Florida Criminal Law Opinions

JUSTIN PENNINGTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D08-4182.

District Court of Appeal of Florida, First District.

Opinion filed April 30, 2010.

An appeal from the Circuit Court for Bay County. Michael C. Overstreet, Judge.

Justin Pennington, pro se.

Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.

LEWIS, J.

Justin Pennington, Appellant, seeks review of an order denying his motion for postconviction relief after an evidentiary hearing. Among other things, he argues that the trial court erred in failing to find ineffective assistance of counsel where his attorney neglected to tell him the maximum sentence he could face when

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discussing a plea offer with him, and the State later withdrew the offer, cutting off his opportunity to accept it. For the reasons explained below, the trial court’s order is inadequate to show that the motion was properly denied.¹ Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

Appellant was sentenced to community control for burglary of an occupied structure. Later, the State filed a third amended affidavit charging him with violating community control by failing to remain confined to his approved residence and by committing several new law violations: aggravated assault; possession of a firearm by convicted felon; felony fleeing or attempting to elude a law enforcement officer; possession of a controlled substance; possession of a legend drug without a prescription (four counts); resisting an officer without

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violence; and petit theft. After an additional amendment to the affidavit,² Appellant pled nolo contendere to violating community control, aggravated assault, felony fleeing or attempting to elude a law enforcement officer, possession of a controlled substance, possession of a legend drug without a prescription, and resisting an officer without violence. The trial court accepted the plea, revoked community control, and sentenced Appellant to fifteen years in prison for burglary of an occupied structure. For the remaining offenses, Appellant was sentenced to fifteen years of probation to follow his term of imprisonment. He did not appeal.

Thereafter, he timely filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing that his trial counsel rendered ineffective assistance in advising him not to accept a favorable plea offer from the State. According to Appellant’s motion and its attachments, the State offered to support concurrent sentences of five years’ imprisonment followed by two years’ probation in exchange for nolo contendere pleas as to violation of community control, aggravated assault, fleeing or attempting to elude a law enforcement officer, possession of a controlled substance, possession of new or legend drug,

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and resisting an officer without violence. The trial court held an evidentiary hearing on Appellant’s claim.

Evidence submitted at the hearing confirmed that the State had made such an offer and that Appellant and his counsel had discussed the offer at arraignment. When asked whether he had ever advised Appellant of the maximum sentence he could face as a result of all the charges, counsel testified that he would have discussed “whatever was in the plea agreement.” He admitted that the proposed plea agreement did not provide the statutory maximum for the violation of community control. The plea agreement itself reveals that the State provided the five-year statutory maximum on three offenses (aggravated assault, fleeing and eluding, and possession of a controlled substance) but neglected to indicate the statutory maximum for the violation of community control, possession of a new or legend drug, and resisting an officer without arrest. Thus, the plea agreement failed to mention that the total penalty Appellant could face based on the statutory maximum for each of the offenses listed was thirty-one years and sixty days’ imprisonment.³

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Based on counsel’s testimony that the information he shared about the statutory maximum was “whatever was in the plea agreement,” it appears that he failed to advise Appellant that his total exposure was thirty-one years, and not just the fifteen years listed on the proposed agreement. Notably, the thirty-one-year maximum includes only the offenses the State agreed to pursue if Appellant accepted the plea offer, not the remaining offenses that are listed on the third amended affidavit but not on the plea offer. Thus, Appellant was facing a maximum sentence of at least thirty-one years’ imprisonment when presented with an offer of five years’ imprisonment followed by two years of probation.

Appellant did not accept the offer at arraignment, and the State withdrew it fifteen days later. Counsel testified that Appellant was “agitated” at arraignment and did not want to accept the State’s offer. Counsel further testified that he was “going back and forth” with Appellant about it and that Appellant “got a little nervous about his attitude” as the arraignments proceeded. Counsel explained that he then told Appellant to “just wait and see what the evidence is all about.” Appellant testified that trial counsel advised him to reject the offer and that he did not discuss the statutory maximum with him until a year after arraignment. He

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further testified that he did not know the statutory maximum at arraignment but that he was planning to accept the offer until trial counsel advised him against it.

The trial court denied Appellant’s postconviction motion, finding that it was within the broad range of reasonably competent performance for counsel to advise Appellant not to accept the offer until he could further investigate the case. The trial court also accepted counsel’s testimony that Appellant did not want to accept the State’s offer. Further, the trial court found that Appellant had not met his burden to show “that counsel misinformed him concerning the sentence he faced.” Appellant now seeks review of the denial of his motion.

II. Analysis A. Standards Governing Claims of Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is a mixed question of law and fact. Stephens v. State, 748 So. 2d 1028, 1032 (Fla. 1999). While appellate courts must give deference to trial courts’ factual findings, they must review trial courts’ application of law to facts de novo to ensure uniformity in determining what constitutes deficient performance. Id. at 1033-34. Factual findings are reviewed for competent, substantial evidence. Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997). Additionally, the defendant has the burden to prove a claim of ineffective assistance of counsel at an evidentiary hearing on a Rule 3.850 motion. Williams v.

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State, 974 So. 2d 405, 407 (Fla. 2d DCA 2007). Once the defendant presents evidence to support the claim, however, the State has a burden to present contradictory evidence. Id.

To prove a claim for ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient and that the deficiency was prejudicial to the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficiency prong requires the defendant to Aestablish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards.” Id. at 688. There is Aa strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In determining whether an attorney’s performance was deficient, courts should make “every effort . . . 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.” Evans v. State, 975 So. 2d 1035, 1043 (Fla. 2007). The prejudice prong requires the defendant to establish Aa reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. When the defendant fails to establish either Strickland prong, it is unnecessary to consider the other. Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001).

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B. The Performance Prong of Strickland

The specific deficiency at issue in this case is trial counsel’s failure to advise his client of the statutory maximum when discussing a plea offer. Appellant correctly notes that an attorney must advise a client of the statutory maximum before advising the client to reject or accept a plea offer. See Williams v. State, 924 So. 2d 897, 898 (Fla. 1st DCA 2006) (finding an ineffective assistance of counsel claim facially sufficient where the defendant alleged that counsel advised him to reject a plea offer without first advising him of the statutory maximum); Tidwell v. State, 844 So. 2d 701, 702 (Fla. 1st DCA 2003) (same); Fla. R. Crim. P. 3.171(c)(2) (providing that defense counsel shall advise the defendant of all plea offers and “all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant”). In at least two cases, Williams v. State, 924 So. 2d at 898, and Tidwell v. State, 844 So. 2d at 702, this Court has required an evidentiary hearing where the defendants alleged (1) that their attorneys advised them to reject plea offers without first informing them of the maximum possible sentences they faced, (2) that they would have accepted the plea offers had they been advised of the statutory maximum, and (3) that they ultimately received harsher sentences than the ones proposed in the plea offers.

In Morgan v. State, 991 So. 2d 835 (Fla. 2008), the Florida Supreme Court

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confirmed that ineffective assistance of counsel claims based on advice to reject a plea offer are cognizable. The Morgan court also confirmed that defendants are entitled to relief on such claims when they allege and prove three factors: “(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed.”⁴ 991 So. 2d at 839-40. The Morgan decision is consistent with the supreme court’s earlier recognition, in Cottle v. State, 733 So. 2d 963, 969 (Fla. 1999), that “an inherent prejudice results from a defendant’s inability, due to counsel’s neglect, to make an informed decision whether to plea bargain.” See Morgan, 991 So. 2d at 839-40. This language reiterates the established principle that it is a client’s, not an attorney’s, decision to either accept or reject a plea offer. See Cottle, 733 So. 2d at 969.

Here, the trial court found that Appellant had “not shown that counsel misinformed him concerning the sentence he faced.” This finding does not address Appellant’s argument that his counsel’s ineffective assistance was based in part on his failure to advise him of the statutory maximum. It also does not take into account the shifting of the burden of proof once a postconviction defendant

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presents evidence to support a Rule 3.850 claim. Appellant did not allege that counsel gave him wrong information; rather, he alleged that counsel neglected to provide information necessary to full consideration of the plea offer. Appellant presented evidence to support his claim that counsel did not inform him of the statutory maximum in the form of his own testimony, trial counsel’s testimony, and the plea form. The State’s evidence did not refute Appellant’s evidence that counsel neglected to tell him the statutory maximum for at least the violation of community control and the two misdemeanors at issue in the third amended affidavit.

At the hearing, counsel explained why he did not advise Appellant to accept the offer at arraignment. However, he did not address why he failed to inform Appellant of the full statutory maximum when assisting him in making the decision of whether to accept the plea offer. This information was readily accessible to counsel and pertinent to Appellant’s decision.

Our precedent requires attorneys to inform their clients of the maximum sentences they may face when advising them as to whether to reject a plea offer. Although counsel in the instant case was advising his client to leave an offer open, rather than to reject it outright, knowledge of the statutory maximum was vital to an informed decision as to whether to accept the offer or leave it open, thus risking its withdrawal. Because Appellant’s evidence that counsel did not inform him of

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the statutory maximum for violating his community control sentence was unrefuted, we must reject the trial court’s finding that Appellant did not meet his burden on this issue. Because our precedent establishes that such information is vital to an informed decision regarding a plea offer, we also must reject the trial court’s conclusion that trial counsel performed reasonably when discussing the offer with Appellant.

Our conclusion that counsel’s performance was deficient does not end the inquiry, however. Appellant also must establish that he was prejudiced by this deficiency. See Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001) (observing that Strickland requires a defendant to establish both prongs to prevail on a claim of ineffective assistance of counsel).

C. The Prejudice Prong of Strickland

As noted above, when an ineffective assistance of counsel claim arises out of a defendant’s failure to accept a plea offer, the prejudice prong requires a showing that, but for counsel’s deficient performance, the defendant would have accepted the offer, which would have resulted in a lesser sentence than what was ultimately imposed. Morgan v. State, 991 So. 2d 835, 839-40 (Fla. 2008). The standard of proof is a “reasonable probability.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Thus, to demonstrate prejudice under Morgan and Strickland, Appellant needed to show a reasonable probability that but for trial counsel’s failure to advise

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him of the statutory maximum, he would have accepted the State’s offer, which involved a lesser sentence than the one he ultimately received. See Morgan, 991 So. 2d at 839-40; Strickland, 466 U.S. at 694.

Here, the trial court found that Appellant had not established prejudice because he told counsel at arraignment that he did not want to accept the State’s offer. While the trial court was entitled to accept counsel’s testimony that Appellant did not want to accept the offer, this testimony does not settle the issue. The key issue is whether there is a reasonable probability that Appellant would have accepted the offer had he been informed of the statutory maximum. Appellant’s desire not to accept the offer when he was inadequately informed of the risk of not accepting it is unremarkable. The trial court’s order does not specifically address whether Appellant would have left the offer open after arraignment had he been advised of the statutory maximum. Consequently, it inadequately addressed the prejudice prong.

III. Conclusion

We conclude that the trial court erred as a matter of law in finding counsel’s failure to inform Appellant of the statutory maximum reasonable. Further, we conclude that the trial court failed to resolve conflicts in the evidence with respect to the legal standard governing the prejudice prong in the instant case. Accordingly, we reverse and remand for additional findings on the prejudice

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prong, vacation of the order appealed from, and entry of a new order consistent with this opinion.

REVERSED and REMANDED with instructions.

VAN NORTWICK and ROWE, JJ., CONCUR.

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

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Notes:

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Courtesy of David Edelstein

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JAMES EARL JACKSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D09-1380.

District Court of Appeal of Florida, Fifth District.

Opinion filed April 30, 2010.

Appeal from the Circuit Court for Marion County, Edward L. Scott, Judge.

James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

TORPY, J.

The sole issue framed for our review is whether the trial court erred in concluding that there existed an objectively reasonable basis to stop the vehicle in which Appellant was a passenger. Our disposition of this issue turns on whether police officers had “reasonable suspicion” to believe that the car contained a person who was the subject

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of outstanding arrest warrants, justifying the detention. Concluding that reasonable suspicion did support the stop, we affirm.

In early July 2008, Donald Evans, who had numerous outstanding arrest warrants, eluded Marion County deputies following a high speed pursuit. A week later, the Marion County Sheriff’s Office received an anonymous tip through “crime stoppers” that Evans was staying at a house near Vanguard High School. Sheriff’s Deputy Collins then contacted Courtney Wilson, Evans’ bail bondsman, who Collins knew also desired to apprehend Evans. Wilson related that he had driven by the same house earlier in the day and “thought he had seen [Evans] out in front of the house.” Wilson agreed to meet officers in the area of the house to assist them in attempting to find Evans. Once Wilson arrived in the area, it was agreed that he would watch the house and notify officers if he saw Evans.

Around midnight, Wilson saw a car pull up and stop at the house. Several people congregated around the car, then got in it and hurriedly drove away. Deputy Collins testified that Wilson informed him that Evans was a passenger in the car. Wilson denied telling Deputy Collins that Evans was in the car, but acknowledged that he informed Sheriff’s deputies that the car was leaving at an accelerated rate of speed and that they should stop the car. In any event, the deputies stopped the car and ordered the occupants out at gunpoint. Evans was not among the occupants.¹ Appellant was one of the occupants in the car. During the stop, deputies located a gun beneath Appellant’s seat and arrested him for possession of a firearm by a convicted

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felon.² The trial court did not specifically resolve the apparent conflict in the testimony regarding what Wilson had told the deputies. It did find, however, that the stop was not the product of “whim, caprice or desire to harass all drivers leaving Evans’ house.” It concluded that, under the totality of the circumstances, the police officers acted reasonably in stopping the vehicle. We agree.

Reasonable suspicion is an amorphous legal concept. Ornelas v. United States, 517 U.S. 690, 695-96 (1996). The courts define it not by what it is, but by what it isn’t. It’s something more than a “mere hunch,” but “considerably less” than a preponderance of the evidence. Wallace v. State, 8 So. 3d 492, 494-95 (Fla. 5th DCA 2009) (quoting Ornelas, 517 U.S. at 695-96). A “mere hunch” is a suspicion based on bare intuition alone without supporting facts. Id.

Whether Wilson had a reasonable belief that Evans was in the car is not the question here. The question is whether the deputies had a reasonable belief that Evans was in the car. Under these circumstances, we conclude that they did. The deputies were looking for Evans, a wanted felon. They believed he might be found at a particular house, based on information supplied by both an anonymous tip and Wilson. They set up surveillance for the express purpose of locating him. Wilson, who was familiar with Evans, agreed to watch for him and notify the deputies of Evans’ presence. When Wilson advised them to stop a particular car that was leaving the area hurriedly, it was reasonable for the deputies to believe that Evans was in the car, whether Wilson actually saw Evans or not.

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AFFIRMED.

EVANDER, J., concurs.

COHEN, J., dissents with opinion.

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Notes:

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COHEN, J., dissenting.

I would reverse the trial court’s order denying Appellant’s dispositive motion to suppress because the deputies lacked a well-founded suspicion of criminal activity to justify the stop.

The difficulty with this case stems from the trial court’s failure to make a finding as to whose testimony it found believable. What we are left with are the findings made in the written order denying the motion to dismiss, which reflect that while Courtney Wilson might have seen Donald Evans at the home earlier in the day, he did not see him at the home while he conducted surveillance. Wilson merely observed a small red sedan stop at the home where Evans was believed to be staying. There was no evidence Evans was in the sedan as it approached the home, and although he observed people congregate around the sedan, Wilson “could not tell if anyone got in the vehicle but did see the vehicle leave the residence at a high rate of speed.” Based upon this scant amount of information, Wilson communicated with waiting deputies to stop the sedan.

Rather than address the conflicting testimony of Deputy Collins and Wilson, the trial court relied upon the fact that law enforcement had received an anonymous tip that placed Evans in the area, he had recently eluded the deputies, had outstanding arrest

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warrants, and a car was seen leaving the house at a high rate of speed.³ The majority believes this sufficient to justify the stop of the vehicle. I disagree.

The trial court relied upon State v. Lopez, 923 So. 2d 584 (Fla. 5th DCA 2006), to justify the stop of the vehicle. When reviewing a trial court’s ruling on a motion to suppress, this court employs a mixed standard of review. The trial court’s findings of historical fact are accorded a presumption of correctness, unless they are not supported by competent, substantial evidence. Connor v. State, 803 So. 2d 598, 608 (Fla. 2001); McMaster v. State, 780 So. 2d 1026, 1028 (Fla. 5th DCA 2001). However, the trial court’s application of the law or its ruling on issues of mixed questions of law and fact are reviewed de novo. Id. An officer’s mere suspicion or hunch that criminal activity is afoot is insufficient to uphold an investigatory stop. Lopez, 923 So. 2d at 584. Rather, the police must have a well-founded suspicion that the person committed, was committing, or was about to commit a crime. Id. at 586. This suspicion must be rooted in the factual circumstances observed by the officer and interpreted in light of the officer’s knowledge. Id. at 587; McMaster, 780 So. 2d at 1029. It is the circumstances, viewed in their totality, that determine whether an investigatory stop passes constitutional muster. Lopez, 923 So. 2d at 587.

In Lopez, an officer received an email from Lopez’s probation officer that Lopez was violating his community control by driving. The probation officer gave the officer Lopez’s address and advised that Lopez was a painter who left for work early in the morning. After verifying that Lopez’s license was suspended and obtaining Lopez’s photograph, the officer drove by the residence and observed a Jeep, with a ladder

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attached, in the driveway. The Jeep was registered to a woman with the same address as Lopez. Although the officer did not see who got into the Jeep, he observed it leave the house and stop at an intersection with the turn signal activated. Despite having the opportunity to turn, the Jeep remained at the intersection, allowing the officer to drive by and observe a man driving. Upon seeing the police car, the driver of the Jeep abruptly turned and sped back to Lopez’s address. The Jeep was subsequently stopped and Lopez was confirmed to be the driver.

The trial court granted Lopez’s motion to suppress, finding that the officer did not have a reasonable suspicion to stop the Jeep because it was registered to a woman, he did not see who was driving, and no traffic laws were violated. This court reversed, finding that the totality of the circumstances provided reasonable suspicion that Lopez was driving the Jeep, thereby violating his community control.

In the case at bar, the house was not Evans’ known or listed address. Evans was not seen at the house prior to the car pulling up and stopping. There were no distinguishing characteristics of the car that associated it with Evans, unlike Lopez where the truck was consistent with Lopez’s occupation as a painter. Neither Evans, nor anyone matching his description, was seen entering or exiting the car. In fact, the deputies had no information regarding the driver or passengers in the car. The lack of any information corroborating the anonymous tip, facts linking Evans with the house or the car, or observations of criminal activity distinguishes this case from Lopez.

At best, the deputies stopped the car based on an unsubstantiated hunch, similar to the officers in Tinson v. State, 650 So. 2d 189 (Fla. 2d DCA 1995). Accordingly, I would reverse.

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Notes:

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Courtesy of David Edelstein

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DIEGO RODRIGO PEREA, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-2434.

District Court of Appeal of Florida, Fifth District.

Opinion filed April 30, 2010.

Appeal from the Circuit Court for Orange County, Alicia Latimore, Judge.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

PALMER, J.

Diego Perea (defendant) appeals his judgments and sentences. We affirm as to all counts except Count III, which requires remand for the entry of a corrected judgment and resentencing.

The defendant was charged with committing the offenses of sexual battery (Count I), lewd or lascivious exhibition (Count II), lewd or lascivious molestation (Count III), showing obscene material to a minor (Count IV), and lewd or lascivious conduct (Count V). The information alleged that the crimes occurred between February, 2004, and August, 2006.

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The matter proceeded to trial before a jury. The jury found the defendant guilty as charged. The trial court entered judgments in accordance with the jury’s verdicts and sentenced the defendant to a term of life imprisonment on Count I, 15 years’ imprisonment on Count II, 25 years’ imprisonment (with a minimum mandatory of 25 years) on Count III, 5 years’ imprisonment on Count IV, and 15 years’ imprisonment on Count V. This appeal timely followed.

The defendant first argues that he is entitled to receive a new trial because the trial court erred in overruling his objection to comments made during the prosecutor’s closing argument. We disagree.

Defense counsel’s closing argument focused on the theory that the entire case “boils down to the credibility” of the victim. Counsel noted that initially the victim “said it never happened” at least three times. Counsel then queried: “Well, why would a child make up such crazy things about something so important?” Defense counsel further highlighted the fact that the victim’s mother testified that the victim had once falsely accused the mother of physically abusing her.

On rebuttal, the prosecutor responded to defense counsel’s attacks on the victim’s credibility, arguing:

[Defense counsel] has given you lots of things to speculate about on how perhaps [the victim] came up with these stories, as she calls them. Well, if she was coming up with stories, first of all, why was she coming up with stories? There has been no evidence presented about any reasons why [the victim] made this up, none. There is no indications about family problems.

Defense counsel objected to this argument by stating: “Objection, improper shifting of the burden.” The trial court overruled the objection.

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The defendant maintains that the trial court reversibly erred in overruling defense counsel’s objection because the prosecutor’s comments improperly invited the jury to shift the burden of proof to the defendant based on the defendant’s failure to present evidence demonstrating the victim’s reasons for offering false testimony. We disagree.

The prosecutor’s comments did not improperly shift any burden of proof to the defendant. The comments did not imply to the jury that the defendant had to prove anything in order to establish his innocence, nor did the comments tell the jury that the defendant had a burden to prove anything. Instead, the prosecutor made a permissible comment that the evidence at trial (as submitted by the State) did not suggest that the victim had any reason to lie. Such comment was a reasonable response to defense counsel’s comments indicating that the victim had lied when she testified about the defendant’s crimes. See Stancle v. State, 854 So. 2d 228 (Fla. 4th DCA 2003)(holding that prosecutor’s statement during closing argument, in prosecution for possession of a firearm by a convicted felon and carrying a concealed weapon, to effect that no evidence indicated that gun had been where it was found for any other reason than because defendant had dropped it there and that common sense indicated that defendant had dropped it there, was permissible comment on evidence and fair reply to defense implication that police officer planted gun, and did not improperly shift burden of proof to defendant).

The defendant next argues that the trial court erred in sentencing him on Count III, the lewd molestation charge, to a 25-year mandatory minimum pursuant to the Jessica Lunsford Act. The State concedes error on this point.

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The parties agree that the Jessica Lunsford Act became effective on September 1, 2005. The State explains that, prior to the enactment of said statute, the crime of lewd molestation was a first degree felony; however, once the statute was enacted the crime of lewd molestation became a life felony subject to a penalty of life imprisonment or a term of not less than 25 years’ imprisonment followed by life probation. See §800.04(5)(b), Fla. Stat. (2005). The State concedes that, on Count III, the defendant was charged and found guilty of committing the crime of lewd molestation occurring between February 1, 2004, and August 25, 2006. The State further concedes that, under Florida law, where the charged dates of an offense straddle the date when a sentencing statute becomes effective, the defendant is entitled to be sentenced under the more lenient of the two sentencing statutes. See Cairl v. State, 833 So. 2d 312 (Fla. 2d DCA 2003)(en banc)(holding that a defendant should be sentenced under the more lenient version of the sentencing guidelines when sentencing laws change during a period in which a defendant is alleged to have committed an offense). The parties agree that, as such, the trial court erred in adjudicating the defendant under the Jessica Lunsford Act, and that the defendant is entitled to have the judgment corrected on Count III to reflect an adjudication for a first-degree felony and to be resentenced on that charge accordingly.

We affirm the defendant’s judgments and sentences on all counts except Count III. As to Count III, the judgment must be corrected to reflect the conviction of a first degree felony and the trial court must resentence the defendant on that conviction.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.

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ANDREW MANSURI-MASON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-3449.

District Court of Appeal of Florida, Second District.

Opinion filed April 30, 2010.

Appeal from the Circuit Court for Pinellas County; Thane B. Covert, Judge.

Andrew Mansuri-Mason, pro se.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

ORDER ON MOTION FOR REVIEW OF ORDER DISMISSING MOTION FOR DEFENDANT’S SUPERSEDEAS BOND

WALLACE, Judge.

Andrew Mansuri-Mason seeks review of the trial court’s order entered January 4, 2010, that dismissed his motion for order setting supersedeas bond filed in

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accordance with Florida Rule of Criminal Procedure 3.691.¹ We review the order under Florida Rule of Appellate Procedure 9.140(h) and reverse and remand for the trial court to review the motion on its merits.

Following his conviction, sentencing, and transfer to prison, Mansuri-Mason filed a motion requesting posttrial release in the trial court. The trial court dismissed the motion, reasoning that because the record had been transmitted to the appellate court, the trial court was without concurrent jurisdiction to address the motion. The court based the dismissal on Taylor v. State, 401 So. 2d 811, 812 (Fla. 5th DCA 1981). In Taylor, the Fifth District relied on rule 9.600(a)² to hold that the trial court’s concurrent jurisdiction terminates when the record is transmitted to the appellate court. The trial court also cited to Peacock v. State, 798 So. 2d 909, 911 n.1 (Fla. 5th DCA 2001), in which the court in a footnote recited the ruling of Taylor.

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However, rule 9.600(d), which became effective on January 1, 1997, see Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773, 777, 830 (Fla. 1996), supersedes the principle stated by the court in Taylor in 1981. Rule 9.600(d) provides that in criminal appeals, “[t]he lower tribunal shall retain jurisdiction to consider motions pursuant to Florida Rules of Criminal Procedure 3.800(b)(2) and in conjunction with post-trial release pursuant to rule 9.140(h).” To the extent that posttrial release is properly subsumed under the broad category of “any . . . procedural matter” over which the trial court retains concurrent jurisdiction before transmission of the record to the appeals court, see rule 9.600(a), the subsequent amendment specifically addressing posttrial release motions was intended to permit the trial court to entertain such motions without regard to the procedural stage of the appeal. See Fla. R. App. P. 9.600(d) (Comm. Notes, 1996 Amend.) (“New rule 9.600(d) recognizes the jurisdiction of the trial courts, while an appeal is pending, to rule on motions for post-trial release, as authorized by rule 9.140(g) [now rule 9.140(h).]“). The State agrees that the trial court has jurisdiction to rule on the motion.

Therefore, we reverse the trial court’s Order Dismissing Defendant’s Motion for Supersedeas Bond and remand the matter for the trial court to address the appellant’s Motion for Order Setting Supersedeas Bond on its merits.

Reversed and remanded with instructions.

DAVIS and MORRIS, JJ., Concur.

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

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Notes:

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ANGELA CARMEN BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-259.

District Court of Appeal of Florida, Second District.

Opinion filed April 30, 2010.

Appeal from the Circuit Court for Charlotte County, J. Frank Porter, Judge.

James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Chief Judge.

The State charged Angela Carmen Brown with several offenses related to a multi-car collision. Among them was driving under the influence with damage to the property of another, specifically, a 1997 Chevy truck that Ms. Brown was driving. But the State did not produce any evidence of the truck’s ownership. Ms. Brown moved for

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a judgment of acquittal on this basis, which was denied. The jury subsequently found her guilty. Ms. Brown appealed. Because the State did not prove the existence of the charged offense, we conclude that the trial court erred in denying the motion for judgment of acquittal on this charge and reverse.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) (citing Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan, 830 So. 2d at 803 (citing Banks v. State, 732 So. 2d 1065 (Fla. 1999)).

To determine whether the State presented sufficient evidence for the jury to find that Ms. Brown was driving under the influence with damage to the property of another, we review the statute defining the offense:

(3) Any person:

(a) Who is in violation of subsection (1) [by driving or being in actual physical control of a vehicle while under the influence of drugs or alcohol to a certain degree];

(b) Who operates a vehicle; and

(c) Who, by reason of such operation, causes or contributes to causing:

1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 316.193(3), Fla. Stat. (2007).

Subsection (3)(c)(1) requires the State to prove that the damaged property belonged to someone other than the defendant. But the State provided no evidence that someone other than Ms. Brown owned the 1997 Chevy truck. Without evidence of this element, no rational trier of fact could have found that the State had proven the

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existence of the charged offense. Because the trial court should have granted the motion for judgment of acquittal, we reverse and remand for the trial court to vacate the conviction and sentence for driving under the influence with damage to the 1997 Chevy truck. We affirm Ms. Brown’s other convictions and sentences without comment.

Affirmed in part, reversed in part, and remanded.

DAVIS and LaROSE, JJ., Concur.

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ANDRE ISAIAH DUNBAR, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-4214.

District Court of Appeal of Florida, Fifth District.

Opinion filed April 30, 2010.

Appeal from the Circuit Court for Orange County, A. Thomas Mihok, Judge.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Andre I. Dunbar, Milton, pro se.

No Appearance for Appellee.

PER CURIAM.

In this Anders appeal,¹ appellate counsel advised this Court that in good faith, he could not argue that reversible error occurred in the trial court. Pursuant to the constitutional mandate of Anders, and the instruction of the Florida Supreme Court in State v. Causey, 503 So. 2d 321 (Fla. 1987), we undertook an independent review of

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the record. Although we affirm the convictions and sentences, our review revealed a sentencing error that was not preserved by objection at sentencing or by motion to correct sentence. As a result, the issue is not preserved for appellate review and we are constrained to affirm.

Andre Dunbar was convicted of two counts of attempted second-degree murder with a firearm, and two counts of robbery with a firearm. The jury also made a special finding that Dunbar discharged the firearm. On each count, Dunbar was sentenced to forty years imprisonment.² Attempted second-degree murder is a second-degree felony. See §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2009). If, as in the instant case, the offense is committed with a firearm, the crime is reclassified to a first-degree felony pursuant to section 775.087(1)(b), subject to an enhanced sentence not to exceed thirty years. See Miller v. State, 460 So. 2d 373, 374 (Fla. 1984); see also § 775.082(3)(b), Fla. Stat. (2009).

The concurrent forty-year sentences that Dunbar received for his convictions of attempted second-degree murder are clearly in excess of the statutory maximum. However, sentencing errors that occur after the effective date of the amendments to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on the face of the record, cannot be reviewed by an appellate court if, as here, the issue was not raised at sentencing or in a timely post-sentencing proceeding pursuant to rule 3.800. See generally Maddox v. State, 760 So. 2d 89 (Fla. 2000); Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA 2002). Accordingly, we affirm Dunbar’s convictions and sentences without prejudice to his right to seek appropriate

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and timely postconviction relief. Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005); Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002).

AFFIRMED.

ORFINGER, TORPY and EVANDER, JJ., concur.

—————

Notes:

—————

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DAYNE R. BOOTHE, Petitioner,
v.
STATE OF FLORIDA, Respondent.

Case No. 5D09-4527.

District Court of Appeal of Florida, Fifth District.

Opinion filed April 30, 2010.

Petition for a Belated Appeal, A Case of Original Jurisdiction.

Dayne R. Boothe, Madison, pro se.

Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

In April 2007, petitioner Dayne Boothe was found guilty of attempted second-degree murder. The jury made express findings that Boothe discharged a firearm and that his victim suffered great bodily harm. Boothe is seeking belated appeals from two separate orders of the trial court. After due consideration, we grant one of Boothe’s requests for belated appeal and affirm his sentence.

First, we deny Boothe’s January 6, 2010, “Petition for Belated Appeal,” which seeks review of the trial court’s order denying his August 3, 2009, motion filed pursuant

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to Florida Rule of Criminal Procedure 3.850. Boothe is not entitled to a belated appeal because he failed to demonstrate that his failure to file a timely appeal was due to state action. See Izquierdo v. State, 935 So. 2d 1243, 1245 (Fla. 5th DCA 2006).

Second, we treat Boothe’s December 17, 2009, “Motion for Postconviction Relief or Writ of Habeas Corpus 3.850(h),” as a petition for belated appeal because he seeks belated review of the trial court’s order of resentencing. We also note that rule 3.850(h) is not an appropriate avenue for seeking a belated appeal. Fla. R. App. P. 9.141(c). Having so ruled, we affirm the order of resentencing on the merits. It is by no means certain that Boothe was entitled to have his original sentence reduced at all, see sections 775.087(2)(a)3., (2)(b), Florida Statutes, and he clearly is not entitled to any further reduction. See Booth v. State, 18 So. 3d 1142 (Fla. 5th DCA 2009); Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008), rev. granted, 26 So. 3d 582 (Fla. 2009).

Accordingly, we deny the January 6, 2010, petition for belated appeal; grant the December 17, 2009, petition for belated appeal; and affirm the trial court’s resentencing order on the merits.

ORIGINAL PETITION DENIED; PETITION AS TO RESENTENCING GRANTED; SENTENCE AFFIRMED.

GRIFFIN, TORPY, and COHEN, JJ., concur.

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FREDERICK I. WATERFIELD JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-4048.

District Court of Appeal of Florida, Second District.

Opinion filed April 30, 2010.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Charlotte County; Alane C. Laboda, Judge.

Frederick L. Waterfield Jr., pro se.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

In 1983 Frederick I. Waterfield Jr. was charged in Indian River County with a series of murders, kidnappings, and rapes. Reacting to pretrial publicity, the Circuit Court for the Nineteenth Judicial Circuit transferred some charges to the Fifth Judicial Circuit Court, Lake County. One homicide charge was transferred to the Twentieth

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Judicial Circuit, Charlotte County, where Waterfield was convicted of the lesser-included offense of manslaughter and sentenced to fifteen years in prison.

Over twenty-three years after his conviction and sentence were affirmed by this court, see Waterfield v. State, 491 So. 2d 562 (Fla. 2d DCA 1986) (table decision), Waterfield filed a motion for postconviction relief in the Charlotte County court, contending that the court never acquired jurisdiction over the murder prosecution because the Indian River County court’s transfer of his records was incomplete or improper. Rather than reviewing Waterfield’s motion, the postconviction court erroneously transferred it to the Indian River County court, reasoning its own jurisdiction was merely temporary because all of Waterfield’s files and records had been sent back to Indian River County. But when venue has been transferred for trial and imposition of a sentence, the transferee court remains the court in which collateral postconviction matters are to be heard. See State v. Overton, 970 So. 2d 359 (Fla. 3d DCA 2007); Wasley v. State, 254 So. 2d 243 (Fla. 4th DCA 1971).

If the postconviction court had reviewed Waterfield’s motion under Florida Rule of Criminal Procedure 3.850, it would have found it both untimely and successive. See Waterfield v. State, 1 So. 3d 235, 237-38 (Fla. 4th DCA 2008). But because the postconviction court erroneously transferred Waterfield’s motion instead of considering it on the merits, we must reverse and remand. On remand, the postconviction court shall vacate the transfer order and enter an order disposing of Waterfield’s motion on the merits.

Reversed and remanded with instructions.

DAVIS and WALLACE, JJ., Concur.

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MICAH LOUIS NELSON, Appellant,
v.
STATE OF FLORIDA, Appellee.
MICAH LOUIS NELSON, Petitioner,
v.
WALTER A. MCNEIL, etc., Respondent.

No. SC08-589.

No. SC08-1965.

Supreme Court of Florida.

April 29, 2010.

An Appeal from the Circuit Court in and for Polk County, J. Michael Hunter, Judge — Case No. CF97-06806A-XX And an Original Proceeding — Habeas Corpus.

Bill Jennings, Capital Collateral Regional Counsel, Ali Andrew Shakoor, Richard E. Kiley, and James V. Viggiano, Jr., CCR Counsel Middle Region, Tampa, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

Micah Louis Nelson appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the postconviction court’s order and deny the petition for a writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

Appellant, Micah Louis Nelson, was convicted of and sentenced to death for the first-degree murder of Virginia Brace.¹ The facts were set forth in Nelson v. State, 850 So. 2d 514 (Fla. 2003), and are provided in relevant part below:

The evidence presented at trial indicated that during the early morning hours of November 17, 1997, Micah Louis Nelson (Nelson) entered Virginia Brace’s (Brace) home by removing the screen and climbing through the bathroom window. Seventy-eight-year-old Brace had been in bed and her glasses and hearing aid were on her bedroom dresser. Nelson sexually assaulted Brace, took her car keys from her purse, and then placed her in the trunk of her own car. He drove around with Brace in the trunk for a period of hours and eventually drove to an orange grove, where he apparently intended to leave her. However, the car became stuck in soft sand and had to be pulled out with the assistance of machinery at about 9:30 a.m. on November 17, 1997.

Steven Weir, the heavy equipment operator who pulled the car out of the sand, felt a thud when he put his hand on the car’s trunk. Nelson advised him that there was a dog in the trunk and then proceeded to turn up the car radio. The heavy equipment operator observed Nelson to be nervous and pacing, and Nelson would not look him in the eye when they spoke. Nelson sped off as soon as the car was lifted out of the sand and drove to another orange grove where he let Brace out of the trunk and walked her or dragged her 175 feet into the grove. With Brace on the ground, Nelson attempted to strangle her with his bare hands, emptied the contents of a fire extinguisher into her mouth, and forced a tire iron into her mouth and through the back of her head.

At 3:30 p.m. on November 17, 1997, Joann Lambert noticed an unfamiliar car parked on the road behind her house. The car was still parked in the same location when it began to get dark that evening so she called the Highlands County Sheriff’s Department. When Deputy Vance Pope arrived to investigate the car, he found Nelson asleep in the back seat. Deputy Pope also noticed an insurance card on the floorboard with the name Virginia Brace. Nelson told Pope that he borrowed the car from a family friend. Pope could not verify the vehicle’s registration because the DMV computer was not working at that time. Pope would not allow Nelson to drive because he did not have a driver’s license, so he gave Nelson a ride to Nelson’s sister’s house. Later that evening, Pope heard the name Virginia Brace over the police radio, which prompted him to contact Sergeant Hofstra regarding his earlier contact with Nelson. Police recovered the car where Deputy Pope had last seen it, and it was identified as belonging to Brace.

At 11 p.m. on November 17, 1997, Deputy Pope returned to the house where he previously dropped off Nelson. Nelson agreed to be questioned by the Avon Park Police. After a series of interrogations on November 18, 1997, and November 19, 1997, Nelson showed the police where Brace’s body was located and he confessed to killing her.

Nelson told police that some time after midnight, he broke into Brace’s home through her bathroom window. He stated that he entered her bedroom and she woke up and started screaming. He said that they had a struggle on her bed, after which he took her car keys and placed her in the trunk of her car. Nelson stated that he drove around in the car for hours and that at one point he stopped to get gas. He then drove to an orange grove where he was going to kill Brace, but the car became stuck in the sand and he required help to extricate the car from the sand. He then took Brace to another orange grove where he and Brace walked into the grove. He stated that he started to choke Brace on the ground, but she did not pass out, so he sprayed a fire extinguisher into her mouth, which made her cough. He stated that he then took the tire iron and stuck it into her mouth until it came through the back of her neck and into the ground. He stated that Brace gasped for air when he pushed the tire iron into her mouth. Nelson denied having any sexual contact with Brace.

At trial, Dr. Melamud, the medical examiner, testified that the condition of Brace’s body corresponded with her being dead for two days before she was found. He testified that Brace’s injuries were consistent with asphyxiation, an object being forced into her mouth through the back of her neck, such as a tire iron, and a fire extinguisher being discharged into her mouth. He stated that she also suffered a crushed vertebra as a result of the compression of her neck and spinal cord, and three broken ribs. He testified that her death could have resulted from any one of those injuries, or a combination of them. Although he could not assign an order in which the injuries occurred, he stated that the medical evidence indicated that she was alive both when the object was forced into her mouth and through the back of her neck, and when the fire extinguisher’s contents were expelled into her mouth. He could not say with certainty if she was conscious when those injuries were inflicted, but he opined that if Brace had been conscious during the infliction of any of these injuries, she would have experienced severe pain.

. . . .

The jury recommended a death sentence by a vote of nine to three and the trial court sentenced Nelson to death. The trial court found six statutory aggravators: (1) the defendant was previously convicted of a felony, was under a sentence of imprisonment, and was on felony probation, or controlled release, at the time of the murder; (2) the crime for which the defendant was to be sentenced was committed while the defendant was engaged in the commission of, or flight after, committing a sexual battery, burglary, or kidnapping; (3) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (4) the murder was especially heinous, atrocious or cruel (HAC); (5) the murder was committed in a cold and calculated and premeditated manner, and without any pretense of moral or legal justification (CCP); and (6) the victim was particularly vulnerable due to advanced age or disability. The trial court found that all six aggravators were proven beyond a reasonable doubt and assigned five of them great weight. The trial court assigned little weight to the sixth aggravator of the victim being “particularly vulnerable due to age or disability.”

The trial court addressed and rejected three statutory mitigating factors. [n.3] Twenty-one nonstatutory mitigating circumstances were addressed by the trial court: (1) at the time of the offense the defendant was impulsive and his ability to exercise good judgment was impaired (not proven); (2) defendant was remorseful for his conduct (not proven); (3) defendant did not plan to commit the offense in advance (not proven); (4) defendant demonstrated appropriate courtroom conduct and behavior (very little weight); (5) defendant is capable of forming loving relationships with family members and friends (very little weight); (6) any mental illness of the defendant may have been controlled by medication (little weight); (7) it is unlikely the defendant will be a danger to others while serving a life sentence in prison (very little weight); (8) defendant did not resist arrest, cooperated with the police, and showed the authorities where the body was located (moderate weight); (9) defendant never knew his father and lost his mother at a young age (moderate weight); (10) defendant had a troubled and neglected childhood (not proven); (11) defendant was the victim of inappropriate sexual conduct and abuse as a child (little weight); (12) defendant has organic brain damage (not proven); (13) defendant suffered from depression as a result of his conduct and attempted suicide in the jail (little weight); (14) defendant had diminished educational experience (little weight); (15) defendant was sexually assaulted while in prison (some weight); (16) defendant has limited intelligence (some weight); (17) defendant has no prior violent felony convictions (little weight); (18) the circumstances which resulted in the homicide are unlikely to recur since the defendant will be spending the rest of his life in prison (some weight); (19) defendant has accepted responsibility for his action (not proven); (20) defendant has never received treatment for his mental or emotional problems (little weight); and (21) defendant was willing to plead guilty to all charges for consecutive life sentences without parole (very little weight).

[N.3] The three statutory mitigating factors addressed by the trial court were: (1) age of the defendant at the time of the offense (twenty-one years old) (not proven); (2) the defendant was under extreme mental or emotional disturbance at the time of the offense (not proven); and (3) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (not proven).

Id. at 518-21 (some footnotes omitted).

On direct appeal, Nelson’s sole challenge to his conviction of first-degree murder focused on the trial court’s denial of his motion to suppress certain statements and admissions. Id. at 521. Nelson claimed that he made incriminating statements as a result of police coercion, which included an allegedly false indication by police that DNA evidence linked Nelson to the crime, the use of the “Christian burial” technique, and the fact that police did not afford Nelson breaks during the interrogation despite fatigue. Id. We rejected these arguments and affirmed the denial of the motion to suppress, finding that the trial court’s factual findings and legal conclusions were sufficiently supported. Id. at 521-24. We affirmed the conviction, citing to the “plethora of physical evidence linking Nelson to [the crime].” Id. at 521.

Nelson raised several issues pertaining to his sentence, including that (1) the trial court erred by finding the avoid arrest and cold, calculated, and premeditated (CCP) aggravators; (2) the trial court failed to consider and properly weigh certain mitigating factors; (3) his death sentence was disproportionate; and (4) the Florida death penalty scheme was unconstitutional. Id. at 524-33. We rejected each argument pertaining to aggravators and mitigating factors, finding competent substantial evidence to support the trial court’s findings on each claim. Id. at 528-32. We also rejected Nelson’s proportionality claim based on the totality of the circumstances and rejected Nelson’s constitutional argument. Id. at 532-33. We ultimately affirmed Nelson’s conviction and sentence. Id. at 533.

Nelson filed a rule 3.851 motion for postconviction relief on September 16, 2004, and raised twelve claims.² The postconviction court granted an evidentiary hearing, during which attorney Robert John Trogolo, Dr. Mark Ashby, Dr. Henry L. Dee, attorney Julia Williamson, and Dr. Michael Scott Maher testified. The postconviction court ultimately denied Nelson’s motion for postconviction relief, concluding that all of the claims were either lacking evidentiary support, without merit, or procedurally barred. Nelson appeals the denial of his postconviction motion to this Court and has filed a petition for writ of habeas corpus. For the reasons expressed below, we affirm the postconviction court’s order and deny Nelson’s petition for writ of habeas corpus.

RULE 3.851 APPEAL Ineffective Assistance of Trial Counsel

Nelson asserts the following four claims in his motion for postconviction relief regarding ineffective assistance of counsel: (1) trial counsel was ineffective by failing to move for a determination of competency; (2) trial counsel was ineffective by failing to call a witness in both the guilt and penalty phases of the trial to establish that Nelson lacked mens rea and to establish statutory mental mitigation in the penalty phase; (3) trial counsel was ineffective in the investigation and preparation of the penalty phase for failing to call a witness to establish statutory mitigation in the penalty phase; and (4) trial counsel was ineffective for failing to request that the court instruct the jury on statutory mitigation in the sentencing phase of Nelson’s trial. As explained below, we affirm the trial court’s denial of relief on all ineffective assistance of counsel claims raised by Nelson.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), we have 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 proceedings 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).

To prove the first prong under Strickland, Nelson must prove that counsel’s performance was unreasonable under the “prevailing professional norms.” Morris v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting Strickland, 466 U.S. at 688). In other words, Nelson must establish that “counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687; see also Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995). To establish the second prong under Strickland, the defendant must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687.

Additionally, there is a strong presumption that trial counsel’s performance was not ineffective. See id. at 689. “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. Therefore, the defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). In Occhicone v. State, 768 So. 2d 1037 (Fla. 2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Id. at 1048 (citing Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1998)).

Generally, this Court’s standard of review following a denial of a postconviction claim where the trial court has conducted an evidentiary hearing affords deference to the trial court’s factual findings. McLin v. State, 827 So. 2d 948, 954 n.4 (Fla. 2002). “As long as the trial court’s findings are supported by competent substantial evidence, `this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’” Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (quoting Demps v. State, 462 So. 2d 1074, 1075 (Fla. 1984)). However, the circuit court’s legal conclusions are reviewed de novo. See Sochor v. State, 883 So. 2d 766, 772 (Fla. 2004).

Failure to Move for a Competency Determination

Nelson’s first ineffective assistance claim asserts that trial counsel failed to move for a competency determination. Nelson contends that his suicide attempt and the opinion of the defense mental health expert that he was marginally competent placed trial counsel on notice that Nelson’s competency to proceed was at issue. However, because Nelson is unable to demonstrate that trial counsel was deficient, the postconviction court properly denied this claim.

In Futch v. Dugger, 874 F.2d 1483 (11th Cir. 1989), the United States Court of Appeals for the Eleventh Circuit considered an ineffective assistance claim regarding trial counsel’s failure to determine the petitioner’s competency to stand trial. Id. at 1486. The court stated, “In order to demonstrate prejudice from counsel’s failure to investigate his competency, a petitioner has to show that there exists `at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.’” Id. at 1487 (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir. 1988)). Here, the record demonstrates that Nelson’s trial counsel were experienced in handling capital cases and deemed Nelson competent to proceed based on Dr. Dee’s evaluation and through their own contacts with Nelson. Trial counsel indicated during the evidentiary hearing that, based on face-to-face dealings with Nelson, it was never deemed necessary to move for a competency determination. Trial counsel also indicated that they would have filed a motion for a competency determination if Dr. Dee had clearly indicated that Nelson was incompetent. In addition, once the court ordered a competency determination, Nelson was found to be competent and capable of assisting his attorneys. Nelson’s reliance on Dr. Dee’s testimony that Nelson was “marginally competent” appears to be misplaced because neither the allegation nor the record demonstrates that Dr. Dee ever deemed Nelson incompetent to proceed. Further, nothing in the record indicates that Nelson was incompetent at the time of trial or at the time of the murder.

Also, Nelson alleges that his suicide attempt alone was sufficient to raise a question about his competency to stand trial. However, no such presumption exists. In Drope v. Missouri, 420 U.S. 162 (1975), the United States Supreme Court suggested that while a suicide attempt is an indication of possible mental instability, it alone does not necessarily create a reasonable doubt about a defendant’s competency to stand trial. Id. at 180. Trial counsel testified that Nelson met with the defense team regularly and understood the factual and procedural elements of the case and the charges against him and the roles of the judges and the lawyers. Also, trial counsel indicated that Nelson’s suicide attempt was heavily considered when determining whether to raise the issue of competency, but it was their opinion that it did not necessarily render him incompetent.

Furthermore, the administration of Mellaril, a powerful antipsychotic drug, did not necessarily render Nelson incompetent. In Groover v. State, 574 So. 2d 97 (Fla. 1991), we reviewed a similar issue where the petitioner raised an ineffectiveness of counsel claim for counsel’s failure to request a psychiatric evaluation after it became clear prison officials had administered large doses of Mellaril. Id. at 98. The postconviction court determined that there had been no sufficient evidence of incompetency, deficient performance of counsel, or prejudice where trial counsel testified there was no genuine issue of sanity or indication the defendant was suffering from diminished capacity. Id. at 98-99. We agreed, stating, “Where there is no evidence calling a defendant’s competency into question, counsel is not bound to seek an evaluation . . . .” Id. at 99 (citing Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987)). Thus, while the administration of Mellaril warrants an evidentiary hearing when a postconviction claim of ineffective assistance of counsel is raised for failure to seek a competency determination, Mellaril is not per se evidence of incompetency. Accordingly, trial counsel cannot be said to have performed below an objective standard of reasonableness or that trial counsel’s performance was unreasonable under prevailing professional norms.

Because Nelson has not demonstrated deficiency of his trial counsel, we need not address prejudice. See, e.g., Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001); Maxwell, 490 So. 2d at 932 (“A court considering a claim of ineffectiveness of trial 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.”).

Failure to Call Dr. Ashby

Nelson’s second ineffective assistance claim alleges that trial counsel failed to call Dr. Ashby in the guilt phase to establish that Nelson lacked mens rea and also in the penalty phase to establish statutory mental mitigation. Nelson asserts that Dr. Ashby’s testimony was critical to establish his state of mind because Ashby diagnosed him with schizoaffective disorder shortly after the crime. However, for the reasons stated below, Nelson has failed to demonstrate trial counsel’s deficiency and we affirm the postconviction court’s denial of this claim.

Regarding trial counsel’s failure to call Dr. Ashby during the guilt phase of trial, Nelson relies on Bunney v. State, 603 So. 2d 1270 (Fla. 1992), where we considered whether it was error for the trial court to refuse to allow testimony concerning the defendant’s alleged epileptic condition absent a plea of insanity. Id. at 1271. We reasoned that “while evidence of diminished capacity is too potentially misleading to be permitted routinely in the guilt phase of criminal trials, evidence of `intoxication, medication, epilepsy, infancy, or senility’ is not,” and held that “evidence of certain commonly understood conditions that are beyond one’s control . . . should also be admissible.” Id. at 1273. Nelson argues that his psychosis is a condition beyond his control, which was thus admissible. However, Nelson’s reliance on Bunney is misplaced. Our precedent has firmly established the inadmissibility of evidence relating to mental capacity absent an insanity plea. See, e.g., Everett v. State, 97 So. 2d 241, 245-46 (Fla. 1957) (trial court did not err in refusing to give an instruction that the defendant’s mental condition could be considered by the jury in deciding whether he was capable of forming a premeditated design even though he was not found insane); Ezzell v. State, 88 So. 2d 280, 282 (Fla. 1956) (“Since the plea of insanity was out and there was no defense based on mental defects less than insanity, there was no reason for . . . testimony or to labor the question.”). In Chestnut v. State, 538 So. 2d 820 (Fla. 1989), we squarely addressed the admissibility of mental defects where the defendant does not raise an insanity defense. Id. at 820. Ultimately, we explained:

If [alleged] mental deficiencies are sufficient to meet the definition of insanity, these persons should be acquitted on that ground and treated for their disease. Persons with less serious mental deficiencies should be held accountable for their crimes just as everyone else. If mitigation is appropriate, it may be accomplished through sentencing, but to adopt a rule which creates an opportunity for such persons to obtain immediate freedom to prey on the public once again is unwise.

Id. at 825. Therefore, because Nelson did not raise an insanity defense, counsel cannot be found deficient for failing to call Dr. Ashby in the guilt phase.

Nelson has likewise failed to demonstrate counsel’s deficiency at the penalty phase. The postconviction court denied this claim, noting that Dr. Dee testified extensively in the penalty phase with regard to Nelson’s mental state and applicable mitigating factors. The record demonstrates that Nelson received the benefit of penalty phase testimony from Dr. Dee, whose testimony was more extensive than what could have been offered by Dr. Ashby. Trial counsel retained Dr. Dee, a trained forensic neuropsychologist, to testify during the penalty phase. Though Dr. Ashby did not examine Nelson for the purpose of presenting mitigating evidence, Dr. Dee did. Further, the record demonstrates that Dr. Dee had access to Dr. Ashby’s records relating to Nelson. As demonstrated at the evidentiary hearing, Dr. Ashby’s testimony would have been cumulative to, and much less detailed than, Dr. Dee’s testimony. Trial counsel testified that he did not give much thought to calling Dr. Ashby, who as a jail psychiatrist worked on a contract basis with the jail and had not examined Nelson for the purpose of testifying to mitigating evidence.

It is notable that Nelson does not cite a single case to demonstrate support for his claim that he is entitled to relief under Chambers v. Armontrout, 907 F.2d 825 (8th Cir. 1990). In Chambers, trial counsel “(1) failed to interview, (2) failed to call at trial, and (3) failed to call at sentencing the only witness who would have testified that Chambers acted in self-defense.” Id. at 826. Thus, the case is distinguishable because “[t]he decision to interview a potential witness is not a decision related to trial strategy. . . . It is a decision related to adequate preparation for trial.” Id. at 828. Here, there is no allegation that Nelson’s trial counsel failed to adequately prepare. Accordingly, Nelson has not demonstrated that counsel was deficient for failing to call Dr. Ashby during the penalty phase.

Failure to Call a Witness to Evaluate Dr. Kremper’s Reports

Nelson’s third ineffective assistance claim alleges that trial counsel was deficient for failing to secure a qualified psychiatrist to evaluate the report of Dr. Kremper and testify regarding Nelson’s mental health history. Nelson asserts that such testimony would have established that his mental illness was evident at an early age. Trial counsel made the decision not to present Dr. Kremper’s testimony to prevent the jury from hearing Nelson’s prior bad conduct regarding sexual battery and lewd assault on a family member. We agree with the postconviction court that this decision was reasonable and deny this claim.

We confronted this issue in Sexton v. State, 997 So. 2d 1073 (Fla. 2008), where we considered whether trial counsel was deficient for choosing not to present testimony from Dr. Maher that the defendant had a history of bizarre sexual and criminal behavior. Id. at 1082-84. Trial counsel’s theory was to demonstrate brain damage as documented by a PET scan instead of behavior that “would be so inflammatory to the jury that it would counteract any possible mitigation.” Id. at 1084. Trial counsel reasoned that “Dr. Maher’s description of Sexton as a sadistic sexual psychopath, if heard by the jury, would be `tantamount to stipulating to death.’ “Id. We affirmed the postconviction court’s order denying relief on this claim, finding that penalty phase counsel had made an informed strategic decision and that Sexton failed to demonstrate that counsel was deficient. Id. at 1085.

Also, in Willacy v. State, 967 So. 2d 131 (Fla. 2007), we confronted a similar issue where we considered whether it was ineffective assistance for counsel to avoid presenting evidence that the defendant was a sociopath. Id. at 143. We found that the postconviction court’s finding was supported by competent, substantial evidence and that counsel made a reasonable strategic choice, after investigation, to forego presentation of negative mitigating evidence. Id. at 144. We held that Willacy “[had] not shown prejudice because presenting [the] mitigating evidence `would likely have been more harmful than helpful.’” Id. (quoting Evans v. State, 946 So. 2d 1, 13 (Fla. 2006)).

As illustrated, it is reasonable for trial counsel to forego evidence that, if presented in mitigation, could damage a defendant’s chances with the jury. Further, as we stated in Stephens v. State, 975 So. 2d 405 (Fla. 2007), “[B]eing able to secure an expert witness to provide an opinion as to mental health mitigation during postconviction proceedings, which arguably could have been helpful . . . does not, in and of itself, render trial counsel’s performance ineffective.” Id. at 415. Thus, trial counsel’s decision not to present testimony that would have opened the door to Nelson’s incestuous rape of his minor cousin cannot be deemed deficient. Because Nelson cannot demonstrate deficiency, we need not address whether he was prejudiced.

Trial Counsel’s Failure to Request the Court to Instruct the Jury on Statutory Mitigation in the Sentencing Phase

In Nelson, we affirmed the trial court’s rejection of the two statutory mental health mitigating circumstances, stating, “The record reflects that there was competent, substantial evidence refuting the allegation that Nelson was under extreme mental or emotional disturbance.” 850 So. 2d at 530. At the evidentiary hearing, trial counsel testified he was concerned that the State would successfully argue that mitigation was not established given the modifying adjective “extreme.” Trial counsel further testified that he was concerned the jury would not give proper weight to the nonstatutory mitigation if certain mitigation was singled out as being statutory. Nelson alleges this strategy cannot be reasonable because it was based on ignorance of the controlling case law. The postconviction court found the tactical decision to be reasonable because the decision not to request the jury instructions on the two mental health mitigators did not prevent the defense from presenting mental health mitigating evidence to the jury from Dr. Dee. We agree with the postconviction court and deny this claim.

At the evidentiary hearing, trial counsel was asked whether he had read Bryant v. State, 601 So. 2d 529 (Fla. 1992); Stewart v. State, 588 So. 2d 416 (Fla. 1990); and Smith v. State, 492 So. 2d 1063 (Fla. 1986). Trial counsel testified that he did not recall the cases by their names, but that if they were capital cases, he had probably either read them or read summaries of them. Trial counsel then asked collateral counsel to state what proposition they stood for. The question went unanswered, and collateral counsel moved on to another line of questioning. From this exchange, it does not appear accurate to state that counsel was ignorant of controlling case law. The cases cited establish the right to jury instructions on the statutory mitigating circumstances of extreme mental or emotional disturbance. See, e.g., Bryant, 601 So. 2d at 533 (“We have previously stated that the `Defendant is entitled to have the jury instructed on the rules of law applicable to this theory of the defense if there is any evidence to support such instructions.’”) (quoting Hooper v. State, 476 So. 2d 1253, 1256 (Fla. 1985)). Here, trial counsel testified that he was aware he was entitled to the instructions, but made a strategic decision not to request them, opting instead for the “catch-all” instruction. Because Nelson has not demonstrated that this decision was based on ignorance of the law as alleged, he is not entitled to relief.

Competency

Nelson next alleges that he was denied substantive due process because he was tried and convicted while mentally incompetent. This issue fails for two reasons. First, the issue is procedurally barred because he failed to raise it on direct appeal. Second, the record establishes that Nelson was competent at the time of the trial.

“[A] petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.” James v. Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992). “A defendant is considered competent to stand trial if `he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and [if] he has a rational as well as factual understanding of the proceedings against him.’” Id. at 1574 (quoting Dusky v. United States, 362 U.S. 402 (1960)). “In order to make out his substantive incompetency claim, petitioner need not . . . allege any error on the part of any state actor.” James, 957 F.2d at 1572. “[A] petitioner is entitled to an evidentiary hearing on a substantive incompetency claim if he or she `presents clear and convincing evidence to create a real, substantial and legitimate doubt’ as to his or her competency.” Id. at 1573 (quoting Fallada v. Dugger, 819 F.2d 1564, 1568 n.1 (11th Cir. 1987)).

Unlike the petitioner in James, Nelson has had an evidentiary hearing on his postconviction incompetency claim as well as a competency determination. In both, the court has found Nelson competent. Specifically, the postconviction court denied this claim, stating, “The fact that Mr. Nelson had once tried to commit suicide and was on psychotropic medication does not mean he was incompetent or that the court was required to order a competency evaluation. The evidence supports a conclusion that the Defendant was competent at the time of trial.” Thus, Nelson has not demonstrated that he was denied due process at any level of the proceedings against him. Accordingly, Nelson is not entitled to relief on this claim.

Pate Claim

Next, Nelson argues that the trial court erred by failing to sua sponte order a competency hearing. Pate v. Robinson, 383 U.S. 375 (1966), held that once the question of competency is raised, there is a constitutional entitlement to a hearing on the issue of competency. Also, Pate established a rebuttable presumption of incompetency upon a showing that the trial court failed to hold a competency hearing despite information raising a bona fide doubt as to the petitioner’s competency. See James, 957 F.2d at 1570. However, Pate claims “can and must be raised on direct appeal.” Id. at 1572. Accordingly, this claim is procedurally barred because Nelson raised no such claim in his direct appeal.

HABEAS PETITION

Nelson raises seven claims in his petition for writ of habeas corpus, which can be summarized as follows: (1) section 921.141, Florida Statutes (1997), is facially vague and overbroad; (2) he is incompetent to proceed and also may be incompetent at the time of execution in violation of the Eighth Amendment prohibition against cruel and unusual punishment; (3) trial counsel was ineffective for failing to object to the avoid arrest aggravator jury instruction; (4) appellate counsel was ineffective for failing to raise the claim that the evidence was insufficient to prove the avoid arrest aggravator and was also ineffective for failing to raise the cumulative effect of the errors in Nelson’s trial; and (5) the Florida capital sentencing statute is unconstitutional as applied and on its face.

We deny several of Nelson’s claims without further discussion. First, we deny Nelson’s claims that section 921.141, Florida Statutes (1997), is facially vague and overbroad and that the Florida death sentencing statute is unconstitutional as applied because they were not raised on direct appeal and are procedurally barred. 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 . . . or were raised on direct appeal.”). We also deny Nelson’s competency claims because they are not ripe for review and were raised solely for preservation purposes. See State v. Coney, 845 So. 2d 120, 137 n.19 (Fla. 2003) (rejecting a claim that defendant was incompetent to be executed where he acknowledged that the claim was not yet ripe and was being raised only for preservation purposes). Nelson’s claim that trial counsel was ineffective is denied because ineffective assistance of trial counsel is not cognizable in habeas corpus. Griffin v. State, 976 So. 2d 107, 108 (Fla. 3d DCA 2008) (“Habeas corpus is . . . the improper vehicle to address . . . the performance of trial counsel.”). Finally, Nelson’s claim that appellate counsel was ineffective for failing to raise a claim of cumulative effect of multiple errors and his claim that Florida’s capital sentencing statute is unconstitutional on its face and as applied are each denied for lack of merit. Nelson’s claim of cumulative effect is likewise without merit because each individual claim is without merit. See Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003) (“[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.”). Nelson’s claim that Florida’s capital sentencing statute is unconstitutional is without merit because we have previously found this claim to be without merit. See, e.g., Hudson v. State, 992 So. 2d 96, 118 (Fla. 2008).

We now address Nelson’s remaining claim that appellate counsel was ineffective for failing to raise the claim that the evidence was insufficient to prove the avoid arrest aggravator. For the reasons set forth below, Nelson is not entitled to habeas relief on this claim.

Ineffective Assistance of Appellate Counsel

Unlike a claim of ineffective assistance of trial counsel, ineffective assistance of appellate counsel is cognizable in habeas corpus. See Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000); Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000).

Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine:

[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So. 2d at 1069; Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000). In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So. 2d at 1069; see also Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981). Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford, 774 So. 2d at 643. “If a legal issue `would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Id. (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)). Nor can appellate counsel be deemed ineffective for failing to prevail on an issue raised and rejected on direct appeal. Spencer v. State, 842 So. 2d 52 (Fla. 2003).

This Court has also stated that appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel’s failure to object. See, e.g., Owen v. Crosby, 854 So. 2d 182, 188-89 (Fla. 2003); Ferguson v. Singletary, 632 So. 2d 53, 58 (Fla. 1993) (finding that appellate counsel was not ineffective in failing to raise allegedly improper prosecutorial comments made during the penalty phase where trial counsel did not preserve the issues by objection); Medina v. Dugger, 586 So. 2d 317, 318 (Fla. 1991). The only exception to this is when the claim involves fundamental error. See Roberts v. State, 568 So. 2d 1255, 1261 (Fla. 1990). Fundamental error is error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1997) (quoting State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)).

Here, Nelson’s complaints stem from the avoid arrest aggravator, which this court upheld because Nelson failed to preserve the issue for appeal. Nelson, 850 So. 2d at 525. However, the Court also discussed the merits of the claim, finding that “Nelson expressly agreed with the police when they asked him if he killed Brace because he felt like she could identify him.” Id. at 526. Further, the Court found:

Although Nelson’s admissions to police alone support his intentional elimination of Brace as a witness, other considerations also support the avoid arrest aggravator in this case. . . . The evidence in this case indicates that Nelson probably could have accomplished the burglary of Brace’s home and sexual battery without killing her since Brace likely posed little physical resistance to Nelson: she was 78 years old; she was awakened from her bed in the middle of the night when she was wearing only a nightgown; and at that time her eyeglasses and hearing aids were on her night stand. Further, Nelson easily obtained access to her car. Therefore, it appears that once Nelson immobilized Brace by putting her in the trunk, he secured an uncontested getaway and there was no reason for him to kill her except to eliminate her as a witness.

Nelson’s act of taking Brace to a remote area to kill her also lends support to the finding of the avoid arrest aggravator in this case. The evidence at trial was that Nelson drove to an isolated orange grove to kill Brace, but his plan was stymied when the car became stuck in the sand and he needed the assistance of other people to extricate the car. Nelson then drove to another orange grove where he killed Brace. The record reflects that Nelson’s journey to two different orange groves was intended to find an isolated place to kill Brace, the sole witness to his crimes.

We find no error in the trial court’s finding of the avoid arrest aggravator because the defendant’s own statements and actions corroborate evidence that the sole or dominant murder motive in this case was to silence Brace as the sole witness against him.

Nelson, 850 So. 2d at 526 (citations omitted). Accordingly, Nelson’s claim must fail because appellate counsel did raise the claim, which this Court rejected as procedurally barred.

CONCLUSION

For the reasons stated above, we affirm the postconviction court’s order denying Nelson’s 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, LABARGA, and PERRY, JJ., concur.

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

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Notes:

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Courtesy of David Edelstein

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RONALD WAYNE CLARK, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC07-2318.

Supreme Court of Florida.

April 29, 2010.

An Appeal from the Circuit Court in and for Duval County, David Cary Wiggins, Judge — Case No. 90-10067-CF-CRB.

Harry P. Brody of H. Brody, P.A., Sarasota, Florida, for Appellant.

Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, Florida, for Appellee.

PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the postconviction court’s order denying relief.

FACTS AND PROCEDURAL HISTORY

The facts of the underlying case are set out in this Court’s opinion on Clark’s direct appeal and are as follows:

On the afternoon of January 13, 1990 two teenagers walking down a dirt road in rural Duval County found a crowbar, some broken false teeth, a bloody shirt, and some blank checks, with the name Ronald Willis printed on them, that also had blood on them. One of the boys returned home and told his mother what they had found, and she called the sheriff’s office. Also on the 13th Willis’ mother called his ex-wife to see if she knew of Willis’ whereabouts. The ex-wife did not, and she and her sister began driving around looking for him. They found Willis’ truck at a motel, parked near it, and started calling his name. A small child was in the truck, and a man identifying himself as the child’s father removed the child and pointed out Ronald Clark and John Hatch as the people who had been driving the truck. The ex-wife took the keys and locked the truck while her sister went to telephone the police. Clark approached the ex-wife, grabbed her, and tried to take the keys. When she kicked him, he ran away. The sister ran after Clark and noticed that he was wearing Willis’ cowboy boots. Clark and Hatch ran off before the police arrived. They had been identified, however, and the police arrested Hatch in Nassau County on January 20, 1990.

Hatch described the events of January 12 to 13 as follows. When he arrived home after work on January 12, Clark was at his house. They decided to hitchhike to Jacksonville to shoot pool. Along the way they shot at signs and beer bottles with a pistol Hatch had stolen from a house he had been remodeling. Willis stopped to give them a ride, and, during the ride, Clark whispered to Hatch that he was going to steal the truck. When Hatch asked Willis to stop the truck, both he and Clark got out of the truck, and Clark, who had the stolen pistol, shot Willis seven or eight times. Clark shoved Willis’ body to the center of the seat, Hatch got in the passenger’s seat, and Clark drove to a more secluded area. Clark pulled Willis’ body from the truck, during which Willis’ shirt came off. Clark then took Willis’ wallet and boots and pushed his body into a ditch. Clark and Hatch went to a restaurant and to Hatch’s ex-wife’s apartment complex, but later returned to where they had left the body. Taking the body with them, they went to Clark’s father’s house and got a rope and several cinder blocks. They then drove to the Nassau County Sound Bridge, tied the blocks to the body, and dumped it into the water. After driving around some more, they went to an acquaintance’s house to buy drugs. The acquaintance went with them to the motel where Willis’ ex-wife and her sister found the truck. Hatch and Clark left the state, eventually winding up in South Carolina. Hatch returned to Nassau County, where he was arrested. South Carolina authorities arrested Clark on February 7, 1990 and returned him to Florida.

The state indicted Clark for first-degree murder and armed robbery and tried him on those charges in January 1991. Hatch, in exchange for a twenty-five-year sentence, testified against Clark. Clark testified on his own behalf that Hatch killed Willis. The jury convicted Clark of armed robbery and felony murder. During the penalty phase, Clark refused to allow his attorney to present any mitigating evidence. The jury recommended that Clark be sentenced to death. On February 20 both sides argued their views on sentencing with defense counsel arguing that Clark should be sentenced to life imprisonment rather than death. The court disagreed, however, and sentenced Clark to death two days later.

Clark v. State, 613 So. 2d 412, 412-13 (Fla. 1992). The jury voted eleven to one to recommend death. The trial judge sentenced Clark to death after finding no mitigating and three aggravating circumstances.¹ This Court affirmed Clark’s conviction and sentence. Id. at 412.² Additionally, the Court found Clark’s challenge to his mitigation waiver without merit after finding that Clark had knowingly and intelligently waived his right to present mitigation. Id. at 414 (“The record shows that Clark understood the consequences of his decision and that he voluntarily and knowingly waived the presentation of mitigating evidence. Therefore, we hold this issue to be without merit.”).

Clark first filed a motion to vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.850 on November 16, 1994. Clark filed supplemental and amended motions, ending with his Second Amended Motion to Vacate Judgment of Conviction and Sentence and Supplement to Amended Motion filed January 31, 2006.³

Prior to Clark’s conviction in Duval County, he was tried and convicted in Nassau County for the murder of Charles Carter. Clark v. State, 609 So. 2d 513 (Fla. 1992). Judge Henry Davis, then a criminal defense attorney, represented Clark in both cases. In the Nassau County case, the evidence presented demonstrated that Clark led a troubled childhood. Id. at 515-16. Clark’s parents were described as alcoholics, and his father was a drug dealer. Clark witnessed physical abuse between his parents. Clark began drinking at age twelve, and although the amount consumed on the day of the murder could not be determined, it was excessive. The record also showed Clark had ingested a controlled substance. After psychological evaluation, Clark was determined competent to stand trial. Clark admitted during an evaluation in 1986 that he enjoyed hurting people and derived pleasure from watching blood spatter. The trial judge considered and rejected the following mitigation: (1) lack of significant prior criminal history, (2) extreme mental or emotional disturbance, (3) that the victim was a participant or consented to the act, (4) that the defendant was a minor participant, (5) that he acted under extreme duress or substantial domination, (6) that he had diminished capacity, and (7) Clark’s age at time of crime. Additionally, the trial judge stated:

There is no doubt from the record herein that the Defendant led a hard and difficult life. His early childhood experiences of being abused by his mother’s lesbian lover or having to witness physical abuse and violence between his parents was unfortunate. However, there is nothing in his background that would serve to mitigate the murder herein.

Based on this, defense counsel Davis determined the mitigating evidence “cut both ways” and, along with Clark, decided not to present mitigation at the Duval County trial. Clark asserts that the mitigation presented in the Nassau County case was virtually identical to what would have been presented in the Duval County case.

ISSUES

Clark appeals the denial of postconviction relief to this Court raising three issues. He contends (1) trial counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter; (2) trial counsel was ineffective for failing to present mitigation at the penalty phase of his trial or, alternatively, for failing to convince Clark that he needed to present mitigation; and (3) there is newly discovered evidence that Hatch confessed to being the shooter in the Duval County murder, which Clark claims entitles him to a new trial. For the reasons expressed below, we affirm the postconviction court’s denial of Clark’s 3.851 motion.

“STAFF ATTORNEY’S ANALYSIS” Ineffective Assistance of Counsel

As it relates to ineffective assistance of counsel, Clark first alleges counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. Next, Clark alleges that counsel was ineffective for failing to present evidence in support of mitigation. We find both these arguments without merit.

Generally, this Court’s standard of review following a denial of a postconviction claim where the trial court has conducted an evidentiary hearing affords deference to the trial court’s factual findings. “[A]s long as the trial court’s findings are supported by competent substantial evidence, this Court will not `substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’” McLin v. State, 827 So. 2d 948, 954 n.4 (Fla. 2002) (quoting Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997)). However, the circuit court’s legal conclusions are reviewed de novo. See Sochor v. State, 883 So. 2d 766, 772 (Fla. 2004).

Relating to Clark’s first claim, following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied: (1) 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; and (2) 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. Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986).

As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687; see also Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995). For the second prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687.

Additionally, there is a strong presumption that trial counsel’s performance was not ineffective. See id. 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. See id. at 689; see also Rivera v. Dugger, 629 So. 2d 105, 107 (Fla. 1993). The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.’ “Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). In Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”

With respect to the investigation and presentation of mitigation evidence, the United States Supreme Court observed in Wiggins v. Smith, 539 U.S. 510 (2003), that “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case.” Wiggins, 539 U.S. at 533. Rather, in deciding whether trial counsel exercised reasonable professional judgment with regard to the investigation and presentation of mitigation evidence, a reviewing court must focus on whether the investigation resulting in counsel’s decision not to introduce certain mitigation evidence was itself reasonable. Id. at 523; Strickland, 466 U.S. at 690-91. When making this assessment, “a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527.

Regarding the waiver of the right to present mitigating evidence, “[w]e have upheld the right of similarly situated defendants to refuse to participate in the sentencing proceeding.” Clark, 613 So. 2d at 413 (citing Durocher v. State, 604 So. 2d 810 (Fla. 1992); Pettit v. State, 591 So. 2d 618 (Fla. 1992); Anderson v. State, 574 So. 2d 87 (Fla. 1991); Hamblen v. State, 527 So. 2d 800 (Fla. 1988)). Such waiver must be “knowingly, voluntarily, and intelligently made.” Deaton v. Dugger, 635 So. 2d 4, 8 (Fla. 1993) (citing Henry v. State, 613 So. 2d 429 (Fla. 1992)).

In its September 2007 order denying relief, the postconviction court found:

Initially this Court notes that the Defendant, having raised this claim on direct appeal, is procedurally barred from raising it again in a motion for post-conviction relief. Moreover, the record supports that the trial court adequately inquired into the Defendant’s decision to waive mitigation.

At the evidentiary hearing, trial counsel Davis, specifically addressed the Defendant’s ineffective assistance of counsel claims. Davis testified that it was his trial strategy not to present mitigation evidence from the Nassau County case in the Duval County case because the mitigation evidence “cut both ways.” One example of mitigation evidence cutting both ways, was that the Defendant would kill animals for the sport of it, and Davis could tell from the reaction of the Nassau County jurors that the testimony was having the opposite effect of its intended purpose. He also explained that because the Nassau County case was stronger than the Duval County case, neither he nor the Defendant thought it would be beneficial to present the mitigation evidence in the weaker case when it did not work in a stronger case. Davis testified that had the Defendant wanted to present mitigation evidence, he would have presented it to the jury.

As it relates to the claim that counsel was ineffective during the guilt phase, the postconviction court found:

To the extent the Defendant claims that Davis should have contacted or presented witnesses, the Defendant’s claim is denied pursuant to Nelson v. State, 875 So. 2d 579, 583-84 (Fla. 2004), as the Defendant’s claim in facially insufficient. To the extent the Defendant claims an investigator should have been hired, this claim must also be denied. . . . Davis testified that he hired an investigator to help him find witnesses . . . .

The postconviction court also found that Clark did not establish that Davis was deficient for failing to present evidence to demonstrate that Hatch was the shooter because “Davis testified that had there been a basis to show that Hatch was the shooter, [he] would have developed that evidence.”

Finally, regarding Clark’s claims that Davis was ineffective for failing to present evidence of Clark’s intoxication and his long-standing substance abuse and for failing to call experts to cast doubt on the physical evidence in the case, the postconviction court found that Clark failed to prove these claims.

Clark alleges that counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. At the evidentiary hearing, Clark presented no evidence to support this claim. Trial counsel cannot be ineffective for failing to present evidence that did not exist at the time of trial. See, e.g., Pooler v. State, 980 So. 2d 460, 465 (Fla. 2008); Bell v. State, 965 So. 2d 48, 64 (Fla. 2007).

Although Clark alleges that “the record is replete with evidence that Mr. Hatch was the shooter and leader,” the record does not support his allegation. As stated in this Court’s opinion on direct appeal, “the record contains competent, substantial evidence to support [Clark's] conviction.” Clark, 613 So. 2d at 413. We made this finding even after noting that Clark testified at trial that Hatch was the shooter. Id. Thus, Clark’s claim was correctly denied by the postconviction court.

Next, Clark alleges that counsel was ineffective for failing to present mitigation. Clark raised this as claim 7 in his first amended 3.850 motion filed November 1, 1995. In its June 18, 1996, order on Clark’s motion to vacate judgments of conviction and sentence, the postconviction court found this claim to be without merit and undeserving of a hearing.⁴ In this order, the postconviction court granted an evidentiary hearing on four claims. On June 20, 2003, Clark filed a supplement to the first amended motion to vacate, raising one claim, and on January 31, 2006, filed a second amended motion, raising twenty-one claims. Of these claims, the postconviction court granted an evidentiary hearing on claims 1, 2, and 3, which it stated mirrored the claims for which the court had previously awarded an evidentiary hearing.⁵

Clark alleges that his counsel was ineffective for failing to present mitigation at the penalty phase of his trial or, alternatively, for failing to convince Clark that he needed to present mitigation. We previously found that Clark made a knowing, intelligent waiver of his right to present mitigation. Clark, 613 So. 2d at 414. Because this claim was raised on direct appeal and found to be without merit, it is procedurally barred from being raised in postconviction proceedings. See Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1323 (Fla. 1994) (“Proceedings under rule 3.850 are not to be used as a second appeal; nor is it appropriate to use a different argument to relitigate the same issue.”). Thus, in order to find counsel was deficient for failing to present mitigation, this Court must either find that counsel failed to investigate mitigation or was deficient in some other way prior to advising Clark.

In Koon v. Dugger, 619 So. 2d 246 (Fla. 1993), this Court outlined the procedure that must be followed when a defendant waives the presentation of mitigating evidence:

[C]ounsel must inform the court on the record of the defendant’s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.

Id. at 250; see also Anderson v. State, 822 So. 2d 1261, 1268 (Fla. 2002) (quoting Koon, 619 So. 2d at 250)). “Although a defendant may waive mitigation, he cannot do so blindly; counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision.” State v. Lewis, 838 So. 2d 1102, 1113 (Fla. 2002). As discussed in Clark, 613 So. 2d 413-14, this Court found that the trial court followed proper procedure and that Clark properly waived his right to present mitigation. In the Duval County trial, both Clark and his counsel were aware of the precarious nature of his mitigation. Clark does not allege that counsel failed to investigate possible mitigation or failed to discover mitigation that should have been presented at trial.

In Lewis, this Court made it clear that a defendant cannot make a knowing, intelligent waiver where counsel has not had adequate time to prepare mitigation. 838 So. 2d at 1113-14. In the present case, counsel not only had time to adequately investigate and prepare mitigation evidence, but had presented the same to another jury in Clark’s Nassau County trial. This Court has previously stated that the holding in Lewis is in line with the United States Supreme Court’s decision in Wiggins: “[O]ur principal concern in deciding whether [trial counsel] exercised `reasonable professional judgment[t],’ is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.”). State v. Larzelere, 979 So. 2d 195, 204 (Fla. 2008) (quoting Wiggins, 539 U.S. at 522-23).

In Larzelere, we agreed with the postconviction court’s ruling that “Larzelere’s waiver could not have been made knowingly and intelligently because her counsel was unable to adequately advise her regarding potential mitigation,” and that counsel’s performance was deficient because counsel did not sufficiently investigate possible mitigation. 979 So. 2d at 203; see also State v. Pearce, 994 So. 2d 1094, 1102-03 (Fla. 2008) (finding competent substantial evidence to support the trial court’s finding that counsel did not spend sufficient time to prepare for mitigation prior to Pearce’s waiver).

In Spann v. State, 985 So. 2d 1059 (Fla. 2008), we found Spann’s argument that his waiver was involuntary because of his ongoing depression to be without merit. Id. at 1072. We found that Spann failed to demonstrate he was depressed at the time he waived his rights to present mitigation where the “only evidence indicating a diagnosis and treatment for depression was Spann’s transfer form from Martin County Jail to Florida State Prison.” Id. Further, we noted that while the form indicated Spann was on medication for depression, the diagnosis and treatment occurred after Spann’s trial and at the hearing where Spann waived his rights, he indicated he was not on medication. Id. We also found that counsel was not ineffective where counsel investigated possible mitigation and discussed it with Spann before he entered his waiver. Id.

Also dissimilar is our analysis in Gill v. State, 14 So. 3d 946 (Fla. 2009), where the Court considered whether a mentally ill person can enter a knowing, intelligent guilty plea and waive mitigation. In Gill, the defendant pleaded guilty and waived sentencing by a jury and the presentation of mitigation. Id. at 954. Gill objected when standby counsel attempted to present additional mitigation. Id. at 955. The court considered the mitigation available in the records, including Gill’s history of mental illness, before sentencing him to death. Id. at 955-58. Ultimately, we affirmed Gill’s conviction and sentence. Id. at 967. Despite the clear mental mitigation present in the record, Gill was found competent to enter a knowing, intelligent, and voluntary guilty plea. It can be presumed that his waiver of mitigation was also valid.

Additionally, this is not a case where the trial court did not consider mitigation evidence present in the record. The record establishes that trial counsel presented the mitigating evidence at the Spencer⁶ hearing and that the trial court considered the reports from mental health experts in the record.

Even if we allowed Clark to pierce his waiver, he cannot show counsel was deficient. Davis testified that the mitigating evidence collected “cut both ways.” He further testified that both he and Clark agreed it would not be beneficial to present such evidence in the “weaker” case. Because counsel did not fail to investigate mitigation, and because Clark was found competent, Davis cannot be found deficient for his strategy.

Finally, Clark has failed to establish prejudice. The exact same mitigation was presented in the Nassau County trial, which led to the imposition of the death penalty. Although that conviction was overturned by this Court on direct appeal, this Court did not find that the trial court improperly rejected all the mitigation presented. Instead, we overturned the sentence because we found several of the aggravators unsupported by the record. Clark, 609 So. 2d at 514-15.

Newly Discovered Evidence

Clark raised this claim at the evidentiary hearing below, to which the State objected both procedurally and on the merits. In its order denying relief, the postconviction court found Clark’s claim “untimely in that the Defendant failed to raise this newly discovered evidence claim within one year of learning of its existence.” The court noted that Clark waited two years to raise the claim. Further, the postconviction court found that Clark “failed to establish that this evidence would have been admissible at [his] trial” and that “Thompson’s⁷ testimony was not of such nature that it would probably produce an acquittal for the Defendant on retrial, especially in light of Thompson’s credibility issues.”

With respect to a trial court’s ruling on a newly discovered evidence claim following an evidentiary hearing, as long as the court’s findings are supported by competent, substantial evidence, a reviewing court will not “substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of witnesses as well as the weight to be given to the evidence by the trial court,” Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (quoting Demps v. State, 462 So. 2d 1074, 1075 (Fla. 1984)), but the court’s application of law to facts is subject to de novo review. Preston v. State, 970 So. 2d 789, 798 (Fla. 2007).

This Court has held that two requirements must be met in order for a conviction to be set aside on the basis of newly discovered evidence: (1) to be considered newly discovered, the asserted evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of due diligence; and (2) the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. Jones v. State, 709 So 2d 512, 521 (Fla. 1998). To reach the latter conclusion, the trial court is required to consider all newly discovered evidence that would be admissible at trial and then evaluate the weight of both the newly discovered evidence and the evidence that was introduced at trial. Id.

Clark alleges newly discovered evidence that Hatch confessed to being the shooter in the Duval County murder for which Clark was convicted. Because Clark failed to raise this claim within one year of discovering it and, in fact, failed to raise this claim in his pleadings at all, this claim is denied as procedurally barred.

Clark did not raise this allegation in any of his numerous pleadings below. Instead, this claim was raised at the evidentiary hearing over the State’s objection. The court noted it would address Clark’s motion to “conform the pleadings to the evidence” in its order.⁸

Claims of newly discovered evidence must be raised within one year of the time of discovery. Fla. R. Crim. P. 3.851(d)(2)(A); Glock v. Moore, 776 So. 2d 243, 251 (Fla. 2001). Here, Clark acknowledges that he became aware of Thompson’s information in 2005. Therefore, this claim, “filed” in 2007, was not filed timely.

Finally, even if the Court accepts Clark’s claim as timely filed, Clark cannot establish that the evidence, if presented at a new trial, would probably produce an acquittal. Thompson testified that Hatch admitted he shot someone after a drug deal gone bad, that Hatch had testified against Clark to save his own life, that the victim owed one of them money and had pulled a gun on them, and that Hatch had thrown the victim’s body in the canal. Thompson did not testify regarding the name of the victim, the time of the murder, or any other information that would clearly exonerate Clark in the murder. The information alleged to have been provided by Hatch to Thompson does not create sufficient doubt that Hatch was the shooter instead of Clark.

The record indicates that the evidence presented against Clark at trial was summarized by the trial judge as follows:

On January 12, 1990, Ronald Wayne Clark and John David Hatch were hitchhiking from Yulee to Jacksonville, Florida to drink beer and shoot pool. At that time, Ronald Willis, who also lived in Yulee, was driving his pickup truck to Jacksonville.

The victim, Ronald Willis saw [Clark] and [Hatch] hitchhiking, thought he recognized them and pulled over. Upon pulling nearer, [Willis] realized he did not recognize or know [Clark] and [Hatch], but agreed to give them a ride.

[Willis] then gave [Clark] and [Hatch] a ride to Jacksonville. During this ride, [Clark] told [Hatch] that he was going to take [Willis's] truck. The two men asked to be let off. [Willis] pulled his truck over to let them out. [Clark] pulled out a pistol and shot [Willis] seven to eight times in the head. . . .

[Clark] then stole [Willis's] truck, dumped [Willis's body off of Byrd Road and took off, along with [Hatch], in [Willis's] truck.

[Clark] decided later that night that [Willis's] body would have to be moved someplace where it would not be found soon or ever. He decided that [Willis's] body should be dumped in a river.

[Clark] and [Hatch] went back to Byrd Road and put [Willis's] body in the pickup truck. They took the victim’s body to [Clark's] father’s house where [Clark] got two cinder blocks and some rope. [Clark], accompanied by [Hatch], then took [Willis's] body to the Nassau Sound River, where he tied the cinder blocks to the victim’s body. [Clark] then dumped [Willis's] body into the Nassau Sound River. The victim’s body has never been recovered and probably never will be recovered.

At trial, Clark himself testified that Hatch was the shooter and that he was merely an accomplice to the crimes. He also testified that Willis was a friend of his father and that he had no reason to shoot Willis. However, Thompson’s description of the crime is not consistent with Clark’s own version. Clark did not mention a drug deal or money. Further, Thompson’s testimony that Hatch said they dumped the body immediately after shooting Willis is not consistent with the evidence presented at trial. Finally, Thompson is serving multiple sentences and would probably not serve as a credible witness at a new trial. Accordingly, the postconviction court properly denied Clark’s claim of newly discovered evidence.

CONCLUSION

Having reviewed all of Clark’s claims and finding them either to be barred or meritless, we affirm the postconviction court’s order.

It is so ordered.

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

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

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Notes:

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Courtesy of David Edelstein

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