author: PER CURIAM. WELLS, J.,

text:
    Eddie Wayne DAVIS, Appellant, v. STATE of Florida, Appellee. Eddie Wayne Davis, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC02-1580, SC02-2472.
    Supreme Court of Florida.
    Nov. 20, 2003.
    Rehearing Denied June 3, 2004.

      Bill Jennings, Capital Collateral Regional Counsel — Middle Region, Richard E. Kiley, Assistant CCRC and James V. Vig-giano, Jr., Assistant CCRC, Office of the Capital Collateral Regional Counsel — -Middle Region, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Candance M. Sabella, Chief-Assistant Attorney General, Tampa, FL, for Appel-lee/Respondent.
   PER CURIAM.

Eddie Wayne Davis was sentenced to death for the murder of an eleven-year-old child following a unanimous jury recommendation. This Court affirmed the conviction and death sentence. See Davis v. State, 698 So.2d 1182 (Fla.1997). Now in postconviction proceedings, Davis appeals a trial court order denying postconviction relief following an evidentiary hearing and further petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel. His claim for postconviction relief is based primarily on claims of ineffective assistance of counsel in the guilt and penalty phases. Specifically, Davis asserts that trial counsel was ineffective in: (1) failing to present the defense of voluntary intoxication in the guilt phase; (2) failing to argue to the jury as to the inherent unreliability of Davis’s confessions; (3) failing to obtain an on-the-record waiver of Davis’s right to testify in the penalty phase; and (4) failing to present a “qualified” expert on sexual abuse as mitigation evidence in the penalty phase. For the reasons that follow, we affirm the denial of Davis’s postconviction motion and deny the petition for habeas corpus.

FACTS AND PROCEDURAL HISTORY

Davis was convicted of murdering eleven-year-old Kimberly Waters, whose body was found in a dumpster close to her home. See Davis, 698 So.2d at 1186-87. As we explained:

On March 5, police questioned Davis, a former boyfriend of Kimberly’s mother, at the new residence where he and his girlfriend were moving. Davis denied having any knowledge of the incident and said that he had been drinking at a nearby bar on the night of the murder. Later that same day police again located Davis at a job site and brought him to the police station for further questioning, where he repeated his alibi. Davis also agreed to and did provide a blood sample.
While Davis was being questioned- at the station, police obtained a pair of blood-stained boots from the trailer Davis and his girlfriend had just vacated. Subsequent DNA tests revealed that the blood on the boots was consistent with the victim’s blood and that Davis’s DNA matched scrapings taken from the victim’s fingernails.

Id. at 1186. While in a holding cell, Davis gave one unrecorded confession and two recorded confessions to the police. In his final confession he stated that he originally went to the home of the victim’s mother, Beverly Schultz, who was his girlfriend, to look for money to buy beer:

Because Schultz normally did not work on Thursday nights and because her car was gone, Davis believed that no one was home. Indeed, Schultz was not home at the time because she had agreed to work a double shift at the nursing rehabilitation center where she was employed. However, her daughters, Crystal and Kimberly, were at the house sleeping. When Davis turned on the lights in Beverly Schultz’s bedroom, he saw Kimberly, who was sleeping in Schultz’s bed. Kimberly woke up and saw him. He put his hand over her mouth and told her not to holler, telling her that he wanted to talk to her. Kimberly went with him into the living room. Davis put a rag in her mouth so she could not yell.
Davis related that they went outside and jumped a fence into the adjacent trailer park where Davis’s old trailer was located. Davis said that while they were in the trailer, he tried to put his penis inside of Kimberly. When he did not succeed, he resorted to pushing two of his fingers into Kimberly’s vagina. Afterwards, Davis took Kimberly to the nearby Moose Lodge. He struck her several times, then placed a piece of plastic over her mouth. She struggled and ripped the plastic with her fingers but Davis held it over her mouth and nose until she stopped moving. He put her in a dumpster and left.
... The jury found Davis guilty of first-degree murder, burglary with assault or battery, kidnapping a child under thirteen years of age, and sexual battery on a child under twelve years of age.

Id. at 1186-87. During the four-day penalty phase, Davis’s trial counsel presented the testimony of fifteen witnesses in mitigation. These witnesses included Davis’s father, stepmother, girlfriend, coworker and friend, maternal aunt, grandmother, paternal aunt, control release supervisor, and special group leader and youth counselor at HRS, as well as three mental health experts. Despite the extensive mitigating testimony, the jury unanimously recommended the death penalty. In imposing the death penalty, the trial court concluded in a detailed and comprehensive sentencing order that the aggravation outweighed the substantial mitigation. In aggravation, the trial court found that the murder was (1) committed by a person under sentence of imprisonment; (2) committed during the commission of a kidnapping and sexual battery; (3) committed for the purpose of avoiding or preventing a lawful arrest; and (4) especially heinous, atrocious, or cruel. As statutory mitigation, the court found that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance and gave this factor great weight.

On direct appeal, Davis raised ten issues. The Court determined that Davis’s untaped confession while in his holding cell should have been suppressed. See id. at 1189. However, the Court found this error harmless beyond a reasonable doubt because shortly after confessing in his holding cell, Davis gave a taped statement in which he was fully apprised of his Miranda rights and voluntarily gave the same information contained in the untaped confession. See id. The Court rejected the other issues raised by Davis as without merit and affirmed Davis’s conviction and death sentence. See id. at 1194.

Davis filed a motion for postconviction relief raising twelve claims. After a Huff hearing, the trial court granted an eviden-tiary hearing on a portion of Davis’s claims. After the evidentiary hearing, the trial court denied relief in a comprehensive order. Davis now appeals the denial of his postconviction motion and also petitions this Court for a writ of habeas corpus.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Ineffective Assistance of Counsel — Guilt Phase

Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings. See id. In order for a claim of ineffective assistance of counsel to be considered meritorious, a defendant must establish two components under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Stephens, 748 So.2d at 1033. First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). Second, the deficiency in counsel’s performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id.; see also Rutherford v. State, 727 So.2d 216, 219 (Fla.1998) (“[T]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052).

1. Voluntary Intoxication

Davis argues that his trial counsel was ineffective for “failing to present the defense of voluntary intoxication as a valid defense to first-degree murder.” Although it is uncontested that there was abundant evidence presented during the guilt phase of trial by both the State and the defense that Davis was intoxicated at the time of the offense, Davis specifically argues that his trial counsel failed to either present actual evidence in the form of an expert opinion, or request a jury instruction that Davis lacked the specific intent required for a finding of guilt on the charge of first-degree murder due to his voluntary intoxication, or both.

This Court has stated that “[c]ounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (citations omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Rolling v. State, 825 So.2d 293, 298 (Fla.2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

At the evidentiary hearing, Davis presented the testimony of Dr. Michael Maher, an expert in forensic psychiatry, who testified that in his opinion Davis was sufficiently intoxicated at the time of the offense that his capacity to commit premeditated acts of murder was very substantially impaired. Austin Maslanik, Davis’s lead counsel, testified that he did not request a specific instruction on voluntary intoxication for four specific reasons, including the fact that Davis gave two very detailed confessions of the crime which would tend to undermine an argument that Davis was seriously impaired. This view of the evidence is set forth in the trial judge’s sentencing order:

The evidence was that the defendant had been drinking the afternoon before the murder.... The barmaid ... testified that the defendant did not appear to be intoxicated. [She] was the last objective person to see the defendant before the murder and her testimony, in the opinion of this Court, was believable. The Court, however, believes the defendant was somewhat intoxicated, but not to the point it affected his actions and knowledge.
The defendant left the bar and decided to burglarize the victim’s home in hope of finding more beer money as he stated in both of the taped confessions. The defendant unscrewed the front porch light bulb so no one would see him enter. When the defendant turned on the light in the master bedroom he was surprised to find the victim. He stated in his second taped confession he could not turn the light off before the victim saw him. At this time the defendant’s intent changed.... The defendant stated in his second taped confession that he placed his hand over the victim’s mouth, told her to be quiet and led her out of the house, while stuffing a rag in her mouth. He then either took her directly to the curtilage of the Moose Club (taped confession # 1) or to his trailer (taped confession # 2) where he brutally and forcefully raped her. The defendant had the state of mind not to rape her in her house but to take her to another location. All of this is noted in both taped confessions which give exacting detail beyond one in an intoxicated blackout.... In fact the defendant described in detail how he forcefully penetrated the victim’s vagina with his two fingers. He also described how he beat her, held her down, placed plastic over her mouth and nose for a couple of minutes, while the victim ripped at the plastic and tried to get away. ■
The defendant then made a conscious, knowing, decision to take the lifeless body, boost it over the dumpster (taped confession # 1) and shut the lid (taped confession # 2)....
This Court allowed the defendant’s attorney to argue this statutory mitigator to the Court, but the facts of this case, the defendant’s statements and actions show there was no mental disturbance interfering or obviating the defendant’s knowledge of right or wrong.

We conclude that this case is similar to Stewart v. State, 801 So.2d 59 (Fla.2001), where we rejected a claim that trial counsel was ineffective for not pursuing a voluntary intoxication defense. In so doing, we noted that during the evidentiary hearing Stewart’s trial counsél testified that his conversations with the defendant persuaded him that an involuntary intoxication defense would not be appropriate due to Stewart’s detailed account of the crime and the State’s potential use of experts who examined Stewart to determine his competency to stand trial. See id. at 65. The Court concluded that the record of both the evidentiary hearing and trial demonstrated that trial counsel made an informed and reasoned decision not to pursue a voluntary intoxication defense for strategic reasons. See id. at 65. Similarly, in Occhicone, 768 So.2d at 1048, and Johnson v. State, 593 So.2d 206, 209 (Fla.1992), the Court rejected claims that counsel was ineffective for not pursuing an intoxication defense where defendant had good recall of what transpired on the night of the murders and, therefore, was not intoxicated to the level of not being able to premeditate the murders.

Similar to the defendants in Stewart, Occhicone, and Johnson, in this case Davis gave two taped, detailed confessions as to the circumstances of the crime that substantially undermined the viability of a voluntary intoxication defense. The testimony of defense counsel and the record of the confession in this case provide competent, substantial evidence to support the trial court’s findings that Maslanik made an informed and strategic decision not to pursue ah intoxication defense. Thus, counsel was not deficient and Davis is not entitled to relief on this issue.

Moreover, even if counsel’s performance was deficient, we note that there was a general verdict in this case and the evidence supported an instruction on felony murder based on sexual battery, which is a general intent crime to which voluntary intoxication is not a defense. Therefore, even if the jury had been instructed on voluntary intoxication as a defense to premeditated murder, because the géneral verdict did not differentiate between pre--meditated murder and felony murder, Davis cannot establish prejudice. See Sochor v. State, 619 So.2d 285, 290 (Fla.1993) (rejecting claim that trial court committed fundamental error by not instructing the jury on voluntary intoxication as a defense to felony murder based on kidnapping, based in part on the fact that there was sufficient evidence of sexual battery, a general intent crime to which voluntary intoxication is not a defense). Therefore, the trial court did not err in denying this claim.

2. Davis’s Confessions

Davis. next argues the trial court erred in not granting him an eviden-tiary hearing on his claim that trial counsel was ineffective “for failing to argue to the jury as to the inherent unreliability of Davis’s confessions.” A postconviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief. See Floyd v. State, 808 So.2d 175, 182 (Fla.2002). Although this Court has urged trial courts to err on the side of caution when deciding whether or not to grant an evidentiary hearing on postcon-viction claims, “[a] defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.” State v. Coney, 845 So.2d 120, 135 (Fla.2003); see also Kennedy, 547 So.2d at 913. In order for a motion to be facially sufficient, the defendant must allege specific legal and factual grounds that demonstrate a cognizable claim for relief.

This claim was properly denied by the trial court because Davis failed to plead this claim specifically. Davis does not allege in his motion what is inherently unreliable in the two detailed confessions, nor does he direct us to portions of the record where trial counsel failed to effectively cross-examine witnesses on the confessions’ inconsistencies. Davis’s conclusory allegations that the jury would have reached a different result had trial counsel argued the “inconsistent parts of the confessions” are not supported by a properly pled factual basis. Thus, this claim is facially insufficient and the trial court did not err in summarily denying this claim.

B. Ineffective Assistance of Counsel — Penalty Phase 1. On-the Record Waiver

In his first claim of penalty phase ineffectiveness, Davis argues that trial counsel was ineffective in failing to obtain an on-the-record waiver by Davis of his right to testify in the penalty phase of trial. In Torres-Arboledo v. State, 524 So.2d 403, 410 (Fla.1988), the Court addressed whether due process required that the trial court obtain from the defendant an on-the-record waiver of the right to testify in the guilt phase. The Court stated:

Although we agree that there is a constitutional right to testify under the due process clause of the United States Constitution, ... this right does not fall within the category of fundamental rights which must be waived on the record by the defendant himself. We view this right to be more like an accused’s right to represent himself. Although such a right has been expressly recognized by the United States Supreme Court ... this right has not been considered so fundamental as to require the same procedural safeguards employed to ensure that a waiver of the right to counsel is knowingly and intelligently made.

Id. at 410-11. In Torres-Arboledo, the Court relied in part on Cutter v. State, 460 So.2d 538 (Fla. 2d DCA 1984), where the Second District stated that the right to testify may be waived by the defendant’s attorney “in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings.” Cutter, 460 So.2d at 539; See Torres-Arboledo, 524 So.2d at 410 (expressly approving Cutter); see also Occhicone v. State, 570 So.2d 902, 905 (Fla.1990) (relying on Torres-Arboledo to hold that the trial court did not err in not telling Occhicone specifically that he had the right to testify on his own behalf). The standard adopted in Torres-Arboledo applies to the defendant’s right to testify at both the guilt and penalty phase. See Lawrence v. State, 831 So.2d 121, 132 (Fla.2002).

In this case, the trial court obtained from Davis an on-the-record waiver of his right to testify in the guilt phase, in which Davis affirmatively participated. In securing this waiver, the trial court inquired as to whether Davis wanted to testify and made Davis aware that whether or not to testify was his decision. In the penalty phase, defense counsel indicated that his client would not be testifying. Davis did not testify during the postconviction evidentiary hearing that he disagreed with counsel’s waiver.. Nor does Davis assert that he was otherwise prevented by counsel from testifying. In fact, his defense counsel stated that the subject of whether Davis would testify in the penalty phase was discussed with Davis. Therefore, because the record affirmatively shows that our holding in Torres-Arboledo was not violated, Davis’s counsel was not ineffective in failing to obtain an on-the-record waiver by Davis of his right to testify in the penalty phase.

Moreover, Davis has not established prejudice under the second prong of Strickland. Because Davis did not testify at the evidentiary hearing or otherwise establish what testimony he would have offered, we cannot conclude that our confidence in the outcome is undermined by Davis’s failure to testify during the penalty phase. Therefore, we affirm the trial court’s denial of relief on this claim.

2. “Qualiñed” Expert on Sexual Abuse in Mitigation

In his second claim of ineffective assistance of penalty phase counsel, Davis argues that his trial counsel was ineffective for failing to present in mitigation the testimony of a qualified expert that Davis suffered from post-traumatic stress syndrome due to sexual abuse suffered by him as a child and while in prison. Specifically, he alleges that the expert presented on this issue was not qualified to render an opinion on the relationship between sexual abuse and post-traumatic stress disorder.

In denying this claim, the trial court found:

Maslanik testified that Dr. McClane did testify during the penalty phase on Post Traumatic Stress Disorder. The Court finds that Dr. McClane testified that Davis was diagnosed with-PTSD. McClane also described to the jury the effects of PTSD. Maslanik testified that he believed Dr. McClane’s overall qualifications would qualify him to render an opinion on PTSD. Additionally, Dr. Harry Krop, PhD testified that Davis was diagnosed with PTSD and described PTSD to the jury. Accordingly, this claim is DENIED.

We have recognized that “the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated.” State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002). “[A]n attorney has' a strict duty to conduct a reasohable investigation of a defendant’s background for possible mitigating evidence.” Ragsdale v. State, 798 So.2d 713, 716 (Fla.2001) (quoting State v. Riechmann, 777 So.2d 342, 350 (Fla.2000)).

In determining whether the penalty phase proceedings were reliable, “the failure [of counsel] to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so.” When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness “deprived the defendant of a reliable penalty phase proceeding.”

Asay v. State, 769 So.2d 974, 985 (Fla.2000) (citations omitted). Moreover, as. the Supreme Court recently stated in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003):

[0]ur principal concern in deciding whether [counsel] exercised “reasonable professional judgmen[t]” is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable. In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for “reasonableness under prevailing professional norms,” which includes a context-dependent consideration of the challenged conduct as seems “from counsel’s perspective at the time.”

Id. at 2536 (citations omitted) (third alteration in original).

In contrast to Wiggins, where counsel’s proffered mitigation was completely devoid of evidence of the defendant’s life history and family background, in this case there was substantial investigation and a comprehensive presentation of evidence during a four-day penalty phase. Davis’s defense team presented the testimony of three mental health experts: (1) Dr. Harry Krop, a clinical psychologist with a specialty in child sexual abuse and an expert in forensic psychology, (2) Dr. Henry Dee, a neuropsychologist and an expert in pediatric neuropsychology and substance abuse, and (3) Dr. Thomas McClane, a psychiatrist and expert in the area of forensic psychiatry and pharmacology. All three mental health experts reviewed extensive background information provided to them by Davis’s defense lawyers, including photographs of the victim and the crime scene, the transcripts and audiotapes of two statements made by Davis after he was arrested, jail medical records, other police and arrest reports of Davis’s, beginning with juvenile records, Davis’s HRS records, psychological evaluations done at Peace River Developmental Center, high school records including two psychological evaluations done by members of the school board, and medical and psychiatric records from the Department of Corrections. The experts also reviewed the arrest reports and Florida Department of Law Enforcement (FDLE) records of Davis’s stepfather, Brad Hudson, and FDLE and police reports of Eddie Arnold Davis, Davis’s biological father. Finally, the mental health experts also either interviewed or reviewed depositions of various people related to the case, including Davis’s two aunts, mother, half sister, grandmother, father, stepmother, and stepfather.

Dr. Krop performed neuropsychological testing and a psychosexual evaluation on Davis and testified during the penalty phase that Davis had suffered from physical abuse as a child and had a problem with excessive drinking. Dr. Krop diagnosed Davis with six different mental health disorders — dysthymia, substance abuse, post-traumatic stress disorder, learning disability, borderline personality disorder, and antisocial personality disorder. Dr. Dee corroborated Dr. Krop’s testimony that Davis was physically abused as a child and had moderate to severe problems with alcohol, and testified that he was aware of the allegations of sexual abuse contained in Davis’s prison’s records. Both Dr. Dee and Dr. Krop evaluated Davis prior to trial.

Dr. McClane evaluated Davis after Davis was found guilty but before the beginning of the penalty phase. During this evaluation Davis disclosed for the first time that he was sexually abused by his stepfather, Brad Hudson, sometime between the ages of eleven and thirteen. Dr. McClane testified during the penalty phase that this abuse would have had a “serious effect on the development of a child” and had a “profound effect” on Davis. Dr. McClane diagnosed Davis with five mental health disorders. Dr. McClane’s primary-diagnosis was post-traumatic stress disorder based on the incidents of sexual abuse, followed by chronic alcohol dependence and intoxication at the time of the offense, borderline intellectual functioning, borderline personality disorder, and antisocial personality disorder.

During cross-examination, the State attempted to attack the credibility of Dr. McClane by focusing on the fact that he was not specially trained in the area of sexual abuse of children. Davis argues that Dr. McClane’s testimony that Davis suffered from post-traumatic stress 1 syndrome due to sexual abuse as a child was significantly undermined by this cross-examination. Davis contends that trial counsel should have secured an expert in child sexual abuse to testify that Davis was being truthful when he revealed that he suffered from sexual abuse as a child and that Davis suffered from post-traumatic stress as a result of that abuse.

At the postconviction hearing, Davis, presented the testimony of Dr. Sherri Bourg-Carter, a psychotherapist with specialties in forensic psychology and child sexual abuse. Dr. Bourg-Carter testified that she believed Davis was telling the truth as, to his allegations of child sexual abuse and diagnosed him as suffering from post-traumatic stress disorder based on this abuse. Dr. Bourg-Carter based her diagnosis on an interview with Davis, the results of psychological tests she administered to him, prior psychological exams done on Davis, Department of Corrections records, and the transcript testimony of Dr. Krop and Dr. McClane at the penalty phase. Dr. Bourg-Carter further testified that Dr. Krop could have been qualified as an expert in child sexual abuse and wondered why Dr. McClane interviewed Davis as to the sexual abuse instead of Dr. Krop. Finally, Dr. Bourg-Carter testified that she thought Dr. Krop should have been alerted to the sexual abuse after reviewing the records. In Dr. Bourg-Carter’s opinion, there were certain “red flags”'in the record that Davis was possibly a victim of sexual abuse, including the nature 'of the crime itself — the murder of a young girl.

We conclude that Davis’s argument that counsel was ineffective in not securing the testimony of an expert such as Dr. Bourg-Carter is without merit. First, trial counsel’s performance was not deficient. This Court has found counsel’s performance deficient where counsel “never attempted to meaningfully investigate mitigation” although substantial mitigation could have been presented. See Rose v. State, 675 So.2d 567, 572 (Fla.1996); see also Wiggins, 123 S.Ct. at 2542 (failing to uncover substantial mitigating evidence, including sexual abuse, due to inattention is deficient performance and not reasoned strategic judgment). However, in this case, Davis’s trial counsel did conduct a thorough background investigation and present substantial mental health mitigation, including the testimony of three mental health experts, who diagnosed Davis with no less than six different mental health disorders. Thus, this case is more like Asay, where we concluded that trial counsel was not deficient where the defendant had been examined prior to trial by mental health experts and the defendant was simply able to secure a more favorable diagnosis in post-conviction. See Asay, 769 So.2d at 985.

“In evaluating the Strickland prong[ ] of deficiency ..., it is [also] important to focus on the nature of the mental mitigation [the defendant] now claims should have been presented.” Rutherford, 727 So.2d at 223.' In this case, Davis is offering no new mental mitigation testimony. Nor did the postconviction expert rely on information not previously available at trial. Rather, the testimony of Dr. Bourg-Carter presented at the evidentiary hearing is similar to the penalty phase testimony of Dr. McClane. Both mental health experts diagnosed Davis as suffering from post-traumatic stress disorder based on incidents of child sexual abuse. Dr. Krop diagnosed Davis as suffering from post-traumatic stress as a result of physical abuse suffered as a child. Although Dr. Bourg-Carter may be characterized as a “more favorable mental health expert” in that she has substantial expertise in child sexual abuse and its relationship to post-traumatic stress disorder, Davis’s trial counsel was not deficient simply because Davis was able to secure a “more favorable” report on postconviction. Asay, 769 So.2d at 986.

Even if counsel was deficient for not having an expert specifically trained in child sexual abuse examine Davis after Davis revealed incidents of sexual abuse, Davis is unable to demonstrate prejudice. As noted above, both Dr. Krop and Dr. McClane testified that Davis suffered from post-traumatic stress syndrome. Consistent with this diagnosis and the other multiple diagnoses of the experts, the trial judge found in his sentencing order that the mitigating factor of extreme mental or emotional disturbance was established and stated that

it is apparent to this Court the defendant came from a dysfunctional family; the defendant is an alcoholic, with low self-esteem; the defendant had an abused, neglected childhood; the defendant has had learning disabilities, which he has overcome; the defendant is immature for his age; the defendant may have an anti-social personality disorder; the defendant may have suffered from post-traumatic stress disorder; the defendant has suffered from chronic depression and anxiety; the defendant has poor impulse control and defective judgment at times and the defendant has suffered from attention deficit hyperactivity disorder. The Court is reasonably convinced this mitigating factor exists and gives it great weight.

(Emphasis supplied.) Thus, there was extensive mental health testimony presented during the penalty phase and the trial judge gave the statutory mitigator of extreme emotional disturbance great weight. Davis cannot establish prejudice such that our confidence in the outcome is undermined. Therefore, we affirm the denial of relief on this claim.

II. PETITION FOR WRIT OF HA-BEAS CORPUS

Davis raises four claims in his petition for habeas corpus. The first three claims pertain to ineffective assistance of appellate counsel in not raising on direct appeal: (1) the trial court’s failure to obtain an on-the-record waiver of Davis’s right to testify in the penalty phase; (2) the trial court allowing the victim’s mother to remain in the court room; and (3) the trial court admitting inflammatory photographs of the victim. Fourth, Davis argues that his death sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

A. Ineffective Assistance of Appellate Counsel

Habeas petitions are the proper vehicle by which to raise ineffective assistance of appellate counsel claims, and the analysis of these claims follows the two-pronged analysis of Strickland as to both deficient performance and prejudice. See Rutherford v. Moore, 774 So.2d 637, 642 (Fla.2000). Because these claims are presented first to this Court in cases involving the imposition of a death sentence, we are called on to analyze the performance of appellate counsel in handling the defendant’s direct appeal. A core principle of ineffective assistance of counsel claims is that “appellate counsel will not be considered ineffective for failing to raise issues that have little or no chance of success.” Spencer v. State, 842 So.2d 52, 74 (Fla.2003). In other words, “[if] a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Rutherford, 774 So.2d at 642 (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)).

In his first habeas claim, Davis argues, that his appellate counsel was ineffective for failing to raise on direct appeal the failure of the trial court to obtain an on-the-record waiver by Davis of his right to testify at the penalty phase. Because we have determined that neither the trial court nor counsel erred in not obtaining an on-the-record waiver from Davis, Davis’s claim that appellate counsel was ineffective for failing to raise this issue on appeal is without merit.

Davis next argues that appellate counsel was ineffective for not raising on direct appeal that the trial court allowed, over objection, the mother of the victim to remain in the courtroom after testifying. This claim is without merit. Section 90.616, Florida Statutes (1995), provides an exception to the rule of sequestration for a minor child victim’s parent, and Davis has been unable to establish how the trial judge abused his discretion in allowing the victim’s mother to remain in the courtroom. See Rose v. State, 787 So.2d 786, 804 (Fla.2001) (finding no error in allowing victim’s family to remain in courtroom where there was no showing of prejudice to the accused); Gore v. State, 599 So.2d 978, 985 (Fla.1992) (same); see also Stano v. State, 473 So.2d 1282, 1287 (Fla.1985) (finding no error in trial court exempting a deputy clerk from the rule of sequestration where no prejudice to the defendant was shown). Because the underlying claim would not have been successful on direct appeal, appellate counsel cannot be ineffective for failing to raise the issue.

Third, Davis argues that his appellate counsel was ineffective for failing to raise on direct appeal the admission of a series of inflammatory photographs of the victim. Defense counsel objected to the admission of four of these photographs. We have stated that “the admission of photographic evidence is within the trial judge’s discretion and a trial judge’s ruling on this issue will not be disturbed on appeal unless there is a clear showing of abuse.” Rutherford, 774 So.2d at 646 (quoting Pangburn v. State, 661 So.2d 1182, 1187 (Fla.1995)); see also Carroll v. State, 815 So.2d 601, 621 (Fla.2002). Photographic evidence is relevant to depict the circumstances of the crime, “to assist the crime scene technician in explaining the condition of the crime scene,” Hertz v. State, 803 So.2d 629, 641 (Fla.2001) (quoting Pope v. State, 679 So.2d 710, 713 (Fla.1996)), and to “explain a medical examiner’s testimony, to show the manner of death, the location of wounds, and the identity of the victim.” Rutherford, 774 So.2d at 647 (quoting Larkins v. State, 655 So.2d 95, 98 (Fla.1995)).

We have examined the four photographs that were admitted into evidence over trial counsel’s objection and the remaining photographs that were introduced without objection. As to the preserved issue of the four photographs, we conclude that appellate counsel could not have shown that the trial court abused its discretion in admitting those photographs. As to the remaining unobjected-to photographs, counsel can only be deemed deficient for failing to raise this issue on appeal if the admission of the unobjected-to photographs constituted fundamental error:

We have “repeatedly held that appellate counsel cannot be considered ineffective for failing to raise issues which [were] procedurally barred ... because they were not properly raised at trial”. [As to an unpreserved issue] if it had been raised on appeal, it would have warranted reversal only if it constituted fundamental error, which has been defined as an error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”

Rutherford, 774 So.2d at 646 (citations omitted); see also Johnson v. Moore, 837 So.2d 348, 347 (Fla.2002) (“[A]ppellate counsel cannot be deemed ineffective for failing to raise [an unpreserved] issue unless the alleged error constitutes fundamental error.”); Valle v. Moore, 837 So.2d 905, 907-08 (Fla.2002) (same).

The admission of these photographs does not constitute error, much less fundamental error, and thus Davis has not demonstrated that any deficiency in appellate counsel’s performance “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Rutherford, 774 So.2d at 647 (quoting Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995)).

B. Ring and Apprendi

Finally, Davis argues that Florida’s death penalty statute, section 921.141, Florida Statutes (2003), is unconstitutional based on Apprendi and Ring. We note that Davis’s death sentence is supported by both the “committed during the course of a kidnapping and sexual battery” aggra-vator and a unanimous death recommendation. We have denied relief in direct appeals where there has been a prior violent felony aggravator. See Duest v. State, 855 So.2d 33, 49 (Fla.2003); see also Doorhal v. State, 837 So.2d 940, 963 (Fla.2003) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”). We have also denied relief to postconviction defendants raising this issue. See Jones v. State, 855 So.2d 611, 619 (Fla.2003); Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Davis is not entitled to relief on this issue.

CONCLUSION

For the above reasons, we affirm the lower courts denial of Davis’s rule 3.851 motion for postconviction relief and deny the petition for a writ of habeas corpus.

It is so ordered.

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

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

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

WELLS, J.,

concurring.

I write to adopt my concurring opinion in Duest v. State, 855 So.2d 33 (Fla.2003), in respect to the Ring claim.

CANTERO and BELL, JJ., concur.

ANSTEAD, C.J., concurring in part and dissenting in part.

I concur in the majority opinion in all respects with the sole exception of its discussion of the U.S. Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . As nonstatutoiy mitigation, the court found that Davis was capable of accepting responsibility for his actions and had shown remorse for his conduct and offered to plead guilty; that he had exhibited good behavior while in jail and prison; that he had demonstrated positive courtroom behavior; that he was capable of forming positive relationships with family members and others; that he had no history of violence in any of his past criminal activity; that he did not plan to kill or sexually assault the victim when he began his criminal conduct; that he cooperated with police, confessed his involvement in the crime, did not resist arrest, and did not try to flee or escape; that he had always confessed to crimes for which he had been arrested in the past, accepted responsibility, and pled guilty; that he had suffered from the effects of being placed in institutional settings at an early age and spending a significant portion of his life in such settings; and that Davis obtained his GED while in prison and participated in other self-improvement programs. Although the trial court gave "medium weight” to several of these nonstatutoiy mitigators, it assigned little weight to most of them.

      . Davis argued that (1) the trial court erred in admitting two statements that Davis made to law enforcement officers; (2) the trial court erred in allowing the jury to hear a tape of a 911 emergency call made by the victim’s mother; (3) the State improperly injected irrelevant matters and improper argument into the trial and exploited the emotional displays of its witnesses; (4) the trial court erred in overruling defense objections to the standard juiy instructions on reasonable doubt and premeditated murder; (5) the trial court erred in permitting the State's mental health expert to examine Davis; (6) the jury recommendation of death was tainted by a number of trial errors; (7) the trial court erred in denying his proposed jury instruction on non-statutoiy mitigating factors; (8) the trial court erred in instructing the jury on the "avoid arrest” aggravator and the sufficiency of the evidence in support thereof; (9) the trial court erred in finding that Davis's control release status supported the finding that he was under sentence of imprisonment at the time of the murder; and (10) the trial court erred in instructing the juiy on the heinous, atrocious, and cruel aggravator.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . Davis argued: (I) guilt phase counsel was ineffective in violation of the Sixth and Fourteenth Amendments for (a) failing to move for a mistrial upon allowing an enlarged photograph of the victim’s body to remain in front of the jury, (b) failing to adequately investigate the criminal past of a key witness, (c) failing to present the defense of voluntary intoxication, (d) failing to procure a change of venue, (e) failing to investigate and prepare DNA evidence, (f) failing to effectively suppress defendant's confession or alternatively to effectively argue its inherent unreliability to the jury; (II) penalty phase counsel was ineffective in violation of the Sixth and Fourteenth Amendments for (a) failing to cross examine Alicia Riggall, Davis's control release supervisor, during the penalty phase of the trial, (b) failing to call Davis to testify at the penalty phase of the trial, (c) failing to present expert testimony on post-traumatic stress disorder, (d) failing to sufficiently develop voluntary intoxication as a mitigator, (e) failing to provide physical evidence of organic brain damage, (f) failing to call Brenda Reincke, Davis's neighbor to testify, (g) failing to move for a competency evaluation; (III) a conflict of interest between counsel and Davis prevented counsel from rendering effective assistance; (IV) the rules prohibiting counsel from interviewing jurors deprived Davis of his constitutional rights; (V) he was denied a meaningful adversarial testing by counsel’s conceding guilt without consultation; (VI) Davis may be incompetent at the time of execution; (VII) Florida's capital sentencing structure is unconstitutional on its face and as applied; (VIII) the trial contained numerous procedural and substantive errors which cannot be harmless when viewed as a whole; (IX) he was denied his rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (X) execution by electrocution is cruel and unusual punishment; (XI) lethal injection is cruel and unusual punishment; (XII) Brim v. State, 695 So.2d 268 (Fla.1997), and Murray v. State, 692 So.2d 157 (Fla.1997), establish ffiat Davis's conviction violates the Eighth and Fourteenth Amendments.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . The trial court granted an evidentiary hearing on claims IB, IC, IE, IIA (as orally amended), IIB, IIC, IIE, IIF, II G, III, V, and VIII. The trial court found claims IA, ID, IF, VII, and XII to be procedurally barred and denied a hearing. The trial court determined that claims IID and IX were conclusively refuted by the record and denied a hearing. The trial court noted that claim IA was conclusively refuted by the record as well as being procedurally barred. The trial court denied claim IV without a hearing because the defendant never made a motion to interview jurors and thus, the claim had no merit. The trial court denied claim VI without a hearing because the defendant was not under an active death warrant. Claim X was denied as moot and claim IX was denied without a hearing because this Court in Sims v. State, 754 So.2d 657 (Fla.2000), decided lethal injection does not constitute cruel and unusual punishment.

      . In fact, Dr. Bourg-Carter conceded during the postconviction proceedings that she actually reviewed less prior history than either Dr. Dee or Dr. Krop and would not have been qualified with what she reviewed to testify comprehensively in a penalty phase.

      . We also reject the remainder of the claims contained in Davis's postconviction motion and petition for writ of habeas corpus. Davis’s claim that his Eighth Amendment rights will be violated because he may be incompetent at the time of execution is premature and without merit as Davis is not under active death warrant at this time. See

        Hunter v. State, 817 So.2d 786, 799 (Fla.2002); § 922.07, Fla. Stat. (2003); Fla.R.Crim. P. 3.811. Finally, Davis's claim that cumulative error warrants a new trial and penalty phase is without merit as Davis has been unable to demonstrate any error, either individually or collectively. See Atwater v. State, 788 So.2d 223, 228 n. 5 (Fla.2001); Downs v. State, 740 So.2d 506, 509 n. 5 (Fla.1999).


source: Caselaw Access Project

author: CANTERO, J.

license: Public Domain

text:
    ST. JOE CORPORATION, f/k/a St. Joe Paper Company, Petitioner, v. H. Bruce McIVER, Respondent.
    No. SC02-2491.
    Supreme Court of Florida.
    Feb. 5, 2004.
    Rehearing Denied June 2, 2004.

      Kenneth G. Oertel and C. Anthony Cleveland of Oertel, Fernandez & Cole, P.A., Tallahassee, FL, for Petitioner.

      Law Offices of R. Stuart Huff, Coral Gables, FL; Ben H. Wilkinson of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, FL; and Adam Lawrence of Lawrence & Daniels, Miami, FL, for Respondent.
   CANTERO, J.

We consider whether a real estate broker can ever be entitled to a commission under an oral brokerage agreement where the broker, with the seller’s consent, helped negotiate not a sale, but a condemnation of the property. In the decision below, the First District Court of Appeal held that, under certain circumstances, a condemnation could constitute a sale for purposes of a brokerage commission. See McIver v. St. Joe Corp., 828 So.2d 394, 396 (Fla. 1st DCA 2002). This holding expressly and directly conflicts with Dauer v. Pichowski, 413 So.2d 62, 63-64 (Fla. 2d DCA 1982), which held that a condemnation proceeding can never constitute a sale for such purposes. We accepted jurisdiction to resolve the conflict. See art. V, § 3(b)(3), Fla. Const. For the reasons we explain below, we approve the result of the First District’s opinion. Contrary to the district court’s reasoning, however, we hold that general contract principles should apply to determine whether, in a particular case, the seller and the broker agreed to pursue condemnation as an alternative to a sale.

I. FACTS

The trial court in this case granted summary judgment in favor of the defendant, petitioner St. Joe Corporation. Therefore, we must examine the record in the light most favorable to the respondent, H. Bruce McIver, as the non-moving party. See, e.g., Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla.2002). We recognize that some of these facts may be disputed, but at this point in the litigation we must accept McIver’s version as true.

McIver had long represented St. Joe in real estate matters, often on a handshake. In 1988, he again orally contracted with St. Joe to provide consulting services and to act as St. Joe’s broker for the sale of a 600-acre parcel of environmentally sensitive land known as “Topsail.” Under the oral agreement, St. Joe would pay McIver two percent of the sale price. At the time, although the parties contemplated that the State of Florida would purchase the property through its Conservation and Recreation Lands (CARL) program, apparently neither party mentioned the possibility of a condemnation.

Negotiations with the State continued for several years. At various points, St. Joe confirmed to the State that Mclver was its agent for purposes of the sale of Topsail and would be entitled to a two percent commission.

Mclver’s efforts significantly increased the property’s value. In 1989, due in part to his experience with the CARL process and his efforts on St. Joe’s behalf, the State placed Topsail on its CARL acquisition list, which is a prerequisite to the State’s purchase of such property. Mclver’s continuing efforts caused Topsail to gradually move up the list from seventeenth in 1989 to first in 1994.

Despite the property’s movement to the top of the CARL list, negotiations with the State stalled in 1994 due to differences over the purchase price. The State offered $25.7 million, but St. Joe wanted no less than $50 million. St. Joe also did not receive an acceptable offer from any other potential purchaser.

According to Mclver, at this point he proposed to St. Joe the idea of condemnation to break the impasse. Mclver knew that before condemnation, the State bases its purchase offer on the property’s then-existing zoning, but after condemnation proceedings begin the State could base its offer on the property’s highest and best use, regardless of current zoning. That difference was significant for the Topsail property. Although originally the property had been zoned for multiple units per acre, in 1993 the State directed Walton County to amend its comprehensive plan to downzone Topsail to one unit per every five acres. Mclver knew that condemnation proceedings would allow St. Joe to negotiate a price based on the earlier, higher-density zoning. Mclver also knew that the State’s practice was not to condemn CARL lands unless the landowner agreed.

Mclver talked to St. Joe about several ways to break the impasse, including convincing the State to condemn the property. St. Joe’s Chief Executive Officer, Jacob Belin, told Mclver to “see what [he] could get done” to increase the property’s value.

In accordance with St. Joe’s direction, Mclver proposed to the State that the parties proceed by condemnation. In the summer of 1994, the State asked Mclver to confirm with St. Joe that it was amenable to a “friendly condemnation.” Mclver explained the process to Belin, who directed Mclver to “tell them to condemn it.” Mclver communicated St. Joe’s agreement to the State.

The State initiated eminent domain proceedings in September 1994. Although St. Joe privately consented to the proceedings, formally, through its pleadings, it objected, contesting the issue of public purpose for the taking. Although at first blush formal opposition to condemnation proceedings appears inconsistent with consent, testimony showed that such opposition was sometimes used as a bargaining tool to negotiate a favorable price. Moreover, evidence showed that the State’s condemnation of CARL lands is always consensual; it will not condemn environmentally sensitive lands without owner consent. In this case in particular, the State told Mclver that it would not institute condemnation proceedings unless St. Joe agreed.

In October 1994, shortly after the State instituted the condemnation proceedings, Belin first warned Mclver that St. Joe would not pay him a commission if the property was condemned; only if it was sold. Three weeks after the State filed the complaint, St. Joe directed the State to address any further communications to St. Joe’s attorney.

The trial court eventually granted St. Joe’s motion to dismiss the condemnation proceeding. While the State’s motion for rehearing was pending, however, the State and St. Joe agreed to a consent final judgment. Under its terms, the State paid $84 million for Topsail.

Mclver then filed a complaint against St. Joe seeking to recover a two percent commission on the eventual sale price as reflected in the consent final judgment. Mclver asserted claims for breach of contract, quantum meruit, and unjust enrichment. The trial court granted summary judgment for St. Joe on all counts. The court relied on the bright-line rule in Dauer, 413 So.2d at 63-64, holding that condemnation could never constitute a sale for purposes of a brokerage commission. The trial court concluded that because Mclver’s commission was contingent on a sale, the fact that he might have been a procuring cause of the property being acquired by condemnation was not enough, unless the contract expressly stated that a condemnation would entitle Mclver to the commission. The trial court also ruled that the equitable remedies of quantum meruit and unjust enrichment claims (counts II and III) were not available where an express contract on the subject matter exists.

On appeal, the district court affirmed summary judgment on the quantum meru-it and unjust enrichment claims, but reversed on the breach of contract claim. See McIver, 828 So.2d at 896. The court analyzed the factors outlined in Wilson v. Frederick R. Ross Inv. Co., 116 Colo. 249, 180 P.2d 226 (1947), and adopted in Dauer, 413 So.2d at 63-64, for determining whether a transaction can be considered a sale for purposes of a real estate brokerage commission. See McIver, 828 So.2d at 397. According to Wilson, a transaction constitutes a sale when the owner (1) agrees on the property to be sold; (2) concurs as to the time at which he is to give up possession; and (3) has the power to negotiate a satisfactory price. Id. (citing Wilson). Whereas in Dauer the district court held unequivocally that “condemnation meets none of these tests,” 413 So.2d at 64, the district court in McIver held that the factors “should be examined in light of the facts in each case.” Mclver, 828 So.2d at 397. The court applied those factors and concluded that “McIver presented evidence from which a jury might conclude that the conveyance in this ease satisfied the ‘tests’ in Dauer and thus constituted a ‘sale’ for purposes of his broker’s commission.” Id. at 398. St. Joe then sought review in this Court.

II. ANALYSIS

We must determine whether condemnation can ever constitute a sale for purposes of a real estate brokerage commission. To answer that question, both the district court below and the case that conflicts with it, Dauer, applied the three-factor test the Colorado Supreme Court originally announced in Wilson, 180 P.2d at 226. As explained below, however, we conclude that Wilson’s three-part test is ill-suited to situations where the seller and broker specifically contemplated condemnation as an alternative to a sale. In such cases, we believe ordinary contract principles should apply to determine the existence and parameters of such an agreement. Therefore, we (A) discuss Wilson and why its three-part test does not apply to voluntary condemnations; and (B) apply contract principles to determine whether the seller and broker in this case intended that condemnation would constitute an acceptable substitute for a sale.

A. Wilson and Its Progeny

Wilson, decided in 1947, was the first case to consider whether a real estate broker was entitled to a commission for condemnation of the property. In Wilson, the federal government was interested in purchasing land. It met with a broker, explaining the type of land it wanted and warning that any brokerage fee would have to come from the landowner. The broker obtained a willing seller, and the parties signed several option agreements on a piece of land. The government then filed condemnation proceedings on part of that land. When the broker did not receive his commission, he sued for breach of contract and quantum meruit. At trial, the broker dropped the contract claim and proceeded solely on the quantum meruit claim. Thus, the issue on appeal was whether the broker had adequately stated a claim in quantum meruit.

On appeal, the Colorado Supreme Court noted that'the case presented the “clear-cut issue of whether the unexpected condemnation by the government” of property that had been the subject of traditional sales negotiations “operates as a sale so as to entitle the brokers to a commission.” 180 P.2d at 229 (emphasis added). As the court noted, “[a]t no time was the possibility of condemnation mentioned to the landowner” and there was “no indication ... that the landowner agreed to sell her property under any arrangément other than that contained in the written options.” Id. at 228-29. The court characterized the government’s condemnation action as a “sudden avalanche from the mountains above ... without warning to the owner.” Id. at 231.

The court in Wilson denied the broker a commission. It reasoned that in a condemnation proceeding, the owner cannot designate or negotiate the property to be sold, cannot determine when the grantee may take possession, and cannot refuse to transfer the property if the offered price is inadequate, but must either reach an accord or litigate the question of just compensation. Id. The court did not intimate that its holding' — and the factors it created — would apply where the owner sought condemnation.

Since Wilson, several courts, including Dauer, have held that condemnation can never constitute a sale for purposes of a brokerage commission. See Dauer, 413 So.2d at 63-64; Preston v. Carnation Co., 196 Cal.App.2d 43, 16 Cal.Rptr. 240 (1961); Haigler v. Ingle, 119 Colo. 145, 200 P.2d 913 (1948); Shaw v. Ave. D Stores, Inc., 115 N.Y.S.2d 194 (1952). The rule is not always strictly applied, however, and some courts have considered the facts of a particular case. See Tyler v. Seiler, 76 Misc. 185, 136 N.Y.S. 394 (App. Term 1912) (allowing a commission where the city condemned the property in order to clear a defect in the seller’s title that had prevented a voluntary sale); Keyes Co. v. Florida Nursing Corp., 340 So.2d 1254 (Fla. 3d DCA 1976) (acknowledging the rule that condemnation does not equate to a sale but concluding that, despite condemnation, a factual issue remained about whether the owner frustrated the sale to avoid a commission). A recurring theme of these cases is that when property is condemned, the owner is not a willing seller. See, e.g., Preston, 16 Cal.Rptr. at 243-44. Like Wilson, cases adopting its three-part test also involved condemnations thrust upon the owner. See, e.g., Lundstrom, Inc. v. Nikkei Concerns, Inc., 52 Wash.App. 250, 758 P.2d 561, 563 (1988) (involving the initiation of condemnation proceedings against a non-consenting property owner); Dauer, 413 So.2d at 63 (involving a condemnation against a landowner after it had rejected the State’s offer for a traditional sale).

This case, however, presents substantially different circumstances. Viewed in the light most favorable to the plaintiff, the seller not only consented to the condemnation, it specifically sought condemnation when a traditional -sale appeared unlikely. Mclver suggested that condemnation would achieve the best possible price because the property’s value would be based on its highest and best use, and St. Joe agreed to pursue condemnation.

While Wilson may apply where the condemnation was involuntary — we do not decide that question here — we do not believe it was intended to apply where the property owner authorized the broker to seek condemnation. In the circumstances of voluntary condemnations, whether a broker is entitled to a commission for condemnation of property should be analyzed according to ordinary contract principles, including those applicable to oral contracts and contract modification. The focus should be on the agreed scope of the broker’s employment, not on extraneous factors such as when the state should take possession. We now discuss those principles and apply them to this case.

B. Applying Contract Principles

An oral contract, such as the one in this case, is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms. See W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 302 (Fla. 1st DCA 1999) (mentioning basic contract principles as applied to an oral contract claim). The fact that nonessential terms remain open is not fatal to an oral contract. See W.R. Townsend Contracting, Inc., 728 So.2d at 301; Winter Haven Citrus Growers Ass’n v. Campbell & Sons Fruit Co., 773 So.2d 96, 97 (Fla. 2d DCA 2000). Finally, a party who asserts an oral contract must prove its existence by a preponderance of the evidence. Batista v. Walter & Bernstein, P.A., 378 So.2d 1321, 1322 (Fla. 3d DCA 1980).

Oral brokerage contracts, like other oral contracts, are valid and enforceable. See Edgar Realty & Assocs., Inc. v. Mobley, 513 So.2d 1350, 1351 (Fla. 1st DCA 1987) (holding that a real estate broker’s allegations of an oral contract with prospective purchasers stated a cause of action); 7 Fla. Jur.2d Brokers § 5 (1997) (providing that a contract of employment between a broker and a principal may be oral or written); 12 Am.Jur.2d Brokers § 51 (1997) (same); cf. Futch v. Head, 511 So.2d 314, 317 (Fla. 1st DCA 1987) (holding that sufficient evidence existed of an enforceable oral commission agreement between a broker and a co-broker and sustaining the verdict).

Applying these principles to brokerage commissions for condemnation of property, if the seller and the broker agreed to, and did, pursue condemnation as an acceptable substitute for a sale, then the broker should be entitled to a commission when the property is condemned. If, however, the seller specifically authorized the broker to pursue only a sale, then the broker would not be entitled to a commission for a condemnation.

In this case, it is undisputed that a valid oral contract existed whereby, at least, Mclver would act as broker to obtain the sale of Topsail, and would receive a two percent commission. Generally, where the parties acknowledge creation of a contract and the disagreement concerns their varying understandings about certain terms, such questions are properly submitted to a jury. See, e.g., Pan American Bancshares, Inc. v. Trask, 278 So.2d 313, 314 (Fla. 3d DCA 1973).

The next issue is whether and how the parties to an oral contract can orally modify it. It is well established that the parties to a contract can discharge or modify the contract, however made or evidenced, through a subsequent agreement. Carolina Metal Prods. Corp. v. Larson, 389 F.2d 490 (5th Cir.1968); 17A Am. Jur.2d Contracts § 513 (1991) (stating that a contract may be superseded or modified by another contract); cf. H.I. Resorts, Inc. v. Touchton, 337 So.2d 854, 856 (Fla. 2d DCA 1976) (holding that the parol evidence rule did not bar introduction of evidence of a subsequent oral contract concerning the broker’s right to a commission and modifying the written agreement); 7 Fla. Jur.2d Brokers § 55 (1997) (stating same). Whether the parties have validly modified a contract is usually a question of fact. See Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So.2d 838, 841 (Fla. 3d DCA 1998) (holding that whether a contract has been modified by subsequent oral agreement or course of dealing is a question of fact for the jury); cf. Transammonia Export Corp. v. Conserv, Inc., 554 F.2d 719, 724 (5th Cir.1977) (holding that evidence regarding the existence of an oral contract and its subsequent modification supported the jury’s verdict); Willamette-Western Corp. v. Lowry, 279 Or. 525, 568 P.2d 1339, 1341 (1977) (holding that the evidence was sufficient for the jury to find that an oral agreement existed and that it was not modified).

Under Florida law, the parties’ subsequent conduct also can modify the terms in a contract. In re General Plastics Corp., 158 B.R. 258 (Bankr.S.D.Fla.1993); Danforth Orthopedic Brace & Limb, Inc. v. Florida Health Care Plan, Inc., 750 So.2d 774 (Fla. 5th DCA 2000); see also Lalow v. Codorno, 101 So.2d 390, 393 (Fla.1958) (noting that “the actions of the parties may be considered as a means of determining the interpretation that they themselves have placed upon the contract”). We note, however, that a party cannot modify a contract unilaterally. All the parties whose rights or responsibilities the modification affects must consent. See Binninger v. Hutchinson, 355 So.2d 863 (Fla. 1st DCA 1978); United Contractors, Inc. v. United Constr. Corp., 187 So.2d 695 (Fla. 2d DCA 1966). Moreover, the modification must be supported by proper consideration. See, e.g., Wilson v. Odom, 215 So.2d 37 (Fla. 1st DCA 1968).

In this case, genuine issues of material fact remain about whether St. Joe and Mclver modified the brokerage agreement to authorize Mclver to pursue a State condemnation of the property as a viable alternative to a sale. Although St. Joe preferred to sell the property to the State and the State was interested in buying it, negotiations stalled on one crucial term: the price. According to Mclver, as a way of breaking the impasse he suggested that St. Joe propose condemnation to the State. A condemnation would allow the parties to value the property based on its highest and best use, which would include a greater density (and therefore a higher value) than the density allowed by the current zoning. St. Joe authorized Mclver to pursue condemnation, which he did. These facts, if proven at trial, would establish a modification of the oral brokerage agreement to include pursuit of condemnation as well as a sale. We therefore approve the result of the First District’s decision, which was to reverse the summary judgment on the breach of contract count.

III. CONCLUSION

For the reasons stated, we approve the result the district court reached and disapprove Dauer to the extent that it holds that a condemnation can never constitute a sale for purposes of a brokerage commission. In this case, genuine issues of material fact exist about whether the seller and the broker agreed to pursue condemnation as an alternative way to sell the property. We decline to address the remaining issues, such as respondent’s argument that summary judgment also was inappropriate on the remaining counts of the complaint, because they are beyond the basis for our conflict jurisdiction. See, e.g., Kelly v. Cmty. Hosp. of Palm Beaches, Inc., 818 So.2d 469, 470 n. 1 (Fla.2002) (declining to address issues that were beyond the scope of the Court’s conflict jurisdiction).

It is so ordered.

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

      . In a friendly condemnation, the State agrees to condemn property that the owner desires for the State to condemn, and the State buys the property at an arms-length negotiated price. Cf. E. Thirteenth St. Cmty. Ass'n v. N.Y. State Urban Dev. Corp., 84 N.Y.2d 287, 617 N.Y.S.2d 706, 641 N.E.2d 1368, 1372 (1994) (characterizing a friendly condemnation as one in which "the con-demnee desires the condemnation as ardently as does the condemnor’’).

      . The court in Wilson may have implied its limited reach when it noted that "as a matter of practice a real estate broker can protect himself by disclosing to his principal the possibility of condemnation proceedings and cover this contingency in his contract for commission.” 180 P.2d at 232.