author: PER CURIAM. PARIENTE, J., CANTERO, J.,

text:
    AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE AND FLORIDA RULES OF APPELLATE PROCEDURE.
    No. SC03-685.
    Supreme Court of Florida.
    May 20, 2004.
    Miles A. McGrane III, President, Coral Gables, FL, Kelly Overstreet Johnson, President-elect, Tallahassee, FL, and John F. Harkness, Jr., Tallahassee, FL, on behalf of The Florida Bar; Honorable Olin Wilson Shinholser, Chair, Criminal Procedure Rules Committee, Sebring, FL; Katherine Eastmoore Giddings, Chair, Appellate Court Rules Committee, of Katz, Kutter, Haigler, Tallahassee, FL, for Petitioner.
    James T. Miller, Chair, Amicus Curiae Committee, Jacksonville, FL, and David Fussell, President, Orlando, FL, on behalf of the Florida Association of Criminal Defense Lawyers (FACDL); William D. Mat-thewman of Seiden, Alder & Matthewman, Miami, FL; Nancy Daniels, Public Defender, and David A. Davis, Assistant Pub-lie Defender, Second Judicial Circuit, Tallahassee, FL, on behalf of the Florida Public Defender Association; Michael Messer, Executive Director, Miami, FL, on behalf of Association for Retarded Citizens, South Florida; Martin J. McClain and Linda M. McDermott of McClain & McDermott, Tallahassee, FL, John P. Abatecola, Chief Assistant CCRC, Capital Collateral Counsel-Northern Region, Tallahassee, FL, Terri L. Backhus of Backhus & Izakowitz, P.A., Tampa, FL, and Todd G. Scher of Law Offices of Todd G. Scher, P.L., Miami, FL, attorneys representing death-sentenced prisoners in post-conviction proceedings; Stephen Krosschell of Goodman & Nekvasil, P.A., Clearwater, FL, a member of the Criminal Rules Subcommittee of the Appellate Rules Committee; Arthur I. Jacobs, General Counsel, Florida Prosecuting Attorneys Association, Fernandina Beach, FL, and Penny Brill, Assistant State Attorney, Eleventh Judicial Circuit, Miami, FL, on behalf of the Florida Prosecuting Attorneys Association (FPAA); Andrew Stanton, Assistant Public Defender, and Edith Georgi, Coordinator, Capital Litigation Unit, Miami, FL, on behalf of the Capital Litigation Unit of the Office of the Public Defender, Eleventh Judicial Circuit; Charles J. Crist, Jr., Attorney General, Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, FL, and Candance M. Sabella, Assistant Attorney General, Chief — Capital Appeals, Tampa, FL, on behalf of the Attorney General; Neal A. Dupree, Capital Collateral Regional Counsel — Southern Region, Rachel L. Day, Assistant CCRC-South, and William M. Hennis III, Assistant CCRC-South, Fort Lauderdale, FL, on behalf of the Capital Collateral Regional Counsel — South; John W. Jennings, Capital Collateral Regional Counsel — Middle Region, Peter Cannon, Assistant CCRC and Eric Pinkard, Assistant CCRC, Tampa, FL, on behalf of Office of the Capital Collateral Regional Counsel — Middle Region; Siobhan Helene Shea, Palm Beach, FL; Harvey J. Sepler, Assistant Public Defender, Chair, Criminal Rules Subcommittee of the Appellate Court Rules Committee of The Florida Bar, Miami, FL; Honorable O.H. Eaton, Jr., Chair, Criminal Court Steering Committee, Sanford, FL; Jeff Kottkamp, Chair, Committee on Judiciary, Florida House of Representatives, Cape Coral, FL, and David De La Paz, Staff Director on behalf of Gustavo Barreiro, Chair, Committee on Public Safety & Crime Prevention, Responding with comments.
   PER CURIAM.

In 2001, the Legislature created section 921.137, Florida Statutes, which bars the imposition of death sentences on mentally retarded persons and establishes a method for determining which capital defendants are mentally retarded. The Criminal Procedure Rules Committee thereafter proposed new Rule of Criminal Procedure 3.203 to provide the necessary procedure to raise mental retardation as a bar to a death sentence under section 921.137.

In 2002, the United States Supreme Court decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which the Court held that the execution of the mentally-retarded constitutes excessive punishment under the Eighth Amendment and that the individual states are free to establish their own methods for determining which offenders are mentally retarded. Atkins was not decided at the time the rules committee proposed new rule 3.203. This Court thus deferred consideration of the committee’s proposal and stated that it would consider the proposal together with several eases pending in this Court that raise claims '- based on section 921.137 or Atkins. Amendments to Fla. Rules of Crim. Pro., 842 So.2d 110 (Fla.2003).

On its own motion, this Court proposed Florida Rule of Criminal Procedure 3.203 (Defendant’s/Prisoner’s Mental Retardation as a Bar to Execution) and Florida Rule of Appellate Procedure 9.142(c) (Appeal of Determination of Mental Retardation Claim). Rule 3.203, as proposed, was divided into three categories. The first category was applicable to mental retardation claims that arose in all trials that began after the effective date of the rule— future cases. The second category applied to all trials that began on or before the effective date of the rule but where a sentence had not been imposed and affirmed on direct appeal on or before the effective date of the rule. — nonfinal cases. The final category applied to all trials in which a prisoner had been convicted of first-degree murder and sentenced to death and where the conviction and sentence had been affirmed on direct appeal on or before the effective date of the rule — final cases.' Rule 9.142(c) was proposed as an addition to Florida Rule of Appellate Procedure 9.142 to provide the procedure applicable to an appeal by the State, a defendant, or a prisoner of the trial court’s mental retardation determination. The proposed rules were published for comment in the May 15, 2003, edition of The Florida Bar News.

In response to the proposed rules, this Court received comments. Circuit Judge O.H. Eaton and the Criminal Court Steering Committee submitted proposed rules as a substitute for the rules proposed by this Court. We accept these comments and suggestions as being well advised and now adopt a rule which is primarily in the form adopted by Judge Eaton and the committee. We appreciate their work with respect to this issue.

In order that there may be time for the newly drafted rule to be disseminated and for there to be additional comments in response to this rule, we adopt Florida Rule of Criminal Procedure 3.203, effective October 1, 2004, as set forth in the appendix to this opinion. Any additional comments concerning the rule should be submitted to this Court no later than August 10, 2004.

To conform to the Florida Rules of Appellate Procedure, we also amend rule 9.140(c), relating to the State’s right to appeal a trial court’s finding of mental retardation, as set forth in the appendix to this opinion. New language added to rule 9.140(c) is indicated by underscoring; deletions are indicated by struck-through type.

It is so ordered.

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

PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.

CANTERO, J., concurs with an opinion, in which ANSTEAD, C.J., and PARIENTE, J., concur.

PARIENTE, J.,

concurring.

I concur in the majority opinion, and write separately to explain why, from my perspective, this Court has omitted a burden of proof from the rule we adopt today. Regarding the burden of proof, I share the concerns about the constitutionality of the “clear and convincing” standard contained in the comments of the Criminal Court Steering Committee on the proposed rule. In recommending a “preponderance” standard, the Committee expressed doubts that the statutory “clear and convincing” burden of proof is constitutional under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). In Atkins, which was decided after the enactment of section 921.137, Florida Statutes, the United States Supreme Court held that the Eighth Amendment bars the execution of mentally retarded defendants otherwise eligible for the death penalty. Although in Atkins the Court did not discuss the proper burden of proof, in Cooper the Court held that a state law requiring a defendant to establish incompetence to stand trial by clear and convincing evidence was unconstitutional.

Because of concerns about whether the burden of proof is a substantive or procedural requirement and further concerns over whether a “preponderance of evidence” burden of proof may be constitutionally required under Atkins and Cooper, it is preferable to omit the burden of proof enunciated by the legislature from our rule of procedure regarding mental retardation. In exercising our rulemaking authority, we have on several occasions declined to adopt proposed rule amendments because of doubts over their constitutionality. See In re Amendments to the Florida Evidence Code, 782 So.2d 339, 341-42 (Fla.2000) (citing “grave concerns about the constitutionality” of an amendment to the evidence code); Amendments to the Florida Rules of Criminal Procedure, 794 So.2d 457, 457 (Fla.2000) (declining to adopt rule that would have removed requirement of attesting witnesses to out-of-court waiver of counsel “[sjince all waivers of counsel must be voluntary”). Our omission of a burden of proof from the rule we adopt today leaves the trial courts obligated to either apply the clear and convincing evidence standard of section 921.137(4), or find that standard unconstitutional in a particular case. The issue will then come to us in the form of an actual case or controversy rather than a nonadversarial rules proceeding.

I also write to suggest that the Legislature amend the burden of proof set forth in section 921.137 in light of Atkins. When the Legislature enacted section 921.137 in 2001, the United States Supreme Court had not yet recognized a constitutional prohibition on imposing the death penalty on mentally retarded individuals. Atkins made the prohibition a matter of constitutional law. Further, the clear majority of States with statutes concerning mental retardation as a bar to the death penalty require that the defendant establish retardation by a preponderance of the evidence. See Ex parte Briseno, 135 So.2d 1, 9, 2004 WL 244826, at *5 (Tex.Crim.App. Feb. 11, 2004) (noting that the preponderance standard has been adopted in twelve of the nineteen states with statutes on the subject). In Briseno, the Texas Court of Criminal Appeals, relying in part on proposed legislation, recently adopted the “preponderance” standard for use in postconviction challenges to death sentences. See id.

Amendment of the burden of proof could eliminate potentially lengthy litigation on the constitutionality of the statutory standard and the delay in capital cases in which mental retardation is an issue. For all these reasons, I suggest that the Legislature reconsider the burden of proof requirements of section 921.137(4) in light of Atkins, Cooperi and the. choice made by the majority of states that have addressed the issue.

ANSTEAD, C.J., concurs.

CANTERO, J.,

concurring.

I fully concur in the majority opinion. I write only to explain why the rule, as adopted, provides for the determination of mental retardation to be made, in most cases, before trial. As explained below, allowing the determination to be made before trial promotes the most efficient use of increasingly scarce judicial and legal resources.

As we have repeatedly recognized, “death is different.” See, e.g., Walker v. State, 707 So.2d 300, 319 (Fla.1997); Crump v. State, 654 So.2d 545, 547 (Fla.1995). The dynamics of a capital case and those of a noncapital case are different not just in degree, but in kind. A death penalty ease, involving the ultimate penalty, invokes a host of pre- and post-trial procedures, as well as requirements for court and counsel, that do not exist in any other context. To ensure that those procedures, which can be time-consuming and expensive, are invoked only when death is a possible sentence, the defendant, the State, and the judicial system all should desire a prompt determination of mental retardation. The invocation of capital case procedures in a case in which, ultimately, the defendant cannot be sentenced to death wastes time and judicial resources. Especially during these tight budget times for the judiciary and the entire state, we should implement procedures that consider not only the defendant’s constitutional rights but also, when consistent with those rights, the most efficient use of judicial and legal resources.

A pretrial determination of mental retardation would conserve vast judicial and legal resources, at least when the defendant is ultimately found to be mentally retarded. If a defendant is determined to be mentally retarded and therefore not subject to a death sentence, the following differences apply:

* a plea agreement is more likely;
* the presiding judge need not meet the requirements for the trial of death penalty cases, see Fla. R. Jud. Admin. 2.050;
* defense attorneys need not meet the minimum standards for counsel in death penalty cases, see Fla. R.Crim. P. 3.112;
* neither the State nor the defense needs to assign separate penalty phase counsel;
* neither the State nor the defense needs to hire investigators and expert witnesses to prepare for the penalty phase;
* neither the State nor the defense needs to interview and possibly transport penalty phase witnesses from distant locations;
* the jury does not have to be death-qualified; and
* no penalty phase jury trial must be conducted.

Further, a pretrial determination avoids a potentially innocent mentally retarded defendant’s compulsion to enter a plea agreement to avoid the death penalty.

Some of the procedures listed above can be time-consuming and expensive. Hiring an investigator to review the defendant’s background, for example, may involve traveling to other states to interview family members and childhood friends. Hiring mental health experts such as psychiatrists and psychologists, a frequent occurrence in death penalty cases, is also costly. These costs can be reduced or even eliminated if, early in the case, a defendant is determined to be mentally retarded.

The idea of determining mental retardation before trial is by no means novel. In fact, it is the preferred procedure for determining a defendant’s mental retardation in a murder case. Of the twenty-five jurisdictions that have adopted procedures for determining mental retardation in capital cases, eleven require or allow the determination to be made before trial. Another five do not address the timing, therefore allowing it to be made pretrial. Only three jurisdictions (including Florida) require the determination to be made after the penalty phase.

For these reasons, judicial efficiency militates in favor of a pretrial determination of mental retardation.

ANSTEAD, C.J., and PARIENTE, J., concur.

APPENDIX

Rule 3.203. DEFENDANT’S MENTAL RETARDATION AS A BAR TO IMPOSITION OF THE DEATH PENALTY

(a) Scope. This rule applies in all first-degree murder cases in which the state attorney has not waived the death penalty ■ on the record and the defendant’s mental retardation becomes an issue.

(b) Definition of Mental Retardation. As used in this rule, the term “mental retardation” means significantly subaver-age general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services in rule 65B-4.032 of the Florida Administrative Code. The term “adaptive behavior,” for the purpose of this rule, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

(c)Motion for Determination of Mental Retardation as a Bar to Execution: Contents; Procedures.

(1) A defendant who intends to raise mental retardation as a bar to execution shall file a written motion to establish mental retardation as a bar to execution with the court. .

(2) The motion shall state that the defendant is mentally retarded and, if the defendant has been tested, evaluated,, or examined by one or more experts, the names and addresses of the experts. Copies of reports containing the opinions of any experts named in the motion shall be attached to the motion. The court ‘shall appoint an expert chosen by the state attorney if the state attorney so requests. The expert shall promptly test, evaluate, or examine the defendant and shall submit a written report of any findings to the parties and the court.

(3) If the defendant has not been tested, evaluated, or examined by one or more experts, the motion shall state that fact and the court shall appoint two experts who shall promptly test, evaluate, or examine the defendant and shall submit a written report of any findings to the parties and the court.

(4) Attorneys for the state and defendant may be present at the examinations conducted by court-appointed experts.

(5) If the defendant refuses to be examined or fully cooperate with the court appointed experts or the state’s expert, the court may, in the court’s discretion:

(A) order the defense to allow the court-appointed experts to review all mental health reports, tests, and evaluations by the defendant’s expert;

(B) prohibit the defense experts from testifying concerning any tests, evaluations, or examinations of the defendant regarding the defendant’s mental retardation; or

(C) order such relief as the court determines to be appropriate.

(d) Time for filing Motion for Determination of Mental Retardation as a Bar to Execution.

(1)Cases in which trial has not commenced. In all cases in which trial has not commenced on October 1, 2004, the motion for a determination of mental retardation as a bar to execution shall be filed not later than 90 days prior to trial, or if the trial is set earlier than 90 days from October 1, 2004, at such time as is ordered by the court.

(2) Cases in which trial has commenced on October 1, 2004. In all cases in which trial has commenced on October 1, 2004; the motion shall be filed and determined before a sentence is imposed.

(3) Cases in which a direct appeal is pending. If an appeal of a circuit court order imposing a judgment of conviction and sentence of death is pending on October 1, 2004, the defendant may file a motion to relinquish jurisdiction for a mental retardation determination within 60 days of October 1, 2004. The motion shall contain a copy of the motion to establish mental retardation as a bar to execution and shall contain a certificate by appellate counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is mentally retarded.

(4) Cases in which the direct appeal is final; contents of motion; conformity with Florida Rule of Criminal Procedure 3.851.

(A) A motion for postconviction relief seeking a determination of mental retardation made by counsel for the prisoner shall contain a certification by counsel that the motion is made in good faith and on reasonable grounds to believe that the prisoner is mentally retarded.

(B) If a death sentenced prisoner has not filed a motion for postconviction relief on or before October 1, 2004, the prisoner shall raise a claim under this rule in an initial rule 3.851 motion for postcon-viction relief.

(C) If a death sentenced prisoner has filed a motion for postconviction relief and that motion has not been ruled on by the circuit court on or before October 1, 2004, the prisoner may amend the motion to include a claim under this rule within 60 days after October 1, 2004.

(D) If a death-sentenced prisoner has filed a motion for postconviction relief and that motion has been ruled on by the circuit court but the prisoner has not filed an appeal on or before October 1, 2004, the prisoner shall file a supplemental motion in the circuit court raising the mental retardation claim. The prisoner’s time for filing an appeal of the ruled-upon postconviction motion is stayed until the circuit court rules upon the mental retardation claim.

(E) If a death sentenced prisoner has filed a motion for postconviction relief and that motion has been ruled on by the circuit court and an appear is pending on or before October -1, 2004, the prisoner may file a motion in the supreme court to relinquish jurisdiction to the circuit court for a determination of mental retardation within 60 days from October 1, 2004. The motion to relinquish jurisdiction shall contain a copy of the motion to establish mental retardation as a bar to execution, which shall be raised as a successive rule 3.851 motion, and shall contain a certificate by appellate counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is mentally retarded.

(F) If a death sentenced prisoner has filed a motion for postconviction relief, the motion has been ruled on by the circuit court, and that ruling is final on or before October 1, 2004, the prisoner may raise a claim under this rule in a successive rule 3.851 motion filed within 60 days after October 1, 2004. The circuit court may reduce this time period and expedite the proceedings if the circuit court determines that such action is necessary.

(e)Hearing on Motion to Determine Mental Retardation. The circuit court shall conduct an evidentiary hearing on the motion for a determination of mental retardation. At the hearing,- the court shall consider the findings of the experts and all other evidence on the issue of whether the defendant is mentally retarded. The court shall enter a written order prohibiting the imposition of the death penalty and setting forth the court’s specific findings in support of the court’s determination if the court finds that the defendant is mentally retarded as defined in subdivision (b) of this rule. The court shall stay the proceedings for 30 days from the date of rendition of the order prohibiting the death penalty or, if a motion for rehearing is filed, for 30 days following the rendition of the order denying rehearing, to allow the state the opportunity to appeal the order. If the court determines that the defendant has not established mental retardation, the court shall enter a written order setting forth the court’s specific findings in support of the court’s determination.

(f) Waiver. A claim authorized under this rule is waived if not filed in accord with the time requirements for filing set out in this rule, unless good cause is shown for the failure to comply with the time requirements. , .

(g) Finding of Mental Retardation; Order to Proceed. If, after the evidence presented, the court is of the opinion that the defendant is mentally retarded, the court shall order the case to proceed without the death penalty as an issue.

(h) Appeal. An appeal may be taken by the state if the court enters an order finding that the defendant is mentally retarded, which will stay further proceedings in the trial court until a decision on appeal is rendered. Appeals are to proceed according to Florida Rule of Appellate Procedure 9.140(c).

(i) Motion to Establish Mental Retardation as a Bar to Execution; Stay of Execution. The filing of a motion to establish mental retardation as a bar to execution shall not stay further proceedings without a separate order staying execution.

Rule 9.140 Appeal Proceedings in Criminal Cases

[No changes to subdivisions (a)-(b).]

(c) Appeals by the State.

(1) Appeals Permitted. The state may appeal an order

[No changes to subdivisions (A)(H).]

(I) finding a defendant mentally retarded under Florida Rule of Criminal Procedure 3.203;

(X J) granting relief under Florida Rule of Criminal Procedure 3.853;

(J K) ruling on a question of law if a convicted defendant appeals the judgment of conviction;

(K L) imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines;

(EM) imposing a sentence outside the range recommended by the sentencing guidelines;

(IN) denying restitution; or

(N 0) as otherwise provided by general law for final orders.

[No changes to subdivisions (c)(2)-(3) or (d)-(i).]

      . Section 921.137, Florida Statutes (2003), provides:
      (1) As used in this section, the term "mental retardation” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term "significantly subaverage general intellectual functioning,” for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Department of Children and Family Services. The term "adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community: The Department of Children and Family Services shall adopt rules to specify the standardized intelligence tests as provided in this subsection.
      (2) A sentence of death may not be imposed upon a defendant convicted of a capital felony if it is determined in accordance with this section that the defendant has mental retardation.
      (3) A defendant charged with a capital felony who intends to raise mental retardation as a bar to the death sentence must give notice of such intention in accordance with the rules of court governing notices of intent to offer expert testimony regarding mental health mitigation during the penalty phase of a capital trial.
      (4) After a defendant who has given notice of his or her intention to raise mental retardation as a bar to the death sentence is convicted of a capital felony and an advisory jury has returned a recommended sentence of death, the defendant may file a motion to determine whether the defendant has mental retardation. Upon receipt of the motion, the court shall appoint two experts in the field of mental retardation who shall evaluate the defendant and report their findings to the court and all interested parties prior to the final sentencing hearing. Notwithstanding s. 921.141 or s. 921.142, the final sentencing hearing shall be held without a jury. At the final sfen-tencing hearing, the court shall consider the findings of the court-appointed experts and consider the findings of any other expert which is offered by the state or the defense on the issue of whether the defendant has mental retardation. If the court finds, by clear and convincing evidence, that the defendant has mental retardation as defined in subsection (1), the court may not impose a sentence of death and shall enter a written order that sets forth with specificity the findings in support of the determination.
      (5) If a defendant waives his or her right to a recommended sentence by an advisory jury following a plea of guilt or nolo con-tendere to a capital felony and adjudication of guilt by the court, or following a jury finding of guilt of a capital felony, upon acceptance of the waiver by the court, a defendant who has given notice as required in subsection (3) may file a motion for a determination of mental retardation. Upon granting the motion, the court shall proceed as provided in subsection (4).
      (6) If, following a recommendation by an advisory jury that the defendant be sentenced to life imprisonment, the state intends to request the court to order that the defendant be sentenced to death, the state must inform the defendant of such request if the defendant has notified the court of his or her intent to raise mental retardation as a bar to the death sentence. After receipt of the notice from the state, the defendant may file a motion requesting a determination by the court that the defendant has mental retardation. Upon granting the motion, the court shall proceed as provided in subsection (4).
      (7) The state may appeal, pursuant to s. 924.07, a determination of mental retardation made under subsection (4).
      (8) This section does not apply to a defendant who was sentenced to death prior to the effective date of this act.

      . These are: Arizona, see Ariz.Rev.Stat. § 13-703.02 (2002); Arkansas, see Ark.Code Ann. § 5-4-618 (Michie 2002); Colorado, see Colo. Rev.Stat. § 18-1.3-1102 (2002); Idaho, see Idaho Code § 19-2515A (Michie 2002); Illinois, 725 Ill. Comp. Stat. 5/114-15 (2003); Indiana, see Ind.Code § 35-36-9-5 (2002); Kentucky, see Ky.Rev.Stat. Ann. § 532.135 (Michie 2002); Missouri, see Mo.Rev.Stat. § 565.030 (2002); North Carolina, see N.C. Gen.Stat. § 15A-2005 (2002); South Dakota, see S.D. Codified Laws § 23A-27A-26.3 (Mi-chie 2002); and Utah, see Utah Code Ann. §§ 77-15a-101 — 77-15a-106 (2002).

      . These are: Connecticut, see Conn. Gen.Stat. § 53a-46a (2002); Georgia, see Ga.Code Ann. § 17-7-131 (2002); Maryland, see Md.Code' Ann., Crim. Law § 2-202 (2002); Tennessee, see Tenn.Code Ann. § 39-13-203 (2002); and the United States, see 18 U.S.C. § 3596 (2002).

      . These are: Delaware, see Del.Code Ann. tit. 11 § 4209 (2002); Florida, see § 921.137, Fla. Stat. (2001); and Virginia, see Va.Code Ann. §§ 19.2-264.3:1.1-3:3. (Michie 2002).

      . The statute governing the determination of mental retardation, enacted in 2001, requires that the determination be made after a verdict of guilty and after a juiy recommends a sentence of death., See § 921.137(4), Fla. Stat. (2001). Therefore, the rule we adopt conflicts with the statute. Under the Florida Constitution, however, this Court is ultimately responsible for enacting rules of procedure. See art. V, § 2, Fla. Const. Once a case is filed in a court of law, the decision of when that right may be invoked is quintessentially a matter of procedure, over which this Court has ultimate authority. See Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730, 732 (Fla.1991).(stat-ing that this Court has the exclusive authority to regulate matters of practice and procedure); Markert v. Johnston, 367 So.2d 1003, 1004 (Fla.1978) (noting that procedural aspects of trial are reserved to the rulemaking authority of this Court).


source: Caselaw Access Project

author: QUINCE, J. PARIENTE, J.,

license: Public Domain

text:
    Nicole STOLETZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC03-168.
    Supreme Court of Florida.
    May 20, 2004.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert J. Krauss, Chief Assistant Attorney General, Bureau Chief, Tampa Criminal Appeals, and Richard M. Fishkin, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

We have for review Stoletz v. State, 842 So.2d 866 (Fla. 2d DCA 2003), which expressly and directly conflicts with the decision in Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons more fully discussed below, we approve the decision of the Second District Court of Appeal which affirmed the trial court’s permanent revocation of the petitioner’s driver’s license.

FACTS

Juanita Levero and Brian Wilson stopped along the highway to render aid to a person involved in an automobile accident. Nicole Stoletz, who was driving along the highway, hit and killed Levero and seriously injured Wilson. Stoletz also caused additional injuries to the person involved in the original accident. Stoletz had a blood alcohol level of .241. She was charged with one count of driving under the influence (DUI) causing death, two counts of DUI causing serious bodily injury, and one count of felony driving while license suspended (habitual). She was convicted of DUI and felony driving while license suspended. The DUI conviction was her second in five years. She, was sentenced to five years’ imprisonment for driving while license suspended, followed by one year of probation for DUI, a special condition of which was nine months’ incarceration in county jail. In addition,' her license was permanently revoked under section 316.655(2), Florida Statutes (1999).

Stoletz appealed, challenging only the permanent revocation of her driver’s license. She argued that the trial comet had no authority to permanently revoke her driver’s license under section 316.655(2), because a more specific statute applies and the more specific statute authorizes a license revocation of five years, but no more. See § 322.28(2)(a)(2), Fla. Stat. (1999) (“Upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction ... the driver’s license or driving privilege shall be reyoked for not less than 5 years.”). The Second District affirmed the permanent revocation, finding that it was a permissible sanction under either statute. The Second District then certified conflict with Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001), wherein the Fourth District concluded that the defendant’s driver’s license could not be permanently revoked for a second DUI conviction under section 316.655 because the more specific statute, section 322.28(2)(a)(2), controlled, and that under the specific statute, the Legislature contemplated permanent revocation after four DUI convictions, not two.

This Court granted review based on express and direct conflict of decisions.

LAW AND ANALYSIS

Section 316.655(2), Florida Statutes (1999), provides:

Drivers convicted of a violation of any offense prohibited by this chapter or any other law of this state regulating motor vehicles may have their driving privileges revoked or suspended by the court if the court finds such revocation or suspension warranted by the totality of the circumstances resulting in the conviction and the need to provide for the maximum safety for all persons who travel on or who are otherwise affected by the use of the highways of the state. In determining whether suspension or revocation is appropriate, the court shall consider all pertinent factors, including, but not limited to, such factors as the extent and nature of the driver’s violation of this chapter, the number of persons killed or injured as the result of the driver’s violation of this chapter, and the extent of any property damage resulting from the driver’s violation of this chapter.

Stoletz argues that section 316.655(2) is not applicable to her because there is a more specific statute, section 822.28(2)(a)(2), Florida Statutes (1999), that controls. The more specific statute provides:

(2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply:
(a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver’s license or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions:
2. Upon a second conviction within a period of 5 years from the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver’s license or driving privilege shall be revoked for not less than 5 years.

§ 322.28(2), Fla. Stat. (1999) (emphasis added). We agree with the Second District’s conclusion in this case that there,is no conflict between these two statutes and that both statutes would permit a trial court to permanently revoke a driver’s license if warranted by the circumstances.

In contrast, the Fourth District in Whipple found section 322.28(2)(a)(2) was applicable and did not allow permanent revocation after the second DUI. The defendant in Whipple caused an accident and pled guilty .to DUI with serious bodily injury, DUI with injury to property or person, and driving without a valid driver’s license causing serious bodily injury. Whipple, 789 So.2d at 1134. The trial court permanently revoked Whipple’s driver’s license under the general - statute, section 316.655(2). Id. The Fourth District held that Whipple’s driving privileges could not be permanently revoked under section 316.655(2) because the trial court was bound by the more specific statute, section 322.28(2)(a)(2). Id. at 1135. Moreover, the Fourth District opined that the more specific statute, section 322.28(2)(a)(2), does not provide for the permanent revocation of a driver’s license after only a second DUI conviction, stating that “the legislature did not contemplate the permanent revocation of a driver’s license without the requisite number of DUI convictions.” Id. at 1137.

We agree, however, with the Second District’s view that “nothing in section 322.28(2)(a)(2) prohibits a court from imposing a term of suspension or revocation longer than five years for a second conviction for DUI, and section 316.655(2) specifically permits a court to do so.” Sto-letz, 842 So.2d at 868. This Court has repeatedly held that the plain meaning of statutory language is the first consideration of statutory construction. See State v. Bradford, 787 So.2d 811, 817 (Fla.2001). In addition, “a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.” McKendry v. State, 641 So.2d 45, 46 (Fla.1994). The language of the general statute, sec tion 316.655(2), and the language of the more specific statute, section 322.28(2)(a)(2), is plain and unambiguous. Section 316.655(2) provides generally for the revocation or suspension of driving privileges based upon the totality of the circumstances resulting in a conviction of any offense prohibited by chapter 316 or any other law of this state regulating motor vehicles, including chapter 322. Section S22.28(2)(a)(2) specifically addresses periods of revocation or suspension of driving privileges resulting from DUI convictions under section 316.193, Florida Statutes (1999). Applying the rule that a specific statute controls over a more general one, section 322.28(2)(a)(2) would apply when determining the period for which a court may suspend or revoke a driver’s license for a DUI conviction. Stoletz was convicted of her second DUI, so the more specific * section 322.28(2)(a)(2) applies in determining the license revocation period for her DUI conviction. Pursuant to section 322.28(2)(a)(2), Stoletz’s license “shall be revoked for not less than 5 years.”

The Fourth District has held that section 322.28(2)(a)(2) does not allow for a permanent driver’s license revocation when read within the context of the entire statute. Whipple, 789 So.2d at 1137. However, the plain language of the section proyides for a mandatory minimum, period for a license revocation, not a mandatory maximum. See § 322.28(2)(a)(2), Fla. Stat. (1999). The statute is not ambiguous, and we may not assume that the omission of a mandatory maximum was unintentional. See Bradford, 787 So.2d at 817; see also Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). It is particularly important to note that the immediately preceding provision in this statute does, in fact, set forth a mandatory maximum time period for license revocation. It is. also noteworthy that prior .to a 1982 amendment, the revocation period in section 322.28(2)(a)(2) did provide a mandatory minimum and maximum of “not less than 6 months or more than 24 months.” § 322.28(2)(a)(2), Fla. Stat. (1981). After the 1982 amendment, the revocation period became “not less than 5 years” which is the provision applicable in this case. See Ch. 82-155, § 9, Laws of Fla. Thus, it is clear that the Legislature intended to establish a mandatory minimum, but no maximum, revocation period for a second DUI conviction. The courts “are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.’ Holly, 450 So.2d at 219 (quoting Am. Bankers Life Assur. Co. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)) (alterations in original). We therefore agree with the Second District that “nothing in section 322.28(2)(a)(2) prohibits a court from imposing a term of suspension or revocation longer than five years for a second conviction for DUI.” Stoletz, 842 So.2d at 868.

Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting in death, the driver's license or driving privilege shall be revoked for not less than 180 days or more than 1 year.

Although we find that when a defendant is convicted of a DUI, a trial court should utilize the statute which specially applies to DUI convictions to determine the permissible license revocation period for the DUI conviction, in this case, section 316.655(2) is also applicable because the defendant was convicted of another driving offense. Stoletz pled no contest to and was convicted of felony driving while license suspended (habitual), a violation of section 322.34(5). When a defendant is convicted of another offense in chapter 316 or any other law of this state regulating motor vehicles, and the totality of the circumstances merits a suspension or revocation, a trial court may utilize section 316.655(2) to suspend or revoke the defendant’s license. Because Stoletz was convicted of an additional offense which was a violation of a “law of this state regulating motor vehicles,” the trial judge did not err in considering the totality of the circumstances when permanently revoking Stoletz’s license under section 316.655(2). See Reed v. State, 744 So.2d 1090 (Fla. 4th DCA 1999) (finding the trial court properly considered the totality of circumstances, including the fact that a death occurred, in permanently revoking a defendant’s license pursuant to section 316.655(2) after his conviction for reckless driving). Thus, in this case, both the specific statute applicable to DUI, section 322.28(2)(a)(2), and the general statute, section 316.655(2), authorized the trial court’s permanent revocation of Stoletz’s driver’s license.

CONCLUSION

For these reasons, we approve the decision of the Second District in Stoletz, which affirmed the trial court’s permanent revocation of Stoletz’s license after her second conviction for DUI and her conviction for felony driving while license suspended (habitual).

It is so ordered.

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

PARIENTE, J., concurs in result only with an opinion.

PARIENTE, J.,

concurring in result only.

I concur in result only because although I agree that the trial court had authority to permanently revoke Stoletz’s driver’s license, that authority is derived from section 316.655(2) and not from section 322.28(2)(a)(2). I thus disagree with the majority that a trial court has unfettered discretion under section 322.28(2)(a)(2) to permanently revoke a driver’s license based solely on a second DUI conviction without regard for the circumstances of the offense.

In this case, Stoletz was convicted of, among other offenses, driving with a suspended license (for habitual traffic offenses). Section 316.655(2) provides:

Drivers convicted of a violation of any offense prohibited by this chapter or any other law of this state regulating motor vehicles may have their driving privileges revoked or suspended by the court if the court finds such revocation or suspension warranted by the totality of the circumstances resulting in the conviction and the need to provide for the maximum safety for all persons who travel on or who are otherwise affected by the use of the highways of the state. In determining whether suspension or revocation is appropriate, the court shall consider all pertinent factors, including, but not limited to, such factors as the extent and nature of the driver’s violation of this chapter, the number of persons killed or injured as the result of the driver’s violation of this chapter, and the extent of any property damage resulting from the driver’s violation of this chapter.

Thus, this statutory provision requires that the trial court evaluate the totality of the circumstances and provides a list of pertinent factors to consider. For Stoletz, these circumstances included the facts that she violated two criminal traffic laws, that her blood-alcohol level at the time of the offenses was .241 percent, and that one person was killed and two others seriously injured in the accident in which she was involved. On these facts the trial court, taking into consideration “the totality of the circumstances” and “all pertinent factors,” acted within its discretion under section 316.655(2) in permanently revoking Stoletz’s driving privileges for the offense of driving with a license suspended for habitual traffic offenses.

However, I disagree with the majority that a trial court could rely solely on section 322.28(2)(a)(2) to permanently revoke Stoletz’s license. At the time of the offenses in this case, section 322.28, Florida Statutes (1999), provided, in pertinent part:

(2) In a prosecution for a violation of s. 316.193 or former s. 316.1931, the following provisions apply:
(a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver’s license or driving privilege of the person so convicted, effective, on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions:
1. Upon a first conviction for a violation of the provisions of s. 316.193, except a violation resulting in death, the driver’s license or driving privilege shall be revoked for not less than 180 days or more than 1 year.
2. Upon a second conviction within a period of 5 years from the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver’s license or driving privilege shall be revoked for not less than 5 years.
3. Upon a third conviction within a period of 10 years from the date .of conviction of the first of three or more convictions for the violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver’s license or driving privilege shall be revoked for not less than 10 years.
(e) The court shall permanently revoke the driver’s license or driving privilege of a person who has been convicted four times for violation of s. 316.193 or former s. 316.1931 or a combination of such sections.

(Emphasis supplied.)

In holding that a permanent revocation is authorized under section 322.28(2)(a)(2), the majority reads the provision’s phrase “shall be revoked for not less than 5 years” in isolation. The majority’s construction is contrary to the well-established principle of statutory construction that courts should read “all parts of a statute ... together ... to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). See also Acosta v. Richter, 671 So.2d 149, 154 (Fla.1996) (“[Sjtatutory phrases are not to be read in isolation, but rather within the context of the entire section.”). Applying this principle in Whipple v. State, 789 So.2d 1132, 1137 (Fla. 4th DCA 2001), the Fourth District correctly concluded that section 322.28(2)(a)(2) did not authorize a permanent license revocation for a second DUI conviction.

Although subsection (2)(a)(2) does not specify a maximum period of revocation, it is part of a statutory scheme that increases the terms of revocation for each DUI conviction, culminating in permanent revocation for a fourth conviction. See § 322.28(2)(e), Fla. Stat. (1999). The Second District has recognized that with regard to this statute, “[t]he legislature has consistently indicated its intent to provide greater protection to the public from persons-who had accumulated multiple DUI convictions.... Obviously, the public is more susceptible to harm from one who has a pattern of driving under the influence.” Dep’t of Highway Safety & Motor Vehicles v. Bender, 497 So.2d 1332, 1334 (Fla. 2d DCA 1986) (emphasis supplied). Accordingly, successive DUI. .convictions authorize commensurately longer suspensions and revocations. See Whipple, 789 So.2d at 1137. A construction of section 322.28(2) that allows permanent revocation for a second or subsequent conviction undermines the link between DUI recidivism and the duration of license revocation evident in the legislative scheme.

In addition, the majority’s construction of section 322.28(2) provides trial courts with the option of a revocation from five years to permanent without criteria to guide that discretion. At the very least, section 322.28(2) should be considered in pari materia with section 316.655(2) because pursuant to section 316.655(2), DUI constitutes a violation of a “law of this state regulating motor vehicles.” Section 316.655(2) requires that in determining the length of the revocation, the trial court is to “consider all pertinent factors, including, but not limited to, such factors as the extent and nature of the driver’s violation ..., the number of persons killed or injured as the result of the driver’s violation ..., and the extent of any property damage resulting from the driver’s violation.”

This construction of the provisions of section 322.28(2) and its relationship to section 316.655(2) would give effect to the language in both statutes. First, it would be consistent with the dictate of sections 322.28(2)(a)(2) and (3) that the revocation be for periods of “not less than” five and ten years, respectively. Second, this construction would effectuate the Legislature’s intent, expressed in section 316.655(2), that the decision to revoke a driver’s license be justified by the “the need to provide for the maximum safety for all persons who travel on or who are otherwise affected by the use of the highways of this state.” Finally, this construction would give trial courts guidance in exercising . discretion under section 322.28(2).

Absent application of the criteria supplied by section 316.655(2), revocations imposed upon second-and third-time DUI offenders under section 322.28(2) could vary widely, without regard to the circumstances of the offense. Further, without articulated criteria, there is no basis for an appellate court to determine whether a trial court abused its discretion in permanently revoking a license under section 322.28(2). I do not believe the Legislature intended this result in authorizing commensurately longer revocations for repeat DUI offenders.

      . Section 322.28(2)(a)(l), Florida Statutes (1999), states:

        . Although she was charged with DUI manslaughter and two counts of DUI causing serious injury, the jury found Stoletz guilty only of DUI, evidently concluding that her intoxication was not a contributoxy cause of the accident. See Stoletz v. State, 842 So.2d 866, 867 (Fla. 2d DCA 2003).


author: WELLS, J. ANSTEAD, C.J., LEWIS, J.,

text:
    Paul Michael NELSON, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1418.
    Supreme Court of Florida.
    June 3, 2004.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Angela D. McCravy and Kellie A. Nielan, Assistant Attorney General, Dayto-na Beach, FL, for Respondent.
   WELLS, J.

We have for review Nelson v. State, 816 So.2d 694 (Fla. 5th DCA 2002), which expressly and directly conflicts with the decision in Odom v. State, 770 So.2d 195 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Petitioner Paul Michael Nelson (Nelson) was convicted of second-degree murder, which was affirmed by the Fifth District. Nelson v. State, 725 So.2d 412 (Fla. 5th DCA 1999). Nelson subsequently filed a pro se motion for postconviction relief in the circuit court, alleging, among other things, that his trial counsel was ineffective for failing to call, interview, or investigate certain witnesses. Nelson requested an evidentiary hearing to further develop the facts surrounding this claim. In response to Nelson’s motion, the State argued that Nelson’s motion was facially insufficient because Nelson failed to indicate whether the asserted witnesses would have been available to testify at trial.

The trial court summarily denied Nelson’s claim, reasoning that Nelson’s motion was facially insufficient because Nelson did not allege that the witnesses were available to testify. State v. Nelson, No. CF96-705 (Fla. 7th Cir. Ct., order filed Dec. 5, 2000) (Order). The court further expressly concluded that even had Nelson asserted the availability of Ann Hopkins, her testimony would not have changed the outcome of the trial.

Nelson appealed the trial court’s summary denial of this claim to the Fifth District Court of Appeal. The district court affirmed the trial court’s order denying Nelson’s ineffective assistance of counsel claim, holding that the trial court correctly found that Nelson’s claim was facially insufficient because Nelson failed to allege that any of the witnesses were available for trial. Nelson v. State, 816 So.2d 694 (Fla. 5th DCA 2002). Relying on Highsmith v. State, 617 So.2d 825 (Fla. 1st DCA 1993), the district court stated:

This conclusion logically follows from the fact that a postconviction ineffective assistance of counsel claim which is based upon counsel’s failure to call witnesses must include “an explanation as to how the admission of this evidence prejudiced the outcome of the trial.” Counsel’s failure to call a witness who was unavailable to testify at trial could not logically prejudice the outcome of a defendant’s trial.

Nelson, 816 So.2d at 695-96 (citation omitted). In so holding, the Fifth District noted conflict with the Second District’s decision in Odom v. State, 770 So.2d 195 (Fla. 2d DCA 2000), in which the Second District held that a motion for postconviction relief need not allege the availability of a witness to be facially sufficient. This Court granted review on the basis of the conflict between the instant case and Odom.

ANALYSIS

The point of' conflict before this Court is whether a defendant alleging that counsel was ineffective for failing to call, interview, or investigate witnesses at trial must specifically allege in his or her post-conviction motion that the witnesses would have been available to testify at trial had counsel called them. This Court’s review of this question of law is de novo. State v. Glatzmayer, 789 So.2d 297, 301-02 n. 7 (Fla.2001).

Florida Rule of Criminal Procedure 3.850(c),-which sets forth the required, contents of a rule 3.850 motion, provides:

(c) Contents of Motion. The motion shall be under oath and include:
(1) the judgment or sentence under attack and the court which rendered the same;
(2) whether there was an appeal from the judgment or sentence and the disposition thereof;
(3) whether a previous postconviction motion has been filed, and if so, hov/ many;
(4) if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions;
(5) the nature of the relief sought; and
(6) a brief statement of the facts (and other conditions) relied on in support of the motion.
This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.

In addition to the Fifth District in the instant case, the First, Third, and Fourth District Courts of Appeal have repeatedly held that a defendant asserting ineffective assistance of counsel for the failure to call, interview, or present witnesses at trial must specifically allege that those witnesses would have been available to testify at trial. These courts base their decisions on the fact that a postconviction ineffective assistance of counsel claim which is based upon counsel’s failure to call witnesses must include an explanation as to how the admission of the evidence prejudiced the outcome of trial. Counsel’s failure to call a witness who was unavailable to testify at trial could not prejudice the outcome of a defendant’s trial. See, e.g., Highsmith v. State, 617 So.2d 825 (Fla. 1st DCA 1993); Williamson v. State, 559 So.2d 723 (Fla. 1st DCA 1990); Puig v. State, 636 So.2d 121 (Fla. 3d DCA 1994); Palmer v. State, 683 So.2d 678 (Fla. 4th DCA 1996).

The Second District has held to the contrary. In Odom v. State, 770 So.2d 195, 197 (Fla. 2d DCA 2000), the Second District held that a facially sufficient postcon-viction motion alleging ineffective assistance of counsel for the failure to call witnesses at trial must set forth only (1) the identity of the prospective witnesses, (2) the substance of the witnesses’ testimony, and (3) an explanation as to how the omission of the testimony prejudiced the outcome of the trial. The district court recognized that the other district courts had required availability in addition to the above three requirements but noted that the Second District had not followed these decisions and would therefore follow its own precedent that did not require an availability assertion. See also Tyler v. State, 793 So.2d 137 (Fla. 2d DCA 2001).

As noted by the parties in this case, in Gaskin v. State, 737 So.2d 509, 514 n. 10 (Fla.1999), this Court stated in a footnote that a defendant asserting ineffective assistance of counsel for failing to call certain witnesses is not required under rule 3.850(c) to allege the names of witnesses, the substance of their testimony, or their availability to testify at trial. This statement was overbroad in respect to the requirement to plead what a witness’s testimony would have been and the witness’s availability to have testified at trial. A review of our decisions with respect to this issue show that this Court did not intend to overrule the decisions of the First, Third, and Fourth Districts. To the extent that the footnote in Gaskin is inconsistent with this opinion, we recede from it.

In Smith v. State, 445 So.2d 323 (Fla. 1983), this Court held that a defendant asserting an ineffective assistance of counsel claim must specifically allege and establish grounds for relief and establish whether such grounds resulted in prejudice to him or her. To determine whether a defendant has met his or her burden, the court must consider the following.

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading. Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. In making this second determination, the performance of counsel must be judged in light of the totality of the circumstances. Third, the defendant has the burden to show that this deficiency, when considered under the circumstances of this case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has the opportunity to rebut those assertions by showing beyond a reasonable doubt that there was no prejudice in fact.

Id. at 325 (citation omitted).

Since Smith, which was decided prior to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has further held that a defendant alleging an ineffective assistance of counsel claim must set out in his or her motion sufficient alleged facts which, if proven, would establish the two prongs necessary for relief based upon ineffectiveness as outlined in Strickland. See Freeman v. State, 761 So.2d 1055, 1061-62 (Fla.2000). In a rule 3.850 motion, a defendant must therefore assert facts that support his or her claim that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s deficient performance. Under the circumstances of this case, a defendant would be required to allege what testimony defense counsel could have elicited from witnesses and how defense counsel’s failure to call, interview, or present the witnesses who would have so testified prejudiced the case. Reaves v. State, 826 So.2d 932, 940 (Fla.2002); see also Patton v. State, 784 So.2d 380 (Fla.2000) (holding that defendant’s motion was insufficiently pled because, among other reasons, the defendant failed to allege that there were persons available to corroborate the allegations made in his motion).

That a witness would have been available to testify at trial is integral to the prejudice allegations. If a witness would not have been available to testify at trial, then the defendant will not be able to establish deficient performance or prejudice from counsel’s failure to call, interview, or investigate that witness.

We do not, however, want postcon-viction relief to be denied simply because of a pleading defect if that pleading defect could be remedied by a good faith amendment to the motion. Therefore, when a defendant fails to allege that a witness would have been available, the defendant should be granted leave to amend the motion within a specified time period. If no amendment is filed within the time allowed, then the denial can be with prejudice.

Accordingly, we approve the reasoning of the opinion of the Fifth District in this case and hold that, as part of the requirement to show that counsel’s ineffectiveness prejudiced the defendant’s case, a facially sufficient postconviction motion alleging the ineffectiveness of counsel for failing to call certain witnesses must include an assertion that those witnesses would in fact have been available to testify at trial. However, we quash the decision of the district court with respect to its affirming the trial court’s order concerning Jerry Hopkins and Russell Harris. The trial court should have permitted Nelson leave to amend for a specified period of time. We thus remand this case to the Fifth District for further proceedings in accord with this decision. We disapprove Odom to the extent that it is inconsistent with this decision.

It is so ordered.

QUINCE, CANTERO, and BELL, JJ„ concur.

ANSTEAD, C.J., dissents with an opinion, in which PARIENTE, J., concurs.

LEWIS, J., dissents with an opinion, in which PARIENTE, J., concurs.

ANSTEAD, C.J.,

dissenting.

I respectfully dissent because I believe the majority has strayed far from the original purpose for the enactment of rule 3.850 as a means to facilitate the filing and processing of habeas corpus claims in post-conviction proceedings. The holding of the majority is directly contrary to the letter and spirit of the limited pleading requirements set out in rule 3.850, which have always called for a simple, direct statement of a claim and the factual basis supporting the claim.

These limited pleading requirements recognized the reality that ninety-nine percent of rule 3.850 claims are filed pro se, and represented a policy choice that it was far less costly to the state to provide simple pleading requirements for habeas corpus claims than to provide costly lawyers. Today, we are, in effect, amending rule 3.850 in an ad hoc manner to add very specific and rigid pleading requirements which were never contemplated by the drafters of rule 3.850 or by this Court in adopting the rule.

In effect, we are now suggesting that habeas corpus claims filed under rule 3.850 are like civil causes of action that have “elements.” And, presumably, we will identify those elements as we go along. Today’s cause of action, for example, is an ineffectiveness of counsel claim predicated upon the failure of counsel to present evidence of innocence in the form of witness testimony. We have now held that availability of the witnesses is an essential element that must be pleaded. Of course, we are recognizing the effect of our ad hoc amendment by also allowing an amendment of the defendant’s petition to cover our newly imposed requirement, since the defendant could not have known of this requirement by reading the rule. Presumably we will do the same as we require different “elements” in the future.

I agree with Justice Lewis’s observation that the addition of this fourth element elevates form over substance because the witness’s availability at trial is presumed when an allegation of counsel’s failure to present a witness at trial is made. Therefore, the three requirements outlined by the Second District in Odom should be all that are necessary for a facially sufficient 3.850motion.

The legal reality is that ineffectiveness claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), come in a veritable laundry list of forms that we could never hope to completely categorize. In other words, other than recognizing the standard of Strickland, we could never come close to identifying the proper elements of all ineffectiveness claims. We should avoid this pleading quagmire and stick with the simple pleading requirements of rule 3.850 and Strickland, and the essential values underlying the preservation of the writ of habeas corpus in our Constitution that were considered when the rule was adopted.

The majority’s action is no doubt prompted by a genuine concern to alleviate the heavy postconviction caseloads of trial court judges. That concern, however, can just as easily be alleviated by the tried and true practice of trial judges rigorously adhering to the strict requirements of rule 3.850as it now exists. The overwhelming majority of claims presented, for example, represent issues that should have been raised at trial or on appeal and are easily identified as such and summarily resolved. As to the issue now before us, a close examination of the facts alleged will usually be sufficient to identify whether the claim is fish or fowl. That close examination is a far better alternative than the ad hoc rule amendment we adopt today.

It is also far more practical than the approach we take today of sending cases back for amendments as pleading “defects” are identified by us or other courts under our new system of habeas “causes of action.” Indeed, it would appear that we are engrafting the old and much criticized practice in civil litigation of filing motions to dismiss based on technical defects for the purpose of delay. There is enough delay in the system without adding this artificial layer to proceedings, which was never intended to have such formal and rigid pleading requirements. And, finally, it is far more consistent with the traditional purpose of The Great Writ of Habeas Corpus to catch and remedy serious injustices whenever they are called to our attention.

PARIENTE, J., concurs.

LEWIS, J.,

dissenting.

I respectfully dissent because although I agree that a witness certainly must have been available to testify at trial before the 3.850motion may have been meritorious, I cannot agree that the motion is facially insufficient because it does not explicitly include the words “was available for trial.” Subsumed within the allegation of the failure to present a witness at trial of which counsel was aware is the underlying premise that a witness was available for trial and would have testified if presented. Unquestionably, if a witness was not available, the petitioner will fail to demonstrate the requisite prejudice prong of Strickland. However, mandating that a petition include the four “magic words” — “was available for trial” — most assuredly creates an additional pleading element, not required by the applicable rule.

In my view, the three requirements captured and outlined by the Second District in Odom are all that are minimally necessary for a facially valid motion: “[A] facially sufficient motion alleging ineffective assistance of counsel for failure to call witnesses must set forth (1) the identity of the prospective witness; (2) the substance of the witness’s testimony; and (3) an explanation -as to how the omission of the testimony prejudiced the outcome.” Odom, 770 So.2d at 197. The addition of a fourth element, requiring a party to specifically allege the “magic words” that a party “was available for trial,” elevates form over substance, as the underlying component is, of necessity, the premise already included within these three elements. A valid claim of ineffective assistance of counsel requires (1) a demonstration of counsel’s deficiency and (2) proof of prejudice to the movant. Failure to include the four “magic words” should not defeat an otherwise valid claim.

The majority’s conclusion mandating that a motion include these four magic words — “was available for trial” — creates an unnecessary technical pleading requirement with which I cannot agree. Therefore, I dissent from the majority opinion, which now establishes the decisional authority that amended pleadings and additional delays will be the preferred method of seeking a just result. I therefore also concur with Chief Justice Anstead to the extent that the inclusion of a specific articulation of specific words concerning witness availability is not required for a pleading to be facially valid. I would accept the sound decision of the Second District in Odom.

PARIENTE, J., concurs.

      . Nelson asserted that counsel should have called the following witnesses: (1) Jerry Hopkins, Nelson’s codefendant; (2) Ann Hopkins; (3) Russell Harris; and (4) a blood spatter expert.

      . Nelson also cites Peede v. State, 748 So.2d 253, 258 (Fla.1999), in support of his argument that a facially sufficient postconviction motion does not require a defendant to allege the availability of witnesses. Peede, however, does not apply to the issue currently before this Court. In Peede, this Court considered whether a defendant must allege names of the witnesses that would be available to testify at the evidentiary hearing. The resolution of that issue is not related to the issue of whether a defendant must allege the availability of witnesses who could have testified at trial if counsel had called them.

      . There are, of course, numerous reasons that a witness would not have been available, including a witness who had asserted his or her right to remain silent or a witness who could not be located or served with a subpoena.


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

text:
    Richard Eugene HAMILTON, Appellant, v. STATE of Florida, Appellee. Richard Eugene Hamilton, Petitioner, v. State of Florida, Respondent.
    Nos. SC02-1426, SC02-2409.
    Supreme Court of Florida.
    June 3, 2004.

      Charles E. Lykes, Jr., Clearwater, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, Curtis M. French, Senior Assistant Attorney General, and Cassandra K. Dolgin, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.
   PER CURIAM.

Richard Eugene Hamilton, an inmate under sentence of death, appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons stated below, we affirm the denial of Hamilton’s motion and deny the petition for habeas corpus.

I. FACTS

Hamilton was convicted of first-degree murder, armed sexual battery, armed robbery, and armed kidnapping. He was sentenced to death. The facts of Hamilton’s crimes are discussed in this Court’s opinion in Hamilton v. State, 703 So.2d 1038, 1040 (Fla.1997). We briefly restate them.

Hamilton and his codefendant, Anthony Wainwright, escaped from a North Carolina prison and made their way to Florida in a stolen car. In April 1994, when the car overheated in Lake City, Florida, the men abducted at gunpoint Carmen Gayh-eart, a young mother of two, as she loaded groceries into her Ford Bronco. They stole the Bronco and drove north on Interstate 75. The men raped, strangled, and executed Gayheart by shooting her twice in the back of the head. They were arrested the next day in Mississippi following a shootout with a trooper. Hamilton and Wainwright were tried in a single trial with separate juries.

This Court affirmed Hamilton’s convictions and sentence on direct appeal. Hamilton, 703 So.2d at 1045. Hamilton later filed a motion and an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, asserting seventeen issues. After a Huff hearing, the trial court granted an evidentiary hearing limited to claims (3), (4), (5), (8), (9), and (10).- After the evidentiary hearing, the trial court denied relief on all claims.

II. 3.850 APPEAL

In this appeal, Hamilton raises nine issues. We find it unnecessary to address each claim here and affirm the trial court’s denial of relief as to all of the issues raised. We discuss only two of Hamilton’s claims: (1) whether trial counsel was ineffective regarding the issue of venue, and (2) whether trial counsel was ineffective regarding the presentation of mitigation during the penalty phase.

To prevail on a claim that defense counsel provided ineffective assistance, a defendant must demonstrate specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant also must demonstrate prejudice by “show[ing] 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. Ineffective assistance of counsel claims present mixed questions of law and fact subject to plenary review, and this Court independently reviews the trial court’s legal conclusions, while giving deference to the trial court’s factual findings. Occhicone v. State, 768 So.2d 1037, 1045 (Fla.2000).

A. Change of venue

Hamilton claims trial counsel was ineffective for failing to properly advise him regarding the issue of venue. Hamilton was charged by indictment with first-degree murder, armed robbery, armed kid-naping, and armed sexual battery. For each count, the indictment read, “The grand jurors of Hamilton County, Florida, charge that Richard Eugene Hamilton and [the codefendant] on the 27th day of April, 1994, in Columbia County, Florida and/or Hamilton County, Florida,.... ” (Emphasis added.) Before trial, trial counsel filed a motion for change of venue, alleging that because of adverse pretrial publicity, the trial should be moved from Hamilton County. The motion contained an index with twenty-two newspaper articles about the crime. Trial counsel also filed a supplemental motion containing affidavits in support of the first motion. One of these affidavits was from Hamilton himself, and stated in pertinent part:

Affiant has read and understands the motion for change of venue prepared by his attorney, personally joins in the motion and requests a change of venue.
Affiant believes that a change of venue is necessary and proper because adverse pretrial publicity,, as evidenced by the exhibits attached to his motion, would .prevent him from receiving an impartial trial in Hamilton County, where the case is now pending.

The motion for change of venue was initially denied, but the trial court reserved ruling in an attempt to seat a jury in Hamilton County. Ultimately the attempt to select a jury in Hamilton County was unsuccessful and the State agreed that the defense’s motion- should be granted. The trial court granted the motion, and at a subsequent hearing stated:

The Court has investigated potential locations for moving the trial, and as previously announced, locations considered were Leon, Escambia, Okaloosa, Nassau, and Clay Counties. The closest and best accommodations were available in Clay County. Mr. Blair and Nancy Nydam, Court Administrator, and Goldie Hudson, Juror Coordinator, met with personnel and the Sheriffs have talked and Clay County has been more than cooperative with meeting the needs of Hamilton and Columbia Counties .... So Clay County will be the site of the trial.

(Emphasis added.)

■ Hamilton argues that if he had been properly informed of his rights, he could have elected venue so as to change the location of the trial and separate his trial from the codefendant. Hamilton claims that trial counsel did not properly exercise Hamilton’s right to be tried in Columbia County, where the offense was committed, which, he alleges, would have clearly been a more neutral location for the trial. The trial court denied this claim without an evidentiary hearing, finding that Hamilton’s election of a venue change before trial effectively waived or barred the claim in postconviction proceedings.

“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or. (2) the motion or a particular claim is legally insufficient.” Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). Where the motion lacks sufficient factual allegations, or where alleged facts do not render the judgment vulnerable to collateral attack, the motion may be summarily denied. Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998). However, in cases where there has been no evidentiary hearing, this Court must accept the defendant’s factual allegations to the extent the record does not refute them. See Peede v. State, 748 So.2d 253, 257 (Fla.1999). In other words, this Court must examine each claim to determine if it is legally sufficient, and if so, determine whether or not the claim is refuted by the record. Atwater v. State, 788 So.2d 223, 229 (Fla.2001).

Hamilton’s venue claim is not legally sufficient. The defendant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he alleges specific “facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.” Gaskin v. State, 737 So.2d 509, 516 (Fla.1999) (quoting Roberts v. State, 568 So.2d 1255, 1259 (Fla.1990)). Hamilton has demonstrated neither deficient performance nor prejudice. First, the record demonstrates that the purpose of the defense’s motion for change of venue was to move the trial away from the area of pretrial publicity. The county Hamilton now claims he wanted, Columbia County, was the victim’s home county. Columbia County was never suggested as an alternative venue because it was as adversely affected by publicity as Hamilton County. This is demonstrated in part by the newspaper articles attached to the change of venue motion: of the twenty-two articles, thirteen were from the Lake City Reporter, a newspaper based in Columbia County. We are convinced, from a review of the record, that trial counsel made a reasonable, tactical decision in seeking to have the trial moved completely out of the area instead of to the alternatively charged, and equally affected, Columbia County.

Second, no authority supports Hamilton’s allegation that a change of venue would have resulted in a separate trial. Hamilton bases his argument on Leon v. State, 695 So.2d 1265 (Fla. 4th DCA 1997). In Leon, the charging document alleged venue in “Okeechobee and/or Martin County,” and on appeal, the defendant alleged that the State failed to prove venue as charged. Id. at 1266. The Fourth District noted that the Florida Constitution allows the State to charge venue in two or more counties conjunctively when, as in Leon, the precise location of the offense is not known. Therefore, the question the Fourth District decided was whether “the locution and/or is conjunctive, as the constitution permits.” Id. The Fourth District found no error in the allegation of venue. Therefore, Leon simply does not support Hamilton’s claim that a change of venue to Columbia County would have resulted in a separation of the charges.

B. Failure to present mitigation

Hamilton claims that trial counsel was ineffective for failing to present his father, mother, and sister during the penalty phase to establish mitigation. After an evidentiary hearing, the trial court found:

The Defendant next claims that counsel was ineffective for not having his mother, father, and sister testify at the penalty phase of his trial. All three testified at the hearing that they were willing to testify at trial. However, the mother admitted that she and her doctors told [trial counsel] that she was unable to do so, the sister admitted that she told [trial counsel] she would not testify if pregnant because of her history of miscarriages and [trial counsel] testified that the father was so angry and upset that he believed his testimony would do. more harm than good.
Counsel had interviewed these people extensively and subpoenaed them, but had good reasons for not calling them to testify. Instead, he presented testimony from the Defendant’s brother, cousin, and the mother of his former girlfriend. Based on their testimony, the court found that several nonstatutory miti-gators had been established. The other family members’ testimony was cumulative to that presented at trial, and there is no reasonable likelihood that such testimony would have resulted in a life sentence.

(Citations omitted.)

The trial court’s factual findings are supported by competent, substantial evidence in the record. Trial counsel was well prepared and well informed with respect to Hamilton’s family, and simply made a reasonable, tactical decision not .to present certain family members during the penalty phase based on their unavailability and poor cooperation. This is not a case where trial counsel failed to investigate any available mitigating witnesses or evidence. See, e.g., Rose v. State, 675 So.2d 567, 571-72 (Fla.1996) (noting that an attorney has a duty to conduct a reasonable investigation for possible mitigating evidence). Trial counsel presented three witnesses during the penalty phase — Hamilton’s cousin, his brother, and his ex-girlfriend’s mother — and based on their testimony, the trial court found five nonstatutory mitigators: (1) Hamilton was raised in a drug-ridden, crime-infested neighborhood; (2) Hamilton’s mother was mentally ill; (3) Hamilton suffered various childhood traumas, including the loss of an eye in a BB gun accident; (4) Hamilton had been gainfully employed and had good work habits; and (5) Hamilton assisted police in locating the victim’s body.

Hamilton also claims trial counsel was ineffective for failing to present a mental health expert at the penalty phase. The trial court denied this claim, stating:

The Defendant’s last claim is that [trial counsel] was ineffective for not hiring a psychiatrist who could testify that he had been taking psychiatric medications. However, counsel retained Dr. Umesh Mhatre, a psychiatrist, as a confidential expert, and the Defendant introduced no evidence at the hearing to support his claim of having been or needing to be medicated. Instead, Dr. Mhatre stated that, while he could have testified to nonstatutory mitigators similar to those found by the court, no statutory miti-gators existed and that he could have been cross-examined about the Defendant’s being a sociopath. [Trial counsel] testified that Dr. Mhatre told him that his testimony would do more harm than good, that, in his experience, juries do not view sociopaths favorably, and that he made a strategic decision not to have the doctor testify. He also stated that he discussed this strategy with his client. Counsel’s representation was reasonable and did not prejudice the Defendant.

(Citation omitted.)'

Competent, substantial evidence in the record supports the trial court’s factual findings for this claim as well. Trial counsel retained a mental health expert, Dr. Mhatre, who examined Hamilton and concluded that Hamilton.suffered from an antisocial personality disorder. Based on this information and his experience in trying capital cases, counsel decided not to present Dr. Mhatre at the penalty phase because, in counsel’s opinion, Dr. Mhatre’s testimony would have done more harm than good. Trial counsel’s decision not to present Dr. Mhatre was informed and strategic. See, e.g., Van Poyck v. State, 694 So.2d 686, 689-92 (Fla.1997) (finding no ineffectiveness of counsel where counsel made a tactical decision not to present a mental health expert whose findings would not be helpful). We find, therefore, that on the issue of the presentation of mitigation during the penalty phase, Hamilton has failed to demonstrate that trial counsel’s performance was deficient. Moreover, Hamilton has also failed to demonstrate that but for counsel’s alleged errors, he would probably have received a life sentence. See Rose, 675 So.2d at 570-71.

III. PETITION FOR WRIT OF HABEAS CORPUS

Hamilton’s petition for writ of habeas corpus raises seven issues. Because these claims are either procedurally barred or lack merit, we deny the petition •without further discussion except as to the following issue. Hamilton contends that Florida’s capital sentencing scheme 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). We first rejected this claim 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 have rejected it several times since. See, e.g., Rivera v. State, 859 So.2d 495, 508 (Fla.2003); Jones v. State, 855 So.2d 611, 619 (Fla.2003); Conde v. State, 860 So.2d 930, 959 (Fla. 2003), cert denied, — U.S.-, 124 S.Ct. 1885, 158 L.Ed.2d 475 (2004); McCoy v. State, 853 So.2d 396, 409 (Fla.2003); Owen v. Crosby, 854 So.2d 182, 193 (Fla.2003); Fennie v. State, 855 So.2d 597, 607 n. 10 (Fla.2003), cert. denied, — U.S.-, 124 S.Ct. 1877, 158 L.Ed.2d 471 (2004); Caballero v. State, 851 So.2d 655, 663-64 (Fla.2003); Belcher v. State, 851 So.2d 678, 685 (Fla.), cert. denied, — U.S.-, 124 S.Ct. 816, 157 L.Ed.2d 706 (2003); Allen v. State, 854 So.2d 1255, 1262 (Fla.2003). We deny Hamilton’s claim as well. Further, we note that one of the aggravators the jury found was that Hamilton had a prior violent felony conviction, a factor which under Ring and Apprendi need not be found by the jury. See Jones, 855 So.2d at 619 (denying claim based on Ring v. Arizona where the aggravating circumstances the jury found included a prior violent felony). Accordingly, we affirm the trial court’s denial of Hamilton’s motion for postconviction relief, and we deny the petition for writ of habeas corpus.

It is so ordered.

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

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

CANTERO, J., concurs with an opinion, in which 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).

CANTERO, J.,

concurring.

I concur in the majority opinion. Moreover, regarding Hamilton’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, 29 Fla. L. Weekly S191, S197-203 (Fla. May 6, 2004), that Ring does not apply retroactively.

WELLS and BELL, JJ., concur.

      . Hamilton's amended motion argued: (1) electrocution is cruel and unusual punishment; (2) trial counsel was ineffective regarding venue; (3) trial counsel was ineffective for failing to present testimony from Hamilton’s family members in support of a motion to suppress; (4) trial counsel was ineffective for allowing Hamilton's jury to hear the codefen-dant's cross-examination of a witness; (5) trial counsel was ineffective regarding Hamilton’s jury overhearing testimony meant only for the codefendant's jury; (6) trial counsel was ineffective for failing to allow co-counsel to conduct the penalty phase; (7) trial counsel was ineffective for failing to request instructions on nonstatutory mitigation; (8) trial counsel was ineffective regarding the presentation of mitigation; (9) trial counsel was ineffective regarding a claim of juror misconduct; (10) trial counsel was ineffective for failing to consult a psychiatrist; (11) the DNA evidence was insufficient to establish Hamilton’s guilt; (12) further DNA testing would reveal new evidence that would exonerate Hamilton; (13) lethal injection is improper as an ex post facto method of execution; (14) trial counsel was ineffective for failing to object when the jury reported its sentencing recommendation; (15) trial counsel was ineffective for failing to request an independent act instruction; (16) appellate counsel was ineffective; and (17) new evidence may be discovered.

      . See Huff v. State, 622 So.2d 982, 983 (Fla.1993) (requiring the trial court to hold a hearing on postconviction motions in death penalty cases to "determinfe] whether an evi-dentiary hearing is required and to hear legal argument relating to the motion”).

      . The other issues Hamilton raises, which we reject without extended discussion, are as follows: Hamilton’s second issue alleges that trial counsel was ineffective for failing to present testimony from Hamilton's family members in support of a motion to suppress. This claim is without merit because it fails to meet the standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To the extent Hamilton argues that his statements were not voluntary in violation of the federal and state constitutions, this claim is procedurally barred because the issue was fully addressed by this Court in Hamilton's direct appeal. See Hamilton, 703 So.2d at 1044. Hamilton's claims that trial counsel was ineffective regarding Hamilton’s jury overhearing testimony meant only for the codefendant's jury, regarding a claim of juror misconduct, for allowing Hamilton’s jury to hear the codefen-dant’s cross-examination of a witness, and for failing to request an independent act instruction, all fail under Strickland. Finally, Hamilton claims that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), invalidates his death sentence. This claim is without merit. See Duest v. State, 855 So.2d 33, 49 (Fla.2003), cert denied, -U.S. -, 124 S.Ct. 2023; 158 L.Ed. 2d 500 (U.S. 2004); Doorbal v. State, 837 So.2d 940, 963 (Fla.), cert denied,-U.S.-, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003).

      . In a related claim, Hamilton alleges trial counsel was ineffective for waiting until two weeks before trial was originally scheduled to consult a mental health expert (Dr. Umesh Mhatre), for failing to ask Dr. Mhatre to explore nonstatutoiy mitigation, and for failing to arrange an interview between Dr. Mhatre and Hamilton's family. This specific claim was not raised in Hamilton’s postconviction motion, and therefore is procedurally barred. See Thompson v. State, 759 So.2d 650, 668 n. 12 (Fla.2000) (finding a claim procedurally barred because it was not alleged in the post-conviction motion filed in the trial court).

      . Hamilton's first two issues allege that trial counsel was ineffective regarding venue, for failing to ensure the jury did not engage in improper deliberations, and for failing to adequately prepare for the penalty phase. These claims were raised in Hamilton's rule 3-.850 proceedings and therefore, are procedurally barred. See Porter v. Crosby, 840 So.2d 981, 984 (Fla.2003) ("[Cjlaims raised in a habeas petition which petitioner has raised in prior proceedings and which have been previously decided on the merits in those proceedings are procedurally barred in the habeas petition."). As his third issue, Hamilton claims appellate counsel was ineffective for failing to raise a Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), claim on direct appeal. Although claims of ineffective assistance of appellate counsel are cognizable in a habeas petition, see Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000), we deny Hamilton's claim because the Bruton claim was not preserved for review. In the absence of fundamental error, appellate counsel cannot be deemed ineffective for failing to raise an unpreserved claim. See Rutherford, 774 So.2d at 646. Fourth, Hamilton claims appellate counsel was ineffective for failing to raise an improper prosecutorial argument claim. Because this claim was addressed by this Court in Hamilton's direct appeal, see Hamilton, 703 So.2d at 1043-44, it is procedurally barred. See Gorby v. State, 819 So.2d 664, 682 (Fla.2002) (stating that ineffective assistance of counsel claim is denied because "this issue was presented in the direct appeal of [appellant's] sentence of death”). As his sixth issue, Hamilton contends that appellate counsel was ineffective for failing to address the issues of venue, the independent acts instruction, the severing of the trials, the testimony of Robert Murphy, the State's improper arguments, and the unconstitutionality of the death penalty. The claim as stated is conclusory and insufficiently pled, and thus is denied. Finally, Hamilton claims the cumulative effect of the errors warrants- relief. However, because Hamilton has failed to demonstrate any individual errors, his cumulative error claim also fails. See Downs v. State, 740 So.2d 506, 509 (Fla.1999).