” as a second-degree felony. § 800.04(1), Fla. Stat. (1997). Substantial revisions that became effective October 1, 1999, redefined the crime and reclassified “lewd or lascivious molestation” as a first-degree felony. § 800.04(5)(a)-(b), Fla. Stat. (1999). The statute was again amended effective September 1, 2005, to reclassify the offense as a first-degree felony punishable by life imprisonment. § 800.04(5)(a)-(b), Fla. Stat. (2005).

We reject McDonald’s argument because there was ample evidence that he molested the child several times between October 1, 1999, and August 31, 2005, when the version of section 800.04 classifying the offense as a first-degree felony was in effect. This evidence was embodied in the charging affidavit and expressly accepted by McDonald in entering his plea. Because the parties stipulated below that no offense occurred on or after September 1, 2005, the effective date of the amendment reclassifying the offense as a first-degree felony punishable by life, it is clear where McDonald falls in the statutory revisions. The fact that he may have also molested the child on earlier dates when the offense was classified as a second-degree felony does not entitle him to be sentenced under that version of the statute. Indeed, McDonald is fortunate that he was charged with only one count of molestation.Whittingham v. State, 974 So. 2d 616, 618-19 (Fla. 4th DCA 2008).

The evidence establishing when the molestations were perpetrated distinguishes the present case from the Cairl case relied upon by McDonald. The court in Cairl found that neither the evidence nor the verdict pinpointed the date of the crime and, therefore, held that the defendant was entitled to be sentenced under the most lenient version of the guidelines in effect during the time-frame alleged in the information. Cairl v. State, 833 So. 2d 312, 313-14 (Fla. 2d DCA 2003).

Our decision Bradley v. State, 971 So. 2d 957 (Fla. 5th DCA 2007), approved by, 3 So. 3d 1168 (Fla. 2009), is more analogous to the present case than Cairl.

Bradley pleaded no contest to robbery and was sentenced to a mandatory minimum term for discharging a firearm during the crime. Bradley filed a postconviction motion arguing the mandatory minimum sentence was illegal because the information did not allege discharge of the firearm. The trial court denied relief, and we affirmed. In doing so, we recognized that while discharge of a firearm was an essential element that should have been alleged in the information, decisional law in Florida has allowed a plea to supply elements missing from a charging document. We emphasized that in entering his plea, Bradley expressly agreed to the mandatory minimum term and stipulated to the facts alleged in the complaint affidavit, which stated he had discharged a firearm during the robbery. We therefore concluded Bradley’s explicit plea to discharge of a firearm “constituted his consent to the implicit amendment of the information to include this element, particularly since it is clear from the record that Mr. Bradley was not misled or prejudiced by the unwritten amendment to the information.” Id. at 960.

The principles enunciated in Bradley are persuasive in the present case, even though McDonald entered an open plea rather than a negotiated plea. Like the defendant in Bradley, McDonald stipulated to the facts in the charging affidavit and was fully aware of the nature and consequences of his plea. In fact, McDonald believed he was pleading to a first-degree felony punishable by life. Thus, he was not prejudiced or misled in any way that would entitle him to be resentenced to a second-degree felony. If, as the court held in Bradley, a plea can supply an essential element missing from the charging document, it follows that McDonald’s plea can supply the date of the offense with greater particularity, since time is not ordinarily an essential element of the crime. See, e.g., Tingley v. State, 549 So. 2d 649, 651 (Fla. 1989).

In sum, the trial court correctly determined the offense should be classified as a first-degree felony. In its oral ruling on McDonald’s postconviction motion, the trial court imposed the same fifteen-year prison term originally decreed but reduced probation from life to fifteen years and the degree of the offense from a first-degree felony “punishable by life” to a first-degree felony. We approve this ruling.

Because the corrected judgment and sentence did not reflect the change in the degree of the offense, we remand with directions to delete the “punishable by life” designation, which is apparently a mere scrivener’s error. We affirm in all other respects.

AFFIRMED in Part and REMANDED for sentence correction.

LAWSON, J., and WOHN, R., Associate Judge, concur.

Courtesy of David Edelstein

JUAN CARLOS CHAVEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.
JUAN CARLOS CHAVEZ, Petitioner,
v.
WALTER A. MCNEIL, etc., Respondent.

No. SC07-952.

No. SC08-970.

Supreme Court of Florida.

June 25, 2009.

An Appeal from the Circuit Court in and for Dade County, Marc Schumacher, Judge — Case No. 95-37867, And an Original Proceedings — Habeas Corpus.

Andrea M. Norgard and Robert A. Norgard of Norgard and Norgard, Bartow, Florida, for Appellant/Petitioner.

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

PER CURIAM.

Juan Carlos Chavez appeals the denial of his motion to vacate a judgment of conviction of first-degree murder and sentence of death under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. Pursuant to our mandatory jurisdiction to review final orders arising from capital proceedings, we affirm the circuit court’s order and deny the habeas petition. See art. V, § 3(b)(1), (9), Fla. Const.

PROCEEDINGS TO DATE

In 1998, Chavez was convicted of the first-degree murder, kidnapping, and sexual battery of Samuel James (“Jimmy”) Ryce. Chavez confessed that on the afternoon of September 11, 1995, he abducted Jimmy at gunpoint from a school bus stop in the Redlands, a rural area of South Miami-Dade County, and proceeded to sexually assault Jimmy before fatally shooting the nine-year-old boy. See Chavez v. State, 832 So. 2d 730, 738 (Fla. 2002).¹ He was arrested in December of 1995, after his employer found Jimmy’s book bag and textbooks inside a trailer occupied by Chavez. See id. at 737.

A team from the Miami-Dade Public Defender’s Office represented Chavez during his capital trial, which was held in Orange County from August through September 1998. The jury entered a guilty verdict on each of the charged offenses. See id. at 747. Following the penalty phase of the trial, the jury recommended death by a unanimous vote. See id. In accord with this recommendation, the trial court imposed a death sentence for the murder and consecutive terms of life imprisonment with three-year mandatory minimum sentences for the kidnapping and sexual battery convictions. See id.² Chavez sought review in this Court, which affirmed his convictions and sentences. See id.³

In 2004, Chavez filed a motion to vacate his convictions and sentences pursuant to Florida Rule of Criminal Procedure 3.851. The circuit court issued an order that summarily denied all but eleven claims, for which it granted an evidentiary hearing. However, during the evidentiary hearing, counsel abandoned or waived several claims.⁴ Accordingly, the postconviction court considered evidence with regard to the following claims: (1) Chavez’s confession and the evidence presented during his trial were inconsistent; (2) Chavez was not involved in the defense; (3) counsel advised Chavez to testify falsely concerning his watch; (4) counsel failed to locate a witness who owned and lived in the place where the murder occurred and who would have testified that he was the owner of the items recovered from that location; (5) counsel failed to consult with Chavez with regard to preparation for the penalty phase; (6) counsel failed to provide the best defense possible because of interference from the Miami-Dade Public Defender based on concern about the political consequences of the defense; (7) counsel failed to investigate and call witnesses to present evidence that Chavez involuntarily waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); and (9) counsel failed to present a witness who could have provided testimony with regard to mental health mitigation. After a full hearing, the postconviction court entered an order that denied the remaining claims.

In his appeal of this denial, Chavez asserts that (1) the postconviction court erred in ruling that a lawyer who had studied the Cuban legal system was not qualified to offer opinion testimony concerning the Cuban and American criminal justice systems; (2) the postconviction court erred in determining that counsel was effective despite the failure to present evidence of mental health mitigation through the testimony of a psychologist; and (3) there was a per se denial of effective assistance of trial counsel because discord amongst the defense team rendered the adversarial process inherently unreliable. In his habeas petition, Chavez argues that (1) ineffective appellate representation occurred during the direct appeal for the failure to challenge the constitutionality of Florida’s lethal-injection protocol; (2) counsel failed to assert that Florida’s standard penalty-phase jury instructions unconstitutionally shift the burden of proof to the defendant; (3) counsel failed to challenge the penalty-phase jury instructions with regard to minimizing and denigrating the role of the jury; and (4) cumulative errors deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.

ANALYSIS OF THE RULE 3.851 APPEAL

Alienage Claim

During the evidentiary hearing, Chavez sought to introduce the testimony of Michael Amezaga, a Florida attorney with an interest in the Cuban criminal justice system. The asserted purpose of this expert testimony was to demonstrate that Chavez involuntarily waived his Miranda rights because he misunderstood the nature of the rights afforded under the American legal system in contrast to those of the Cuban legal system. The postconviction court did not qualify the witness as an expert on the basis that he lacked the requisite level of knowledge concerning the comparative study of the Cuban and American criminal justice systems. Chavez was thus unable to present this evidence in support of his claim of ineffective representation for the failure to present testimony during the suppression hearing that Chavez’s alienage affected his ability to voluntarily waive his Miranda rights. Here, Chavez asserts that the postconviction court erred in this determination because the witness held the proper knowledge and expertise to testify on the subject of alienage.

It is within the court’s discretion to determine the qualifications of a witness to express an expert opinion, and this determination will not be reversed absent a clear showing of error. See Brooks v. State, 762 So. 2d 879, 892 (Fla. 2000). Before an expert may render an opinion, the witness must satisfy a four-prong test of admissibility. Section 90.702, Florida Statutes (2007), provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

This section requires the court to make two preliminary determinations: (1) whether the subject matter will assist the trier of fact in understanding the evidence or in determining a disputed fact, and (2) whether the witness is adequately qualified to express an opinion on the matter. See Huck v. State, 881 So. 2d 1137, 1149 (Fla. 5th DCA 2004). Once these threshold determinations are affirmatively satisfied, two more requirements must be satisfied for the admission of expert opinion testimony. The expert opinion must apply to evidence presented during the hearing, and the danger of unfair prejudice must not substantially outweigh the probative value of the opinion. See Glendening v. State, 536 So. 2d 212, 220 (Fla. 1988).

The present case involves only the second determination—that is, whether the witness was qualified to express an opinion on the subject matter to be addressed. A witness may be qualified as an expert through specialized knowledge, training, or education, which is not limited to academic, scientific, or technical knowledge. An expert witness may acquire this specialized knowledge through an occupation or business or frequent interaction with the subject matter. See Weese v. Pinellas County, 668 So. 2d 221, 223 (Fla. 2d DCA 1996) (citing Harvey v. State, 176 So. 439, 440 (Fla. 1937) (witnesses were qualified as expert cattlemen and butchers based upon many years of experience in such business and occupation and knowledge acquired thereby)). However, general knowledge is insufficient. The witness must possess specialized knowledge concerning the discrete subject related to the expert opinion to be presented. See Charles W. Ehrhardt, Florida Evidence § 702.1, at 686-87 (2008 ed.).

Mr. Amezaga’s qualifications and proffered testimony consisted of some research, two visits to Cuba, which involved research and discussions with Cuban lawyers, and one discussion with Chavez. Chavez suggests that the qualifications of his expert were similar to those of the witness found sufficient Brooks v. State, 762 So. 2d 879 (Fla. 2000). In addressing the matter as one of first impression, we held in Brooks that the trial court did not err in ruling that an experienced dealer of crack cocaine was qualified to testify as an expert with regard to the identity and approximate weight of a rocky substance contained in a sandwich bag. See id. at 891-94. In reaching this conclusion, we reviewed decisions from Florida and other jurisdictions that qualified police officers or experienced drug dealers and users as narcotics-identification experts. See, e.g., United States v. Dominguez, 992 F.2d 678, 681 (7th Cir. 1993); A.A. v. State, 461 So. 2d 165, 165-66 & n.1 (Fla. 3d DCA 1984). Here, Chavez has not submitted decisions concerning whether a witness could be qualified as an expert with regard to legal systems or how that expertise, even if it existed, might translate into expertise on the subject here.

Moreover, the cases considered in Brooks identified a consistent factor in witness qualification, which was the witness’s familiarity and experience with the narcotic acquired through frequent and prolonged exposure to the drug. For instance, the witness in Brooks was an experienced crack-cocaine dealer because he had sold the drug almost every day for approximately two years. The witness had personally observed the bag containing the rocky substance that he was identifying, and he was afforded an opportunity to examine and inspect the substance. The witness was qualified as an expert because he had acquired experience through the longevity and frequency of his exposure to the pertinent and non-mainstream subject matter. Applying a similar analysis here, the court did not err in refusing to qualify Mr. Amezaga as an expert witness based on his proffered qualifications. Mr. Amezaga’s qualification as a lawyer did not qualify him to testify as an expert on suppression issues in American criminal law, much less on the Cuban criminal justice system or how the difference between the two may have affected Chavez.

Although an expert may also be qualified through study or practical experience, rather than education or formal training, there must be sufficient development of specialized knowledge in the subject matter. See Allen v. State, 365 So. 2d 456, 458 (Fla. 1st DCA 1978) (holding that the trial court abused its discretion in determining that a witness was not qualified to testify as an expert because he did not hold a doctoral degree). The expert must have adequate experience with the subject matter. See Robinson v. State, 818 So. 2d 588, 589 (Fla. 5th DCA 2002). The qualifications proffered by Chavez do not demonstrate that Mr. Amezaga had sufficiently developed specialized knowledge of, or that he had adequate experience with, the comparative study of the Cuban and American legal systems and how the significant differences would affect a defendant’s waiver of rights under Miranda.

Jordan v. State, 694 So. 2d 708 (Fla. 1997), we held that the trial court abused its discretion in allowing a witness to testify with regard to matters beyond her area of expertise. See id. at 715 (citing Hall v. State, 568 So. 2d 882, 884 (Fla. 1990)). The witness testified with regard to offender-profile evidence, which was an area she had not definitively focused on during her education in psychology and counseling. We stated that her educational degrees did not qualify her to testify about complicated profile evidence drawn from scientific literature. Furthermore, her experiences did not qualify her as an expert in offender-profile evidence because, at the time of her testimony, she was not working with, compiling, or studying profile evidence, and she based her opinion solely on research gathered in the library and from the literature that she had reviewed. We stated:

There is no absolute prohibition against qualifying an expert based upon “his or her study of authoritative sources without any practical experience in the subject matter.” Ehrhardt, § 702.1, at 512 [(1995 ed.)] The problem in this case is that [the witness] did not demonstrate, in the record, a sufficient study of the scientific literature. Simply reading large amounts of scientific literature, all of which falls well outside a person’s area of educational expertise, cannot serve to create an expert out of a non-expert.

Jordan, 694 So. 2d at 716. Similarly, the foundation of Mr. Amezaga’s understanding of the Cuban legal system originated from reading that country’s statutes and constitution. There is no abuse of discretion in the court’s determination that the reading of large amounts of legal literature beyond Mr. Amezaga’s expertise, which was American criminal law, did not qualify him as an expert in the Cuban legal system. Based on the proffered testimony and qualifications presented, we conclude that the court did not abuse its discretion in determining that the witness lacked sufficient knowledge, training, or education to render an expert opinion with regard to the differences between Cuban and American law and the alleged impact of Chavez’s alienage on the voluntariness of his confession.

Even if Mr. Amezaga was qualified to testify, the proffered testimony does not demonstrate a reasonable probability of altering the outcome of the suppression hearing. During his direct appeal, Chavez asserted that he could not have understood the Miranda warnings and his constitutional rights because his native country is ruled by a totalitarian dictatorship. We determined that alienage alone was not a basis to undermine an understanding of his rights. See Chavez, 832 So. 2d at 751 (“The record clearly reflects that Chavez’s intelligence, education, and alienage did not adversely affect his understanding of his rights during the police interrogation progress. Finding no support in the record, the argument that Chavez’s background caused him to misapprehend his rights in the American system fails.”). From the proffered testimony, which was submitted after the evidentiary hearing, Mr. Amezaga allegedly would have testified that the differences in the American and Cuban criminal justice systems may have affected Mr. Chavez’s understanding of the Miranda rights. Since Mr. Chavez did not have access to a court appointed attorney during his contacts with the Cuban Criminal Justice System, he may have very well expected to not have a court appointed lawyer at the time that he was questioned. Also, since Mr. Chavez did not have the right to remain silent when he was interrogated in Cuba, he likewise could have expected to not have this important right when he was interrogated by police.

(Emphasis supplied.) This proffer does not present admissible evidence that alienage affected the voluntariness of the Miranda waiver involved here. We have already determined on direct appeal that Chavez’s intelligence, education, and alienage did not adversely affect his understanding of his rights during the police interrogation process. Under Strickland v. Washington, 466 U.S. 668 (1984), to prevail on an ineffective assistance claim, Chavez must demonstrate that the proffered evidence had a reasonable probability of changing the outcome, which is a probability sufficient to undermine our confidence in the verdict. See 466 U.S. at 694. The proffered testimony does not satisfy that burden. Thus, even if Mr. Amezaga qualified as an expert witness, Chavez would not be able to satisfy the prejudice prong ofStrickland based on this proffered testimony. Chavez entered a knowing, intelligent, and voluntary waiver. We affirm the postconviction court’s denial of this claim.

Mental Health Mitigation

Chavez next claims that he received ineffective assistance of counsel during the penalty phase because counsel failed to investigate and present evidence of mental health mitigation. Specifically, Chavez asserts ineffective assistance based on the failure to present the testimony of Dr. John Quintana, who was initially hired to investigate potential mitigation evidence but was not presented as a witness because trial counsel feared that his testimony would insult the jury and be detrimental on cross-examination.

In applying Strickland v. Washington, 466 U.S. 668 (1984), we have held that for claims of ineffective assistance to succeed, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted). There is a strong presumption that trial counsel’s performance was effective, and judicial scrutiny of counsel’s performance must be highly deferential. See Strickland, 466 U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). In conducting this review, we afford deference to the postconviction court’s findings of fact if they are supported by competent, substantial evidence, while we review the legal claims de novo. See Connor v. State, 979 So. 2d 852, 858 (Fla. 2007).

With regard to presentation of mitigation evidence, defense counsel must certainly consider all phases of a capital proceeding and strive to avoid a counterproductive course. See Florida v. Nixon, 543 U.S. 175, 191-92 (2004). Straight v. Wainwright, 422 So. 2d 827 (Fla. 1982), the defendant challenged his trial counsel’s failure to further investigate mitigating evidence. There, trial counsel testified that he did not present certain mitigation because, in his view, that evidence would have been fundamentally inconsistent with the entire defense. See id. This Court concluded that trial counsel’s performance was not ineffective where trial counsel reasonably viewed the mitigating evidence to be fundamentally damaging to the integrity of the defense. See id.

Here, limitations were imposed on counsel due to Chavez’s refusal to provide certain facts with regard to his background. Additionally, conflict with guilt-phase strategy presented obstacles. During the evidentiary hearing, counsel testified that he balanced the benefit of presenting Dr. Quintana’s testimony against the risk created by the defense theory of innocence. After conducting this balancing analysis, trial counsel did not present Dr. Quintana as a witness because (1) the psychological testing revealed that although Chavez did not completely reach the criteria for socio- or psychopathy, his score was heightened in that area; (2) Dr. Quintana asserted that it was unlikely Chavez acted alone, which could possibly reveal that Chavez had a homosexual lover and potential accomplice; (3) Dr. Quintana’s finding that Chavez was not a pedophile was in conflict with the jury’s determination that Chavez was guilty of sexual battery on a nine-year-old boy; and (4) Dr. Quintana did not conduct a follow-up evaluation of Chavez prior to trial.

In Dr. Quintana’s initial evaluation of Chavez prior to trial, Chavez scored a 67 on the psychopathic deviant scale, which was dangerously close to the score (i.e., 70) which would classify Chavez as a psychopath or as having a psychopathic personality. During the evidentiary hearing, the State demonstrated that Chavez’s score might have increased if Chavez had answered one or more questions differently. Dr. Quintana also agreed that under a different testing rubric, Chavez might have received an elevated score to place him in a category of danger. With regard to the pedophilia results, counsel testified that a cross-examination inquiry during the penalty-phase proceedings would have likely addressed the inconsistency of the results in light of the jury’s determination that Chavez had committed sexual battery on a minor. Trial counsel stated: “Obviously if [Chavez] committed the crime then . . . you would have to concede that he was a pedophile, which means that it would not validate [Dr. Quintana's] psychological opinion.” This potential attack occurred during the postconviction evidentiary hearing, when Dr. Quintana was heavily impeached on cross-examination with the detailed confession of Chavez to the sexual battery. In response, Dr. Quintana admitted that either Chavez lied to the police concerning his pedophilia or he had been untruthful on the psychological test.

Under these circumstances, counsel cannot be deemed ineffective for not presenting testimony that would have alienated the penalty-phase jury. This was a reasonable strategic decision based upon a belief that Dr. Quintana’s testimony would have inflicted more harm from impeachment than it would have assisted the penalty-phase presentation. See Asay v. State, 769 So. 2d 974, 985 (Fla. 2000) (“[I]n those cases where counsel did conduct a reasonable investigation of mental health mitigation prior to trial and then made a strategic decision not to present this information, we have affirmed the trial court’s findings that counsel’s performance was not deficient.”). Even if the psychological evaluation of Chavez here did not result in a score above 70, the jury could have reasonably correlated the close proximity of the score to the level of establishing psychopathy. See Freeman v. State, 858 So. 2d 319, 327 (Fla. 2003) (concluding that antisocial personality disorder is a trait that most jurors tend to view unfavorably).

In addition, counsel was not deficient for failing to present mitigation testimony based on the client’s self-imposed limitations. Lead counsel testified that it was necessary to mislead Chavez to convince him to even confer with Dr. Quintana because Chavez did not want to present penalty-phase mitigation. At first, lead counsel informed Chavez that Dr. Quintana was only going to evaluate him as it related to the guilt phase. When the time to conduct a follow-up interview arrived, lead counsel testified that Chavez refused to participate. Even if this evidence could have been presented during a Spencer⁵ hearing, Chavez refused to participate in the follow-up interview that Dr. Quintana requested. Thus, there was no avenue for counsel to acquire the necessary follow-up information to supplement Dr. Quintana’s report. Based on the record, the postconviction court correctly ruled that there was no deficient performance by counsel for the strategic decision that the testimony of Dr. Quintana not be presented.

Further, Chavez did not demonstrate that the failure to present Dr. Quintana as a mitigation witness created circumstances which undermine our confidence in the proceeding here, given the substantial aggravation and the relatively insignificant and possibly detrimental impact of that testimony. Cf. Hitchcock v. State, 991 So. 2d 337, 358 (Fla. 2008); Cherry v. State, 781 So. 2d 1040, 1048 (Fla. 2000). The trial court here found three aggravating factors, one of which was that the capital felony was especially heinous, atrocious, or cruel. Though the trial court found several mitigating factors, including that the defendant lacked a prior history of violence, the court concluded that “the quality of the aggravating factors in this case greatly outweigh the mitigating circumstances. The strength of the aggravating circumstances in this case are so overwhelming that they make the mitigating circumstances appear insignificant by comparison.” Chavez, 832 So. 2d at 766 n.44 (emphasis supplied). Furthermore, on direct appeal, this Court upheld Chavez’s sentence as proportional. See Chavez, 832 So. 2d at 766-67. Dr. Quintana’s testimony with regard to Chavez’s bookish, non-violent personality does not create a reasonable probability that, with his testimony, the outcome of the penalty phase would have been different. See Cherry, 781 So. 2d at 1048. Thus, we affirm the postconviction court’s denial of this claim because the strategic decision to not present Dr. Quintana as a mitigation witness was based on Chavez’s wishes and a reasonable evaluation of the potentially negative impact of the testimony. Furthermore, the testimony presented by Chavez does not undermine our confidence in the outcome of the penalty phase given the substantial aggravation and the relatively insignificant and possibly detrimental impact of this testimony.

Per Se Ineffective Assistance of Counsel

Chavez asserts that trial counsel’s actions were ineffective per se under the standard articulated United States v. Cronic, 466 U.S. 648 (1984). Chavez places the majority of the alleged errors on the decisions made by lead counsel and advances that the failure of co-counsel to challenge lead counsel’s decisions demonstrated a per se denial of the effective assistance of counsel. Specifically, Chavez frames the conflict between the attorneys concerning the proper mitigation strategy as a conflict of interest that affected the adequacy of his representation.

In denying the individual errors asserted below, the postconviction court noted that each claim failed to demonstrate deficient performance or prejudice and there was no evidence to establish a lack of harmony within the defense team. Further, it was determined that Chavez had not shown prejudice from the alleged interference of the Public Defender because lead counsel testified that all depositions were taken and all investigations were ultimately completed. The postconviction court found that Chavez had not presented any credible testimony that he was denied a full legal defense by his trial counsel or that the delay in investigation affected the outcome of the trial.

The Sixth Amendment of the United States Constitution guarantees a defendant the right to be represented by counsel during criminal proceedings. This mandate has been extended to mean adequate legal assistance by a reasonably competent attorney whose advice falls within the range of competence demanded of attorneys in criminal cases. See Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); McMann v. Richardson, 397 U.S. 759, 770 (1970). The right to competent counsel has been accorded because of the “effect it has on the ability of the accused to receive a fair trial.” Cronic, 466 U.S. at 658. As the United States Supreme Court explained:

Thus, the adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Anders v. California, 386 U.S. 738, 743 (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted—even if defense counsel may have made demonstrable errors—the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.

Cronic, 466 U.S. at 656-57 (footnotes omitted).

Generally, a defendant is entitled to relief if he or she demonstrates that counsel violated this guarantee through deficient performance and that he or she was prejudiced by the deficiency. See Strickland, 466 U.S. at 687. However, if the defendant can demonstrate that counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” the law will presume prejudice and deem counsel ineffective per se. Cronic, 466 U.S. at 659. For instance, constitutional error is found without a showing of prejudice when counsel was totally absent, was prevented from assisting the accused during a critical stage of the proceeding, or had a conflict of interest that affected the adequacy of representation. See id. at 659 n.25. Apart from these rare circumstances, the Cronic standard is a narrow exception to Strickland that is reserved for situations where counsel has entirely failed to function as the client’s advocate. See Florida v. Nixon, 543 U.S. 175, 189-90 (2004) (holding that this Court erred in determining that counsel’s concession of the client’s guilt qualified as such a failure).

Here, the totality of the defense team’s efforts does not demonstrate a complete failure to subject the State’s case to a meaningful adversarial testing such that the denial of Sixth Amendment rights rendered the adversary process itself presumptively unreliable. Chavez’s specific allegation that lead counsel’s strategy created an absolute failure of the adversarial system does not qualify under the Cronic exception to Strickland. Despite Chavez’s earnest attempt to portray lead counsel as a one-man threat to the adversarial system, none of the cases advanced by Chavez support this interpretation of the per se rule because each decision is either distinguishable or inapplicable to these circumstances. See Mickens v. Taylor, 535 U.S. 162, 166 (2002) (discussing conflict of interest where counsel had previously represented the victim in the defendant’s case); Crist v. Fla. Ass’n of Crim. Defense Lawyers, Inc., 978 So. 2d 134, 148 (Fla. 2008) (holding that the mere creation of the Office of Criminal Conflict and Civil Regional Counsel did not implicate the Sixth Amendment right to effective representation); Hatten v. State, 561 So. 2d 562, 565 (Fla. 1990) (holding that due to an excessive backlog of cases, the public defender failed to provide the defendant with effective representation); Gorham v. State, 521 So. 2d 1067 (Fla. 1988) (addressing summary denial of postconviction claim without any mention of per se ineffectiveness); Makemson v. Martin County, 491 So. 2d 1109, 1111 (Fla. 1986) (holding that an arbitrary fee cap unconstitutionally affected a defendant’s Sixth Amendment right by prohibiting the trial court from compensating counsel for the time necessary to provide the defendant with effective representation).

The Cronic standard is reserved for situations where the assistance of counsel has been denied entirely or withheld during a critical stage of the proceeding such that the “likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” Mickens, 535 U.S. at 166. This presumption functions to protect the right of an accused to a fair trial because the failure to receive such assistance jeopardizes the functioning of the adversarial system as a whole. Despite lead counsel’s assertion that the Miami-Dade Public Defender attempted to curtail the defense team’s investigation, the record contains sufficient evidence that any alleged internal constraints did not limit counsel’s ability to provide effective representation. Unlike the defendant in Cronic, Chavez was represented by a team of experienced capital defenders. This team aggressively tested the State’s case by conducting depositions, filing motions, conducting cross-examination, and presenting a defense. Thus, the representation was not ineffective for the alleged failure to subject the prosecution’s case to meaningful adversarial testing.

Furthermore, the alleged conflict between counsel concerning the proper strategy to pursue during the penalty phase does not fall under the conflict-of-interest cases deemed to demonstrate per se ineffective assistance of counsel. Prejudice may be presumed when counsel labors under an actual conflict of interest, despite the fact that the constraints on counsel in that context are entirely self-imposed. See Cuyler, 446 U.S. at 335. Conflict of interest generally occurs when an attorney actively represents conflicting interests, not when a defense team considers conflicting strategic approaches. See, e.g., Mickens, 535 U.S. at 166-172 (examining cases that found presumptive ineffective assistance when the defendant’s attorney actively represented conflicting interests, which were Cuyler, Holloway v. Arkansas, 435 U.S. 475 (1978), and Wood v. Georgia, 450 U.S. 261 (1981)). Thus, there is no merit to Chavez’s allegation that any alleged internal debate over strategy rose to the magnitude of per se ineffective assistance.

Chavez cannot rely on the per se rule from Cronic to avoid establishing prejudice for each of the claims denied by the postconviction court. This case is not one in which the surrounding circumstances make it unlikely that Chavez received effective assistance of counsel. Therefore, we deny this claim because counsel’s actions do not qualify as per se ineffectiveness under the narrow Cronic exception to Strickland.

ANALYSIS OF THE PETITION FOR WRIT OF HABEAS CORPUS

In his habeas petition, Chavez asserts that counsel rendered ineffective assistance during his direct appeal by failing to challenge the constitutionality of Florida’s lethal-injection protocol and Florida’s standard penalty-phase jury instructions. Chavez further alleges that appellate counsel’s repeated instances of deficient performance deprived him of the meaningful legal assistance guaranteed by the Sixth Amendment. We reject each of these claims.

The Constitutionality of Lethal Injection as Administered in Florida

During January of 2000, the Legislature adopted legislation which created lethal injection as a mode of execution in Florida. On direct appeal, Chavez’s amended initial brief was filed with this Court during April of 2000, approximately three months after these legislative changes. Chavez asserts that appellate counsel rendered ineffective assistance by failing to challenge Florida’s lethal-injection protocol as an unconstitutional mode of execution. Chavez also requests that we reexamine our holdings Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007), cert. denied, 128 S. Ct. 2485 (2008), and related decisions, in light of the United States Supreme Court’s decision Baze v. Rees, 128 S. Ct. 1520 (2008).

Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus. See Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000). The defendant has the burden of affirmatively establishing each prong of the Strickland standard. See Strickland, 466 U.S. at 687. In addition, capital defendants may not use claims of ineffective assistance of appellate counsel to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000). Moreover, appellate counsel cannot be ineffective for failing to raise a meritless issue. See Lawrence v. State, 831 So. 2d 121, 135 (Fla. 2002); see also Kokal v. Dugger, 718 So. 2d 138, 142 (Fla. 1998) (“Appellate counsel cannot be faulted for failing to raise a nonmeritorious claim.”).

At the time of the direct appeal in this case, there was simply no basis upon which to present a mode-of-execution challenge to Florida’s original lethal-injection protocol. The protocol was new, unimplemented, and widely regarded as a humane, civilized alternative to death by electrocution. Cf. Baze, 128 S. Ct. at 1525-26 (“States [that impose the death penalty have] altered [their] method[s] of execution over time to more humane means of carrying out the[se] sentence[s]. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.”).

To the extent that Chavez disputes the constitutionality of Florida’s current lethal-injection protocol, we have repeatedly rejected such Eighth Amendment challenges. See Tompkins v. State, 994 So. 2d 1072, 1081 (Fla. 2008), cert. denied, 129 S. Ct. 1305 (2009); Power v. State, 992 So. 2d 218, 220-21 (Fla. 2008);Sexton v. State, 997 So. 2d 1073, 1089 (Fla. 2008); Schwab v. State, 995 So. 2d 922, 933 (Fla. 2008), petition for cert. filed, No. 08-5020 (U.S. June 30, 2008); Woodel v. State, 985 So. 2d 524, 533-34 (Fla.), cert. denied, 129 S. Ct. 607 (2008); Lebron v. State, 982 So. 2d 649, 666 (Fla. 2008); Schwab v. State, 982 So. 2d 1158, 1159-60 (Fla. 2008); Lightbourne v. McCollum, 969 So. 2d 326, 350-53 (Fla. 2007). Finally, with regard to reliance upon Baze, this Court recently reaffirmed that “Florida’s current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court.” Ventura v. State, 2 So. 3d 194, 200 (Fla. 2009),petition for cert. filed, No. 08-10098 (U.S. Apr. 16, 2009). Thus, we deny this habeas claim.

Constitutionality of Penalty-Phase Jury Instructions

This Court has repeatedly rejected claims that the standard jury instructions impermissibly shift the burden to the defense to prove that death is not the appropriate sentence or that these instructions unconstitutionally denigrate the role of the jury in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985). See, e.g.,Taylor v. State, 937 So. 2d 590, 599 (Fla. 2006) (citing Elledge v. State, 911 So. 2d 57, 79 (Fla. 2005); Mansfield v. State, 911 So. 2d 1160, 1180 (Fla. 2005); Sweet v. Moore, 822 So. 2d 1269, 1274 (Fla. 2002)); Carroll v. State, 815 So. 2d 601, 622-23 (Fla. 2002); Rutherford v. Moore, 774 So. 2d 637, 644 & n. 8 (Fla. 2000); Downs v. State, 740 So. 2d 506, 517 n.5 (Fla. 1999); San Martin v. State, 705 So. 2d 1337, 1350 (Fla. 1997); Shellito v. State, 701 So. 2d 837, 842 (Fla. 1997); Sochor v. State, 619 So. 2d 285, 291 (Fla. 1993); Turner v. Dugger, 614 So. 2d 1075, 1079 (Fla. 1992); Combs v. State, 525 So. 2d 853, 855-58 (Fla. 1988). Appellate counsel cannot be ineffective for failing to raise a meritless issue. See, e.g., Lawrence, 831 So. 2d at 135. Accordingly, we deny these habeas claims.

Cumulative Error

Chavez asserts that appellate counsel’s repeated instances of deficient performance during his direct appeal deprived him of the meaningful legal assistance guaranteed by the Sixth Amendment. This Court has held that “where individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.” Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003); see also Dufour v. State, 905 So. 2d 42, 65 (Fla. 2005). Each of the claims raised by Chavez is without merit. Therefore, we deny Chavez’s habeas petition.

CONCLUSION

For the reasons stated above, we affirm the postconviction court’s order denying Chavez’s amended rule 3.851 motion, and we deny his petition for writ of habeas corpus.

It is so ordered.

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

PERRY, J., did not participate.

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

—————

Notes:

1. Further factual details can be found in this Court’s decision on direct appeal. See Chavez v. State, 832 So. 2d 730 (Fla. 2002).

2. In determining that the death sentence was appropriate, the trial court found the following aggravating circumstances: (1) that the murder was committed while Chavez was engaged in the commission of, or in an attempt to commit or escape after committing, the crime of kidnapping; (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (3) that the murder was especially heinous, atrocious, or cruel (“HAC”). See Chavez, 832 So. 2d at 767 n.44. In addition, the trial court found the following statutory mitigating circumstances: (1) his family background and good family relationship (some weight); (2) his political and economic background (little weight); (3) his good employment and ability to work and earn a living (some weight); and (4) his ability to establish and maintain positive relationships (some weight). See id. The trial court also found the following additional mitigating circumstances: (1) his good jail conduct and courtroom demeanor (very little weight); and (2) his lack of a prior history of violence (some weight). See id.

3. Chavez raised the following issues during his direct appeal: (1) the police lacked probable cause to arrest him; (2) his confession should have been suppressed as involuntary for several reasons, including his alienage; (3) photographing of jurors’ faces by the media denied him a fair trial; (4) the trial court erred in admitting a bloodstained mattress unrelated to the case; (5) the trial court erred in denying his motion for judgment of acquittal on the capital sexual battery charge because the State failed to prove the corpus delicti of the crime; (6) the trial court erred in admitting cumulative photographs of the victim’s body; (7) the trial court erred in giving certain jury instructions; (8) the State improperly diminished the role of the jury during voir dire and the penalty phase; (9) several related claims that challenged the constitutionality of Florida’s capital sentencing scheme; (10) the death sentence was disproportionate; and (11) Florida’s capital sentencing scheme violated Ring v. Arizona, 536 U.S. 584 (2002). See Chavez, 832 So. 2d at 747-48, 758, 760, 762-64, 766-67 n.45.

4. Counsel waived the following claims: (1) the prosecuting attorney was not a member of the State Attorney’s Office during the trial; (2) trial counsel failed to obtain the fingerprints of an individual for comparison to a print found on a firearm retrieved from Chavez’s trailer; and (3) counsel failed to introduce a foreign police report that established the period Chavez spent in a Cuban jail.

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

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Courtesy of David Edelstein

MARSHALL LEE GORE, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC05-1848.

Supreme Court of Florida.

June 25, 2009.

An Appeal from the Circuit Court in and for Dade County, David C. Miller, Judge — Case No. F90-11445.

Melissa Minsk Donoho and Steven J. Hammer, Fort Lauderdale, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Sandra S. Jaggard, Assistant Attorney General, Miami, Florida, for Appellee.

PER CURIAM.

Appellant, Marshall Lee Gore, was convicted of and sentenced to death for the first-degree murder and armed robbery of Robyn Novick in Dade County, Florida, after his initial conviction and death sentence were overturned. Gore v. State, 784 So. 2d 418, 423 (Fla. 2001).¹ In this appeal, we consider the denial of postconviction relief arising from Gore’s motion to vacate his judgment of conviction and sentence of death filed under Florida Rule of Criminal Procedure 3.851. For the reasons set forth in this opinion, we affirm the denial of postconviction relief.

I. FACTS AND PROCEDURAL HISTORY

The relevant facts regarding the murder of Robyn Novick are set forth in this Court’s opinion on Gore’s second direct appeal:

Police discovered Novick’s nude body in a rural area of Dade County on March 16, 1988. Her body was hidden by a blue tarpaulin-like material. Novick suffered stab wounds to the chest and had a belt tied around her neck. According to the medical examiner, Novick died as a result of the stab wounds and mechanical asphyxia. He estimated that Novick was killed between 9 p.m. and 1 a.m. on March 11 into March 12, 1988.

Novick was last seen alive on March 11, 1988, leaving the parking lot of the Redlands Tavern in her yellow Corvette. A witness testified that Novick left with a man, whom the witness identified as Gore.

In the early morning of March 12, Gore was seen driving Novick’s automobile. David Restrepo, a friend of Gore’s, testified that Gore arrived at his home driving a yellow Corvette with a license plate reading “Robyn.” . . .

. . . .

In its case-in-chief, the State also introduced Williams ^[n.2] rule evidence that Gore committed similar crimes against [Susan] Roark and [Tina] Coralis. The State presented evidence that Gore had murdered Roark shortly after her disappearance in January 30, 1988, by inflicting trauma to her neck and chest. In addition, evidence established that Gore stole Roark’s black Ford Mustang and other personal property, then left her nude body in a rural area used as a trash dump. Similarly, the State presented evidence that Gore attacked Coralis on March 14, 1988, two days after the murder of Novick. Coralis herself testified against Gore, stating that he beat her with a rock, raped, choked and stabbed her, and left her for dead on the side of the road near the scene where Novick’s body was found. Gore proceeded to steal Coralis’s red Toyota sports car and personal property.

FBI agents finally arrested Gore in Paducah, Kentucky on March 17, 1988. At the time of his arrest, Gore was in possession of Coralis’s red Toyota automobile and he had her bank and credit cards in the pocket of his jacket. Police officers subsequently questioned Gore regarding the Coralis and Roark crimes. According to the police, Gore denied knowing Roark or Coralis and denied all involvement in the crimes. Gore also denied knowing Novick. When police prepared to show Gore a photograph of Novick, Gore stated” just make sure it is not gory” because his “stomach could not take it.” At the time that Gore made such statements, the police had yet to inform Gore that Novick was dead. Detective David Simmons of the Miami Dade Police Department testified that when Gore looked at Novick’s picture, Gore’s eyes “swelled with tears.” Gore also stated that” if I did this, I deserve the death penalty.”

In his defense, Gore took the stand and testified on his own behalf. Gore claimed that prior to his interrogation by police in Miami concerning the Novick murder, reporters previously had told him upon his arrest that Novick was dead. He also claimed that during his interrogation, police had placed gruesome photographs of the murders all over the interview room. Moreover, Gore stated that police had given him a polygraph examination, which he claimed he had passed.

Gore testified that he was the owner of an escort service and claimed that Coralis, Novick, Roark, and Restrepo all worked for the escort business. Gore maintained that Novick worked for him as a nude dancer and he admitted that he was with Novick at the Redlands Tavern on the evening of March 11, 1988. Gore, however, denied killing her. . . .

. . . .

On cross-examination, Gore admitted that he previously had been convicted of committing fifteen felonies. Gore denied trying to kill Coralis and claimed that her injuries were the result of her jumping out of a moving car. Gore also asserted that all of the State witnesses had lied and he refused to explain why he was in possession of the property of people who were either killed or attacked.

Ana Fernandez testified on Gore’s behalf. Fernandez worked for Gore in 1984 or 1985 when she was fifteen years old, answering phones for the escort service. Fernandez claimed to have known Roark, Coralis, and Novick through her association with Gore. However, she could not state when, where, or how many times that she had met Coralis or Novick and was unable to describe them. Moreover, when presented with a photograph of several women, she could not identify Coralis.

After the close of all the evidence, the jury convicted Gore of first-degree murder and armed robbery with a deadly weapon of Novick. During the penalty phase, Gore chose to represent himself.² The jury recommended that Gore be sentenced to death by a vote of twelve to zero. The trial court imposed the death penalty for the first-degree murder conviction³ and imposed an upward departure life sentence for the armed robbery conviction to run consecutive to any other sentence Gore was serving.

[N.2] Williams v. State, 110 So. 2d 654 (Fla. 1959). 784 So. 2d at 423-26 (footnotes omitted).

Gore filed his second direct appeal, raising eight claims.⁴ The Court affirmed Gore’s convictions and sentence, id. at 438, after which Gore filed this current motion for postconviction relief. In his rule 3.851 motion, Gore alleged ten claims.⁵ Following a Huff⁶ hearing, the trial court granted an evidentiary hearing on claim four only—Gore’s ineffective assistance of counsel claim arising from the Spencer hearing—and summarily denied Gore’s remaining claims.⁷ However, the trial court ultimately did not hold an evidentiary hearing on this single claim based on its determination that Gore, by his actions, waived any evidentiary hearing. The trial court thus denied Gore’s motion for postconviction relief, concluding that all of the claims raised were without merit. Gore appeals the denial of his postconviction motion to this Court and raises several issues for this Court’s review.⁸

II. ANALYSIS

A. Competency at Trial and Postconviction Proceedings

We begin with an examination of the issue of Gore’s competency. We start with the issue of competency because Gore’s mental status has been a recurrent theme throughout the trial, direct appeal, and postconviction proceedings in this case as well as in the proceedings concerning the first-degree murder of Susan Roark in Columbia County, in which Gore was also sentenced to death and in which the issue of Gore’s competency to proceed was also raised. See Gore v. State, 846 So. 2d 461 (Fla. 2003) (affirming denial of postconviction relief and denying petition for habeas corpus in Roark conviction); Gore v. State, 599 So. 2d 978 (Fla. 1992) (affirming conviction and sentence for murder of Roark) (hereafter referred to as “the Columbia County case”).⁹ While Gore’s current counsel asserts that Gore is “mentally deranged,” the trial judges who have evaluated this issue have concluded that, rather than being incompetent or seriously mentally ill, Gore has intentionally manipulated and attempted to obstruct the ongoing proceedings against him. The question of whether Gore’s actions are the product of a serious mental illness or the result of purposeful manipulation is best analyzed by a thorough review of the record in this case and the Columbia County case.¹⁰

Gore’s claims of incompetency arise from both his trial and postconviction proceedings. As to his trial-related claims, Gore asserts the following: (1) the trial court erred in finding that he was competent to proceed to trial; (2) his trial counsel was ineffective in advocating his incompetency claims; and (3) the trial court erred in failing to instruct the jury on the extreme mental disturbance mitigator.

As to his postconviction-related claims, Gore alleges that the trial court erred in finding that he was competent at the time of the postconviction proceedings and he claims that he is possibly incompetent and/or insane at present. To provide context to these claims, we will first provide a history of the competency proceedings in Gore’s case and then analyze his postconviction and trial-related incompetency claims.

1. History of Competency Proceedings

a. Competency in Columbia County Collateral Proceedings

We turn first to the Columbia County case because the proceedings in that case gave rise to some of the trial court’s decisions regarding competency in this case. In 1998, after the filing of Gore’s rule 3.851 motion in the Columbia County case involving the murder of Susan Roark, counsel in that case filed a motion to determine Gore’s competency to proceed. In the motion, counsel stated that Gore had “no present ability to consult with and communicate with postconviction counsel regarding factual matters at issue in his postconviction proceedings.” In the absence of the State’s objection to the examination, the court appointed two experts to evaluate Gore’s competency, Dr. Richard Greer and Dr. Umesh Mhatre, who concluded that Gore was competent to proceed. At the competency hearing, Gore had the opportunity to cross-examine these experts and also presented testimony from Dr. Harry McClaren and Dr. Terence Leland, both of whom found Gore to be incompetent.

In finding that Gore was competent to proceed in the postconviction proceedings, the court noted that two of the doctors had found Gore to be controlling and manipulative. Moreover, the court stated:

Mr. Gore is also a notoriously difficult client. There is, however, no right to a meaningful attorney-client relationship, when the client’s conduct prevents a meaningful relationship. Morris v. Slappy, 461 U.S. 1, 13 (1983). Based on this Court’s observations of Gore, both during his trial and over the last several years of these postconviction proceedings and the reports and testimony of the experts, the Court finds that Gore’s current dislike of and refusal to cooperate with collateral counsel are not the result of a delusional disorder. Instead, such behavior is consistent with Gore’s personality disorder.

The Court finds that the greater weight of the evidence supports the conclusions that Gore has both a rational and factual understanding of these proceedings and that he has the ability to consult with counsel if he chooses to do so.

b. Competency Evaluation at Retrial in Novick Case

On January 14, 1999, prior to the retrial in this case, defense counsel received a letter stating that Gore had previously been found to be incompetent by two experts in the Columbia County case. When counsel raised the issue before the court, the court sua sponte appointed Dr. Merry Haber to conduct Gore’s evaluation “to make sure [Gore was] okay and still competent.” Counsel then formally requested that the trial court have Dr. Haber perform an evaluation. The parties stipulated that the defense would not request a second evaluation unless Dr. Haber concluded Gore was incompetent.

On January 15, 1999, Dr. Haber conducted a one-hour competency evaluation of Gore. In addition, Dr. Haber reviewed the reports of the four experts who examined Gore in the Columbia County proceedings. In her report, Dr. Haber opined that Gore “was cooperative, but also manipulative and seductive.” She also stated that his “thought processes were coherent, logical, and productive” although he would become “overproductive” in explaining his situation. Dr. Haber believed that Gore’s thought processes were “goal-oriented with no loosening of associations.” She found no evidence of delusional activity, depression, significant anxiety, or any major mental illness. She ultimately concluded that Gore was competent to proceed with his trial.¹¹ The issue of Gore’s competency was not raised on appeal from the retrial.

c. Competency at Postconviction Proceedings in Novick Case

In this current postconviction proceeding, Gore filed a motion to determine his competency to proceed in the collateral proceedings. At a subsequent hearing, the State agreed to a competency hearing. Ultimately, the court appointed three experts to evaluate Gore: Dr. Lynne Alison McInnes, Dr. Enrique Suarez, and Dr. Sonia Ruiz.

At the competency hearing, the defense presented the testimony of Dr. McInnes, a psychiatrist, who conducted a five-hour interview of Gore. She opined that Gore had loosening of association, displayed incoherence, paranoia, and delusional thoughts, and was suspicious of counsel. Dr. McInnes did not administer the Minnesota Multiphasic Personality Inventory (MMPI) test to Gore, a test which evaluates personality and “characterological” traits, because she did not believe it would be of assistance to the issue of his competency. Gore denied that he had psychiatric symptoms, but Dr. McInnes testified that it was very difficult to fake a thought disorder and therefore she did not believe that Gore was malingering. She also did not believe that Gore was capable of conveying consistent information or understanding the facts at hand. Thus, she concluded that Gore was incompetent. On cross-examination, Dr. McInnes stated that Gore had indicated that he had suffered some head trauma but she also conceded that there was a possibility that Gore was attempting to produce symptoms to influence the outcome of his case and that she suspected that Gore was manipulative. She also stated that she did not review Gore’s prior evaluations.

The State presented the testimony of Dr. Suarez, a psychologist who performed Gore’s evaluation, and Dr. Ruiz, a clinical psychologist. Dr. Suarez testified that Gore was compulsive and had a tendency to obsess. Gore informed Dr. Suarez that he had a number of different head injuries and had experimented with drugs before prison. However, based on Gore’s interactions with his attorney, who was present during the evaluation, the doctor believed that Gore had the ability to respond to any question that was asked of him. Dr. Suarez also did not see any signs of Gore being psychotic or delusional. Dr. Suarez administered the MMPI, which showed “answers that are known to reflect or be indicative of certain psychological condition or show abnormality.” However, the test results were invalid, which Dr. Suarez opined could have been the result of exaggeration. Ultimately, Dr. Suarez found Gore to be competent. On cross-examination, Dr. Suarez conceded that the MMPI results did not necessarily correlate to an individual’s competency.

Dr. Ruiz described Gore as very coherent and intelligent. She stated that Gore was sometimes unresponsive to questions, but she deemed that behavior to be purposeful, occurring when he did not wish to discuss certain topics. She also stated that Gore did not have any loosening of associations but was a highly verbal individual. She opined that Gore obsesses with details but that he was not psychotic, out of contact with reality, or mentally retarded, and showed no evidence of a thought disorder or major mental disorder. She concluded that “[Gore] is very capable of consulting with counsel in a reasonable manner and very capable of testifying if he choosing [sic] to do so.”

Gore himself questioned Dr. Ruiz and asked her if the loosening of associations could exhibit itself on some days but not on others due to the stress on an individual, and she agreed it was a possibility.¹² When Gore continued to question her, Dr. Ruiz also stated it was possible that an individual under stress could provide incorrect answers to questions.

After hearing testimony from the doctors and arguments from counsel, the court stated:

I do find Mr. Gore to be competent. . . . Maybe more competent than a lot of people that appear before me, some of the lawyers included. I find him to be bright, intelligent, he has good contact with reality. He has no communication difficulty. He certainly does not in front of me or with the doctors, at least Dr. Ruiz and Suarez, have any difficulty with rambling or loosening association. I just observed here that he was able to ask a mental health expert a very good question and follow it through the answer to another follow-up question. I thought he did very well there.

Further, when questioned by the court on whether he felt competent to proceed, Gore stated, “I’m absolutely competent. I’m absolutely lucid.”

2. Standard for Competency

Under the Due Process Clause of the Fourteenth Amendment, a defendant may not be tried and convicted of a crime if he is not competent to stand trial. SeeAmend. XIV, § 1, U.S. Const. In order to determine whether a defendant is competent to proceed at trial or in postconviction proceedings, the court must discern whether he “has sufficient present ability to consult with counsel with a reasonable degree of rational understanding—and whether he has a rational as well as a factual understanding of the pending . . . proceedings.” Alston v. State, 894 So. 2d 46, 54 (Fla. 2004) (quoting Hardy v. State, 716 So. 2d 761, 763 (Fla. 1998) (applying competency criteria to collateral proceedings)); see Peede v. State, 955 So. 2d 480, 488 (Fla. 2007) (holding that the trial court must decide whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him”) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)); see also Fla. R. Crim. P. 3.211(a)(1) (setting forth the same test).

Moreover, when analyzing a competency determination on appeal, this Court applies the competent, substantial evidence standard of review to the trial court’s findings. In other words, a trial court’s determination of competency supported by competent, substantial evidence will not be disturbed on appeal. See Hernandez-Alberto v. State, 889 So. 2d 721, 727-28 (Fla. 2004).

3. Analysis of Postconviction and Trial-Related Competency Claims

Applying this standard and based on the evidence presented to the postconviction court on the issue of Gore’s competency, we conclude that competent, substantial evidence supports the postconviction court’s finding that Gore was competent to proceed. Although the court heard testimony from Dr. McInnes that Gore was incompetent, the court also heard conflicting evidence from Dr. Ruiz and Dr. Suarez that Gore was competent. The trial court also observed Gore’s behavior first-hand and had the benefit of the record from the prior competency proceedings at trial in this case, as well as the Columbia County case. Because the court’s competency determination is supported by the testimony from Dr. Ruiz and Dr. Suarez, the court’s own observations of Gore’s behavior, and the prior proceedings in the Columbia County case, the court did not err in finding Gore competent to proceed in his postconviction proceedings.

We also reject Gore’s competency claims arising from his retrial. We first note that Gore’s claims alleging that he was incompetent at the time of trial and that the trial court erred in removing the extreme mental disturbance mitigator from the jury instructions are procedurally barred because they could have been raised on direct appeal. See Carroll v. State, 815 So. 2d 601, 610 (Fla. 2002) (rejecting as procedurally barred the postconviction claim that defendant was incompetent to stand trial); see also Farina v. State, 937 So. 2d 612, 625 n.7 (Fla. 2006) (argument that age mitigator should be reweighed was procedurally barred as it should have been raised on direct appeal).

As to Gore’s claim that counsel rendered ineffective assistance at his trial in his failure to “advocate the issue of his competency,” we find no merit in this claim. Following the United States Supreme Court’s decision Strickland v. Washington, 466 U.S. 668 (1984), this Court held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted). In this case, the trial court summarily denied this claim without an evidentiary hearing, concluding it was insufficiently pled. In determining whether the trial court’s ruling on the facial sufficiency of this claim was proper, this Court must apply Strickland‘s two-pronged test. Spera v. State, 971 So. 2d 754, 758 (Fla. 2007).

Because Gore received a competency evaluation at his trial, this claim is unlike other cases where the defendant alleged that counsel was ineffective in failing to request a competency evaluation. See Lamarca v. State, 931 So. 2d 838, 847-48 (Fla. 2006). Instead, Gore argues that counsel failed to further develop the information that Gore had previously been found incompetent by two experts in another case. However, this claim of deficient performance is conclusively refuted by the record in that the record shows that trial counsel brought the fact of the prior experts’ conclusions to the attention of the trial court, who immediately ordered an additional competency evaluation. Subsequently, in an abundance of caution, counsel formally requested that the trial court read the transcript from the Columbia County case, review the earlier reports on Gore’s competency, and order another competency evaluation.

As to the second prong of prejudice, there is simply no basis to conclude that our confidence in the outcome of the competency proceedings at trial, and ultimately confidence in the trial proceedings, is undermined. This is especially true in light of Gore having been found competent by every trial court that has held a hearing on this issue, including determinations that were made after the extensive proceedings in Columbia County and after the proceedings by the trial court in these postconviction proceedings. Therefore, we conclude that Gore’s claim of ineffective assistance of counsel in failing to “advocate” the issue of competency is without merit.

B. Ineffective Assistance of Counsel at Penalty Phase and Spencer Hearing

We next turn to Gore’s assertion that the trial court erred in summarily denying his ineffective assistance of counsel claim based on its finding that Gore had waived the claim by representing himself at the penalty phase before counsel was reappointed for the Spencer hearing. We combine our discussion of this issue with the discussion of Gore’s claim of error in the trial court’s ruling that he had voluntarily waived an evidentiary hearing that was granted on his claim that counsel provided ineffective assistance at his Spencer hearing.

1. Summary Denial of Ineffective Assistance Claim

We first address Gore’s claim that the trial court erred in summarily denying his ineffective assistance of counsel claim. We have repeatedly required that an evidentiary hearing be held “whenever the movant makes a facially sufficient claim that requires a factual determination.” See Owen v. State, 986 So. 2d 534, 543 (Fla. 2008). However, “[p]ostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Id. at 543 (quoting Connor v. State, 979 So. 2d 852, 868 (Fla. 2007)).

The essence of Gore’s ineffective assistance claim is twofold. First, Gore alleges that an evidentiary hearing was required to determine whether his decision to proceed pro se at the penalty phase was voluntary or forced by counsel’s lack of preparation. Second, Gore argues that even if he had voluntarily dismissed counsel, this factor does not negate counsel’s failure “to prepare mitigation or obtain adequate mental health evaluations.”

On direct appeal, we rejected Gore’s claim that his decision to represent himself was not knowing and voluntary:

[W]e conclude that Gore has failed to show good cause for dissatisfaction with appointed counsel. Despite Gore’s assertions to the contrary, the record reflects that defense counsel spoke with family members and potential lay witnesses, reviewed existing mental health evaluations, and attempted to have Gore reevaluated by mental health experts for purposes of presenting potential mitigating evidence. Gore himself thwarted Dr. Haber’s efforts to provide mitigating evidence by refusing to cooperate with her, and Gore also refused to be reexamined by several experts who previously had interviewed and examined him for other criminal proceedings. In addition, after speaking with Gore’s family members and lay witnesses about testifying on Gore’s behalf, defense counsel concluded that it would not be in Gore’s best interest to have these witnesses testify during the penalty phase. In sum, the record reflects that defense counsel took reasonable steps to secure mitigating evidence on behalf of Gore and made strategic decisions in declining to call certain defense witnesses.

Thus, the record does not reflect that Gore was forced to make a Hobson’s choice between incompetent or unprepared counsel and appearing pro se. Competent substantial evidence supports the conclusion that Gore’s decision to proceed pro se was made with “eyes open.”

Gore, 784 So. 2d at 437 (emphasis added).

Although we rejected Gore’s argument that Gore’s decision to represent himself was not voluntary, we did not address Gore’s claim that counsel rendered ineffective assistance prior to his discharge because he failed to secure any mental health testimony or fact witnesses to testify on Gore’s behalf. This aspect of his argument, which amounts to a claim of ineffective assistance of counsel at the penalty phase, was raised but not addressed on direct appeal. See Gore, 784 So. 2d at 436.¹³ While we note that Gore’s ineffective assistance of penalty phase counsel claim is cognizable in postconviction proceedings, in this case the claim is extremely limited because Gore chose to represent himself. Moreover, we reject Gore’s claim that counsel was deficient in failing to prepare mitigation and obtain mental health evaluations because it is conclusively refuted by the record. See Blackwood v. State, 946 So. 2d 960, 966-67 (Fla. 2006) (upholding summary denial of defendant’s ineffective assistance claims conclusively refuted by the record).

Contrary to Gore’s assertions about counsel’s deficient performance, our record reflects that in preparation for the penalty phase, trial counsel filed the defense witness list on March 4, 1999, which included the names of seven witnesses. At the March 9, 1999, status hearing, counsel removed the names of two of Gore’s family members because counsel concluded that they would not be favorable witnesses. Counsel also removed Dr. Merry Haber from the witness list, after informing the court that Gore refused to meet with her during their scheduled appointments. Then, on March 10, 1999, counsel filed a memo listing three psychologists who had formerly evaluated Gore, who either did not have the time or did not wish to testify on Gore’s behalf. At the status hearing that same day, Gore informed the court that he wished to represent himself at the penalty phase. He explained:

Mr. Pena [counsel] advised me when I got into this courtroom he was not calling any witnesses at all. He was not going to put on any kind of defense, except me. . . . That was going to be the whole thing.

. . . I was told that Ana Fernandez and Jessie Casanova and other people were going to be witnesses here and now, all of a sudden, they are doing it to me again. They done it to me at the first part of this trial . . . last minute, seventh hour they are not [sic] witnesses . . . .

After conducting a thorough colloquy, the court agreed to allow Gore to represent himself during the sentencing hearing. In response, counsel stated to the court that most of the witnesses on the list, including Ms. Fernandez, no longer wished to testify on Gore’s behalf. He also stated that unfavorable evidence would be introduced through the testimony of Ms. Casanova, and therefore declined to present her testimony at the sentencing hearing.

Gore also asserted to the postconviction court that there were “numerous others willing to testify on Mr. Gore’s behalf and who were never called to do so,” including mental health experts Dr. Lee Norton and Dr. Barry Crown. However, in the memo filed on March 10, counsel stated that Dr. Norton found Gore to be difficult and “would not testify in this case under any circumstances.” The letter further stated that Dr. Crown “found [Gore] to be manipulative and self serving” and would not “give testimony which would affect his credibility as a professional.”

As demonstrated by the above, the record conclusively refutes Gore’s claim that counsel’s decision not to present witnesses at the penalty phase was prompted by a lack of preparation. Counsel attempted to obtain the testimony of family members and mental health experts. However, the majority of the witnesses were unwilling to testify in Gore’s case. Based on the record of counsel’s actions at the trial court proceedings before counsel was discharged, we conclude that further factual development of this claim at a hearing was not required. Further, Gore has been unable to point to any other available witness that counsel could have or should have presented at trial so as to undermine our confidence in the outcome of the penalty phase. Thus, we uphold the summary denial on the basis that the record conclusively refutes Gore’s allegations that counsel rendered deficient performance prior to Gore’s decision to proceed pro se and that the record conclusively refutes any possible prejudice.

2. Waiver of Evidentiary Hearing

We now turn to Gore’s claim that the trial court erred in finding that Gore voluntarily waived his evidentiary hearing on his ineffective assistance claim rising from the Spencer hearing. Although Gore represented himself during the penalty phase, counsel was subsequently reappointed to represent Gore, but did not present any evidence at the Spencer hearing. In its order denying postconviction relief on Gore’s ineffective assistance claim arising from the Spencer hearing, the trial court stated:

1. Defendant has a right to control the conduct of his case, and is therefore entitled to determine that no witnesses be called at the evidentiary hearing against his counsel’s wishes. 2. Defendant has the burden of proof in this post conviction hearing and cannot carry that burden of proof without the presentation of witnesses. 3. By refusing to allow the presentation of evidence at the evidentiary hearing, Defendant has waived his claim that counsel was ineffective for failing to investigate and present mitigation at the Spencer hearing. Because Defendant has waived this claim, it is hereby, denied.

(Citations omitted.)

As to determining whether the trial court erred in finding that Gore waived the only postconviction claim that was granted an evidentiary hearing, we have held that a valid waiver of postconviction penalty phase claims must be “knowing, intelligent, and voluntary.” Garcia v. State, 949 So. 2d 980, 986 (Fla. 2006) (quoting Alston v. State, 894 So. 2d 46, 57 (Fla. 2004)). We have carefully reviewed the record and conclude that Gore’s statements at the hearing met this threshold. It is clear from the record that Gore did not want to have an evidentiary hearing on his penalty phase ineffective assistance claim. The State attempted to inform Gore of the consequences of failing to meet his burden of proof.¹⁴ However, Gore declared that he did not “care” about the evidentiary hearing, but was concerned solely with proving his innocence.¹⁵

As this Court stated Ferrell v. State, 918 So. 2d 163 (Fla. 2005), “Ferrell’s claim of ineffective assistance based on the failure of trial counsel to seek the expert assistance of a social worker is a fact-based issue that required development at an evidentiary hearing . . . . However, Ferrell `opted to forego’ the presentation of such evidence at the scheduled evidentiary hearing and thus waived the claim.” Id. at 173-74 (citation omitted). Likewise, Gore’s decision here to “forego” the presentation of evidence at the evidentiary hearing on his Spencer claim waived consideration of this claim on appeal. Because the scheduled evidentiary hearing was granted only as to Gore’s penalty phase ineffective assistance claim and Gore was not interested in pursuing his penalty phase claims, we conclude that the trial court did not err in finding that Gore knowingly, intelligently, and voluntarily waived his evidentiary hearing and this postconviction claim.¹⁶

Even if the trial court erred in its finding that Gore waived an evidentiary hearing on this claim, we conclude that no prejudice can be demonstrated. See generallyWaterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001) (“[B]ecause the Strickland standard requires establishment of both 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.”). Similar to our previous discussion of Gore’s ineffective assistance of counsel at the penalty phase, Gore has not been able to point to any other available witness that counsel should have presented at theSpencer hearing that would undermine our confidence in the outcome of his penalty phase. Thus, we find Gore’s claim of error concerning his Spencer hearing claim to be meritless.

C. Access to Records

We next address Gore’s assertion that the trial court erred in refusing to allow complete and unfettered access to available records. Further, Gore contends that the court did not allow counsel adequate time to review the records that were eventually made available to counsel. Gore’s complaint stems from the trial court’s ruling on postconviction counsel’s motion to compel Frank Tassone, postconviction counsel in the Columbia County case,¹⁷ to allow counsel access to approximately eighty boxes of records in that case. Tassone refused counsel’s request to review the files, based on Gore’s direction that counsel should not have access because of a conflict of interest. The court ultimately ruled that counsel could have access to the fifty-nine boxes of materials to which Gore agreed, but allowed counsel only limited time to review the records.

We conclude that in this case, Gore was entitled to determine the extent of counsel’s review of the records in the Columbia County proceeding and any inability of current counsel to obtain the records was due solely to Gore’s own actions in refusing his counsel access. Because Gore himself denied his counsel access to the records and is now complaining that counsel did not have enough time to review the records ultimately made available, this claim also highlights what can most aptly be characterized as an attempt to manipulate the system. Moreover, counsel, who eventually received the majority of the records, is unable to point to a single document contained in the formerly undisclosed record that might have been even marginally useful to the issues he sought to litigate in postconviction proceedings. Accordingly, we deny relief on this claim.

D. Cumulative Error

Gore also contends that the trial court erred in failing to conduct a cumulative analysis of the errors that rendered the result of his trial unreliable. However, because Gore’s individual claims of error are without merit, any cumulative error analysis would be futile. Therefore, we reject this claim of trial court error. SeeWilliams v. State, 987 So. 2d 1, 14 (Fla. 2008) (“Where allegations of individual error are without merit . . . a cumulative error argument based thereupon must also fail.”).

E. Whether the Trial Court Erred in Striking Gore’s Initial Postconviction Motion Without Leave to Amend

In his next claim on appeal, Gore asserts that the trial court erred in striking his initial motion for postconviction relief without leave to amend. On June 18, 2002, Gore filed his initial motion for postconviction relief, which was stricken by the trial court as an improper pleading based on rule 3.851. Gore appealed the trial court’s ruling, which was treated by this Court as a motion for extension of time. In a March 10, 2003, order entered by this Court, Gore was granted an extension of time in which to file a proper motion pursuant to rule 3.851. Gore now appeals the trial court’s initial ruling, stating that the arbitrary application of rule 3.851 violates his due process and equal protection rights and that the trial court’s refusal to grant him leave to amend his motion has jeopardized his federal remedies.¹⁸ Further, Gore argues that he was merely relying on the advice of counsel in filing the improper motion.

To the extent that Gore is alleging that rule 3.851 is unconstitutional as applied to him, this claim is without merit. See Gonzalez v. State, 990 So. 2d 1017, 1034 (Fla. 2008) (“[R]ule 3.851 as amended in 2001 does not violate a defendant’s due process rights or equal protection rights.”). Moreover, we find that Gore’s claim that he authorized the filing of the improper motion based on the advice of counsel is in effect a claim of ineffective assistance of postconviction counsel, and thus is also without merit. See Waterhouse, 792 So. 2d at 1193 (reaffirming the conclusion that ineffective assistance of postconviction counsel is not a cognizable claim for relief).

Finally, although the trial court did not err in striking Gore’s motion without leave to amend, we conclude that because this Court granted an extension of time pursuant to rule 3.851(d)(5) in which to file an amended motion, Gore’s amended motion in this case relates back to the date of the initial motion filed on June 18, 2002. See generally Bryant v. State, 901 So. 2d 810, 818 (Fla. 2005) (noting that when an initial motion is stricken with leave to amend, a subsequent amended motion relates back to the date of the original filing). Accordingly, although the trial court did not err in its ruling, in our view this Court’s order granting an extension of time in which to file an amended motion rendered Gore’s motion timely for purposes of federal review.

F. Remaining Claims of Trial Court Error

We affirm the trial court’s ruling on Gore’s remaining claims without further discussion: the trial court’s summary denial of several of Gore’s postconviction claims because Gore’s claims are either procedurally barred, conclusively refuted by the record, or facially or legally insufficient; the court’s rejection of Gore’s Ring claim because we have repeatedly held that Ring is not retroactive, see Overton v. State, 976 So. 2d 536, 567 (Fla. 2007); and the court’s denial of Gore’s claim that he is insane and cannot be executed because we have held such claims to be premature in the absence of an active death warrant. See Jones v. State, 845 So. 2d 55, 74 (Fla. 2003).

III. CONCLUSION

Based on our examination of the issues raised by Gore on appeal, we affirm the trial court’s denial of Gore’s motion for postconviction relief.

It is so ordered.

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

PERRY, J., did not participate.

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

—————

Notes:

1. Gore’s first conviction was reversed and his case remanded for a new trial because of improper questions and comments by the prosecutor during the cross-examination of Gore and during closing argument. Gore v. State, 719 So. 2d 1197, 1202-03 (Fla. 1998).

2. Counsel was subsequently reappointed for the Spencer hearing. See Spencer v. State, 615 So. 2d 688 (Fla. 1993) (allowing for a hearing at which the trial judge may be presented with additional evidence).

3. The trial court found the following aggravating factors:

(1) Gore was previously convicted of another capital felony involving the use or threat of violence to the person; (2) the capital felony was committed while Gore was engaged in the commission of, or an attempt to commit, or in flight after committing or attempting to commit any robbery; and (3) the capital felony was committed in a cold, calculated and premeditated manner without any pretense of legal justification (“CCP”).

Gore, 784 So. 2d at 426 (footnote omitted). As to mitigation, the court found no statutory mitigation but found the following nonstatutory mitigating factors: “(1) Gore suffered hearing loss (minimal weight); (2) Gore suffered from migraine headaches (minimal weight); and (3) Gore had previously stopped an altercation between Raul and Marisol Coto (minimal weight).” Id.

4. Gore argued the following points:

(1) the Double Jeopardy Clause of the United States and Florida Constitutions prevented the State from retrying Gore for first-degree murder and armed robbery; (2) the trial court erred in denying his motion for a mistrial following the State’s questioning of Jessie Casanova about whether she had an “intimate relationship” with Gore; (3) the trial court erred in denying Gore’s motion for a judgment of acquittal on charges of first-degree murder and armed robbery; (4) the trial court abused its discretion in excluding reverse Williams rule evidence pertaining to the murder of Paulette Johnson, which allegedly supported Gore’s hypothesis of innocence; (5) the State introduced improper collateral crime evidence during the penalty phase; (6) the trial court erred in finding and weighing the CCP aggravating circumstance; (7) the trial court erred in permitting Gore to represent himself during the guilt phase closing argument and during the penalty phase of trial; and (8) Gore received ineffective assistance of counsel during the penalty phase.

Id. at 426 n.6.

5. Gore alleged as follows: (1) he was denied his right to effective representation by the lack of time available to fully investigate and prepare his postconviction pleading and the unprecedented workload on counsel, in violation of his Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution and in violation of Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988); (2) his convictions are materially unreliable due to the cumulative effects of ineffective assistance of counsel, the withholding of exculpatory or impeaching material, newly discovered evidence, and/or improper rulings of the trial court in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights; (3) he was denied his rights under Ake v. Oklahoma, 470 U.S. 68 (1985), at his trial when counsel failed to obtain an adequate mental health evaluation and failed to provide the necessary background information to the mental health consultant in violation of Gore’s equal protection and due process rights under the Fourteenth Amendment and his rights under the Fifth, Sixth and Eighth Amendments; (4) he was denied effective assistance of counsel at the penalty phase portion of his trial, including the Spencer hearing; (5) his execution would violate his Eighth Amendment rights because he is insane and his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments were violated because he was incompetent at the time of trial; (6) his sentencing jury was misled by comments, questions, and instructions that unconstitutionally and inaccurately diluted the jury’s sense of responsibility towards sentencing in violation of the Eighth and Fourteenth Amendments and counsel was ineffective for not properly objecting; (7) he was denied his rights under the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and his rights under the Florida Constitution and was denied effective assistance of counsel in the postconviction proceedings because of rules prohibiting Gore’s counsel from interviewing jurors to determine if constitutional error was present; (8) Florida’s capital sentencing procedures violate Gore’s Sixth Amendment right to have a unanimous jury return a verdict addressing his guilt of all the elements necessary for the crime of capital first-degree murder; (9) the application of the new rule 3.851 to Gore violates his due process and equal protection rights; and (10) his indictment was delayed by almost two years in violation of the Fourteenth Amendment.

6. Huff v. State, 622 So. 2d 982 (Fla. 1993).

7. As to Gore’s other claims concerning ineffective assistance of counsel at the penalty phase, the court stated: “[T]he defendant having chosen to represent himself during the penalty phase before the jury cannot now claim ineffective assistance of counsel as to the evidence that was presented before the jury.”

8. These issues are: (A) Gore was incompetent at the time of his trial and postconviction proceedings; (B) the trial court erred in finding that Gore waived his allegations of ineffective assistance of counsel during sentencing and the trial court erred in finding that Gore voluntarily waived an evidentiary hearing on his claim of ineffective assistance during the Spencer hearing; (C) the trial court erred in refusing to allow postconviction counsel complete and unfettered access to available public records or sufficient time for a full investigation into the records made available; (D) the trial court erred in failing to conduct a cumulative error analysis that fully considered Gore’s allegations of constitutional error; (E) the trial court erred in striking Gore’s initial postconviction motion without permitting him leave to amend; and (F) the trial court’s summary denial of claims I, II, III, V, VI, IX and X was error; Florida’s capital sentencing procedures violateRing v. Arizona, 536 U.S. 584 (2002); and Gore cannot be executed because he is insane. We have reordered the above issues from the brief in the order in which we will address them.

9. Although postconviction relief was denied and that denial affirmed, Gore brought a successive postconviction motion pursuant to Florida Rule of Criminal Procedure 3.853 for DNA testing. That motion was summarily denied and is pending on appeal in this Court in Case No. SC07-678.

10. The issue of whether Gore has intentionally manipulated the proceedings was the subject of an earlier case in which Gore was convicted of attempted murder, kidnapping, sexual battery, burglary, robbery, and theft. See Gore v. State, 573 So. 2d 87, 88 (Fla. 3d DCA 1991). There, Gore filed a motion to exclude electronic media from the courtroom. Several months prior to the trial, a psychologist diagnosed Gore with attention deficit disorder and a severe personality disorder and concluded that the presence of television cameras would distract Gore. After the psychologist’s testimony was presented at an evidentiary hearing, the court found Gore competent to testify and denied the motion. When Gore took the stand and stated he was “not going to be able to do this,” the court appointed three doctors to examine Gore and determine whether the presence of the cameras truly was affecting Gore’s ability to participate in the trial. Notably, the first psychiatrist that testified stated that “Gore did not suffer from any major illness, was manipulative, and was simply `making an issue’ of the presence of the camera.” Id. The trial court ultimately denied the motion to exclude. Id.

11. The record also indicates that the trial court appointed Dr. Haber on February 10, 1999, to examine Gore’s competency for the penalty phase.

12. The trial court granted Gore’s request to question Dr. Ruiz after the State and Gore’s counsel completed their examinations.

13. Gore’s ineffective assistance claim also extends to counsel’s representation of Gore at the Spencer hearing, which we address later in this opinion.

14. It appears that the State attempted to inform Gore and the court that the failure to present witnesses could result in a failure to meet the burden of proof and waiver of postconviction claims. The State’s comment was cut off by the trial judge but Gore failed to ask for clarification. Instead, he reiterated his refusal to participate.

15. As evidenced in his competency evaluation by Dr. Leland, Gore made similar demands in the Columbia County case, stating that he would not cooperate with sentencing phase issues, but would only assist with his “innocence claims.”

16. Gore also argues that the court failed to hold a hearing pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), or Faretta v. California, 422 U.S. 806 (1975), and ignored evidence that Gore wished to proceed with substitute counsel. We reject Gore’s claim of error concerning a Faretta inquiry because Gore failed to make an unequivocal request to represent himself and we conclude that in this case there was no reversible error as to Gore’s claim regarding the Nelson hearing.

17. Gore’s original postconviction counsel in the Columbia County case and in the instant case was attorney Raymond Glenn Arnold. However, based on Gore’s filing of complaints against Arnold, Arnold moved to withdraw from representing Gore in the Columbia County case on October 18, 2001, and the instant case on November 13, 2001. Tassone was subsequently appointed as counsel in the Columbia County case.

18. According to 28 U.S.C. § 2244 (2006), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal petition for writ of habeas corpus must be filed within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) (2006). However, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2) (2006).

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ALI WASHINGTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D09-0141.

District Court of Appeal of Florida, First District.

Opinion filed June 22, 2009.

An appeal from the Circuit Court for Duval County. L. P. Haddock, Judge.

Ali Washington, pro se, Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant challenges an order by which the trial court denied his Florida Rule of Criminal Procedure 3.800(a) motion through which he alleged that his twenty-year sentence for attempted armed robbery is illegal because it exceeds the statutory maximum. Attempted armed robbery is a second degree felony which carries a statutory maximum of fifteen years unless an enhancement statute applies. In denying the appellant’s motion, the trial court indicated that the enhanced sentence is authorized because the appellant was sentenced as a habitual violent felony offender. But the trial court did not attach record excerpts demonstrating that the appellant was sentenced as a habitual violent felony offender. In the absence of such attachments, the order under review must be reversed. See Fla. R. App. P. 9.141(b)(2).

The order is therefore reversed, and this case is remanded to the trial court for further consideration of the appellant’s motion.

HAWKES, C.J., ALLEN, and CLARK, JJ., CONCUR.

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

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EDWARD WERDELL, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 2D08-6379.

District Court of Appeal of Florida, Second District.

Opinion filed June 24, 2009.

Petition for Writ of Habeas Corpus to the Circuit Court for Pinellas County, Linda R. Allan, Judge.

Edward Werdell, pro se.

No appearance for Respondent.

PER CURIAM.

Edward Werdell has filed a petition for writ of habeas corpus purporting to challenge various aspects of his judgments and sentences in Pinellas County circuit court cases 02-04399-CF, 02-07159-CF, 03-02914-CF, 03-09410-CF, 03-10735-CF, 03-12407-CF, 03-13875-CF, 03-18719-CF, and 03-18738-CF. In response to the petition and in view of Werdell’s numerous filings over the past several years, almost all of which have been frivolous, we issued an order to show cause why this court should not direct the clerk to reject pleadings filed in this court related to the nine circuit court cases unless the filing is submitted by an attorney. Werdell has not filed a substantive response to our order. We therefore deny the petition and direct the clerk to place in an inactive file any notices of appeal or original proceedings filed by Werdell pro se relative to the nine circuit court cases unless the filing is signed by an attorney.

On October 24, 2003, Werdell pleaded guilty to nine felonies in five cases in the circuit court and admitted to violation of probation in two additional cases. The circuit court sentenced him in these cases to an overall prison term of fifteen years. On May 6, 2004, Werdell pleaded no contest to five felonies in another case and was sentenced to five years in prison concurrent with his earlier sentences. On August 10, 2004, he pleaded guilty to three felonies in an additional case and was sentenced to five years in prison, concurrent with his other sentences.¹ Werdell did not file a direct appeal in any of these cases.

Subsequently, Werdell filed numerous postconviction motions in the circuit court. Most if not all of these were dismissed or denied, and this court affirmed those orders that were appealed.² On June 24, 2007, the circuit court rendered an order barring Werdell from filing any pro se pleadings. Werdell filed a notice of appeal challenging that order in case 2D07-944 but voluntarily dismissed the appeal.

Since 2004, Werdell has filed a total of fifty actions in this court relative to one or more of his nine circuit court cases, including the postconviction appeals just mentioned, twenty-four habeas petitions, five petitions for writ of certiorari, four petitions for belated appeal, and several additional appeals and mandamus petitions.

The habeas petitions, the petitions for writ of certiorari, and all but the earliest-filed petition for belated appeal are frivolous. SeeMercade v. State, 698 So. 2d 1313, 1315 (Fla. 2d DCA 1997) (“`A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed.’ “) (quoting Treat v. State ex rel. Mitton, 163 So. 883, 883 (Fla. 1935)), disapproved of on other grounds by Hall v. State, 752 So. 2d 575 (Fla. 2000). Almost without exception, Werdell’s filings seek relief that cannot be granted with respect to the category of petition filed. The habeas petitions, including the petition filed in the present case, all concern direct-appeal, postconviction, or sentencing issues that were or should have been raised in the circuit court. See, e.g., Baker v. State, 878 So. 2d 1236, 1245 (Fla. 2004) (“The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.”); Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992) (“Habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been, should have been, or were raised on direct appeal.”). Moreover, not only are the habeas petitions frivolous, they are frequent and repetitious, raising the same issues in various combinations.

The petitions for writ of certiorari request a remedy that does not exist in certiorari; as such, there is no “`prospect whatsoever that [they] can ever succeed.’”Mercade, 698 So. 2d at 1315 (quoting Treat, 163 So. at 883). All five petitions improperly ask this court to review its own determinations (dismissals or denials) in Werdell’s habeas filings in this court. Cf. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 525 (Fla. 1995) (noting that certiorari “involves a limited review of the proceedings of an inferior jurisdiction”); Powell v. Civil Serv. Bd., 154 So. 2d 917, 919 (Fla. 1st DCA 1963) (“Certiorari is the traditional proceeding by which to obtain review of the orders, judgments and decrees of an inferior tribunal.”).

All but the earliest-filed petition for belated appeal are frivolous. The first petition was denied following a commissioner’s hearing. The remaining petitions improperly sought the identical relief requested in the first petition and were subsequently denied. See Fla. R. App. P. 9.141(c)(5)(C).

Werdell’s frequent frivolous and repetitious filings burden the limited resources of this court, resources that are better reserved for the resolution of genuine disputes. As such, and in the absence of a timely substantive response from Werdell to our order to show cause, we deny the petition for writ of habeas corpus in case 2D08-6379 and direct the clerk of this court to place in an inactive file any notices of appeal and original proceedings filed by Werdell relative to the nine circuit court cases recited in the first paragraph of this opinion unless the filing is signed by a member in good standing of The Florida Bar. See State v. Spencer, 751 So. 2d 47 (Fla. 1999).

Petition for writ of habeas corpus denied.

FULMER, VILLANTI, and LaROSE, JJ., Concur.

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

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Notes:

1. The nine cases recited in this paragraph are the nine enumerated in the first paragraph of this opinion.

2. See Werdell v. State, 945 So. 2d 520 (Fla. 2d DCA 2006) (table decision); Werdell v. State, 944 So. 2d 367 (Fla. 2d DCA 2006) (table decision); Werdell v. State, 916 So. 2d 804 (Fla. 2d DCA 2005) (table decision); Werdell v. State, 910 So. 2d 270 (Fla. 2d DCA 2005) (table decision).

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STATE OF FLORIDA, Appellant,
v.
MICHAEL ALAN GENTRY, Appellee.

Case No. 2D08-5477.

District Court of Appeal of Florida, Second District.

Opinion filed June 24, 2009.

Appeal from the Circuit Court for Hillsborough County, Emmett Lamar Battles, Judge.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee.

VILLANTI, Judge.

The State appeals the trial court’s order suppressing cocaine found during a search of Michael Gentry. It contends that the trial court improperly considered Gentry’s individual mental state when determining whether his encounter with the police constituted a seizure without reasonable suspicion. We agree and reverse the order suppressing the cocaine.

After an encounter with the police, Gentry was arrested and charged with one count of possession of cocaine. He subsequently filed a motion to suppress the cocaine, contending that it was obtained during an unlawful search. At the hearing on Gentry’s motion, the evidence showed that Gentry was working off charges as an informant for the City of Tampa Police in February and March 2008. He had not been told whether his work for the police was complete. In early April 2008, a City of Tampa police officer saw Gentry leaving a bar that was known for drug activity, and that officer radioed fellow officer Miles and asked him to try to talk to Gentry. Miles admitted that neither he nor the officer who saw Gentry leaving the bar had either reasonable suspicion for a stop or probable cause for a search of Gentry.

Miles testified that he found Gentry riding his bicycle not far from the bar. Miles pulled his patrol car alongside Gentry and asked Gentry to speak with him. According to Miles, Gentry stopped and agreed to talk to him. Miles testified that he asked Gentry for consent to search his person, and Gentry consented. Miles then removed Gentry’s baseball hat and found cocaine in the inside rim. Miles testified that before the search Gentry “was more than free to leave.”

Gentry testified that when Miles pulled up next to him, Miles’s cruiser blocked Gentry’s path. Therefore, according to Gentry, he was unable to simply ride away. Gentry testified that Miles got out of his cruiser, asked Gentry if he would consent to be searched, and then immediately reached up and pulled off Gentry’s hat before he could answer. Gentry specifically denied consenting to be searched, noting that he had been an addict for twenty years and therefore was “not new to this.” Gentry testified that he did not feel free to leave because Miles had blocked his path with the cruiser, and a fence and a sidewalk blocked any other way around the cruiser.

In its order granting Gentry’s motion, the trial court found Miles’s testimony concerning the events surrounding his encounter with Gentry to be credible. However, the trial court also found that Gentry “reasonably believe[d] that he was required to comply with [Miles]‘s request to talk and submit to the search” due to Gentry’s status as an informant for the City of Tampa Police. Based on these findings, the trial court concluded that Gentry’s belief that he was required to cooperate transformed the otherwise consensual encounter into a seizure that was not supported by reasonable suspicion and that Gentry’s consent was a product of that illegal seizure. Thus, the trial court suppressed the cocaine seized during the search. The State now appeals this ruling.

When considering a trial court’s ruling on a motion to suppress, this court must accept the trial court’s resolution of factual conflicts so long as that resolution is supported by evidence in the record. See, e.g., Ornelas v. United States, 517 U.S. 690, 699 (1996); E.B. v. State, 866 So. 2d 200, 202 (Fla. 2d DCA 2004). We then review the trial court’s legal conclusions based on these facts de novo. See Ornelas, 517 U.S. at 699.

Here, because the trial court found Miles’s testimony credible, we must accept his testimony that he pulled alongside Gentry, that he did not block Gentry’s path, and that Gentry agreed to speak with him and consented to be searched. The crucial issue is whether those facts establish a consensual encounter or an unlawful seizure. The trial court concluded that an unlawful seizure had occurred because of Gentry’s belief that he, as an informant for the City of Tampa Police, had to cooperate with any City of Tampa police officer he encountered. However, the Supreme Court has held that “a person has been `seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”United States v. Mendenhall, 446 U.S. 544, 554 (1980) (emphasis added); see also California v. Hodari D., 499 U.S. 621, 628 (1991). The reasonable person standard is an objective, not subjective, standard. Thus,

[t]he test’s objective standard-looking to the reasonable man’s interpretation of the conduct in question-allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. This “reasonable person” standard also ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.

Michigan v. Chesternut, 486 U.S. 567, 574 (1988) (citation omitted).

Here, the trial court did not apply the objective reasonable person standard required by the Fourth Amendment in reaching its conclusion that the encounter between Miles and Gentry was an unlawful seizure. Instead, the trial court’s ruling is based on Gentry’s alleged subjective fears concerning his obligation to continue cooperating with the City of Tampa Police as an informant. We note that Gentry never testified to any such subjective fears. However, even if he had, the law is clear that these subjective fears would not have had any place in applying the “reasonable person” standard. Thus, the trial court applied the incorrect legal standard when deciding and granting Gentry’s motion.

We often remand for the trial court to reconsider an issue when the trial court has initially applied the incorrect legal standard. Here, however, the facts as found by the trial court do not support a finding that the encounter was anything other than a consensual one when considered under the correct legal standard, and there is no basis in the record for a remand for any additional fact finding. Accordingly, we simply reverse the order granting Gentry’s motion to suppress and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

NORTHCUTT, C.J., and WHATLEY, J., Concur.

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

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HENRY VERGES, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-503

District Court of Appeal of Florida, Fourth District.

June 24, 2009.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Jeffrey R. Levenson, Judge, L.T. Case No. 07-2167 CF10A.

Philip L. Reizenstein of Woodward and Reizenstein, P.A., Miami, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

Stevenson, J.

After police gained entry to Henry Verges’s home in connection with an investigation for drugs, they discovered eight pictures depicting child pornography. Verges sought to suppress the pictures, arguing that the police had exceeded the scope of his consent to search and that any consent was not voluntarily given. The trial court denied the motion to suppress and Verges pleaded no contest to eight counts of possession of child pornography, the manufacture of marijuana, and possession of marijuana, reserving his right to appeal. We affirm and write solely to address Verges’s arguments concerning the scope of his consent.

In recounting the evidence, we take the view most in accord with the trial court’s ruling on the motion to suppress. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). Police went to Verges’s home to investigate a tip that marijuana was being grown there. Police went through the trash can in front of the residence and found marijuana residue and a marijuana leaf. The officers approached the defendant, who was standing on a walkway between the driveway and the front door, and advised the defendant of the tip. The defendant told police that his son had grown three small marijuana plants for a school project. Police asked for consent to enter the premises to retrieve the marijuana plants and responded affirmatively when the defendant said “all you’re going to do is collect the marijuana plants.” The defendant agreed to permit the officers to enter.

As the officers were walking toward the kitchen, they observed, in plain view, marijuana plants, sodium vapor lights, and fans in the room across from the kitchen. At about this same time, the defendant grabbed a plastic baggie containing marijuana, a pipe, and some rolling papers from the kitchen table and placed them into a garbage can. One of the officers observed the defendant attempt to conceal some folded papers that were on the kitchen table by pushing them under a newspaper.

At this point, police asked the defendant to sit down and presented him with a Miranda warnings card and a consent to search form. Before signing the consent, the defendant asked to call his wife and his lawyer. Police acquiesced to the request. During the conversation with his wife, and apparently at her request, the defendant asked the officers if they would leave if he asked them to. One of the officers said no.¹ The lawyer the defendant called was a friend and a tax attorney. The attorney spoke with one of the officers and inquired about the officer’s intentions. The officer told the attorney about the marijuana they had observed and indicated that they intended to search for additional contraband. During his conversation with police, the attorney did not indicate that any search or consent was limited to marijuana. Thereafter, the defendant signed the consent form that permitted police to search the entire premises and stated that anything found could be used at a subsequent trial.

After the consent form was signed, one of the officers asked the defendant if there was any marijuana in the home in addition to that already observed; the defendant directed police to some closets. The officer who had earlier observed the defendant attempt to conceal the folded papers retrieved those papers after the consent form was signed. The officer discovered that the papers were child pornography. The officer who seized the papers testified that, based on her training and experience, it was reasonable to believe that drugs or drug paraphernalia were inside the folded papers and that this is what she had expected to find.

With this evidence before it, the trial court denied the motion to suppress, indicating the defendant consented to a search of the premises for drugs and drug-related items. In this appeal, the defendant insists his consent was limited to the retrieval of the marijuana plants and, alternatively, even if the consent was sufficiently broad to permit a search for other contraband, it was revoked with respect to the folded papers by his act of pushing them under the newspaper. These arguments are without merit.

There is no question that “[a]n individual may define as he chooses the scope of a consensual search.” Jackson v. State, 730 So. 2d 364, 365 (Fla. 4th DCA 1999). Further, once given, consent may be withdrawn “at any time for any reason,” Johnson v. State, 995 So. 2d 1011, 1014 (Fla. 1st DCA 2008). A trial court’s determination regarding “the scope of the consent given and whether the search conducted was within the scope of that consent are questions of fact to be determined by the totality of the circumstances.” Davis v. State, 594 So. 2d 264, 266 (Fla. 1992); Johnson v. State, 613 So. 2d 554, 555 (Fla. 4th DCA 1993).

In insisting that his consent was limited to consent for police to retrieve the marijuana plants, the defendant relies heavily on the conversation that took place between himself and police outside of his home and asserts that the evidence before the trial court was to the effect that police represented to his attorney that they intended only to take the marijuana they had already observed. The defendant’s argument ignores the fact that, after the conversation with police outside of the defendant’s home, the police entered with the defendant’s consent and, upon entry, observed marijuana, grow lights, and fans in the room across from the kitchen and a baggie of marijuana, a pipe, and rolling papers on the kitchen table. It was only after the officers observed all of this contraband in plain view that the defendant was presented with the consent to search form, which plainly was not limited in its terms to the retrieval of marijuana plants. Further, while it is true that there was evidence that police represented to the attorney that they intended to take only the marijuana they had observed, there was contrary evidence that police told the attorney they intended to search for more “contraband.” We are constrained to accept this latter view of the evidence. See, e.g., Pagan, 830 So. 2d at 806.

As for the defendant’s contention that his pushing the papers under the newspaper was a withdrawal of any consent, there is no question that non-verbal actions can amount to the withdrawal of consent. See Jackson, 730 So. 2d at 365. Here, though, the defendant pushed the folded papers under the newspaper prior to the defendant being presented with the consent form, prior to police speaking with the defendant’s attorney and prior to the defendant signing the consent form. Thus, despite having earlier hidden the papers from view, thereafter, the defendant consented to a search of his home for, at a minimum, drugs and drug-related items.

Having rejected the defendant’s claims of error in the denial of his motion to suppress, we affirm his convictions.

Affirmed.

HAZOURI and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

1. At the time the defendant asked police whether they would leave, the officers had already observed marijuana plants, grow lights, a baggie of marijuana, and rolling papers in plain view. The police thus had probable cause to arrest the defendant and were entitled to seize the contraband in plain view.

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DANIEL JACOBS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4528

District Court of Appeal of Florida, First District.

Opinion filed June 24, 2009.

An appeal from the Circuit Court for Liberty County, L. Ralph Smith, Jr., Judge.

Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Daniel Jacobs appeals a restitution order arguing that the trial court abused its discretion in ordering him to pay $21,000 in restitution when the State produced no evidence that the tupelo honey which he was charged with fraudulently taking from the victim was worth $1.47 per pound rather than $1.25 per pound. The State concedes that the trial court’s award of restitution was based on speculation and contends the proper remedy is to reverse the order and allow the State to provide supplemental evidence that the proper measure of damages is $1.47 per pound or, in the absence of further evidence, the trial court should enter a restitution order in the amount of $16,252. We agree. Forlano v. State, 964 So. 2d 246 (Fla. 1st DCA 2007); Aboyoun v. State, 842 So. 2d 238, 240 (Fla. 2d DCA 2003).

REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, KAHN, AND VAN NORTWICK, JJ., CONCUR.

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

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MATTHEW MICHAEL RAMSEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4263.

District Court of Appeal of Florida, First District.

Opinion filed June 24, 2009.

An appeal from the Circuit Court for Escambia County, Jan Shackelford, Judge.

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

Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant is serving probation for animal cruelty. A condition of probation is that he pay fines and fees totaling over $5,000. Over the course of his probation, the appellant has paid only a single payment of $300. He is here seeking review of an order finding him in violation of his probation for failing to make monthly payments. He argues that the trial court failed to establish he had the ability to pay the fines and fees required by his probation.

The appellant has an eighth-grade education and no G.E.D. He drives a logging truck, earning approximately $1200 each month. All of his income supports the needs of appellant and his two children.

The State must prove appellant had the ability to pay and that he willfully violated his probation. See Smith v. State, 892 So. 2d 513 (Fla. 1st DCA 2004); see also Davis v. State, 704 So. 2d 681 (Fla. 1st DCA 1997). The trial court found that appellant somehow could have found a way to make the payments, but those findings are speculative. There is no record evidence upon which the trial court could have found that appellant had the ability to make his monthly payments or that he willfully violated his probation.

REVERSED.

WOLF, KAHN, and VAN NORTWICK, JJ., CONCUR.

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

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