Florida Criminal Law Opinions

Third District Court of Appeal

State of Florida, July Term, A.D., 2011

Opinion filed August 24, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-2154

Lower Tribunal No. 96-39915

Eusebio Medina,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.

Eusebio Medina, in proper person.

Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.

LAGOA, J.

Eusebio Medina (“Medina”) appeals an order summarily denying his Rule 3.800(a) motion. We affirm in part and reverse in part. Medina raises three

grounds for reversal. We find no merit as to grounds two and three. However, on ground one, we reverse the order.

Upon imposition of Medina’s original sentence, the trial court awarded him 566 days credit for time served in jail before sentencing. Subsequently, Medina sought post-conviction relief, arguing that he was entitled to resentencing under the 1994 guidelines pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000). On consideration of a certified question from this Court, the Supreme Court agreed with Medina’s position and the cause was remanded for resentencing. Medina v. State, 760 So. 2d 929 (Fla. 2000). At the October 23, 2000, resentencing, the trial court stated that it awarded Medina credit for all time served, but the written sentence only awarded the 566 days credit for time served in jail prior to imposition of his original sentence. Following review of the resentence, Medina sought post-conviction relief addressing credit for time served, including the current motion to correct his sentence as illegal, which was denied.1

On appeal, the State properly concedes that Medina may be entitled to credit for the time he spent in jail prior to resentencing, as reflected in the Miami-Dade

1 Medina also sought this relief in a previously-filed Rule 3.800(a) motion. The motion was denied and this Court affirmed. Medina v. State, 13 So. 3d 1065 (Fla. 3d DCA 2009) (table). The trial court denied the present motion on this ground as successive. However, as the State suggests, we may consider this issue pursuant to the manifest injustice exception. See State v. Akins, 36 Fla. L. Weekly S215, S217 (Fla. May 26, 2011); State v. McBride, 848 So. 2d 287 (Fla. 2003).

County Corrections and Rehabilitation Department certificate. See Kitchen v. State, 20 So. 3d 975 (Fla. 4th DCA 2009) (holding that defendant is entitled to credit for time served in jail prior to resentencing). A review of the jail certificates indicates that Medina was not awarded credit for time spent in jail after his original sentence was reversed and before he was resentenced on October 23, 2000.2 We, therefore, reverse the order in part, and remand for a determination of an award of additional credit for the time Medina served in jail before he was resentenced.3

Affirmed in part, reversed in part, and caused remanded for further proceedings.

2 The record contains two certificates. The certificate concerning pre-resentencing jail time includes the time period from July 20, 2000, until the October 23, 2000, resentencing.

3 In his reply, Medina also contends that he did not receive credit for eleven days served in jail after his original sentence was imposed, as shown on the jail certificates. This claim must be addressed by the Department of Corrections. See Salazar v. State, 892 So. 2d 545, 547 (Fla. 3d DCA 2005) (“If an inmate believes that the Department has not granted correct [post-sentencing] credit in accordance with the section 921.161 jail certificate, then the inmate must seek relief through the inmate grievance procedure.”); see also Jenkins v. State, 999 So. 2d 729 (Fla. 3d DCA 2008).

Courtesy of David Edelstein

D.J. appeals from an adjudication of delinquency claiming that the court below erred in admitting his school attendance record into evidence. While we agree that the court below erred in admitting this evidence without proper authentication, see § 90.901, Fla. Stat. (2010) (“Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”); A. Z. v. State, 383 So. 2d 934, 935 (Fla. 5th DCA 1980) (reversing dependency determination where, among other errors, “[t]he court used the materials [including school records] in formulating its decision . . .[that] were not identified, [nor] authenticated”), we affirm because a review of the record confirms the error harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JAMIE ALLEN HYDEN,

Appellant,

v.                     Case No. 2D10-1184

STATE OF FLORIDA,

Appellee.

Opinion filed August 24, 2011.

Appeal from the Circuit Court for Pasco County; Michael F. Andrews, Judge.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Chief Judge.

Jamie Allen Hyden seeks review of his judgment and sentence for felony DUI as a fourth-time offender. He argues that the trial court erred in denying his motion to dismiss because he did not have the three qualifying misdemeanor convictions necessary for the felony offense. We agree and reverse.

Section 316.193(2)(b)(3), Florida Statutes (2008), provides that a fourth conviction for a DUI misdemeanor constitutes a third-degree felony. However, the State is precluded from using prior misdemeanor DUI convictions to support a felony DUI conviction under this provision if (1) the prior convictions were uncounseled, (2) the defendant was indigent and entitled to court-appointed counsel, (3) the defendant did not waive the right to counsel, and (4) the convictions were punishable by imprisonment. State v. Kelly, 999 So. 2d 1029, 1053 (Fla. 2008). The defendant bears the initial burden of making these allegations under oath. Then the burden shifts to the State to present evidence to the contrary. Id.

In this case, the State charged Hyden with a felony DUI using three prior misdemeanor DUI convictions from 1983, 1985, and 1997 to support the charge. Hyden, through counsel, filed a motion to dismiss and supporting affidavit. He argued that his 1983 conviction was not sufficient to support the felony charge under Kelly because it was uncounseled. He asserted that although he was indigent at the time he entered his plea, he was not offered counsel and did not waive his right to counsel. The motion and affidavit were not notarized but contained the following oath signed by Hyden: “Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true.”

At the hearing on Hyden’s motion to dismiss, the trial court briefly raised the issue of whether Hyden met his initial burden of making the allegations under oath because his motion and affidavit were not notarized. The court addressed defense counsel, stating, “I have a written statement by the defendant, but it’s not sworn. I mean, it is under oath, but it is not actually under oath. There is no notary. In fact, I’m

not even sure your – that motion qualifies as under oath.” Neither defense counsel nor the State took up the issue. The court moved on to address the question of whether the evidence presented by the State rebutted Hyden’s allegations.

Because the court records of Hyden’s 1983 misdemeanor conviction had been destroyed, the only evidence the State could produce was a document from its own file entitled “Plea of Not Guilty and Request for Trial.” The form was dated June 14, 1983, and the box marked “[w]aive my right to a lawyer” was checked. Hyden had signed the document. The date on the form was six weeks before July 27, 1983, the date on which Hyden changed his plea and was convicted.

The trial court determined that the June 14 form was sufficient to establish that Hyden waived his right to counsel for his 1983 conviction. On that basis, the court denied Hyden’s motion to dismiss. On appeal, Hyden argues that this form was not properly admitted in evidence and is not sufficient to establish that he waived his right to counsel when he changed his plea. The State argues that Hyden’s motion to dismiss and affidavit were facially insufficient because they were not notarized. The State alternatively argues that the plea form was admissible in evidence and that the plea form establishes that Hyden waived his right to counsel when he changed his plea.

Preliminarily, we address the State’s argument that Hyden’s motion to dismiss and affidavit were facially insufficient. The law on the oath requirement for a motion to dismiss and accompanying affidavit under Kelly is not settled. Section 92.525(1), Florida Statutes (2009), provides that any document that must be verified by a person may be verified in one of two ways. Subsection (1)(a) allows for verification

under oath or affirmation as set forth in section 92.50(1).1 Subsection (1)(b) allows for verification by signing the following written declaration as set forth in subsection (2): ” ‘Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true.’ ” The verification requirement “means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.” § 92.525(4)(c).

In this case, Hyden used the oath set forth in section 92.525(2) to verify his motion to dismiss and affidavit. The question is whether this oath is sufficient, without a notarization, to satisfy the oath requirement mentioned but not elaborated upon in Kelly. The Florida Supreme Court has determined that the oath set forth in section 92.525(2) is sufficient to satisfy the oath requirement in postconviction motions. See State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993). The court reasoned that this particular oath provides the same protection against perjury as a notarized oath. The court also amended its form for postconviction motions to reflect that this unnotarized oath may be used. See id. at 1103-04 (amending Florida Rule of Criminal Procedure 3.987).

Since Shearer, several courts have determined that the oath in section 92.525(2) is sufficient to meet the oath requirement for other documents. See, e.g., J.S.L. Constr. Co. v. Levy, 994 So. 2d 394, 399 (Fla. 3d DCA 2008) (statement of

1Section 92.50(1) provides that “[o]aths, affidavits, and acknowledgments required or authorized under the laws of this state . . . may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state.”

account by a contractor); Green v. State, 941 So. 2d 1250, 1250 (Fla. 5th DCA 2006) (petition for belated appeal); Goines v. State, 691 So. 2d 593, 593 (Fla. 1st DCA 1997) (affidavit of violation of probation). However, there are decisions refusing to find the oath in section 92.525(2) sufficient to meet the same or similar oath requirements. See, e.g., Crain v. State, 914 So. 2d 1015, 1018-21 (Fla. 5th DCA 2005) (arrest affidavit); Jackson v. State, 881 So. 2d 666, 668 (Fla. 5th DCA 2004) (affidavit of violation of probation).

There are persuasive arguments for following both lines of cases, depending upon the factual circumstances surrounding the particular oath requirement.2 We do not reach the issue today because the State did not pursue the issue below and the trial court reached the merits of Hyden’s motion to dismiss.

We recognize that the trial court did briefly raise the issue of the sufficiency of the oath at the hearing on Hyden’s motion to dismiss. But the court apparently satisfied itself that Hyden’s motion and affidavit were sufficient because it shifted the burden to the State to address whether it could successfully rebut the allegations in Hyden’s motion and affidavit. The State waived any technical noncompliance of the motion and affidavit when it declined to address the court’s concerns about the oath and moved forward to the presentation of its evidence on the merits of Hyden’s motion. See Hudson v. State, 745 So. 2d 997, 999 (Fla. 2d DCA 1999).

2We note that this court has suggested that, under Shearer, the oath in section 92.525(2) is available to “a prisoner untrained in the law.” Keene v. Nudera, 661 So. 2d 40, 43 (Fla. 2d DCA 1995). However, Hyden’s motion to dismiss and affidavit were filed by defense counsel.

We next turn to the argument regarding the 1983 plea form. We conclude that the plea form did not establish that Hyden waived his right to counsel at the time of his 1983 conviction. This finding renders Hyden’s challenge to the plea form’s admissibility moot.

In his motion to dismiss and affidavit, Hyden asserted that he was convicted of the 1983 charge pursuant to a plea that was entered without his having been offered and appointed a lawyer. Hyden also asserted that he did not waive his right to a lawyer. The trial court found that the plea form refuted Hyden’s claim that he never waived his right to counsel. But Hyden did not claim that he “never” waived his right to counsel; he claimed that he was convicted after entering his plea without being offered counsel.

While the June 14, 1983, form provides evidence that Hyden waived his right to counsel when he entered his not guilty plea, it does not establish that he waived his right to counsel when he changed his plea six weeks later. The court must offer an indigent defendant counsel “at each crucial stage of the proceedings,” and this right is triggered when the accused is charged with a crime. Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992). While a defendant may waive his right to counsel at any stage of the proceedings, the waiver is only valid at that stage and the court must renew the offer of counsel at each crucial stage as long as the defendant is unrepresented. Id. The entry of a plea is a “crucial stage” of the proceedings. Brown v. State, 830 So. 2d 203, 205 (Fla. 5th DCA 2002).

Here, the State did not present any evidence, such as a copy of Hyden’s change-of-plea form or the transcript of his plea colloquy, to establish that Hyden was

offered and waived counsel at the time he changed his plea from not guilty. Without such evidence, the State cannot refute the allegations in Hyden’s motion to dismiss. See Kelly, 999 So. 2d at 1037 (holding that, if the defendant meets his initial burden of proof, “the State cannot then point to a silent record to claim that a purely hypothetical plea colloquy cured any error surrounding the waiver issue”).

Because the State failed to meet its burden of proving the three qualifying felony convictions necessary for a felony DUI, we reverse and remand for entry of the appropriate misdemeanor conviction and sentence. We note that while Hyden’s 1983 conviction may not be used to qualify the fourth DUI as a felony offense, it may be used to support enhanced penalties and fines short of incarceration for the misdemeanor DUI. See id. at 1052.

Reversed and remanded.

DAVIS, J., Concurs.

BLACK, J., Concurs specially with opinion.

BLACK, J., Specially concurring.

Because of the recent Florida Supreme Court opinion in State v. Kelly, 999 So. 2d 1029 (Fla. 2008), I agree that Mr. Hyden’s felony DUI conviction as a fourth-time offender must be reversed. However, I write separately to express my support of Justice Wells’ dissenting opinion in Kelly, which I believe expresses a better-reasoned analysis. I also write to discuss how this case highlights the practical and, in my view, unfortunate implications of the Kelly majority opinion, which I believe are at odds with Florida’s legislative scheme for punishing DUI offenders.

It is undisputed that Mr. Hyden has four DUI convictions. In addition to the most recent conviction, Mr. Hyden was convicted of DUI on August 21, 1997; July 1, 1985; and July 27, 1983. Mr. Hyden has raised no issue with either the 1985 or the 1997 convictions.

The plain language of section 316.193(2)(b)(3), Florida Statutes (2008), provides that any person who is convicted of a fourth or subsequent DUI, regardless of the dates of the prior convictions, commits a felony of the third degree. Thus, the clear language of the statute contemplates that the State is authorized to use what might be considered “old” DUI convictions as predicate offenses to enhance a fourth DUI to a felony.

Until the Kelly case was decided in 2008, Mr. Hyden would have been justifiably convicted of a third-degree felony and appropriately sentenced to five years in prison based upon his four DUI convictions. Before Kelly, the outcome in this case would have been controlled by the Florida Supreme Court’s opinion in Hlad v. State, 585 So. 2d 928 (Fla. 1991). Based almost entirely on United States Supreme Court

precedent, Justice Grimes’ Hlad opinion held that the State may use a criminal defendant’s prior uncounseled misdemeanor DUI conviction as an enhancement where the uncounseled misdemeanor led to no actual imprisonment and was not punishable by more than six months’ imprisonment. Mr. Hyden’s 1983 conviction met these criteria. See § 316.193, Fla. Stat. (1983).

Indeed, Mr. Hyden does not dispute the validity of the 1983 conviction and had not done so for the twenty-six years before his current charges. His only argument now is that because the conviction was “uncounseled,” it cannot be used as a predicate offense to enhance the current conviction to a felony. Before Kelly was decided, there would have been no basis for a challenge.

Contrary to the majority opinion and the methodology used in Hlad, the Kelly majority expanded the right to counsel in article I, section 16 of the Florida Constitution and Florida Rule of Criminal Procedure 3.111 and ruled that an uncounseled plea to an offense which subjected a defendant to the mere possibility of incarceration could not be used as a predicate offense for felony enhancement, regardless of the fact that there had been no actual imprisonment. 999 So. 2d at 1051. In so ruling, the Kelly court rejected the United States Supreme Court’s opinion in Nichols v. United States, 511 U.S. 738 (1994), and also departed from its previous practice of following United States Supreme Court precedent in right to counsel cases. 999 So. 2d at 1058 (Wells, J., dissenting).

The Kelly majority stressed the fact that the three prior misdemeanor DUIs are considered an element of a felony DUI and that the State has the burden of proving the convictions beyond a reasonable doubt. 999 So. 2d at 1038 n.7. As a result, the

Kelly court reasoned that a defendant has the right to challenge the validity of the conviction by asserting that he did not validly waive the right to counsel in a prior misdemeanor DUI. Id. While the logic of the Kelly majority is sound with regard to a defendant’s right to challenge elements of an offense, the practical problems created by allowing defendants to challenge prior convictions within the prosecution of current charges are highlighted by the case sub judice.

Because the rules of judicial administration only require misdemeanor records to be kept for five years, the State will often be unable to prove that DUI pleas extending further back than five years were counseled. See Fla. R. Jud. Admin. 2.430(c)(1)(c). By contrast, the felony DUI enhancement statute places no time limit on the use of prior DUI convictions. See § 316.193(2)(b)(3), Fla. Stat. (2008). Thus, the practical application of the Kelly opinion significantly impedes the clear legislative intent to treat a fourth DUI as a felony without time restrictions on the use of prior convictions.

In addition, the Kelly decision potentially prohibits the use of DUI convictions from other states to prove the elements of felony DUI. The use of previous convictions for DUI from other states is expressly permitted in section 316.193; however, if the state of origin does not afford defendants the same right to counsel, or if the prosecution cannot provide greater evidence than the conviction itself to support a counseled misdemeanor conviction, the elements of felony DUI may not be met.

Aside from the practical application of the Kelly opinion in terms of the State’s burden, recent case law indicates that Mr. Hyden would be foreclosed from attacking his conviction in the postconviction context. See Solano v. State, 32 So. 3d 648, 650 (Fla. 1st DCA 2010). Therefore, not only is Mr. Hyden barred from directly

attacking his 1983 conviction some twenty-six years later, but assuming arguendo that Mr. Hyden was afforded an attorney in the 1983 case, any claim that his attorney was ineffective is foreclosed. Based on this reasoning, a 1983 conviction would not be considered “void” in any other type of case. It is also worth noting that the conviction is not considered “void” in terms of its use for sentencing Mr. Hyden to all four-time DUI sanctions short of imprisonment.

Moreover, had Mr. Hyden been represented by counsel in 1983, it is highly unlikely that the outcome would have been any different. We know from the record that Mr. Hyden waived his right to counsel at his arraignment, approximately six weeks before the trial date. We also know from the record that while discussing the 1983 offense with the court in 2009, Mr. Hyden stated that his 1983 DUI was “no big deal” at the time. We also know that the statute allowing felony enhancement based on three prior convictions did not become law until 1987. Thus, in 1983 Mr. Hyden had no reason to be concerned about the future implications of his plea.

Following his 1983 DUI conviction, no one knew that Mr. Hyden would be arrested another four times for DUI, resulting in three additional DUI convictions and one reckless driving conviction. Despite his four previous DUI convictions, under our binding authority, Mr. Hyden is still only guilty of a misdemeanor in this case.

Finally, the Kelly court retroactively grants rights to criminal defendants that they did not have prior to 2008, i.e., the right to counsel in misdemeanor cases that did not result in confinement and were not punishable by more than six-months incarceration. Unfortunately, as Justice Wells’ dissent points out, “many other final convictions of repeat DUI offenders will be subject to further postconviction litigation to

determine whether those DUI convictions must be reversed because of the court’s new construction of the Florida Constitution.” 999 So. 2d at 1054 (Wells, J., dissenting). The Kelly decision thwarts the State of Florida’s ability to reach and punish the most deserving of punishment—those that have made the choice to drink and drive, putting others at risk.

Courtesy of David Edelstein

Supreme Court of Florida

No. SC11-1387

MANUEL VALLE,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[August 23, 2011]

PER CURIAM.

Manuel Valle, a prisoner under sentence of death, appeals the denial of his amended successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On June 30, 2011, the Governor signed a death warrant for Valle, and he was scheduled to be executed on August 2, 2011. Valle subsequently sought postconviction relief in the circuit court, raising numerous claims, including an Eighth Amendment challenge to the Florida Department of Correction‘s (DOC) June 8, 2011, lethal injection protocol, which replaced the first drug in its three-drug sequence, sodium thiopental, with another drug, pentobarbital sodium

(pentobarbital). Under this claim, Valle primarily argued that due to ?serious

concerns? regarding the efficacy of pentobarbital to render an inmate unconscious, the DOC‘s use of that drug in the protocol constitutes cruel and unusual punishment. After the circuit court summarily denied relief on his claims, this Court granted Valle‘s motion for a stay of execution, in part, until September 1, 2011, and temporarily relinquished jurisdiction for the narrow purpose of holding an evidentiary hearing on Valle‘s claim regarding the efficacy of pentobarbital as an anesthetic in the amount prescribed by Florida‘s protocol. Following an evidentiary hearing, the circuit court again denied relief. For the reasons set forth below, we now affirm the circuit court‘s orders and vacate the temporary stay of execution.

FACTS AND PROCEDURAL HISTORY

In 1978, Valle was charged with the first-degree murder of police officer Louis Pena, the attempted first-degree murder of police officer Gary Spell, and possession of a firearm by a convicted felon arising from an April 2, 1978, shooting in Coral Gables, Florida. Since the date of the crime, Valle‘s case has had a complex procedural history.1 Despite this history, the facts of Valle‘s case

1. In a prior decision, we succinctly summarized the procedural history as follows:

Valle was convicted of first-degree murder, attempted murder, and possession of a firearm, and was sentenced to death for the

have never been disputed and were set forth in Valle v. State (Valle IV), 581 So. 2d 40 (Fla. 1991), following the appeal from his third and final penalty phase:

On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped [Valle] and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, [Valle] was sitting in the patrol car with Officer Pena. Shortly

thereafter, Spell heard Pena use his radio to run a license check on the car [Valle] was driving. According to Spell, [Valle] then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. [Valle] also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Following his jury trial, [Valle was found guilty of the first-degree murder of Pena. He] was also found guilty of the attempted first-degree murder of Spell and after a non-jury trial, he was found guilty of possession of a firearm by a convicted felon.

Id. at 43 (quoting Valle II, 474 So. 2d at 798). This Court affirmed Valle‘s

murder charge. Valle v. State [(Valle I)], 394 So. 2d 1004 (Fla. 1981). On direct appeal, this Court reversed the convictions and

sentences and remanded for a new trial. Id. On retrial in 1981, Valle was again convicted on those three counts and again sentenced to death. The convictions and sentences were affirmed by this Court in Valle v. State [(Valle II)], 474 So. 2d 796, 806 (Fla. 1985). The United States Supreme Court subsequently vacated Valle‘s death

sentence and remanded the case to this Court for further consideration in light of Skipper v. South Carolina, 476 U.S. 1 (1986), regarding the admissibility of model prisoner testimony. Valle v. Florida, 476 U.S. 1102 (1986). We remanded for a new sentencing hearing before a new jury. Valle v. State [(Valle III)], 502 So. 2d 1225 (Fla. 1987).

Valle v. State (Valle V), 705 So. 2d 1331, 1332-33 (Fla. 1997) (parallel citations omitted).

convictions in 1985. Valle II, 474 So. 2d at 806.2

In 1988, Valle was resentenced. The jury recommended a sentence of death by a vote of eight to four. Valle IV, 581 So. 2d at 43. The sentencing court found that the evidence established the following aggravating circumstances: (1) Valle had been previously convicted of another violent felony; (2) the murder was of a law enforcement officer; (3) the murder was for the purpose of preventing lawful arrest; (4) the murder was committed to hinder the enforcement of laws; and (5) the murder was cold, calculated, and premeditated. Id. The sentencing court merged factors (2), (3), and (4) together, treating them as a single aggravating factor. Id. The court found no evidence of statutory mitigation and concluded that either the evidence did not establish nonstatutory mitigation or the nonstatutory mitigation was outweighed by the aggravating factors. Valle V, 705 So. 2d at 1333 n.1. This Court affirmed Valle‘s sentence of death in 1991. Valle IV, 581 So. 2d at 49.

In December 1993, Valle filed an amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court summarily denied the motion without holding an evidentiary hearing, and Valle appealed. Valle V, 705 So. 2d at 1333. This Court affirmed in part, but reversed and

2. Valle also pled guilty to automobile theft. See Valle I, 394 So. 2d at

1005.

remanded for an evidentiary hearing on two of Valle‘s ineffective assistance of counsel claims. Id. at 1333-34.3 After conducting the requisite evidentiary hearing on remand, the circuit court denied Valle‘s remaining rule 3.850 claims, and this Court affirmed. Valle v. State (Valle VI), 778 So. 2d 960, 964, 967 (Fla. 2001).

In December 2001, Valle petitioned this Court for a writ of habeas corpus based on the alleged ineffective assistance of appellate counsel. This Court denied the petition. See Valle v. Moore (Valle VII), 837 So. 2d 905 (Fla. 2002). In February 2003, Valle filed a successive habeas petition in this Court, raising a claim under Ring v. Arizona, 536 U.S. 584 (2002), which this Court summarily denied. See Valle v. Crosby, 859 So. 2d 516 (Fla. 2003) (unpublished table decision). He petitioned to the United State Supreme Court for a writ of certiorari, which was also denied. See Valle v. Crosby, 541 U.S. 962 (2004).

Valle later filed an amended federal habeas petition, raising claims previously addressed by this Court. See Valle v. Crosby (Valle VIII), No. 03- 20387CIV, 2005 WL 3273754 (S.D. Fla. Sept. 13, 2005). The federal district court denied his petition, and the United States Court of Appeals for the Eleventh Circuit affirmed. See Valle v. Sec‘y for the Dep‘t of Corr. (Valle IX), 459 F.3d

3. This Court reversed for an evidentiary hearing on the claim that counsel was ineffective for presenting model prisoner evidence and for failing to move for a mistrial and disqualification of the resentencing judge after the judge allegedly kissed the victim‘s widow in front of the jury. See id.

1206 (11th Cir. 2006), reh‘g en banc denied, 478 F.3d 1326 (11th Cir. 2007). Thereafter, Valle sought review of the Eleventh Circuit‘s affirmance by the Supreme Court through a petition for writ of certiorari, which was denied on October 1, 2007. See Valle v. McDonough, 552 U.S. 920 (2007).

On June 30, 2011, Governor Rick Scott signed a death warrant, and Valle‘s execution was set for August 2, 2011. Twenty-two days prior, on June 8, 2011, the DOC had promulgated a revised lethal injection procedure, replacing the first drug in its three-drug protocol, sodium thiopental, with another barbiturate, pentobarbital.4 The DOC‘s recent substitution of the drug comes more than three years after this Court upheld the August 2007 three-drug protocol against a constitutional challenge in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007), and after a majority of the United States Supreme Court upheld the

constitutionality of a similar protocol in Baze v. Rees, 553 U.S. 35 (2008).5 The parties agree that aside from substituting pentobarbital for sodium thiopental, the DOC‘s lethal injection protocol has remained unaltered.

In response to the signing of the death warrant, Valle filed a successive

4. Pentobarbital is also known by its brand name, Nembutal.

5. See Schwab v. State, 995 So. 2d 922, 924-33 (Fla. 2008) (approving and adopting the trial court‘s analysis, which concluded that Florida‘s August 2007 lethal injection protocol was ?substantially similar? to the Kentucky protocol at issue in the Baze decision).

amended motion for postconviction relief, raising six claims.6 Among other issues, he argued that due to ?serious concerns? regarding the efficacy of pentobarbital to render an inmate unconscious, the DOC‘s use of that drug in the protocol constitutes cruel and unusual punishment in contravention of the Eighth Amendment. After the State filed its response, the circuit court held an initial hearing pursuant to Florida Rule of Criminal Procedure 3.851(h)(6) on July 11, 2011, to determine whether an evidentiary hearing would be held. At the conclusion of the hearing, the circuit court summarily denied all of Valle‘s claims, and Valle appealed the summary denial to this Court.7 A majority of the Court

6. The circuit court permitted Valle to amend only his claim regarding the constitutionality of Florida‘s lethal injection procedures. His postconviction motion, as amended, raised the following claims: (1) he is being denied full and fair postconviction proceedings in violation of his right to due process as a result of the expedited process and truncated schedule set by the circuit court following the signing of his death warrant; (2) in light of the DOC‘s change in the lethal injection protocol on June 8, 2011, substituting the drug pentobarbital for sodium thiopental, Florida‘s lethal injection statute and the existing procedure the State utilizes for lethal injection are unconstitutional facially and as applied; (3) he was unconstitutionally denied a clemency investigation and proceedings and denied the assistance of counsel to prepare a clemency petition; (4) the arbitrary and standardless process by which the Governor signs a death warrant renders Florida‘s capital sentencing scheme unconstitutional; (5) his thirty-three year incarceration on death row violates the Eighth Amendment and is prohibited under Lackey v. Texas, 514 U.S. 1045 (1995); and (6) as a Cuban national, he was deprived his right under Article 36 of the Vienna Convention of consular notification upon his arrest.

7. Valle‘s claims on appeal are largely duplicative of his postconviction claims and include the following: (1) he has been denied access to public records to which he is entitled in violation of Florida Rule of Criminal Procedure 3.852 and

determined that Valle‘s claim as to the use of pentobarbital as an anesthetic in the amount prescribed by Florida‘s protocol warranted an evidentiary hearing. Chief Justice Canady dissented, with whom Justices Lewis and Polston joined. This Court therefore granted a stay of execution until September 1, 2011, and temporarily relinquished jurisdiction for the purpose of holding an evidentiary hearing on that discrete issue alone. The Court also directed the DOC to produce correspondence and documents it had received from the manufacturer of pentobarbital, Lundbeck, Inc., concerning the drug‘s use in executions, including those materials addressing any safety and efficacy issues.

Pursuant to this Court‘s order, the circuit court conducted an evidentiary hearing on July 28 and August 2, 2011, during which Valle presented the testimony of Dr. David Waisel, an anesthesiologist, and federal public defender Matt Schulz, who witnessed the June 16, 2011, execution of his client, Eddie Powell, in Alabama. Valle also offered into evidence several letters, which were written by Lundbeck to the DOC and Governor Scott regarding the company‘s

Chapter 119, Florida Statutes; (2) Florida‘s lethal injection procedures violate the Eighth Amendment prohibition against cruel and unusual punishment; (3) the circuit court erred in summarily denying his claim that he was denied a clemency investigation and proceeding and was denied the assistance of counsel to prepare for such a proceeding; (4) the circuit court erred in summarily denying his claim that the Governor‘s arbitrary decision to sign a death warrant is unconstitutional; (5) the amount of time he has served on death row constitutes cruel and unusual punishment; and (6) as a Cuban national, he was deprived his right under Article 36 of the Vienna Convention of consular notification upon his arrest.

opposition to the use of its drug in executions. In rebuttal, the State presented the testimony of Dr. Mark Dershwitz, an anesthesiologist, and John Harper and Dr. Jacqueline Martin, both of whom witnessed the June 23, 2011, execution of Roy Blankenship in Georgia.

Following the presentation of this evidence, the circuit court entered its order denying Valle‘s claim that the substitution of pentobarbital as an anesthetic violated the Eighth Amendment. Jurisdiction has since returned to this Court, and we now consider all pending issues on appeal.8

ANALYSIS

Constitutionality of Florida’s Lethal Injection Procedures

In this claim, Valle raises various challenges to the constitutionality of Florida‘s lethal injection procedures, but the bulk of his argument focuses on the DOC‘s June 8, 2011, substitution of five grams of pentobarbital for five grams of sodium thiopental as the first of three drugs used in the lethal injection protocol. In Florida, the first drug is used to anesthetize the condemned inmate prior to the administration of the final two drugs in the three-drug sequence, pancuronium bromide (a paralytic agent that can stop respiration) and potassium chloride (a substance that will cause the heart to stop). Valle acknowledges that aside from

8. Valle also argues that because the circuit court made erroneous evidentiary rulings during the relinquishment proceedings, he was denied a full and fair hearing.

substituting pentobarbital for sodium thiopental, both of which are barbiturates, Florida‘s lethal injection protocol has remained unaltered since this Court‘s decision in Lightbourne, which upheld the August 2007 lethal injection protocol against a similar constitutional challenge. He therefore argues that the DOC‘s plan to use pentobarbital constitutes cruel and unusual punishment because as a result of the substitution, he may remain conscious after being injected with pentobarbital, thereby subjecting him to significant pain during the administration of the final two drugs. As presented, the DOC‘s recent replacement of sodium thiopental with pentobarbital in Florida‘s three-drug lethal injection sequence is the primary claim underlying Valle‘s Eighth Amendment challenge.

Pursuant to this Court‘s order of relinquishment, the circuit court conducted a two-day evidentiary hearing, which included the admission of expert testimony from both parties, letters authored by Lundbeck, and eyewitness testimony from individuals who were present during the executions of Alabama inmate Eddie Powell and Georgia inmate Roy Blankenship. After receiving this evidence, the circuit court denied relief, concluding that the substitution of pentobarbital as an anesthetic did not violate the Eighth Amendment because the evidence failed to establish that the intravenous administration of pentobarbital creates a substantial risk of serious harm. After a thorough review of the record, we affirm the circuit court‘s denial.

This Court has previously recognized its duty ?to ensure that the method used to execute a person in Florida does not constitute cruel and unusual

punishment.? Lightbourne, 969 So. 2d at 349. To fulfill its obligation, this Court is guided by article I, section 17 of the Florida Constitution, which provides that

?[a]ny method of execution shall be allowed, unless prohibited by the United States Constitution.? Specifically, Florida‘s provision on the prohibition against cruel and unusual punishment ?shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States

Constitution.? Art. I, § 17, Fla. Const. Therefore, in accordance with our state constitution, this Court is bound by the precedent of the Supreme Court regarding challenges to this state‘s chosen method of execution. See Lightbourne, 969

So. 2d at 335 (?[W]e must evaluate whether lethal injection is unconstitutional ?in conformity with decisions of the United States Supreme Court.‘ ? (quoting art. 1, § 17, Fla. Const.)).

The parties agree that Valle‘s various challenges to the DOC‘s lethal injection procedures are governed by the Supreme Court‘s plurality decision in Baze v. Rees, 553 U.S. 35 (2008), which defined the contours of a condemned inmate‘s burden of proof for mounting a successful Eighth Amendment challenge

to a state‘s lethal injection protocol.9 Although acknowledging that ?subjecting individuals to a risk of future harm—not simply actually inflicting pain—can qualify as cruel and unusual punishment,? the Supreme Court in Baze explained that to prevail on such a claim, condemned inmates must demonstrate that ?the conditions presenting the risk must be ?sure or very likely to cause serious illness and needless suffering,‘ and give rise to ?sufficiently imminent dangers.‘ ? 553 U.S. at 49-50 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)) (plurality opinion); see also Brewer v. Landrigan, 131 S. Ct. 445, 445 (2010)

(?[S]peculation cannot substitute for evidence that the use of the drug is ?sure or very likely to cause serious illness and needless suffering.‘ ? (quoting Baze, 553 U.S. at 50)). That is, ?there must be a ?substantial risk of serious harm,‘ an

?objectively intolerable risk of harm‘ that prevents prison officials from pleading that they were ?subjectively blameless for purposes of the Eighth Amendment.‘ ?

9. In Lightbourne, which predates the Supreme Court‘s decision in Baze, this Court held that inmate Lightbourne failed to establish that Florida‘s August 2007 lethal injection protocol violated the Eighth Amendment since he did not show ?a substantial, foreseeable or unnecessary risk of pain in the DOC‘s procedures for carrying out the death penalty through lethal injection.? Lightbourne, 969 So. 2d at 353. After Baze was decided, this Court rejected the notion that Baze required reconsideration of our decision in Lightbourne and concluded that Florida‘s 2007 procedures passed constitutional muster under any of the risk-based standards. See Ventura v. State, 2 So. 3d 194, 200 (Fla. 2009)

(?Florida‘s current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court (and would also easily satisfy the intent-based standard advocated by Justices Thomas and Scalia).?).

Baze, 553 U.S. at 50 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n.9 (1994)). This standard imposes a ?heavy burden? upon the inmate to show that lethal injection procedures violate the Eighth Amendment. Id. at 53 (quoting Gregg v. Georgia, 428 U.S. 153, 175 (1976)).

Cognizant of this standard, we now turn to Valle‘s challenge to the DOC‘s substitution of pentobarbital for sodium thiopental. In the lethal injection context, ?the condemned inmate‘s lack of consciousness is the focus of the constitutional

inquiry.? Ventura, 2 So. 3d at 200; see also Schwab, 995 So. 2d at 924, 927 (adopting the trial court‘s order, which stated that ?the critical Eighth Amendment concern is whether the prisoner has, in fact, been rendered unconscious by the first drug?). As we explained in Lightbourne, ?[i]f the inmate is not fully unconscious when either pancuronium bromide or potassium chloride [the second and third drugs in the protocol] is injected, or when either of the chemicals begins to take effect, the prisoner will suffer pain.? 969 So. 2d at 351; see also Baze, 553 U.S. at 53 (?[F]ailing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.?).

In order to show the risks of using pentobarbital as a substitute, Valle relies extensively on the testimony of Dr. Waisel, who testified that pentobarbital and

sodium thiopental are not interchangeable barbiturates, that five grams of sodium thiopental are not proportionally equivalent to five grams of pentobarbital, and that due to a lack of research, he would be unable to determine a dose of pentobarbital that would properly anesthetize an individual. Instead, he could only testify as to the amount needed to sedate someone. According to Dr. Waisel, a sedated patient may still be responsive while an anesthetized patient may be unconscious enough to undergo an open-chest surgery. In his opinion, the allowable upper dose needed to sedate a person would fall between 200 and 500 milligrams of pentobarbital, but he acknowledged that the amount used by the DOG for anesthetizing an inmate is 5000 milligrams. Although Dr. Waisel identified the use of pentobarbital to induce anesthesia as ?off label,? since the drug‘s package insert10 does not mention induction of anesthesia as an indication, he testified that there are legitimate ?off

label? uses for drugs. In fact, Dr. Waisel agreed that pentobarbital is used as part of physician-assisted suicide and animal euthanasia procedures. In sum, Dr. Waisel opined that because there is insufficient data regarding the use of pentobarbital as an anesthetic, there would be no way to know, in any given case, how an overdose of the drug will affect healthy inmates.

10. Dr. Waisel testified that the Food and Drug Administration (FDA) approves the package insert, which accompanies a manufacturer‘s drug as distributed. He further explained that the FDA approves the indications for a drug based on studies submitted by the drug‘s manufacturer.

In opposition, the State presented the testimony of Dr. Dershwitz, who testified that 5000 milligrams of pentobarbital, as provided for in the DOC‘s lethal injection protocol, is ?far in excess of the dose that would be used in a human for any reason.? According to Dr. Dershwitz, that dosage of pentobarbital is lethal standing alone, and when administered, the drug will induce a total flat line on the electroencephalogram (EEG) in brain activity, meaning that the person into whom the drug is injected will have no perception or sensation. Although Dr. Dershwitz acknowledged that the FDA had not approved pentobarbital for use in lethal injections, like Dr. Waisel, he explained that its use for such purposes was considered ?off label? and that using a drug in an ?off-label? manner is ?common in medicine.?

In reviewing this portion of Valle‘s claim, the circuit court credited the testimony of Dr. Dershwitz over that of Dr. Waisel, specifically finding Dr. Dershwitz‘s testimony to be ?credible and persuasive? and Dr. Waisel‘s testimony to be ?based on speculation? and ?therefore, inherently unreliable.? As we have previously explained, where ?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.? Provenzano v. State, 761

So. 2d 1097, 1099 (Fla. 2000) (quoting Blanco v. State, 702 So. 2d 1250, 1252

(Fla. 1997)); see id. at 1098-99 (applying competent, substantial evidence standard to review Provenzano‘s Eighth Amendment challenge to Florida‘s lethal injection procedure following an evidentiary hearing on the issue). In applying this standard, ?[w]e recognize and honor the trial court‘s superior vantage point in assessing the credibility of witnesses and in making findings of fact.? Porter v. State, 788 So. 2d 917, 923 (Fla. 2001). This stems from our recognition that ?the trial court is in the best position to evaluate the credibility of witnesses, and appellate courts are obligated to give great deference to the findings of the trial

court.? Durousseau v. State, 55 So. 3d 543, 562 (Fla. 2010), petition for cert. filed, No. 10-10518 (U.S. May 10, 2011).

Based upon the testimony presented, the circuit court concluded that Dr. Dershwitz ?refuted any suggestion that the dose of pentobarbital in the Florida lethal injection protocol would leave an inmate conscious and able to experience pain and suffering during the lethal injection process.?11 The circuit court‘s findings are borne out by the testimony and are well-supported by the record. While Dr. Waisel opined that he would be unable to determine whether pentobarbital would produce its intended effect (i.e., to anesthetize the inmate before the administration of the last two drugs in the three-drug sequence), in the

11. We note that the condemned inmates in Baze actually proposed a one-drug, barbiturate-only protocol, using either pentobarbital or sodium thiopental. See Baze, 553 U.S. at 56-58.

end, he did not testify that the drug would fail to do so. By asserting that no evidence exists concerning whether pentobarbital will render an inmate unconscious, Valle has failed to meet his burden of proof.12 As the circuit court correctly recognized, Dr. Waisel‘s asserted lack of knowledge about pentobarbital‘s effects falls short of the heavy burden of affirmatively showing that the drug is sure or very likely to cause serious illness and needless suffering or that its use will result in a substantial risk of serious harm. See DeYoung v. Owens, No. 11-13235, 2011 WL 2899704, at *4 n.4 (11th Cir. July 20, 2011) (?DeYoung also alleges that pentobarbital has not been sufficiently tested for its ability to cause an anesthetic coma in fully conscious persons. However, DeYoung‘s expert candidly admits he does not know how the State‘s dosage of pentobarbital will affect inmates because he claims there is no way to know. This asserted lack of knowledge obviously cannot satisfy DeYoung‘s burden of affirmatively showing that a substantial risk of serious harm exists.?).13

12. Valle also overlooks the fact that the portion of Florida‘s lethal injection protocol ensuring that an inmate is unconscious prior to the administration of the second and third drugs has not been altered since we approved the August 2007 protocol in Lightbourne. Under the current protocol, if the administration of pentobarbital does not render Valle unconscious, he will not be injected with the final two drugs, and the execution will be suspended until Valle is unconscious.

13. To the extent Valle asserts that the use of pentobarbital creates a risk of serious harm in light of the fact that it may be from a foreign source or lacks FDA approval for use in lethal injections, we reject these claims, as other courts have similarly done. See Landrigan, 131 S. Ct. at 445 (vacating a stay of execution that

Despite Dr. Dershwitz‘s testimony, Valle also relies on a collection of letters sent from Lundbeck, the manufacturer of pentobarbital, to the DOC and the Governor stating that the use of pentobarbital outside of the approved label has not been established, and that consequently, Lundbeck could not assure the associated safety and efficacy profiles in such instances. These letters further requested that this state stop using pentobarbital to execute prisoners.14

was based upon a finding that the inmate had a substantial likelihood of success on the merits regarding his claim that the use of sodium thiopental manufactured by a foreign source and not approved by the FDA created a substantial and unnecessary risk of serious harm); Cook v. Brewer, 637 F.3d 1002, 1006-07 (9th Cir. 2011)

(?Cook relies on his allegations that Arizona‘s sodium thiopental is imported and not approved by the FDA. But Landrigan . . . advises that these facts are not sufficient to state a plausible Eighth Amendment claim.?). As to his claim that pentobarbital may be procured illegally, we deny this claim as speculative and insufficiently pled since Valle has failed to allege how this fact would create a substantial risk of serious harm.

14. Lundbeck‘s April 21, 2011, letter to the DOC specifically provided as follows:

Lundbeck is adamantly opposed to the use of Nembutal [i.e., pentobarbital], or any product for that matter, for the purpose of capital punishment.

We recognize that we cannot control how licensed health care professionals use this or any pharmaceutical product. Nevertheless, we urge you to refrain from using Nembutal in the execution of prisoners in your state because it contradicts everything we are in business to do—provide therapies that improve people‘s lives.

In the company‘s June 8, 2011, letter to the DOC, Lundbeck stated that ?[t]he use of pentobarbital outside of the approved labeling has not been established? and that ?Lundbeck cannot assure the associated safety and efficacy profiles in such

instances,? causing ?concern[] about its use in prison executions.?

The circuit court concluded that these letters carried no weight and exhibited no legal value because ?[t]here was no mention of medical evidence or anything relevant to the court‘s inquiry.? We agree. The experts for both Valle and the State recognized that a variety of drugs have acceptable ?off-label? uses. Lundbeck‘s opposition to the use of pentobarbital and asserted lack of information as to the drug‘s efficacy and safety for use in lethal injections do nothing to establish a substantial risk of serious harm. See, e.g., West v. Brewer, No. CV-11- 1409-PHX-NVW, 2011 WL 2836754, at *8 (D. Ariz. July 18, 2011) (finding the manufacturer‘s ?warning? against the use of pentobarbital in executions unpersuasive since it did not establish a substantial risk of harm), aff‘d, No. 11- 16707, 2011 WL 2811304 (9th Cir. July 18, 2011); Powell v. Thomas, No. 2:11- CV-376-WKW, 2011 WL 1843616, at *8 n.7 (M.D. Ala. May 16, 2011)

(?Williams emphasizes that the manufacturer of pentobarbital has pronounced that it is opposed to its drug being used for executions, but fails to demonstrate how that fact is in any way relevant to the issues and his burden.?), aff‘d, 641 F.3d 1255 (11th Cir.), cert. denied, 131 S. Ct. 2487 (2011).

A May 16, 2011, letter from Lundbeck to Governor Scott referencing a letter it had previously sent to the DOC noted that the DOC had failed to respond to its letter and requested that the Governor take immediate action to stop the use of pentobarbital as a means to end lives. A June 8, 2011, letter to Governor Scott is duplicative of the June 8 letter Lundbeck sent to the DOC.

Valle also alleges that Lundbeck published position papers to the same

effect.

To further buttress his assertion that the drug‘s substitution amounts to an Eighth Amendment violation, Valle points to the recent executions of Alabama inmate Eddie Powell and Georgia inmate Roy Blankenship. Valle contends that Alabama‘s and Georgia‘s use of pentobarbital to execute inmates resulted in botched executions or executions that did not go according to plan. With respect to the Powell execution, Valle presented the testimony of Powell‘s attorney, Matt Schulz, who was able to observe Powell‘s left side, face, and right arm during the execution. As Schulz explained, after the warden permitted Powell to recite his last words, the warden walked behind Powell and made an announcement that the execution was to be carried out; the intravenous (IV) lines ran into a wall, which led to a room outside the execution chamber. Schulz testified that he could not see the drugs being administered and did not know when the injections began. After the warden left the execution chamber, Schulz explained, a chaplain took Powell‘s left hand and spoke to Powell for around thirty seconds to a minute, during which Powell turned to Schulz, ?nodded a little bit and then took a deep breath and laid his head back.?

By Schulz‘s account, approximately one minute later, Powell suddenly jerked his head up, it appeared as though his upper body was pressing against the restraints, and he looked around with confusion. Schulz asserted that Powell clenched his jaw, flexed his muscles, and his arteries bulged. This episode lasted

approximately one minute, and then Powell‘s eyes glazed over, rolled back into his head, and then his head rested. As Schulz described it, after a few minutes, a guard approached Powell, yelled his name three times, and then ran his finger over Powell‘s left eyelash; Powell did not respond to the guard‘s actions. After a couple of minutes, Schulz noticed that Powell‘s eyes were slightly opened, although Schulz did not actually see at what point they opened. Schulz also did not see Powell‘s eyes close, but remembered that by the end of the procedure, which lasted around twenty to twenty-five minutes, Powell‘s eyes were fully closed.

The circuit court rejected Schulz‘s testimony as speculative and concluded that ?[e]ven if the entire situation lasted one minute, it certainly does not establish that [Powell] suffered to establish an Eighth Amendment claim.? As the circuit court more fully explained:

The only witness testifying about the execution of Powell did

not know when the pentobarbital was administered. The relationship between the supposed short term movements reported and the

administration of pentobarbital is totally speculative. Nor was Schulz aware of the amount of drugs used in that instance. Schulz stated that the inmate did not move after the consciousness check was done by

the prison officials. This same consciousness check is included in the Florida protocol. If after the initial administration of pentobarbital the inmate shows any signs [of] responsiveness, more anesthetic (pentobarbital) is administered. No additional drugs were necessary

for Powell, according to the testimony, suggesting that the inmate was unconscious and the pentobarbital was effective in rendering him unconscious.

We accept the circuit court‘s findings as supported by competent, substantial

evidence.

As to the Blankenship execution, Valle again relies on the testimony of Dr. Waisel, who was not present at the execution but testified that Blankenship

?suffered extremely.? After reviewing various materials,15 Dr. Waisel opined that based on reports, Blankenship looked at his arms with discomfort and pain, grimaced, jerked his head up, and continued breathing and mouthing words for up to what was reported to be three minutes. Dr. Waisel explained that Blankenship‘s movement should have stopped fifteen seconds after the pentobarbital reached his body, and given that Blankenship‘s body movements lasted for three minutes, the drug did not work as it was intended. Dr. Waisel never opined as to what time the pentobarbital was actually administered.

To rebut Dr. Waisel‘s testimony, the State presented the eyewitness testimony of John Harper and Dr. Jacqueline Martin. According to Harper, who works for the Georgia Department of Corrections, Blankenship had an IV line running into each of his arms. Harper observed Blankenship look at his left arm about five seconds after the start of the first syringe, which was injected into

15. In reaching his opinion on this matter, Dr. Waisel relied on the following collateral information: (1) an affidavit and interview of Greg Bluestein, a reporter who witnessed the execution; (2) affidavits of other purported eyewitnesses who were also reporters, including Eddie Ledbetter and Mitchell Pearce; (3) the 2007 and 2011 Florida lethal injection protocols; (4) letters from Lundbeck; and (5) affidavits described as being from Georgia Department of Corrections employees or other state officials, without further elaboration.

Blankenship‘s right arm. Harper testified that within ten seconds of the first drug‘s administration, Blankenship appeared to be unconscious, and other than Blankenship looking at his left arm and making what he described as a ?grunt? sound, he did not observe anything else. Similarly, Dr. Martin stated that two or three minutes after the warden left the execution chamber, Blankenship looked at his left arm, moved his mouth, looked at his right arm, put his head down on a pillow, and then did not move. She observed no obvious signs of distress or facial features indicating pain, and in her medical opinion, Blankenship was not in pain during the execution.

In reviewing the above testimony, the circuit court determined that the State presented two ?very credible witnesses? who testified consistently with one another and found that that there was no indication that Blankenship experienced pain or suffering. The court more fully explained:

Of all the witnesses on the issue of the Blankenship execution, Harper [was] the most credible on this topic. He actually could hear

and could see the pushing of the syringes and was keeping a time log. His testimony [was] in keeping, ironically, with the acceptable parameters testified to by Dr. Waisel. Waisel stated that if the pentobarbital were to work properly that it would take effect within

fifteen (15) seconds. That it did, according to the only witness able to testify with any degree of certainty as to the timing of the administration of the drugs and rendering of unconsciousness.

. . . .

Dr. Martin‘s testimony [was] consistent with that of Mr. Harper. She is a medical professional who could see Blankenship‘s actions and facial features. Her interpretation of his reactions to the drugs substantiate that Blankenship in no way experienced pain or

suffering.

After noting that Dr. Waisel was not present at the execution, but rather relied upon the affidavit of a reporter who was not called to testify, the circuit court further found as follows:

The testimony of the witnesses to Blankenship‘s execution

differed with regard to the amount and nature of the movement by Blankenship. No one could testify conclusively about the relationship between the reported movement and the administration of

pentobarbital with the exception of the state‘s witness, John Harper. He reported only minimal movement and within seconds of the

pushing of the syringe. There is no indication that the inmate was in any discomfort much less pain or suffering; only that he glanced at his arm and gave a grunt. Within ten (10) seconds the inmate was unconscious, according to Harper, who was not only in a more

advantageous place to see and note what was taking place. He also kept a time log.

To the extent that the witnesses differed in their testimony, this court resolves credibility issues in favor of Mr. Harper who is

accustomed to watching executions and thus, has a more objective view. He testified quite credibly and persuasively. Further, there was no movement of the inmate reported by any witnesses after the prison official‘s consciousness check.

The circuit court‘s resolution of this issue is supported by competent, substantial evidence.

Valle attempts to use the Powell and Blankenship executions to show that the administration of pentobarbital does not adequately render an inmate unconscious. However, the record before this Court supports the circuit court‘s findings to the contrary. Nevertheless, even if we were to assume that problems arose during the course of the Blankenship and Powell executions, the United

States Supreme Court has advised that ?an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a

?substantial risk of serious harm.‘ ? Baze, 553 U.S. at 50 (quoting Farmer, 511 U.S. at 842). Thus, Valle has failed to satisfy the Baze standard, which requires proof that the replacement of the drug is ?sure or very likely to cause serious illness and needless suffering.? Id. (quoting Helling, 509 U.S. at 34).

Valle does not, however, premise his Eighth Amendment claim solely on the DOC‘s recent substitution of pentobarbital for sodium thiopental. Rather, Valle contends that the substitution of the drug, coupled with inadequate procedural safeguards and a cavalier attitude toward lethal injection, puts him at risk of serious harm. Specifically, Valle notes the existence of various inadequacies in Florida‘s lethal injection procedures, including how the drugs are administered and the manner in which consciousness is assessed and monitored. Referring to what he describes as Florida‘s unique history of deviating from written execution protocols and citing to the Angel Diaz execution in 2006 as one example, Valle also asserts inadequate qualifications, certification, training, and experience of execution team members, inadequate monitoring of the IV lines, and the DOC‘s failure to conduct a meaningful review and certification of its process.

Because Valle agrees that other than replacing sodium thiopental with

pentobarbital, the DOC‘s June 2011 protocol is identical to the August 2007 lethal injection protocol that this Court upheld in Lightbourne, the circuit court did not err in summarily denying this portion of Valle‘s claim. The factual circumstances surrounding the execution of Diaz were thoroughly litigated in Lightbourne, and since that time, there have been five executions without subsequent allegations of newly discovered problems with Florida‘s lethal injection process. See Tompkins v. State, 994 So. 2d 1072, 1081-82 (Fla. 2008) (affirming summary denial of challenge to lethal injection procedures and noting that after the Lightbourne decision, two executions had been conducted in Florida with no subsequent allegations of problems giving rise to the investigations following the Diaz execution). The remaining aspects of the protocol to which Valle currently takes issue were rejected on the merits in Lightbourne, 969 So. 2d at 350-53, and in subsequent cases. See, e.g., Baze, 553 U.S. at 53-61 (rejecting claims regarding the inadequate administration of the lethal injection protocol, the risk that the procedures will not be properly followed, the absence of additional monitoring by trained personnel, inadequate training, issues with the placement and monitoring of IV lines, the lack of professional medical experience, and the need for a significant consciousness test); Troy v. State, 57 So. 3d 828, 839-40 (Fla. 2011) (rejecting Troy‘s claims regarding deficiencies in Florida‘s lethal injection protocol including that the protocol fails to require that the execution team and the medical personnel

who perform lethal injection have appropriate training, credentials, and supervision, fail to require adequate record-keeping and an adequate review and certification process, and fail to require adequate standards to manage complications inherent in the procedure).16

As recognized above, the Baze standard requires proof that Florida‘s lethal injection procedures are sure or very likely to cause serious illness and needless suffering or will result in a substantial risk of serious harm. See 553 U.S. at 50. After reviewing the evidence and testimony presented below, we conclude that Valle has failed to satisfy the ?heavy burden? that Florida‘s current lethal injection procedures, as implemented by the DOC, are constitutionally defective in violation of the Eighth Amendment of the United States Constitution. We thus affirm the circuit court‘s orders.

Evidentiary Rulings

Based upon several adverse evidentiary rulings the circuit court made during the relinquishment period, Valle argues that he was denied a full and fair

16. To the extent that Valle‘s claims are not duplicative of those in Lightbourne and later cases, we conclude that Valle ?is not entitled to relief under the analogous and comprehensive analysis we undertook in Lightbourne.? Troy, 57 So. 3d at 840. In Troy, we reaffirmed the principle that ?[a] claim that the protocol can be improved and the potential risks of error reduced can always be

made,? but ?this Court‘s role is not to micromanage the executive branch in fulfilling its own duties relating to executions.? Id. (quoting Lightbourne, 969 So. 2d at 351).

evidentiary hearing. We disagree and find no error in the circuit court‘s rulings.

Valle first argues that the circuit court improperly excluded seven witnesses employed by the DOG whose testimony he wished to present during the evidentiary hearing to discuss the ?safety and efficacy? of pentobarbital in executions.17 He supports this claim, however, by misconstruing our order of relinquishment. ?It is well settled that ?[t]he admissibility of evidence is within the sound discretion of the trial court, and the trial court‘s determination will not be disturbed on appellate review absent a clear abuse of that discretion.‘ ? Rimmer v. State, 59 So. 3d 763, 774 (Fla. 2010) (quoting Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005)). The court granted the State‘s motion to strike the defense‘s witnesses on the grounds that the testimony was not relevant, citing the narrow scope of this Court‘s relinquishment order. We agree and hold that the circuit court did not abuse its discretion.

By the order‘s express terms, we relinquished jurisdiction ?for the narrow purpose of holding an evidentiary hearing solely on Valle‘s claim regarding the efficacy of pentobarbital as an anesthetic in the amount prescribed by Florida‘s

17. In his amended witness list, Valle sought to elicit testimony from the following individuals: (1) Russell Hosford, who is alleged to be the Director of the Office of Institutions for DOG; (2) Jennifer Parker, who is employed by the DOG; (3) Timothy Gannon, who is alleged to be the execution team leader for lethal injection executions; (4) Edwin Buss, who is the Secretary of the DOG; (5) Rana Wallace, who is employed by the DOG; (6) the primary executioner; and (7) the secondary executioner.

protocol? and prohibited Valle from raising any other claims. Valle v. State, No. SC11-1387 (Fla. Sup. Ct. order filed July 25, 2011). This Court‘s concern focused on evidence relating to whether the drug would sufficiently render an inmate unconscious before the administration of the last two drugs in the three-drug sequence. Valle has failed to establish how his witnesses—who he alleges would have testified regarding the DOC‘s response after receiving letters from Lundbeck, the source of pentobarbital, or the procedure by which the DOC assesses consciousness during an execution—were relevant to the narrow purpose of the evidentiary hearing. As noted above, this Court agrees with the circuit court‘s conclusion that the Lundbeck letters are of no legal value and irrelevant to our Eighth Amendment inquiry. Accordingly, the circuit court did not abuse its discretion in striking Valle‘s witnesses.

Next, Valle argues that the circuit court improperly excluded the affidavits of two reporters, Greg Bluestein and Eddie Ledbetter. Attached to these affidavits were newspaper articles written by the affiants chronicling their eyewitness accounts of the Blankenship execution. Regardless of the information contained therein, these items constitute inadmissible hearsay. See Robinson v. State, 707 So. 2d 688, 691 (Fla. 1998) (holding that codefendant‘s affidavit recanting testimony and proffered by the defendant constituted inadmissible hearsay because the codefendant failed to appear at the hearing and affidavit did not come within

any hearsay exception); Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996) (?A newspaper article, introduced to prove the truth of out of court statements contained therein, constitutes inadmissible hearsay.?). Although Valle generally references the journalistic privilege and the manner in which to authenticate

business records, he fails to explain why these documents do not constitute hearsay or fall within any applicable hearsay exception. Thus, we conclude that the circuit court did not abuse its discretion in excluding these items from consideration.

Lastly, Valle contends that because the circuit court excluded the Bluestein and Ledbetter affidavits, the court erred in allowing the State to present the testimony of John Harper and Dr. Jacqueline Martin, both of whom gave eyewitness accounts of the Blankenship execution. Valle sought to strike these witnesses, asserting that their sole purpose was to rebut the defense‘s affidavits, which were not admitted into evidence. In his lethal injection claim, however, Valle candidly acknowledges that he presented evidence regarding Blankenship‘s execution through Dr. Waisel, who relied on Bluestein‘s and Ledbetter‘s reports in forming his opinion. Contrary to Valle‘s contention, the State‘s witnesses did not become irrelevant after the exclusion of the Bluestein and Ledbetter affidavits; instead, their testimony served to rebut Dr. Waisel‘s account of the execution. Accordingly, the circuit court did not abuse its discretion in denying Valle‘s motion to strike the State‘s witnesses.

Denial of Public Records Requests

In conjunction with Valle‘s challenge to Florida‘s lethal injection procedures, we next address his contention that the circuit court erred in denying his various requests for public records needed to establish this claim. Specifically, Valle challenges the circuit court‘s denial of his request for records from the DOC, the Office of the Attorney General, the Office of the Governor, and the Florida Department of Law Enforcement (FDLE). He asserts that compliance with such records requests was essential to obtain information regarding Florida‘s lethal injection procedures.

The circuit court granted, in part, Valle‘s demands for public records. As a result, Valle was provided with information regarding the substitution of the first drug and how the new procedures would be implemented. The State provided Valle‘s counsel with a copy of the new lethal injection protocol, which sets forth in detail how the drug is to be administered. Valle was also provided with training logs for execution trainings that occurred in 2010 and 2011, with the most recent exercise occurring in May 2011. In compliance with the circuit court‘s order, the Office of the Attorney General provided records to Valle regarding that agency‘s approval and review of changes to the protocol.18 The records disclosed included

18. The Office of the Governor represented that it did not have records regarding the constitutionality of the procedures leading up to the promulgation of the June 2011 protocol.

the following: a November 18, 2010, affidavit from Dr. Dershwitz criticizing Dr. Waisel‘s opinion; an expert report authored by Dr. Dershwitz in which he opines that there is negligible risk that if five grams of pentobarbital are administered, the inmate would experience any pain and suffering associated with the administration of the subsequent two drugs; and research studies regarding the use of high-dose barbiturate therapy, and in particular, pentobarbital. The DOC also provided Valle with records pertaining to the 2007 and 2011 lethal injection procedures and various checklists regarding the procedure for executing a condemned inmate.

While the State did disclose many records, Valle contends that further disclosures will assist him in establishing an Eighth Amendment violation because they will essentially reveal the following: (1) that sodium thiopental and pentobarbital were illegally obtained or from a foreign country, casting doubt on the deference this Court bestows upon the executive branch to carry out executions in a humane and competent manner; and (2) deviations from protocol when the DOC administered the previous five executions.19 Valle has failed to establish

19. Valle‘s contention that the disclosure of records will reveal letters from the drug‘s manufacturer to State agencies regarding its concern over the safety of using pentobarbital in executions is now moot. In our order of relinquishment, we directed the DOC to produce these documents, and the DOC complied with this Court‘s order.

Additionally, the record directly refutes Valle‘s claim that there is a lack of evidence showing that the State conducted research into the efficacy of pentobarbital prior to its implementation. The State disclosed its records detailing a medical doctor‘s opinion on the use of the drug and research articles about such

how the production of such records relates to a colorable Eighth Amendment challenge.

Florida Rule of Criminal Procedure 3.852(i)(2), which limits postconviction requests for additional records, requires production of public records upon a finding of the following:

(A) collateral counsel has made a timely and diligent search of the records repository;

(B) collateral counsel‘s affidavit identifies with specificity those additional public records that are not at the records repository;

(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and

(D) the additional records request is not overly broad or unduly burdensome.

The circuit court has the discretion to deny public records requests that are ?overly broad, of questionable relevance, and unlikely to lead to discoverable evidence.? Moore v. State, 820 So. 2d 199, 204 (Fla. 2002). As this Court has emphasized, rule 3.852 ?is not intended to be a procedure authorizing a fishing expedition for records unrelated to a colorable claim for postconviction relief.? Id. (quoting Glock v. Moore, 776 So. 2d 243, 253 (Fla. 2001)). This Court reviews the circuit court‘s denial of a public records request for an abuse of discretion. Hill v. State, 921 So. 2d 579, 584 (Fla. 2006).

drugs. Those documents are dated November 2010, and the new protocol went into effect over six months later in June 2011.

With respect to Valle‘s assertion that undisclosed records could show that sodium thiopental and pentobarbital were obtained from a foreign country, such information would be of questionable relevance, and he has failed to demonstrate how its disclosure would relate to a colorable Eighth Amendment claim. First, any allegations regarding the obtainment of sodium thiopental are irrelevant to the instant litigation since sodium thiopental is no longer part of Florida‘s lethal injection protocol and will not be used in Valle‘s execution. Second, as to the DOC‘s procurement of pentobarbital, the Supreme Court recently announced that

?speculation cannot substitute for evidence that the use of the drug is ?sure or very likely to cause serious illness and needless suffering.‘ ? Landrigan, 131 S. Ct. at 445 (quoting Baze, 553 U.S. at 50); see id. (vacating a stay of execution that was based upon a finding that the condemned inmate had a substantial likelihood of success on the merits of his claim that the use of sodium thiopental by a foreign source and not approved by the FDA creates a substantial and unnecessary risk of serious harm in violation of the Eighth Amendment). In requesting these materials, Valle simply posits a hypothetical argument, but he does not explain why these facts will result in a substantial risk of serious harm.

As to Valle‘s requests for records to demonstrate that pentobarbital may have been procured illegally, his pleadings in this regard are speculative and conclusory. Because he has failed to allege how this information would lead to

evidence related to his claim, Valle‘s requests on this issue appear to be no more than a ?fishing expedition? for which rule 3.852 is not intended. Consequently, the circuit court did not err in denying Valle‘s requests to produce these records.

Valle also requests records on the DOC‘s administration of executions for the last five inmates executed. Instead of asserting why this information would be relevant to proving a substantial risk of serious harm, Valle points to the botched execution of Angel Diaz and contends that such documentation is essential for establishing deviations from the protocol and why this Court cannot presume the DOC is acting in accordance with its protocol as written. As noted above, in Baze, the Supreme Court expressly rejected the prisoners‘ argument that the risk that a state would not properly follow its protocol constitutes an Eighth Amendment violation, see 533 U.S. at 53-54, and we thoroughly considered the factual circumstances surrounding the Diaz execution in Lightbourne. Therefore, the records sought are not related to a colorable Eighth Amendment claim, and the circuit court did not err in denying Valle‘s requests.

Denial of Clemency Proceeding

In his next claim, Valle contends that he was denied a clemency proceeding and effective assistance of clemency counsel to which he is entitled.20 We affirm

20. Valle moved to amend his postconviction motion as to this claim, but the circuit court denied leave to amend.

the circuit court‘s denial of relief because this claim is speculative and insufficiently pled.

Valle acknowledges that a clemency hearing was requested by Governor Chiles on February 6, 1992, and that it appears attorney Mark Evans was appointed to represent him during the clemency proceeding. He argues, however, that there is no indication that any clemency investigation or proceeding was actually conducted ?[d]ue to changes in policies and procedures instituted by Governor

Chiles in the early 1990s.? Valle‘s assertion that no clemency proceeding was ever conducted is based on the fact that he does not have any files showing that a proceeding was ever held. However, he acknowledges that clemency counsel was appointed and that he does not have clemency counsel‘s files.

Valle‘s inability to determine whether he was given a clemency proceeding or whether attorney Evans did in fact represent him appears to be the result of Valle‘s failure to adequately investigate and present the factual basis for this claim. Although Valle complains that he requested records regarding the clemency investigations and that he cannot more fully plead these facts because he was denied access to those records, he does not assert to this Court that the circuit court erred in sustaining agency objections or that he was improperly denied public

records to which he was entitled.21 Rather, Valle speculates that no clemency proceeding was held because Governor Chiles subsequently changed the policies and procedures and no records reflect that a proceeding was held. However,

?[p]ostconviction relief cannot be based on speculation or possibility.? Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000). His alternative claim—that if a proceeding was held, it was not conducted according the executive rules and he was not allowed to participate—is also insufficiently pled. Valle does not allege a factual basis for this claim other than the above lack of records.

As with his previous clemency allegation, Valle‘s claim that he was denied effective representation at his clemency proceeding because clemency counsel was incompetent or ineffective is vague and conclusory. Valle does not allege any facts to support this claim, and the documents attached to the postconviction motion do not pertain to Evans‘ representation of Valle, nor do they support this claim.22 Again, ?[p]ostconviction relief cannot be based on speculation or

21. He does not assert any error with respect to clemency records in either this claim or his public records claim.

22. The attached documents were the following: (a) a letter from attorney Evans in 1993 to then-Chief Justice Barkett concerning complaints filed by two former clients, Robert Heiney and James Card, and which explains that the complaints arose from a misunderstanding; (b) a copy of a letter from Heiney and Card stating that they were ?tricked? into withdrawing from a case by Evans; and (c) a copy of a civil complaint filed by Card, Heiney, and Amos King, which alleged that they were tricked into requesting the courts to appoint Evans as their

possibility,? Maharaj, 778 So. 2d at 951, and ?vague and conclusory allegations on appeal are insufficient to warrant relief,? Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008).

As his final clemency-related claim, Valle argues that, assuming a clemency proceeding was conducted pursuant to Governor Chiles‘ original request, it did not serve the ?fail-safe? purposes for which clemency is intended because it was done before his postconviction proceedings. In Johnston v. State, 27 So. 3d 11, 24 (Fla.), cert. denied, 131 S. Ct. 459 (2010), we squarely rejected this claim:

Johnston next contends that the clemency proceeding he was provided in 1987 was inadequate because it was held before the postconviction proceedings were concluded and before his mental

health issues and life history were fully developed for consideration in the clemency process. . . . Johnston argues that clemency in Florida does not provide the ?fail safe? that clemency is envisioned to be by

the United States Supreme Court. . . . We conclude that the clemency system in Florida performed as intended in providing a ?fail safe? for Johnston. He was given a full clemency hearing in 1987 at which he was represented by counsel. When the death warrant was signed on April 20, 2009, it stated that ?it has been determined that Executive Clemency, as authorized by Article IV, Section 8(a), Florida Constitution, is not appropriate.? Thus, clemency was again

considered by the executive branch prior to the signing of the warrant in this case.

Accordingly, we affirm the circuit court‘s summary denial of relief on all aspects of this claim.

attorney and which requested $100,000 in compensatory damages and $100,000 in punitive damages.

The Governor’s Discretion to Sign Death Warrants

considered.

Marek v. State, 14 So. 3d 985, 998 (Fla.) (emphasis added) (citation omitted) (citing Marek, 8 So. 3d at 1129-30), cert. denied, 130 S. Ct. 40 (2009).

In essence, Valle raises a claim similar to Marek‘s and is asking this Court to second-guess the Governor‘s decision in determining when to sign Valle‘s death warrant because other inmates were also eligible for a death warrant. However, this Court has always proceeded very carefully in addressing such a claim since it triggers separation of powers concerns. See, e.g., Johnston, 27 So. 3d at 26 (?[W]e decline to depart from the Court‘s precedent, based on the doctrine of separation of powers, in which we have held that it is not our prerogative to second-guess the executive on matters of clemency in capital cases.?); In re Advisory Opinion of the Governor, 334 So. 2d 561, 562-63 (Fla. 1976) (?This Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government.?). Here, Valle has not provided any reason for this Court to depart from its precedents, and we therefore affirm the circuit court‘s denial of relief.

Length of Time on Death Row

Valle next contends that the circuit court erred in summarily denying his claim that the thirty-three years he has spent on death row constitutes cruel and

unusual punishment.23 Under this Court‘s clear precedent, Valle‘s claim is facially invalid, and the circuit court did not err in summarily denying relief. In Tompkins, this Court observed that ?no federal or state court has accepted the argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially

where both parties bear responsibility for the long delay.? 994 So. 2d at 1085 (quoting Booker v. State, 969 So. 2d 186, 200 (Fla. 2007)). In line with Tompkins, this Court has repeatedly held this claim to be meritless. See, e.g., id. (rejecting claim that twenty-three years on death row constituted cruel and unusual punishment); Booker, 969 So. 2d at 200 (rejecting claim that almost thirty years on death row constituted cruel and unusual punishment); Gore v. State, 964 So. 2d 1257, 1276 (Fla. 2007) (rejecting claim that twenty-three years on death row constituted cruel and unusual punishment); Rose v. State, 787 So. 2d 786, 805 (Fla. 2001) (holding as without merit cruel and unusual punishment claim of death row inmate under death sentence since 1977).

Furthermore, while Valle asserts that the State repeatedly botched his trials and resentencings during his first ten years on death row, thereby extending the length of his incarceration, he has contributed to the remaining twenty-three years of delay in his execution. Since his death sentence became final in 1991, Valle has

23. Valle also moved to amend his postconviction motion as to this claim, but the circuit court denied leave to amend.

continued to exercise his constitutional rights in challenging his convictions and sentence. He filed a postconviction motion in state court, multiple habeas petitions in this Court, and a habeas petition in federal court, the denial of which was affirmed on appeal in 2006. Valle ?cannot now contend that his punishment has been illegally prolonged because the delay in carrying out his sentence is in large part due to his own actions in challenging his conviction[s] and sentence.? Tompkins, 994 So. 2d at 1085. Therefore, the circuit court did not err in summarily denying Valle‘s claim.

Vienna Convention

Lastly, Valle contends that because he is a Cuban national, the State‘s failure to advise him of the right to notify his consulate of his arrest and to consult with that consulate or a diplomatic officer without delay under Article 36 of the Vienna Convention on Consular Relations entitles him to relief. This substantive claim is procedurally barred because Valle could and should have raised it on direct appeal. See, e.g., Lugo v. State, 2 So. 3d 1, 17 (Fla. 2008) (denying as procedurally barred allegation that arrest in the Bahamas by Bahamian police violated Article 36 of the Vienna Convention because the Bahamian police failed to contact the U.S. Consulate in the Bahamas or advise defendant of his right to contact that consulate since it could have been raised on direct appeal); Maharaj, 778 So. 2d at 959 (denying as procedurally barred allegation that State failed to comply with its

international obligation to inform the consulate that a British citizen had been charged with a capital crime because it could and should have been raised on direct appeal); see also Medellin v. Texas, 552 U.S. 491, 512 n.8 (2008) (citing Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), for the proposition that the Vienna Convention does not preclude the application of state procedural bars).

Notwithstanding the procedural bar, Valle‘s claim is also without merit. In Maharaj, this Court denied an identical claim on the merits where the defendant

?failed to establish that he [had] standing? since ?treaties are between countries, not citizens.? 778 So. 2d at 959. Rather than arguing why Maharaj‘s holding is inapplicable to the instant case, Valle instead points out that a federal bill has been proposed, but not yet signed into law, that would provide death row inmates a process by which to assert such a violation. In Garcia v. Texas, 131 S. Ct. 2866 (2011), the Supreme Court rejected the same argument when denying an application for a stay of execution made by Humberto Leal Garcia, a Mexican national. Recognizing that international precedent mandating that a foreign national be advised of such rights would require legislative implementation, the Court denied the application for stay and held that ?[t]he Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.? Id. at 2867; see also Medellin v. Texas, 554 U.S. 759, 760 (2008) (denying application

for stay of execution when similar argument was advanced). Thus, under the authority of both Maharaj and Garcia, we conclude that the circuit court did not err in summarily denying relief on this claim.

CONCLUSION

In accordance with our analysis above, we affirm the circuit court‘s denial of postconviction relief. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately. We hereby lift the temporary stay imposed by this Court on July 25, 2011.

It is so ordered.

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

An Appeal from the Circuit Court in and for Dade County, Jacqueline Hogan Scola, Judge – Case No. F78-5281A

Neal A. Dupree, Capital Collateral Regional Counsel, and Suzanne Keffer, Chief Assistant CCR Counsel, Paul Kalil, Assistant CCR Counsel, and M. Chance Meyer, Staff Attorney, Region South, Fort Lauderdale, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Sandra S. Jaggard, Assistant Attorney General, Miami, Florida,

for Appellee

Courtesy of David Edelstein

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

JEFFREY RAY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D09-4965

Opinion filed August 23, 2011.

An appeal from the Circuit Court for Lafayette County. David W. Fina, Judge.

David W. Collins and Chuck Collins of The Collins Law Firm, Monticello, for Appellant.

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.

HAWKES, J.

Appellant Jeffrey Ray appeals his convictions for felony murder and aggravated child abuse, raising five arguments. We find each of his arguments unpersuasive, except for his claim that he was improperly sentenced on the charge of aggravated child abuse. We write only to address this point.

Following trial, the trial court sentenced Appellant to life imprisonment for the charge of felony murder, a term to run concurrent to a fifteen year sentence for aggravated child abuse. Appellant challenged the sentence for aggravated child abuse in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) (2009). In the motion, he emphasized that the Department of Corrections had added 120 points for “victim injury” to the sentencing scoresheet for the charge of aggravated child abuse. These points were added because of the victim’s “death.” Appellant argued that sentencing points for a capital offense should not be added to the scoresheet for a non-capital offense, and that he should be resentenced under a properly tabulated scoresheet.

The trial court effectively denied Appellant’s motion as it failed to rule on it within 60 days. See Fla. R. Crim. Procedure 3.800(b)(2)(B) (2009) (stating all motions to correct sentencing error pending appeal are governed by subdivision (b)(1)(B); see also Fla. R. Crim. Procedure 3.800(b)(1)(B) (2009) (stating “[i]f no order is filed within 60 days, the motion shall be considered denied”). Appellant filed a motion for rehearing, although the trial court did not rule on this motion either. The trial court’s effective denial of these motions was error.

Motions to correct sentencing errors involve “purely legal issues,” and are therefore reviewed de novo. See Willard v. State, 22 So. 3d 864 (Fla. 4th DCA 2009); Flowers v. State, 899 So. 2d 1257, 1259 (Fla. 4th DCA 2005). Appellant’s

motion questioned whether “victim injury” points had been erroneously added to his scoresheet. Florida Rule of Criminal Procedure 3.703(d)(9) states “victim injury” points may be scored for

physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. [] Victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims.

The Rule then makes the following statement, which is of critical importance to this issue:

Victim injury resultant from one or more capital felonies before the court for sentencing is not to be included upon any scoresheet prepared for non-capital felonies also pending before the court for sentencing.

(emphasis added); see also Seccia v. State, 786 So. 2d 12, 14 (Fla. 1st DCA 2001).

Here, although the 120 points for the victim’s death related to the charge of felony murder – a capital felony – they were included on the scoresheet for the charge of aggravated child abuse – a non-capital felony. Under Rule 3.703(d)(9), this was error and those points should not have been added. Because the record does not conclusively show that the trial court would have rendered the same sentence had the error not occurred, Appellant must be resentenced on this charge.

Accordingly, we AFFIRM Appellant’s convictions, but VACATE the sentence for aggravated child abuse and REMAND for resentencing on this charge. CLARK and SWANSON, JJ., CONCUR.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

XAVIER SPENCER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-0243

Opinion filed August 23, 2011.

An appeal from the Circuit Court for Leon County. Terry P. Lewis, Judge.

Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The state charged Xavier Spencer with principal in the first degree to robbery, a second-degree felony.1 Spencer testified at trial that he witnessed but did not participate in, aid or abet the crime. The trial court instructed the jury on

1 See §§ 777.011; 812.13(2)(c), Fla. Stat. (2008).

robbery and the necessarily and permissive lesser-included misdemeanor offenses of petit theft and assault, respectively.2 The verdict form gave the jury the following four options: guilty of robbery as charged; guilty of the lesser-included offense of petit theft; guilty of the lesser-included offense of assault; not guilty. The court explained to the jury, “You may find the defendant guilty as charged in the information, or guilty of such lesser included crime as the evidence may justify[,] or not guilty.”

When the jury returned from deliberating, it presented to the court a verdict form on which two of the four choices were marked: guilty of petit theft and guilty of assault.3 The jury confirmed its verdict was unanimous. However, the court sent the jury back to deliberate further, telling them “you’ve got four choices and you can only pick one of those. . . . [J]ust mark out the one that you decided not on.” When the jury returned the second time, its unanimous verdict was guilty of robbery as charged. Spencer moved for a new trial arguing that the court incorrectly instructed the jury it could only convict him of one offense, and that the error caused the jury to convict him of robbery instead of petit theft and assault. The court denied the motion for new trial reasoning that even if the instruction was

2 See §§ 784.011(2); 812.014(3), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 15.1.

3 This verdict form is not in the record on appeal. Neither is it in the trial court’s case file, apparently.

incorrect, which it was,4 the jury’s second verdict was consistent with the evidence and with Spencer’s theory of defense.

We conclude the trial court should have granted Spencer a new trial. By rejecting5 the initial verdict and giving an incorrect or, at least, ambiguous instruction, the court caused the jury to change its verdict. Even if the evidence supports a conviction for robbery, the court effectively vetoed the jury’s decision

4 See, e.g., Bell v. State, 437 So. 2d 1057, 1061-62 (Fla. 1983) (explaining how to instruct the jury on the lesser-included crimes in a drug trafficking prosecution; stating that after instructing on the greater offense and all the appropriate lesser-included offenses, “[t]he jury then must be further instructed that it can convict of either the greater offense or one or more of the lesser included offenses . . . .”) (emphasis added); and see Stuckey v. State, 972 So. 2d 918, 921 (Fla. 5th DCA 2007) (concluding that defendant who was charged with and prosecuted for robbery could be convicted of both lesser-included crimes of petit theft and resisting a merchant).

5 We have no doubt the trial court in good faith exercised its authority under Florida Rule of Criminal Procedure 3.530, which provides:

If a verdict is so defective that the court cannot determine from it whether the jurors intended to acquit the defendant or to convict the defendant of an offense for which judgment could be entered under the indictment or information on which the defendant is tried, or cannot determine from it on what count or counts the jurors intended to acquit or convict the defendant, the court shall, with proper instructions, direct the jurors to reconsider the verdict, and the verdict shall not be received until it shall clearly appear therefrom whether the jurors intended to convict or acquit the defendant and on what count or counts they intended to acquit or convict the defendant. If the jury persists in rendering a defective verdict, the court shall declare a mistrial.

to exercise its pardon power by acquitting Spencer of robbery and convicting him, instead, of two misdemeanors. See Sanders v. State, 946 So. 2d 953, 957 (Fla. 2006) (explaining that a jury has inherent power “to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes.”). This was error, and Spencer is entitled to a new trial.

REVERSED and REMANDED.

WETHERELL, MARSTILLER, and RAY, JJ., CONCUR.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

CALVIN L. JOHNSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-0768

Opinion filed August 23, 2011.

An appeal from the Circuit Court for Taylor County. James Roy Bean, Judge.

Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant raises two issues on appeal from his conviction for sale of a controlled substance. We find the first issue dispositive and reverse.

At trial, a confidential informant (“CI”) identified Appellant as the man who sold him crack cocaine during a controlled buy. The informant testified he had known Appellant for approximately four years and had done some remodeling

work on a house Appellant owned. Three law enforcement officers, who were not present during the controlled buy, also identified Appellant as the man in the video recording of the transaction selling crack to the CI. One officer testified that he has been with the Perry Police Department for twenty-five years and has known Appellant “pretty much my whole law enforcement career.” Another officer, who served on the local drug task force, testified he knew Appellant from a 2005 investigation. The third officer identified Appellant based on having often seen him wear a camouflage jacket and skull cap similar to those worn by the man in the video.

Appellant argues that the trial court erred in admitting the officers’ identification testimony because their statements suggested prior criminal activity by Appellant. We agree, and the State concedes error. See Edwards v. State, 583 So. 2d 740, 741 (Fla. 1st DCA 1991) (finding such testimony inadmissible). See also Alcantar v. State, 987 So. 2d 822, 825 (Fla. 2d DCA 2008) (where officer’s prior contact with appellant “for years” and knowledge of appellant’s “street name” combined to suggest strongly that appellant’s prior contact with the officer was the result of prior criminal activity, “[t]he probative value of this testimony was far outweighed by the undue prejudice it was sure to create”).

The trial court instructed the jury to disregard the second officer’s testimony about having known Appellant from a previous investigation. But we cannot say

beyond a reasonable doubt that the remaining inadmissible testimony did not contribute to the guilty verdict when the only other identification came from the CI. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). We therefore reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

WETHERELL, MARSTILLER, and RAY, JJ., CONCUR.

Courtesy of David Edelstein

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

EDWARD FIPPS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-2421

Opinion filed August 23, 2011.

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

Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges his conviction and sentence for burglary of a dwelling. We find the trial court erred in denying appellant’s motion for judgment of acquittal. The State failed to provide sufficient evidence identifying appellant as the second perpetrator of the burglary. Therefore, we reverse and remand with instructions that appellant be discharged.

REVERSED AND REMANDED, with instructions. WOLF, PADOVANO, and MARSTILLER, JJ., CONCUR.

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

FOSTER RAYFIELD LEON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-2633

Opinion filed

An appeal from the Circuit Court for Duval County. Mallory D. Cooper, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

SWANSON, J.

In this direct criminal appeal from his judgment of conviction and consecutive life sentences for attempted second-degree murder and kidnapping, appellant contends the trial court erred in allowing certain state witnesses to testify

at trial on subjects appellant had earlier sought to exclude by filing three pretrial motions in limine ultimately denied by the trial court. We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. However, a trial court’s discretion is limited by the evidence code and applicable case law, and a court’s erroneous interpretation of those authorities is subject to de novo review. Pantoja v. State, 59 So. 3d 1092, 1095 (Fla. 2011) (quoting McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006)). Applying these standards, we conclude the trial court correctly applied the law, with one minor exception, in denying appellant’s motions in limine and, therefore, did not abuse its discretion in admitting the testimony. As for the exception, concerning a book on taxidermy, we conclude the error was harmless beyond a reasonable doubt.

Appellant argues first that the trial court erred in allowing state witnesses to testify they never saw him again following the commission of the crimes. The state’s purpose in eliciting this testimony was to establish evidence of appellant’s flight from which the jury could infer consciousness of guilt. Appellant argues the evidence was not relevant to prove appellant committed the charged crimes. We disagree.

It is well-established that evidence of flight may be probative of guilt, but courts must carefully consider the connection between the evidence and the

charged crime or crimes prior to admitting it, as recently acknowledged by the supreme court in Twilegar v. State, 42 So. 3d 177 (Fla. 2010):

“We agree, as an abstract rule of law, that evidence of flight, concealment, or resistance to lawful arrest after the fact of a crime is admissible as “being relevant to consciousness of guilt which may be inferred from such circumstances.” Straight v. State, 397 So. 2d 903, 908 (Fla. 1981). However, in applying this principle to a particular case, there must be evidence which indicates a nexus between the flight, concealment, or resistance to lawful arrest and the crime(s) for which the defendant is being tried in that specific case. This is necessary in the application of this rule of law since the evidence creates an inference of a consciousness of guilt of the crime for which the defendant is being tried in that case. See Merritt v. State, 523 So. 2d 573, 574 (Fla. 1988). The ultimate admissibility issue is the relevance to the charged crime.”

Id. at 196 (quoting Escobar v. State, 699 So. 2d 988, 995 (Fla. 1997)) (emphasis in original). The supreme court in Twilegar went on to reiterate an earlier-noted “caveat”:

[T]he cases in which flight evidence has been held inadmissible have contained particular facts which tend to detract from the probative value of such evidence. For instance, the probative value of flight evidence is weakened: 1) if the suspect was unaware at the time of the flight that he was the subject of a criminal investigation for the particular crime charged; 2) where there were not clear indications that the defendant had in fact fled; or, 3) where there was a significant time delay from the commission of the crime to the time of flight. The interpretation to be gleaned from an act of flight should be made with a sensitivity to the facts of the particular case.

Id. (quoting Bundy v. State, 471 So. 2d 9, 21 (Fla. 1985)). After careful review of the record, we find none of these “caveats” applied below to “weaken” the relevance of the state’s evidence.

The state’s case established that appellant was well-known in the Riverside area of Jacksonville where he was living with his girlfriend in her apartment. This was just two blocks from the location where the victim was found in the early morning hours of July 5, 2008. Witnesses testified appellant was a frequent patron of a nearby bar, the Starlite Café, and had enjoyed an entourage of close friends for several years, including the bar’s owner, its manager, and a bartender who was married to the manager. On the evening of July 4, 2008, appellant, his girlfriend and the victim had been at the Starlite Café where the victim was working as a disc jockey. Appellant and the victim left the bar together around 12:00 a.m., after the victim decided to pack up his equipment early because business had been slow. The Starlite Café’s bar manager, Scott Brandle, testified to a telephone call he later received from appellant around 2:00 a.m., in which appellant repeatedly demanded to speak to his girlfriend, who was still at the bar. Brandle testified appellant sounded so alarmingly “labored” and out of breath he was concerned that something had happened to him. His concern was further aroused when he observed the girlfriend’s reaction to the conversation. Brandle recalled she did not speak during the conversation and her face went “blank,” as though “the blood drains out of your face.” Afterwards, she simply put the phone on the bar and “took off.”

Another witness, Maurice Dickerson, testified appellant pulled him outside

the bar earlier in the evening to express anger over a crude comment the victim allegedly had made to appellant’s girlfriend. Dickerson described appellant as “livid,” and testified appellant stated he had “killed for less stuff than this.” Appellant advised Dickerson to warn the victim “he better not walk near me because if he does . . . I’m afraid of what I’m going to do to him.” Dickerson never passed this warning on to the victim.

These and other witnesses testified appellant was the last person the victim was seen with before he was discovered around 2:30 a.m., beaten, blinded, and lying in a pool of his own blood in the middle of a road less than four-tenths of a mile from the Starlite Café. Afterward, witnesses testified that neither appellant nor his girlfriend was seen in the Riverside area again. Efforts by law enforcement to locate appellant’s girlfriend on July 18, 2008, revealed she had moved from her apartment. On August 14, 2008, appellant was apprehended in New Orleans.

We conclude this evidence provided a clear nexus between appellant’s flight and the charged crimes. After hearing the testimony of the state’s witnesses, the jury reasonably could have inferred that appellant was aware of the crimes which had been committed and fled Jacksonville shortly, if not immediately, after their commission. Appellant has failed to demonstrate the relevance of his flight was weakened by any of the considerations enumerated in Twilegar. Instead, the state presented ample evidence to show the reason for appellant’s flight to New Orleans

“was to avoid being held accountable for the crime[s] at issue.” Ford v. State, 801

So. 2d 318, 320-21 (Fla. 1st DCA 2001) (citing Thomas v. State, 748 So. 2d 970,

982 (Fla. 1999), and Escobar, 699 So. 2d at 995). Thus, as did the supreme court

in Twilegar, we hold the trial court did not abuse its discretion in admitting the

evidence of appellant’s flight following the crimes, “for the court reasonably may

have concluded that the probative value of the evidence was not substantially

outweighed by the danger of prejudicing or misleading the jury.” 42 So. 3d at 197.

Appellant also argues the trial court erred in allowing Alexander Ahlf,

appellant’s cellmate at the county jail, to testify to certain statements appellant

made to Ahlf, contending the statements were irrelevant or, if relevant, were so

prejudicial that they presented a danger of prejudicing, confusing or misleading the

jury. As a rule, “[a]ll relevant evidence is admissible, except as provided by law.”

§ 90.402, Fla. Stat. (2008). “Relevant evidence is evidence tending to prove or

disprove a material fact.” § 90.401, Fla. Stat. (2008). A trial court “‘has broad

discretion in determining the relevance of evidence.’” Bartlett v. State, 993 So. 2d

157, 163 (Fla. 1st DCA 2008) (quoting Slocum v. State, 757 So. 2d 1246, 1250

(Fla. 4th DCA 2000)). Nonetheless, a trial court should exclude even relevant

evidence if the probative value of the proffered evidence “is substantially

outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading

the jury[.]” § 90.403, Fla. Stat. (2008). See also Joyner v. State, 4 So. 3d 76, 78

(Fla. 1st DCA 2009) (quoting Bartlett, 993 So. 2d at 165). Here, we find the trial court did not abuse its discretion in allowing Ahlf’s testimony, and properly applied the balancing test contained in section 90.403. While not in the strictest sense a “confession,” appellant’s comments to Ahlf manifested a strong indication of his connection to the crimes. The trial court correctly concluded they were relevant for submission to the jury, subject to the weight the jury would accord them.

The trial court’s decision to allow Ahlf to testify about the book on taxidermy in appellant’s possession in the jail cell is a different matter. Ahlf’s testimony regarding material contained on pages that had been “dog-eared” bore no probative value, and the trial court abused its discretion in admitting it. Nevertheless, after applying the harmless error analysis of State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), we are persuaded the state has demonstrated this error was harmless beyond a reasonable doubt. While touched upon during Ahlf’s testimony and in the prosecutor’s closing argument, the subject of the book never became a feature of the trial, which focused, instead, on the strength of the testimony of the victim and of witnesses closest to appellant on the night and in the early morning hours of July 4 and 5, 2008. Our review of the entire record convinces us “that there is no reasonable possibility that the error contributed to [appellant’s] conviction.” Id. at 1135.

Likewise, we reject appellant’s final contention that the trial court erred in allowing certain testimony from Teehan-Kristin Kaye. Kaye worked as the bartender at the Starlite Café on July 4, 2008, was Brandle’s wife, and was also counted amongst appellant’s friends. She testified to a conversation she had with appellant when he called her at home sometime after 2:00 a.m., on July 5. Kaye described the call as a “rush of information” from appellant that did not make sense, and in which he asked whether he needed to “take care” of anything for either the owner of the bar or her husband. Appellant argues Kaye’s testimony on this point was irrelevant and speculative. We disagree. Kaye’s narrative of the conversation was consistent with Brandle’s testimony in describing appellant’s agitation and sense of urgency within the time frame of the commission of the crimes. Her testimony was also relevant to establish a nexus between appellant’s flight and the crimes. As with Ahlf’s testimony, the trial court properly concluded appellant’s objection to Kaye’s testimony went to the weight the jury should accord it, and not to its admissibility. Accordingly, we find the trial court did not abuse its discretion in admitting her testimony on this subject.

Based on the foregoing discussion, we hold appellant has failed to demonstrate any cause for reversal. Accordingly, his judgment of conviction and sentences are hereby AFFIRMED.

HAWKES and CLARK, JJ., CONCUR.

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

RYAN JAMES BREEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D10-3893

Opinion filed August 23, 2011.

An appeal from the Circuit Court for Santa Rosa County. Thomas R. Santurri, Judge.

Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, Miami, for Appellee.

WOLF, J.

Appellant challenges his conviction and sentence for burglary of a dwelling with assault or battery. We find the trial court erred in denying appellant’s motion for judgment of acquittal. The evidence established appellant entered the apartment he shared with his girlfriend, he was paying at least half of the bills and expenses for the apartment, and his belongings were still in the apartment. There

was no evidence presented that appellant had abandoned the apartment. Witnesses testified appellant intended to move out in the future, but he had not yet done so. See Whetstone v. State, 778 So. 2d 338, 342 (Fla. 1st DCA 2000) (“‘[P]roof of abandonment of leased premises requires that there must be ‘an intent to abandon and conduct by which the intention is carried into effect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord.’”) (quoting Bobo v. Vanguard Bank & Trust Co., Inc., 512 So. 2d 246, 247 (Fla. 1st DCA 1987)).

Furthermore, there was no evidence presented that appellant’s girlfriend revoked her consent to him living in the apartment. To the contrary, a witness testified she called appellant on the night of the incident and asked him to continue living there. See D.R. v. State, 734 So. 2d 455, 459-60 (Fla. 1st DCA 1999) (finding insufficient evidence of burglary where “[n]othing in the record suggests that consent to enter, once given to [the defendant], was ever withdrawn expressly or by implication and communicated to him”). Therefore, we reverse and remand with instructions that appellant be discharged.

REVERSED AND REMANDED, with instructions.

DAVIS and MARSTILLER, JJ., CONCUR.

Courtesy of David Edelstein