Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

JESUS VELAZQUEZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D11-2425

Opinion filed September 23, 2011

3.850 Appeal from the Circuit Court for Orange County,

John H. Adams, Sr., Judge.

David Casals, of Law Office of David Casals, West Palm Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

Appellant, Jesus Velazquez, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The record is exceedingly clear that the trial court intended to impose upon him a three-year prison sentence, but by inadvertence announced a six-year sentence. Inasmuch as defense counsel failed to object to the miscalculated sentence, and because Mr. Velazquez is currently serving the six-year sentence, we reverse.

Describing in detail the convoluted sentencing of Mr. Velazquez would serve no purpose other than to confuse. Briefly, however, Mr. Velazquez was before the court to be sentenced on a violation of probation. The trial judge stated his intention on several different occasions to sentence Mr. Velazquez to six years of confinement, but with credit for three years time served. The court unquestionably intended the net remaining sentence to be confinement for an additional three years. In the final analysis, however, the court announced a sentence of three consecutive five-year sentences with credit for time served of three years for each, and a fourth five-year term with similar credit to run concurrently. Somehow the fact that this would mean that Mr. Velazquez would serve an additional six years of confinement was not recognized, and not objected to by the defense. We conclude that such a lapse amounted to ineffective assistance of counsel.

When Mr. Velazquez sought post-conviction relief, a different trial judge denied his motion. The new judge concluded that, “In the absence of a plea agreement contemplating a specific sentence, the court is obliged to conclude that the defendant cannot state a basis for relief under Rule 3.850.” We think the trial court’s focus was misdirected.

A defendant’s “sentence is properly what the trial court intended it to be.” See Jackson v. State, 615 So. 2d 850, 851 (Fla. 2d DCA 1993) (citing Gonzales v. State, 488 So. 2d 610 (Fla. 4th DCA 1986), disapproved of on other grounds by, Frey v. State, 708 So. 2d 918 (Fla. 1998)). The intention here was that Mr. Velazquez be confined for three years in addition to his credit for time served. In fact, in an earlier iteration of the present case we specifically suggested that the sentence was miscalculated, and indicated that our affirmance of the earlier case was “without prejudice to Velazquez

seeking relief pursuant to Florida Rule of Criminal Procedure 3.850 for ineffective assistance of counsel.” See Velazquez v. State, 35 So. 3d 948, n. 2 (Fla. 5th DCA 2010).

Here there was a specific act or omission amounting to ineffective assistance that fell within the requirements of Strickland v. Washington, 466 U.S. 668, 687 (1984). In addition, the prejudice resulting from the omission is patent. See Conner v. State, 979 So. 2d 852 (Fla. 2007). Accordingly, we reverse and remand for entry of a corrected sentence consistent with this opinion.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

RICHARD WIGHARD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D11-1203

Opinion filed September 23, 2011

3.850 Appeal from the Circuit Court for Brevard County,

James H. Earp, Judge.

Richard Wighard, Daytona Beach, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Richard Wighard, Appellant, seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

In 2000, Appellant was sentenced1 as a habitual felony offender (“HFO”) for the sale of cocaine, a second-degree felony, to sixty months’ incarceration, followed by five years’ probation. Following his release from the Department of Corrections on that sentence, Appellant’s probation was revoked and in September 2008, he was sentenced to ten years’ incarceration. Notably, the trial court did not pronounce at sentencing that Appellant was being sentenced as a HFO, nor did his judgment and sentence reflect a HFO sentence. Appellant appealed his judgment and sentence and this court affirmed per curiam. See Wighard v. State, 8 So. 3d 1151 (Fla. 5th DCA 2009).

Appellant subsequently filed a motion to correct illegal sentence pursuant to Florida Rule of Appellate Procedure 3.800(a), arguing that his ten-year sentence was illegal because it exceeded the sentencing guidelines maximum range without written departure reasons. He acknowledged his original HFO sentence from 2000, but claimed that the State elected not to seek a HFO sentence at his violation of probation (“VOP”) sentencing, and the trial court assented. Hence, his ten-year VOP sentence was a straight ten-year sentence with no oral or written HFO designation. Furthermore, because the straight ten-year sentence exceeded his guidelines maximum sentence, it followed that written departure reasons were necessary. Without these reasons, Appellant argued, his ten-year sentence was illegal.

The trial court rejected Appellant’s rule 3.800(a) argument based on its finding that the HFO determination at his original sentencing in 2000 carried over to his VOP

1 The offenses occurred on September 3, 1998, before the Criminal Punishment Code became effective (for offenses on or after October 1, 1998). Therefore, Appellant was originally sentenced under the 1995 Sentencing Guidelines.

sentencing in 2008. The trial court reasoned that the ten-year VOP sentence was a legal HFO sentence outside the sentencing guidelines which did not require written departure reasons. On appeal, we concluded the upward departure sentence was not an issue cognizable in a rule 3.800(a) proceeding and affirmed. See Wighard v. State, 34 So. 3d 782 (Fla. 5th DCA 2010).

Appellant initiated the instant proceeding by filing a rule 3.850 motion, arguing that his attorney was ineffective for the following reason:

Defendant’s attorney failed to object to the 10-year sentence imposed by the VOP sentencing court – a sentence which FAR EXCEEDS the 18.35 to 31.85 prison month recommendation range of the controlling 1998, Rule 3.991, sentencing guidelines scoresheet that was in effect on the date of Defendant’s substantive “sale of cocaine” offense – when there are no written reasons for an upward departure sentence, nor is there any oral pronouncement of an enhanced sentence transcribed from any VOP judicial proceeding, to justify a sentence outside of said recommended sentencing range.

The trial court denied Appellant’s petition and this appeal followed.

In our view, the outcome of this case is governed by the supreme court’s recent decision in State v. Akins, 36 Florida Law Weekly S215 (Fla. May 26, 2011), in which the court affirmatively answered the following certified question:

IF A DEFENDANT HAS BEEN DECLARED TO BE A HABITUAL OFFENDER BEFORE THE IMPOSITION OF HIS INITIAL SPLIT SENTENCE, WHEN THE DEFENDANT LATER VIOLATES PROBATION AND HAS HIS PROBATION REVOKED, DOES THE DEFENDANT LOSE HIS STATUS AS A HABITUAL OFFENDER IF THE TRIAL COURT DOES NOT REPEAT THIS STATUS AT THE SENTENCING HEARING ON VIOLATION OF PROBATION?

The State argues Akins is inapplicable because it involved a double jeopardy issue, one not raised or argued by Appellant. We do not read Akins that narrowly. In contrast, the instant record reveals that the trial court did not designate Appellant as a HFO during its oral pronouncement at the VOP sentencing, or in the written judgment and sentence. Thus, the only relevant factual distinction between Akins and the instant case is that the trial court in Akins ultimately amended the defendant’s written VOP sentence several months after it was imposed by adding the HFO designation even though it was never orally imposed. Here, there was no oral designation of Appellant’s HFO status during the VOP sentencing, and it appears that his written VOP sentence did not reflect a HFO designation. Appellant is currently serving a ten-year, non-HFO prison term despite the fact that his maximum sentencing guidelines scoresheet was 31.85 months. Accordingly, Appellant’s sentence facially exceeds the sentencing guidelines maximum without written departure reasons.

Akins rejects any notion that Appellant’s original HFO designation may have carried over to his VOP sentencing proceeding. Instead, Akins holds that the trial court must restate this designation during the VOP sentencing or the HFO status is lost. Id. at S219. Moreover, Akins dictates that the trial court cannot now attempt to impose the HFO designation on Appellant without running afoul of double jeopardy protections. Appellant is entitled to resentencing.

REVERSED and REMANDED.

ORFINGER, C.J., PALMER and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

JARVIS HAYNES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 5D11-958

Opinion filed September 23, 2011

Appeal from the Circuit Court for Orange County, Julie H. O’Kane, Judge.

Jarvis Ramon Haynes, Perry, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Jarvis Haynes appeals from the dismissal of his petition for writ of habeas corpus filed in Orange County Circuit Court where he was convicted in 2005 of third-degree felony murder, robbery with a firearm, and dealing in stolen property. This court affirmed the convictions in 2006. Haynes v. State, 946 So. 2d 1106 (Fla. 5th DCA 2006). Although Haynes has completed his sentence on the third-degree felony murder

charge, he is currently serving concurrent sentences on the latter two charges in Taylor County, Florida.1

Haynes first seeks relief alleging that the predicate felony for his third-degree felony murder charge was robbery, and that this is a nonexistent crime. See Moore v. State, 983 So. 2d 691 (Fla. 1st DCA 2008) (explaining that “third-degree felony murder predicated on the underlying felony of robbery is, effectively, a nonexistent crime” because section 782.04(4), Florida Statutes, expressly excludes robbery as a predicate felony for the offense).2 Haynes’s other two claims relate to jury instructions read during his trial and the verdict forms used at trial.

The trial court dismissed all three claims on grounds that Haynes should have filed the petition in the jurisdiction where he is currently incarcerated, as well as on grounds that habeas corpus cannot be used to litigate issues that could have been raised on direct appeal or in a rule 3.850 motion. Although Haynes is correct that a habeas petition challenging the validity of his convictions, if permitted at all, is properly filed in the trial court that rendered the judgments of conviction, see, e.g., Collins v. State, 859 So. 2d 1244, 1245-46 (Fla. 5th DCA 2003), the trial court properly found that Haynes’s claims could not be pursued using a petition for writ of habeas corpus because the jury instruction and verdict form issues could have been raised at trial or on

1 Our internal records relating to Haynes’s direct appeal demonstrate that the trial court sentenced Haynes to concurrent sentences of five years in prison on the third-degree felony murder charge, life in prison on the robbery with a firearm charge and fifteen years on the dealing in stolen property charge. It is these latter two sentences that Haynes is currently serving.

2 It is not possible to tell from the record before us, or from the limited documents still available from Haynes’ direct appeal, what predicate felony the jury found when it returned a guilty verdict on the third degree felony murder charge.

appeal. See, e.g., Wright v. State, 857 So. 2d 861, 874 (Fla. 2003) (“Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postconviction proceedings.”); Richardson v. State, 918 So. 2d 999, 1002 (Fla. 5th DCA 2006) (“Since adoption of rule 3.850 and its predecessor, the courts have consistently held that it is inappropriate to collaterally attack a conviction through the process of habeas proceedings because such claims are cognizable under the rule.”) (citations omitted). With respect to Haynes’ argument relating to the third-degree felony murder charge, we also note that this claim is inappropriate for habeas relief because Haynes has served his sentence for that charge and his current detention is in no way affected by it. See, e.g., Brown v. McNeil, 22 So. 3d 741, 742 (Fla. 1st DCA 2009) (“The writ of habeas corpus is available only if the petitioner shows probable cause to believe that he or she is detained without lawful authority.”).

AFFIRMED.

TORPY, LAWSON and EVANDER, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

ROBERT IRVIN HECKMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-2162

Opinion filed September 23, 2011

Appeal from the Circuit Court for Citrus County,

Richard A. Howard, Judge.

Dane K. Chase, of O’Brien Bower, P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Robert Irvin Heckman appeals the trial court’s order revoking his probation. We reverse.

A violation of probation that triggers revocation must be willful and substantial, and must be supported by the greater weight of the evidence. Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA 2005). We conclude, in light of the circumstances, that the alleged violation was not substantial. Heckman promptly informed his probation

officer of his actions with no objection. Although the probation officer’s view of Heckman’s actions is not determinative, it does support Heckman’s contention that his violation was not willful or substantial. See Benedict v. State, 774 So. 2d 940 (Fla. 2d DCA 2001).

We, therefore, reverse the order revoking Heckman’s probation, and remand this matter for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

ARIZONA WILLIS, III

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-3311

Opinion filed September 23, 2011

Appeal from the Circuit Court for Orange County,

Alan S. Apte, Judge.

James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Arizona Willis, III, Appellant, was convicted of attempted second-degree murder and robbery with a deadly weapon.1 His sole argument on appeal is that the jury instruction on the lesser included offense of voluntary manslaughter constituted

1 Willis was originally charged in a three-count information with attempted first-degree murder with a weapon, robbery with a deadly weapon, and aggravated battery with a deadly weapon. Post-trial, the aggravated battery with a deadly weapon charge was dismissed.

fundamental error, entitling him to a new trial on the charge of attempted second-degree murder. We agree and reverse.

At trial, the evidence showed that Fredo Hilaire, a cab driver, picked up a fare, later identified as Willis, from the Sands Hotel. As Hilaire drove, Willis stabbed him in the neck and back. The cab crashed into a parked car and Hilaire, covered in blood, exited the cab. Hearing the crash, two witnesses exited their home and observed Willis as he continued to stab Hilaire and demand money. Witnesses from the hotel identified Willis as the individual who ordered the cab. The two witnesses from the home, and the victim, all identified Willis as the perpetrator. Blood on one of Willis’ shoes matched that of the victim. Willis’ defense was mistaken identity.

The trial court’s instruction on the lesser included offense of voluntary manslaughter stated that “Arizona Willis, III committed an act which was intended to cause the death of Fredo Hilaire.” Willis did not object to this instruction.

In Montgomery v. State, 39 So. 3d 252 (Fla. 2010), the supreme court held that under Florida law “the crime of manslaughter by act does not require that the defendant intended to kill the victim,” and any such instruction which required proof of an intent to kill constituted fundamental error. Id. at 255, 258.

Willis argues that Montgomery applies equally to attempted voluntary manslaughter by act. The State disagrees and posits, citing Williams v. State, 40 So. 3d 72, 75 (Fla. 4th DCA 2010), that this distinction is supported by the fact that “the Supreme Court has not amended the attempted manslaughter instruction, even though it has twice amended the manslaughter instruction within the last [three] years.”

This court has recently weighed in on the issue in Burton v. State, 36 Florida Law Weekly D738 (Fla. 5th DCA Apr. 8, 2011), certifying conflict with Williams. In Burton, we agreed with the First District, which concluded that an instruction on attempted voluntary manslaughter by act, requiring the jury to find an intent to kill, suffers from the same infirmities found in Montgomery. Burton, 36 Fla. L. Weekly at D739. See also Bass v. State, 45 So. 3d 970 (Fla. 3d DCA 2010); Gonzalez v. State, 40 So. 3d 60 (Fla. 2d DCA 2010). Therefore, we reverse the conviction for attempted second-degree murder, and affirm the conviction for robbery with a deadly weapon.

AFFIRMED IN PART; REVERSED IN PART; REMANDED. ORFINGER, C.J., and JACOBUS, J., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

ROBERT ERNEST CAMILLI,

Appellant,

v.                   CASE NO. 5D10-552

STATE OF FLORIDA,

Appellee.

Opinion filed September 23, 2011

Appeal from the Circuit Court for Volusia County,

James R. Clayton, Judge.

James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

In this appeal of his upward departure sentence, Robert Ernest Camilli argues, and the State concedes, that the fifteen-year sentence imposed for his violation of probation is unsupported because the trial court utilized improper factors. We accept the State’s proper concession and agree.

Camilli was originally convicted in 1996 for his 1994 offense of lewd and lascivious act committed in the presence of a minor. Camilli was placed on probation,

which he subsequently violated. Upon resentencing, it was determined that the 1994 guidelines applied. After revoking Camilli’s probation, the trial court imposed a fifteen-year upward departure sentence based on two factors — an escalating pattern of conduct that took place during his probation and enticing a minor to participate. Because the first factor did not exist at the time of Camilli’s original sentence, it cannot be used as a basis for a departure sentence imposed upon a violation of probation. See Lambert v. State, 545 So. 2d 838, 842 (Fla. 1989). The remaining ground is likewise invalid because, as the State concedes, the original offense did not involve the victim’s participation.

We reverse Camilli’s departure sentence and remand to the trial court for resentencing.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ORFINGER, C.J., GRIFFIN and LAWSON, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

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

RICHARD E. WILSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D11-2173

Opinion filed September 22, 2011.

An appeal from the Circuit Court for Columbia County. E. Vernon Douglas, Judge.

Richard E. Wilson, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant, Richard E. Wilson, appeals the summary denial of his

postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850.

We affirm the denial of grounds one and two without further discussion. However,

for the reasons discussed below, we reverse and remand the denial of ground three.

In October 2007, following a plea of nolo contendere, Wilson was convicted

of lewd and lascivious battery in case 06-750. At the time he committed the lewd

and lascivious battery, Wilson was apparently on probation for cases 96-1043 and 96-1046. When he pleaded to lewd and lascivious battery in case 06-750, he also admitted violating probation/release in cases 96-1043 and 96-1046. Wilson was sentenced to a total of ten years’ imprisonment to be followed by ten years of probation in all three cases.

In ground three, Wilson asserts that his counsel misadvised him that he would receive gain time for the 1996 cases, so that only 2 1/2 years would remain for him to serve in those cases. However, upon his transfer to the Department of Corrections (DOC) he realized that his gain time in those cases would be forfeited. Wilson alleges that he would not have entered a plea/admission had he known that there was a possibility that his earned gain time would be forfeited. Wilson has filed a timely, facially sufficient claim which is not refuted by the record. See O’Neal v. State, 860 So. 2d 456 (Fla. 1st DCA 2003) (holding that affirmative misadvice by counsel as to the eligibility for gain time is a basis for postconviction relief).

Accordingly, we AFFIRM the denial of grounds one and two, but REVERSE and REMAND for the trial court to attach records conclusively refuting ground three or hold an evidentiary hearing.

DAVIS, PADOVANO, and ROWE, JJ., CONCUR.

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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ARTHUR LEE BATTEN,

Petitioner,

v.                 CASE NO. 1D11-3652

STATE OF FLORIDA,

Respondent.

Opinion filed September 22, 2011.

Petition for Writ of Habeas Corpus — Original Jurisdiction. Arthur Lee Batten, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

Petitioner seeks a writ of habeas corpus challenging his judgment and sentence in Duval County Circuit Court case number 96-5127-CF. The petition is dismissed.

See Baker v. State, 878 So. 2d 1236 (Fla. 2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Due to petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his conviction and sentence, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because petitioner’s continued and repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Duval County Circuit Court case number 96-5127-CF. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R. App. P. 9.410.

WOLF, DAVIS, and MARSTILLER, JJ., CONCUR.

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Supreme Court of Florida

No. SC08-1871

CLAYTON HARRIS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[April 21, 2011]

REVISED OPINION

PARIENTE, J.

When will a drug-detection dog‘s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures.1

1. The issue in this case is not whether a dog‘s sniff of the exterior of a vehicle constitutes a search. That has been answered by the United States Supreme Court. See Illinois v. Caballes, 543 U.S. 405, 407-08 (2005) (holding that a canine sniff of an automobile need not be justified by reasonable articulable suspicion of drug activity); City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (recognizing that a canine sniff of an automobile is not a search); see also United

The issue of when a dog‘s alert provides probable cause for a search hinges on the dog‘s reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog‘s reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officer‘s belief—in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer‘s belief in the dog‘s reliability as a predicate for determining probable cause.

The appellate courts addressing the issue in this state have differed on what evidence the State must present to meet its burden. The decision of the First District Court of Appeal in Harris v. State, 989 So. 2d 1214 (Fla. 1st DCA 2008), expressly and directly conflicts with the decisions of the Second District Court of Appeal in Gibson v. State, 968 So. 2d 631 (Fla. 2d DCA 2007), and Matheson v.

States v. Place, 462 U.S. 696, 706-07 (1983) (holding that a canine sniff of luggage does not constitute a search).

State, 870 So. 2d 8 (Fla. 2d DCA 2003).2 In Harris, the First District without elaboration cited State v. Laveroni, 910 So. 2d 333 (Fla. 4th DCA 2005), and State v. Coleman, 911 So. 2d 259 (Fla. 5th DCA 2005), as authority in support of affirming the trial court, which upheld the search at issue. The First District also cited Gibson, which followed Matheson, as contradictory authority.

The reliability of a dog as a detector of illegal substances is subject to a totality of the circumstances analysis. Thus, the trial court must be presented with the evidence necessary to make an adequate determination as to the dog‘s reliability. For the reasons explained below, we hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and

2. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle. To adopt the contrary view that the burden is on the defendant to present evidence of the factors other than certification and training in order to demonstrate that the dog is unreliable would be contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. In addition, since all of the records and evidence are in the possession of the State, to shift the burden to the defendant to produce evidence of the dog‘s unreliability is unwarranted and unduly burdensome. Accordingly, we quash Harris and disapprove Coleman and Laveroni. We approve Gibson and Matheson to the extent they are consistent with this opinion.

FACTS

In July 2006, the State charged Clayton Harris with possession of the listed chemical pseudoephedrine with intent to use it to manufacture methamphetamine, more commonly known as meth, in violation of section 893.149(1)(a), Florida Statutes (2006). Harris subsequently moved to suppress seized evidence, including the pseudoephedrine, arguing that it was found pursuant to an illegal search of his truck.

At the hearing on the motion to suppress, the evidence established that on June 24, 2006, Liberty County Sheriff‘s Canine Officer William Wheetley and his

drug-detection dog, Aldo, were on patrol. Officer Wheetley conducted a traffic stop of Harris‘s truck after confirming that Harris‘s tag was expired. Upon approaching the truck, Officer Wheetley noticed that Harris was shaking, breathing rapidly, and could not sit still. Officer Wheetley also noticed an open beer can in the cup holder. When Officer Wheetley asked for consent to search the truck, Harris refused. Officer Wheetley then deployed Aldo. Upon conducting a ?free air sniff? of the exterior of the truck, Aldo alerted to the door handle of the driver‘s side.

Underneath the driver‘s seat, Officer Wheetley discovered over 200 pseudoephedrine pills in a plastic bag wrapped in a shirt. On the passenger‘s side, Officer Wheetley discovered eight boxes of matches containing a total of 8000 matches. Officer Wheetley then placed Harris under arrest. A subsequent search of a toolbox on the passenger side revealed muriatic acid. Officer Wheetley testified that these chemicals are precursors of methamphetamine. After being read his Miranda3 rights, Harris stated that he had been cooking meth for about one year and most recently cooked it at his home in Blountstown two weeks prior to the stop. Harris also admitted to being addicted to meth and needing it at least every few days.

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

As of the day that Officer Wheetley searched Harris‘s truck, Officer Wheetley had been a law enforcement officer for three years and had been a canine handler since 2004. In January 2004, Aldo completed a 120-hour drug detection training course at the Apopka Police Department with his handler at the time, Deputy Sherriff William Morris. In February 2004, Aldo was certified with Morris as a drug-detection dog by Drug Beat K-9 Certifications. Aldo is trained and certified to detect cannabis, cocaine, ecstasy, heroin, and methamphetamine. Aldo is not trained to detect alcohol or pseudoephedrine. Although Officer Wheetley testified that pseudoephedrine is a precursor of meth, there was no testimony on whether a dog trained to detect and alert to meth would also detect and alert to pseudoephedrine.

In July 2005, Aldo and Officer Wheetley became partners. In February 2006, they completed a forty-hour training seminar with the Dothan Police Department. Officer Wheetley testified that he and Aldo complete this seminar annually. Additionally, Officer Wheetley trains Aldo four hours per week in detecting drugs in vehicles, buildings, and warehouses. For example, Officer Wheetley may take Aldo to a wrecker yard and plant drugs in six to eight out of ten vehicles. Officer Wheetley then takes Aldo and performs a ?W pattern, up, down, up, down.?

Aldo must alert to the vehicles with drugs, and he is rewarded for an accurate alert. Officer Wheetley described Aldo‘s success rate during training as ?really good.? Aldo‘s training records, which Officer Wheetley began keeping in November 2005, were introduced in evidence. These records reveal that on a performance level of either satisfactory or unsatisfactory, Aldo performed

satisfactory 100% of the time. However, Officer Wheetley did not explain whether a satisfactory performance includes any alerts to vehicles where drugs were not placed.

Officer Wheetley also testified that in Florida a single-purpose dog, such as one trained only to detect drugs, is not required by law to carry certification. These dogs are required to show proficiency only in locating drugs. By contrast, a dual-purpose dog, such as one trained in apprehension and drug detection, must carry Florida Department of Law Enforcement (FDLE) certification. Florida does not have a set standard for certification for single-purpose drug dogs, such as Aldo.

With regard to Aldo‘s performance in the field, Officer Wheetley testified that he deploys Aldo approximately five times per month. Officer Wheetley maintains records of Aldo‘s field performance only when Officer Wheetley makes an arrest. Officer Wheetley testified that he does not keep records of Aldo‘s alerts in the field when no contraband is found; he documents only Aldo‘s successes. These records were neither produced prior to the hearing nor introduced at the

hearing.4 Thus, it is impossible to determine what percentage of time Aldo alerted and no contraband was found following a warrantless search of the vehicle.

Harris introduced evidence of a specific instance of Aldo‘s field performance to support his position that Aldo is unreliable involving this same vehicle and same defendant. About two months after the June 24 stop, Officer Wheetley stopped Harris again for a traffic infraction.5 On this stop, Officer Wheetley again deployed Aldo, who alerted to the same driver‘s side door handle. A subsequent search of the truck revealed only an open bottle of liquor and no illegal substances.

Officer Wheetley testified to the issue of residual odors. According to Officer Wheetley, Aldo can pick up residual odors of illegal drugs on an object when, for example, someone has the odor on his or her hand and touches a door handle. When asked how long a residual odor can remain on the handle, Officer Wheetley stated that he was not qualified to answer that question.

4. At the hearing, defense counsel argued that the State withheld discovery by failing to produce these records. The State responded that it provided everything it had. Officer Wheetley stated that when the defense asked him to produce the records and certification, he believed the defense was referring to Aldo‘s training and certification, not field performance records. The trial court did not find a discovery violation. Harris does not challenge that ruling in this review proceeding.

5. There was testimony that this stop occurred within four to six weeks before the suppression hearing on October 12, 2006, which means that the stop occurred between late August and mid-September 2006.

Regarding the alert in this case, Officer Wheetley testified that Aldo presumably alerted to residual odor of meth on the door handle, indicating that Officer Wheetley did not believe that Aldo alerted to any of the substances found in the vehicle. Officer Wheetley testified on cross-examination:

Officer Wheetley: [W]hen my dog alerts to a door handle, it usually means, in the cases which I have worked in the past, that somebody has either touched the narcotics or have smoked narcotics, the odor is on their hand when they touched the door handle is when the odor

transfer occurs. And that‘s when my dog will pick up on the residual odor of the narcotics.

Defense Counsel: So you have no idea – do you know how long ago somebody might have touched that vehicle?

Officer Wheetley: Ma‘am, you‘re asking me a question for an expert. I don‘t feel comfortable answering that.

Defense Counsel: Do you know whether it could have been someone other than the person driving the vehicle?

Officer Wheetley: I can‘t answer that question, ma‘am. . . . . . . .

Officer Wheetley: The residual odor is there. That‘s what caused my dog to show the response. So if it‘s there, my dog responded to the odor, so which – apparently the odor was there.

Defense Counsel: But you have no way of establishing in this case that this is not just a false alert by your dog?

Officer Wheetley: Ma‘am, we found the precursors to

methamphetamine, all the listed chemicals were in the truck. He

admitted to not being able to go more than two days without using. I think that pretty much places the odor on the door handle.

Defense Counsel: The dog, however, did not alert to any of the things he has been trained to alert to as far as your knowledge?

Officer Wheetley: Ma‘am, he was trained to alert to the odor of

narcotics, which he alerted to the odor of narcotics on the door handle.

After both parties rested, the State argued that Officer Wheetley had probable cause based on the totality of the circumstances, which included the expired tag, open container, nervousness, and an alert by a trained and certified drug-detection dog. In challenging the issue of probable cause, the defense argued that the State failed to establish Aldo‘s reliability. According to the defense, any dog can be trained, but what matters most is that the dog obtains positive results in the field. The defense focused on the fact that on two occasions (once on June 24, the stop at issue, and once after the stop at issue) Aldo alerted to Harris‘s truck and no drugs were found that Aldo was trained to detect.

In an oral ruling, the trial court denied the motion to suppress, found that there was probable cause to search Harris‘s truck, and admitted the physical evidence seized. The trial court did not make a finding as to the dog‘s reliability or any other factual findings.

Harris then entered a plea of no contest, reserving the right to appeal the denial of the motion. He was sentenced to twenty-four months‘ incarceration and five years of probation. On appeal, the First District affirmed. Harris subsequently petitioned this Court for discretionary review, which we accepted based on express and direct conflict between the First and Second Districts.

THE CONFLICT ISSUE

The question presented to the First District—and now to this Court— concerns the evidence that the State must introduce to establish that probable cause existed for the warrantless search of a vehicle based on a drug-detection dog‘s alert to the vehicle. To clarify the conflict, we will outline the approaches adopted by the First, Second, Fourth, and Fifth District Courts of Appeal, which have all addressed this issue.

The First, Fourth, and Fifth Districts agree that the State can establish probable cause to search a vehicle by demonstrating that a dog is properly trained and certified to detect illegal drugs. See Harris, 989 So. 2d at 1215; Laveroni, 910 So. 2d at 336; Coleman, 911 So. 2d at 261. None of the courts address what would constitute ?proper training and certification,? nor do they address the fact that there is no statewide certification for single-purpose drug-detection dogs. These districts do not consider field performance records to be irrelevant; their position is that if the defendant wishes to challenge the reliability of the dog, it is the defendant‘s burden to introduce field performance records of the dog or other evidence, such as expert testimony.

In Laveroni, the defendant moved to suppress illegal drugs found pursuant to a warrantless search of his car. 910 So. 2d at 334. The illegal drugs were found after the defendant was stopped for reckless driving and a drug-detection dog alerted to the driver‘s open window. Id. The trial court, on its own and after the

parties rested, ?raised the issue of whether there was sufficient proof that the narcotics dog was qualified so as to establish probable cause.? Id. Because there was no evidence presented as to the dog‘s qualifications, the trial court granted the motion to suppress. Id. at 335. The Fourth District reversed and remanded because the State was not put on notice that the dog‘s qualifications would be at issue. Id. In the event that the issue would be raised on remand, the Fourth District explained:

[T]he state can make a prima facie showing of probable cause based on a narcotic dog‘s alert by demonstrating that the dog has been properly trained and certified. If the defendant wishes to challenge the reliability of the dog, he can do so by using the performance records of the dog, or other evidence, such as expert testimony.

Id. at 336. The court found support in United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994), which held that evidence of training and certification was sufficient to establish probable cause but that evidence of the reliability of the dog‘s performance was also admissible to rebut the State‘s prima facie showing of reliability. Laveroni, 910 So. 2d at 336.

In Coleman, the State challenged the trial court‘s orders granting motions to suppress drugs found in vehicles after a drug-detection dog‘s alert indicated that drugs were present in the vehicles. 911 So. 2d at 260. Although the State had introduced evidence that the dog had been trained and certified to detect illegal drugs, the State failed to produce evidence of the dog‘s field performance records.

Id. The trial court concluded that without evidence of the dog‘s field performance, the State failed to establish probable cause. Id. Relying on Laveroni, the Fifth District reversed and held that ?the State made a prima facie showing of probable

cause? by introducing evidence that the dog was trained and certified to detect illegal drugs. Coleman, 911 So. 2d at 261. Accordingly, the court held that ?it was error to grant the motions to suppress.? Id. In Harris, citing to Laveroni and Coleman, the First District aligned itself with the Fourth and Fifth Districts.

Harris, 989 So. 2d at 1215.

The Second District has reached the opposite conclusion on similar facts. According to the Second District, in Matheson, 870 So. 2d at 14, ?the fact that a dog has been trained and certified, standing alone, is insufficient to give officers probable cause to search based on the dog‘s alert.? The Second District reasoned that ?[a]n officer who knows only that his dog is trained and certified, and who has no other information, at most can only suspect that a search based on the dog‘s alert will yield contraband. Of course, mere suspicion cannot justify a search.? Id. at 13. Thus, the Second District concluded that ?the most telling indicator of what the dog‘s behavior means is the dog‘s past performance in the field.? Id. at 15.

The Second District also discussed the issue of residual odors:

[I]n this case Razor‘s trainer acknowledged the tendency of narcotics detection dogs to alert on the residual odors of drugs that are no longer present.

This underscores one of three central reasons why the fact that a dog has been trained, standing alone, is not enough to give an officer probable cause to search based on the dog‘s alert. Razor‘s trainer

acknowledged that a trained dog, doing what he has been conditioned to do, imparts to the officer merely that he detects the odor of contraband. To be sure, as the trainer maintained, this may not be a false alert when assessing the success of the dog‘s conditioning. But for Fourth Amendment purposes it is neither false nor positive. The

presence of a drug‘s odor at an intensity detectable by the dog, but not by the officer, does not mean that the drug itself is present.

Id. at 13. The Second District then enunciated concerns with relying solely on evidence that the dog was trained or ?conditioned? to respond in particular ways to particular stimuli:

Although we commonly refer to the ?training? of dogs, manifestly

they are not trained in the sense that human beings may be trained. It is not a process of imparting knowledge and skills that dogs want or need. However much we dog lovers may tend to anthropomorphize their behavior, the fact is that dogs are not motivated to acquire skills that will assist them in their chosen profession of detecting contraband. Rather, dogs are ?conditioned,? that is, they are induced to respond in particular ways to particular stimuli. For law enforcement purposes, the ideal conditioning would yield a dog who always responds to specified stimuli in a consistent and recognizable way, yet never responds in that manner absent the stimuli. But this does not happen. While dogs are not motivated in ways that humans are, neither can they be calibrated to achieve mechanically consistent results.

Id. at 13-14.

In this regard, the Second District highlighted that ?conditioning and

certification programs vary widely in their methods, elements, and tolerances of

failure.? Id. at 14. The Second District then contrasted the highly rigorous training

and certification program of the United States Customs Service to the training in Matheson, where the dog and handler had undergone only one initial thirty-day certification program and one week-long annual recertification. See id. Finally, the Second District noted that dogs themselves ?vary in their abilities to accept, retain, or abide by their conditioning in widely varying environments.? Id. In rejecting the proposition that evidence of training and certification alone is sufficient to give probable cause to search based on the dog‘s alert, the Second District held that multiple factors should be considered, including the exact training received, the criteria for selecting the dogs in the program, the standards the dog was required to meet to successfully complete the training program, and the ?track record? of the dog in the field, with an emphasis on the number of mistakes the dog has made. See id. at 14-15 (quoting State v. Foster, 390 So. 2d 469, 470 (Fla. 3d DCA 1980)).

In Gibson, 968 So. 2d at 631, the Second District held that the State had failed to establish that the drug-detection dog‘s alert provided probable cause for the search. The Second District, citing Matheson, reiterated that ?[t]o demonstrate that an alert by a narcotics detection dog is sufficiently reliable to furnish probable cause to search, the State must introduce evidence of the dog‘s ?track record‘ or performance history.? Id. (citing Matheson, 870 So. 2d at 14). In that case, the dog‘s handler had testified that the dog was certified and had completed 400 hours

of training. Id. at 631-32. However, the State ?failed to elicit any testimony from him regarding the dog‘s track record? in the field; although the ?officer admitted that drugs are not always found when the dog alerts, . . . he could not quantify the percentage of false alerts.? Id. at 632. The Second District concluded that, under Matheson, the officer‘s testimony was inadequate to establish the dog‘s reliability. Id.

As explained in our analysis below, we agree with the Second District‘s bottom-line conclusion that the State cannot establish probable cause by introducing evidence only that the dog was trained and certified. We disapprove of the conclusions of the First, Fourth, and Fifth Districts that the State can meet its burden of establishing probable cause by presenting evidence that the dog is trained and certified to detect illegal drugs and then shifting the burden to the defendant to counter this evidence.

ANALYSIS

As previously stated, the question presented concerns the showing that the State must make to establish probable cause for a warrantless search of a vehicle based on a drug-detection dog‘s alert to the vehicle. This issue involves a trial court‘s determination of the legal issue of probable cause, which we review de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). However, we defer to a trial court‘s findings of historical

fact as long as they are supported by competent, substantial evidence. See Connor v. State, 803 So. 2d 598, 608 (Fla. 2001).

The Fourth Amendment to the United States Constitution provides that

?[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.? U.S. Const. amend. IV; see also art. I, § 12, Fla. Const. ?[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.? Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted).

One such exception to the warrant requirement is the ?automobile

exception,? first established by the United States Supreme Court in Carroll v. United States, 267 U.S. 132 (1925). In Carroll, the United States Supreme Court held that a warrantless search of a vehicle based upon probable cause to believe that the vehicle contains contraband is not unreasonable within the meaning of the Fourth Amendment. Id. at 149; see also Maryland v. Dyson, 527 U.S. 465, 467 (1999) (stating that the automobile exception permits police to search a vehicle if probable cause exists to believe it contains contraband). The automobile exception of not requiring a warrant is based on the inherent mobility of vehicles, as well as the reduced expectation of privacy in a vehicle. Pennsylvania v. Labron, 518 U.S.

938, 940 (1996). Although an individual has a ?reduced expectation of privacy in an automobile, owing to its pervasive regulation,? id., he or she ?does not surrender all the protections of the Fourth Amendment by entering an automobile,? New York v. Class, 475 U.S. 106, 112 (1986). ?A search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search.? United States v. Ortiz, 422 U.S. 891, 896 (1975) (footnote omitted). The cases make clear that probable cause to search a vehicle is based on the same facts that would justify the issuance of a warrant. See Dyson, 527 U.S. at 467. ?The scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize.? United States v. Ross, 456 U.S. 798, 823 (1982).

The United States Supreme Court has explained that the probable cause standard ?depends on the totality of the circumstances.? Maryland v. Pringle, 540 U.S. 366, 371 (2003). ?Probable cause exists when ?there is a fair probability that contraband or evidence of a crime will be found in a particular place.‘ ? United States v. Grubbs, 547 U.S. 90, 95 (2006) (emphasis added) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). ?[P]robable cause is a fluid concept—turning

on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.? Pringle, 540 U.S. at 370-71 (alteration in original) (quoting Gates, 462 U.S. at 232). Probable cause is a

? ?practical, nontechnical conception‘ that deals with ?the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.‘ ? Id. at 370 (quoting Gates, 462 U.S. at 231).

This Court, obliged to follow precedent from the United States Supreme Court, has explained:

An examination of Supreme Court jurisprudence reveals a decidedly broad definition of when law enforcement officers have the authority to engage in a warrantless search:

Probable cause exists where ?the facts and circumstances within their (the officers‘) knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that? an offense has been or is being committed.

State v. Betz, 815 So. 2d 627, 633 (Fla. 2002) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). The burden is on the State to demonstrate that the police had probable cause to conduct a warrantless search. See Doctor v. State, 596 So. 2d 442, 445 (Fla. 1992); see also Hilton v. State, 961 So. 2d 284, 296 (Fla. 2007) (?When a search or seizure is conducted without a warrant, the government bears the burden of demonstrating that the search or seizure was reasonable.?).

When it comes to the use of drug-detection dogs, the United States Supreme Court has explained that ?the use of a well-trained narcotics-detection dog—one that ?does not expose noncontraband items that otherwise would remain hidden from public view,‘—during a lawful traffic stop, generally does not implicate legitimate privacy interests.? Caballes, 543 U.S. at 409 (citation omitted) (quoting Place, 462 U.S. at 707).6 Caballes and Place considered the issue of whether the use of a ?well-trained? drug-detection dog constitutes a search and not the circumstances of how the trial court determines whether the drug-detection dog is well-trained and when the dog‘s alert will constitute probable cause to believe that there are illegal substances within the vehicle.

Because the dog cannot be cross-examined like a police officer whose observations at the scene may provide the basis for probable cause, the trial court must be able to assess the dog‘s reliability by evaluating the dog‘s training, certification, and performance, as well as the training and experience of the dog‘s handler. Similar to situations where probable cause to search is based on the

6. We note that the United States Supreme Court appears to have equated a ?well-trained? drug-detection dog with one who ?does not expose noncontraband items that otherwise would remain hidden from public view.? Caballes, 543 U.S. at 408-09; Place, 462 U.S. at 707. The danger of a dog not being well-trained is that the dog may expose noncontraband items to public view. In this sense, a well-trained dog is a reliable dog. Further, a well-trained dog is not necessarily a dog that has merely been trained and certified; the best way of evaluating whether a dog is in fact ?well-trained,? or reliable, is to evaluate the totality of the circumstances, including the dog‘s training, certification, and performance.

information provided by informants, the trial court must be able to evaluate the reliability of the dog based on a totality of circumstances. See Gates, 462 U.S. at 230-31. A critical part of the informant‘s reliability is the informant‘s track record of giving accurate information in the past.7

Like the informant whose information forms the basis for probable cause, where the dog‘s alert is the linchpin of the probable cause analysis, such as in this case, the reliability of the dog to alert to illegal substances within the vehicle is crucial to determining whether probable cause exists. If a dog is not a reliable

7. See, e.g., McCray v. Illinois, 386 U.S. 300, 303 (1967) (?Jackson testified that he had been acquainted with the informant for approximately a year, that during this period the informant had supplied him with information about narcotics activities ?fifteen, sixteen times at least,‘ that the information had proved to be accurate and had resulted in numerous arrests and convictions. On cross-examination, Jackson was even more specific as to the informant‘s previous reliability, giving the names of people who had been convicted of narcotics violations as the result of information the informant had supplied.?); State v. Peterson, 739 So. 2d 561, 564 (Fla. 1999) (?Officer NeSmith stated in his affidavit that the informant ?has provided information to law enforcement on at least twenty occasions regarding illegal criminal activities occurring in Escambia County, Florida that has proven to be accurate and true.‘ Generally, this level of previous contact is sufficient to establish veracity.?); State v. Butler, 655 So. 2d 1123, 1130 (Fla. 1995) (?In this case, we have an informant whose veracity (i.e., credibility and reliability) is unquestioned. Officer Putnam had used information from this informant at least 20 times, and 60 to 70% of the tips resulted in felony arrests. As the district court acknowledged, the informant‘s reliability is ?fairly well established.‘ ?); see also 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3 (4th ed. 2004) (?When the police undertake to establish the credibility of an informant as a part of their task of establishing that probable cause exists for an arrest or search made or to be made exclusively or primarily upon that informant‘s story, they invariably do so by referring to the past performance of that informant.?).

detector of drugs, the dog‘s alert in a particular case, by itself, does not indicate that drugs are probably present in the vehicle. In fact, if the dog‘s ability to alert to the presence of illegal substances in the vehicle is questionable, the danger is that individuals will be subjected to searches of their vehicles and their persons without probable cause. Conversely, if a dog is a reliable detector of drugs, the dog‘s alert in a particular case can indicate that drugs are probably present in the vehicle. In those circumstances, the drug-detection dog‘s alert will indicate to the officer that there is a ?fair probability that contraband? will be found. Gates, 462 U.S. at 238. Thus, to determine whether the officer has a reasonable basis for concluding that the dog‘s alert indicates a fair probability that contraband will be found, the trial court must be able to adequately make an objective evaluation of the reliability of the dog.

We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person. We first note that there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs. In contrast to dual-purpose drug-detection dogs, which are apparently certified by FDLE, no such required certification exists in this state for dogs like Aldo, who is a single-purpose drug-detection dog.

In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. ?[S]imply characterizing a dog as ?trained‘ and ?certified‘ imparts scant information about what the dog has been conditioned to do or not to do, or how successfully.? Matheson, 870 So. 2d at 14. In other words, whether a dog has been sufficiently trained and certified must be evaluated on a case-by-case basis. For example, in a decision from the United States Court of Appeals for the Eleventh Circuit, the court described a dog as a ?highly trained and credentialed professional whose integrity and objectivity are beyond reproach? because it had graduated from the U.S. Canine Academy and Police Dog Training Center, had been certified by the National Narcotics Detector Dog Association, and was described by one trainer as ?probably one of the best dogs he had trained in the 23 years he had been doing it.? United States v. $242,484.00, 389 F.3d 1149, 1159, 1165 (11th Cir. 2004).

One commentator has described the ? ?mythic infallibility‘ of the dog‘s

nose?:

In cases involving dog sniffing for narcotics it is particularly evident that the courts often accept the mythic dog with an almost superstitious faith. The myth so completely has dominated the judicial psyche in those cases that the courts either assume the

reliability of the sniff or address the question cursorily; the dog is the clear and consistent winner.

Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog

Scent Lineup, 42 Hastings L.J. 15, 22, 28 (1990). Another commentator has noted

that ?not all dogs are well-trained and well-handled, nor are all dogs temperamentally suited to the demands of being a working dog. Some dogs are distractible or suggestible, and may alert improperly. Many factors may lead to an unreliable alert.? Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason L. Rev. 1, 4 (2006).

Second, and related to the first concern, any presumption of reliability based only on the fact that the dog has been trained and certified does not take into account the potential for false alerts, the potential for handler error, and the possibility of alerts to residual odors. As the Second District aptly observed, ?[a]n officer who knows only that his dog is trained and certified, and who has no other information, at most can only suspect that a search based on the dog‘s alert will yield contraband. Of course, mere suspicion cannot justify a search.? Matheson, 870 So. 2d at 13.

?A false [alert] is an alert by the dog in the absence of the substance it is trained to detect.? Myers, supra, at 12. False alerts may lead to the search of a person who is innocent of any wrongdoing. Id. Cases demonstrate that the false-alert rate among certified detection dogs varies significantly. Lewis R. Katz & Aaron P. Golembiewski, Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L. Rev. 735, 757 (2007).

Coupled with the concern for false alerts is the potential for handler error

and handler cuing. ?Handler error affects the accuracy of a dog. The relationship between a dog and its handler is the most important element in dog sniffing, providing unlimited opportunities for the handler to influence the dog‘s behavior.? Id. at 762. Therefore, the trial court must also focus on the training of the handler. ?Handlers interpret their dogs‘ signals, and the handler alone makes the final decision whether a dog has detected narcotics. Practitioners in the field reveal that handler error accounts for almost all false detections.? Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405, 425 (1997).

A related problem is the possibility of handler cuing. ?Even the best of dogs, with the best-intentioned handler, can respond to subconscious cuing from the handler. If the handler believes that contraband is present, they may unwittingly cue the dog to alert regardless of the actual presence or absence of any contraband. Finally, some handlers may consciously cue their dog to alert to ratify a search they already want to conduct.? Myers, supra, at 5 (footnote omitted).

An alert to a residual odor is different from a false alert, although both types of alerts may result in subjecting the person and vehicle to an invasive search when no contraband is actually present. Because of the sensitivity (or hypersensitivity) of a dog‘s nose, a dog may alert to a residual odor, which may not indicate the presence of drugs in the vehicle at the time of the sniff:

Given the level of sensitivity that many dogs possess, it is possible that if the person being searched had attended a party where other people were using drugs, the dog would alert because of the residue on clothing or fabric. It is possible that in a vehicle that had

formerly been used to transport drugs, the dog would alert, despite the fact that drugs were no longer present. Or it is possible that some sort of residue normally associated with drugs was present.

Myers, supra, at 4-5 (footnotes omitted). Therefore, the alert may not even mean that drugs were ever present in the vehicle or on the person.

Because of these variables, a necessary part of the totality of the circumstances analysis in a given case regarding the dog‘s reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog‘s performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court‘s evaluation of the dog‘s reliability under a totality of the circumstances analysis.8 In particular, when assessing the factors bearing on the dog‘s reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.

8. ?Information that merely tallies successes does not provide a complete picture. Well-presented data should include the number of failures, if any, and the conditions under which they occurred.? Bird, supra, at 432.

The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog‘s alert indicates a fair probability that there are drugs presently inside the vehicle.

In any event, the record in this case does not contain any testimony as to whether dogs can be trained to distinguish between residual odors and drugs and, further, there were no field records or testimony presented in this case in order to allow for a careful examination of the significance of field performance. Officer Wheetley was unable to testify as to a complete picture of Aldo‘s performance in the field. In future cases, the State can explain the significance of the percentage of unverified alerts in the field. The trial court would then be able to evaluate how any inability to distinguish between residual odors and drugs that are actually present bears on the reliability of the alert in establishing probable cause.

Finally, to adopt the view of the First, Fourth, and Fifth Districts would be to place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability—evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement

agencies may choose not to record, such as in this case.9 Placing this burden on the defendant is contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. See Doctor, 596 So. 2d at 445. Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog‘s alert, the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog‘s reliability.

Some courts have adopted a similar totality of the circumstances approach to determining a dog‘s reliability. For example, in State v. Nguyen, 726 N.W.2d 871, 876-77 (S.D. 2007), the defendant asserted that the dog‘s field activity report reflected the dog‘s unreliability. The South Dakota Supreme Court stated that while the ?apparently false indications [gave it] pause, . . . [it did] not believe these field reports should be relied on, standing alone, in measuring [the dog‘s]

reliability.? Id. at 877. The court explained:

9. As stated by Justice Lewis in his special concurrence in Jardines v. State, No. 08-2101 (Fla. Apr. 14, 2011): ?The complete lack of a uniform or standardized system of certifying drug detection canines renders it unduly burdensome for a defendant to challenge the validity of [a] . . . dog sniff . . . that results in an arrest.? Slip op. at 50 (Lewis, J., specially concurring). This burden is made especially difficult by the disparity among various training, testing, and certification programs.

In our view, trial courts making drug dog reliability determinations may consider a variety of elements, including such matters as the dog‘s training and certification, its successes and failures in the field,

and the experience and training of the officer handling the dog. Under the totality of the circumstances, the court can then weigh each of these factors.

Id.

Further, other courts have endorsed the trial court‘s consideration of multiple factors, with emphasis on the number of ?false alerts? by the dog. For instance, in State v. England, 19 S.W.3d 762, 768 (Tenn. 2000), the Tennessee Supreme Court rejected a per se rule that probable cause may be established through a positive alert by a trained narcotics detection dog. The court reasoned that the probable cause determination should turn on the dog‘s reliability and that the trial court should ensure that the dog is reliable by making factual findings. Id. The court set forth the following framework for this required reliability determination:

Accordingly, in our view, the trial court, in making the

reliability determination may consider such factors as: the canine‘s

training and the canine‘s ?track record,? with emphasis on the amount of false negatives and false positives the dog has furnished. The trial court should also consider the officer‘s training and experience with this particular canine.

Id.

Additionally, in United States v. Florez, 871 F. Supp. 1411, 1420-21 (D.N.M. 1994), the United States District Court for the District of New Mexico observed that certified dogs have falsely alerted and found the fact that a dog is

certified should not be sufficient to establish probable cause. While analogizing to an informant‘s tip, the court set forth the following framework for a probable cause analysis:

In summary, where adequate and comprehensive records are maintained on a particular narcotics dog, and include results of controlled alerts made in training, as well as actual alerts in the field, the dog‘s reliability could be sufficiently established either through the records themselves or testimony from the dog‘s trainer who

maintained the records. In this respect, the dog‘s alert is analogous to information provided by a reliable informant, and his alert without more could establish probable cause.

However, where records are not kept or are insufficient to establish the dog‘s reliability, an alert by such a dog is much like

hearsay from an anonymous informant, and corroboration is necessary to support the unproven reliability of the alerting dog and establish

probable cause. To accept less would compromise the very principles that the requirement of probable cause was designed to protect.

Id. at 1424. The court found support for this position from United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993), wherein the Tenth Circuit stated, ?If this were a case of an alert by a trained drug sniffing dog with a good record, we would not require corroboration to establish probable cause.? In sum, if the court relies only on training and certification records and fails to consider other factors concerning the dog‘s performance, then the court does not have a complete picture of the numerous circumstances that necessarily bear on the reasonableness of the officer‘s belief in the dog‘s reliability and whether the dog‘s alert in a particular case indicates a fair probability that there were drugs present inside the vehicle.

For the above reasons, we adopt a totality of the circumstances approach and hold that the State, which bears the burden of establishing probable cause, must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog. The State‘s presentation of evidence that the

dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog‘s performance in the field, including the dog‘s successes (alerts where contraband that the dog was trained to detect was found) and failures

(?unverified? alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog‘s ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog‘s reliability.

Contrary to the dissent‘s assertion that we ?impose[] evidentiary requirements which can readily be employed to ensure that the police rely on drug

detection dogs only when the dogs are shown to be virtually infallible,? dissenting op. at 42, we do not hold in this case that the dog must be shown to be ?virtually

infallible.? Just as it would be entirely relevant to know how many times an informant‘s tip resulted in contraband being discovered, the reason that the State should keep records of the dog‘s performance both in training and in the field is so that the trial court may adequately evaluate the reasonableness of the officer‘s belief in the dog‘s reliability under the totality of the circumstances. Because the State bears the burden of establishing probable cause, if the courts are to make determinations of probable cause based on the alerts of dogs, who can neither be cross-examined nor otherwise independently assessed as to their reliability, it is appropriate to place the burden on the State to ensure uniformity in the way dogs are evaluated for reliability of their alerts. Nothing less than the sanctity of our citizens‘ constitutional rights to be secure from unreasonable searches and seizures in their homes, their vehicles, and their persons is at stake.

THIS CASE

In applying these standards to Harris‘s case, we hold that the trial court erred in concluding that the State presented sufficient evidence to establish probable cause to conduct a warrantless search of Harris‘s truck. We defer to a trial court‘s findings of fact as long as they are supported by competent, substantial evidence, but we review de novo a trial court‘s application of the law to the historical facts.

See Connor, 803 So. 2d at 608; Pagan, 830 So. 2d at 806. However, in this case, the trial court did not make findings of historical fact.

The State presented the following evidence: Aldo had been trained to detect drugs since January 2004 and certified to detect drugs since February 2004; Officer Wheetley trains Aldo for approximately four hours per week, deploys Aldo approximately five times per month, and attends a forty-hour annual training seminar; and Aldo‘s success rate during training is ?really good.? Aldo‘s weekly training records reveal that from November 2005 to June 2006, Aldo performed satisfactorily 100% of the time. However, there was no testimony as to whether a satisfactory performance includes any false alerts. The record is also scarce on the details of Aldo‘s training, including whether the trainer was aware of the locations of the drugs10 and whether the training simulated a variety of environments and distractions.11

10. See Bird, supra, at 424 (examining the potential for handler cues and suggesting that these cues can be ?corrected in training by conducting practice sniffs where both the dog and handler do not know where the drugs are located?).

11. See, e.g., Bird, supra, at 413 (describing training procedures of the Rhode Island State Police: ?During training exercises, trainers use distractions to test the dog‘s skill under adverse conditions. Officers will conduct tests, for example, near a noisy airplane or in a fish market, where distracting sounds or scents dominate the area.? (footnotes omitted)); id. at 414 (describing training procedures of the United States Customs Service, which trains its dogs to ?disregard potential distractions such as food, harmless drugs, and residual scents,? permitting ?no false alerts and no missed drugs? (footnotes omitted)).

The State also did not introduce Aldo‘s field performance records so as to allow an analysis of the significance of the alerts where no contraband was found. In fact, Officer Wheetley testified that he does not keep records of Aldo‘s unverified alerts in the field; he documents only Aldo‘s successes.12 If an officer fails to keep records of his or her dog‘s performance in the field, the officer is lacking knowledge important to his or her belief that the dog is a reliable indicator of drugs. Cf. Florida v. J.L., 529 U.S. 266, 271, 273-74 (2000) (concluding that police did not have reasonable suspicion based on an anonymous tip because the officers did not have sufficient information from the tip and were without means to

12. Because the State did not introduce Aldo‘s field performance records, this Court does not have the benefit of quantifying Aldo‘s success rate in the field. See, e.g., United States v. Anderson, 367 Fed. App‘x 30, 32-33 (11th Cir. 2010) (rejecting defendant‘s argument that probable cause was not established where dog could not distinguish between an odor and presence of narcotics because, even accepting the field performance statistics, the dog had a 55% accuracy rate in finding measurable amounts of drugs); United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir. 1997) (finding that ?a 70-80% success rate meets the liberal standard for probable cause? to issue a search warrant); United States v. Scarborough, 128 F.3d 1373, 1378 (10th Cir. 1997) (holding that with an overall success rate of 92%, it was not clear error for the trial court to find that the dog was ?a credible narcotics dog and that his alert adequately supports the finding of probable cause?); United States v. Huerta, 247 F. Supp. 2d 902, 910 (S.D. Ohio 2002) (holding that a 65% accuracy rate, not counting instances involving trace amounts of narcotics or where handler assumed alert was to residual odor, was insufficient alone to justify probable cause determination based solely on the dog‘s alert); State v. Miller, 647 N.W.2d 348, 353 (Wis. Ct. App. 2002) (concluding that where the dog had accurately indicated presence of illegal contraband or

substances on thirty-five of forty occasions (87.5%), the dog‘s alert created probable cause).

test the informant‘s credibility and thus the tip‘s reliability, stating that ?[t]he reasonableness of official suspicion must be measured by what the officers knew before they conducted their search?).

The State asserts that the only relevant records are the training records—not field records—since there is no such thing as a false alert in the field because a dog alerts to both actual drugs and residual odors. Thus, the State argues, when a dog alerts in the field and no contraband is found, there is no way to determine whether the dog was alerting to a residual odor or whether the dog falsely alerted. This is also of concern when probable cause for the search hinges on the dog‘s demonstrated reliability and thus the probability that the dog‘s alert indicates that contraband was present in the vehicle at the time of the alert. Because the State did not introduce field performance records, the State was not able to explain the significance of any unverified alerts in the field.

Further, the State failed to present any evidence regarding the criteria necessary for Aldo to obtain certification through Drug Beat K-9 certifications. This case is unlike Coleman, where evidence was introduced outlining the details of the training program, the criteria for choosing which dogs to use as drug dogs, and the criteria necessary for the dog and handler to pass the course and obtain

?certification.? 911 So. 2d at 260. By contrast, the only evidence regarding the criteria used in Aldo‘s certification is a document simply stating that Aldo

successfully found twenty-eight grams of marijuana, five grams of methamphetamine, twenty-eight grams of cocaine, seven grams of heroin, seven grams of crack cocaine, and fifty grams of ecstasy. However, the record is silent on the circumstances of the certification, such as whether these drugs were hidden, whether the trainer was aware of the locations of the drugs, or whether the certification simulated the variety of environments and distractions found in the field. In the absence of uniform, standard criteria for certification, the State must do more than simply introduce evidence that the dog has been certified.

In this case, there are several other factors that call into question Aldo‘s reliability. First, the State failed to present any testimony regarding Aldo‘s ability to detect residual odors. When asked how long a residual odor can remain on the driver‘s side door handle, Officer Wheetley stated that he was not qualified to answer that question. While such testimony is not required, without this information, it is difficult to determine how this factor should apply, if at all. For example, in State v. Cabral, 859 A.2d 285, 300 (Md. Ct. Spec. App. 2004), the Maryland Court of Special Appeals held that even though testimony was presented that the dog could have alerted to a residual odor that was seventy-two hours old,

?such an ability serves to strengthen the argument that the dog has a superior sense of smell on which to rely to support a finding of probable cause.? Alternatively, a trial court may find, after evaluating the testimony and other evidence, that a dog‘s

inability to distinguish between residual odors and actual drugs undermines a finding of probable cause.

Second, the State has failed to explain why an alert to a residual odor on the door handle would give rise to probable cause in this case. Officer Wheetley testified that Aldo alerted to the door handle and that, in his experience, this meant that somebody had touched or smoked narcotics and then transferred the odor to the door handle. Officer Wheetley further indicated that Aldo‘s alert led him to believe that the odor of narcotics was present on the door handle. However, neither Officer Wheetley nor the State has explained in this case why evidence of residual odor of narcotics on the vehicle‘s door handle gave rise to probable cause that there were drugs actually present in the vehicle at the time of the alert. Aldo‘s alert to the door handle in this case, standing alone, provides no basis for an objective probable cause determination that drugs were present inside the vehicle.

Thus, we conclude that the State did not meet its burden in demonstrating that Officer Wheetley had a reasonable basis for believing that Aldo was reliable at the time of the search and, thus, that Aldo‘s alert, the linchpin of the probable cause analysis in this case, indicated a fair probability that drugs would be found in the vehicle. Although the trial court found probable cause, the trial court did not make a specific finding as to Aldo‘s reliability. The failure to make a finding on

Aldo‘s reliability makes it difficult to determine how much weight to give Aldo‘s alert in the probable cause analysis.

Although not part of the determination of whether probable cause to conduct the search existed at that time, two additional facts in this case are illustrative of why it is important to engage in an inquiry of a dog‘s reliability, including an evaluation of the dog‘s performance in the field. First, as to the search in question, the police officer did not discover any drugs that Aldo was trained to detect. In other words, there is a chance that this case may have involved a false alert. Second, Harris introduced evidence in this case that Aldo alerted to the same door handle on the same vehicle subsequent to this arrest and no drugs were found.

The State argues that the alert at issue in this case and the subsequent alert were not false alerts because Aldo was alerting to residual odor on the door handle; Officer Wheetley also testified that when a dog alerts to a door handle it usually means that residual odor was transferred to the door handle by someone who had handled drugs. However, an alert to residual odor on the door handle, by itself, indicates only that someone who has come into contact with drugs touched the door handle at some point.

In sum, we conclude that the State has failed to meet its burden of establishing probable cause. In the absence of a reliable alert, the other factors considered in the totality of circumstances analysis—Harris‘s expired tag, Harris‘s

shaking, breathing rapidly, and inability to sit still, and Harris‘s open beer can—do not rise to the level of probable cause that there were illegal drugs inside the vehicle. Accordingly, the search of the vehicle violated the Fourth Amendment‘s prohibition on unreasonable searches and seizures.

CONCLUSION

For the above reasons, we quash Harris and disapprove Coleman and Laveroni. We approve Gibson and Matheson to the extent that they are consistent with this opinion. We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog‘s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability. The trial court must then assess the reliability of the dog‘s alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not

support a probable cause determination, the trial court should have granted the motion to suppress. We remand for proceedings consistent with this opinion. It is so ordered.

LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, C.J., dissents with an opinion.

POLSTON, J., recused.

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

CANADY, C.J., dissenting.

Because the majority imposes an evidentiary burden on the State which is based on a misconception of the federal constitutional requirement for probable cause, I dissent. I would affirm the decision of the First District Court of Appeal on review; approve State v. Coleman, 911 So. 2d 259 (Fla. 5th DCA 2005), and State v. Laveroni, 910 So. 2d 333 (Fla. 4th DCA 2005); and disapprove Gibson v. State, 968 So. 2d 631 (Fla. 2d DCA 2007), and Matheson v. State, 870 So. 2d 8 (Fla. 2d DCA 2003).

In brief, the elaborate and inflexible evidentiary requirements the majority adopts are inconsistent with the proper understanding of probable cause as a

??practical, non-technical conception‘ that deals with ?the factual and practical considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.‘? Maryland v. Pringle, 540 U.S. 366, 370 (2003) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). In its effort to manage the conduct of law enforcement, the majority strays beyond what is necessary to determine if the Fourth Amendment‘s proscription of ?unreasonable searches and seizures? has been violated. In establishing requirements for determining the lawfulness of a search based on the alert of a drug detection dog, the majority demands a level of certainty that goes beyond what is required by the governing probable cause standard.

The process of determining whether a search was reasonable because it is based on probable cause ?does not deal with hard certainties, but with

probabilities.? Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). The probable cause standard ?merely requires that the facts available to the officer would ?warrant a man of reasonable caution in the belief‘? that ?evidence of a crime? may be found. Id. (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). ?[I]t does not demand any showing that such a belief be correct or more likely true than false.? Id. Instead, the probable cause standard requires simply that the search be justified by what the officer reasonably believes to be ?reasonably trustworthy

information.? Brinegar v. United States, 338 U.S. 160, 175 (1949) (quoting Carroll, 267 U.S. at 162). The majority here, however, imposes evidentiary

requirements which can readily be employed to ensure that the police rely on drug detection dogs only when the dogs are shown to be virtually infallible.

The record shows that the searching officer had an objectively reasonable basis for crediting the dog‘s alert. The State presented uncontroverted evidence that Aldo had been trained to detect drugs since January 2004 and certified to detect drugs since February 2004. Officer Wheetley testified that he trained Aldo approximately four hours per week, deployed Aldo approximately five times per month, and attended a forty-hour annual training seminar. Wheetley described Aldo‘s success rate during training as ?really good.? Aldo‘s weekly training records reveal that from the November 2005 to June 2006, Aldo performed satisfactorily 100 percent of the time. Harris failed to present any evidence challenging Aldo‘s training or certification. Based on this record of historical facts, the majority‘s conclusion that the officer acted unconstitutionally is totally unwarranted. See Jones v. Commonwealth, 670 S.E.2d 727, 733 (Va. 2009) (?The narcotics detection dog‘s reliability can be established from its training and experience, as well as a proven track record of previous alerts to the existence of illegal narcotics. Specific certifications and the results of field testing are not required to establish a sufficient foundation [for the dog‘s reliability].?)

Since there was no violation of the Fourth Amendment, the decision of the First District should be affirmed.

Application for Review of the Decision of the District Court of Appeal – Direct Conflict of Decisions

First District – Case No. 1D06-6497 (Liberty County)

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Division Chief Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Susan M. Shanahan and Natalie D. Kirk, Assistant Attorneys General, Tallahassee, Florida,

for Respondent

Courtesy of David Edelstein

Supreme Court of Florida

No. SC09-923

DAVID BYRON RUSS,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[September 22, 2011]

PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

I. OVERVIEW

David Byron Russ pleaded guilty to the first-degree murder of Madeleine Leinen. Prior to the penalty phase, Russ waived his right to present mitigation and waived his right to a penalty phase jury. The trial court accepted his waiver and sentenced Russ to death. On direct appeal, Russ raises two issues: (1) whether the trial court followed this Court?s procedures and considered all properly presented

mitigation, and (2) whether the trial court erred in finding the aggravators and mitigators, that the evidence is sufficient, and that the death sentence is proportionate. For the reasons expressed below, Russ is not entitled to relief.

II. FACTS AND PROCEDURAL HISTORY

On February 6, 2008, Russ, pleaded guilty to the May 7, 2007, first-degree murder of Madeleine Leinen.1 The facts of the underlying crime are laid out in the trial court?s sentencing order:

Shortly before midnight on the evening of May 6, 2007, Longwood Police Officer Brad Tollas noticed a white Jeep Cherokee parked in the parking lot of a business on Bennett Road. He approached the vehicle and observed the Defendant, David Russ, asleep in the driver?s seat. Russ had been on a ten day crack binge, and had cocaine and a crack pipe in the center console of the jeep.

Officer Tollas knocked on the darkly tinted window of the jeep and the Defendant responded saying he was “okay.” When Officer

Tollas asked him to roll down the window, the Defendant started the jeep and drove away at a high rate of speed. Officer Tollas pursued

the jeep and caught up with it in the Meadows West subdivision. He observed the vehicle, which was traveling at 5-10 mph, come to an

abrupt stop. No one was found in the vehicle, and the defendant was not located after a search of the area was conducted. The jeep was

abandoned about one block from the victim Madeleine Leinen?s home . . . in Longwood.

After fleeing on foot, David Russ spent the night on the rooftop of a house adjacent to the victim?s. Early the next morning, he observed Madeleine Leinen leave for work. It was at that precise moment she was selected as his victim.

Madeleine Leinen returned to her home shortly after 6:00 p.m. after stopping as Sam?s Club in Casselberry. At Sam?s Club, the

victim purchased both perishable and nonperishable items. A Sam?s

1. Russ was 45 years old at the time of the murder.

Club receipt detailing the items purchased and noting a checkout time of May 7, 2007, at 5:35 p.m. was on the kitchen counter. Frozen

shrimp which were purchased were placed in the freezer and other items purchased were found on a box in the garage and on the kitchen counter.

After killing the victim, the defendant took her Toyota Camry and drove straight to the Fairwinds Credit Union in Apopka. There he

attempted unsuccessfully to withdraw money from her account at an automatic teller machine. His efforts were captured by a video surveillance camera. The defendant then left Florida heading towards Texas.

Early on the morning of May 8, 2007, the victim?s lifeless body was found facedown on the floor in her hall bathroom by a friend.

The victim?s hands and feet were tightly bound with rope and a rope ligature was around her neck.

The medical examiner observed injuries to the victim consistent with strangulation from the neck ligature. He also noted three lacerations to the victim?s scalp which he attributed to blunt force

trauma. Four stab wounds, three to the victim?s back and one to the head were also found. Additionally, the victim suffered facial

bruising, fractured ribs, and a dislocated clavicle in the attack. The cause of death was attributed to multiple injuries resulting from blunt force trauma, stab wounds, and strangulation with a ligature.

Enroute to Texas, the Defendant pawned various items of the

victim?s jewelry and continued his crack binge by purchasing drugs along the way. The victim?s car was recovered in Gainesville, Texas.

Items of her jewelry which had been pawned by the Defendant on May 11, 2007, were recovered at a pawn shop in Denton, Texas. The

Defendant was arrested by the sheriff?s department in Denton, Texas on May 16, 2007.

Guilt Phase

The Plea Hearing

Russ was indicted on the following charges (count 1) first-degree premeditated murder, (count 2) kidnapping with a deadly weapon, (count 3) carjacking, (count 4) robbery with a deadly weapon, and (count 5) burglary with

assault or battery. At his first appearance, Russ pleaded not guilty to the charges against him and was appointed a public defender. Subsequently, on February 6, 2009, the trial court conducted a plea hearing where Russ withdrew his pleas of not guilty and tendered a plea of guilty as charged to counts 1, 2, 4, and 5, and pleaded guilty to the lesser included offense of grand theft as to count 3. The plea did not contain any sentencing agreements between Russ and the State and Russ was aware that the State intended to seek imposition of the death penalty despite his plea. The trial court requested, and the State furnished, a factual basis for the plea. Trial counsel stipulated that the State could establish the proffered evidence by competent evidence and Russ agreed with the facts offered by the State. The trial court found that Russ was “alert and intelligent” and that the plea was “freely and voluntarily made with knowledge of the consequences after advice of competent counsel.”

Waiver

On April 9, 2008, at Russ?s request, trial counsel informed the trial court that Russ wanted to waive the presentation of all mitigation during the penalty phase and the penalty phase jury. On April 14, 2008, the trial court conducted a status conference and discussed Russ?s desire to waive the presentation of mitigation. Russ again indicated that he wanted to waive the presentation of mitigation, stating that he “did not want to drag the victim?s family, [his] family, or anybody else

through the mitigation,” even though the mitigation was probably credible. Trial counsel confirmed that Russ was aware of the consequences of waiving mitigation and that Russ was aware of the difference between presenting mitigation to the jury and presenting it only to the trial court. The trial court informed Russ that presenting as much information as possible was in each party?s best interest so that the court could determine an appropriate sentence for the crimes. The trial court urged Russ to reconsider waiving his right to present mitigation.

On April 30 and May 1, 2008, the trial court conducted a Koon2 hearing. At the conclusion of the hearing, the trial court accepted Russ?s waiver and again informed Russ that the trial court was obligated to independently weigh the aggravating and mitigating factors. Accordingly, the trial court ordered a presentence investigation (PSI) report. Although Russ was still represented by trial counsel, the trial court appointed special counsel to present mitigation to the trial court.

On May 14, 2008, Russ wrote a letter to Judge Alva. Among other things, the contents of the letter expressed Russ?s guilt, described the crime, stated that the crime was premeditated, and again requested that the trial court accept his waiver of the presentation of mitigation during the penalty phase.

2. Koon v. Dugger, 619 So. 2d 246 (Fla. 1993).

The trial court conducted a status conference on August 7, 2008. At that time, special counsel requested that the trial court enter an order or ask Russ to cooperate so that he could be evaluated by a neuropsychologist. Special counsel informed the trial court that on various occasions, special counsel, investigators, and doctors had gone to the jail, but noted that each time they went, Russ refused to speak with any of them. The trial court asked Russ if he would cooperate, but Russ refused to undergo an evaluation and also refused to submit to a PET scan.

On August 27, 2008, the State filed a “Notice of Intent to Offer Evidence of Other Crimes, Wrongs, or Acts.” The State sought to introduce evidence regarding Russ?s criminal actions prior to and after the murder of Leinen. Specifically, the State sought to introduce the following evidence: (1) evidence that Russ broke into a woman?s home in Texas after the murder of Leinen with the intent to commit a felony therein; (2) Russ was in possession of cocaine on May 6, 2007; (3) Russ

was in possession of drug paraphernalia on May 6, 2007; and (4) Russ was loitering or prowling on May 7, 2007. Russ filed a motion in limine requesting the trial court to prohibit the State from offering evidence related to the crimes listed in the notice of intent. The trial court reserved ruling on the motion until the

evidence was proffered during the penalty phase.

On November 23, 2008, Russ wrote another letter to Judge Alva indicating his desire to waive the presentation of mitigation and jury during the penalty phase.

In response to Russ?s motion in limine, the State proffered the testimony of three witnesses. After argument, the trial court excluded the evidence regarding Russ?s convictions for fleeing and eluding a police officer and for possession of cocaine and drug paraphernalia. The trial court reserved ruling on the motion in limine regarding the evidence for the remaining issues.

Penalty Phase

Russ?s penalty phase trial was conducted on January 8 and 9, 2009. There, the State presented Russ?s May 14, 2008, letter to Judge Alva. The State also proffered evidence regarding the crime Russ committed in Texas shortly after the Leinen murder. However, the trial court later determined that that proffer was irrelevant and declined to consider it.

During the penalty phase, the State called seven witnesses. Special counsel participated in the penalty phase trial by (1) presenting prison medical records from previous incarcerations, (2) developing four witnesses? testimony through cross-examination, and (3) arguing against imposition of the death penalty and noting a number of potentially mitigating factors.3 Special counsel called three

3. Among other things, special counsel noted the existence of Russ?s: (1) substance abuse addiction, (2) physical and verbal abuse that he experienced as a child, (3) relationship with his brother, (4) multiple attempts to cure his addiction, (5) acceptance of responsibility for the crimes, (6) courtroom behavior, (7) obtaining a GED, (8) employment as a roofer, (9) depression, (10) training as a counselor, (11) relationship with his fiancée?s son and with his 80-year-old aunt,

witnesses during the penalty phase. Special counsel also presented Russ?s records from the following facilities: (1) the Texas Department of Criminal Justice (1993- 1996); (2) the University Medical Center, Lubbock, Texas (1996-1998); (3) the Texas Department of Criminal Justice (1998-2001); (4) the Correctional Managed Health Services, State of Texas (2001-2005); and (5) the John E. Polk Correctional Facility (May 2007-present). Additional documents were admitted into evidence, such as Russ?s (1) G.E.D., (2) college transcripts showing a G.P.A. of 3.67, (3) letter of acceptance to Texas Tech, (4) scholarship donor forms, and (5) thank-you letters to the scholarship donors.

Spencer4 Hearing

On January 15, 2009, the trial court conducted a Spencer hearing.

During the Spencer hearing, special counsel presented the following mitigation evidence: (1) Russ suffered from a long-term severe addiction to illegal drugs; (2) the crimes of conviction were the result of a long history of drug abuse and a direct result of said addiction; (3) Russ was severely physically abused as a child by his father; (4) Russ was verbally abused as a child by his father; (5) Russ had the capacity to form and maintain loving relationships with family members,

(12) lack of violent criminal history, and (13) desire to spare people from the penalty phase proceedings.

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

before and after incarceration; (6) Russ was a devoted brother; (7) Russ was a devoted son to his mother; (8) Russ suffered from multiple medical problems, including: (a) a thyroid condition, (b) hepatitis C, (c) head trauma, (d) severe headaches, (e) vertigo, (f) vision problems, (g) dental problems, (h) heart attack, (i) allergies, (j) kidney stones, (k) chronic acid reflux, (l) asthma, and (m) degenerative disc disease; (9) Russ made numerous attempts to cure his drug addiction by going to multiple drug rehabilitation programs; (10) Russ was spending $500-600 each week on cocaine prior to the crimes of conviction; (11) Russ suffered from undiagnosed mental illness due to his physical abuse and drug use; (12) Russ pleaded guilty to the crimes and accepted responsibility in this matter; (13) Russ behaved appropriately in the courtroom; (14) Russ obtained his high school GED; (15) Russ had the trade skill of being a roofer; (16) Russ

suffered from depression; (17) Russ had been taking prescription medicine while in custody which was very helpful for his mental health status; (18) Russ had been trained and educated in the field of drug abuse; (19) Russ attended Western Texas College from 1994 to 1997 and had a cumulative GPA of 3.67; (20) Russ was accepted to attend school at Texas Tech University in Lubbock, Texas, on July 17,1997; (21) Russ was a member of the “Center for the Study of Addiction”

which was run by Dr. Carl Anderson, Ph.D., at Texas Tech University; (21) Russ received a substance abuse studies scholarship for him to address his substance

abuse addiction with Dr. Anderson on December 10, 1996; (22) Russ wrote a thank-you note and kind words to scholarship sponsors concerning his receipt of the scholarship in 1997 and 1998; (23) Russ was a father figure to the young son of his live-in girlfriend; (24) Russ took his girlfriend?s son fishing and helped with his school work; (25) Russ carried an 80-year-old woman from her car to the ocean so she could sit in a chair and fish; (26) Russ had a loving relationship with his girlfriend; (27) Russ did not want to put the victim?s family members through the emotional process of the penalty phase proceedings; (28) Russ had been counseling children concerning criminal activity and the dangers of drug use while in custody at the county jail for roughly the previous twelve months—the counseling was part of a program run by the Sheriff?s Office; (29) Russ had no violent criminal history.

Sentencing Order

On May 13, 2009, the trial court entered its sentencing order. In the order, the trial court noted that Russ entered a plea of guilty to all charges and that he waived the penalty phase jury. The trial court relied on Russ?s description of the events surrounding the murder in addition to other evidence.

The trial court found the existence of the following aggravating circumstances: the capital felony was (1) committed while the defendant was engaged in the commission of a kidnapping (significant weight), (2) committed for pecuniary gain (moderate weight), (3) especially heinous, atrocious, or cruel

(HAC) (great weight), and (4) was committed in a cold, calculated, and premeditated manner (CCP) (great weight). The trial court rejected the aggravating factor that the murder was committed to avoid lawful arrest, finding that the State failed to prove that aggravating factor beyond a reasonable doubt.

The trial court found the existence of the following statutory mitigators: (1) Russ had an abusive childhood (moderate weight), and (2) Russ suffered from severe, long-term addiction to drugs which he was unable to conquer despite numerous attempts at rehabilitation (some weight).

Finally, the trial court found the existence of the following nonstatutory mitigators: (1) the defendant was remorseful for the homicide (moderate weight), (2) the defendant suffered from multiple medical problems (very little weight), (3) the defendant had the capacity to form and maintain loving and caring relationships with both family and nonfamily members (little weight), (4) the defendant had pursued higher education and was skilled in the roofing trade (little weight), (5) the defendant had no violent criminal history (little weight), (6) the defendant behaved appropriately in the courtroom (little weight), and (7) the defendant wrote thank-you notes to his scholarship donors at Texas Tech University in 1997 (very little weight).

Russ was sentenced to (1) death for first-degree murder, (2) life

imprisonment for kidnapping with a weapon, (3) five years? imprisonment for

grand theft of a motor vehicle, (4) life imprisonment for the crime of robbery with a deadly weapon, and (5) life imprisonment for the crime of burglary of a dwelling with an assault or battery. The trial court ordered that the sentences be imposed to run concurrently and gave Russ 704 days credit for time served on each count. We now address each issue in turn.

III. ANALYSIS

Issue I: Waiver of Mitigation

Russ contends that (1) the trial court failed to require an additional investigation into the mitigation that it was on notice of, (2) the trial court failed to adequately fulfill its constitutional obligation to ensure that Russ receive individualized sentencing, and (3) the death penalty was unfairly and unconstitutionally imposed. We disagree.

We review a trial court?s decision to accept a defendant?s request to waive the presentation of mitigation during the penalty phase for an abuse of discretion. See Spann v. State, 857 So. 2d 845, 854 (Fla. 2003) (“The trial court did not abuse its discretion when it granted Spann?s request to waive presentation of mitigation.”).

Koon Requirements

It is well established that a competent defendant may waive the right to present mitigation during the penalty phase of a capital trial. See Spann, 857 So.

2d at 853 (citing Durocher v. State, 604 So. 2d 810, 812 (Fla. 1992)). In Koon, this Court detailed a three-part procedure to be applied when a defendant requests to waive his or her right to present mitigation evidence during the penalty phase:

When a defendant, against his counsel?s advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant?s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel?s recommendation, he wishes to waive presentation of penalty phase evidence.

Koon, 619 So. 2d at 250. Compliance with Koon necessarily requires that the defendant be aware of available mitigation.

Here, the record reveals that the trial court complied with the three-part procedure outlined in Koon. Once trial counsel and Russ informed the trial court of Russ?s desire to waive the presentation of mitigation, the trial court conducted a Koon hearing. There, Russ maintained that he wanted to waive his right to present mitigating evidence during the penalty phase. Trial counsel indicated that a defense expert had previously found Russ competent, and trial counsel explained that Russ had not been evaluated since because there was no indication that Russ “had in any way lost his competency.”

To ensure that Russ was aware of the aggravators that the State intended to rely on as support for imposition of the death penalty, the State, at the trial court?s

request, announced that it was seeking the following aggravators (1) CCP, (2) HAC, (3) pecuniary gain, (4) kidnapping, and (5) avoid arrest. At that time, Russ told the trial court that he did not want his lawyers to cross-examine or challenge the aggravation.

Russ indicated that he wanted trial counsel to continue representing him with the understanding that trial counsel would not present any mitigation. To ensure that Russ was aware of the potential mitigation, trial counsel announced the potential mitigation that was available on Russ?s behalf. This mitigation included: (1) witness testimony regarding Russ?s extreme remorse, (2) testimony from jail officials regarding Russ?s good behavior while incarcerated, (3) testimony regarding the childhood beatings that Russ endured, (4) Russ?s family?s history of mental illness, (5) evidence of the psychological torture Russ endured at the hands of his father, (6) Russ?s life while in foster care, (7) a psychological evaluation report that was conducted when Russ was 16 years old, (8) family member testimony, (9) testimony from Russ?s childhood baseball coach that Russ?s father would beat him for playing poorly, (10) testimony of two of Russ?s former stepmothers, (11) testimony of a professor from the university in Texas where Russ enrolled in the Study of Addictions program, (12) evidence regarding Russ?s rehabilitation efforts, (13) witnesses from a prison ministry, (14) presentation of a televised broadcast in which Russ spoke of the dangers of drug use at the behest of

a city councilman, (15) accounts that Russ was a good employee until he developed his drug problems, (16) testimony regarding his employment just prior to the crime, (17) Georgia prison records indicating that Russ sustained head injuries while incarcerated, (18) expert testimony regarding the psychological impact of Russ?s upbringing, (19) testimony from Russ?s former girlfriend and former fiancée, and (20) records of Russ?s injuries and ten-day hospitalization following a car accident in South Dakota.

Trial counsel also announced that he had a forensic pathologist who would present testimony rebutting the CCP and HAC aggravators. The trial court asked Russ whether he would allow trial counsel to cross-examine the State?s expert to minimize the aggravators. Russ said that he would not. The trial court also asked Russ if he would allow trial counsel to present any mitigating evidence and specifically referred to each of the mitigating factors trial counsel had announced. Again, Russ said that he would not. Again, the trial court explained to Russ the trial court?s duty to address mitigation and that the trial court might call its own witnesses if necessary.

On May 1, 2008, Russ was found competent to waive the penalty phase jury and the presentation of mitigation. Russ indicated that he still intended to waive the penalty phase jury and the presentation of mitigation. Thus, the trial court complied with the requirements set forth in Koon.

Muhammad5 Requirements

As articulated in Muhammad, when a defendant waives the right to present mitigation evidence, the trial court must order the preparation of a PSI and, in its discretion, may call witnesses to present mitigation evidence to the extent that the PSI alerts the court to the existence of significant mitigation. See id. at 363-65.

In the instant case, the trial court ordered a comprehensive PSI to be completed by June 30, 2008. The trial court granted Russ?s request to waive the presentation of mitigation and the penalty phase jury and again informed Russ that the trial court was obligated to independently weigh the aggravating and mitigating factors. Although Russ was still represented by trial counsel, the trial court appointed special counsel to present mitigation to the trial court.

Russ presents several different arguments to support his assertion that the trial court failed to consider all of the mitigation presented. First, Russ argues that the trial court should have considered the possible mitigation proffered by trial counsel at the Koon hearing. This argument is without merit.

The reason for trial counsel?s proffer of possible mitigating evidence during the Koon hearing was to inform Russ of the potential mitigation to ensure that his waiver was made knowingly, intelligently, and voluntarily. “Mitigating evidence must be considered and weighed when contained „anywhere in the record, to the

5. Muhammad v. State, 782 So. 2d 343 (Fla. 2001).

extent it is believable and uncontroverted,? ” LaMarca v. State, 785 So. 2d 1209, 1215 (Fla. 2001) (quoting Robinson v. State, 684 So. 2d 175, 177 (Fla. 1996)). However, we have repeatedly explained, “If a defendant elects not to submit proof of mitigating circumstances, the trial court is not required to accept potential mitigating circumstances as proven based on defense counsel?s proffer of evidence.” LaMarca, 785 So. 2d at 1216 (citing Chandler v. State, 702 So. 2d 186, 199-201 (Fla. 1997)); see Grim v. State, 841 So. 2d 455, 462 (Fla. 2003). Further, we have stated that “[p]roffered evidence is merely a representation of what evidence the defendant proposes to present and is not actual evidence.” LaMarca, 785 So. 2d at 1216 (citing State v. Warner, 721 So. 2d 767, 769 (Fla. 4th DCA 1998) (explaining that “a proffer is not evidence”), approved on other grounds, 762 So. 2d 507 (Fla. 2000)). Therefore, the trial court did not err in failing to consider the proffered mitigation evidence that was presented during the Koon hearing.

Second, Russ contends that the PSI report revealed the existence of significant mental mitigation and that the trial court?s failure to consider all of the mitigation that was present in the PSI report violated the requirements articulated by this Court in Muhammad. See Muhammad, 782 So. 2d at 363. Specifically, Russ contends that “the PSI suggests that Russ has been diagnosed with and treated for mental illness.”

A review of the record reveals the following: (1) Russ “is [being] or was previously treated” for various illnesses, including “psychiatric Hx”; (2) Russ suffered from “major depression” for one month while incarcerated at the John E. Polk Correctional Facility in October 2007; (3) Russ was first prescribed the Sinequan antidepressant on June 17, 2007, after he met with a psychiatrist; (4) on August 4 and August 17, 2007, Russ requested that his dosage of Sinequan be increased “if [he] was still struggling with depression and lack of sleep”; (5) Dr. Westhead met with Russ on August 21, 2007, and noted that Russ suffered from “major depression”; (6) Russ said he was “extremely depressed” because he “had a good life and now it?s gone due to the drugs”; (7) the only mention of Russ?s diagnosis of “psychiatric Hx” is from a questionnaire filled out in June 2007, which asked “do you now have or have you ever had” “psychiatric Hx” and the box for “psychiatric Hx” was checked; (8) the mental health intake form noted that Russ was oriented, had a normal mood temperament, was able to use relevant speech, did not display abnormalities in his thought pattern although he was having problems sleeping; (9) Russ denied any history of psychiatric illness or treatment; and (9) a psychological evaluation was taken in 1978, when Russ was 16 years old. Further, the PSI provides:

The mother stated he has no mental health illnesses diagnosed. She thinks he does, though. She stated that his father beat him half his

life. The subject?s mother stated that the father was a mean man. The Texas Department of Criminal Justice Health Summary dated 10/1/93

lists the subject was never treated for mental illness. The Denton County Medical Intake Information form of 5/16/07 lists chest

congestion as being the only illness he was suffering from at that time.

The form also states medical was notified of the condition. There is

no listing of any mental health problem and no medical attention was required on 5/16/07.

Additionally, the PSI report indicates that Russ was “treated for head trauma.”

Once the comprehensive PSI is complete, the trial court must determine whether it suggests the existence of mitigation. See Barnes v. State, 29 So. 3d 1010, 1023 (Fla.) (“Muhammad does not set forth a hard and fast rule that a trial court has no discretion to order investigation and presentation of mitigation without first reviewing a PSI and without first making an express determination that the PSI suggests the existence of mitigation.”), cert. denied, 131 S. Ct. 234 (2010). In its sentencing order, the trial court considered Russ?s multiple medical problems, including his depression, as a nonstatutory mitigating factor and assigned it very little weight after finding that there was no evidence that any of

Russ?s medical problems affected Russ?s actions regarding the murder of Leinen.

As articulated in Muhammad, “if the PSI and the accompanying records

alert the trial court to the probability of significant mitigation, the trial court has the discretion to call persons with mitigating evidence as its own witnesses.” 782 So. 2d at 364; see Barnes, 29 So. 3d at 1023 (explaining that the trial court, once

alerted to the probability of significant mitigation, has discretion to call witnesses,

appoint special counsel, or utilize standby counsel for the limited purpose of further investigation and presentation of mitigation). Here, the PSI report did not alert the court to the probability of significant mental mitigation. Rather, the evidence of “psychiatric Hx” was a self-diagnosis, Russ?s onset of depression occurred after the murder while he was incarcerated and facing a capital trial, there is no indication that Russ?s mother had much interaction with him while he was a child or as an adult, and special counsel requested a mental health evaluation and PET scan regarding Russ?s head injuries, but Russ refused.

Accordingly, we conclude that the trial court did not abuse its discretion.

Issue II: Proportionality

Aggravating Circumstances

In the second issue, Russ first argues that the State failed to prove the CCP and HAC aggravators beyond a reasonable doubt. We disagree.

In reviewing the trial court?s finding of an aggravating circumstance, this

Court?s “task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” McWatters v. State, 36 So. 3d 613, 642 (Fla.) (quoting Lynch v. State, 841 So. 2d 362, 368 (Fla.2003)), cert. denied, 131 S. Ct. 510 (2010).

CCP

Russ?s argument that the trial court erred in finding that the CCP aggravator applied to the murder is without merit. This Court has opined:

To establish the CCP aggravator, the State must prove beyond a

reasonable doubt that (1) the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); (2) the defendant had a careful plan or prearranged

design to commit murder before the fatal incident (calculated); (3) the defendant exhibited heightened premeditation (premeditated); and (4) the murder was committed with no pretext of legal or moral justification.

McWatters, 36 So. 3d at 640-41 (citing § 921.141(5)(i) (Fla. Stat.; Pearce v. State, 880 So. 2d 561, 575-76 (Fla. 2004)). “The CCP aggravator pertains specifically to the defendant?s state of mind, intent, and motivation of the defendant.” Wright v. State, 19 So. 3d 277, 298 (Fla. 2009) (citing Brown v. State, 721 So. 2d 274, 277 (Fla. 1998)). A trial court?s determination of whether CCP is present in a case is based upon the totality of the circumstances. Hudson v. State, 992 So. 2d 96 (Fla. 2008).

In the instant case, the trial court applied the correct rule of law and made the following findings:

In his letter to the Court, [Russ] stated that after eluding pursuit by Officer Tollas, he spent the night on the rooftop of a house adjacent to Leinen?s home. He wrote, “At dawn, I awakened. I saw the victim leaving for work. I choose my victim at that exact moment.” Further in the letter, he states, “Was the murder

premeditated? Yes, your Honor it was. Did I believe I was capable of such a crime while on a drug crime spree? No, I did not. I was no doubt a cold blooded killer on that day.”

[Russ] remained in the victim?s home the entire day, waiting for

her to return. Crime scene Investigator Ohlson found rope similar to the rope used to bind [Leinen?s] feet in the trash can behind the

washer and dryer in the garage. A different type of rope was used for the neck ligature and to bind [Leinen?s] hands using a complex series of knots.

[Leinen?s] home was neat and tidy without any signs of a struggle. Blood droplets were found in the garage, but the actual

killing appeared to take place in the hall bathroom. Common sense and the evidence at the scene indicate [Russ] likely first encountered the victim in the garage, subdued her with an initial blow, and walked her through the house to the hall bathroom.

The evidence indicates the victim?s murder was not a

spontaneous or impulsive act. Nor was it done in a frenzy or rage.

While the evidence establishes [Russ] had been using crack cocaine heavily in the days preceding May 7, 2007, there was no evidence that [Russ] was under the influence of drugs at the time of the murder.

Rather, . . . Leinen?s murder was the product of [Russ?s] prearranged design. He had selected her as his victim early that morning. He

waited hours for her to return home. Prior to the murder he procured two types of rope and a knife to execute his plan. The absence of any signs of a struggle and the lack of defensive wounds on the victim indicate she offered no resistance. Once in the bathroom, [Russ] meticulously tied Leinen?s hands and feet and used three different means to ensure her death. Undoubtedly, many of the victim?s wounds occurred as she lay bound and helpless on the floor. No evidence of moral or legal justification was presented or argued.

The Court finds the above stated evidence establishes this

aggravating circumstance beyond a reasonable doubt, and it is given great weight.

As a preliminary matter, Russ contends the trial court?s finding of the CCP aggravator is based solely on circumstantial evidence and thus is subject to the special standard for circumstantial evidence cases. This argument is misguided. Russ confessed to the crime. A defendant?s confession is generally considered to be direct, not circumstantial, evidence. See Walls v. State, 641 So. 2d 381 (Fla.

1994). Where evidence of guilt is direct, the following standard is applied: the evidence will be deemed sufficient to sustain the conviction where a rational trier of fact, upon reviewing the evidence in the light most favorable to the State, can find that the elements of the crime have been established beyond a reasonable doubt. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002); see also Pearce, 880 So. 2d at 576 (noting that to establish CCP, the State must prove each element of CCP beyond a reasonable doubt ). Here, Russ?s confession is consistent with the facts from the night prior to the murder, leading up to and regarding the murder, and occurring for over a week after the murder. Moreover, the record reveals that the State proved each element of the crime beyond a reasonable doubt.

Russ challenges the trial court?s finding that the evidence satisfied the first “cold” element of the test for CCP—that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage. Russ presents two arguments in support of this claim: (1) Russ alleges that the State failed to prove this element beyond a reasonable doubt because the evidence suggests that the murder was the result of an emotional frenzy, panic, or fit of rage, and (2) Russ alleges that, because the murder occurred within a 25-30 minute time span, he did not have adequate time for reflection. We disagree.

The first element, “cold,” is supported by competent substantial evidence. Russ admitted that the murder was premeditated and described how he selected

Leinen that morning, waited in her house for her return, and then murdered her. We have found CCP where the defendant only had a few minutes to murder the victim. See Durocher v. State, 596 So. 2d 997, 1001 (Fla. 1992) (affirming the trial court?s finding of CCP where only a few minutes passed between the

defendant?s decision to merely rob the store and his decision to shoot the clerk). Here, the record evidence reveals that Russ waited inside of Leinen?s home for at least eight or nine hours, during which he had time to calmly reflect prior to

Leinen?s murder. Although the exact moment that Russ decided to murder Leinen is not entirely clear, the record does establish that Leinen?s hands and legs were so tightly bound that her hands were swollen and bruised, and the force used to bind her caused her clavicle (collar bone) to become dislocated from her scapula (shoulder blade). Leinen was placed face-down on the bathroom floor and could not offer any resistance or provocation, as evidenced by the absence of any struggle. At this point, Russ had the opportunity to abandon the crime or steal the car and other items he intended to take and leave Leinen unharmed. Nevertheless, Russ murdered Leinen after she was bound. Thus, there is competent substantial record evidence to support the “cold” element of CCP.

Next, Russ challenges the trial court?s finding that the evidence supported the second “calculated” element of the test for CCP—that the defendant had a careful plan or prearranged design to commit murder before the fatal incident.

Russ contends that the absence of any signs of struggle makes it reasonable to conclude that the murder was not calculated, because the lack of struggle indicates that Leinen was immediately tied up and murdered thus eliminating time for reflection. We disagree.

We have held that where a defendant arms himself in advance, kills execution-style, and has time to coldly and calmly decide to kill, the element of “calculated” is supported. See Lynch v. State, 841 So. 2d 362, 372-73 (Fla. 2003) (citing Hertz v. State, 803 So. 2d 629, 650 (Fla. 2001)). Here, Russ himself admitted that he entered Leinen?s house after she left for work and waited until she arrived home. Russ had hours to do some of his laundry and go through Leinen?s personal belongings. As evidenced by the absence of a struggle, Russ procured two different types of rope prior to Leinen?s return home. Again, once Leinen was bound and immobilized, Russ employed not one, not two, but three different methods of killing—ligature strangulation, stabbing, and blunt force trauma. Although the sequence of the attacks is not clear, it is clear that Leinen was alive during these attacks. Russ undoubtedly had time to reflect upon these events. See Lynch, 841 So. 2d at 372-73 (finding that the murder was calculated where the defendant had time to reflect between firing the first shot and firing the final, fatal shot) (citing Ford v. State, 802 So. 2d 1121, 1133 (Fla. 2001) (finding CCP where defendant used three different weapons and had to stop and reload prior to shooting

each victim execution-style)). Clearly, there is competent substantial evidence to support the trial court?s finding of the “calculated” element.

Additionally, Russ challenges the trial court?s finding that the third prong— that the defendant exhibited heightened premeditation—was satisfied. Russ contends that the trial court?s reliance on his admission in his letter that he “chose [his] victim at that exact moment” to conclude that the heightened premeditation requirement was satisfied is erroneous. Russ claims that his statement merely meant that he intended Leinen as the victim of his burglary and theft or robbery, not as the victim of a murder. This argument is without merit.

The third element, “heightened premeditation,” is supported by competent and substantial evidence. Notably, in his letter to Judge Alva, Russ admitted that the murder was premeditated. Russ was aware that he was charged with first-degree premeditated murder and entered a knowing, intelligent, and voluntary plea to that charge. Further, we have “previously found the heightened premeditation required to sustain this aggravator where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder.” Lynch, 841 So. 2d at 373 (quoting Alston v. State, 723 So. 2d 148, 162 (Fla. 1998)); see also McCoy v. State, 853 So. 2d 396, 407-08 (Fla. 2003); Looney v. State, 803 So. 2d 656, 678 (Fla. 2001) (applying CCP where “the defendants had ample opportunity to reflect upon their actions, following which they mutually

decided to shoot the victims execution-style”); Alston v. State, 723 So. 2d 148, 162 (Fla. 1998) (sustaining the CCP aggravator where the “appellant had ample opportunity to release [the victim] after the robbery,” but chose to kill him); Eutzy v. State, 458 So. 2d 755, 757 (Fla. 1984) (sustaining CCP where there was no sign of struggle, yet the victim was shot execution-style).

Moreover, we have upheld a finding of CCP where a defendant lay in wait for the victim?s arrival. See Dennis v. State, 817 So. 2d 741, 765 (Fla. 2002) (upholding CCP where facts showed defendant arrived at apartment before victim and waited for her arrival). Russ had the opportunity to leave the crime scene and not kill Leinen. As in Dennis, Russ arrived at Leinen?s house and waited for eight or nine hours for her to arrive. During this time, regardless of what his intentions may have been prior to Leinen?s arrival, Russ had ample opportunity to leave the scene. Further, after Leinen was bound Russ could have left the scene. Despite this time to reflect, Russ chose to murder Leinen.

Russ also contends that he was intoxicated on crack-cocaine at the time of the murder and thus was unable to establish the requisite intent to satisfy the heightened premeditation standard. The trial court rejected this argument, finding that “there was no evidence that [Russ] was under the influence of drugs at the time of the murder.” Rather, the trial court considered Russ?s long-term addiction as a statutory mitigator and assigned it some weight. Russ claims that this is clear

from the language of his letter which states, “The last 10 days leading up to the murder I was 24-7 non-stop getting high, smoking crack.” In his letter Russ explains that his motivation for running from the police and committing the subsequent crimes was because he “was willing to do anything to continue getting high.” However, in his other letter to Judge Alva, Russ stated, “Do I believe I would have murdered anyone had I not [sic] been sober? I?ve never harmed anyone physically. I have a very serious and lengthy record (criminal history). I do not have any aggervated [sic] crimes past, I would never have hurt or murdered the victim had I been sober.” In his letter, he also noted that he was on a “drug and crime spree.”

Russ?s reliance on White v. State, 616 So. 2d 21, 25 (Fla. 1993) (concluding that CCP was not established beyond a reasonable doubt because the trial court found that White was “high on cocaine” at the time of the murder), is misguided. A critical distinction between the instant case and White is that in White, the trial court made an express finding that White was “high on cocaine.” Here, there is no dispute that Russ used cocaine leading up to the murder, but it is not entirely clear that he was in fact under the influence of the drug at the time of the murder. We have previously rejected a similar argument. See Turner v. State, 37 So. 3d 212, 224 (Fla. 2010) (concluding that the CCP was proper where, despite the

defendant?s assertion that he was high at the time of the murder, the trial court

found that defendant was high leading up to the murder, but not at the time of the murder), cert. denied, 131 S. Ct. 426 (2010).

As we explained in Turner, “[e]ven if the trial court had found that [the defendant] was addicted to crack cocaine, such a finding would not necessarily preclude the CCP aggravator from being found.” Id. at 224. “[A] chronic drug abuser can still act in accordance with a deliberate plan where the evidence indicates that the person “was fully cognizant of his actions on the night of the murder.” Id. (quoting Guardado v. State, 965 So. 2d 108, 117 (Fla. 2007)).

Here, Russ was fully cognizant of his actions the night before the murder and on the morning of the murder. The night before the murder, Russ ran from the police, abandoned his vehicle, and slept on a roof to avoid being arrested by the police. Russ watched as his car was towed and decided that he needed to obtain another vehicle. The next morning, he saw Leinen leave her home and selected her as his victim. Once inside of her home, Russ spent the day doing laundry, showering, eating, and collecting valuable items that he intended to steal. Russ was able to immobilize Leinen and proceeded to beat, strangle and stab her. At some point, Russ was able to locate Leinen?s keys and load the items he intended to steal into her car. Then, Russ got into Leinen?s car and drove away. Later, he pawned Leinen?s belongings at a pawn shop. Russ was able to drive to Texas, where he attempted to commit another crime in the exact same way that he carried

out Leinen?s murder. All of these actions are consistent with someone who was fully cognizant of his actions at the time of the murder. Therefore, the trial court?s finding of heightened premeditation is based on competent substantial evidence.

Finally, Russ did not present evidence or argument to satisfy the fourth element before the trial court and does not now challenge the fourth element. However, it is clear that the fourth element—that the murder was committed with no pretense of legal or moral justification—was satisfied. The record is devoid of any evidence of a threatening act by Leinen prior to the murder that would constitute a pretense of legal or moral justification. See Williamson v. State, 511 So. 2d 289 (Fla. 1987) (rejecting Williamson?s claim that even if the murder was cold, calculated, and premeditated, he had a pretense of moral or legal justification for having committed the murder because he was afraid a fellow inmate would harm his partner or himself for an unpaid debt). Accordingly, we affirm the trial

court?s finding of CCP and deny relief on this claim.

HAC

Russ challenges the trial court?s finding of the HAC aggravator. Russ contends that because the evidence was inconclusive regarding whether Leinen was conscious, the finding of the HAC aggravator was improper. Russ claims that the absence of signs of a struggle or defensive wounds precludes a finding that

Leinen endured prolonged suffering or foreknowledge of her impending death and submits that this aggravator was based on pure speculation. We disagree.

In order for the HAC aggravator to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim. See Rogers v. State, 783 So. 2d 980, 994 (Fla. 2001). The HAC aggravator applies in physically and mentally torturous murders which can be illustrated by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another. See Barnhill v. State, 834 So. 2d 836, 850 (Fla. 2002) (citing Williams v. State, 574 So. 2d 136 (Fla. 1991)). HAC concentrates “on the means and manner in which the death is inflicted and the immediate circumstances surrounding the death, rather than the intent and motivation of a defendant, where a victim experiences the torturous anxiety and fear of impending death.” Barnhill, 834 So. 2d at 850 (citing Brown v. State, 721 So. 2d 274, 277 (Fla.1998)); Evans v. State, 800 So. 2d 182, 194 (Fla. 2001). Thus, there does not need to be a showing that the defendant intended or desired to inflict torture; the torturous manner of the victim?s death is evidence of a defendant?s indifference. See Barnhill, 834 So. 2d at 850 (citing Brown, 721 So. 2d at 277)).

The victim?s mental state may be evaluated in accordance with common¬sense inferences from the circumstances. See Hernandez v. State, 4 So. 3d 642, 669 (Fla. 2009) (citing Swafford v. State, 533 So. 2d 270, 277 (Fla. 1988)). To

support HAC, the evidence must show that the victim was conscious and aware of impending death. Hernandez, 4 So. 3d at 669 (citing Douglas v. State, 878 So. 2d 1246, 1261 (Fla. 2004)). However, this Court has explained that the actual length of the victim?s consciousness is not the only factor relevant to HAC—“[F]ear,

emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel.” Hernandez, 4 So. 3d at 669 (quoting James v. State, 695 So. 2d 1229, 1235 (Fla.1997)).

In the present case, Leinen was beaten, stabbed, and strangled. We have explained, “Because strangulation of a conscious victim involves foreknowledge and the extreme anxiety of impending death, death by strangulation constitutes prima facie evidence of HAC.” Barnhill, 834 So. 2d at 850 (citing Mansfield v. State, 758 So. 2d 636, 645 (Fla.2000)). The HAC aggravator is often found where the victim had been stabbed multiple times prior to death or was beaten to death. See Williams v. State, 967 So. 2d 735, 762-63 (Fla. 2007) (concluding HAC proper where the defendant repeatedly stabbed the victim); Guardado v. State, 965 So. 2d 108, 116 (Fla. 2007) (concluding that HAC was proper where the defendant repeatedly stabbed the victim); Ibar v. State, 938 So. 2d 451, 474-75 (Fla. 2006) (concluding that HAC was proper where the defendant beat the victim continually until finally shooting him).

Here, the medical examiner testified that abrasions on Leinen?s neck indicated she was moving from right to left, pulling away from the ligature around her neck and that she would have been in a “significant amount of discomfort, both physically and . . . mentally.” Moreover, Leinen sustained multiple blunt force trauma injuries and stabbing injuries, each of which would have been painful. It does not logically follow that Russ would have employed so many different methods to kill Leinen had she been rendered unconscious prior to the attack. Further, based on the evidence, common sense indicates that the absence of defensive wounds on Leinen?s body resulted from either her cooperation or being bound prior to being murdered—it does not, as Russ contends, preclude a finding of HAC. Thus, we conclude that the trial court?s finding of the HAC aggravator is supported by competent substantial evidence.

Proportionality

Russ challenges the proportionality of his death sentence. As explained below, Russ is not entitled to relief on this claim.

First, Russ argues that the trial court abused its discretion in the weighing process itself. Russ initially phrases this argument to imply that the trial court failed to consider valid mitigation in violation of Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982) (explaining that the sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence), and Rogers v. State, 511 So. 2d

526 (Fla. 1987) (same). The argument contained in Russ?s initial brief is actually an argument that the trial court?s sentencing process violated the standards articulated in Eddings and Rogers because the “trial court glossed over the mitigating factors and improperly abused its discretion in giving them little weight, with no explanations why.” Russ is really challenging the trial court?s assignment of weight to the mitigation below. This argument is not compelling.

“We review the weight the trial court ascribes to mitigating factors under the abuse of discretion standard.” Smith v. State, 998 So. 2d 516, 527 (Fla. 2008). In the present case, the trial court considered each mitigating circumstance, provided a recitation of the factual basis for the mitigating circumstance, and assigned weight to each mitigating circumstance. After conducting its analysis and weighing the sentencing factors, the trial court concluded that “the aggravating factors outweigh the mitigating circumstances for the murder of Madeleine Leinen.”

Russ claims that the trial court should have explained its findings and cites to Merck v. State, 975 So. 2d 1054, 1065 (Fla. 2007), and Offord v. State, 959 So. 2d 187 (Fla. 2007), in support of this argument. Pursuant to section 921.141(3), Florida Statutes (2007), the trial court is required to make independent findings on aggravation, mitigation, and weight, “supported by specific written findings of fact.” § 921.141(3), Fla. Stat. (2007). Here, there was no abuse of discretion

because the trial court thoroughly considered the aggravating and mitigating circumstances at issue and supported each with specific written findings of fact. See Dennis v. State, 817 So. 2d 741, 763 (Fla. 2002). Thus, we will not reweigh these mitigators.

Russ also argues that the trial court failed to properly document the requisite findings of fact for mitigating circumstances and that the existence of mitigation regarding his long-term substance abuse renders the death sentence disproportionate. Russ cites to numerous cases in support of this argument. See Mahn v. State, 714 So. 2d 391, 401 (Fla. 1998) (concluding that the trial court erred in failing to give Mahn?s extensive and uncontroverted history of drug and alcohol abuse any weight as a nonstatutory mitigating circumstance); Jackson v. State, 704 So. 2d 500, 507 (Fla. 1997) (concluding that the trial court erred in summarily disposing of statutory and nonstatutory mitigation); Ferrell v. State, 653 So. 2d 367, 371 (Fla. 1995) (concluding that the trial court?s written findings were insufficient); Nibert v. State, 574 So. 2d 1059, 1063 (Fla. 1990) (physical evidence at the scene of the crime established that the defendant had been drinking heavily on the day of the murder); Ross v. State, 474 So. 2d 1170, 1174 (Fla. 1985) (concluding that the trial court erred in rejecting the mitigating circumstances of extreme mental or emotional distress and impaired mental capacity in view of the evidence that the appellant was an alcoholic and was intoxicated at the time of the

homicide). In each of the cases cited by Russ, the trial court completely failed to consider uncontroverted record evidence or summarily rejected potential mitigation. In the instant case, the trial court made specific findings of mitigation related to Russ?s long-term substance abuse problems. Further, the weight the trial court assigned to the mitigation does not amount to an abuse of discretion.

Next, this Court must conduct a qualitative analysis and comparison of other capital cases to determine whether the death sentence is proportionate. Russ contends that regardless of the aggravation present in his case, imposition of the death sentence is disproportionate because his case is among the most mitigated of cases. “In reviewing a death sentence for proportionality, we ensure that the death penalty is „reserved only for those cases where the most aggravating and least mitigating circumstances exist.? ” McGirth v. State, 48 So. 3d 777, 796 (Fla. 2010) (quoting Terry v. State, 668 So. 2d 954, 965 (Fla. 1996)), cert. denied, 131 S. Ct. 2100 (2010). This Court?s “review on proportionality is not a comparison between the number of aggravators and mitigators.” McGirth, 48 So. 3d at 796; see Barnes v. State, 29 So. 3d 1010, 1028 (Fla.), cert. denied, 131 S. Ct. 234 (2010). Proportionality review requires this Court to engage in a qualitative review of the “totality of the circumstances and compare the present case with other capital cases in which this Court has found that death was a proportionate punishment.” Wright

v. State, 19 So. 3d 277, 303 (Fla. 2009) (citing Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998)).

A qualitative review of the totality of the circumstances in this case and a comparison between this case and other capital cases reveals that the death penalty here is proportionate. We have concluded that the death sentence was proportionate in cases where there was less aggravation and similar mitigation. See Boyd v. State, 910 So. 2d 167 (Fla. 2005) (concluding that the death sentence was proportionate where the trial court found two aggravators, one statutory mitigator, and five nonstatutory mitigating factors); Evans v. State, 808 So. 2d 92 (Fla. 2001) (concluding that Evans? death sentence was proportionate where the

trial court found two aggravating factors, one statutory mitigator, and the existence of eleven nonstatutory mitigators).

Moreover, we have found the death sentence proportionate in the face of fewer aggravators and significantly more mitigators. See Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003) (concluding the death sentence was proportionate where the trial court found the existence of two aggravating circumstances and one statutory mitigating factor and trial court found the existence of 26 nonstatutory mitigating factors); see also Blackwood v. State, 777 So. 2d 399 (Fla. 2000) (strangulation murder; HAC aggravator; one statutory mitigator and eight nonstatutory mitigators); Hauser v. State, 701 So. 2d 329 (Fla. 1997) (victim

strangled; three aggravators of HAC, CCP, and pecuniary gain, balanced against one statutory mitigator and four nonstatutory mitigators).

We have also found the death sentence proportionate where there was similar aggravation and more mitigation. See Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997) (defendant lay in wait for victim, beat and strangled her; aggravating circumstances of committed in the course of a robbery, arson, and burglary; committed to avoid lawful arrest, committed for pecuniary gain, HAC, and CCP; no statutory mitigating factors and 31 nonstatutory mitigating factors). Finally, we have found the death sentence proportionate in the face of similar aggravation and similar mitigation. See Zack v. State, 753 So. 2d 9 (Fla. 2000) (concluding the death penalty was proportionate where the trial court found the existence of four valid aggravating factors, three statutory mitigators, and three nonstatutory mitigators).

Russ?s assertion that his case is among the most mitigated is without merit. Because the trial court did not abuse its discretion, we will not reweigh the trial

court?s assignment of weight below. Accordingly, we find that Russ?s death sentence is proportionate.

Issue III: Sufficiency of the Evidence

Russ does not challenge the trial court?s acceptance of his guilty plea in this appeal. Nevertheless, we have a mandatory obligation to review the basis of

Russ?s conviction for first-degree murder. See Barnes v. State, 29 So. 3d 1010, 1020 (Fla. 2010) (citing Bevel v. State, 983 So. 2d 505, 516 (Fla. 2008)). In cases involving imposition of a death sentence after the defendant has pleaded guilty to a charge of first-degree murder, “this Court?s [mandatory] review shifts to the knowing, intelligent, and voluntary nature of that plea.” Barnes, 29 So. 3d at 1020 (alteration in original) (quoting Tanzi v. State, 964 So. 2d 106, 121 (Fla. 2007)). We must “scrutinize the plea to ensure that the defendant was made aware of the consequences of his plea, was apprised of the constitutional rights he was waiving, and pled guilty voluntarily.” Winkles v. State, 894 So. 2d 842, 847 (Fla. 2005) (quoting Ocha v. State, 826 So. 2d 956, 965 (Fla. 2002)).

A review of the record reveals that Russ?s plea was made knowingly, intelligently, and voluntarily. Russ was represented by trial counsel on February 6, 2008. That day, trial counsel informed the trial court that Russ “would be withdrawing his pleas of not guilty, tendering a plea of guilty to Count One, to first degree premeditated murder.” Prior to acceptance of Russ?s plea, the trial court asked the State to provide a factual basis for the plea. See Fla. R. Crim. P. 3.172(a). The State provided a factual basis for the plea indicating, among other things, that Russ was responsible for the May 7, 2007, murder of Leinen, whose cause of death was a combination of blunt force trauma, stabbing, and ligature strangulation on May 7, 2007. Trial counsel stipulated that the State could

establish the defendant?s guilt by competent evidence and Russ agreed with the factual basis offered by the State. See Fla. R. Crim. P. 3.172(e). Further, the trial court inquired into whether exculpatory DNA evidence existed. The State informed the trial court that there appeared to be DNA evidence that would inculpate Russ. Defense counsel and Russ agreed. See Fla. R. Crim. P. 3.172(d). Russ testified that he understood that by entering the plea he was facing life in prison or a death sentence. See Fla. R. Crim. P. 3.172(c)(1)-(6).

Based on the plea colloquy, the trial court found that Russ was alert and competent. The trial court also found “the plea to be freely and voluntarily made with knowledge of the consequences after advice of competent counsel with whom [Russ was] satisfied. [The trial court also found a] sufficient factual basis for the plea based on the proffer of the State [and the] stipulation of defense counsel and the defendant.” The trial court then accepted Russ?s plea of guilty in open court. See Fla. R. Crim. P. 3.172(b).

We conclude that Russ?s guilty plea in this case was knowing, intelligent, and voluntary. Russ was made aware of the consequences of his plea and was apprised of the constitutional rights he was waiving as a result. Therefore, the plea and conviction were properly entered. Further, the factual basis for the plea, which was confirmed by defense counsel and Russ and was proven by the forensic evidence and Russ?s confessions, provides competent, substantial evidence to

support the conviction for first-degree murder and Russ?s other convictions in this case. Accordingly, we affirm Russ?s convictions and sentences.

It is so ordered.

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

PARIENTE, J., concurs with an opinion.

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

PARIENTE, J., concurring.

I agree with the majority?s affirmance of both the conviction for first-degree murder and the death sentence. When a defendant waives mitigation, as he did in this case, the trial judge?s obligation under Muhammad v. State, 782 So. 2d 343, 363 (Fla. 2001), is to consider all mitigation anywhere in the record to the extent that it is believable and uncontroverted, including information contained within a PSI. See also Grim v. State, 841 So. 2d 455, 462 (Fla. 2003) (“Mitigating evidence must be considered and weighed when contained „anywhere in the record, to the extent that it is believable and uncontroverted.? ” (quoting Robinson v. State, 684 So. 2d 175, 177 (Fla. 1996))). This Court?s decision in Hamblen v. State, 527

So. 2d 800, 804 (Fla. 1988), and its progeny make clear that while a defendant has a right to waive the presentation of mitigating evidence, the trial court must undertake the obligation of ensuring that the propriety of a defendant?s sentence

has been established according to the law. “This requirement „applies with no less force when a defendant argues in favor of the death penalty, and even if the defendant asks the court not to consider mitigating evidence.? ” Muhammad, 782 So. 2d at 363 (quoting Farr v. State, 621 So. 2d 1368, 1369 (Fla. 1993)).

In my specially concurring opinion in Muhammad, I fully explained the basis for imposing additional obligations upon the trial court when faced with a defendant who decides to waive the presentation of mitigation during the penalty phase of a capital proceeding:

This issue [of a defendant?s waiver of mitigation] “involves the friction between an individual?s right to control his destiny and

society?s duty to see that executions do not become a vehicle by

which a person could commit suicide.” Hamblen v. State, 527 So. 2d 800, 802 (Fla. 1988). We recognized in Hamblen, that “[t]his does

not mean that courts of this state can administer the death penalty by default. The rights, responsibilities and procedures set forth in our

constitution and statutes have not been suspended simply because the accused invites the possibility of a death sentence.” Id. at 804.

. . . .

. . . [P]ursuant to Florida?s statutory scheme, whether or not the death penalty should be imposed must be determined by an

independent review of the aggravating circumstances and mitigating factors to ensure that the death penalty is fairly, reliably and uniformly imposed. In all capital cases, this Court is constitutionally required “to engage in a thoughtful, deliberate proportionality review to

consider the totality of circumstances in a case, and to compare it with other capital cases.” Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990); see, e.g., Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998);

Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991). We cannot permit this constitutional obligation to be thwarted by the defendant?s own actions or inactions.

. . . .

As with an appeal, during the penalty phase of a capital trial, the defendant has already been convicted. At this point, the State has

an overriding interest in the integrity of the process by which the death penalty is imposed. As the United States Supreme Court has emphasized, the difference between the imposition of the death penalty and any other penalty gives rise to “a corresponding difference in the need for reliability in the determination that death is

the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). We have already recognized this interest when we have required the trial court to consider any evidence of mitigation in the record, even if the defendant asks the court not to consider mitigating evidence.

Muhammad, 782 So. 2d at 369-70 (Pariente, J., specially concurring).

I also explained my position in Muhammad to take a trial court?s waiver obligations one step further and endorsed a prospective rule providing for the appointment of special counsel to present available mitigation:

Because of the tremendous responsibilities placed on the trial court and this Court in death penalty cases, rather than leave the appointment of counsel to the trial court?s discretion on a case-by-case basis, I would thus adopt a prospective rule that would provide for the appointment of special counsel to present available mitigation for the benefit of the jury, the trial court and this Court in order to assist the

judiciary in performing our statutory and constitutional obligations. This procedure, of course, would not prevent the defendant himself or herself from arguing in favor of the death penalty.

Adoption of this procedure would serve to promote several important interests critical to the integrity of the process: (1) it would assist any advisory jury in making a more informed sentencing

recommendation of either death or life and in fulfilling its statutory obligation to weigh mitigating and aggravating circumstances under section 924.141(2)(b); (2) it would assist the trial court in making a more informed decision as to whether to impose the death sentence by ensuring that the court has before it the available mitigating evidence; and (3) it would facilitate this Court?s constitutionally mandated obligation to review each death sentence for proportionality.

Id. at 370-71.

In this case, the trial judge took the extra measure of appointing special counsel to investigate and present mitigating evidence to assist her in sentencing Russ, and special counsel did, in fact, present the court with additional mitigation to consider. I commend the trial judge for faithfully complying with the obligations imposed by our precedent when there is a waiver of mitigation and also for taking the extra step of appointing special counsel to further ensure the reliability of Russ?s sentence. As evidenced by her sentencing order, the trial judge found both statutory and nonstatutory mitigation. In turn, these findings assisted this Court in performing its constitutional obligation to review the proportionality of Russ?s sentence of death.

An Appeal from the Circuit Court in and for Seminole County,

Marlene M. Alva, Judge – Case No. 2007CF2377A

James S. Purdy, Public Defender, and James R. Wulchak, Chief, Appellate Division, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, Florida,

for Appellee

Courtesy of David Edelstein