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

text:
    Michael RIVERA, Appellant, v. STATE of Florida, Appellee. Michael Rivera, Petitioner, v. James V. Crosby, etc., et al., Respondents.
    Nos. SC01-2523, SC02-1788.
    Supreme Court of Florida.
    Sept. 11, 2003.
    Rehearing Denied Oct. 31, 2003.

      Martin J. McClain, Special Assistant CCRC, and Suzanne Myers, Assistant CCRC, Office of the Capital Collateral Regional Counsel — South, Fort Lauderdale, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Celia A. Terenzio, Assistant Attorney General, Fort Lauderdale, FL, for Appel-lee/Respondents.
   PER CURIAM.

Michael Rivera, a prisoner under the sentence of death, appeals an order entered by the trial court denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.851. Rivera also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.; art. V, § 3(b)(9), Fla. Const. These cases have been consolidated. For the reasons set out herein, we affirm the trial court’s denial of postconviction relief and deny habeas relief.

PROCEEDINGS TO DATE

At trial, Michael Rivera (Rivera) was convicted of the first-degree murder of eleven-year-old Staci Lynn Jazvac. After the penalty phase, wherein aggravating and mitigating evidence was presented, the jury unanimously recommended a death sentence. See Rivera v. State, 561 So.2d 536, 538 (Fla.1990). The trial court imposed a death sentence, finding the existence of four aggravating circumstances (prior violent felony; murder committed during commission of an enumerated felony; heinous, atrocious, or cruel (HAC); and cold, calculated, and premeditated (CCP)) and one statutory mitigating circumstance (defendant under the influence of extreme mental or emotional disturbance). Id. at 538 n.n.4-5. The trial court did not find any nonstatutory mitigating factors in this case. Id. at 538. On direct appeal, this Court affirmed Rivera’s first-degree murder conviction and death sentence, but found that the record did not support the trial court’s finding of the CCP aggravator. Id. at 540. Although this Court invalidated the CCP aggravator, we concluded: “On this record, we are persuaded that the one mitigating factor weighed against the magnitude of the aggravating factors would render the same result in the trial court below, absent the single invalidated aggravating circumstance.” Id. at 541.

Subsequently, Rivera filed a postconviction motion raising twenty claims. See Rivera v. State, 717 So.2d 477, 480 (Fla.1998). The trial court held an evidentiary hearing on some claims, but summarily denied others. Id. at 479-80. On appeal of the trial court’s denial of relief, this Court affirmed the trial court’s denial of postconviction relief on all but one issue. Id. at 485. This Court remanded the case to the trial court, instructing it to hold an evidentiary hearing on the sole issue of alleged penalty phase ineffective assistance of counsel (IAC), stating: “Considering the volume and extent of [the 21] alleged mitigators in comparison to the limited mitigation actually presented at trial, we agree with Rivera that he warrants an evidentiary hearing on his claim of penalty phase ineffective assistance of counsel.” Id.

On April 26 and 27, 1999, the trial court held an evidentiary hearing regarding the penalty phase IAC claim and subsequently entered an order denying relief. In its order, the trial court found that the penalty phase attorney’s performance was not deficient and that, even assuming some deficiency had been established, in light of the mitigation evidence presented at the postconviction evidentiary hearing, prejudice had not been established. In other words, the defendant was not deprived of a reliable penalty phase proceeding.

Rivera now appeals and claims error in the trial court’s denial of postconviction relief on the penalty phase IAC claim after remand, and also claims the trial court denied him due process in a number of evidentiary rulings at the hearing.

APPEAL

As summarized by this Court in a previous opinion, Rivera argued in his postcon-viction motion that penalty phase counsel should have investigated and presented the following evidence of mitigation:

(1) dissociative disorder; (2) psychosex-ual disorder; (3) history of hospitalization for mental disorders; (4) sexual abuse as a child; (5) expressions of remorse; (6) a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (7) childhood trauma; (8) developmental age; (9) long-term personality disorder; (10) acceptable behavior at trial; (11) reduction in sentence by trial judge in prior case of sexual battery; (12) under influence of drugs at time of offense; (13) non-applicability of the aggravators; (14) drug abuse problem; (15) character testimony from family members; (16) psychotic depression and feelings of rage against himself because of strong pedo-philic urges; (17) no drug or alcohol treatment program; (18) substantial domination by alternate personality; (19) artistic ability; (20) capable of kindness; and (21) family loves him.

Rivera, 717 So.2d at 484-85. Our review of the evidentiary hearing transcript and the record in this case leads us to conclude that many of the issues now raised on appeal may be disposed of without extensive discussion because they are either procedurally barred or without merit. The remaining issues, however, largely concerning trial counsel’s failure to present more detailed penalty phase evidence of Rivera’s drug use, are discussed in turn.

INEFFECTIVE ASSISTANCE OF COUNSEL

In order to prove a claim of ineffective assistance of counsel, a defendant must establish two elements:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. We have held that for a defendant to prevail in an IAC claim, there must be a demonstration that “counsel’s errors deprived [defendant] of a reliable penalty phase proceeding.” Hildwin v. Dugger, 654 So.2d 107, 110 (Fla.1995).

This Court has characterized IAC claims as presenting a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999) (citing Rose v. State, 675 So.2d 567, 571 (Fla.1996)). “The appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the deficiency and prejudice prongs de novo.” Bruno v. State, 807 So.2d 55, 62 (Fla.2001).

This Court has long held that trial counsel has a duty to conduct a reasonable investigation into the defendant’s background for possible mitigating evidence. See Rose v. State, 675 So.2d 567, 571 (Fla.1996). We have explained that “[t]he failure to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so.” Id. (citing Hildwin). The United States Court of Appeals for the Eleventh Circuit has succinctly explained the test to ascertain whether counsel’s failure to investigate and present mitigating evidence was deficient:

First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. If, however, the failure to present the mitigating evidence was an oversight, and not a tactical decision, then a harmlessness review must be made to determine if there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Thus, it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.

Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988) (citation omitted). We have repeatedly applied this same test and do so again today.

HISTORY OF DRUG USE

Rivera alleged that counsel was ineffective during the penalty phase of his trial for failing to investigate and present mitigating evidence of a history of drug use, including Rivera’s drug use around the time of the murder. Rivera argues that his history of drug use would support a finding of the statutory mitigator that at the time of the murder he had a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. After the evidentiary hearing, the trial court rejected this claim and concluded: “Defense counsel ... made a strong effort to present to the jury the mitigating factor that the Defendant was not able to appreciate the criminality of his conduct, presenting evidence of the Defendant’s drug usage and his cognitive decline.”

In support of Rivera’s IAC claim that trial counsel should have put on more evidence of his drug use history, addiction, and dependence, several lay witnesses testified at the evidentiary hearing that Rivera began drug use at an early age, that he experimented with many types of drugs, and that he may have abused drugs. However, the trial court found in its order denying postconviction relief that “the evidence presented by appellate counsel during the evidentiary hearing was practically identical to the evidence presented by [trial counsel] during trial.”

The trial court essentially concluded that the fact that some lay witnesses could have given slightly more detail about Rivera’s history of drug use than the defense expert actually presented in this case was insufficient to meet the Strickland standard that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

We must determine whether the record supports this factual finding. The record reflects that Dr. Patsy Ceros-Livingston, the defense expert who evaluated Rivera for trial, spent some seven and one-half hours interviewing Rivera. She then testified during the penalty phase before the jury and trial court that Rivera began using marijuana, LSD, quaaludes, and beer in 1996 and that as an adult he used “base rock” and marijuana. She opined at trial that there was some indication that Rivera might have problems in the area of drug abuse. As reflected in the direct appeal opinion in this case, Dr. Ceros-Livingston also testified in front of the penalty phase jury that Rivera’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. Rivera, 561 So.2d at 538. The record also reflects that Dr. Ceros-Livingston’s expert opinions about Rivera’s mental health constituted the only expert opinions presented to the penalty phase jury because the State did not offer its own mental health expert to challenge her findings.

The trial court pointed out in its order that at the original penalty phase, defense counsel presented a “plethora” of mitigating evidence similar to that presented at the postconviction hearing, through Dr. Ceros-Livingston’s testimony, and, in addition, the trial court noted, Dr. Ceros-Livingston testified at the evidentiary hearing that even in light of additional information given to her recently, she would not now change her original opinions of Rivera’s mental health offered at trial. See Brown v. State, 755 So.2d 616, 636 (Fla.2000) (finding that trial counsel’s performance was not deficient for failing to give a mental health expert additional information because the expert testified at the evidentiary hearing that the collateral data would not have changed his testimony); Breedlove v. State, 692 So.2d 874, 877 (Fla.1997) (finding that there was not a reasonable probability that the result of the penalty phase would have been different because the psychologists who testified at the penalty phase stated that additional information, while helpful, did not change their initial opinions). We conclude that the record supports the trial court findings that while perhaps not presented in the same detail, defense counsel did present substantial evidence of mitigation at the original penalty phase.

We further find no error in the trial court’s denial of relief as it relates to Rivera’s sub-claim that trial counsel should have put on evidence that he was under the influence of cocaine at the time of the murder. At the evidentiary hearing expert witness Dr. Faye Sultan, a clinical psychologist with a specialty in sexual child abuse and disorder, testified that she thought Rivera was under the influence of cocaine and other drugs at the time of the murder in this case. In addition, expert witness Dr. Milton Burglass, a psychiatrist with a specialty in addictive disorders, testified at the evidentiary hearing that someone who experiences withdrawal symptoms from cocaine would go into what is very much like a depressive state. In Dr. Bur-glass’s opinion, Rivera’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired due to his cocaine use. Dr. Burglass further stated that cocaine use would have increased Rivera’s already deviant sexual behaviors. However, in rejecting this claim, the trial court held “the fact that defense counsel has found experts that can offer more favorable testimony twelve years later does not establish a basis for relief nor does it establish that the presentation was deficient.” As noted above, Dr. Ceros-Livingston testified as to the existence of the “substantially impaired” mitigator at the penalty phase.

This Court has held that counsel’s reasonable mental health investigation and presentation of evidence is not rendered incompetent “merely because the defendant has now secured the testimony of a more favorable mental health expert.” Asay v. State, 769 So.2d 974, 986 (Fla.2000). We note that Dr. Sultan and Dr. Burglass relied heavily upon and concurred largely with Dr. Ceros-Livingston’s initial report and evaluation presented at trial. Not only were both experts’ opinions largely consistent with Dr. Ceros-Livingston’s penalty phase testimony, but it is important to note that Dr. Ceros-Livingston’s testimony at the penalty phase explicitly supported the statutory mitigator that at the time of the murder he had a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. See Rivera, 561 So.2d at 538.

Additionally, the evidentiary hearing record supports the trial court’s finding that the lay witness testimony offered at the evidentiary hearing actually failed to support the defense theory now asserted that Rivera was under the influence of drugs at the time of the murder. None of the witnesses were able to testify as to his condition at the time of the crime. We also agree with the trial court’s denial of this claim because the claim appears to represent a second-guessing and hindsight view of defense counsel’s presentation of penalty phase evidence. See Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) (stating that “[t]he standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result”). The trial court pointed out in its order denying postconviction relief that Rivera has consistently maintained his innocence in this case — a position that largely contradicts Dr. Sultan’s and Dr. Burglass’s expert opinions that he committed the crime but was under the influence of drugs at the time.

CHILDHOOD TRAUMA, DEVELOPMENTAL AGE, AND LACK OF DRUG OR ALCOHOL TREATMENT PROGRAM

At the evidentiary hearing, the defense presented testimony of Rivera’s childhood trauma, developmental age, and his failure to receive drug or alcohol treatment earlier in his life. Rivera argues that trial counsel should have presented evidence of these three aspects of his life during the penalty phase in support of nonstatutory mitigation. First, regarding childhood trauma, Danny Franklin, Andy Ramos, and Dr. Sultan testified at the evidentiary hearing about Rivera’s sometimes tense relationship with his alcohol-using father. Second, Dr. Sultan testified that Rivera’s developmental age may have been younger than his actual age at the time of the murder because she observed him demonstrate impulsivity, emotionality, and a lack of good judgment. Third, Dr. Sultan testified that apparently Rivera never had the benefit of any drug or alcohol treatment.

In its order denying relief, the trial court concluded that prejudice had not been established on this claim, and that “[e]ven if this ‘additional’ information had been available during the penalty phase, there is no reasonable probability that the balancing of the aggravating factors and mitigating factors would have resulted in a life sentence. The aggravating factors would still far outweigh the mitigation presented.” Hence, the trial court concluded that this particular evidence of mitigation was not of such significance as to make a meaningful difference in this case. The trial court noted that although this Court struck the CCP aggravator in this case on direct appeal, several important and weighty aggravators still remain, including prior violent felony, murder committed during commission of an enumerated felony, and HAC.

In Tompkins v. Dugger, 549 So.2d 1370, 1373 (Fla.1989), the defendant claimed that trial counsel was ineffective for failing to present mitigating evidence including his abusive childhood and an addiction to drugs and alcohol. This Court agreed that counsel had been deficient, but agreed with the trial court’s finding that in light of the three aggravators (prior violent felony, murder committed during commission of a sexual battery, and HAC), that “this evidence would not have affected the penalty in light of the crime and the nature of the aggravating circumstances.” Id. Similarly, in Breedlove v. State, 692 So.2d 874, 877 (Fla.1997), the defendant alleged that trial counsel should have elicited more mitigating testimony from lay witnesses. This Court held that even if that testimony had been presented, the aggravators of HAC, commission during a felony, and prior violent felonies would have “overwhelm[ed] potential mitigating factors presented by witnesses.” Id. at 878.

We find no error in the trial court’s conclusion that the remaining aggravators in this case would have overwhelmed the evidence of Rivera’s childhood trauma, developmental age, and his failure to receive drug or alcohol treatment. This issue must also be evaluated in the context of Dr. Ceros-Livingston presenting detailed evidence of defendant’s troubled background. Because this case involves a brutal abduction, rape, and child-murder involving strong aggravators that would not have been significantly impacted by the weight of the proposed nonstatutory mitigation, the trial court concluded that prejudice had not been sufficiently demonstrated under this portion of his IAC claim. In other words, the trial court concluded that Rivera failed to show that the additional evidence regarding his childhood trauma, developmental age, and failure to receive drug or alcohol treatment was sufficient to undermine confidence in the outcome of his original penalty phase proceeding. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We find no error in this conclusion.

TRIAL COURT’S EVIDENTIARY RULINGS

Rivera also challenges five of the trial court’s rulings on evidentiary matters during the postconviction evidentiary hearing.

First, Rivera alleges that the trial court erred when during the direct examination of witness Mark Peters, the trial court did not permit defense counsel to establish Peters’ availability as a penalty phase witness at the time of trial. In this Court’s first 3.851 opinion in this case, we considered Rivera’s IAC claim regarding Peters as a potential alibi witness and his testimony being possibly newly discovered evidence as it related to Brady v. Maryland. See Rivera, 717 So.2d at 482-83. In our previous opinion we stated: “Peters left Orlando after giving his information to both the police and Rivera’s counsel, Edward Malavenda. He testified at the evi-dentiary hearing that he did not tell the police he was leaving and did not remember telling Malavenda he was leaving.” Id. at 482. Thus, the trial court did not abuse its discretion in sustaining the State’s objection to the defense’s question about Peters’ contact with trial counsel in this case, because Peters’ unavailability had already been established and reviewed in this case. Additionally, Rivera has not sufficiently articulated a reason that Peters’ availability should be relitigated in view of our prior treatment of the issue and our limited remand.

Second, Rivera claims that the trial court erred when it refused to consider that two of his prior violent felony convictions had been vacated. Rivera argues that the reversals were relevant to a prejudice analysis because at the penalty phase, the State presented evidence that Rivera was convicted of four separate convictions and, therefore, those convictions affected the weight of the prior conviction aggravator. However, this issue is procedurally barred as this Court already considered it in the first 3.851 opinion. We held: “Despite the reversal of two of Rivera’s prior violent felony convictions, he still has three other prior violent felony convictions which support this aggravator, thus precluding resort to the Supreme Court’s decision in Johnson [v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988)] as a basis for relief.” Rivera, 717 So.2d at 486. Therefore, we find that the trial court did not abuse its discretion in sustaining the State’s objection to the defense’s attempted relitigation of the vacated convictions.

Third, Rivera claims that the trial court erroneously sustained the State’s hearsay objection to witness Peter Rivera’s answer to one of the defense’s questions on direct examination. At the evi-dentiary hearing, the following exchange was made:

[RIVERA’S COUNSEL]: And at some point you know that the other boys stopped going to Bob Donovan as well?
[PETER RIVERA]: Yea. And it pertained to what they had said—
[STATE]: Objection, hearsay.

The record reflects that the trial court’s ruling on the matter was based on relevancy. Therefore, we find no error in the trial court sustaining an objection to the witness’s answer. While the fact that the witness knew that other boys stopped seeing Donovan appears appropriate testimony, as it reflects his personal knowledge of the matter under section 90.604, Florida Statutes (2001), his continued statement on “what they had said” was simply nonre-sponsive to defense counsel’s question. Further, the additional statement was not claimed to prove or disprove a material fact. See § 90.401, Fla. Stat. (2001). Because the statement was nonresponsive to the question and not relevant to the proceedings, we find that the trial court did not abuse its discretion in sustaining the State’s objection.

Fourth, Rivera claims that the trial court erroneously sustained the State’s relevance objection when defense counsel asked witness Miriam Rivera about her own crack cocaine use and what she thought Rivera would have been going through. Upon the State’s objection, the trial court asked defense counsel if she intended to qualify Miriam as an expert on substance abuse and on the effects of cocaine. Counsel answered in the negative, whereupon the trial court sustained the objection.

The record reflects that the State’s objection to the defense’s questioning of Miriam Rivera about her personal drug use was tantamount to an objection based either on speculation or on relevance. Either way, it appears the trial court correctly sustained the objection. First, Miriam’s testimony about what Rivera was experiencing would not have been based on her own personal knowledge. See § 90.604, Fla. Stat. (2001). Second, testimony about Miriam’s own drug abuse would not prove or disprove a material fact as to Rivera’s drug use. See § 90.401, Fla. Stat. (2001). Because the line of questioning regarding Miriam’s own drug use was not relevant and because she was apparently being asked to speculate on another person’s drug use experience, we find that the trial court did not abuse its discretion in sustaining the State’s objection.

Fifth, Rivera claims that the trial court erroneously sustained the State’s speculation objection when defense counsel asked trial counsel: “Are you now saying then that in your opinion just nothing would have mattered in this case as to what you presented during the penalty phase?” After the State made what was tantamount to a speculation objection and the trial court asked Rivera’s counsel to rephrase the question, counsel asked: “In your legal opinion that no matter what you presented to the jury [sic], it would have not helped Michael?” Again, the State raised an objection, stating that the question did not ask for a legal opinion. The trial court sustained the objection. Counsel then took the opportunity to rephrase the question and to ask it properly, when, after the State had twice objected to the wording of the aforementioned questions, counsel asked: “You stated before that a few things about your theory [sic]. Would it have helped you to have presented more evidence? Would it have helped Michael to present more evidence in your opinion?” The State did not object to this question or its answer.

The record reflects that initially, this line of questioning involved the witness’s speculation about what a jury might find, instead of what he, as an attorney, would consider helpful to the defense. We find the trial court did not abuse its discretion in sustaining the objection because trial counsel could not have had personal knowledge of what other evidence would have made a difference to the jury in this case. See § 90.604, Fla. Stat. (2001). However, the record also reflects that defense counsel rephrased the question when inquiring about trial counsel’s legal opinion about the penalty phase evidence and this subsequent questioning cured any alleged prejudice.

HABEAS CORPUS

In the petition for writ of habeas corpus, Rivera alleges that (1) his death sentence violates the Sixth and Fourteenth Amendments of the U.S. Constitution, pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and (2) appellate counsel was ineffective for failing to raise numerous issues on appeal.

First, we address Rivera’s claim that his death sentence should be invalidated due to the United Supreme Court’s decision in Ring. Rivera asserts that Florida’s capital sentencing scheme violates the United States Constitution under the holding of Ring. This Court addressed similar contentions 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), and, while there was no single majority view expressed, we denied relief. We have since rejected numerous similar claims and find that Rivera is likewise not entitled to relief on this claim. See, e.g., Chandler v. State, 848 So.2d 1031 (Fla.2003); Grim v. State, 841 So.2d 455 (Fla.2003); Lawrence v. State, 846 So.2d 440 (Fla.2003); Banks v. State, 842 So.2d 788 (Fla.2003); Lugo v. State, 845 So.2d 74 (Fla.2003); Kormondy v. State, 845 So.2d 41 (Fla.2003); Doorbal v. State, 837 So.2d 940, 963 (Fla.2003), cert. denied, — U.S. —, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Anderson v. State, 841 So.2d 390 (Fla.2003); Conahan v. State, 844 So.2d 629 (Fla.2003); Lucas v. State, 841 So.2d 380 (Fla.2003); Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003); Spencer v. State, 842 So.2d 52 (Fla.2003); Fotopoulos v. State, 838 So.2d 1122, 1136 (Fla.2002); Bruno v. Moore, 838 So.2d 485, 492 (Fla.2002); Chavez v. State, 832 So.2d 730, 767 (Fla.2002), cert. denied, — U.S. —, 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003); Marquard v. State, 850 So.2d 417 (Fla.2002). Additionally, we note that the jury unanimously recommended the death penalty in this case, and the trial court found the aggravating circumstances of previous conviction of a violent felony and commission of the murder in the course of an enumerated felony.

Second, we address Rivera’s claim, involving four sub-claims, that appellate counsel was ineffective. The issue of appellate counsel’s effectiveness is appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). When evaluating an ineffectiveness claim, this Court must determine the following:

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

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). See also Thompson v. State, 759 So.2d 650, 660 (Fla.2000). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069 (citing Knight v. State, 394 So.2d 997 (Fla.1981)). Each of the four sub-claims is discussed in turn.

First, Rivera alleges that appellate counsel was ineffective for failing to appeal the circuit court’s denial of the motion to suppress statements and physical evidence. The record reflects that at the motion to suppress hearing, the State established through its witnesses that police routinely and consistently advised Rivera of his Fifth Amendment rights in this case and that he understood and waived them. In denying Rivera’s suppression motion, the trial court stated:

Well, the Court finds that the matters sought to be suppressed were freely and voluntarily made by the defendant after being advised several times of his rights, and the defendant being aware of his rights, and at no time — not seeking to cut off the interrogation.
In fact, the defendant several times seeked deliberately to prolong the interrogation. So the motion to suppress in its entirety is denied.

Regarding the standard of review for motions to suppress, this Court has held:

[AJppellate courts should continue to accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.

Connor v. State, 803 So.2d 598, 608 (Fla.2001). We reject this claim.

First, the record establishes that the trial court in this case logically found that according to the evidence, Rivera’s Fifth Amendment rights were not violated during the police investigation in this case. Second, in his petition, Rivera has not shown how appellate counsel could have effectively argued the motion to suppress according to the aforementioned standard of review. Third, we find no cognizable fundamental error claim herein. This Court has stated that “appellate counsel cannot be deemed ineffective for failing to raise non-meritorious claims on appeal or claims that do not amount to fundamental error.” Happ v. Moore, 784 So.2d 1091, 1095 (Fla.2001) (citation omitted). Thus, we deny relief on this sub-claim because the record reflects that Rivera’s motion to suppress was without merit and Rivera has not shown that appellate counsel’s failure to appeal the motion was of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance. Further, Rivera has not shown that this alleged deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Second, Rivera claims that appellate counsel should have appealed the trial court’s error in admitting irrelevant, inflammatory, and unfairly prejudicial photographs at trial. Rivera alleges that presentation of the crime scene and the process of identifying the victim’s injuries could have been done with fewer photographs, and certainly without the videotape that was shown to the jury. At trial, defense counsel objected only once during the medical examiner’s testimony about the photos, stating that the witness was not the person who took the photographs. The objection was overruled. However, the record in this case reflects that trial counsel did not object to the photos of the victim’s dead body (which were introduced during the medical examiner’s testimony) as being unfairly prejudicial. This Court has stated: “We have consistently held that appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel’s failure to object.” Johnson v. Singletary, 695 So.2d 263, 266 (Fla.1996). Further, the admission of the pictures did not involve fundamental error because the photographs were used during the medical examiner’s testimony to help explain the nature of the victim’s injuries and the cause of her death. See Larkins v. State, 655 So.2d 95, 98 (Fla.1995) (noting that this Court has upheld the admissibility of photographs where they were relevant to “explain a medical examiner’s testimony, to show the manner of death, the location of wounds, and the identity of the victim”). Because the issue of the allegedly prejudicial photographs was not preserved for appeal, and because the issue did not involve fundamental error, appellate counsel cannot be found ineffective for failing to raise the claim.

Although trial counsel did not preserve a prejudice objection to the photographs in evidence, the record reflects that he did object to a video of the crime scene being shown to the jury. Trial counsel basically objected to the video being cumulative evidence (because of its similarity to the photos), and asked for a Richardson hearing because the State did not provide the defense with the video during discovery. Trial counsel made a motion for mistrial, which was denied. Rivera does not articulate in his petition how or why the videotape footage was unfairly prejudicial and admits that the video footage was similar to the photos in evidence, to which he did not object. This Court has stated: “Most successful appellate counsel agree that from a tactical standpoint it is more advantageous to raise only the strongest points on appeal and that the assertion of every conceivable argument often has the effect of diluting the impact of the stronger points.” Atkins v. Dugger, 541 So.2d 1165, 1167 (Fla.1989). Thus, we conclude counsel’s failure to appeal the admission of the photographs and videotape was not of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance. This Court has held: “The test for admissibility of photographic evidence is relevancy rather than necessity.” Pope v. State, 679 So.2d 710, 713 (Fla.1996). See also Provenzano v. Dugger, 561 So.2d 541, 549 (Fla.1990) (“Photographs must only be excluded when they demonstrate something so shocking that the risk of prejudice outweighs its relevancy.”). Further, even assuming the video footage was not relevant, we conclude that any error was harmless. See Almeida v. State, 748 So.2d 922, 930 (Fla.1999) (finding admission of irrelevant autopsy photo harmless “in light of the minor role the photo played in the State’s case”); Thompson v. State, 619 So.2d 261, 266 (Fla.1993) (finding error in admission of irrelevant autopsy photographs harmless “given the testimony of the eyewitness, the medical examiner, and the appellant himself, and the other photographs admitted into evidence”).

Thus, we conclude that appellate counsel was not ineffective for failing to appeal the unpreserved issue of the admission of photographs in this case. Additionally, we find that appellate counsel’s failure to appeal the videotape issue did not compromise the appellate process to such a degree as to undermine confidence in the correctness of the result.

Third, Rivera claims that appellate counsel was ineffective for failing to appeal the denial of his motion for change of venue. This Court has defined the defendant’s burden to merit a change of venue as follows: “[T]he defendant must show inherent prejudice in the trial setting or facts which permit an inference of actual prejudice from the jury selection process .... ” McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977). The standard of review for a trial court’s failure to grant a motion for change of venue is the abuse of discretion standard. See Davis v. State, 461 So.2d 67, 69 (Fla.1984) (“An application for change of venue is addressed to a trial court’s sound discretion, and a trial court’s ruling will not be reversed absent a palpable abuse of discretion.”). Importantly, Rivera has not claimed that the composition of his actual jury prejudiced him to the point of not receiving a fair trial. See Suarez v. Dugger, 527 So.2d 190, 193 (Fla.1988) (denying relief on habeas claim of ineffective appellate counsel for failure to appeal denial of motion for change of venue because “[t]here is no claim that the jury, as constituted, did not accord Suarez a fair and reliable trial”). Because Rivera fails to plead in the petition how the denial of his change of venue motion established “actual prejudice” and how appellate counsel could have successfully argued that the trial court abused its discretion, we find that Rivera has not shown how appellate counsel’s failure to appeal the denial of the change of venue motion was of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and that it compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Fourth, Rivera claims that appellate counsel was ineffective for failing to appeal the trial court’s denial of his motion for mistrial and the corresponding request to question the jurors regarding improper juror conduct. The record reflects that at two points during the trial, Rivera indicated to his attorney that he heard a juror make a comment to the effect of: “I think he did it.” On both occasions, trial counsel brought the comment to the attention of the trial court. Although no one else in the courtroom could identify which juror made a comment or exactly what was said, the trial judge on both occasions cautioned the jury to not make comments pertaining to the evidence. Trial counsel moved for a mistrial on the basis that a juror had improperly formed an opinion. The trial judge denied the motion, stating that his two cautionary instructions were sufficient and that a mistrial was not appropriate at that point.

This Court has held that the standard of review of a motion for mistrial is the abuse of discretion standard when it stated:

A ruling on a motion for a mistrial is within the sound discretion of the trial court and should be “granted only when it is necessary to ensure that the defendant receives a fair trial.” Gore v. State, 784 So.2d 418, 427 (Fla.2001). The use of a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), is not necessary where “the trial court recognized the error, sustained the objection and gave a curative instruction.” Gore, 784 So.2d at 428. Instead, the correct appellate standard of review is abuse of discretion. See id.

Smithers v. State, 826 So.2d 916, 930 (Fla.2002). We find that the trial court’s cautionary instructions in this situation were reasonable and that he did not abuse his discretion by finding that the alleged juror conduct did not meet the standard of warranting a mistrial. Accordingly, appellate counsel cannot be found ineffective for declining to raise this nonmeiitorious issue on appeal. See Atkins v. Dugger, 541 So.2d 1165, 1167 (Fla.1989) (acknowledging that appellate counsel often makes a tactical decision to only raise the strongest points on appeal).

Based on the foregoing, we affirm the trial court’s denial of 3.851 relief and deny habeas corpus relief.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I fully concur in the majority opinion, 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 facts of the case and our resolution of the issues raised on direct appeal are set out in some detail in our prior opinion. See Rivera v. State, 561 So.2d 536 (Fla.1990).

      . A prior opinion from this Court in this case reflects that evidence on the following issues was introduced at trial: (2) psychosexual disorder; (4) sexual abuse as a child; (6) a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (9) long-term personality disorder; (15) character testimony from family members; and (18) substantial domination by alternate personality. Rivera, 717 So.2d at 484-85.

        The record reflects that evidence of the following, although not discussed in the direct appeal opinion, was in fact admitted during the penalty phase: (3) history of hospitalization for mental disorders — Dr. Ceros-Livingston testified that Rivera was treated at Florida State Hospital in the sex offender program while serving time in prison and Rivera's mother testified that he went to the sex offender program; (14) drug abuse problem— Dr. Ceros-Livingston testified that Rivera had a history of drug usage and possibly had a drug abuse problem; (16) psychotic depression and feelings of rage against himself because of strong pedophilic urges — Dr. Ceros-Livingston testified that Rivera had an identity problem in relationship to his sexual behavior and that his behavior was consistent with someone who was anxious and depressed and who would engage in self-damaging acts; (19) artistic ability — Lisa Keena, Rivera’s former girlfriend, testified that Rivera has artistic abilities and Rivera's mother testified that he is artistic; (20) capable of kindness — Peter Rivera testified that Rivera was very helpful when Peter needed help; (21) family loves him — Rivera's mother "and Rivera's siblings, Elisa, Miriam, and Peter testified that they love him.

      . At the evidentiary hearing, Rivera made no attempt to present evidence of the following issues: (1) dissociative disorder; (5) expressions of remorse; (10) acceptable behavior at trial; and (13) non-applicability of the aggra-vators.

      . The sentencing order in this case was filed on May 1, 1987. In the sentencing order, the trial court stated:
      In summary, the Court finds beyond a reasonable doubt that the State has proven four aggravating statutory circumstances and the defense has proven one mitigating statutory circumstance. In addition, the Court finds no nonstatutory mitigating circumstances from the evidence at the trial or the sentencing procedure. It is therefore the opinion of the Court after weighing the aggravating and mitigating circumstances, that there are sufficient aggravating circumstances to justify the sentence of death.
      We do not evaluate the trial court's sentencing order regarding its consideration of the mitigating evidence presented in this case pursuant to Campbell v. State, 571 So.2d 415 (Fla.1990), because the trial court's order was issued before this Court decided Campbell. This Court has previously held that our decision in Campbell is to only be applied prospectively. See Gilliam v. State, 582 So.2d 610, 612 (Fla.1991). Campbell, of course, now requires trial courts to elaborate in great detail their consideration of the mitigating evidence presented. Hence, at the time of the trial of this case there was no specific mandate that the trial court refer to all the mitigating material referred to during the penalty phase of the proceedings.

      . As noted above, the trial court found the statutory mitigator of under the influence of extreme mental or emotional disturbance.

      . The penalty phase record reflects that Rivera consistently maintained his innocence in this case when he spoke to Dr. Ceros-Living-ston. He told her that on the day of the murder he went to a coin shop in the mall, then went to smoke some crack with his brother, then went to a carnival, later went out to buy more crack, and finally went home. Thus, she was without any information regarding Rivera being under the influence of drugs at the time of the murder. Apparently, none of Rivera's other self-reporting indicated to Dr. Ceros-Livingston that he tended to commit crimes while being under the influence of drugs. In fact, Rivera told Dr. Ceros-Livingston that after he molested another girl, (involving an unrelated prior crime), he later went and smoked marijuana. Further, Dr. Ceros-Livingston related that Rivera would not use marijuana before interacting with women because it causes him to lose his train of thought. In its order denying 3.850 relief, the trial court noted, “The defendant continues to claim his innocence to this day. He has not shown remorse for the crime.”

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution”).

      . At the evidentiary hearing, the following exchange was made:
      [RIVERA’S COUNSEL]: And based on your own use of the cocaine and the crack, what would that tell you or what did that make you think about what Michael was doing?
      [MIRIAM RIVERA]: Well, I myself knew it’s a very addictive substance. And just by the way he was acting, I would tell by my own use and what I had seen from another roommate what he was doing and what he was going through.
      [RIVERA’S COUNSEL]: And what would you think that he was going through?
      [STATE]: Objection.

      [RIVERA’S COUNSEL]: I’m going to go back for a second just a little bit about the drug use. When you were using crack cocaine, were you still working at the time?
      [MIRIAM RIVERA]: Yes.
      [RIVERA'S COUNSEL]: Okay. When were you using crack cocaine in—
      [STATE]: Objection, Your Honor. Same objection, Judge.

      . Richardson v. State, 246 So.2d 771 (Fla.1971). In Richardson, this Court said: “The trial court has discretion to determine whether the [State’s] non-compliance [with its discovery obligation] would result in harm or prejudice to the defendant, but the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.” Id. at 775.

      . In his first cautionary instruction, the trial court indicated that he heard “certain matters coming from the jury,” but he could not tell what was said or who was speaking. He stated: “They were comments pertaining, I think, to at least I assume that they might be pertaining to testimony.” He also described the jury activity as “a back tone” and "some buzzing.”


source: Caselaw Access Project

author: PADOVANO, J. ERVIN, J.,

license: Public Domain

text:
    Costa T. VATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3906.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    Rehearing Denied Nov. 21, 2003.

      Robert Augustus Harper and Michael Robert Ufferman of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

The defendant, Costa T. Vathis, appeals a final order summarily denying his post-conviction motion under rule 8.850 of the Florida Rules of Criminal Procedure. Seven arguments are presented in the appeal but only one merits discussion. The defendant contends that his lawyer should have objected to an emotional outburst in the courtroom. We conclude that this claim is facially insufficient and we therefore affirm the summary denial of the motion.

A jury convicted the defendant of sexual battery on a child under the age of twelve. The child testified for the state during the trial, and when she was finished, her parents allegedly rushed forward in the presence of the jury to escort her back to her seat. The defendant maintains that the parents’ conduct was a form of nonverbal bolstering of the child’s testimony and that he did not receive effective assistance of counsel because his lawyer failed to object or move for a mistrial.

This allegation fails to meet either part of the standard set by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must allege facts that would support a conclusion that his lawyer’s performance was deficient. As the Court explained in Strickland, “This requires [a] showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 687, 104 S.Ct. 2052. We cannot say that the trial lawyer in this case made an error at all, much less an error so serious as to be the equivalent of a deprivation of the constitutional right to counsel.

All we know from the defendant’s allegation is that his lawyer did not object to the emotional outburst. The argument advanced by the defendant proceeds from this simple fact to an assumption that an evidentiary hearing is required. However, the defendant has not alleged that an objection was necessary, or even that it would have been wise. Some lawyers might conclude that the jurors would see the parents’ emotional display for what it is, and that an objection would be out of place.

The defendant contends that the actions or inactions of an attorney cannot be justified as a trial strategy unless the court has made a finding to that effect after an evidentiary hearing, but this argument assumes that the postconviction motion has first identified some act or omission that is below the applicable standard of performance. If the motion fails to establish that a particular act or omission fell below the standard, there is no need for counsel to explain, or for the court to consider whether the act or omission was strategic. The question here is not whether the defendant’s trial counsel could have objected; rather, it is whether a reasonably effective lawyer would have objected.

In addressing this question we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Furthermore, we have been warned that we should “eliminate the distorting effects of hindsight” in evaluating an attorney’s performance. Id. There are many different ways to provide effective assistance of counsel. That is why the Supreme Court said, “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). In this case, the defendant has succeeded only in showing that there was no objection. That is not enough to support a conclusion that his lawyer’s performance was constitutionally defective.

The second part of the test in Strickland requires a showing that the action or inaction of counsel was prejudicial. This means that counsel’s errors must have been “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 687, 104 S.Ct. 2052. In our view, the allegations of the postconviction motion fall short of meeting this standard. The defendant claims that the parents’ outburst was a form of nonverbal “bolstering” of the child’s testimony, but that is not necessarily so. A more logical deduction from these facts is that the parents were trying, in their way, to comfort a child who had been through the ordeal of testifying. In any event, we would be giving very little credit to the jurors to say that the incident made them more likely to believe the child’s account of the crime. Few criminal trials are completely devoid of emotion. We cannot presume that the emotion shown in this one must have been prejudicial.

Even if we were to speculate that the incident caused some jurors to become unduly sympathetic, that would not establish prejudice. As the documents attached to the trial judge’s order reveal, the jurors were instructed that “[the] case must not be decided for or against anyone because [they] feel sorry for anyone or are angry at anyone.” This instruction was given for a purpose, and we must assume that the jurors followed it in deciding their verdict.

For these reasons we conclude that the defendant’s postconviction motion was properly denied without a hearing.

Affirmed.

KAHN J., concurs.

ERVIN, J., concurs and dissents with opinion.

ERVIN, J.,

concurring and dissenting.

I concur -with the majority’s decision to affirm the denial of appellant’s postconviction motion as to all claims except the one addressed in the opinion, i.e., whether the trial court erred in summarily denying the claim for ineffective assistance of counsel regarding defense counsel’s failure to object and move for mistrial at the time the victim’s parents spontaneously rushed to the witness stand and escorted the victim back to her seat without the court’s permission and in full view of the jury. As to that issue, I would reverse and remand for further proceedings, because the trial court’s order and its attachments fail to show conclusively that appellant is not entitled to relief on this claim. Although the court attached documents suggesting that the issue was addressed in a post-verdict motion, it is impossible to discern whether the vague allegation in the motion, “Witness misconduct by the victim’s mother,” is the same as appellant’s allegation, which was made under oath, that the parents rushed to the stand and accompanied their daughter to her seat.

With due respect to the majority, I cannot agree that appellant’s motion is legally insufficient under the rule established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant alleged the following in his motion:

Trial counsel rendered ineffective assistance by failing to object and move for an immediate mistrial at the conclusion of the testimony of the alleged victim.... At the conclusion of the testimony of [the victim], her parents spontaneously rushed to the witness stand without permission from or request by the Court, and escorted her back to the gallery in full view of the jury. Such an emotional display should not have been permitted by the Court.... The spontaneous display of emotion by the parents served solely to garner sympathy for the alleged victim, thereby tainting the subsequent jury verdict due to the consideration of sympathy and the silent bolstering of the testimony of the alleged victim by the Court absent a timely objection and motion for mistrial. But for the omission by counsel, the trial court would have admonished the parents for violating court procedure, immediately instructed the jury to focus only upon the evidence, and/or granted the motion for mistrial.

In assessing these allegations, this court must not only consider the dictates of Strickland, but it must also consider the requirements set forth in Florida Rule of Criminal Procedure 3.850. Here, the trial court issued an order to show cause requesting the state to file a response to appellant’s motion. This action implies that the trial court found the motion facially sufficient to require a response under rule 3.850, which states: “Unless the motion, files, and records of the case conclusively show that the movant is entitled to no relief, the court shall order the state attorney to file an answer[.]”

Although this court must indulge a strong presumption that counsel’s conduct falls within the range of reasonable professional assistance, appellant has sufficiently alleged deficient performance by asserting that counsel failed to object to a highly emotional display in the jury’s presence. The parents’ conduct, if true, could have unduly bolstered the victim’s credibility. Compare People v. Adams, 19 Cal.App.4th 412, 23 Cal.Rptr.2d 512 (1993) (concluding that the presence of a support person at the witness stand while the victim testified affects the presentation of demeanor evidence by changing the dynamics of the testimonial experience); State v. Suka, 70 Haw. 472, 777 P.2d 240 (1989) (holding it was error to permit a counselor to accompany a 15-year-old witness at the witness stand). Moreover, possible prejudice caused by emotional displays in the courtroom is a proper subject of objection and instruction by the court. See, e.g., Beasley v. State, 774 So.2d 649, 669 (Fla.2000); Burns v. State, 609 So.2d 600, 604-05 (Fla.1992).

The trial court denied this claim, in part, for the reason that the lack of objection was a matter of trial tactics, and the majority appears to uphold that ruling when it states that “[s]ome lawyers might conclude that the jurors would see the parents’ emotional display for what it is, and that an objection would be out of place.” Whether an objection was wise under the circumstances is a matter of trial tactics, and this court has said that postconviction motions should not generally be denied based on tactical decisions by counsel in the absence of an evidentiary hearing. See Walker v. State, 678 So.2d 924, 925 (Fla. 1st DCA 1996) (“when a court is confronted with a claim of ineffective assistance, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an eviden-tiary hearing”).

As for the prejudice prong, the majority ignores appellant’s allegations, made under oath, that the emotional display tainted the jury’s verdict due to consideration of sympathy. Although the majority might disagree, as previously stated, nothing attached to the order conclusively shows otherwise. The majority’s reliance on the standard instruction to the jury, admonishing the jurors not to decide the case based on sympathy or anger, is misplaced, because that instruction, given at the conclusion of trial, was too remote to counter the prejudicial effects of the improper emotional display occurring during the state’s case-in-chief.

In that I conclude that appellant’s motion stated a facially sufficient claim for ineffective assistance of counsel on this point, I would reverse and remand for further proceedings.


author: ERVIN, J.

text:
    John VITERITTI, Appellant, v. PEAKLOAD INC. OF AMERICA and Traveler’s Ins. Co., Appellees.
    No. 1D02-2569.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Rehearing Denied Nov. 20, 2003.
    Deirdre J. DiBiaggio of Schroll & DiBi-aggio, P.A., Miami, for Appellant.
    Christopher L. McClure and Christopher J. Lynch of Angones, Hunter, McClure, Lynch, Williams & Garcia, P.A., Miami, for Appellees.
   ERVIN, J.

Claimant, John Viteritti, Jr., seeks reversal of a final workers’ compensation order wherein the judge of compensation claim (JCC) denied his petition to set aside the indemnity settlement order entered on April 12, 1990, and the medical settlement order entered on October 19, 1995, based upon the doctrine of res judi-cata and a finding that claimant was mentally competent at the time he entered into the settlements. We affirm the finding of competency, because there is competent, substantial evidence to support the JCC’s ruling. We reverse the JCC’s application of res judicata, however, because she failed to reach factual questions essential to the determination of whether res judicata should have been applied.

Different JCCs entered the two settlements. JCC A.S. Seppi entered the indemnity settlement without the benefit of a hearing, which claimant had waived. JCC Judith Brechner entered the medical settlement following a telephonic hearing. Claimant was unrepresented during both proceedings.

In March 1996, claimant, in a pro se capacity, sought to have the two settlement orders set aside for the reasons that the amounts were too low, he had been misled about the actual value of the case, and he did not understand that the settlements could not be modified. JCC William Johnson denied that request by order entered September 26, 1996, following an evidentiary hearing.

On October 1,1999, claimant, through an attorney, filed a second petition to set aside the settlements based on the grounds of mutual mistake of fact, overreaching, concealment, and fraud. More specifically, he alleged that during the entire course of negotiations leading up to the settlements he was mentally incompetent and psychologically disabled. He contended that the employer and insurance carrier (hereinafter E/C) knew but withheld this information from the two JCCs who approved the settlements. Moreover, JCC Johnson was also unaware of claimant’s condition when he denied the first request to set aside the settlements.

JCC Mily Rodriguez-Powell considered this second petition to set aside, and admitted evidence concerning claimant’s long history of psychiatric problems. It was shown that claimant, while in the hospital for treatment of his compensable injury, experienced psychiatric problems and was diagnosed with bipolar disorder. He responded well to treatment provided in the hospital by Dr. Jones for his psychiatric condition, but no further treatment was sought or provided by the E/C. Claimant was evaluated by several psychiatrists and psychologists between 1998 and 2000, who diagnosed paranoid schizophrenia, schizo-affective disorder secondary to manic bipolar disorder, and delusional disorder of persecutory type with features of schizo-typal personality disorder. All doctors testified that these types of disorders are the kinds that generally first surface during a person’s teen years, and claimant had, in fact, been treated by a psychiatrist when he was 19 years old. Although none of the doctors testified that claimant was mentally incompetent as a result of these illnesses at the time the settlements were entered, all opined that claimant’s psychiatric condition would have interfered with his judgment and that it had not been in his best interest to represent himself, largely because of the denial of his own mental state that accompanied his psychological condition. Nothing in the record shows that either JCC who entered the settlement orders was aware of claimant’s psychiatric condition, nor is there any evidence that JCC Johnson was aware of it. Although most of this information was not available to anyone until well after the settlements and the first order denying the request to set aside the settlements, the fact remains that claimant had been diagnosed with bipolar disorder and depression by physicians who treated him for his com-pensable back injury, and it does not appear that any JCC was aware of this until the 2000 hearing.

This evidence, coupled with claimant’s allegations that the E/C concealed his psychiatric conditions from the JCCs and/or that there was a mistake of fact regarding his condition when the settlements were entered, raises questions of fact that the JCC should have determined in deciding whether to apply res judicata. As stated in Artigas v. Winn Dixie Stores, Inc., 622 So.2d 1346 (Fla. 1st DCA 1993), “The appropriate application of the doctrine may involve factual determinations, including whether application of the doctrine would result in an injustice. The doctrine should not be applied in cases where it would result in an injustice.” Id. at 1348 (citation omitted). See also deCancino v. E. Airlines, Inc., 283 So.2d 97 (Fla.1973) (directing the JCC to consider the exceptions to res judicata, including possible injustice, when it remanded for reconsideration of the doctrine’s application). And see Pruett-Sharpe Constr. v. Hayden, 654 So.2d 241 (Fla. 1st DCA 1995) (setting aside a settlement, because the JCC was unaware that the claimant had attempted to commit suicide six days before its entry).

AFFIRMED in part, REVERSED in part, and REMANDED.

BARFIELD and ALLEN, JJ., Concur.


author: PER CURIAM.

text:
    James M. WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2835.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2003.
    Rehearing Denied Nov. 20, 2003.
    James Michael Ward, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The circuit court civilly committed petitioner as a sexually violent predator by order entered on July 23, 2002. Petitioner now seeks a belated appeal of the circuit court’s order pursuant to Florida Rule of Appellate Procedure 9.141(c). Because proceedings under the Jimmy Ryce Act are civil in nature, see State v. Mitchell, 848 So.2d 1209 (Fla. 1st DCA 2003), rule 9.141(c) is inapplicable, and this court lacks the authority to grant a belated appeal. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999)(holding that the court was without authority to grant a belated appeal in a civil matter, but noting that petitioner could seek relief in the trial court by motion pursuant to Florida Rule of Civil Procedure 1.540); Jordan v. Singletary, 724 So.2d 1263 (Fla. 1st DCA 1999). Therefore, we deny the petition.

BARFIELD, BENTON and VAN NORTWICK, JJ., concur.


text:
    William Stewart STEELE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1218.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2003.
    Rehearing Denied Nov. 19, 2003.
    William Stewart Steele, Clermont, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

William Stewart Steele appeals from an order denying his tenth challenge to his 1991 conviction for first degree murder and his life sentence. We find his petition for habeas corpus that was denied by the trial court to be successive, and that “enough is enough.” Steele was convicted of first degree murder and received a life sentence in 1991. He appealed and this court affirmed his conviction and sentence in Steele v. State, 609 So.2d 50 (Fla. 5th DCA 1992). Steele then began attacking his conviction and sentence collaterally.

We concluded that Steele’s current appeal was without merit and issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (holding that court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). We find no merit in Steele’s response and hold that his successive petitions constitute an abuse of the judicial system. See, e.g., Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003); Davis v. State, 705 So.2d 133 (Fla. 5th DCA 1998); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995). Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve judicial resources, we prohibit Steele from filing any additional pro se appeals, pleadings, motions and petitions relating to his conviction and sentence in his case and affirmed by this court in Steele v. State, 609 So.2d 50 (Fla. 5th DCA 1992). Any further pleadings filed in this court relating to his judgment and sentence must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Steele regarding Ninth Judicial Circuit Court No. 1990-CF-5038.

AFFIRMED.

SHARP, W., PETERSON, TORPY, JJ„ concur.

      . See Steele v. State, 654 So.2d 1175 (Fla. 5th DCA 1995) (Case No. 5D95-472), all writ jurisdiction. denied, Steele v. Dauksch, 662 So.2d 343 (Fla.1995) (Case No. SC86,060); Steele v. State, (Case No. 5D95-1469); Steele v. State, 671 So.2d 800 (Fla. 5th DCA 1996)(Case No. 5D96-451); Steele v. State, (Case No. 5D96-583); Steele v. Kehoe, 724 So.2d 1192 (Fla. 5th DCA 1998)(Case No. 5D96-2212), approved by 747 So.2d 931 (Fla.1999) (Case No. SC92,950); Steele v. State, (Case No. 5D98-308); Steele v. State, (Case No. 5D00-2268); Steele v. State, 809 So.2d 8 (Fla. 5th DCA 2001), rev. denied, 829 So.2d 919 (Fla.2002).


author: BARFIELD, J.

text:
    David H. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1016.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    Rehearing Denied Nov. 21, 2003.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   BARFIELD, J.

David H. Wilson appeals from sentences imposed upon violation of probation, raising several sentencing errors concerning credit for time served. The appellant correctly asserts that he is entitled to credit for the 51 days served from November 4, 1989, through December 24,1989, in lower court case number 89-409. Accordingly, we remand for correction of the sentence in that case. The remainder of appellant’s arguments are without merit.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BOOTH and ALLEN, JJ., concur.


text:
    Perry Mason FAISON, Petitioner, v. INDEPENDENT LIFE INSURANCE COMPANY, Respondent.
    No. 1D03-2132.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    Rehearing Denied Nov. 21, 2003.
    Perry Mason Faison, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

Petitioner seeks mandamus relief to compel a circuit court judge to rale on a motion he has pending in a civil action. Because petitioner has failed to show that he has noticed the matter for a hearing or otherwise brought the matter to the attention of the judge, we deny the petition. See Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000). As in Smartt, the denial is without prejudice.

BARFIELD, BENTON and VAN NORTWICK, JJ., concur.


text:
    Jimmie M. CARTWRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2836.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    Rehearing Denied Nov. 20, 2003.
    Jimmie M. Cartwright, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The circuit court civilly committed petitioner as a sexually violent predator by order entered on March 27, 2003. Petitioner now seeks a belated appeal of the circuit court’s order pursuant to Florida Rule of Appellate Procedure 9.141(c). Because proceedings under the Jimmy Ryce Act are civil in nature, see State v. Mitchell, 848 So.2d 1209 (Fla. 1st DCA 2003), rule 9.141(c) is inapplicable, and this court lacks the authority to grant a belated appeal. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999)(holding that the court was without authority to grant a belated appeal in a civil matter, but noting that petitioner could seek relief in the trial court by motion pursuant to Florida Rule of Civil Procedure 1.540); Jordan v. Singletary, 724 So.2d 1263 (Fla. 1st DCA 1999). Therefore, we deny the petition.

BARFIELD, BENTON and VAN NORTWICK, JJ., concur.


author: PALMER, J.

text:
    ORANGE COUNTY, Petitioner, v. John LEWIS, Respondent.
    No. 5D02-3592.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2003.
    Rehearing Denied Nov. 20, 2003.

      George L. Dorsett, Orlando, for Petitioner.
    Charlie S. Martin and Johnie A. McLeod of McLeod, McLeod & McLeod, P.A., Apopka, for Respondent.
   PALMER, J.

Orange County has filed a petition seeking certiorari review of a decision entered by the Ninth Judicial Circuit Court, sitting in its appellate capacity. The circuit court’s decision reversed a decision entered by the Orange County Code Enforcement Board which found that John Lewis’ use of his agricultural property to store a mobile home violated the Orange County Code. Concluding that the decision of the circuit court constitutes a departure from the essential requirements of law, we grant the petition and quash the circuit court’s order.

Lewis, as owner of real property in Orange County zoned A-l for agricultural use, was charged with violating the Orange County Code for the “storage of a mobile home in an area zoned agricultural, not a permitted use.” The Code Violation Notice gave Lewis 15 days to correct the violation by removing the mobile home from his property, and warned that noncompliance would subject him to an enforcement action before the Code Enforcement Board as well as a fine. When Lewis failed to respond to or comply with the terms of the Violation Notice, Orange County formally notified him that a hearing would be held on the alleged violation. Prior to the date of the hearing, Lewis’ attorney delivered a written “Notice of Objection to Code Enforcement Board Hearing.” However, neither Lewis nor his attorney attended the violation hearing. Upon review, the Code Enforcement Board unanimously found that Lewis was in violation of three sections of the Orange County Code: 38-3, 38-74 and 38-77.

Section 38-3 of the Code sets forth the general restrictions on land use in the County. Of particular importance to the instant case is the fact that this code provision states that any use of property in a manner other than the use designated by the Code is prohibited unless the owner obtains the necessary land use and/or building permits. Section 38-74 of the Code meanwhile provides that buildings, structures, lands and premises shall be used only in accordance with the uses and conditions contained in the “Use Table” set forth in section 38-77. The Use Table lists the purposes and uses to which a real estate parcel may be put. The portion of the Use Table which pertains to agriculturally zoned land provides:

(Emphasis added). Conditions 4 and 5 referred to in the Use Table as being applicable to A-l properties are found in section 38-79 of the Code. Condition 4 provides that residential mobile home use may be permitted on lots in A-l districts, but “[s]uch mobile home use shall require, before the mobile home is located on the property in question, a permit which shall be issued to the recorded property owner by the zoning department.” Condition 5 lists the situations which allow for temporary placement of mobile homes on some types of zoned land, but all of them require the owner to obtain a permit and a special exception.

Based upon its finding that Lewis’ storage of his mobile home on his agriculturally zoned property was in violation of Orange County’s Code, the Code Enforcement Board ordered Lewis to take remedial action within 30 days and assessed a fine of $100 for each day the violation continued past the compliance date. Lewis timely appealed this ruling to the circuit court.

Upon review, the circuit court reversed the decision of the Code Enforcement Board, concluding that the decision of the Board was arbitrary, unreasonable, and not supported by competent substantial evidence. Specifically, the court ruled that since the Orange County Code did not differentiate instances where the owner is “residing” in a mobile home from instances where the owner is “using” the mobile home for storage, Lewis could not properly be found to be in violation of same:

Since it is difficult to believe that anyone could know, just by reading sections 38-3, 38-74, or 38-77, they may not “store” an uninhabited mobile home on their property, it makes more sense to follow what the ordinance does plainly state, which is that mobile homes are permitted on this land.

Orange County seeks certiorari review of this decision.

The circuit court determined that Lewis could not be found to have violated the terms of the Orange County Code because the Code fails to differentiate between situations where the owner was “residing” in the mobile home and situations where the owner was “using” it for storage. Our review of the matter reveals that in so ruling the circuit court incorrectly construed the Orange County Code and thus departed from the essential requirements of law because this conclusion totally ignored the plain language of conditions 4 and 5 as set forth in section 38-79 of the Code which expressly differentiates between the two. Importantly, both such uses require the owner to obtain a permit. Since Lewis did not obtain a permit or a special exception, his storage of a mobile home on his property violated the terms of the Orange County Code. As such, the Code Enforcement Board properly ordered him to take remedial action.

Petition GRANTED, decision of the Circuit Court QUASHED; and decision of the Code Enforcement Board REINSTATED.

ORFINGER and MONACO, JJ., concur.

      . When the circuit court reviews by certiorari an administrative body's decision the circuit court is required to determine three things: (1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether the administrative body's findings are supported by competent substantial evidence. See Dusseau v. Metropolitan Dade County Bd. of County Comm’rs, 794 So.2d 1270 (Fla.2001); Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla.1995).

      . This court has jurisdiction to review a decision of the circuit court granting or denying a petition for writ of certiorari under Article V, section 4(b)(3), of the Florida Constitution and rule 9.030(b)(2) of the Florida Rules of Appellate Procedure. The standard of review for certiorari in the district court effectively eliminates the substantial competent evidence component and limits the inquiry as follows: (1) whether the circuit court afforded the parties procedural due process; and (2) whether the circuit court applied the correct law (also expressed as whether the essential requirements of the law have been observed). See Haines City Community Dev. v. Heggs, 658 So.2d at 530 (Fla.1995); Education Development Ctr., Inc. v. City of West Palm Beach, Zoning Bd. of Appeals, 541 So.2d 106 (Fla.1989). While a departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error, the district court’s certiorari jurisdiction is significant: "In essence, the supreme court has cautioned the district courts to be prudent and deliberate when deciding to exercise this extraordinary power, but not so wary as to deprive litigants and the public of essential justice.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). See also State v. Miketa, 824 So.2d 970 (Fla. 3d DCA 2002).


text:
    Benjamin WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4208.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    Rehearing Denied Nov. 20, 2003.

      Nancy A. Daniels, Public Defender, and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Benjamin Whitfield appeals his conviction and sentence for manslaughter and aggravated child abuse, raising four issues. We affirm and write only to address an issue of first impression, regarding the trial court’s application of section 90.706, Florida Statutes (2001), to prevent the defense from cross-examining the state’s medical witnesses using an article published in a medical journal.

Whitfield was charged with first-degree murder and aggravated child abuse of four-year-old Kwantrelle Greene, who died as a result of a massive subdural hemato-ma on the right side of his brain sustained while he was in Whitfield’s care on March 20, 1999. One of Whitfield’s theories of defense was that Kwantrelle struck his head in a fall from the kitchen table. Two physicians who treated Kwantrelle testified that this type of injury was inconsistent with a simple fall off a table. During cross-examination of the physicians, the defense attempted to use an article by Dr. John Plunkett entitled “Fatal Pediatric Head Injuries Caused by Short Distance Falls,” in the American Journal of Forensic Medicine and Pathology, which purportedly documents cases of children dying from subdural hematomas after short falls.

The state objected, relying on section 90.706, Florida Statutes (2001), which provides:

Authoritativeness of literature for use in cross-examination. — Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

Dr. Thomas Truman testified that the article was not authoritative, because Dr. Plunkett had merely culled 18 case studies from the Consumer Products Safety Commission database, which were a compilation of only a few isolated incidents and did not take relevant, important factors into consideration. He opined the article is not generally accepted in the medical community, and, although the periodical itself is recognized in the medical community, this did not mean that every article published in it should be considered authoritative or widely accepted. The trial court ruled that because Dr. Truman did not find the article to be authoritative, the defense could establish authoritativeness through other means. Whitfield objected, arguing that all he had to show was that the periodical was authoritative, rather than the article itself, and he had no other witnesses to testify on the matter. The court concluded that the article could not be used to cross-examine Dr. Truman.

The identical issue arose during the testimony of Dr. David Stewart, who testified that while he reads articles in the journal, he would neither concede that Dr. Plunk-ett nor the article were authoritative on the issue. He continued that he agreed with some of the matters Dr. Plunkett wrote in the article, but disagreed with others. As it had with Dr. Truman s testimony, the court excluded cross-examination of Dr. Stewart by means of the article.

The trial court properly precluded the defense from using Dr. Plunkett’s article as a tool for cross-examination of medical experts. Section 90.706 permits the opposing party to cross-examine by the use of published material when the expert witness recognizes such particular writing to be authoritative. Medical and scientific journals are known to often contain controversial research. Although a journal may be reputable, this does not mean a specific article contained in the journal is authoritative in the field. Cf. Brown v. Crane, Phillips, Thomas & Metts, P.A., 585 So.2d 947 (Fla. 2d DCA 1991) (holding that the trial court erred by allowing the defense to cross-examine a medical expert using a chapter from a medical textbook, even though the expert had authored a different chapter in the samé book, because the expert was not familiar with the chapter in question and did not consider the text authoritative; consequently, the defense did not establish the authoritativeness of the author or the text independently). If the expert refuses to concede that the particular writing is authoritative, the party may prove to the court in some other way that the text is authoritative. Because Whitfield failed to meet his burden under section 90.706, his convictions are

AFFIRMED.

ERVIN, ALLEN and LEWIS, JJ., concur.


author: KLEIN, J.

text:
    Tracy McCULLOCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1570.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted for computer pornography and child exploitation under section 847.0135(3), Florida Statutes (2001). He argues that double jeopardy barred a second trial because the trial court erred in granting a mistrial as a result of a hung jury in his first trial. We affirm.

In the first trial, during deliberations, the jury sent the court a note stating that it was hung and asked “how do you determine intent?” After discussion with counsel, the court decided to give no further instructions, and the jury resumed deliberations. Later the jury sent another question inquiring as to whether sending explicit sexual material over the internet would be considered simulated sexual intercourse. The court responded in the negative. After deliberating further, the jury sent another note advising that it was deadlocked. The court then granted a mistrial.

Appellant argues that the court erred in granting the mistrial, relying on the principles explained in C.A.K. v. State, 661 So.2d 365, 367 (Fla. 2d DCA 1995):

The double jeopardy provision of the Florida Constitution requires a trial judge to consider and reject all possible alternatives before declaring a mistrial over the objection of a defendant.... [A] defendant’s silence or his failure to object or protest against an illegal discharge of the jury before a verdict does not constitute a consent and is not a waiver of the constitutional prohibition against a subsequent trial for the same offense if the jury has been improperly discharged.

Wilson v. State, 693 So.2d 616, 618 (Fla. 2d DCA 1997).

Double jeopardy does not bar a second prosecution where a mistrial has been declared because of manifest necessity. Cohens v. Elwell, 600 So.2d 1224, 1225 (Fla. 1st DCA 1992), citing United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824). Where a jury is deadlocked, great deference is given to the trial court’s discretionary determination that a mistrial is necessary. Cohens, citing Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

In arguing that the trial court abused its discretion, appellant mentions that the trial court did not give an Allen charge, but does not specifically argue that the failure to give an Allen charge was error. An Allen charge, although recommended, is not required before a trial court grants a mistrial because of a hung jury. Thomas v. State, 748 So.2d 970, 977 n. 7 (Fla.1999).

Appellant neither requested an Allen charge nor objected when the trial court concluded that the jury would be unable to reach a verdict. The failure to do so does not necessarily preclude appellant from raising the issue of double jeopardy on appeal, but we mention it because the deference accorded the trial court’s discretion on this specific issue is rarely, if ever, found to have been abused. Because we know that a hung jury is not necessarily a bad thing for a defendant in a criminal case, a defendant who urges the trial court to let the jury deliberate further will have a more credible appellate argument on double jeopardy than the defendant who acquiesces.

In the present case we find no abuse of discretion and would have reached the same result even if appellant had objected. We have considered the other issues raised by appellant and find them to be without merit.

Affirmed.

POLEN and STEVENSON, JJ., concur.

      . Under Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) the trial court essentially tells the jury that they should listen to each other's positions and if they can come to a decision they should, but if they can't it is permissible for them to be deadlocked. The Allen charge is codified in Fla. Std. Jury Instr. (Crim.) 3.06. Davis v. State, 832 So.2d 239 (Fla. 5th DCA 2002).


text:
    Paul K. GUNDOTRA, Appellant, v. Rita GUNDOTRA, Appellee.
    No. 4D02-2840.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Rehearing Denied Dec. 8, 2003.
    Paul K. Gundotra, Coral Springs, pro se.
    Michael H. Gora of Hodgson Russ LLP, Boca Raton, for appellee.
   PER CURIAM.

Affirmed, but remanded to correct a mathematical error in the judgment conceded by appellee. Appellant should be entitled to retain his property awarded to the wife by paying a total of $82,200.00.

GUNTHER, WARNER and MAY, JJ., concur.


text:
    Lawrence E. FLOWERS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3850.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Rehearing Denied Dec. 2, 2003.
    Lawrence E. Flowers, Sr., Avon Park, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order striking Appellant’s Rule 3.853 motion is affirmed, in light of the trial court’s March 2002, order prohibiting future filings as permitted by State v. Spencer, 751 So.2d 47 (Fla.1999). This court’s affirmance is without prejudice to Appellant timely filing the motion through counsel. Amendments to Florida Rule of Criminal Procedure, 857 So.2d 190, 2003 WL 22243950 (Fla. Sept.30, 2003).

FARMER, C.J., STONE and GROSS, JJ., concur.


text:
    Vincent DRAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2801.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Rehearing Denied Dec. 4, 2003.
    Carey Haughwout, Public Defender, and James W. Melntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Lane v. State, 861 So.2d 451 (Fla. 4th DCA Sept.17, 2003).

FARMER, C.J., GROSS and TAYLOR, JJ., concur.