text:
    James GUZMAN, Appellant, v. STATE of Florida, Appellee. James Guzman, Petitioner, v. State of Florida, Respondent.
    Nos. SC02-860, SC02-2131.
    Supreme Court of Florida.
    Nov. 20, 2003.
    Rehearing Denied March 4, 2004.

      Eric Pinkard, Assistant CCRC, and James L. Driscoll, Jr., Assistant CCRC, Office of the Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
   PER CURIAM.

James Guzman appeals an order of the circuit court denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Guzman also files a petition for a writ of habeas corpus. We have jurisdiction under article V, section 3(b)(1) and (9) of the Florida Constitution. For the following reasons, we affirm the circuit court’s order as to most of the issues presented in Guzman’s rule 3.850 motion, but we remand this case to the circuit court for a ruling on Guzman’s Gig-lio claim as discussed below. We deny Guzman’s petition for a writ of habeas corpus.

BACKGROUND

On August 12, 1991, David Colvin’s body was found lying face down on the bed in the motel room where he lived. Colvin had been stabbed nineteen times. A samurai sword that belonged to Colvin was propped up in a light fixture above his bed; however, no blood or fingerprints were found on the samurai sword. The medical examiner determined that Colvin died between 3 p.m. and midnight on August 10.

After Colvin’s body was found, police officers interviewed other residents of the motel where Colvin had lived. About a week before the murder, Guzman and Martha Cronin, a prostitute and a crack cocaine addict, had begun living together at the motel. The police interviewed both Guzman and Cronin. Each denied having any information about Colvin’s murder. On August 16, 1991, the State published in two local newspapers a reward offer of $500 for information about the case.

The police investigation failed to lead to an arrest until November 23, 1991, when Cronin was arrested on prostitution charges. Cronin volunteered to testify about Colvin’s murder in exchange for a deal in her own case. Cronin then told the police that Guzman had confessed to her that he killed Colvin. The police took Cronin to a motel and paid for her room. Cronin used the room for prostitution and used crack cocaine; then she left the motel. The police later rearrested Cronin. On January 3, 1992, the police paid Cronin $500 by money order delivered to the Vo-lusia County jail. The police detective who arranged the payment could not recall when she first discussed the reward money with Cronin.

Guzman was arrested on December 13, 1991. In January 1992, a grand jury indicted Guzman for the armed robbery and murder of David Colvin. Following a jury trial in September 1992, Guzman was convicted as charged and sentenced to death. On direct appeal, this Court reversed and remanded for a new trial, holding that Guzman’s right to a fair trial was violated because his public defender had a conflict of interest in representing both Guzman and a witness against Guzman. Guzman v. State, 644 So.2d 996, 1000 (Fla.1994).

On retrial in December 1996, Guzman waived his right to a jury in both the guilt and penalty phases. The waiver was at the instance of Guzman and was contrary to the advice of his counsel. Guzman signed a written waiver. Both the trial court and Guzman’s counsel questioned Guzman to ensure that Guzman’s waiver was knowing, voluntary, and intelligent.

At trial, the medical examiner testified that the weapon used to kill Colvin was a single-edged knife or knife-like object with a slightly curved, heavy blade. The medical examiner could not identify the murder weapon used, but he said that Colvin’s samurai sword could have inflicted some of Colvin’s wounds and that a survival knife like one owned by Guzman could have inflicted other wounds.

Guzman’s fingerprints were on the telephone in Colvin’s room. There were blood stains on other parts of the phone, but Guzman’s fingerprints on the phone were not bloody. Blood and saliva samples were taken from Guzman, but nothing was matched to anything found in Colvin’s room. No other physical evidence connected Guzman to the murder.

Guzman testified at trial that on the day before the murder, Guzman helped Colvin move from one room to another in the motel. Guzman said that he used the phone in Colvin’s room at that time and again on the morning of August 10. Cronin confirmed that Guzman telephoned her from Colvin’s room.

On the morning of August 10, Guzman and Colvin left the motel in Colvin’s car. They drank beer at a bar, then went to the International House of Pancakes to eat breakfast. Guzman testified that he and Colvin returned to the motel at about noon. Guzman said that he gave Colvin’s car and room keys back to Colvin and returned to his own room, where Cronin was getting ready to go to work as a prostitute. Cronin left the room at around noon.

Guzman testified that at about 3 p.m., Cronin returned to the room accompanied by Curtis Wallace. Guzman said that Wallace gave him a diamond ring, asking Guzman to trade the ring for crack cocaine. It is undisputed that on August 10, at around 4 p.m. or 5 pan., Guzman took the ring, which had belonged to Colvin, to a drug dealer named Leroy Gadson. Guzman sold the ring to Gadson for drugs and cash. Guzman testified that he then returned to the room and gave Wallace some of the drugs.

Cronin’s testimony at trial contradicted Guzman’s. Cronin said that on the morning of August 10 Guzman told her that he was going to drive Colvin to the bank. Cronin stated that Guzman returned to their room at about 11 a.m. and showed her Colvin’s car keys and room keys, saying he was going to help Colvin move to another room in the motel. Cronin said she left the room at about 11 a.m. to work as a prostitute, and returned at about 2:30 p.m. She said that at about 3 p.m. Guzman came back to their room, looking upset and carrying a garbage bag that contained white rags. Cronin said that Guzman told her he killed Colvin. She said Guzman told her that Colvin woke up while Guzman was in the process of robbing him, so Guzman hit Colvin in the head and then stabbed him with the samurai sword. Cronin said that Guzman showed her a ring and some cash he had taken from Colvin. Cronin identified the ring at trial. Cronin said that Guzman told her before the murder that Colvin would be easy to rob because he was always drunk and usually had money. Cronin testified that Guzman had said in a separate conversation that if he ever robbed anyone he would kill them, and that Guzman was holding his survival knife when he said this.

Cronin said that when she was arrested for prostitution in November 1991, she offered to tell the arresting officers who killed Colvin. However, Cronin denied that she received any deal for her testimony against Guzman. She said she was taken to a motel room for protection, but that she used the room for prostitution and continued to use crack cocaine, so she got no deal from the State. The detective who paid the $500 to Cronin also testified at trial, stating that Cronin received no deal for her testimony against Guzman.

Guzman’s counsel attempted to impeach Cronin by bringing out that she was a prostitute and a drug addict, that she testified against Guzman while she faced charges of prostitution, and that she was angry at Guzman because he was involved with other women. Guzman’s counsel also presented the testimony of Carmelo Garcia, who said Cronin told him in February of 1992 that Guzman had not killed anyone and that Cronin admitted she had lied to the police because she had been arrested.

Paul Rogers, a jailhouse informant, corroborated Cronin’s testimony against Guzman. Rogers and Guzman shared a jail cell during the spring of 1992. At trial, Rogers testified that Guzman said that he robbed and killed Colvin. Rogers testified that Guzman told him that he used Col-vin’s key to enter Colvin’s room, and that Colvin woke up while Guzman was robbing him. Rogers said that Guzman told him that he hit Colvin in the head with a samurai sword and stabbed him ten or eleven times. Rogers said Guzman confessed that he took Colvin’s ring and some cash, cleaned up the sword, and put everything in the dumpster.

Guzman’s counsel attempted to impeach Rogers by asking if Rogers had read Guzman’s trial papers, which Guzman kept in the cell they shared, but Rogers denied reading Guzman’s papers. Rogers also denied learning of the case by reading the newspaper. Rogers admitted that after he initially told police that Guzman confessed to him, Rogers had signed an affidavit saying he knew nothing about Colvin’s murder and indicating that he would not testify against Guzman.

Following the presentation of this evidence at a bench trial, the trial court convicted Guzman of armed robbery and first-degree murder, and imposed the death penalty. In its sentencing order, the court found five aggravating factors, including that the murder was committed in a cold, calculated, and premeditated manner (CCP). The court found no statutory mitigating factors. As nonstatutory mitigation, the court found that Guzman’s alcohol and drug dependency was entitled to little weight.

On direct appeal from his second trial, Guzman raised eight issues. This Court held that the evidence did not support the CCP aggravator, but affirmed Guzman’s convictions and death sentence. Guzman v. State, 721 So.2d 1155 (Fla.1998). The United States Supreme Court denied certiorari. Guzman v. Florida, 526 U.S. 1102, 119 S.Ct. 1583, 143 L.Ed.2d 677 (1999).

Guzman filed a rule 3.850 motion for postconviction relief on March 27, 2000, and an amended motion on November 30, 2000, raising eleven claims. During the pendency of his 3.850 motion, Guzman filed a motion for DNA testing of a clump of hair recovered from the back of Colvin’s thigh at the murder scene. The State filed a response stating that the hair evidence had been destroyed in November 1992. Guzman amended his 3.850 motion to add three claims related to the destruction of the hair evidence. The postconviction court, which was the same court that convicted and sentenced Guzman, held an evidentiary hearing on Guzman’s 3.850 motion and denied relief. Guzman appeals the postconviction court’s denial of his rule 3.850 motion, and contemporaneously petitions this Court for a writ of habeas corpus.

RULE 3.850 APPEAL

Guzman asserts that the circuit court erred in denying four claims: (1) the' State committed a Giglio violation by permitting false testimony at trial denying that State witness Martha Cronin was paid for her testimony against Guzman; (2) the State committed a Brady violation by failing to disclose to the defense the State’s $500 payment to Cronin; (3) the State destroyed potentially exculpatory DNA evidence^ — a clump of hair from the crime scene — in bad faith; and (4) Guzman was denied a fair trial due to the prosecutor’s presenting misleading evidence and improper argument. With respect to Guzman’s Giglio claim, we clarify the appropriate standard and remand for the trial court to apply the law to the facts. We deny Guzman relief on his remaining claims.

I. Giglio Claim

In his first claim, Guzman asserts that Martha Cronin and the lead detective on Colvin’s murder case both testified falsely at trial, violating Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). To establish a Giglio violation, it must be shown that: (l).-the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material. Ventura v. State, 794 So.2d 553, 562 (Fla.2001); - see also Rose v. State, 774 So.2d 629, 635 (Fla.2000).

The first two prongs of the Gig-lio test are satisfied in this case. Both Cronin and the lead detective on the case testified falsely at trial that Cronin received no benefit for her testimony against Guzman other than being taken to a motel rather than jail when she was arrested. In fact, the State paid Cronin $500, a significant sum to an admitted crack cocaine addict and prostitute. The knowledge prong is satisfied because the knowledge of the detective who paid the reward money to Cronin is imputed to the prosecutor who tried the case. See Gorham v. State, 597 So.2d 782, 784 (Fla.1992) (holding that the prosecutor is charged with constructive knowledge of evidence withheld by other state agents, such as law enforcement officers).

The only disputed issue with respect to Guzman’s Giglio claim is the third prong, which requires a finding that the false testimony presented at trial was material. See Ventura, 794 So.2d at 562. Guzman asserts that the postconviction court applied the wrong standard in deciding the materiality prong of his Giglio claim. In its order denying Guzman’s rule 3.850 motion, the postconviction court articulated the Giglio standard of materiality as:

Under Giglio, a statement is material if “there is a reasonable probability that the false evidence may have affected the' judgment of the jury.” [Ventura v. State, 794 So.2d 553, 563 (Fla.2001)] (quoting Routly [v. State], 590 So.2d [397, 400 (Fla.1991).]) “In analyzing this issue ... courts must focus on whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. (quoting White v. State, 729 So.2d 909, 913 (Fla.1999)).

Order Denying Claims IIC(l), IIE(l), IIE(4), etc. at 12. After evaluating the State’s $500 payment to Cronin in light of the other evidence presented at trial, the postconviction court concluded that “there is not a reasonable probability that the false evidence would put the whole case" in such a different light as to undermine confidence in the verdict.” Id. at 13.

The postconviction court stated and applied the Giglio standard of materiality from our decisions in Ventura v. State, 794 So.2d 553 (Fla.2001), White v. State, 729 So.2d 909, 913 (Fla.1999), and Routly v. State, 590 So.2d 397 (Fla.1991). Having reviewed these decisions, as well as our other Giglio and Brady decisions, we conclude that our precedent in this area has lacked clarity, resulting in some confusion and improper merging of the Giglio and Brady materiality standards. For example, in Rose v. State, 774 So.2d 629, 635 (Fla.2000), we said: “The standard for determining whether false testimony is ‘material’ under Giglio is the same as the standard for determining whether the State withheld ‘material’ in violation of Brady.” In reliance on Rose, the trial court’s order that we approved in Trepal erroneously stated that in addressing a Giglio claim “[t]he materiality prong is the same as that used in Brady.” Trepal v. State, 846 So.2d 405, 425 (Fla.2003). We recede from Rose and Trepal to the extent they stand for the incorrect legal principle that the “materiality” prongs of Brady and Giglio are the same. We now clarify the two standards and the important distinction between them.

The Brady standard of materiality applies where the prosecutor fails to disclose favorable evidence to the defense. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under Brady, the undisclosed evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable -probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A criminal defendant alleging a Brady violation bears the burden to show prejudice, i.e., to show a reasonable probability that the undisclosed evidence would have produced a different verdict. Strickler v. Greene, 527 U.S. 263, 281 n. 20, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

By contrast to an allegation of suppression of evidence under Brady, a Giglio claim is based on the prosecutor’s knowing presentation at trial of false testimony against the defendant. See Giglio, 405 U.S. at 154-55, 92 S.Ct. 763. Under Giglio, where the prosecutor knowingly uses perjured testimony, or fails to correct what the prosecutor later learns is false testimony, the false evidence is material “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Justice Blackmun observed in Bagley that the test “may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.” 473 U.S. at 679-80, 105 S.Ct. 3375. The State, as the beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt. Id. at 680 n. 9, 105 S.Ct. 3375 (stating that “this Court’s precedents indicate that the standard of review applicable to the knowing -use of perjured testimony is - equivalent to the Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)] harmless-error standard”).

Thus, while materiality is a component of both a Giglio and a Brady claim, the Giglio standard of materiality is more defense friendly. The Giglio standard reflects a heightened judicial concern, and correspondingly heightened judicial scrutiny,, where perjured testimony is used to convict a defendant. See Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (explaining that the defense-friendly- standard of materiality is justified because the knowing use of perjured testimony involves prosecutorial misconduct and “a corruption of the truth-seeking function of the trial process”) (citing Agurs, 427 U.S. at 104, 96 S.Ct. 2392). Under Giglio, once a defendant has established that the prosecutor knowingly presented false testimony at trial, the State bears the burden to show that the false evidence was not material.

In Guzman’s case, the postconviction court’s resolution of the Giglio claim does not sufficiently reflect the standard appropriate to a Giglio claim. In its order, the court did not state that there was no reasonable likelihood that the false evidence regarding the $500 payment to Cronin could have affected the court’s judgment as factfinder. Nor did the court find that the State had demonstrated that the false evidence was harmless beyond a reasonable doubt. Because of this lack of findings critical to a Giglio analysis, we cannot determine that the court adequately distinguished the Giglio standard from the Brady standard when considering and ultimately deciding the Giglio claim. We therefore remand this claim to the .trial court for reconsideration and for clarification of its ruling on the materiality prong of Guzman’s Giglio claim. To reiterate, the proper question under Giglio is whether there is any reasonable likelihood that the false testimony could have affected the court’s judgment as the factfinder in this case. If there is any reasonable likelihood that the false testimony could have affected the judgment, a new trial is required. The State bears the burden of proving that the presentation of the false testimony was harmless beyond a reasonable doubt.

II. Brady Claim

Next, Guzman claims that the State committed a Brady violation by failing to disclose that Martha Cronin received a $500 reward for her testimony against Guzman. Brady requires the State to disclose material information within the State’s possession or control that tends to negate the guilt of the defendant. To establish a Brady violation, a defendant must show: (1) evidence favorable to the accused, because it is either exculpatory or impeaching; (2) that the evidence was suppressed by the State, either willfully or inadvertently; and (3) that prejudice ensued. Jennings v. State, 782 So.2d 853, 856 (Fla.2001).

The first prong of Brady is satisfied in this case because the reward to Cronin was potentially favorable evidence to Guzman as impeachment evidence against Cronin. The second prong is satisfied because Guzman filed a specific discovery demand requesting from the State all agreements or any consideration given to a State witness, and the State’s written response stated that Cronin received no “agreements, assurances of nonprosecution or leniency, offers, benefits or understandings.”

The test for prejudice or materiality under Brady is whether, had the evidence been disclosed, there is a reasonable probability of a different result, expressed as a probability sufficient to undermine confidence in the outcome of the proceedings. See Cardona v. State, 826 So.2d 968, 973 (Fla.2002). We review de novo the postconviction court’s determination that the suppressed evidence was not material under Brady. Way v. State, 760 So.2d 903, 913 (Fla.2000).

Having reviewed the record, we conclude that there is no reasonable probability that, had the reward evidence been disclosed, the outcome of the trial would have been different. During cross-examination at trial, Guzman’s counsel presented significant impeachment evidence against Cronin: her addiction to crack cocaine; her multiple arrests for prostitution; her attempt to make a deal with the State when she was arrested, in exchange for her testimony against Guzman; her initial claim to know nothing about Colvin’s murder; and her jealousy of Guzman’s relationships with other women. Guzman also presented the testimony of Carmelo Garcia, who said that Cronin told him she had lied to the police about Guzman committing the murder. In light of the significant impeachment evidence presented at trial, evidence of the State’s reward to Cronin would have been merely cumulative. Further, the record contains other evidence of Guzman’s guilt apart from Cronin’s testimony. Paul Rogers, the jailhouse informant who shared a cell with Guzman, corroborated Cronin’s testimony. It is undisputed that Guzman possessed Colvin’s ring and traded it for drugs and cash. Finally, the medical examiner testified at trial that Colvin’s sword and Guzman’s survival knife were consistent with the murder weapon. In light of this evidence of Guzman’s guilt, and in light of the significant impeachment of Cronin apart from her receipt of the $500 reward, we conclude that there was not a reasonable probability that had the information regarding the reward been disclosed to Guzman, the result of the proceeding would have been different. The reward evidence fails to put the whole case in such a different light as to undermine confidence in the verdict. Guzman is not entitled to relief on Ms Brady claim.

III. Claim of Bad Faith Destruction of Evidence

Guzman next argues ■ that he was deprived of due process by the State’s bad faith destruction of a clump of hair found on the back of Colvin’s thigh at the murder scene. Guzman asserts'that the hair was potentially exculpatory evidence because, if DNA testing showed that the hair' was not Guzman’s or Colvin’s, this would show that' someone other than Guzman killed Colvin. Guzman argues that the State’s bad faith is established by the destruction of evidence without a written request or court order, in violation of the Daytona Beach Police Department’s rules and procedures, particularly in light of the fact that the hair evidence was destroyed by an officer who was subsequently convicted of stealing items from the evidence room. As alternatives to a bad faith claim based on these facts, Guzman asserts that the State committed a Brady violation by failing to disclose the destruction of the hair evidence, and that Guzman’s trial counsel was ineffective in failing to ascertain that the hair evidence was destroyed.

The loss or destruction of evidence that is potentially useful to the defense violates due process only if the defendant can show bad faith on the part of the police or prosecution. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Under Young-blood, bad faith exists- only when police intentionally destroy evidence they believe would exonerate a defendant. Youngblood explained that the “presence or absence of bad faith ... must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 57 n. *, 109 S.Ct: 333. Evidence that has not been examined or tested by government agents does not have “apparent' exculpatory ■ value” and thus cannot form the basis of a claim of bad faith destruction of evidence. See id. at 57, 109 S.Ct. 333 (rejecting a due process claim based on the government’s failure to preserve .evidence “of which no more can be said than that it could have been subjected to tests, the results of which might, have exonerated the defendant”); see also King v. State, 808 So.2d 1237, 1242 (Fla.2002) (holding that a defendant failed to show bad faith on the part of the State in destroying hair and tissue evidence, in part because the defendant failed to show the police made a “conscious effort to prevent the defense from securing the evidence”); Merck v. State, 664 So.2d 939, 942 (Fla.1995) (holding that the defendant failed to show, bad faith in a police detective’s failure to preserve a pair of pants found at a crime scene, because the detective believed they did not have evi-dentiary value).

Guzman argues that bad faith exists because the police destroyed the hair evidence in violation of established practices and procedures. However, under Young-blood and this Court’s precedent, the determination of bad faith does not turn on whether law enforcement officers followed established procedures. Instead, bad faith exists only when law enforcement officers intentionally destroy evidence they believe would exonerate a defendant. See Youngblood, 488 U.S. at 57, 1.09 S.Ct. 333. Guzman has not.shown that the hair sample from the murder scene would exonerate him, or that police officers ever believed it might. ■ To the contrary, the evidence shows that police officers believed the hair evidence was irrelevant to solving the case. The lead detective testified at the rule 3.850 hearing that she believed the clump of hair was -the victim’s since the victim’s skull had been cut multiple times, the clump of hair appeared to have been cut, the hair was bloody, and the clump of hair matched the victim’s hair color. The detective stated that she believed the hair sample was not significant to the case.

Thus, as in Merck, the police officers in this case believed that the destroyed evidence had no evidentiary value. Guzman has not shown that any State actor intentionally deprived him of evidence which the State actor believed to be exculpatory. Guzman asserts that if the hair sample had been tested, the result of the test might have exonerated him; however, the destruction of evidence that, if tested, might have exonerated Guzman is not sufficient under Youngblood to establish a due process violation. Guzman’s claim of bad faith destruction of evidence must fail.

Likewise, there is no merit in Guzman’s claim that the State committed a Brady violation by failing to disclose that the hair evidence had been destroyed. The first requisite element of a Brady violation is evidence favorable to the accused. Jennings v. State, 782 So.2d 853, 856 (Fla.2001). Guzman has not shown that the hair was evidence favorable to him. As discussed above, contrary to Guzman’s argument, the destruction of the hair evidence would not have enabled him to obtain a dismissal under Youngblood. Thus, Guzman fails to establish the first requisite element of a Brady violation.

Similarly, Guzman has failed to show ineffective assistance of counsel based on his counsel’s failure to discover the destruction of the hair evidence. To establish a claim of ineffective assistance of counsel, a defendant must establish deficient performance and prejudice. See Rutherford v. State, 727 So.2d 216, 218 (Fla.1998) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We do not reach the prejudice prong of a Strickland analysis because we find that Guzman’s counsel was not deficient in failing to pursue the hair evidence so as to discover its destruction before trial. Guzman’s trial counsel testified at the rule 3.850 hearing that he thought the clump of hair was the victim’s, based on the wounds to the victim’s skull, the force of the blows and blood spatter indicating that hair could have been dislodged, and the fact that the hair was bloody. This was a reasonable conclusion; as stated above, it was the same conclusion reached by the lead detective on the case. Because Guzman’s counsel reasonably discounted the evidentiary value of the hair sample, counsel was not constitutionally ineffective with regard to this issue.

IV. Prosecutorial Misconduct Claim

In his final rule 3.850 claim, Guzman asserts that the prosecutor engaged in misconduct at trial by eliciting testimony about Martha Cronin’s polygraph examination and about Guzman’s collateral crime of drug possession. At trial, Guzman objected to the prosecutor’s attempts to introduce this evidence, and the trial court ruled that the evidence should be excluded. Guzman does not assert error in the trial court’s evidentiary rulings, but he claims that the trial proceeding was tainted by the prosecutor’s references to inadmissible evidence, because these references placed inflammatory and prejudicial evidence before the fact-finder.

These claims are procedurally barred as they could have and should have been raised on direct appeal. See Brown v. State, 755 So.2d 616, 621 (Fla.2000). If considered on the merits, these claims fail because Guzman’s trial was a nonjury trial, and the judge as finder of fact is presumed to have disregarded any inadmissible evidence or improper argument. See First Atlantic Nat’l Bank of Daytona Beach v. Cobbett, 82 So.2d 870, 871 (Fla.1955) (stating that a judge trying a case without a jury “is in a position to evaluate the testimony and discard that which is improper or which has little or no evidentiary value”). Even where a judge erroneously admits improper evidence, the judge as factfinder is presumed to disregard it. See, e.g., State v. Arroyo, 422 So.2d 50, 51 (Fla. 3d DCA 1982). Here, the judge did not err, but appropriately excluded inadmissible evidence. Given these evidentia-ry rulings, the judge a fortiori may be presumed to have disregarded the inadmissible evidence. Therefore, assuming arguendo that the prosecutor’s attempts to introduce the evidence were improper, the attempts were harmless.

PETITION FOR WRIT OF HABEAS CORPUS

In his petition for a writ of habeas corpus, Guzman raises two claims: (1) his waiver of a jury for the penalty phase of his . trial was invalid in light of Ring and Apprendi; (2) he may be incompetent to be executed.

I. Claim of Invalid Waiver of Jury Trial

Guzman claims that his waiver of a jury for the penalty phase of his trial was invalid. A defendant’s waiver of a jury trial is valid only if the waiver is knowing, intelligent, and voluntary. Tucker v. State, 559 So.2d 218, 219 (Fla.1990) (citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). Guzman asserts that he did not knowingly waive his jury rights, because at the time of his waiver in 1996, neither the trial court nor defense counsel knew the rights that would be granted by Ring and Ap-prendi, so they did not explain these rights to Guzman. This claim lacks merit because Ring and Apprendi did not invalidate any aspect of Florida’s death sentencing scheme. See Bottoson v. Moore, 833 So.2d 693, 695 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002). Thus, Ring did not expand Guzman’s jury rights beyond what he knew when he waived those rights. This claim is denied.

II. Claim of Incompetence to be Executed

Guzman’s second habeas claim is that he may be incompetent to be executed. He concedes that the claim is premature under Florida Rules of Criminal Procedure 3.811 and 3.812. Guzman asserts that he makes this argument to preserve his ability to pursue a similar claim in the federal system. We agree with Guzman’s concession that this issue is not yet ripe, and we therefore find it to be without merit.

CONCLUSION

For the reasons stated above, we remand Guzman’s Giglio claim to the post-conviction court for application of the Gig-lio standard to the facts. In all other respects, we affirm the court’s order denying Guzman’s rule 3.850 motion. We commend the postconviction court for its thorough and well-reasoned order, which facilitated our review. We deny Guzman’s petition for a writ of habeas corpus.

It is so ordered.

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

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . At the time of Guzman's arrest for Colvin’s murder on December 13, 1991, Guzman had a survival knife in his possession.

      . The five aggravating factors found by the trial court were: (1) Guzman was previously convicted of a violent felony; (2) the murder was committed in the course of a robbery; (3) the murder was committed for the purpose of avoiding arrest; (4) the murder was committed in a cold, calculated, and premeditated manner (CCP); and (5) the murder was especially heinous, atrocious, or cruel (HAC).

      . Guzman contended that the trial judge erred by (1) improperly denying his motion for mistrial; (2) convicting him in the absence of substantial and competent evidence of guilt; (3) failing to dismiss the case due to double jeopardy; (4) improperly ruling on "various issues"; (5) imposing a disproportionate death sentence; (6) improperly finding the HAC aggravator; (7) improperly finding the "avoiding arrest" aggravator; and (8) improperly finding the CCP aggravator.

      . The eleven claims Guzman presented to the trial court in his 3.850 motion were: (1) his conviction and sentence on retrial violate double jeopardy as well as protections against prosecutorial misconduct and ineffective assistance of counsel; (2) ineffective assistance of counsel in the guilt phase in failing to present evidence, cross-examine witnesses, and use experts; (3) ineffective assistance of counsel in the penalty phase in failing to adequately investigate and present mitigating evidence, and in failing to adequately challenge the State's case; (4) failure of the mental health expert to conduct a competent evaluation; (5) violation of due process rights in the State's withholding material exculpatory evidence or failing to correct material false testimony; (6) prosecutorial misconduct in presenting misleading evidence and improper argument; (7) Florida’s capital sentencing statute is unconstitutional; (8) execution by electrocution is cruel and unusual punishment; (9) execution by lethal injection is cruel and unusual punishment; (10) defendant may be incompetent at the time of execution; and (11) the cumulative effect of the errors deprived defendant of a fundamentally fair trial.

      . Florida's DNA statute, section 925.11, Florida Statutes (2002), was enacted effective October 1, 2001, giving Guzman the right to this testing.

      . The three claims Guzman added were: (12) the State’s bad faith destruction of exculpatory evidence violated Guzman’s due process rights; (13) the State committed a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose the destruction of the hair evidence; and (14) ineffective assistance of trial counsel in failing to ascertain that the hair evidence had been destroyed.

      . In her specially concurring opinion in Trepal v. State, 846 So.2d 405, 437 (Fla.)(Pariente, J., specially concurring), cert. denied, - U.S. -, 124 S.Ct. 412, 157 L.Ed.2d 295 (2003), Justice Pariente noted the confusion and succinctly stated the difference between the standards.

      . This is the same standard that is used to evaluate the prejudice prong of an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (stating that "the appropriate test for prejudice [in ineffective assistance of counsel claims] finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution,” that in an ineffective assistance of counsel claim "[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” and that "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome”).

      .In United States v. Alzate, 47 F.3d 1103 (11th Cir.1995) the court, after articulating the standard of materiality applicable to Brady claims, stated:
      A different and more defense-friendly standard of materiality applies where the prosecutor knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony. Where either of those events has happened, the falsehood is deemed to be material "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103[, 96 S.Ct. 2392, 49 L.Ed.2d 342] (1976) (emphasis added). As the Supreme Court has held, this standard of materiality is equivalent to the Chapman v. California, 386 U.S. 18, 24[, 87 S.Ct. 824, 17 L.Ed.2d 705] (1967), “harmless beyond a reasonable doubt" standard. Bagley, 473 U.S. at 679 n. 9[, 105 S.Ct. 3375],

        Id. at 1110 (citations and footnote omitted), quoted in Trepal, 846 So.2d at 439 (Pariente, J., specially concurring).

      . The Alzate court stated that the Brady standard of materiality “is substantially more difficult for a defendant to meet than the 'co.uld have affected’ standard we apply [to Giglio claims].” Alzate, 47 F.3d at 1110 n. 7.

      . In its articulation of the Giglio standard, the- lower court correctly stated that the false testimony is material if “there is a reasonable probability that the false evidence may have affected the judgment of the jury.” The confusion, however, is attributable to the second sentence in the court's articulation, stating that, "[i]n analyzing this issue ... courts must focus on whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” This second sentence is correctly used to analyze Brady claims, but is inappropriate to analyzing claims under the more defense-friendly standard of Giglio.

      . Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. David A. McCORMICK, Appellee.
    No. SC02-2194.
    Supreme Court of Florida.
    March 4, 2004.
    Charles J. Crist, Jr., Attorney General, and Patrick W. Krechowski and Kellie A. Nielan, Assistant Attorneys General, Day-tona Beach, FL, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

We have on appeal a decision of a district court of appeal declaring invalid a state statute. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const. For the reasons expressed in our opinion in Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), we summarily affirm the decision of the Fifth District Court of Appeal in McCormick v. State, 826 So.2d 476 (Fla. 5th DCA 2002).

It is so ordered.

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


author: ANSTEAD, C.J. BELL, J.,

text:
    STATE of Florida, Petitioner, v. Victor GIORGETTI, Respondent.
    No. SC02-1812.
    Supreme Court of Florida.
    March 4, 2004.

      Charles. J. Crist, Jr., Attorney General, and Michael J. Neimand and Douglas J. Glaid, Senior Assistant Attorneys General, Fort Lauderdale, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   ANSTEAD, C.J.

We have for review a decision from the Fourth District Court of Appeal on a question which the court certified to be of great public importance. Giorgetti v. State, 821 So.2d 417 (Fla. 4th DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons stated in this opinion, we rephrase the question:

Does the crime created by the sexual offender registration statutes require the State to prove knowledge of the registration requirement by the offender as an element of the crime?

We answer the rephrased question in the affirmative and approve the Fourth District’s decision, which holds that before an offender may be held criminally liable for failing to register, the State must prove that he was aware of a registration requirement.

STATEMENT OF THE CASE AND FACTS

In November of 1992, respondent, Victor Giorgetti, was convicted of indecent assault and sentenced to two years imprisonment, followed by seven years’ probation. Giorgetti v. State, 821 So.2d 417, 418 (Fla. 4th DCA 2002). In March of 1997, Giorgetti’s probation status was changed to administrative probation, meaning that while the probationary term technically continued, Giorgetti was no longer required to contact his probation officer. Id. Thereafter, on April 30, 1999, Giorgetti’s probation status was ended. Id. Following the termination of probation, Giorgetti moved to a new address. Id. at 418-19.

Sometime after his probation was terminated, a police officer came into contact with Giorgetti at his new address while the officer was looking for another person on an unrelated matter. Id. at 419. The officer asked Giorgetti for' identification and when the officer checked Giorgetti’s name using a mobile computer system, it identified Giorgetti as a sexual offender. The officer also noted that the address shown on Giorgetti’s identification was different from the address where Giorgetti was then residing. Id. As a result of this contact, Giorgetti was arrested and charged with failing to report his change of address as required in sections 943.0435 and 944.607(9), Florida Statutes (2000) (hereinafter “the sexual offender registration statutes”). Id. Violations of these registration statutes are punishable as third-degree felonies.

Giorgetti pleaded not guilty to the charges, claiming he was not aware of the registration requirements, and he subsequently challenged the constitutionality of the sexual offender registration statutes based on the absence of a knowledge requirement. 821 So.2d at 419. The trial court denied Giorgetti’s pretrial constitutional challenge, and at trial the State asked for, and the trial court gave, a jury instruction explaining that the State was not required to prove that this statute had an element of knowledge or that Giorgetti intended to violate the statute. Id. Gior-getti was convicted of violating the sexual offender registration statutes.

Giorgetti appealed his convictions to the Fourth District Court of Appeal, challenging the trial court’s ruling that no proof of Giorgetti’s knowledge of the registration provisions of the statutes had been required. Id. Upon a review of United States Supreme Court decisions, and this Court’s decision in Chicone v. State, 684 So.2d 736 (Fla.1996), the district court reversed Giorgetti’s conviction and remanded for a new trial. The court concluded that because “the violation of the sexual offender registration statutes is a felony, absent express contrary intent by the legislature, we must presume that mens rea is an element of the crime.” Giorgetti, 821 So.2d at 422. The court explained:

[W]e conclude that the trial court erred in giving the special instruction absolving the state of the burden to prove guilty knowledge or scienter or mens rea in this prosecution for a criminal violation of the sexual offender registration statutes. These statutes create no mere informational reporting requirement, the violation of which is punished with a small fine. In this case the penalty for the offense turned out to be more than six and one-half years imprisonment. In spite of the failure of the legislature to include an explicit element of intent in the statutory text, the authorities cited above require the courts to read a “broadly applicable” intent requirement into the state’s burden of proof. We do so now, thus requiring a new trial.

Id. The Fourth District certified the same issue it resolved as one of great public importance.

LAW AND ANALYSIS

Preference in Favor of Knowledge

Judge Farmer’s opinion for the district court (reviewing the controlling decisions of this Court and the of United States Supreme Court), provides an excellent analysis and record of the historical preference in favor of a requirement of knowledge. We acknowledge and repeat his efforts here to explain our similar conclusion.

Initially, we would note that the Legislature generally has broad authority to determine any requirement for intent or knowledge in the definition of a crime. See Reynolds v. State, 842 So.2d 46, 49 (Fla.2002). To determine whether the Legislature included a knowledge requirement in any given statute, we first look to the statute’s plain language. Id. In the instant case, however, the sexual offender registration statutes provide no explicit guidance as to whether the Legislature intended there to be a knowledge requirement for proving a violation of the statute. See § 943.0435, Fla. Stat. (2000); § 944.607(9), Fla. Stat. (2000). The statutory provisions dealing with the sexual offender registration requirements simply contain no express direction.

At common law, all crimes consisted of both an act or omission coupled with a requisite guilty knowledge or mens rea. See United States v. Balint, 258 U.S. 250, 251, 42 S.Ct. 301, 66 L.Ed. 604 (1922). Hence, as a general rule, guilty knowledge or mens rea was a necessary element in the proof of every crime. Id.; see also United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (“The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.”). Subsequently, as chronicled in numerous U.S. Supreme Court decisions, this rule was followed with regard to statutorily defined crimes, even if the statute did not expressly include a knowledge requirement. See Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (“[SJilence ... does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.”). In fact, the United States Supreme Court “has on a number of occasions read a state-of-mind component into an offense eyen when the statutory definition did not in terms so provide.” United States Gypsum Co., 438 U.S. at 437, 98 S.Ct. 2864. Moreover, because of the strength of the traditional rule that requires mens rea, offenses that require no mens rea are generally disfavored. Staples, 511 U.S. at 606, 114 S.Ct. 1793.

Thus, the Supreme Court has concluded that “some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Id. In other words, the Court has virtually created a presumption in favor of a guilty knowledge element absent an express provision to the contrary.

As noted by Judge Farmer, we relied on these Supreme Court decisions in Chicone v. State, 684 So.2d 736 (Fla.1996), wherein we examined sections 893.13(1)®, Florida Statutes (1991) (possession of controlled substance) and 893.147(1), Florida Statutes (1995) (possession of drug paraphernalia). See Chicone, 684 So.2d at 737-38. Like the sexual offender registration statutes in the instant case, both possession statutes involved in Chicone were silent as to whether a knowledge element was required. Id. After setting out the Supreme Court decisions discussed above, we explained:

The United States Supreme Court has stated that offenses that require no mens rea generally are disfavored, and has suggested that some indication of legislative intent, express or implied, is required to dispense with mens rea as an element of a crime. There is no such indication of legislative intent to dispense with mens rea here. Our holding depends substantially on our view that if the legislature had intended to make criminals out of people who were wholly ignorant of the offending characteristics of items in their possession, and subject them to lengthy prison terms, it would have spoken more clearly to that effect. Interpreting the statutes as dispensing with scienter would “criminalize a broad range of apparently innocent conduct.”
... We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. ... As all agree, including the State, the legislature would not ordinarily criminalize the innocent possession of illegal drugs.

Id. at 743-44 (citations and footnotes omitted). Thus, like the United States Supreme Court, we held in Chicone that we will ordinarily presume that the Legislature intends statutes defining a criminal ..violation to contain a knowledge require-h ment absent an express indication of a contrary intent. An express provision dispensing with guilty knowledge will always control, of course, since in that instance the Legislature will have made its intent clear.

Limitations on the Removal of Knowledge as a Requirement

Implicit in the common law rule and the subsequent U.S. Supreme Court decisions is the recognition that knowledge is desirable in order “to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge.” Chicone, 684 So.2d at 743 (quoting Frank v. State, 199 So.2d 117, 121 (Fla. 1st DCA 1967)). This policy is consistent with the concept that criminal sanctions are ordinarily reserved for acts of intentional misconduct. Chicone also noted the judicial policy that “[t]he group of offenses punishable without proof of any criminal intent must be sharply limited.” Id. (quoting Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L.Rev. 55, 70 (1933)). Moreover, as the U.S. Supreme Court has noted, although the legislature has the broad authority to define the elements of a crime, the legislature must still “act within any applicable constitutional constraints in defining criminal offenses.” Liparota v. United States, 471 U.S. 419, 424 n. 6, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985).

In Chicone, we relied extensively on Judge Cowart’s opinion in State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982). In Oxx, Judge Cowart recognized three possible restraints on the Legislature’s power to eliminate scienter requirements from a statute: (1) statutes that codify common law mala in se or “infamous” crimes where intent is considered to be so inherent in the concept of the common law offense that it was deemed included as an element; (2) statutes that would tend to chill the exercise of First Amendment rights if intent were not required; and (3) statutes that impose an affirmative duty to act on an individual, and then penalize the failure to act. See Oxx, 417 So.2d at 289-90. With regard to this third category, Judge Cowart explained:

[A] third constitutional restriction may come into play where the statute imposes an affirmative duty to act and then penalizes the failure to comply. In such an instance, if the failure to act otherwise amounts to essentially innocent conduct, the failure of the penal statute to require some specific intent or knowledge may violate due process.

Id. As an example of this third restriction, Judge Cowart cited to the Supreme ■ Court’s decision in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). We find the Lambert decision and its analysis controlling to our decision here.

Lambert

In Lambert, the Supreme Court held that a Los Angeles municipal ordinance similar to the statute in the instant case was unconstitutional because it violated the due process requirements of the Fourteenth Amendment. Id. at 227, 78 S.Ct. 240. The Los Angeles ordinance required people previously convicted of a felony to register with the chief of police. Id. If the person remained in Los Angeles for more than five days without registering, the person was deemed to have violated the registration law and was subject to criminal penalties. Id. at 227, 78 S.Ct. 240.

The defendant in the case had lived in Los Angeles for seven years and the Court “assume[d] that [she] had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused.” Id. The Court recognized that lawmakers had “wide latitude ... to declare an offense and to exclude elements of knowledge and diligence from its definition.” Id. at 228, 78 S.Ct. 240. Although the Court recognized the legal maxim that “ignorance of the law will not excuse,” it also stressed that due process places limits on the exercise of this maxim. Id. The Court distinguished the registration statute because it dealt with “conduct that is wholly passive-mere failure to register.” Id. The Court noted that in such circumstances notice of the requirements to register was essential to the concept of due process. Id. (“Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.”).

Ultimately, the Court held that where there is no notice of the duty to register, due process does not allow a conviction for failing to register:

We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, “A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.

Id. at 229-30, 78 S.Ct. 240. Like the U.S. Supreme Court and the Fourth District, we reach a similar conclusion here.

Constitutional Analysis

We are also obligated to construe statutes in a manner that avoids a holding that a statute may be unconstitutional'.' In Gray v. Central Florida Lumber Co., 104 Fla. 446, 140 So. 320 (1932), this Court listed several, canons of construction to be followed in interpreting statutory acts:

(1) On its face every act of the Legislature is presumed to be constitutional; (2) every doubt as to its constitutionality must be resolved in its favor; (3) if the act admits of two interpretations, one of which would lead to its constitutionality and the other to its unconstitutionality, the former rather than the latter must be adopted....

Id. at 323. Hence, even if our analysis in Chicone did not control the answer to the certified question in the instant case, the canons of statutory construction requiring us to interpret -the statutes in a way as to avoid any potential constitutional quandaries would require us to interpret1 the statute in a manner consistent with due process requirements as described in Lambert. Because scienter is often necessary to comport with due process- requirements, we ascribe the Legislature with having intended to include such a requirement. Cf. United States v. X-Citement Video, Inc., 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (noting, in case where intent was read into statute to avoid constitutionality problems, “we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court”).

State’s Contention

Reduced to its essence, the State’s argument is that the Fourth District should have determined that a violation of the sexual offender registration statutes is a strict liability crime with no intent or mens rea requirement. The State’s argument is premised on the assertion that the sexual offender statute is “regulatory” and therefore it should be construed in favor of the public and not the defendant. It is true that the Supreme Court has determined that .a certain class of “public welfare offenses” do not require intent. See generally Morissette v. United States, 342 U.S, 246, 255-56, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

However, the Supreme Court has made it clear that intent is less necessary as an element of a public welfare offense because the “penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.” Id.; see also Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L.Rev. 55, 72 (1933) (stating that it is a “cardinal principle” of public welfare offenses that the penalty not be severe). In Staples, the Court recognized the limitations on such offenses noting that “the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary.” Staples, 511 U.S. at 616, 114 S.Ct. 1793. Thus, the Court determined that “absent a clear statement from Congress that mens rea is not required, we should not apply the pub-lie welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea.” Id. at 618, 114 S.Ct. 1793 (emphasis added). Hence, where harsh penalties apply or there is the potential to punish otherwise law-abiding, well-intentioned citizens for reasonable behavior, the Court is reluctant to impute to Congress the purpose of doing away with the mens rea requirement simply to “ease the prosecutor’s path to conviction.” See Staples, 511 U.S. at 615, 114 S.Ct. 1793.

We adopted the United States Supreme Court’s reasoning from Staples in Chicone. Chicone, 684 So.2d at 742. Therefore, relying on Staples and Chicone, we find that the Fourth District appropriately held that the public welfare offense rationale did not apply to the sexual offender registration statutes, which punish a violation as a third-degree felony, a serious consequence indeed, especially in this case where the defendant was sentenced to six and one-half years’ imprisonment. Giorgetti, 821 So.2d at 422.

Conclusion

We conclude that because the statute contains no expression of any intent to remove knowledge as an element of these offenses, the Fourth District was correct in applying the reasoning of Chicone and the relevant U.S. Supreme Court decisions to construe a knowledge requirement into the statutes. The defendant’s alleged illegal conduct in this case was similar to the passive conduct discussed in Lambert, i.e., relocating residences and failing to notify the State within forty-eight hours. Hence, as in Lambert, knowledge is required here to define the wrongful conduct, i.e., the defendant’s failure to comply with a statutory requirement. See Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (noting that the presumption in favor of scienter requires the court to read mens rea into a statute to separate wrongful conduct from otherwise innocent conduct). In such situations, the due process requirements explained in Lambert would apply if we did not find a knowledge requirement in the statutes. Thus, at a minimum “actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under [the sexual offender registration statutes] can stand.” Lambert, 355 U.S. at 229, 78 S.Ct. 240. As the Court did in Lambert, we agree that ordinarily moving one’s residence would not give rise to the belief that a crime was being committed absent some express knowledge to the contrary.. : .

In numerous decisions, the U.S.' Supreme Court has held that knowledge or mens rea holds a unique place within criminal law, and it must be clear that a legislative body intended to dispense with it before courts will assume it is not required. As noted above, this requirement is little more than a reflection that society ordinarily reserves criminal sanctions for acts of intentional misconduct. Moreover, the elimination of scienter from a criminal statute must be done within constitutional constraints. As we stated in Chicone:

Scienter ... is not a mere technicality in the law, but a legal principle which must be observed in order to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge. It is a safeguard which must be preserved in the interest of justice so that the constitutional rights of our citizens may be preserved.

Chicone, 684 So.2d at 739 (quoting Frank v. State, 199 So.2d 117, 121 (Fla. 1st DCA 1967)). In this case, the State argued to the jury and the trial court instructed the jury that this was a strict liability offense regardless of guilty knowledge or any intent to violate the statute. Thus, under this argument and legal instruction, Gior-getti could have been convicted even if he had no- knowledge of the registration requirement.

For the foregoing reasons, we conclude that the Fourth District was correct in determining that the sexual offender registration statutes include a requirement that the alleged offender knows of the obligation to register and maintain current addresses. Accordingly,' we answer the revised certified question in the affirmative and approve the decision of the Fourth District. We direct that a new trial be conducted, during which the State will have the opportunity to demonstrate the defendant’s knowledge of the registration requirements and the defendant will have an opportunity to defend that element of the charge.

It is so ordered.

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

BELL, J., concurs in result only with an opinion, in which WELLS, J., concurs.

BELL, J.,

concurring in result only.

I join the majority in answering the rephrased certified question in the affirmative. I do not join in its opinion, however, because I believe that it is unnecessary to rely on Chicone v. State, 684 So.2d 736 (Fla.1996). We need not decide whether the Legislature, in spite of its silence, intended to require a knowledge requirement in the sexual offender registration statutes. Rather, this is one of those rare cases, falling within the ambit of Lambert v. State, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), where the Legislature could not, consistent with the due process clause of the Fourteenth Amendment, omit a knowledge requirement. In order to interpret these statutes in a way that preserves their constitutionality, we must hold that they require “actual knowledge of the duty to register or proof of the probability of such knowledge.” Lambert, 355 U.S. at 229, 78 S.Ct. 240.

WELLS, J., concurs.

        .See § 943.0435(4), Fla. Stat. (2000) ("[W]ithin 48 hours after any change in the offender's permanent or temporary residence ... the offender shall report in person to a driver’s license office....”); § 944.607(9), Fla. Stat. (2000) ("A sexual offender ... who is under the supervision of the Department of Corrections but who is not incarcerated shall ... register in the manner provided in s. 943.0435(3), (4), and (5)....”).

      . See § 943.0435(9), Fla. Stat. (2000) (“A sexual offender who does not comply with the requirements of this section commits a felony of the third degree....”).

      . Specifically, the trial court instructed the jury that "[t]he State does not have to prove the elements of intent, nor does the State have to prove the defendant acted with a malicious or wrongful mental attitude.” Id.

      . Although it was written a number of years ago, the Sayre article provides a scholarly analysis of the development of "public welfare offenses,” as well as the reasons such offenses, which require no scienter, should be strictly limited. The Supreme Court has also ,incited this article with approval in several cases. See, e.g., Staples, 511 U.S. at 617, 114 S.Ct. 1793; United States Gypsum Co., 438 U.S. at 442 n. 18, 98 S.Ct. 2864 (citing Sayre for the proposition that strict liability is generally inappropriate when violation can result in imprisonment); Morissette, 342 U.S. at 251 n. 7, 253 n. 11, 255 n. 14, 262 nn. 20-21, 72 S.Ct. 240.

      . The cases cited by the State in support of the assertion that this is a regulatory statute deal with the designation or registration aspects of the sexual predator act, section 775.21, Florida Statutes (2003), rather than the criminal penalties for violations of the act. See, e.g., Walker v. State, 718 So.2d 217, 218 (Fla. 4th DCA 1998) (stating that sexual predator designation is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes); Ortega v. State, 712 So.2d 833, 833 (Fla. 4th DCA 1998) ("[Cjourts have almost universally recognized that the registration provisions in sexual predator statutes are regulatory....”); State v. Carrasco, 701 So.2d 656, 656 (Fla. 4th DCA 1997) (same). The instant case does not involve the "designation” or label of "sexual offender” or the registration requirement, which may be viewed as regulatory; it deals with the penalties for failing to register, which can result in a substantial prison sentence.
      Moreover, the State cites the rule of statutory construction that requires a statute enacted for the public benefit to be construed in favor of the public, rather than the defendant. However, the case cited in support of this provision, State v. Hamilton, 388 So.2d 561, 563 (Fla.1980), is a textbook example of the type of criminal offense that the Supreme Court has described as a "public welfare offense.” The statute in Hamilton involved water pollution violations. See id. at 562 (analyzing the constitutionality of section 403.161, Florida Statutes (1977)). The penalties for violation of the statute were misdemeanors and were limited to civil penalties or short jail sentences. § 403.161, Fla. Stat. (1977). Notably, the punishments that involved jail sentences also required some proof regarding the defendant’s state-of-mind — i.e., that the defendant “knowingly” made a false statement or at the very least that the defendant "willfully or negligently” committed the violation. See § 403.161(l)(c), (3)-(4), Fla. Stat. (1977). It suffices to say that Hamilton has no bearing on the issue in this case and the State's reliance on it is misplaced.

      . The jury instruction that the State did not have to prove knowledge or intent virtually transformed the crime into one of strict liability. Additionally, in its closing arguments the State repeatedly stressed that it did not have to prove anything with regard to whether or not Giorgetti knew he was committing a crime in moving residences without registering:
      [T]he Judge will read you a jury instruction that says the State does not have to prove the element of intent, nor does the State have to prove the defendant acted with a malicious or wrongful mental attitude. We're not saying he's a bad guy because he didn't register. The legislature says, do it. If you don't do it, and right on his own document said [sic], if you do not do these this it's a Third Degree Felony.... ■ Now, regarding the instruction saying there is no issue of intent, in other words, I don’t'have to prove what was in his mind. The legislature said if you are a sexual offender you will not only tell [the Florida Department of Law Enforcement] where you live, you will tell [the Department of Motor Vehicles]. You may not, and we don’t know and we can’t ask, you may not agree with that statute. You might think that statute is harsh. It’s a hard law, why, why, why did you do it? In the end, you can’t change it, not today.

      Now, as far as intent, His Honor is going to read you the law. He’s going to read you the jury instructions, which are the law, which you must follow them [sic] whether you like them or not.... Intent is not — I do not have to prove that he did something maliciously. I do not have to prove that he knew he wasn't registering.

      . We decline to address the second issue raised by the State, which dealt with the Fourth District’s determination that certain testimony constituted an improper comment of Giorgetti’s right of silence, as it is beyond the scope of the certified question in this case. See Goodwin v. State, 634 So.2d 157 (Fla.1994).


author: COPE, J.

text:
    DANZAS TAIWAN, LTD., Appellant, v. Lewis B. FREEMAN, as Receiver of Unique Gems Int’l Corp. and Lucy Martinez, individually and on behalf of all others similarly situated, Appellees.
    No. 3D01-2842.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rehearing and Rehearing En Banc Denied March 19, 2004.
    Bilzin Sumberg Dunn Baena Price & Axelrod and Alvin D. Lodish and Teresal J. Urda, for appellant.
    Silver, Garvett & Henkel and Ira Cohen; Mishan, Sloto, Greenberg & Hellinger; Colson, Hicks and Ervin Gonzalez, for ap-pellees. .
    Before COPE, FLETCHER and RAMIREZ, JJ.
   COPE, J.

Danzas Taiwan, Ltd., appeals the denial of its motion to quash service of process and to dismiss for lack of jurisdiction. After careful consideration, we conclude that the order must be reversed.

Plaintiffs-appellees filed an action against Danzas Taiwan and other defendants. The complaint alleges that Danzas Taiwan, a Taiwanese freight forwarder, engaged in conspiracy to commit fraudulent transfers.

Danzas Taiwan moved to dismiss for lack of personal jurisdiction. The trial court denied the motion, and Danzas Taiwan has appealed.

One theory argued by the plaintiffs in support of personal jurisdiction was the claim that Danzas Taiwan had committed a tortious act within the State of Florida. During the pendency of this appeal, the Fifth District Court of Appeal announced Bankfirst v. UBS Paine Webber, Inc., 842 So.2d 155 (Fla. 5th DCA 2003). The Fifth District held that there is no cause of action under the fraudulent conveyance statute against one “who allegedly assists a debtor in a fraudulent conversion or transfer of property, where the person does not come into possession of the property.” Id. at 155 (citations omitted). The same conclusion also follows from this court’s recent decision in Beta Real Corporation v. Graham, 839 So.2d 890, 892 n. 3 (Fla.3d DCA 2003). See also Tropin v. First Union National Bank, No. 00-4485-Civ-Ungaro-Benages (S.D.Fla. Mar. 25, 2002) (order granting defendant’s motion to reconsider order); Freeman v. First Union National Bank, No. 00-2013-Civ-Ungaro-Benages (S.D.Fla. Jan. 2, 2002) (order granting defendant’s motion to dismiss).

The alleged fraudulent transfers in this case were between Unique Gems International Corporation and a related company, Pearls and Gems. There is no allegation that Danzas Taiwan is a recipient of fraudulently conveyed assets. The freight forwarder only received fees for services rendered in forwarding freight.

It follows that there can be no jurisdiction over Danzas Taiwan for commission of a tortious act in Florida because there is no cause of action against Danzas Taiwan for conspiracy to engage in fraudulent transfers. Bankfirst; see also Beta Real. As there is no cause of action, it is apparent that on remand there must be a dismissal. See Fla. R.App. P. 9.040(a). We therefore need not consider the plaintiffs alternative arguments regarding personal jurisdiction.

We do not fault the trial court for its ruling in this matter because the trial court did not have the benefit of the recent Bankfirst and Beta Real decisions.

Reversed and remanded for dismissal.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Adam SOUSA, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5207.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2003.

      James Marion Moorman, Public Defender, and Bruno F. DeZayas, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   THREADGILL, EDWARD F., Senior Judge.

Adam Free Sousa challenges his convictions and sentences for two counts of attempted murder with a firearm and one count of aggravated assault with a firearm as charged in one information. The charges arose out of a shooting spree by Sousa, involving three victims. It is clear from the record that the charges arose from a single criminal episode with the victims being shot in rapid succession. Sousa raises six issues on appeal. We affirm the convictions and the enhanced sentences for use of a firearm. We agree with Sousa, however, that the trial judge erred in imposing consecutive sentences. We reverse and remand for imposition of concurrent sentences.

Following a jury trial, the trial court imposed the following sentences, to be served consecutively: (1) attempted second-degree murder, 50 years, 25 years minimum mandatory; (2) attempted second-degree murder, 50 years, 25 years minimum mandatory; and (3) aggravated assault, 5 years, 3 years minimum mandatory. In sum, Sousa received a total of 105 years in prison, with a minimum mandatory sentence of 53 years. He received the minimum mandatory sentences pursuant to the enhancement provisions of section 775.087, Florida Statutes (1999), because he used a firearm during the commission of these offenses.' Section 775.087 also contains language that led the trial court to impose the sentences consecutively. We disagree that the language in section 775.087 allows consecutive sentences under these circumstances.

Section 775.087(2)(d) reads:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

Sousa argues that despite the above language, the trial court was prohibited from imposing consecutive sentences. We agree based on the analysis in Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002). Mondesir held that the last sentence of section 775.087(2)(d) means that sentences received pursuant to section 775.087(2)(d) must, only be consecutive to other felony sentences not subject to section 775.087(2)(d). Mondesir, 814 So.2d at 1173. In Mondesir, the defendant was on probation for possession of cocaine with intent to sell when he committed four new crimes during which he used a firearm. Following trial, his probation was revoked and he was sentenced- on the cocaine charge to a concurrent sentence with the four new firearm offenses that were subject to the provisions of section 775.087. The defendant appealed an evidentiary issue, and the State cross-appealed the concurrent sentences. The State argued that the plain language of section 775.087 required consecutive sentences for each of the new firearm offenses and that the four new firearm offenses should be consecutive to the cocaine offense. The Third District partially disagreed and held that section 775.087 required that only the new firearm offenses be served consecutive to the cocaine offense, while the new firearm offenses were to be served concurrently with each other. The court reasoned as follows:

Merely on the face of the statute, the reference to “any other” felony refers, as in this case, only to another separate crime, rather than those involved in a single prosecution. In the comments to its Final Analysis of CS/CS/HB 118 (SB 194), which became Chapter 99-12, Laws of Florida, and subsection 775.087(2), the Committee on Crime and Punishment in the House of Representatives so stated:
Consecutive Sentences
The bill provides that the Legislature intends for the new minimum mandatory sentences to be imposed for each qualifying count, and the court is required to impose the minimum mandatory sentences required by the bill consecutive to any other term of imprisonment imposed for any other felony offense. This provision does not explicitly prohibit a judge from imposing the minimum mandatory sentences concurrent to each other.

Mondesir, 814 So.2d at 1173 (footnote omitted). The Third District remanded the case to the trial court, ordered the court to sentence the new offenses consecutive to the cocaine offense, and affirmed the concurrent sentences for the new firearm offenses.

Although the analysis language by the House of Representatives appears to contrast with the wording of the statute, the Third District used it to support its conclusion that the “any other” language only refers to crimes that took place at a different time, i.e., the cocaine offense, and that when sentencing multiple offenses from the same criminal episode under section 775.087, the sentences should run concurrently. See also Green v. State, 845 So.2d 895 (Fla. 3d DCA 2003); Wilchcombe v. State, 842 So.2d 198 (Fla. 3d DCA 2003); Roberts v. State, 834 So.2d 899 (Fla. 3d DCA 2002); Sehnal v. State, 826 So.2d 498 (Fla. 4th DCA 2002); Williams v. State, 820 So.2d 1000 (Fla. 3d DCA 2002); Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002); Tunsil v. State, 797 So.2d 651 (Fla. 3d DCA 2001).

Because we agree with Mondesir that this language does not provide the legislative authorization necessary to require consecutive sentencing, Green, 845 So.2d at 896, we reverse those parts of Sousa’s consecutive minimum mandatory sentences and remand to the trial court to impose concurrent minimum mandatory sentences. See Palmer v. State, 438 So.2d 1, 3-4 (Fla.1983); see also Highsmith v. State, 595 So.2d 1072, 1072 (Fla. 2d DCA 1992). Sousa’s other points on appeal have no merit and his convictions and sentences are otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

STRINGER and SILBERMAN, JJ., Concur.

      . We recognize that where the statutory language is clear, there is no need to rely on other canons of statutory interpretation. See Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998,1003 (Fla.2003) (Anstead, C.J., specially concurring). However, we agree that the Third District appropriately looked to legislative history to clear up confusion surrounding this statute. See State v. Cotton, 769 So.2d 345, 347 (Fla.2000).


author: COVINGTON, Judge.

text:
    Bernice BOWEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2936.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2003.

      Claude H. Tison, Jr., of Winkles Law Group, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   COVINGTON, Judge.

In Bowen v. State, 791 So.2d 44 (Fla. 2d DCA 2001), we reversed Bernice Bowen’s convictions for accessory after the fact to escape and to the first-degree murder of Tampa Police Detectives Randy Bell and Ricky Childers. We remanded for a new trial in light of the fact that Bowen’s defense had been prejudiced since these violations were tried together with another charge. On retrial, Bowen was again convicted of these three offenses. In this appeal, Bowen alleges that insufficient evidence was presented to convict her, that several evidentiary errors were committed, and that she was improperly sentenced. Upon careful review of the record and due consideration of the briefs filed by the parties as well as the oral argument, we find no reversible error and affirm.. , .

The facts established in the first trial are set forth in significant detail-in Bowen, 791 So.2d 44. In essence, the charges against Bowen stem from the fact that even after she became aware that her boyfriend, Hank Earl Carr, had killed two police officers, she continued to deceive law enforcement about Carr’s true identity. At trial the State argued that Bowen engaged in this behavior as part -of a planned pattern of deceit. The State submitted that Bowen’s goal was to stall law enforcement so that Carr would have an opportunity to escape. Bowen acknowledges that she did indeed provide false information to law enforcement as to Carr’s true identity. However, she says that was before she knew the police officers had been killed. Bowen argues that once she became aware of the officers’ deaths she fully cooperated with law enforcement.

These tragic events began to unfold on the morning of May 19, 1998. Around 9:30 a.m., Bowen’s son, Joey Bennett, suffered a fatal gunshot wound while in the apartment that Bowen shared with Carr. Police officers took Carr to the police station so that Detectives Bell and Childers could question him. Bowen was - also taken to the police station for questioning, although separately. As she had done earlier in the day, Bowen told police that Carr’s- name was Joseph Bennett. That was, however, an untrue statement. Joseph Bennett was the name of Bowen’s former husband, who resided in Ohio. In addition, Bowen gave differing stories to law enforcement concerning her relationship with Carr. She first told police that Carr was her husband and the father of Joey Bennett; she later said that Carr was her ex-husband; at the police station she told Detective Julia Mas-succi that Carr was her boyfriend.

Detectives Bell and Childers took Carr back to the apartment sometime after 1:00 p.m. for further questioning. Around 2:00 p.m., while they were returning to the police station, Carr was able to escape from the detectives. He shot and killed both officers.

Detective Massucci, who was still at the police station with Bowen, became aware of the killings and informed Bowen that the two officers had been shot. She knelt down in front of Bowen, took Bowen’s hand, and told-her the police needed her help. Detective Massucci told Bowen that she knew she had been through a lot with the loss of her son, Joey, and now the lives of two police officers also had been lost. The police needed to know the identity of the man who had committed these acts so they could find ‘him. Bowen said she would help. However, the assistance Bowen provided was to tell Detective Massucci that the man they were looking for was named Joseph Bennett.

Detective Donna Keene also advised Bowen of the deaths of the police officers and Carr’s escape. As Detective Massucci had done, Detective Keene asked Bowen for her help in providing information concerning Carr. Bowen responded by telling Detective Keene that her boyfriend’s name was Joe Bennett. Subsequently, Bowen gave Detective Keene other names, including Boo, Earl Carr, and Hank, but she did not give the entire name Hank Earl Carr.

The crime of accessory after the fact is defined by section 777.03(1), Florida Statutes (1997), as:

Any person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, who maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that the offender had committed a felony or been accessory thereto before the fact, with intent that the offender avoids or escapes detection, arrest, trial or punishment, is an accessory after the fact.

As this court set forth in Bowen, the crime of accessory after the fact has five elements. That is, the State is required to prove:

(1) the crime was committed by Carr; (2) Ms. Bowen knew Carr had committed the crime; (3) Ms. Bowen thereafter “maintained, assisted or gave any other aid” to Carr; (4) Ms. Bowen gave the aid with the intent that Carr avoid or escape arrest; and (5) Ms. Bowen was not related to Carr by blood or marriage.

Bowen, 791 So.2d at 50.

As to the first element, the record supports the conclusion that Carr committed the crimes of first-degree murder and escape, and Bowen does not contest this fact on appeal.

The second element of the offense requires the State to prove Bowen knew Carr committed the crimes. In order to comply with this requirement, the State must establish “that Ms. Bowen either directly knew or was provided sufficiently reliable information of facts that would give a reasonable person sufficient basis to believe that Carr had committed the crime alleged.” Id. at 51. The testimony of Detective Massucci, as well as that of Detective Keene, establishes that Bowen was informed of the murders and Carr’s escape.

Next the State must prove that after Bowen was made aware of the murders of the police officers and of Carr’s involvement, she provided some maintenance, assistance, or aid to Carr. After both Detectives Massucci and Keene told Bowen that Carr had shot Detectives Bell and Childers and that Carr had escaped, Bowen continued to deceive the police as to Carr’s identity. By telling the police that Carr’s name was Joseph Bennett, Bowen assisted and aided Carr in his attempted escape from law enforcement.

The fourth element of the crime of accessory after the fact requires proof of Bowen’s intent. “The State must prove that any aid Ms. Bowen gave to Carr was given with the specific intent to aid him in avoiding punishment.” Id. at 53. A defendant’s intent is not often shown by direct evidence, and it may very well be that the only available proof is in the form of circumstantial evidence. Id. at 52. Bowen submits that she had no intent to aid Carr, but rather she wanted to assist law enforcement with Carr’s capture.

Bowen’s argument centers on the notion that despite her earlier false statements to the police, she later cooperated with law enforcement by providing the name and address of Carr’s mother, informing the police of the names of several of Carr’s friends, agreeing to travel to the service station where Carr was holding an individual hostage, and subsequently providing law enforcement with Carr’s full name. This cooperation, according to Bowen, shows she did not intend to help Carr. However, the only inference that can be drawn from her providing false information to the police was that she intended to “[aid Carr’s] flight to avoid detection and arrest, [and] committed the crime of accessory after the fact.” 'See Schramm v. State, 374 So.2d 1043, 1044 (Fla. 3d DCA 1979). The fact that Bowen may have subsequently cooperated with law enforcement does not diminish the impact of her earlier actions. Cf. Bowen, 791 So.2d at 53.

The last criterion requires the State to prove that Bowen was not related to Carr by blood or marriage. Bowen does not contest this fact. Since the State presented prima facie evidence permitting a jury to conclude that Bowen was an accessory after the fact as to all three crimes, we cannot say the trial court erred when it denied Bowen’s motion for judgment of acquittal.

Bowen’s second contention on appeal is that the trial court erred in admitting certain pieces of evidence and in excluding evidence that Bowen claims was relevant and important. A trial court’s ruling concerning the admissibility of evidence will not be disturbed on appeal, except when abuse of discretion can be.established. Blanco v. State, 452 So.2d 520, 523 (Fla.1984). After careful review of the record, including the transcripts of the testimony of the witnesses involved, we find that Bowen has failed to show that the trial court abused its discretion in admitting the evidence at issue. Likewise, we find that Bowen has failed to show abuse of discretion in the trial court’s decision to exclude evidence that it determined to be inadmissible. ■

We now turn to Bowen’s assertion that the trial court erred in imposing an upward departure sentence of 259 months’ imprisonment. In reviewing the trial court’s assessment on this issue, we note that:

[A] trial court’s decision to depart from the guidelines is a two-step process. First, the trial court must determine whether it can depart by determining as a mixed question of law and fact whether there is a valid legal ground supported by an adequate factual basis. If so, the second step is the discretionary decision whether departure is the best sentencing option considering the totality of the.circumstances, including mitigation and aggravating circumstances.

Himes v. State, 775 So.2d 381, 383 (Fla. 2d DCA 2000) (citations omitted).

At the senteneihg hearing, the State offered several reasons why the court should impose an upward departure sentence. After considering the argument of counsel, the trial court determined that a “valid reason does exist” to depart from the guidelines. In explaining its departure from the guidelines, the court reasoned that it was Carr’s flight “after committing two first degree murders and escaping” that exposed many people to danger. There was an increase in the period of time when law enforcement did not know Carr’s true identity, due specifically to Bowen’s actions. The trial court went on to conclude that consequently it was Bowen’s “conduct in this offense [that] created a substantial risk of death or great bodily harm to many persons or to one or more small children,” which constituted “an aggravated circumstance” meriting a departure from the sentencing guidelines.

In light of the facts developed at trial, we find that there is an adequate basis for the trial court’s decision. We also find no abuse of discretion in the trial court’s decision to impose a departure sentence given the aggravating circumstances identified by the court.

Bowen next contends that the trial court erred in imposing an increased sentence on retrial. The trial court here sentenced Bowen to 259 months, the same sentence imposed after the first trial. Although the length of both sentences is the same, arguably Bowen has received an increased sentence since she was convicted of fewer charges in her second trial. Nevertheless, we note that two different judges presided over Bowen’s two trials and thus two different judges sentenced her. When a second sentence, albeit harsher, is imposed by a different judge “a sentence ‘increase’ cannot truly be said to have taken place.” Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Furthermore, because the “record provides logical and non-vindictive reasons for the sentence,” Van Loan v. State, 779 So.2d 497, 500 (Fla. 2d DCA 2000), we find no error in the sentence the trial court imposed.

Accordingly, we affirm Bowen’s conviction and sentence.

WHATLEY and STRINGER, JJ„ Concur.

      . We also reversed Bowen’s convictions for accessory after the fact to the murder of Trooper James Crooks and in the manslaughter of Bowen's son, Joey Bennett. This court determined that Bowen was entitled to a judgment of acquittal on these charges.


text:
    Omaira GONZALEZ, Appellant, v. Mayra CAPOTE, M.D., Appellee.
    No. 3D03-1039.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Rehearing and Rehearing En Banc Denied March 26, 2004.
    Ricardo E. Pines, Coral Gables, for appellant.
    Roy D. Wasson, Miami; Agustine Perez-Cervera, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

This case involves an appeal from the entry of a Final Summary Judgment for specific performance. Based on a review of the record herein, we hold that the said Summary Judgment was improvidently entered prior to the completion of discovery. Accordingly, the Summary Judgment is reversed and this cause is remanded for further proceedings consistent herewith.


text:
    Jennifer EFRON, a minor, through her parent and legal representative, David EFRON, Appellants, v. MIAMI HERALD PUBLISHING COMPANY, Appellee.
    No. 3D03-465.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2003.
    Guy B. Bailey, Jr., John E. Hughes, III, Bailey & Dawes, for appellant.
    Sanford L. Bohrer, Holland & Knight, for appellee.
    Before SCHWARTZ, C.J., FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See § 985.212(3), Fla. Stat. (2002); Woodard v. Sunbeam Television Corp., 616 So.2d 501 (Fla. 3d DCA 1993).