author: CANTERO, J.

text:
    STATE of Florida, Petitioner, v. Fernando CASTILLO, Respondent.
    No. SC03-282.
    Supreme Court of Florida.
    April 22, 2004.
    Rehearing Denied July 6, 2004.

      Charles J. Crist, Jr., Attorney General, and Consuelo Maingot and Andrea D. England, Assistant Attorneys General, Fort Lauderdale, FL, for Petitioner.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Respondent.
   CANTERO, J.

In this case, we interpret Florida’s unlawful compensation statute, which prohibits public officials from seeking or accepting unauthorized benefits in return for performance or nonperformance of official duties. See § 838.016(1), Fla. Stat. (1999). In this case, a police officer was convicted of soliciting sex in return for not issuing a traffic citation. We must decide whether the State may prove a violation through circumstantial evidence and whether the statute requires proof of an agreement. In the decision on review, the court held that the State must present direct evidence of an agreement. See Castillo v. State, 835 So.2d 306, 309 (Fla. 3d DCA 2002). That holding expressly and directly conflicts with State v. Gerren, 604 So.2d 515, 520-21 (Fla. 4th DCA 1992). We have jurisdiction. See art. Y, § 3(b)(3), Fla. Const. We hold that circumstantial evidence is sufficient to prove the offense, and that proof of a specific agreement is not required. We therefore quash Castillo.

I. Facts and Proceedings Below

We present the facts in the light most favorable to the jury verdict. At about 4 a.m. on March 9, 2000, nineteen-year-old A.S., who had been drinking heavily, was traveling at about 55 m.p.h. in a 40 m.p.h. speed zone when a police cruiser drove up behind her with its overhead lights on. The respondent, Miami-Dade County Police Officer Fernando Castillo, on duty and in.uniform, was driving. A.S. pulled over near a Burger King restaurant. Using the patrol car’s loudspeaker, Officer Castillo ordered her out of her vehicle. A.S. feared she would be arrested because she was both drunk and speeding. As she walked toward the officer, she stumbled. Castillo remarked that “[t]he party must have been good.” After rummaging through her wallet, Castillo told A.S. to follow him into the empty Burger King parking lot. She complied. They both exited their cars and talked for awhile. Castillo was very friendly, smiling and touching A.S.’s shoulder as he stood close to her. Castillo noticed alcohol on her breath. At one point, Castillo asked her, “Do you want to follow me?” She said, “what?” and he replied, “You are going to follow me.” Afraid not to obey, she complied. Castillo led her to a nearby deserted warehouse area. Again they exited their cars. He leaned her back on the hood of her car, pulled her pants and panties down, and mumbled “something like ‘let me get that thing on.’ ” Commenting that she had the body of a stripper, he had vaginal intercourse with her. Because she was scared, A.S. did not look or say or do anything, and when he finished, she felt wetness on her lower stomach. As they dressed, Castillo smiled and told her that she was lucky he did not give her a ticket. He gave her his beeper number and they each drove away.

Castillo did not report his over-forty-minute encounter with A.S. Instead, he reported that during that time he was engaged in various other patrol duties.

Castillo was charged with, and a jury found him guilty of, unlawful compensation and official misconduct. See § 838.016(1), Fla. Stat. (1999); § 839.25, Fla. Stat. (1999). The trial court denied Castillo’s motion for judgment of acquittal. On appeal, the Third District Court of Appeal reversed the conviction of unlawful compensation. The district court focused on A.S.’s trial testimony that before she followed Castillo to the warehouse he never specifically stated that he would arrest her if she did not have sex with him. 835 So.2d at 309. The court concluded that because of “the absence of any spoken understanding,” the State failed to establish an agreement to these terms. See id. The court thus required direct evidence of a specific agreement to prove unlawful compensation.

II. Discussion of Law

The unlawful compensation statute provides in pertinent part as follows:

(1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.

§ 838.016(1), Fla. Stat. (1999) (emphasis added). Section 838.014, Florida Statutes (1999), defines the terms “benefit” and “corruptly”:

(1) “Benefit” means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested.
(6) “Corruptly” means done with a wrongful intent and for the purpose of obtaining or compensating or receiving compensation for any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.

We must decide two related issues concerning the statute: (A) whether a violation may be proved through circumstantial evidence; and (B) whether the State must prove a specific agreement. We discuss these issues below.

A. May the State Prove a Violation by Circumstantial Evidence?

The district court in this case reversed Castillo’s conviction because the State failed to establish a “spoken understanding” that if A.S. submitted to sexual intercourse with Castillo, he would not issue her a citation. 8B5 So.2d at 309. Thus, the court required direct evidence of an agreement between the public official and the person unlawfully compensating him. In Gerren, on the other hand, the court specifically held that “[wjhile the state must show a quid pro quo, it should be permitted to establish this element indirectly, through the use of circumstantial evidence.” 604 So.2d at 520-21 (emphasis added). We agree with Gerren insofar as it holds that a violation of the statute may be proven through circumstantial evidence.

The statute itself is silent on the type of proof required. It certainly does not require either a “spoken understanding” or any other direct evidence of a violation. In the absence of explicit statutory direction, it has long been established that circumstantial evidence is competent to establish the elements of a crime, including intent. See Moorman v. State, 157 Fla. 267, 25 So.2d 563, 564 (1946) (“It is too well settled to require citation of authorities that any material fact may be proved by circumstantial evidence, as well as by direct evidence.”); see also State v. Waters, 436 So.2d 66, 71 (Fla.1983) (“The element of intent, being a state of mind, often can only be proved by circumstantial evidence.”), cited in Gerren, 604 So.2d at 520. Moreover, Florida courts have regularly reviewed bribery and unlawful compensation cases for the legal sufficiency of the circumstantial evidence to support the charges, without requiring direct evidence. See, e.g., Merckle v. State, 512 So.2d 948, 949 (Fla. 2d DCA 1987) (rejecting the contention that circumstantial evidence was legally insufficient, and not inconsistent with reasonable hypothesis of innocence, and affirming convictions for bribery, receiving unlawful compensation, and extortion by a state officer), approved, 529 So.2d 269, 272 n. 3 (Fla.1988); Garrett v. State, 508 So.2d 427 (Fla. 2d DCA 1987) (finding the circumstantial evidence legally insufficient to support a conviction for receiving unlawful compensation); Bias v. State, 118 So.2d 63 (Fla. 2d DCA 1960) (affirming an unlawful compensation conviction where the officer “fined” a car’s occupants $75 for various offenses, took the $25 proffered, and released the occupants, telling them he expected the rest to be paid later).

In Gerren, the Fourth District Court of Appeal warned that if an express agreement were required to prove a violation of the statute, a public servant “could receive funds or other benefits from interested persons” and avoid prosecution “so long as he never explicitly promises to perform his public duties improperly.” 604 So.2d at 520. The court concluded that requiring proof of a violation through circumstantial evidence did not violate procedural safeguards. As the court noted, “ ‘[t]he element of intent, being a state of mind, often can only be proved by circumstantial evidence,’ ” and when guilt is proven by circumstantial evidence, the state is required to present evidence inconsistent with the defendant’s theory of defense. Id. at 520 (quoting State v. Waters, 436 So.2d 66 (Fla.1983)); see State v. Law, 559 So.2d 187 (Fla.1989).

Therefore, we hold that circumstantial evidence can establish a violation of the unlawful compensation statute. The district court’s requirement of a “spoken understanding” imposes too high a burden on the State and would prohibit prosecution of all but the most blatant violations. Public corruption has become sophisticated enough at least to expect that public officials soliciting or accepting unlawful compensation ordinarily will not be so audacious as to explicitly verbalize their intent.

B. Does the Statute Require an Agreement?

The second, related issue we must consider is whether the unlawful compensation statute requires evidence of an agreement or meeting of the minds. The district court held it did. Castillo, 835 So.2d at 309. It concluded that without direct evidence that Officer Castillo actually stated that he would arrest A.S. if she did not have sex with him, there was only evidence that A.S. believed this to be true. Id. The Fourth District in Gerren also required proof of a “meeting of the minds.” Although the Fourth District did not require that an agreement be explicit, it did require proof at least of an “implicit agreement.” See 604 So.2d at 517, 520-21. We respectfully disagree.

On its face, the statute does not require an agreement. In fact, it criminalizes the mere solicitation of a “benefit not authorized by law,” regardless of whether the solicited party accepts the offer. The statute expressly makes it unlawful for a public servant corruptly to request, solicit, or accept any pecuniary or other benefit not authorized by law. Such language implies that, although evidence of an agreement is sufficient to prove a violation — the statute also prohibits agreeing to accept a benefit — it is not required. Section 838.016(1) further requires that the public servant must request, solicit, accept, or agree to accept the unlawful benefit “corruptly,” which means “with a wrongful intent and for the purpose of obtaining or compensating or receiving compensation for any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.” § 838.014(6), Fla. Stat. The statute thus focuses on the official’s intent, not on an agreement. The statute does not require that the person from whom the public official requests or accepts a benefit agree to — or even understand — the exchange.

Other states with similarly phrased bribery statutes have concluded that proof of an agreement is not required to establish violation of the statute. In Commonwealth v. Schauffler, 397 Pa.Super. 310, 580 A.2d 314 (1990), for example, the statute in question provided that “a person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another ... any benefit as consideration for a violation of a known legal duty as public servant or party official.” 18 Pa. Cons.Stat. Ann. § 4701(a)(3) (West 1983). The statute resembles Florida’s because it, too, focuses on the wrongdoer’s intent. The Pennsylvania court relied on the commentary to section 240.1 of the Model Penal Code, from which its statute was derived, and cited the commentary as follows:

[IJt is sufficient if the actor believes that he has agreed to confer or agreed to accept a benefit for the proscribed purpose, regardless of %vhether the other party actually accepts the bargain in any contract sense. ... The evils of bribery are fully manifested by the actor who believes that he is conferring a benefit in exchange for official action, no matter how the recipient views the transaction.... Each defendant should be judged by what he thought he was doing and what he meant to do, not by how his actions were received by the other party.

580 A.2d at 317-18 (quoting Model Penal Code § 240.1 cmt. 4.(b)-(c) (1980)) (emphasis added); see also State v. Martin, 95 Or.App. 170, 769 P.2d 203, 205 n. 1 (1989) (citing the state’s criminal code commentary on its bribe-giving statute, which explained that the mens rea requirement of “with the intent” was meant “to avoid the necessity of proving a ‘meeting of the minds’ ” because “subjective wrongful intent of the bribe offeror is the gravamen of bribe giving”).

We agree with this reasoning and hold that section 838.016(1) does not require a specific agreement. Only corrupt intent must be shown.

In requiring a meeting of the minds, the district court relied on our decision in State ex rel. Grady v. Coleman, 133 Fla. 400, 183 So. 25 (1938). In Grady, this Court discussed the legal sufficiency of an information to charge a crime under a predecessor unlawful compensation statute. The Court described the violation of the statute as follows:

The gravamen of the action as stated [by] Mr. Justice Ellis in [Callaway v. State, 112 Fla. 599, 152 So. 429 (1938) ], is the exacting by the officer of compensation or extortion practiced by demanding the sum required? If the money is demanded and there is a meeting of the minds on the part of the officer who is to be compensated or rewarded by his exaction or acceptance of the reward other than that allowed by law, and the party from whom it is exacted or accepted, then the statutes, supra [§§ 7486-7487, Comp. Gen. Laws (1927)], have been violated.

183 So. at 31. We do not read Grady as holding that proof of a meeting of the minds is required; only that it suffices. The Court in Grady stated only that if a mutuality of understanding is present along with other facts, the statute is violate ed. Moreover, Grady analyzed an earlier version of the statute, which prohibited only exacting or accepting remuneration. The current statute, section 838.016(1), prohibits requesting, soliciting, accepting, or agreeing to accept a benefit. Even assuming the statute at issue in Grady prohibited only a specific agreement, the prohibition has since been broadened.

Thus, the statute only requires the State to prove the corrupt intent of the actor, which in this case is the police officer. We disapprove both Castillo and Gerren to the extent they require proof of a meeting of the minds to prove a violation of the statute.

C. Did the State Present Sufficient Circumstantial Evidence of a Violation of the Statute?

Applying our holdings that neither direct evidence nor evidence of a specific agreement is required to establish a violation of the statute, we conclude that competent, substantial evidence supports Castillo’s conviction in this case. The evidence shows that Castillo, a uniformed officer in a marked patrol car, stopped A.S. while she was exceeding the speed limit. He recognized her intoxicated state when he remarked, after she stumbled, that “[t]he party must have been good.” He required A.S. to follow him to the nearby deserted restaurant parking lot where he was “very friendly” while they spoke. He smelled alcohol on her breath. He then required A.S. to follow him again, this time to a deserted warehouse area where he initiated and had intercourse with her. After-wards, he told her she was lucky he did not ticket her, and he permitted her to leave. Castillo not only did not report his contact with A.S., but he misrepresented his activities during this almost hour-long period as official duties. Thus, the evidence of the officer’s words and actions demonstrated his understanding that A.S. was violating the law when he stopped her, and his releasing A.S. without legal consequence after having sex with her demonstrates his corrupt intent in soliciting an unlawful quid pro quo.

The district court’s conclusion that if Castillo thought that A.S. followed him to the warehouse voluntarily, then Castillo did not violate the statute, is groundless for two reasons. First, the evidence, taken in the light most favorable to the jury verdict, was that he required her to follow him. Second, as we explained above, the other participant’s state of mind is irrelevant; it is the public servant’s state of mind that matters. Although an agreement may be sufficient to prove a violation, it is not necessary. Accordingly, whether Castillo thought or believed A.S.’s actions were voluntary or whether her actions were in fact voluntary is irrelevant. Castillo demonstrated the causal relationship of his actions when he told A.S., after having intercourse with her, that she was lucky he did not give her a ticket. Thus, the competent, substantial evidence in this case demonstrates that Castillo acted with corrupt intent in accepting an unauthorized benefit — sex—in exchange for his exercising his discretion not to issue a traffic citation.

III. Conclusion

For the reasons stated, we quash the decision below and remand for proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and BELL, JJ., concur.

      . Castillo's version of events, which the jury rejected, differed from A.S.'s. He testified that A.S. waved him over as he was passing her; that she suggested they talk at the Burger King; that she unexpectedly followed him from there and waved him down again to chat some more, and they did; that she met him a few hours later when his shift ended; and that at that time they engaged in masturbatory sex. Castillo testified that he did not tell the officers investigating A.S.'s allegations that he engaged in a sexual act with her because they did not ask.

      . During cross-examination, A.S. testified as follows:
      Q. He never suggested he was going to arrest you for DUI?
      A. No.
      Q. He never said anything about along the lines of DUI, the entire encounter, did he?
      A. No.
      Q. It was never any quid quo pro [sic] that he wouldn’t arrest you if you come with me, was there?
      A. No.

      .The court affirmed Castillo's conviction for official misconduct. Castillo asks us to quash that part of the opinion. Because determination of this issue is not integral to the conflict issue presented for review, we do not address it. See Heidbreder v. State, 613 So.2d 1322, 1323 (Fla.1993) (declining to address the issue lying beyond the scope of conflict jurisdiction).

      . "Quid pro quo” means "[a] thing that is exchanged for another thing of more or less equal value; a substitute.” Black’s Law Dictionary 1261 (7th ed.1999).

      . The court in Genen uses the phrase "quid pro quo” as including the word "agreement” — i.e., a meeting of the minds. The two are not synonymous, however. A "meeting of the minds” means actual assent to a contract. See Black’s Law Dictionary 997 (7th ed.1999). A "quid pro quo” refers to something exchanged for something else. It does not require an agreement. For example, in sexual harassment cases, one must demonstrate a discriminatory quid pro quo, not a meeting of the minds between the victim and the harasser. See Huitt v. Market St. Hotel Corp., No. 91-1488-MLB, 62 Fair Empl. Prac. Cas. (BNA) 538, 1993 WL 245744 *3 (D.Kan. June 10, 1993) (stating in a quid pro quo sexual harassment case that "despite the contractual overtones of the term 'quid pro quo,' actionable sexual harassment of this variety requires no 'meeting of the minds' ”).

      . The trial court in this case gave the following jury instruction, in accordance with the standard instruction:
      Before you can find the defendant guilty of unlawful compensation or reward for official behavior, the state must prove the following four elements beyond a reasonable doubt:
      1. [Castillo] was a public servant.
      2. [Castillo] requested, solicited, accepted, or agreed to accept from [A.S.] the thing described in the charge in this case as a pecuniary or other benefit.

        3. The pecuniary or other benefit was something of value, benefit, or advantage to [Castillo].
      4. The request, solicitation, acceptance, or agreement to accept was corruptly made for the past, present, or future performance, nonperformance or violation of any act or omission of [Castillo] that
      (a) [A.S.] believed to be either within the official discretion of [Castillo], or in violation of a public duty of [Castillo], or in performance of a public duty of [Castillo], or
      (b) [Castillo] represented as being either within his official discretion or in violation of his public duty or in performance of his public duty.

      . This statute, section 7486, Compiled General Laws (1927) (emphasis added), provided as follows in pertinent part:

        It shall be unlawful for any officer, State, county or municipal, or any public appointee, or any deputy of any such officer or appointee, to exact or accept any 'reward, compensation, or other remuneration other than those provided by law, from any person whatsoever for the performance, nonperformance or violation of any law, rule or regulation that may be incumbent upon the said officer or appointee to administer, respect, perform, execute or to have executed. ...
      The statute was later codified at section 838.06, Florida Statutes, which was repealed and readopted as section 838.016, Florida Statutes, effective in 1975. Over the years the language has undergone various changes. The most important evolution for our purposes is the change in verbs over the years from “exact or accept” in 1927 to the current "request, solicit, accept, or agree to accept.”


source: Caselaw Access Project

author: PER CURIAM. CANTERO, J., ANSTEAD, C.J.,

license: Public Domain

text:
    Paul Augustus HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. SC03-103.
    Supreme Court of Florida.
    May 6, 2004.
    Rehearing Denied June 25, 2004.

      Clyde M. Taylor, Jr., and Baya Harrison, III, Associate Counsel, Tallahassee, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   PER CURIAM.

Howell appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Howell asserts that trial counsel was ineffective in declining to present evidence, in support of a defense of intervening cause in the guilt phase and as nonstatutory mitigation in the penalty phase, that the victim in this case, a Florida Highway Patrol (FHP) trooper, violated agency policy in conducting a search of the package containing the bomb that caused the trooper’s death. Howell also asserts that his sentence is unconstitutional in light of recent United States Supreme Court decisions. For the reasons that follow, we reject both contentions and affirm the denial of the motion for postconviction relief.

I. FACTS AND PROCEDURAL HISTORY

Most of the pertinent facts from trial are contained in this Court’s opinion in the direct appeal:

In January of 1992, Howell constructed a bomb for the specific purpose of killing Tammie Bailey at her home in Marianna, Florida. Bailey, Howell, and Howell’s brother, Patrick, were part of a drug ring involving a number of other individuals in which drugs were obtained in Fort Lauderdale and then sold in Marianna, Florida. Howell intended to eliminate Bailey as a witness because she had knowledge that could link Howell and his brother to a prior murder. The bomb was placed inside a microwave oven and then the oven was gift-wrapped. Howell paid Lester Watson to drive and deliver the microwave to Bailey. Although he knew that Howell had often made pipe bombs, Watson testified that he thought the microwave contained drugs. Howell rented a car for Watson to use for the trip. Watson was accompanied on the trip- by Curtis Williams.
While traveling on 1-10 toward Ma-rianna, Watson was stopped by Trooper Jimmy Fulford for speeding. Fulford ran a registration check on the car and a license check on Watson, who gave the trooper a false name and birth date because he did not have a valid driver’s license. The radio dispatcher contacted the car rental company and was informed that Howell had rented the car. The dispatcher contacted Howell at his home in Fort Lauderdale, Florida, to determine whether the rental car had been stolen from him. Howell told the dispatcher that he had loaned the car to Watson but did not know that Watson would be traveling so far with the vehicle. Howell was informed by the dispatcher that Watson was going to be taken to the Jefferson County Jail. Howell did not give any warning to the dispatcher regarding the bomb.
Deputies Harrell and Blount of the Jefferson County Sheriffs Department arrived at the scene and Watson gave them permission to search the vehicle. Trooper Fulford and the deputies observed the gift-wrapped microwave in the trunk of the car. Watson was arrested for speeding and driving without a valid driver’s license and was transported, along with Williams, to the jail by Deputy Blount. Deputy Harrell also proceeded to the jail, leaving Trooper Fulford alone with the rental, car. Shortly thereafter, a massive explosion took place at the scene. Testimony presented at Howell’s trial by the State’s explosives expert indicated that Trooper Fulford had been holding the microwave in his hands when the bomb went off. Trooper Fulford died instantly due to the massive trauma caused by the explosion.

Howell v. State, 707 So.2d 674, 676 (Fla.1998).

Attorney Frank Sheffield was appointed to represent Howell both in the state prosecution for the murder of Trooper Fulford and in a related federal drug conspiracy prosecution. The federal case was tried first. Sheffield withdrew from the federal case after jury selection because his wife received a phone call threatening Sheffield if Howell “goes down.” Id. at 678. Sheffield remained counsel in the state murder prosecution, and the case went to trial nine months after the threat was made. Id. at 678-79. Because an impartial jury could not be impaneled in Jefferson County, where Trooper Fulford was killed, the trial was transferred to Escambia County. The jury found Howell guilty of first-degree murder and of making, possessing, placing, or discharging a bomb. In a special verdict, the jury also found that Howell committed both premeditated and felony murder. In the penalty phase, the jury recommended death by a vote of ten to two. The trial court concluded that the aggravating circumstances far outweighed the mitigating circumstances and imposed death for the murder. See id. at 676-77.

On direct appeal, this Court affirmed Howell’s convictions and death sentence. See id. at 679. The Court rejected Howell’s guilt-phase claim that the trial court erred in refusing to appoint different counsel or a second attorney. The Court also rejected Howell’s challenge to the aggra-vators of knowingly creating a great risk to many persons, commission of the murder to prevent arrest, CCP, and that the victim was a law enforcement officer engaged in official duties. See id. at 680-82. Addressing the claim that Howell did not knowingly kill a law enforcement officer, this Court stated:

[Howell] had knowledge that Lester Watson had been arrested and that law enforcement officers had custody of the car. At the time the dispatcher called Howell to ask whether the rental car had been stolen, Howell chose not to warn the officers of the lethal bomb in the trunk. Based on this knowledge, Howell knew or could have reasonably foreseen that law enforcement personnel would search the vehicle and its contents and thereby detonate the bomb. We find that this aggravator was properly found by the trial court.

Id. at 682. Finally, this Court held that the death penalty was not disproportionate. See id. at 682-83.

Howell’s initial postconviction counsel filed a “shell” motion for postconviction relief, and successor counsel filed an amended motion. Many of the claims initially raised were abandoned below, and only two issues are presented in this appeal: (1) whether trial counsel was ineffective in both the guilt and penalty phases in failing to assert that the trooper’s violation of FHP procedures in opening the package containing the bomb constituted an intervening cause, and (2) whether Florida’s death penalty is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The trial court conducted an evidentia-ry hearing on the first of these claims. Attorney William Pfeiffer testified that he represented Howell in his federal drug conspiracy trial. Pfeiffer assumed representation in the federal case after jury selection and three days before trial when Sheffield, who had previously been appointed counsel, withdrew. Based on a policy statement in an FHP manual that officers were not permitted to search closed and wrapped containers, Pfeiffer moved in the federal trial to suppress the physical evidence concerning the explosion that killed Fulford. The motion was denied on grounds that Howell lacked standing to contest the search because the vehicle that he rented was not in his possession.

Sheffield testified that he withdrew from the federal case because of the threat communicated to his wife just before trial. Sheffield testified that he remained Howell’s counsel on the state murder case, which was tried nine months after thé threat, because tensions had subsided and because he was both more experienced than Pfeiffer in murder cases and more familiar with this particular case. In the murder trial, Sheffield originally considered an insanity defense, but it did not “materialize.” He also considered and rejected raising any guilt- or penalty-phase issue that would have blamed Fulford for his own death. The theory of defense used at trial was that Howell did not make the bomb, based on an assertion that several of the witnesses who identified him as the bombmaker were not credible because they made deals with the State for lesser sentences. Sheffield also attempted to shift the blame to Watson, who was “the most guilty because he knew exactly what was in the package, and he was the one that was standing looking Trooper Fulford in the eye, and he didn’t say anything.”

Sheffield said he rejected an “intervening cause” argument in both the guilt and penalty phases despite his belief that Ful-ford violated FHP policy in opening the package. Among the considerations that influenced counsel’s decision was the fact that although Howell was contacted by the FHP dispatcher during the stop of Watson and was told that the car rented in his name would be impounded, Howell did not give any warning about the bomb in the microwave oven. Sheffield also stated that it was his understanding that the package would be searched at some point, either on the side of the road or at an impound lot. Moreover, although the trial was moved from Jefferson County, where passions ran high, the case was tried in Escambia County, where in Sheffield’s experience the jurors tended to be “very law-and-order, very pro-prosecution oriented.” Sheffield stated that after discussion with Howell, he did argue to the jury that there was no intent to kill an officer.

In light of these considerations, Sheffield maintained that any argument that Fulford was responsible for his own death was “no defense” or, at best, a legal argument that would have resulted in a unanimous death recommendation rather than the ten-to-two death recommendation actually rendered. Accordingly, trial counsel did not present evidence or argument, in either the guilt or penalty phase, that Ful-ford violated FHP rules in opening the package containing the bomb.

The trial court denied the motion for postconviction relief on all grounds. The court specifically addressed the “intervening cause” claim, and found that because of the concern over alienating the jury, trial counsel was “not ineffective for failing to attempt to shift blame for the explosion to the trooper for his actions.”

II. ANALYSIS

A. Ineffective Assistance Claim

This claim concerns a paragraph in the Florida Highway Patrol Policy Manual concerning items in impounded vehicles:

11.04.04 Impounded Vehicle Inventories
In order to secure the owner’s property and to protect the Department from claims, it is necessary to inventory the contents of all vehicles being towed and/or stowed. The contents of the vehicle include, but are not limited to, all packages and containers located within the passenger compartment, the trunk, or any other secured area of the vehicle. Unless locked or securely wrapped, all luggage, packages, and containers, whether opened or closed, shall be opened and their contents inventoried. Locked or securely wrapped luggage, packages, and containers shall not be opened except as otherwise authorized by law or by owner consent, but shall be indicated on the inventory list as locked or securely wrapped items.

Howell claims that trial counsel was prejudicially deficient in failing to assert, in support of both a defense of intervening cause during the guilt phase and as non-statutory mitigation during the penalty phase, that Trooper Fulford violated this policy statement, thereby contributing to his own demise. The State responds that there is no evidence that the trooper violated the policy, because he was acting pursuant to consent to search given by the car’s driver. The State also relies upon trial counsel’s testimony during the rule 8.850 hearing that he did not consider any claim that blamed the trooper for his own death to be viable trial strategy because it would have offended the jurors. Howell counters that the evidence of the trooper’s policy violation could have been presented in a sensitive and inoffensive manner, that this would have been a better strategy than the meritless defense presented at trial, and that the evidence would have supported a penalty-phase theme of lack of specific intent to kill Trooper Fulford. In addressing Howell’s claim, we assume but do not decide that the policy relied upon by Howell actually applied to the facts in this case.

The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case the right to assistance of counsel. A defendant seeking to establish a denial of this right because of counsel’s ineffectiveness must make a two-pronged showing of deficient performance by counsel and resulting prejudice. See Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Rutherford v. State, 727 So.2d 216, 219 (Fla.1998). Second, the deficiency must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. The two prongs are related, in that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052) (alteration in original). In reviewing a trial court’s ruling on an ineffective assistance claim in postconviction proceedings, this Court defers to findings of fact based on competent, substantial evidence but independently assesses deficiency and prejudice as mixed questions of law and fact. See Freeman v. State, 858 So.2d 319, 323 (Fla.2003); Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999).

Howell acknowledges that this is not a case of inadequate investigation of a viable defense in which trial counsel overlooked the alleged policy violation. Rather, trial counsel concluded that a defense based on the violation was not viable and, as a strategic matter, would only have inflamed the jury. In Strickland, the Supreme Court stated that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 690, 104 S.Ct. 2052. See also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (stating that “the deference owed such strategic judgments” under Strickland is defined “in terms of the adequacy of the investigations supporting those judgments”). In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Additionally, this Court has recognized that a concern about being perceived as blaming the victim for his or her own death is a valid reason for declining to introduce particular evidence. See Spencer v. State, 842 So.2d 52, 61-62 (Fla.2003) (concluding that trial counsel was not ineffective in choosing not to present evidence of an antagonistic relationship between the defendant and the victim for fear of being perceived of blaming the victim for the defendant’s actions).

Howell concedes that the alleged policy violation would not have been an intervening cause as a matter of law, but asserts nonetheless that had trial counsel introduced the evidence and requested an instruction thereon, the jury might have returned a verdict other than guilty of first-degree murder. In support of this contention, Howell cites State v. Rushing, 532 So.2d 1338 (Fla. 4th DCA 1988), in which the court reversed the dismissal of an information charging manslaughter by culpable negligence based on the defendant’s act of giving a loaded gun to the suicidal victim. The court concluded in Rushing that because “-as a matter of law it cannot be said that it was unforeseeable that the victim would do that very thing which she had already announced she would,” the question of foreseeability was for the jury. Id. at 1340. See also Miller v. State, 782 So.2d 426, 430 (Fla. 2d DCA 2001) (holding that the issue of whether the defendant’s removal of a stop sign from an intersection was the proximate cause of a motorist’s death was a jury question).

In this case, death was a clearly foreseeable result of Howell’s act of placing a bomb in a gift-wrapped microwave oven and setting it to explode when the oven door was opened. Indeed, it was almost certain that Howell’s actions would result in the death of someone, if not his intended victim. Therefore, the alleged policy violation by the trooper in searching the package’s contents would not have negated any of the elements of first-degree murder, including that the death was caused by Howell’s criminal act.

Moreover, evidence presented during the guilt phase showed that by the time Fulford opened the package, Howell could have foreseen that law enforcement personnel, rather than Bailey, would detonate the bomb. The jury heard testimony that on the day of Fulford’s death, Howell was informed by a police dispatcher that the car that contained the bomb and was rented in his name would be impounded, yet he gave no warning of its contents. As this Court previously noted in relying upon this evidence to reject the challenge to the CCP aggravator in the direct appeal, Howell “had sufficient opportunity to formulate the intent that law enforcement personnel would be the bomb’s intended victim.” Howell, 707 So.2d at 682.

Accordingly, we conclude that the low probability of success, combined with the tremendous potential for alienating the jury by blaming the trooper for his own death, fully justifies trial counsel’s strategic decision to forego presentation of the alleged policy violation during the guilt phase as being well within the wide range of reasonable professional assistance. The same lack of merit in an “intervening cause” defense based on the alleged policy violation leads us to conclude that Howell has also failed to establish prejudice under Strickland. Had counsel raised this defense, there is no probability, sufficient to undermine confidence in the outcome, of a different verdict. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

In regard to the penalty phase, Howell asserts that trial counsel was ineffective in declining to use the alleged policy violation in support of a nonstatutory mitigating factor that there was no intent to injure the trooper and that his death was unforeseeable. We conclude again that counsel made a reasonable strategic decision that introducing the evidence of the policy violation would have alienated the jury without contributing substantially to mitigation.

Concerning nonstatutory mitigation, we have stated that “[ejvidence is mitigating if, in fairness or in the totality of the defendant’s life or character, it may be considered as extenuating or reducing the degree of moral culpability for the crime committed.” Merck v. State, 763 So.2d 295, 298 (Fla.2000). In this case, the jury was made aware during the guilt phase that the bomb was intended for Tammie Bailey and not Trooper Fulford. Counsel could reasonably have concluded that evidence of the alleged policy violation would not have further reduced or extenuated Howell’s moral culpability for the bomb’s premature detonation. Further, on the question of whether the alleged policy violation made the death less foreseeable and therefore mitigated against imposition of the death penalty, Howell does not assert that he knew of the policy. Therefore, evidence of the alleged policy violation would not have appreciably changed the circumstances that led the jury to recommend death, the trial judge to impose death, and this Court to conclude, in rejecting the challenge to the law-enforcement aggravator in the direct appeal, that “Howell knew or could have reasonably foreseen that law enforcement personnel would search the vehicle and its contents and thereby detonate the bomb.” Howell, 707 So.2d at 682.

Moreover, counsel made a reasonable strategic decision that any benefit in introducing the alleged policy violation during the penalty phase would have been outweighed by the perception that the defense was blaming Trooper Fulford for his own death. The jury in this case recommended death by a ten-to-two vote, and the trial court found five aggravating factors which it concluded far outweighed the two statutory mitigating factors, one of which was given little weight, and the three nonstatu-tory mitigators, two of which were given little weight or deemed inconsequential. See id. at 677. Indeed, as trial counsel testified at the evidentiary hearing, had he asserted the policy violation in advocating a nonstatutory mitigator, thus necessarily suggesting to some extent that the victim could be blamed for his own death, the recommendation of death might have been unanimous. Therefore, his performance was not constitutionally deficient under Strickland. Even if counsel’s decision to forego presentation of the alleged policy violation in the penalty phase could be viewed as unreasonable, we conclude that there is no probability that the decision affected the outcome of the penalty phase, and thus Howell’s claim fails to satisfy the second prong of Strickland.

In Strickland, the Court stated:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

466 U.S. at 689, 104 S.Ct. 2052. Even in hindsight, trial counsel appears to have made a sound strategic decision not to introduce evidence, in either the guilt or penalty phase of Howell’s capital trial, that Fulford may have violated FHP policy in opening the gift-wrapped package. As found by the trial court, counsel’s decision “was appropriate given the probability that such an argument may have influenced the jury against the defendant.” Accordingly, Howell has not overcome the presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and has not shown that the alleged deficiency affected the outcome of either phase of his capital trial. Because he has not satisfied either the deficiency or prejudice prong of Strickland, we conclude that the trial court did not err in denying this claim of ineffective assistance.

B. Ring Issue

Howell asserts that the United States Supreme Court decisions in Ring and Ap-prendi render Florida’s capital sentencing statute, section 921.141, Florida Statutes (2003), unconstitutional. In Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1069, 123 S.Ct. 662, 154 L.Ed.2d 563 (2002), this Court denied relief under Ring. Subsequently, this Court has rejected postcon-viction challenges to section 921.141 that relied on Apprendi and Ring.. See, e.g., Jones v. State, 855 So.2d 611, 619 (Fla.2003); Wright v. State, 857 So.2d 861, 877-78 (Fla.2003), cert. denied, — U.S.-, 124 S.Ct. 1715, 158 L.Ed.2d 402 (2004); Chandler v. State, 848 So.2d 1031, 1034 n. 4 (Fla.2003).

In addition, the trial court in this case found that the murder was committed in the course of the felony of making, possessing, placing, or discharging a bomb, and the jury also unanimously found Howell guilty of this separate felony beyond a reasonable doubt. This Court has relied upon the same aggravator resting on contemporaneous convictions in rejecting Ring claims in several cases. See Lugo v. State, 845 So.2d 74, 119 n. 79 (Fla.), cert. denied, — U.S.-, 124 S.Ct. 320, 157 L.Ed.2d 216 (2003); Jones v. State, 845 So.2d 55, 74 (Fla.2003); Banks v. State, 842 So.2d 788, 793 (Fla.2003). Howell likewise is not entitled to relief on this claim.

III. CONCLUSION

For the reasons explained above, we affirm the denial of Howell’s motion for postconviction relief.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO and BELL, JJ„ concur.

CANTERO, J., concurs with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J., concurs specially with an opinion.

CANTERO, J.,

concurring.

I concur in the majority opinion. Moreover, regarding Howell’s claim that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, Nos. SC01-2706 & SC02-2142, - So.2d -, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively.

WELLS and BELL, JJ., concur.

ANSTEAD, C.J.,

specially concurring.

I concur in the majority opinion in all respects except for its discussion of the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . The jury had been instructed on unlawfully throwing, placing, or discharging a destructive device or bomb and drug trafficking as the predicate felonies for first-degree felony murder.

      . The trial court found the following aggravating circumstances: (1) Howell knowingly created a great risk of death to many persons, (2) the murder was committed while Howell was unlawfully making, possessing, placing, .or discharging a bomb, (3) the murder was committed to prevent lawful arrest, (4) the victim was a law enforcement officer engaged in official duties, and (5) the murder was cold, calculated, and premeditated (CCP). The court found the mitigating circumstances of (1) no significant criminal history (no assignment of weight), (2) the murder was committed while Howell was under the influence of extreme mental or emotional disturbance (little weight), (3) Howell served in and was honorably discharged from the military (little weight), (4) Howell behaved well as a pretrial detainee (no assignment of weight), and (5) Howell was a good family man (deemed inconsequential).

      . Additionally, to the extent that Howell questions the sufficiency of the evidence to establish either premeditation or felony-murder, and reasserts the alleged conflict of interest based on the alleged death threat during the federal trial addressed in the direct appeal, these issues are procedurally barred on collateral review. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (holding that claims that were or could have been raised on direct appeal are procedurally barred from consideration in a rule 3.850 motion).


author: PER CURIAM. CANTERO, J.,

text:
    Guy Richard GAMBLE, Appellant, v. STATE of Florida, Appellee. Guy Richard Gamble, Petitioner, v. James V. Crosby, Jr., Secretary, Department of Corrections, State of Florida, Respondent.
    Nos. SC02-195, SC02-1948.
    Supreme Court of Florida.
    May 6, 2004.
    Rehearing Denied June 25, 2004.

      Robert T. Strain, Assistant CCRC, and Frank Lester Adams, III, Assistant CCRC, Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Guy Richard Gamble (Gamble), currently incarcerated under a sentence of death, appeals an order of the trial court denying a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons more fully explained below, we affirm the trial court’s denial of post-conviction relief and deny habeas relief.

FACTS

The facts taken from this Court’s opinion in Gamble’s direct appeal are as follows:

On December 10, 1991, Guy R. Gamble and Michael Love murdered their landlord, Helmut Kuehl, by striking him several times in the head with a claw hammer and choking him with a cord. Gamble and Love also stole their victim’s car and wallet. Within the wallet was a blank check which Gamble forged and cashed in the amount of $8,544. After cashing the check the men, accompanied by their girlfriends, drove to Mississippi in the stolen car. Gamble subsequently abandoned the group, but was later arrested.

Gamble v. State, 659 So.2d 242, 244 (Fla.1995) (footnote omitted). Gamble was tried in June 1993 and the jury found him guilty of conspiracy to commit armed robbery, armed robbery, and first-degree murder. On the first-degree murder conviction, the jury recommended a sentence of death by a vote of ten to two. The trial court accepted the jury’s recommendation and sentenced Gamble to death. The trial court also sentenced Gamble to a consecutive life sentence for armed robbery, and a consecutive fifteen-year prison term for conspiracy to commit armed robbery. On May 25, 1995, this Court affirmed Gamble’s sentence and conviction. See Gamble v. State, 659 So.2d-242 (Fla.1995).. Gamble’s petition for writ of certiorari to the United States Supreme Court was denied in February 1996. See Gamble v. Florida, 516 U.S. 1122, 116 S.Ct. 933, 133 L.Ed.2d 860 (1996).

In 1997, Gamble filed a motion to vacate the judgment and sentence. He filed an amended motion to vacate in 1999, and a supplement in 2000, adding two additional claims.

The claims raised in Gamble’s 3.850 motion are restated as follows: (1) whether Gamble was denied effective assistance of counsel when his attorney made concessions of guilt in opening statements; (2) whether Gamble was denied effective assistance of counsel in the penalty phase because his trial counsel did not present evidence from a mental health expert that Gamble suffered from frontal lobe damage and fetal alcohol syndrome; (3) whether trial counsel was deficient in not presenting any evidence of frontal lobe damage or fetal alcohol syndrome and deficient for presenting insufficient evidence of substance abuse; (4) whether the sentence was unreliable because insufficient evidence of substance abuse was presented; (5) whether there is newly discovered evidence of frontal lobe impairment and fetal alcohol syndrome to support a defense of insanity; (6) whether Florida’s capital sentencing scheme is constitutional because using the electric chair is cruel and unusual punishment; (7) whether the cold, calculated, and premeditated aggravating factor is unconstitutionally vague; (8) whether the trial court committed fundamental error in instructing the jury on the pecuniary gain aggravátor; (9) whether the trial court committed fundamental error when it denied a request to change venue; (10) whether the procedural and substantive errors, when viewed as a whole, deprived Gamble of his right to a fair trial; (11) whether Gamble was prejudiced by trial counsel’s penalty phase closing argument during which counsel conceded the existence of the pecuniary gain aggravating factor;- and (12) whether Gamble was denied effective assistance of counsel because lead counsel had little prior capital case experience and second-chair counsel did not have adequate time to prepare.

The trial court held a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), granted an evidentiary hearing on claims 1 through 5, and 11 and 12, and summarily denied claims 6 through 10. After the evidentiary hearing, the court denied relief on all claims. Gamble now appeals. He raises four issues for our review: (1) whether trial counsel was ineffective for failing to challenge as unconstitutionally vague the aggravator of cold, calculated, and premeditated (CCP); (2) whether trial counsel committed error under Nixon v. Singletary, 758 So.2d 618 (Fla.2000), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), in opening statement; (3) whether trial counsel committed a Nixon/Cronic error in closing argument during the penalty phase; and (4) whether trial counsel was ineffective due to inexperience and inadequate preparation for trial.

Gamble also petitions this Court for a writ of habeas corpus. The habeas petition raises the following four claims: (1) whether the trial court conducted a proper hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and whether appellate counsel was ineffective for failing to raise this claim on direct appeal; (2) whether the death sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (3) whether appellate counsel was ineffective for failing to raise the issue that trial counsel’s decision to sever Gamble’s trial from his eodefendant’s trial prevented the jury from learning of the codefendant’s culpability and disparate sentence; and (4) whether it would be cruel and unusual punishment to execute Gamble as he may be incompetent at the time of his execution.

We address each of Gamble’s claims below.

MOTION FOR POST-CONVICTION RELIEF

CCP Ag'gravator

Gamble first argues that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to renew a challenge to the CCP aggravating circumstance as unconstitutionally vague. .On direct appeal, Gamble challenged the standard jury instruction on the CCP ag-gravator because a year after Gamble’s trial this Court held that the instruction on the CCP aggravator provided insufficient guidance for the jury. See Jackson v. State, 648 So.2d 85 (Fla.1994). We denied relief on Gamble’s claim as procedurally barred because Gamble’s trial counsel failed to appropriately object to the instruction. See Gamble v. State, 659 So.2d 242, 245 (Fla.1995). In Gamble’s motion for post-conviction relief, he argued that trial counsel’s failure to appropriately object to the CCP instruction constituted ineffective assistance of counsel. The trial court summarily denied Gamble’s post-conviction claim and found that, as a matter of law, counsel cannot be ineffective for failing to predict the evolution of case law. Gamble also argued that the CCP instruction' was inapplicable to this case. The trial court denied relief on this' claim as well, finding that the issue had been raised oh direct appeal and ' was procedurally barred.

Gamble argues 'here that trial counsel’s failure to preserve an objection to the CCP aggravating factor constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, Gamble bears the burden of showing that the lawyer’s performance was deficient and that there is a reasonable probability that the deficient performance affected the outcome at trial. See id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Accepting Gamble’s factual allegations as true, we conclude that Gamble’s counsel was not ineffective for failing to object to the CCP aggravating circumstance.

When this Court held that the standard CCP jury instruction was unconstitutionally vague, it also stated that in order to assert such a claim, a specific objection must be made at trial and raised again on appeal. See Jackson, 648 So.2d at 90. This Court later specified that “[t]o preserve, the error for appellate review, it is necessary both to make a specific objection or request an alternative instruction at trial, and to raise the issue on appeal.” Walls v. State, 641 So.2d 381 (Fla.1994). In 1997, this Court reiterated that to preserve a claim that a CCP instruction is unconstitutionally vague, the objection “must attack the instruction itself, either by submitting a limiting instruction or making an objection to the instruction as worded.” Pope v. State, 702 So.2d 221, 223 (Fla.1997).

In this case, the issue was not properly preserved because trial counsel did not specifically object to the instruction as worded, nor did he submit an alternative instruction. Gamble argues, however, that trial counsel’s failure to specifically object amounted to ineffective assistance of counsel since his trial counsel clearly was aware that such a claim could be made, and actually was made, in pretrial motions.

At the time of Gamble’s trial the CCP instruction that was given was a valid instruction. Therefore, even if defense counsel had made the proper objections, the trial court would have acted appropriately in overruling any objection. Defense counsel cannot be deemed ineffective for failing to object to a standard jury instruction that had not been invalidated at the time of the defendant’s sentencing. See Thompson v. State, 759 So.2d 650, 665 (Fla.2000) (“[T]rial counsel’s failure to object to standard jury instructions that have not been invalidated by this Court does not render counsel’s performance deficient.”); see also Downs v. State, 740 So.2d 506, 517 (Fla.1999).

In Downs, the defendant’s post-conviction counsel raised the same claim Gamble raises here. Downs was convicted of first-degree murder in 1977, and his conviction and sentence of death were affirmed on direct appeal in 1980. In his 1999 post-conviction proceeding, Downs contested the jury instruction on the CCP aggravator, arguing that the instruction was unconstitutionally vague. This Court held that the challenge was procedurally barred because trial counsel did not challenge the instructions at trial or on direct appeal, both of which were required. See Dotms, 740 So.2d at 517. As Gamble does in this case, Downs then claimed that the failure to preserve the issue for review amounted to ineffective assistance of counsel. This Court denied Downs’ claim, holding that, “[a]t the time of Downs’ resentencing, the trial court used the standard jury instructions, which had been approved by this Court. Thus, trial counsel cannot be deemed ineffective under the standards set forth in Strickland for not objecting to the constitutional validity of these instructions.” Id. at 517-18 (citations omitted). Gamble was tried in June 1993, a year before this Court struck the CCP jury instruction. Thus, at the time of Gamble’s trial, the standard CCP instruction was still valid. Counsel’s failure to properly object to the instruction did not, therefore, constitute deficient performance.

Furthermore, the application of the CCP aggravator pursuant to the standard set forth in Jackson was considered on direct appeal. This Court found that under the Jackson standard, “[the] facts, which speak for themselves, completely support the trial court’s finding of cold, calculated, and premeditated.” Gamble v. State, 659 So.2d 242, 245 (Fla.1995). Therefore, any claim based on the merits of the application of the CCP aggravator to this case is procedurally barred. See, e.g., Gaskin v. State, 737 So.2d 509, 513 n. 6 (Fla.1999) (holding that an issue is procedurally barred in post-conviction proceedings when it has been raised and considered in a prior proceeding); see also Teffeteller v. Dugger, 734 So.2d 1009, 1027 (Fla.1999) (“[Allegations of ineffective assistance of counsel cannot be used to circumvent the rule that post-conviction proceedings cannot serve as a second appeal.”).

For the foregoing reasons, we affirm the denial of post-conviction relief on this claim.

Nixon/Cronic at Opening Statement

Gamble next claims that the trial court erred in denying relief on his claim that defense counsel conceded guilt to first-degree murder at trial without his knowledge or consent. In his opening statement to the jury, Gamble’s trial counsel argued that at the time of the killing Gamble did not actually-intend to kill his landlord, but that he did “perpetrate an act imminently dangerous to another evincing a depraved mind regardless of human life but without a premeditated design to kill.” During his closing argument, defense counsel told the jury that they “would conclude that Mr. Gamble [was] guilty of second or third degree murder but not first degree murder.” The court below concluded that trial counsel did not concede guilt to the crime charged, and that Gamble agreed to the strategy counsel utilized.

This case is one where the defense was faced with significant evidence of the defendant’s participation in the criminal episode that resulted in the victim’s death. Just after Gamble was arrested, he gave a statement to police, saying that he and his codefendant Mike Love hit the victim with a hammer, and that after the victim went down, Love took the victim’s keys and wallet and gave them to Gamble. Defense counsel moved to suppress the statement, arguing that it was not made voluntarily. However, Gamble refused to testify at the suppression hearing and counsel was forced to withdraw the motion. Thus, the confession was available to the State for use at trial. In addition to the confession, Gamble’s girlfriend testified that Gamble planned to “take out” the victim, and that the night before the murder, Gamble practiced strangulation on her using a cord from the window blind. The State also introduced evidence that Gamble’s clothes were stained with the victim’s blood. .

At trial, defense counsel relied on the theory of second- or third-degree murder. He attempted to argue that Gamble had no intention of being involved in a murder. He argued that Mike Love initiated the killing and it caught Gamble off guard. Defense counsel was willing to admit that, although Gamble had no intent to kill the victim, after the death, he did participate in the theft. When asked at-the evidentia-ry hearing how such a theory could be viable with all the evidence that the murder and robbery were planned ahead of time, trial counsel answered that the evidence, as it was, had to be dealt with. He attempted to show the jury that what had actually occurred is not what Gamble had planned. He argued to the jury that Gamble had been taken by surprise when Love hit the victim with a hammer. He wanted to convince the jury that at the time Gamble and Love approached their landlord, Gamble had no intent to kill him or rob him. Gamble’s trial counsel stated that he chose to make certain concessions in his opening statement because he thought it was important to show .that Gamble was responsible to a certain extent and should be punished to some desgree, but that Gamble did not commit first-degree murder and should not get the death penalty. Thus, the issue to be decided-is whether Gamble’s trial counsel’s performance was deficient when he decided to tell the jury in his opening statement that Gamble was guilty of a lesser included offense.

As we said in Atwater v. State, 788 So.2d 223 (Fla.2001),

Not all decisions of counsel are reviewable under Strickland as constituting ineffective assistance of counsel. “[A]ny specific discretionary or judgmental act or position of trial counsel, whether tactical or strategic, on an inquiry as to effectiveness of counsel” will not be considered under Strickland. McNeal v. State, 409 So.2d 528, 529 (Fla. 5th DCA 1982). Sometimes concession of guilt to some of the prosecutor’s claims is good trial strategy and within defense counsel’s discretion in order to gain credibility and acceptance of the jury.

When faced with the duty of attempting to avoid the consequences of overwhelming evidence of the commission of an atrocious crime, such as a deliberate, considered killing without the remotest legal justification or excuse, it is commonly considered a good trial strategy for a defense counsel to make some halfway concessions to the truth in order to give the appearance of reasonableness and candor and to thereby gain credibility and jury acceptance of some more important position.

Id. at 529.

Atwater, 788 So.2d at 230.

In his opening statement, defense counsel told the jury that although Gamble was involved, he did not kill the victim or intend to kill the victim. Counsel told the jury that Mike Love actually did the killing and took the victim’s wallet and money. Since this rendition of the facts did not contradict the confession Gamble made, it was a viable alternative theory to the State’s position. Gamble’s post-conviction claim offers no real alternative theory for the defense, except to question trial counsel’s decision to present an opening statement. To that alternative, trial counsel responded that he always realizes he has the option of not making an opening statement, but he generally does not waive opening statement because the jury would then hear only the State’s theory and the defendant would have no opportunity to rebut any of the State’s arguments. Thus, it was a strategic decision to make a defense opening statement. “[Sjtrategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000); accord Shere v. State, 742 So.2d 215, 220 (Fla.1999); State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987). The evidence in this case demonstrates that trial counsel considered and rejected alternative courses; his decision to proceed in the manner chosen was a strategic one and does not amount to ineffective assistance.

Moreover, if the defendant consents to counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel. See Nixon v. Singletary, 758 So.2d 618, 623 (Fla.2000). At the post-conviction hearing, trial counsel was asked whether he discussed his trial strategy with Gamble. Counsel stated that either he or co-counsel discussed strategy with Gamble and explained to him that, in their opinion, in order to maintain credibility with the jury they had to argue that Gamble’s conduct amounted to second- or third-degree murder. Defense counsel testified that Gamble agreed to proceed as counsel thought necessary. Gamble also testified at the post-conviction hearing. Although Gamble stated that he did not agree to the exact opening statement, he admitted that it was possible that he discussed with his attorneys the strategy to concede second- or third-degree murder and that “as far as [he] understood it,” it was okay with him.

Gamble now argues that trial counsel’s concessions amounted to a concession of felony murder and that he did not understand this at the time he agreed to the strategy. Gamble also argues that he could not have consented if he did not understand the effect this concession would have on his case. Essentially, Gamble argues that he would not have consented if he had understood that the strategy was flawed. Strickland stresses that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995). Both Gamble and trial counsel had the same understanding of the trial strategy employed. Gamble cannot argue in post-conviction that his consent is now invalid because he did not understand the consequences of his consent if the strategy did not result in an acquittal of first-degree murder.

Gamble testified at the post-conviction hearing that he was aware of counsel’s trial strategy and was “okay with” conceding to second- or third-degree murder. The trial court relied on this testimony and specifically found:

On cross examination, Defendant stated that he had indeed given his consent to the strategy of admitting.to second or third degree murder. • (Hr’g Tr. at 120-21). Defendant, himself, maintained no hopes of going free and was even prepared, had the Office of the State Attorney been willing, to plea to a life, sentence. Id.

Gamble confirmed at the evidentiary hearing that he was aware of and consented to the trial strategy employed by defense counsel. Thus, there is competent, substantial evidence in the post-conviction record to support the trial court’s finding that Gamble agreed to concede certain facts at trial.

Gamble has failed to demonstrate ineffective assistance of counsel based on this claim.

Nixon/Cronic in Closing Arguments at Sentencing

Gamble next argues that the penalty phase concessions made by counsel that contradict guilt phase arguments are entitled to the per se ineffectiveness of counsel analysis of Nixon and Cronic. The trial court held that Nixon does not apply to concessions made in the penalty phase trial since guilt is no longer at issue. The court concluded that “it would have been preposterous for the defense attorney to argue in the penalty phase that pecuniary gain was not proven when only one day before, a unanimous jury had found that the evidence proved beyond a reasonable doubt that the defendant had committed armed robbery of the victim.”

Recently, we held that defense counsel is not ineffective for conceding an aggravating circumstance in a penalty phase trial when the facts of the aggravating circumstance were proven in the guilt phase trial. See Schwab v. State, 814 So.2d 402 (Fla. 2002). In Schwab, the defendant argued that trial counsel was ineffective for stipulating to the aggravator of a murder during a commission of an enumerated felony. However, the defendant had just been convicted of sexual battery of a child and kidnapping. We held that, “[gjiven these concurrent felony convictions, counsel was not ineffective for acknowledging this fact.” Schwab, 814 So.2d at 413; see also Patton v. State, 784 So.2d 380, 390 (Fla.2000) (finding facts counsel conceded were supported by the overwhelming evidence and, even if counsel had denied these facts, there was no reasonable possibility jury would have rendered different verdict).

As in Schwab, the jury in this case had just found Gamble guilty of crimes that served as the factual basis for the concessions made by counsel in the penalty phase trial. Gamble.was found guilty of conspiracy to commit armed robbery, armed robbery, and murder in the first degree. The trial court was correct that “it would have been preposterous” for penalty-phase defense counsel to argue that no facts in the record established pecuniary gain when the jury found, beyond a reasonable doubt, that they did. Nixon addresses a situation where an attorney concedes facts in opening statement that have not yet been adequately tested in an adversarial proceeding. Once the case reaches the penalty phase, certain facts have been tested in an adversarial proceeding and have been established beyond a reasonable doubt. Acknowledging those facts falls within the acceptable range of reasonable professional assistance. Because this is not a case where defense counsel conceded an aggravator that required proof of additional facts not established in the guilt-phase trial, Nixon has no application. Thus, we affirm the denial of post-conviction relief on this claim.

Inexperience or Inadequate Preparation

Finally, Gamble argues that trial counsel was deficient under Strickland because counsel was inexperienced, overburdened, and had inadequate time to prepare his case. Gamble argues that because of these issues, counsel conceded guilt to felony murder and conceded the pecuniary gain aggravator. Gamble argues further that although trial counsel testified that he regularly consulted with the chief assistant public defender on this case, the chief testified in a pretrial hearing that he only had a limited involvement with this case.

Ineffectiveness under Strickland requires more than just a showing that trial counsel was inexperienced or overworked. Gamble must demonstrate with specificity “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2062. Even if a defendant meets that threshold, he or she must also prove that such an error prejudiced the defense. Id.

Gamble claims that trial counsel conceded guilt and conceded an aggravating circumstance, and these concessions amount to ineffectiveness under Strickland. As discussed above, the concessions do not meet the test for ineffective assistance of counsel. In Gamble’s other allegation of ineffective assistance, that trial counsel exaggerated about the chief assistant’s involvement, he attacks trial counsel’s credibility. Even assuming Gamble’s claim is true, he does not demonstrate how this rendered trial counsel’s performance deficient or how it caused prejudice.

The general accusation that trial counsel was inexperienced and overburdened likewise does not demonstrate deficient performance. On this issue, the trial court found that defense counsel had eight years of experience before he began working as a public defender and had done a substantial amount of criminal defense work before representing Gamble. The trial court also found that defense counsel’s experience in trying other serious felonies adequately prepared him to hold the position of lead counsel in this trial. The trial court recounted all that trial counsel did in preparation for Gamble’s trial, including counsel’s travels to other states to interview witnesses, and consultations with other “veteran and highly experienced attorneys in the Public Defender’s Office.”

In addition, trial counsel testified at the evidentiary hearing that there were many attorneys in his office at the time with whom he could discuss ideas and strategy, and that he received advice on his strategy in this case. Thus, the record supports the trial court’s finding that trial counsel utilized the advice of more experienced counsel in formulating his theory of defense. The mere fact that trial counsel was not as experienced as other attorneys does not establish ineffectiveness.

For the reasons discussed above, we find that the trial court properly denied Gamble’s motion for post-conviction relief.

PETITION FOR WRIT OF HABEAS CORPUS

Gamble also raises four claims in his petition for writ of habeas corpus. For the following reasons, we deny habeas relief.

Inquiry Under Nelson v. State

Gamble first alleges that a potential conflict of interest issue required the trial court to make an inquiry pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). He argues that because the court did not make that inquiry, Gamble did not know he had the right to represent himself. He states that had he known he could have represented himself, he might have requested to do so, and this request would have triggered the necessity for a hearing under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Gamble also argues that to the extent this issue was not raised on direct appeal, appellate counsel was ineffective.

When a defendant seeks to discharge court-appointed counsel on the ground of incompetency, the court must determine whether there is reasonable cause to believe appointed counsel is not rendering effective assistance to the defendant. If there is reasonable cause to believe counsel is not rendering effective assistance, the court should discharge counsel and appoint substitute counsel. If the trial court finds that there is not reasonable cause to discharge counsel, the court should advise the defendant that if appointed counsel is discharged without cause, the defendant may be required to proceed to trial without court-appointed representation. See Nelson v. State, 274 So.2d at 258-59. A defendant may waive the right to court-appointed counsel and choose to proceed without counsel as long as the waiver is knowing and intelligent. See Faretta, 422 U.S. 806, 95 S.Ct. 2525. Thus, when a defendant alleges that court-appointed counsel is incompetent, the trial judge must first determine whether counsel is incompetent. If the trial judge determines counsel is not incompetent and the defendant still insists on discharging the attorney, under Nelson, the judge must inform the defendant thát he or she may have to continue without representation. If the defendant decides to continue without representation, the dictates of Faretta are triggered, and the trial court must determine whether the defendant’s decision is knowingly and intelligently made. The combined effect of Nelson and Faretta is to ensure that a defendant who chooses to proceed without counsel after waiving court-appointed counsel has done so knowingly and intelligently. See Knight v. State, 770 So.2d 663, 666 (Fla.2000).

Gamble never requested that his court-appointed counsel be discharged based on counsel’s alleged incompetency. In fact, Gamble did not articulate any complaint with counsel’s representation. Before trial, on two occasions, Gamble’s counsel asked him to sign a waiver of potential conflict based on personnel in the public defender’s office who had personal relationships with personnel in the State Attorney’s office and with codefendant Michael Love’s attorney. Gamble testified that he did not believe there to be any conflict; however, he assumed that there must have been one, otherwise his attorney would not be seeking the waiver. He refused to sign the waiver form. At a pretrial hearing, Gamble’s trial counsel explained to the judge that he drafted a consent and waiver form, that Gamble had reservations about signing it, and that Gamble told counsel that the form caused him to mistrust his attorney and the public defender’s office. Counsel stated that Gamble then requested substitute counsel. Counsel told Gamble that he could make the motion to the judge himself. When Gamble appeared in court to move for new counsel, he told the court that he did not distrust his attorney, that he did not see a problem with any potential conflict, but that he felt there must be a conflict or else counsel would not be seeking a waiver. The judge asked Gamble if he knew of anything his attorney had done that was inappropriate or improper in his representation. Gamble replied that he did not. Gamble told the judge that his request for new counsel was based on his feeling that there was a potential conflict.

The court then questioned Gamble’s defense counsel, codefendant’s counsel Michael Graves and Michelle Morley, the Chief Assistant Public Defender Michael Johnson, and Assistant Public Defender Hugh Lee. Each denied knowing of any improper or inappropriate exchanges of information among the attorneys, or any other reason for ending the Public Defender’s participation in the case. After taking the testimony, the court found that there was no grounds for removal of Gamble’s attorney and there was no evidence to support appointment of new counsel.

In order to establish an ineffectiveness claim premised on an alleged conflict of interest, the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also Quince v. State, 732 So.2d 1059, 1065 (Fla.1999). A lawyer suffers from an actual conflict of interest when he or she “actively represents] conflicting interests.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. The defendant must therefore identify specific evidence in the record showing that his or her interests were compromised in order to demonstrate actual conflict. See Herring v. State, 730 So.2d 1264, 1267 (Fla.1998). A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708.

Because Gamble’s only allegation was that there might be a conflict, and because Gamble was unable to identify any manner in which that suspected conflict affected his counsel’s competency to represent him, the need for a Nelson inquiry was never triggered. See Gaines v. State, 706 So.2d 47, 49 (Fla. 5th DCA 1998) (holding that “[w]hile a conflict of interest may adversely effect [sic] an attorney’s representation, the mere allegation of a conflict does not give rise to the necessity of conducting a Nelson inquiry”). Gamble’s assertion that there was a potential for conflict falls short of demonstrating that a conflict existed, that counsel was incompetent, or that a Nelson hearing was required. In addition, no Faretta inquiry was necessary in this case because Gamble never asked to represent himself. See Teffeteller v. Dugger, 734 So.2d 1009, 1028 (Fla.1999) (holding that a defendant who does not make a request to represent himself is not entitled to a Faretta inquiry).

We also find no merit in Gamble’s assertion that appellate counsel was ineffective for failing to raise this issue on appeal. Although a habeas petition is the proper vehicle by which to raise claims of ineffective assistance of appellate counsel, Gamble’s claim fails to demonstrate that appellate counsel’s performance was deficient. See Suarez v. Dugger, 527 So.2d 190, 192-93 (Fla.1988) (holding that to demonstrate ineffectiveness of appellate counsel, the defendant must show that counsel’s omissions constitute serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance, and that such deficiency undermined confidence in the result on appeal). Because the trial court did not err in failing to make a Nelson or Faretta inquiry, Gamble cannot demonstrate that failure of appellate counsel to raise this issue undermined confidence in the outcome of the appeal.

Validity of Death Sentence

The second issue Gamble raises in his habeas petition is that his sentence is invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). He argues that the State failed to prove at least one aggravator, that the aggravators must be charged in the indictment, that there must be a unanimous jury verdict, and that the jury’s, mere “recommendation” of death fails to establish that the sentence was recommended beyond a reasonable doubt. The State counters that Gamble’s Apprendi claim is procedurally barred, and has been determined invalid on its merits in Bottoson v. Moore, 833 So.2d 693 (Fla.) cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.) cert. denied, 537 U.S. 1067, 123 S.Ct. 657,154 L.Ed.2d 556 (2002).

As we have said in other cases, “Ring does not require either notice of the aggravating factors that the State will present at sentencing or a special verdict form indicating the aggravating factors found by the jury.” Kormondy v. State, 845 So.2d 41, 54 (Fla.) (citing Bottoson and King) cert. denied, — U.S.-, 124 S.Ct. 392, 157 L.Ed.2d 283 (2003). Moreover, in this case the defendant was found guilty by a jury of both first-degree murder and the felony of armed robbery. Thus, there was a statutory aggravator proven to the jury beyond a reasonable doubt. Therefore, Gamble’s sentence is not invalid under Ap-prendi and Ring.

As for Gamble’s claim that Florida’s capital sentencing scheme is unconstitutional, this Court denied a similar claim for relief in Bottoson v. Moore, 833 So.2d 693 (Fla.2002).

Because the Apprendi and Ring issues have already been decided adversely to Gamble’s position, relief on this claim is denied.

Codefendant’s Case

Gamble claims that appellate counsel did not thoroughly argue that his sentence was disproportionate to his code-fendant’s sentence and that he could have made other arguments on appeal. The disproportionality claim was presented on direct appeal and was rejected. See Gamble v. State, 659 So.2d 242, 245 (Fla.1995) (finding that it would be improper to speculate as to what might have occurred had Gamble’s jury been made aware of the posture of the codefendant’s case). A ha-beas petition is not the proper vehicle to argue a variant of an already decided issue. See Jones v. Moore, 794 So.2d 579, 586 (Fla.2001); Thompson v. State, 759 So.2d 650, 657 n. 6 (Fla.2000). Thus, we deny habeas relief on this claim.

Competency to be Executed

As his final issue Gamble claims he is incompetent to be executed. As both parties assert, a claim of competency to be executed is not ripe for review until the governor signs a death warrant. See Fla. R.Crim. P. 3.811(c); Hunter v. State, 817 So.2d 786, 799 (Fla.2002) (finding that the defendant’s claim that his execution would be unconstitutional because he may be incompetent at the time of execution was premature, and the claim could not legally be raised until after a death warrant is issued). No warrant has been signed at this time. Therefore, we deny relief on this claim.

CONCLUSION

For the reasons expressed above, we affirm the trial court’s denial of post-conviction relief, and we deny habeas relief.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J., concurs in result only.

CANTERO, J.,

specially concurring.

I concur in the majority opinion. Moreover, regarding the petitioner’s claim that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I would hold, for the reasons stated in my specially concurring opinion in Windom v. State, Nos. SC01-2706 & SC02-2142, — So.2d -, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively.

WELLS and BELL, JJ., concur.

      . Gamble also argues the trial court should have held an evidentiary hearing on this issue. However, this issue was properly summarily denied because the record conclusively demonstrates Gamble is not entitled to relief. See LeCroy v. Dugger, 727 So.2d 236, 239 (Fla. 1998).

      . Gamble also claims that trial counsel erred in moving to sever his case from the codefen-dant’s. He acknowledges this issue is being presented to preserve his claim should there be a change of law in the future. See Sired v. State, 773 So.2d 34, n. 14 (Fla.2000). Thus, we do not address this issue.


author: PER CURIAM.

text:
    In re APPROVAL OF FORM FOR USE BY CLERKS OF THE CIRCUIT COURTS PURSUANT TO RULE 10-2.1(a) OF THE RULES REGULATING THE FLORIDA BAR.
    No. SC04-994.
    Supreme Court of Florida.
    June 17, 2004.
   PER CURIAM.

In 2004, the Legislature amended section 27.52, Florida Statutes, Determination of Indigence, to provide that the circuit court clerks shall use “a form developed by the Supreme Court” to determine indigen-cy for purposes of appointing the public defender or a private attorney or “any other due process services.” See Ch.2004-265, § 9, at 14, Laws of Fla. Section 27.52 was also amended to require the clerk of court to assist a person who appears before the clerk and requests assistance in completing the form. See id. Chapter 2004-265, Laws of Florida, has an effective date of July 1, 2004. See id. § 109, at 81.

In order to implement this legislation, the Court on its own motion hereby approves and authorizes the publication of an affidavit of indigent status form for use by the clerks of the circuit courts. The Court approves this form pursuant to rule 10-2.1(a) of the Rules Regulating the Florida Bar, which allows nonlawyers to assist in the completion of legal forms approved by this Court. However, only the clerks of the circuit courts are authorized to assist individuals in completion of this form.

Rule 10-2.1(a) requires the individual who assisted in preparation of the form to provide a disclosure to the individual who sought assistance. The Court directs the circuit court clerks to this rule for language to be included in the disclosure. Because local procedures may vary from circuit to circuit, the chief judge of each circuit is authorized to prepare instructions for the use of the approved form. Instructions shall be filed with the clerk of court in the respective circuit and with the clerk of this Court.

The form as approved and authorized for publication is set forth in the appendix to this opinion, effective July 1, 2004. By approval of this form, the Court expresses no opinion as to its correctness or applicability, or on the substance of the new legislation. This opinion and the form discussed herein may be accessed and downloaded from this Court’s website at www. flcourts.org.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

IN THE CIRCUIT/COUNTY COURT OF THE_JUDICIAL CIRCUIT IN AND FOR_COUNTY, FLORIDA STATE OF FLORIDA WIN THE INTEREST OF: CASE NO_ Defendant / Minor Child(ren)/Respondent

AFFIDAVIT OF INDIGENT STATUS

Notice to Applicant: The provision of a public defender/courlnappointed lawyer is not free. A judgment and lien may be imposed against all real or personal property you own to pay for legal and other services provided on your behalf (or on behalf of the person for whom you are making this application). If the $40.00 application fee is not paid to the Clerk of the Court within 7 days, it will be added to any costs that may be assessed against you at the conclusion of this case. If you are a pareni/guardian making this affidavit on behalf of a minor child or tax-dependent adult, the information contained in this affidavit must include your income and assets.

1. I have_dependents. (Do not include children not living at home and do not include working spouses.)

2. I have take-home income of $_paid ( ) weekly ( ) bi-weekly ( ) semi-monthly ( ) monthly (Take-home income equals salary, wages, bonuses, commissions, allowances, overtime, tips and similar payments minus deductions required by law and other comt-ordered payments.)

3. I have $__ in other annual income: (Circle “Yes” and fill in the amount if you have this kind of income or circle “No” if you do not have this kind of income)

Social Security benefits . Yes $- No

Unemployment compensation. Yes $- No

Union funds. Yes $- No

Workers’ compensation . Yes $- No

Retirement/pensions. Yes $- No

Trusts or gifts. Yes $- No

Veterans’ benefits. Yes $- No

Other regular- support from family members/spouse. Yes $- No

Rental income . Yes $- No

Dividends or interest . Yes $- No

Other kinds of income not on the list. Yes $- No

Jf. I have $_in other assets. you do not have this kind of property.) (Circle “Yes” and fill in the value of the propeity or circle “No" if

Cash. . Yes $_ No

Savings. Yes $_ No

Bank accounts). Yes $_ No

Stocks and bonds. Yes $_ No

Certificates of deposit or money market accounts. Yes $_ No

Real estate (your ownership interest) . Yes $_ No

Boat(s) or aircraft (your ownership interest) . Yes $_ No

Motor vehicle(s) (your ownership interest). Yes $_ No

Life Insurance (cash value). Yes $_ No

Other valuable tangible property (like jewelry, coin collections, etc.). Yes $_ No

5. I receive: (Circle “Yes” or “No")

Temp. Assistance for Needy Families-Cash Assistance. Yes No

Poverty-related veterans’ benefits. Yes No

Supplemental Security Income (SSI). Yes No

6. I have been released on bail in the amount of $5,000 or more in this case. Yes No

7. I have a private lawyer in this case. Yes No

8. I expect to get or receive something of value at a later date (Like a tax refund, payments from lawsuits, accrued vacation leave, a bonus, or inheritance). Yes $_ No **(Elect and complete either the notarized oath or the written declaration below pursuant to section 9Z.5&5, Florida Statutes)

NOTARIZED OATH

I,____(full legal name), being first duly sworn, state under oath and under penalty of perjury that the facts stated in the foregoing affidavit are true.

Signature of Applicant for Indigent Status Date Signed

PRINT Full Legal Name_

Address_

Driver’s License # or ID #_

Date of Birth_

Telephone

WRITTEN DECLARATION

Under penalties of perjury, I declare that the facts stated in the foregoing affidavit are true.

Signature of Applicant for Indigent Status Date Signed

PRINT Full Legal Name_

Address_

Driver’s License # or ID #_

Date of Birth_ Telephone

**(ff a clerk or deputy clerk helped you fill out this form, he or she must fill out the blank below.)

This form was completed with the assistance of__, Clerk/Deputy Clerk.

DETERMINATION OF INDIGENT STATUS

Based on the information in this Affidavit, I have determined that the applicant is ( ) Indigent ( ) Not Indigent pursuant to section 27.52, F.S.

_ _20_

,Clerk of Court by Deputy Clerk Date

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