source: Caselaw Access Project

author: CANTERO, J. WELLS, J.,

license: Public Domain

text:
    Joseph T. DeGREGORIO, Petitioner, v. William F. BALKWILL, etc., Respondent.
    No. SC02-1161.
    Supreme Court of Florida.
    Aug. 21, 2003.

      Susan J. Silverman, Sarasota, FL, for Petitioner.
    Sarah E. Warren, Sarasota, FL, for Respondent.
   CANTERO, J.

We review In re Forfeiture of One 1988 Lincoln Town Car, 826 So.2d 342 (Fla. 2d DCA 2002), which certified conflict with In re Forfeiture of One (1) 1994 Honda Prelude, 730 So.2d 334 (Fla. 5th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We must determine the effect of the deadlines for filing forfeiture complaints that sections 932.701(2)(c) and 932.704(4), Florida Statutes (1999), impose on state agencies that seize property. As explained below, we hold that such deadlines are mandatory.

I.

The Sheriffs office of Sarasota County investigated possible criminal activity involving two vehicles, a grey 1986 Lincoln Town Car and a blue 1988 Lincoln Town Car, located on Petitioner Joseph T. De-Gregorio’s business property. The investigation revealed that the vehicle identification numbers on the cars had been altered. DeGregorio owned title to the 1986 Lincoln, but no record showed that the 1988 Lincoln was titled or registered in Florida.

In July 1999, the Sheriff seized both vehicles. Almost four months later, the Sheriff filed a complaint for forfeiture against the two vehicles under the Florida Contraband Forfeiture Act, sections 932.701-.707, Florida Statutes (1999) (the “Act”). The Sheriff later learned that in 1987, Budget Rent-A-Car of New York had reported the 1988 Lincoln stolen. The car never had been recovered. The Sheriff notified Budget of the seizure, and Budget released its interest to the Sheriff.

DeGregorio filed a claim to both vehicles in the forfeiture proceeding. To show his ownership, DeGregorio produced bills of sale from Tommy G’s Auto Sales for both cars. He also produced a Florida vehicle registration for the 1986 Lincoln. He asserted that he neither knew nor should have known that the 1988 Lincoln was stolen or was contraband and that he was the true owner, as evidenced by the bill of sale. The Sheriff filed a motion to strike DeGregorio’s answer for lack of standing as to the 1988 Lincoln. DeGregorio responded that he had standing because he was a bona fide purchaser for value. The trial court denied the Sheriffs motion to strike. DeGregorio then moved for summary judgment, asserting that because the Act required the Sheriff to file the forfeiture complaint within 45 days after the seizure and the complaint was filed after that deadline, the forfeiture should be dismissed. The trial court agreed, relying on One 1994 Honda Prelude, 730 So.2d at 384, and granted summary judgment in DeGregorio’s favor.

The Sheriff appealed. The Second District reversed the summary judgment as it applied to the 1988 Lincoln because it concluded that DeGregorio lacked standing to assert a claim to the vehicle. Id. at 344. The court also held that the Act did not bar the Sheriff from initiating a forfeiture action more than 45 days after seizure. Id.

II.

When interpreting statutes and discerning legislative intent, courts must first look at the actual language of the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). Legislative intent is determined primarily from the statute’s language. Hayes v. State, 750 So.2d 1, 3 (Fla.1999). Moreover, because forfeiture actions are considered harsh extractions, this Court has long followed a policy of strictly construing forfeiture statutes. Byrom v. Gallagher, 609 So.2d 24, 26 (Fla.1992); Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 961 (Fla.1991). Therefore, any ambiguity in the statute must be construed against forfeiture.

In deciding this case, we must interpret several provisions of the Act. Section 932.704(4) provides: “The seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred.” (Emphasis added.) Section 932.701(2)(c) defines “promptly proceed” as “to file the complaint within 45 days after seizure.”

A separate provision also refers to this time limitation. Section 932.703 is entitled “Forfeiture of contraband article; exceptions.” Subsection (3) provides:

Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act; however, such action may be maintained if forfeiture proceedings are not initiated within 15 days after the date of seizure. However, if good cause is shown, the court may extend the aforementioned prohibition to 60 days.

(Emphasis added.) This section allows someone with an interest in seized property to file a replevin action if the seizing agency fails to file a complaint within 45 days after seizure (unless the court grants an extension to 60 days).

The Second District nevertheless concluded that none of these provisions, or any other, bars a seizing agency from initiating a forfeiture action more than 45 days after seizure. The court held that the time periods operate only as a temporary prohibition or limitation on replevin actions and other claims by third parties and not as a jurisdictional bar. One 1988 Lincoln Town Car, 826 So.2d at 344. The Fifth District held to the contrary in One 1994 Honda Prelude, 730 So.2d at 336. In that case, the seizing agency waited over ten months after the seizure to even notify the petitioner of the seizure. The Fifth District concluded that section 932.703(3) allows the trial court to extend the 45-day filing requirement to 60 days for good cause, but that this time period runs from the date of seizure. 730 So.2d at 336. The Fifth District held that the agency’s failure to “promptly proceed” in its forfeiture of the vehicle required the vehicle’s return to its owner. Id.

Section 932.704(4) plainly states that the seizing agency “shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred.” Promptly proceed is defined in section 932.701(2)(c) as “to file the complaint within 45 days after seizure.” Thus, to initiate a forfeiture proceeding against property, the Act requires the seizing agency to file a complaint within 45 days of seizure.

The only dispute here is whether the 45-day requirement is mandatory. The plain language of the statute answers that question. The statute uses the word “shall” to describe the seizing agency’s duty to file the complaint. “Generally, where the word ‘shall’ refers to some required action preceding a possible deprivation of a substantive right, the word is given its literal meaning.” Stanford v. State, 706 So.2d 900, 902 (Fla. 1st DCA 1998) (relying on S.R. v. State, 346 So.2d 1018, 1019 (Fla.1977), and Neal v. Bryant, 149 So.2d 529, 532 (Fla.1962)). In Neal, we explained that in its normal usage, “shall” has a mandatory connotation. Id. Only when a particular provision relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or where the statute’s directions are given merely with a view to the proper, orderly and prompt conduct of business is the provision generally regarded as directory. Id. (quoting Reid v. Southern Dev. Co., 52 Fla. 595, 42 So. 206 (1906)). “Most certainly, where the statute provides for .the deprivation of a property right, the procedural requirements ... in question cannot be regarded as an ‘immaterial matter’ or a ‘matter of convenience rather than substance.’ ” Id.

Because the statute here provides for the deprivation of a property right, its procedural requirements cannot be regarded as immaterial or a matter of mere convenience. We hold that the requirement in section 932.704(4) to “promptly proceed” with a forfeiture action is mandatory, and that under section 932.701(2)(c), “promptly proceed” means what it says: “to file the complaint within 45 days after seizure.”

We note that in Real Property, we held the Act constitutional only because we read into it certain procedures necessary to protect due process rights. 588 So.2d at 968. Among other defects, we noted that “the Act does not set out any procedures for filing the [forfeiture] petition.” Id. at 966. In 1992, the Legislature substantially amended the Act in reaction to Real Property. Among other things, the changes added the current definition of “promptly proceed” as the term is used in section 932.704(1), which provides that the state attorney “shall promptly proceed against the contraband article.” See ch. 92-54, § 1, Laws of Fla. The Legislature also amended section 982.703(3), which allowed an action for replevin if forfeiture proceedings were not initiated within 90 days after seizure, to allow a replevin action after only 45 days. See id. § 3. Therefore, in addition to the plain language of the statute, because the 1992 amendments were intended to remedy procedural defects in the Act, and because the amendments provide a more structured framework for forfeiture actions, we conclude that the Legislature intended that the seizing agency’s obligation to file a forfeiture complaint within 45 days of seizure is mandatory.

Several states have interpreted their forfeiture statutes in the same manner. For example, in State v. 1978 LTD II, 216 Mont. 401, 701 P.2d 1365 (1985), the Supreme Court of Montana interpreted a statutory provision requiring that a “seizing agency who seizes any property ... under the provisions of this chapter, shall, within 45 days of the seizures, file a notice of the seizure and intention to institute forfeiture proceedings with the clerk of the district court of the county in which the seizure occurs.” Mont.Code § 44-12-201 (1984). Finding that the “language of this statute is mandatory,” and that there was no provision for an extension of the time limit, the Montana court concluded that the notice of seizure and intent to initiate forfeiture proceedings must be served on the owners of the property within 45 days. 1978 LTD II, 701 P.2d at 1365. The court also noted that because such seizures are ex parte, the statutory safeguards should be rigidly adhered to. See id.

In concluding that the language of the statute is mandatory, the Montana court relied on State v. Rosen, 72 Wis.2d 200, 240 N.W.2d 168 (1976). In Rosen, the forfeiture statute at issue required that the “district attorney ... shall commence the forfeiture action within 15 days after the seizure of the property.” Wis. Stat. § 161.555(2)(a) (1973) (emphasis added). The Supreme Court of Wisconsin concluded that the “nature and scope of the forfeiture action, as well as consideration of the interests of the state and the property owner, lead us to conclude that the provisions of [the forfeiture statute] must be considered mandatory.” Rosen, 240 N.W.2d at 172.

Likewise, in Haina v. Commonwealth, 235 Va. 571, 369 S.E.2d 401, 404 (1988), the Supreme Court of Virginia interpreted a statutory provision providing for the forfeiture of all motor vehicles used in connection with the illegal manufacture, sale, or distribution of controlled substances. The statute required that within 60 days after receiving notice of the seizure of any such vehicle, the Commonwealth’s attorney “shall file, in the name of the Commonwealth, an information against the seized property, in the clerk’s office of the circuit court of the county ... wherein the seizure was made.” Va.Code § 4-56(d) (1984) (emphasis added). Relying on an earlier case which considered the effect of an untimely information, the court found that the failure of the Commonwealth’s attorney to file within the prescribed time rendered the information “a nullity ... the same as if no information had been filed.” 369 S.E.2d at 404 (quoting Cason v. Commonwealth, 181 Va. 297, 24 S.E.2d 435, 438 (1943)). Because the information was untimely filed, the court reversed the order of forfeiture and remanded to the trial court to restore the seized property to its owner. Haina, 369 S.E.2d at 404. Thus, our holding today is consistent with that of other states that have considered similar statutes.

The parties also dispute the remedy available when the seizing agency fails to file the complaint within 45 days of seizure. Because the statute must be strictly construed, it follows that if the seizing agency fails to file the complaint within the prescribed time, the forfeiture proceeding can be dismissed on the claimant’s motion. Where the seizing agency fails to file any action at all, section 932.703(3) allows a claimant to file a re-plevin action to recover the property. If a potential claimant could not seek to dismiss a late-filed forfeiture complaint, the statute’s mandate that such complaints be filed “promptly” would be rendered illusory.

III.

Accordingly, we quash the Second District’s decision, approve the decision of the Fifth District in One 1994 Honda Prelude, and remand to the district court for proceedings consistent with this opinion.

It is so ordered.

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

WELLS, J., dissents with an opinion, in which LEWIS and BELL, JJ., concur.

WELLS, J.,

dissenting.

I dissent because I find that the Second District’s decision in this case is consistent with our prior case law in respect to sections 932.701-.704, Florida Statutes (Florida Contraband Forfeiture Act), and that the Fifth District’s decision in In re Forfeiture of One 199í Honda Prelude, 730 So.2d 334 (Fla. 5th DCA 1999), is in conflict with our case law. Therefore, I would approve the Second District and disapprove the Fifth District’s case.

I find Judge Threadgill’s opinion in In re Forfeiture of $7,750.00 in United States Currency, 546 So.2d 1128 (Fla. 2d DCA 1989), to be very helpful in a correct understanding of the history of this law. From that opinion I see that the issue in this case as to the construction of this statute traces to the amendment of the Forfeiture Act in 1980 and to the Fifth District’s decision in Lamar v. Universal Supply Co., 452 So.2d 627 (Fla. 5th DCA 1984) (Lamar I), rev’d, 479 So.2d 109 (Fla.1985).

In Lamar I, the Court dealt with the constitutionality of the statute as amended effective July 1, 1980. That version of the statute contained, as part of sections 932.703 and 932.704, two provisions which are pertinent to understanding the issue in the present case. Section 932.703 contained the provision:

Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act.

And in section 9B2.704 was the provision:

[The] state attorney ... shall promptly proceed against the contraband....

The facts of Lamar I were that the Sheriff of Orange County had seized a vehicle on July 22, 198B. On July 29, seven days after the seizure, the owner of the vehicle filed a replevin action against the sheriff, seeking return of the vehicle. The sheriff moved to dismiss the replevin action. The trial court denied the motion to dismiss on August 29, ordering the sheriff to either file a forfeiture action against the vehicle before September 3 or return the vehicle to the owner.

The argument of the sheriff was that pursuant to the forfeiture act, a replevin would not lie and that the return of the vehicle could only be accomplished by successfully terminating a forfeiture action. The sheriff declined to file the forfeiture action and appealed the August 29 order for return of the vehicle.

The Fifth District stated that the situation which called into question the constitutionality of the forfeiture statute was that (1) the forfeiture statute vests title to contraband articles in the seizing law enforcement agency upon seizure (now section 932.703(l)(c), Florida Statutes); (2) the owner from which the vehicle had been seized asserted a right to a prompt hearing; and (3) the statute prohibited all actions concerning the seized property except by the State, and there was no time requirement for the State to bring a forfeiture action. Because there was no time limitation for the owner to pursue an action to get the seized property back from the State, the Fifth District held unconstitutional the sentence which banned replev-in or any other action to recover such property. The Fifth District then held:

Where property is seized under the Forfeiture Act without a warrant, the correct remedy for the claimant prior to filing either a criminal charge arising in connection with the seizure or a forfeiture action pursuant to section 932.704 is an action in replevin.

452 So.2d at 632. The Fifth District thereby held that the trial court was correct in denying the motion to dismiss and that the replevin action should proceed.

In Lamar v. Universal Supply Co., 479 So.2d 109 (Fla.1985) (Lamar II), this Court reversed the Fifth District. We held that the purpose of section 932.703(1) was “to prevent a claimant from precipitating litigation over the seized property by forcing the state to file an immediate forfeiture action before it has had adequate opportunity to fully investigate and prepare its case.” Id. at 110. We went on to state, however, there would be a deprivation of due process if the law did not afford a prompt hearing for the claimant on his assertion that the property had been wrongfully seized. Then this Court said:

It is well established that the allowance of a reasonable period of time following seizure for investigation and processing may permissibly delay the initiation of forfeiture proceedings. See, e.g., United States v. One Motor Yacht Named Mercury, 527 F.2d 1112 (1st Cir.1975). Whether such a delay is reasonable is a question of fact to be determined on a case-by-case basis. Sandidge v. State ex rel. City of Oviedo, 424 So.2d 152, 153 (Fla. 5th DCA 1983[1982]). Lower courts in this state have held that a delay of six months in Sandidge and three months in In re Alcoholic Beverages Seized from Saul’s Elks Club on June 30, 1982, 440 So.2d 65 (Fla. 1st DCA 1983), between seizure and filing of a forfeiture action were not unreasonable. Federal decisions construing similar language in federal forfeiture acts are in accord. See United States v. One Motor Yacht Named Mercury; United States v. One 1978 Cadillac Sedan Deville, 490 F.Supp. 725 (S.D.N.Y.1980); United States v. One 1973 Ford LTD, 409 F.Supp. 741 (D.Nev.1976).

Id. at 110 (emphasis added). This Court then found that a writ of replevin was improvidently granted, id. at 111, because the period of time that the owner was prevented from bringing a replevin action was not unreasonable.

The import of this finding for the purpose of the analysis here is that though the statute at that time, as now, had the “shall promptly proceed” language, that language concerned the period of time in which the owner was prevented from bringing a re-plevin action. Plainly, the State could still proceed with the forfeiture, whether or not the State proceeded promptly. It must be recognized that title vests in the State by operation of law upon seizure. Court proceedings perfect that title. The statute was not at the time of this Court’s Lamar decision considered or contended to have any bar to the State perfecting title, even if the State did not proceed promptly. The statute contains no language which suggests such a bar. The bar to proceeding in court was as to the person or entity from whom the property was seized. For a reasonable period of time that person or entity could not proceed in court to attempt to recover title to the property.

Between the túne of the Fifth District’s decision and this Court’s decision in Lamar II, the Legislature amended section 932.703(1) to read:

Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act; however, such action may be maintained if forfeiture proceedings are not initiated within 90 days after the date of seizure.

§ 932.703(1), Fla. State. (1987) (emphasis added).

Judge Threadgill’s opinion in Forfeiture of $7,750, 546 So.2d at 1130-31, explains the history and comes to a correct conclusion about this effect of the “shall promptly proceed” language in the statute:

Chapter 85-316 was enacted after the Fifth District Court of Appeal held unconstitutional that part of section 932.703(1) Florida Statutes (1983), which prohibited any action for recovery of seized property subject to forfeiture under the Florida Contraband Forfeiture Act, sections 932.701-932.704. Lamar v. Universal Supply, Inc., 452 So.2d 627 (Fla. 5th DCA 1984), rev’d, 479 So.2d 109 (Fla.1985). At the time the statute was amended, the fifth district decision was on appeal and pending before the Florida Supreme Court. See Staff of Fla. S. Comm, on Judiciary-Crim., CS/SB 658 (1985), Staff Analysis 1 (2d rev. May 27, 1985), (on file in state archives). Shortly after the effective date of the amendment, the supreme court rendered its decision in the Lamar appeal, reversing the fifth district and holding that due process was satisfied by the requirement in section 932.704(1) that the state attorney “promptly proceed” against the contraband. Lamar v. Universal Supply Co., Inc., 479 So.2d 109, 111 (Fla.1985).
In Lamar, the property owner had filed a replevin action seven days after the seizure. The supreme court found that the state’s failure to file before that time was not unreasonable and cited cases finding delays of three and six months to be reasonable. 479 So.2d at 110. The court did not delineate any specific time period that would satisfy the requirement that the state “promptly proceed” against the contraband, nor did it address the 1985 legislative amendment limiting the bar against actions for recovery to ninety days after the initial seizure. We appear to have before us a case of first impression regarding interpretation of the 1985 amendment.
While staff analyses of pending legislation are not determinative of the legislative intent, they are often relevant to such a determination. See, e.g., Ivey v. Chicago Insurance Co., 410 So.2d 494, 497 (Fla.1982); Department of Health and Rehabilitative Services v. Shatto, 487 So.2d 1152 (Fla. 1st DCA 1986); Florida Medical Center v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983). The revised staff analysis prepared on the 1985 amendment to section 932.703(1) expressly states that the provision here at issue “is an attempt to remedy the [fifth district] Lamar concerns by insuring that due process protections are extended to the property owner.” Staff of Fla. S. Comm, on Judiciary-Crim., CS/SB 658 (1985), Staff Analysis 3, (2d rev. May 27, 1985), (on file in state archives).
On these bases we think it apparent the intent of the legislature was to provide sufficient due process safeguards to ensure that the statute would pass constitutional scrutiny. While the supreme court, in addressing these concerns, later held that due process was satisfied by the language in section 932.704(1) that the state “promptly proceed against the contraband,” the legislature went further by setting a specific time limit on “reasonably prompt.”
While the statute does not bar the state from filing for forfeiture beyond the ninety-day period, if the state has not filed a petition during that time, the defendant may seek recovery in another court of competent jurisdiction. The statute contains no other provision which would otherwise reheve the criminal court of its original jurisdiction to issue valid orders in cases pending before it.

(Emphasis added.) I conclude that Judge Threadgill’s analysis was precisely correct.

The statute does not bar the State from filing for forfeiture beyond the time period in the statute, which has now been reduced from ninety to forty-five days. The “shall promptly proceed” language has been in the Act since 1980. Consistent with Lamar II, what the statute does is to give the State up to forty-five days to investigate and prepare a forfeiture action without the claimant of the property precipitating litigation. This conclusion is compelled when it is understood that the forty-five days is the statutory period designated by the Legislature as a reasonable period of time after the contraband is seized within which the claimant is delayed from seeking to recover seized property. In Lamar II, this Court acknowledged that such delay was contemplated by the Act and met constitutional muster.

This is the way that this Court described the working of the statute in Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991):

The process in the Act enables the state to seize property — whether real or personal — “which has been or is being used” to commit one of the enumerated offenses, or “in, upon or by means of which” any enumerated violation “has taken or is taking place.” § 932.703(1), Fla. Stat. (1989). The Act can be read to mean that seizure immediately ousts property owners or lienholders of any right or interest they have in the subject property. Id. After seizure, the state must “promptly proceed” against the property “by rule to show cause in the circuit court,” and may have the property forfeited “upon producing due proof’ that the property was being used in violation of the Act. Id. § 932.704(1). If the state does not initiate proceedings within ninety days after the seizure, the claimant may maintain an action to recover the property. Id. § 932.703(1).

Id. at 961 (footnotes omitted).

I find no basis in our case law or in the statute to now conclude that if the State does not “promptly proceed” within the forty-five days, it may not thereafter proceed in a forfeiture action, as held by the Fifth District in 1994 Honda Prelude, 730 So.2d at 335. The only actions which the language of the statute bars are replevin or any other action to recover the property during the forty-five days immediately after the seizures. § 932.703(3), Fla. Stat. This is clear from the history of the statute, our case law, and the opinion of the Second District in this case, which is consistent with our case law and the statutory history.

I would approve the Second District’s opinion and disapprove the Fifth District’s decision in 1994 Honda Prelude.

LEWIS and BELL, JJ„ concur.

      . The legislature added fourteen requirements to the Act after Real Property. For a detailed discussion of these amendments, see Richard A. Purdy, Contraband Forfeiture: 1993 Survey of Florida Law, 18 Nova L.Rev. 213 (1993).

      . We do not address the issue of Petitioner's standing to challenge the forfeiture of the vehicles because it is beyond the scope of the certified conflict in this case.


author: PER CURIAM. CANTERO, J.,

text:
    Ellis D. DOWNS, Petitioner, v. STATE of Florida, Respondent.
    No. SC00-2382.
    Supreme Court of Florida.
    Aug. 21, 2003.
    James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review a decision of the Second District Court of Appeal, in which the court certified as a question of great public importance the same question certified by that court and answered in Burgess v. State, 831 So.2d 137 (Fla.2002). See Downs v. State, 768 So.2d 1149 (Fla. 2d DCA 2000). We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. We accept jurisdiction in this case, quash the decision of the Second District, and remand for reconsideration in light of our decision in Burgess.

It is so ordered.

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

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

CANTERO, J.,

dissenting.

I would decline to exercise jurisdiction. The argument that petitioner presented, in response to this Court’s order directing him to show cause why our decision in Burgess v. State, 831 So.2d 137 (Fla.2002), should not control the outcome of this case and why the Court should not decline to exercise jurisdiction in this case, was never presented to either the trial court or the Second District. Therefore, I would decline to exercise jurisdiction.

WELLS and BELL, JJ., concur.


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

text:
    Richard McCOY, Appellant, v. STATE of Florida, Appellee.
    No. SC01-2113.
    Supreme Court of Florida.
    Aug. 21, 2003.

      Lester Makofka of Makofka & Makofka, Jacksonville, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

Facts and Procedural History

On the morning of June 13, 2000, Sher-vie Ann Elliott was found dead in the storage room of the Jacksonville ABC Liquors store in which she worked, and $415 was missing from the store’s two safes. The evidence adduced at the appellant’s trial established that the victim had been shot once in the abdomen, a wound which disabled her; once in the neck, resulting in paralysis; and once in the face, the fatal wound. The store’s surveillance tape showed the robbery and murder occurring from 8:20 a.m. to 8:33 a.m. on June 13. The initial investigation of the alcoholic beverage store performed by law enforcement officers and evidence technicians revealed no evidence of a physical struggle.

Both circumstantial and direct evidence linked the appellant to the crime scene. Three latent fingerprints found on an ABC Liquors cash and receipt pouch within the non-public store office were matched to McCoy. While the latent fingerprint examiner could not form any conclusions regarding when the fingerprints were deposited on the pouch, ABC Liquors employees testified that the money pouches were kept within the store office at all times, and only store managers were involved with the pouches. Additionally, the store surveillance camera revealed that an African-American male had committed the robbery and murder.

On June 19, ABC Liquors advertised a $10,000 reward for information leading to the arrest and conviction of the person who had robbed and murdered Elliott. The following day, Zsa Zsa Marcel contacted ABC Liquors and spoke with Teresa Johnson, the ABC Liquors regional manager for the Jacksonville area. Johnson directed Marcel to Dale Galbreath, the detective leading the Sheriffs Office investigation of the robbery and murder. She related to Galbreath that on June 14, her boyfriend, Richard McCoy, had told her that he had been involved in the armed robbery of an ABC Liquors store in which a woman was killed. He had detailed to Marcel the manner in which he and his accomplice “rushed” the manager of the store as she opened the back door, forced her to turn off the alarm and video surveillance equipment, and made Elliott open the store’s safes. Additionally, McCoy had told Marcel that the inside of the store was very dimly lit at the time of the robbery, his accomplice had actually shot the store manager, and he and his partner had netted $4,000 from the venture.

Following her discussion with Galbreath, Marcel agreed to initiate a conversation with McCoy regarding the ABC Liquors robbery while wearing a recording device attached to her purse. Subsequently, she listened to the tape recording of her conversation with McCoy, agreed that it was a fair and accurate depiction of their discussion that afternoon, and helped the State prepare a transcript of the conversation.

On July 13, 2000, McCoy was indicted by a Duval County grand jury on charges of first-degree murder, armed burglary, and armed robbery. In addition to the testimony of Marcel, the ABC Liquors employees, and law enforcement officers related above, McCoy’s trial jury heard testimony during the guilt phase from the medical examiner, detailing the succession of the gunshot injuries sustained by Elliott, as well as her conclusion that the second and third gunshots fired by Elliott’s attacker had been fired from a distance of between six and twelve inches from the victim’s body.

Following the trial court’s denial of McCoy’s motion for judgment of acquittal, the defense presented evidence in support of the appellant’s claim that he was at the home of his girlfriend, Dorothy Small, on the morning of June 13, 2000. Sherry Cross, Small’s neighbor and a Raven Transport long-haul truck driver, testified that she had spoken with McCoy for approximately five minutes outside her home on the morning of the thirteenth between 8:00 a.m. and 8:30 a.m. On cross examination, however, she admitted that she was estimating, and that the conversation could have taken place either after 8:30 a.m., or before 8 a.m. Cross’s testimony was supported by the testimony of the Raven Transport Director of Safety, William Weise, who testified that the company’s satellite positioning system showed that Cross was in Jacksonville on the morning of June 13. Additionally, the defense presented the testimony of Dorothy Small, who related that after spending the night at her house, McCoy had left her home early on the morning of the 13th of June, and John Bailey, a Krystal Burger employee who testified that McCoy ate breakfast at his restaurant nearly every morning. Bailey could not, however, remember whether McCoy ate breakfast at Krystal Burger on the morning of June 13. The defense then called Clarence Williams, the father of a child with Zsa Zsa Marcel, who testified that Marcel had a reputation for dishonesty in their Louisiana community.

Finally, McCoy testified in his own defense. He testified that on the morning of June 13, 2000, he left Small’s house at 6:45 a.m. and went home. He returned to Small’s house at around 8 a.m. to take trash to the curb, and spoke with Cross at that time. After completion of this chore, McCoy went to Krystal Burger, ate breakfast, and then proceeded to an interview. He and Marcel had a relationship, and he knew that she was “tough” — she had confessed to him that she robbed a restaurant on June 10. McCoy testified that, therefore, he lied to her and claimed that he had robbed ABC Liquors, in an effort to impress her. He explained that his fingerprints were on the ABC Liquors receipt pouch because he had once found one of the pouches in another ABC store parking lot, and mailed it to ABC Liquors headquarters in Orlando.

In rebuttal, the State presented the testimony of Mark Bachara, a Jacksonville Sheriffs Office investigator assigned to the Office of the State Attorney, who stated that it takes six minutes to drive from Dorothy Small’s home to the ABC Liquors store that was robbed on June 13, 2000. Following a renewed motion for judgment of acquittal, closing argument, and jury instruction, the jury found McCoy guilty of premeditated first-degree murder. Additionally, the jury specifically found that “the killing was done during the commission or attempted commission of a robbery.”

The State’s presentation during thfe penalty phase consisted of the introduction of judgments and sentences detailing McCoy’s prior convictions for three counts of armed robbery and one count of attempted armed robbery. Additionally, the State elicited testimony from Richard Hughes, McCoy’s probation supervisor, to establish that the appellant was being supervised on conditional release at the time of the ABC Liquors robbery. Finally, the victim’s sister and the victim’s ABC Liquors supervisor testified regarding the impact of the victim’s death upon their lives, and a statement written by the victim’s son was read to the jury.

The defense presented the testimony of McCoy’s mother and sisters, who detailed for the jury the troubled home life to which McCoy was exposed — physical abuse, inter-parental violence, and nearly abject poverty. Paul Gillians, Diane Peterson, and Trina Rivers testified regarding McCoy’s respectful and caring nature, as well as instances in which he had performed good deeds, including his saving Paul Gillians from being burned to death. McCoy waived his right to testify during the penalty phase, and, following instruction and deliberation, the jury recommended imposition of the death penalty by a vote of seven to five.

The court held a subsequent Spencer hearing, and followed the jury’s recommendation, concluding that “on balance, the aggravating circumstances in this case far outweigh the mitigating circumstances.” The trial court concluded that the following aggravators applied: (1) pri- or conviction of felonies involving the use or threat of violence; (2) the appellant was under a sentence of imprisonment or on community control at the time of the commission of the instant murder; (3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP); (4) the murder was committed for financial gain and was committed while engaged in the commission of the crime of armed robbery (aggravators merged); and (5) the murder was committed for the purpose of avoiding or preventing a lawful arrest (merged with CCP aggravator). The court found no statutory mitigators, but determined that twenty mitigating circumstances had been established. Each of the mitigating factors was given “some weight” by the trial court.

McCoy now appeals, asserting seven issues.

Analysis

In his first two claims, the appellant contends that the audiotape of the conversation between McCoy and Marcel, to which the jury listened, was so entirely inaudible that the trial court erred in admitting the recording into evidence. Additionally, McCoy asserts that the court below improperly allowed the State to use a transcript of this Marcel-McCoy conversation as a demonstrative aid at trial. Prior to trial, the defense entered a motion seeking to prohibit the use of the audiotape and transcript at trial, on the basis that the significant inaudible portions of the recording rendered it inadmissable, and that the transcript did not accurately reflect the recorded conversation. The trial court listened to the tape and reviewed the transcript on the record, and stated:

[Consistent with the court’s decision in Martinez versus State, at least the relevant portions of the tape are sufficiently audible.
That they would be of benefit to the trier of fact.
And that the inaudible portions do not make the tape fully useless or inadmissible or confusing.
You can, of course, argue that the transcript is not accurate and ask the jurors to be bound by what they hear on the tape rather than what is in the transcript. And I would expect you to do that.
And I would instruct the jury, if you are going to let them use the transcript, that the transcript is not evidence. It’s simply one listener’s interpretation. That the jury should be bound by what they hear themselves.
With that being made, the tape is for the most part audible and therefore for the most part admissible.

Additionally, following its review of the transcript, the court required the State to make certain changes to the document, to ensure that it accurately tracked the contents of the recording:

There are places obviously where things are being said where the transcript doesn’t make a reference to inaudible words being spoken.
If you intend to use the transcript as a demonstrative aid for the jury you need to go back and add those parenthetical inaudibles to the transcript. And there are several. I agree with [defense counsel] Mr. Chipperfield. I agree there are several.

At trial, the court was presented with evidence authenticating the transcript, in the form of testimony from Marcel:

Q: Have you had an opportunity to hear the tape of your conversation with the defendant?
A: Yes.
Q: Is the tape a fair and accurate depiction of your conversation with the defendant?
A: Yes.
Q: Does that tape cover your conversation with the defendant from beginning to end?
A: Yes.
Q: Did you later help prepare a transcript of the tape?
A: Yes, I did.

While the State never elicited precise testimony from Marcel that the transcript fairly and accurately recreated the conversation in print form, the clear implication from this colloquy is that Marcel, a participant in the conversation, helped prepare the transcript, and that the transcript accurately reflected her discussion with McCoy reduced to writing. Additionally, no objection other than the audibility argument presented pretrial was asserted during trial, and the transcript was an aid not admitted into evidence.

As noted by the trial court, the operative law on this issue was expressed by this Court in Martinez v. State, 761 So.2d 1074 (Fla.2000):

The general rule in Florida regarding admissibility of partially inaudible tape recordings is that partial inaudibility or unintelligibility is not a ground for excluding a recording if the audible parts are relevant, authenticated, and otherwise properly admissible. Such recordings are admissible unless the inaudible and unintelligible portions are so substantial as to deprive the audible portions of relevance.
.... [T]he jury may view an accurate transcript of an admitted tape recording as an aid in understanding the tape so long as the unadmitted transcript does not go back to the jury room or become a focal point of the trial.

Id. at 1083 (citations, emphasis, and internal quotation marks omitted). Additionally, Martinez provided the following guidance regarding proper procedure in addressing proffered transcripts:

[T]rial courts should exercise extreme caution before allowing transcripts of recordings to be viewed by the jury. The preferred approach is for the parties to stipulate to the accuracy of the transcript. If there is a dispute as to the accuracy, the trial court should make an independent pretrial determination of the accuracy of the transcript after hearing from persons who can properly testify as to its accuracy.
In addition, ... where a transcribed version of an audio-video tape is used as an aid to the jury and there is no stipulation as to its accuracy, trial courts should give a cautionary instruction to the jury regarding the limited use to be made of the transcript.

Id. at 1086 (citations omitted).

Here, the trial judge satisfied and followed the Martinez elements. McCoy does not contend that the contents of the audiotape were not relevant to the issues before the jury. Indeed, it is beyond question that a recording of a conversation in which the defendant relates non-public details of his crime is extraordinarily relevant. Additionally, the tape recording at issue in the instant case was properly authenticated by one of the participants in the discussion — Zsa Zsa Marcel. The audiotape was “properly authenticated by a person having personal knowledge of the contents of the tape recording.” Harris v. State, 619 So.2d 340, 342 (Fla. 1st DCA 1993). Nothing more than this confirmation, by a participant in the conversation, that the tape fairly and accurately memorialized the discussion at issue is required to properly authenticate the recording. See Charles W. Ehrhardt, Florida Evidence § 401.4 (2002 ed.). Additionally, no other provision of the rules of evidence casts doubt upon the admissibility of the recording at issue in the instant case.

Our review of the audiotape itself reveals that the instant case is one of “substantial audibility,” not one in which the inaudible portions of the tape “are so substantial to deprive the remainder of relevance.” Holland v. State, 773 So.2d 1065, 1073 (Fla.2000); see also Springer v. State, 429 So.2d 808, 808 (Fla. 4th DCA 1983); Carter v. State, 254 So.2d 230, 231 (Fla. 1st DCA 1971). There exist inaudible portions of the tape; however, significant parts of the recording are very clear. A court’s evaluation of partially inaudible recordings must be guided by the principle that an audiotape should be admitted into evidence unless the condition of the recording degrades its usefulness to such an extent that it makes the evidence misleading or irrelevant. The trial court’s factual determination that the tape was “for the most part audible” is supported by competent, substantial evidence, and in admitting the tape, the court properly applied the law governing admission of partially inaudible audiotapes to the facts. See State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001) (“If the ruling consists of a mixed question of law and fact ... the ruling must be sustained if the trial court applied the right rule of law and its ruling is supported by competent substantial evidence.”).

With regard to the transcript, the trial court followed the guidance of Martinez almost precisely. During a pretrial hearing, the trial court listened to the audio recording itself, and compared what it heard to the State’s proffered transcript. As noted above, following its review of the transcript, the court required the State to make certain changes to the document, to ensure that it accurately reflected the actual conversation on the recording:

There are places obviously where things are being said where the transcript doesn’t make a reference to inaudible words being spoken.
If you intend to use the transcript as a demonstrative aid for the jury you need to go back and add those parenthetical inaudibles to the transcript. And there are several. I agree with [defense counsel] Mr. Chipperfield. I agree there are several.

Certainly, this qualifies as “an independent pretrial determination of the accuracy of the transcript.” Martinez, 761 So.2d at 1086. This determination by the trial court, coupled with later testimony by Marcel regarding the accuracy of the transcript, qualified the document for use as a demonstrative aid.

Prior to the publishing of the recording to the jury and concomitant distribution of the State’s transcript, the court gave the following cautionary instruction:

Members of the jury, the transcript itself is being prepared to assist you in understanding what is being stated on the tape, but the evidence in the case is the audible part that you will be listening to in just a few moments on the tape itself.
The transcript is a demonstrative aid and represents in part the state attorney’s efforts to transcribe it, but the transcript itself is not what’s in evidence. It is the tape that’s in evidence and it’s the tape that you are to consider, and what you hear from the tape is what you are to consider as evidence in the ease.

Again, the trial court followed the mandate of Martinez, and instructed the jury regarding the proper use of a transcript.

A cursory review of the cautionary instruction given by the trial court reveals that McCoy’s assertion that the trial court improperly bolstered the transcript in some fashion is absolutely devoid of merit. The court properly related to the jury that only the audiotape was evidence, and the transcript was merely an aid to assist their understanding thereof, which was not to be considered during their deliberations regarding guilt. The instruction was entirely appropriate, and does not constitute reversible error.

It is well settled that the use of “demonstrative devices to aid the jury’s comprehension is well within the court’s discretion.” United States v. Possick, 849 F.2d 332, 339 (8th Cir.1988); see also Hunt v. State, 746 So.2d 559, 561-62 (Fla. 1st DCA 1999). Accordingly, the court’s distribution of the transcript to the jury cannot be characterized as an arbitrary or fanciful action which “no reasonable person would take.” White v. State, 817 So.2d 799, 806 (Fla.2002). Indeed, as a matter of law, the trial court’s treatment of the transcript and recording here was entirely proper without regard to the standard to be utilized to evaluate the trial court’s action.

It is clear that the trial court scrupulously followed the guidance promulgated by this Court in Martinez, and we commend the court below for its fair and reasoned approach to the issues surrounding the audiotape and transcript at issue here. Indeed, we explicitly reaffirm our commitment to the guidance of Martinez, and, with the issuance of this opinion, mandate that trial courts make an independent pretrial determination of the accuracy of transcripts, and give a cautionary instruction to the jury regarding the limited use to be made of the transcript, prior to employment of these demonstrative aids during trial. Because the trial court below did precisely this, McCoy’s claims of error fail.

McCoy also takes issue with the trial court’s treatment of the testimony of the state’s primary witness, Zsa Zsa Marcel. As an initial matter, the appellant’s contention that Marcel was entirely incompetent to testify, due to the ABC Liquors reward in this ease, is entirely without merit. As we stated in Rutherford v. Moore, 774 So.2d 637 (Fla.2000):

A witness is incompetent to testify if the trial court determines the witness is (1) unable to communicate to the jury; (2) unable to understand the duty to tell the truth; or (3) unable to perceive and remember events. However, “[a] witness is presumed competent to testify until the contrary is established.”

Id. at 646 (citations omitted) (quoting Hawk v. State, 718 So.2d 159, 162 (Fla.1998)); see also Charles W. Ehrhardt, Florida Evidence § 601.1 (2002 ed.) (“All witnesses are presumed to be competent.”). Thus, as a matter of law, Marcel was competent to testify in the trial below.

The appellant asserts that the trial court improperly limited his cross-examination of Marcel regarding her putative involvement in a restaurant robbery, as well as her behavior with regard to the telephone account of McCoy’s father. First, our examination of the record reveals that the trial court never prohibited the defense from cross-examining Marcel on the subject of her putative Lee’s Chicken robbery. In fact, the trial court only disallowed cross-examination on the subject during Marcel’s testimony for the State, and then only because no evidentia-ry predicate on the matter had yet been established by the defense. At that time, the trial court explicitly advised the defense as follows:

I understand what you are doing. My concern is what if we go through all of this great exercise and we put her [Marcel] on trial for the armed robbery and we have all the people testify and all that kind of stuff and your client decides he doesn’t want to testify what have we done at that point?
We have created a mistrial because we have introduced gobs of totally irrelevant and very damaging evidence for the state that is totally irrelevant because there is at that point no evidence that she told him about it [the restaurant robbery].
So I have this suspicion that if you are entitled to put this on at all you would only be entitled to put it on in your case and only then after you have had him [McCoy] testify that she [Marcel] confessed this to him which then makes it become relevant.
I have no problem with making her come back for you to continue your cross examination of her after it is a matter of record that it is relevant, but I am not inclined to let all—let this secondary trial go on unless and until it becomes record evidence that he [McCoy] knew about it and that she [Marcel] knew anything about it.

The defense did not pursue the matter further during its case-in-chief, other than submitting the testimony of McCoy relating that Marcel had confessed to him her involvement in an armed robbery of Lee’s Chicken. Clearly, the trial court did not limit cross-examination of Marcel as to this issue; therefore, no relief is warranted.

The trial court did prohibit testimony and cross-examination regarding the assertion that Marcel had charged hundreds of dollars of telephone calls to the telephone account registered to McCoy’s father, granting the State’s pretrial motion in limine to limit such evidence. Our standard of review with regard to trial court rulings on the proper scope of cross-examination is clear: “Limitation of cross-examination is subject to an abuse of discretion standard.” Moore v. State, 701 So.2d 545, 549 (Fla.1997); see also Winner v. Sharp, 43 So.2d 634, 635 (Fla.1949) (“The admission or rejection of impeaching testimony is within the sound discretion of the trial court.”); Lewis v. State, 754 So.2d 897, 901 (Fla. 1st DCA 2000). Thus, unless the trial court abused its discretion, which is guided and informed by applicable precedent, this Court will not disturb the judgment below.

The appellant’s contentions regarding the trial court’s prohibition against cross-examination of Marcel with respect to her supposed telephone account abuses are wholly without merit. While it is true that “[a] defendant should be afforded wide latitude in demonstrating bias or possible motive on the part of a witness,” Henry v. State, 688 So.2d 968, 966 (Fla. 1st DCA 1997), any questioning on the subject of this uncommonly extraneous issue would have been improper. Indeed, when analyzing a similar claim of improper restriction of cross-examination, this Court succinctly stated, “[Ejvidence of particular acts of ethical misconduct cannot be introduced to impeach the credibility of a witness. The only proper inquiry into a witness’s character for impeachment purposes goes to the witness’s reputation for truth and veracity.” Fernandez v. State, 780 So.2d 277, 282 (Fla.1999); see also Baker v. State, 804 So.2d 564, 567 (Fla. 1st DCA 2002) (holding that “other than evidence of prior convictions ... credibility may not be attacked by proof that the witness has committed specific acts of misconduct”). Certainly, the trial court did not abuse its broad discretion when it made the following conclusions:

I am going to find that the evidence that has been explained to me is not admissible impeachment evidence under 90.608 through 610 because it does not demonstrate bias towards the defendant. It may show an effort to stick his father with some phone costs if in fact it shows that at all. But that — I cannot make a leap of faith from that to show some animosity or bias or prejudice towards the defendant.

We agree with the trial court. Evidence of Marcel’s misuse of the appellant’s father’s telephone account was entirely irrelevant to the issues before the jury. The trial court’s decision was entirely proper.

McCoy next contends that the trial court’s application of the cold, calculated, and premeditated aggravating factor was improper in the instant case. This Court recently reiterated the operative standard of review in examining the application of aggravating circumstances: “[A] trial court’s ruling on an aggravating circumstance will be sustained on review so long as the court applied the right rule of law and its ruling is supported by competent substantial evidence in the record.” Dennis v. State, 817 So.2d 741, 765-66 (Fla.2002) (quoting Gore v. State, 784 So.2d 418, 432 (Fla.2001)), cert. denied, 537 U.S. 1051, 123 S.Ct. 604, 154 L.Ed.2d 527 (2002). Additionally, “[competent substantial evidence is tantamount to legally sufficient evidence, and [this Court] assesses] the record evidence for its sufficiency only, not its weight.” Almeida v. State, 748 So.2d 922, 932 (Fla.1999).

Legally sufficient evidence exists in the record on appeal to support the trial court’s application of the CCP aggravator. As noted by the trial court, the video surveillance tape, when considered in conjunction with the medical examiner’s testimony, demonstrates advance procurement of the murder weapon, absolutely no resistance or provocation on the part of the victim, and a killing carried out as a matter of course. See Farina v. State, 801 So.2d 44, 54 (Fla.2001), cert. denied, 536 U.S. 910, 122 S.Ct. 2369, 153 L.Ed.2d 189 (2002); Bell v. State, 699 So.2d 674, 677 (Fla.1997). McCoy methodically guided the victim throughout the ABC Liquors store, attempting to turn off the alarm and surveillance taping devices, and obtaining all of the cash within the establishment. He then forced Elliott into a storage room — a place which held no money or valuables for him to obtain. There, he shot the victim once in the abdomen to disable her, once in the upper neck or lower head to paralyze her, and once in the face, killing her. The final two shots were fired from between six and twelve inches away.

The appellant’s actions were properly deemed cold, calculated, and premeditated by the trial court. Indeed, the instant case is an example of the “deliberate ruthlessness” for which application of this aggravating factor is reserved. See Zack v. State, 753 So.2d 9, 21 (Fla.2000); Jennings v. State, 718 So.2d 144, 152 (Fla.1998). There were no signs of physical struggle at the crime scene, and the appellant had ample opportunity to leave ABC Liquors after completing the robbery. However, he considered his options, and unnecessarily executed a compliant hostage. Application of the CCP aggravating circumstance is proper. See Looney v. State, 803 So.2d 656, 678 (Fla.2001) (applying CCP where “the defendants had ample opportunity to reflect upon their actions, following which they mutually decided to shoot the victims execution-style”), cert. denied, 536 U.S. 966, 122 S.Ct. 2678, 153 L.Ed.2d 850 (2002); Alston v. State, 723 So.2d 148, 162 (Fla.1998) (sustaining the CCP aggravator where the “appellant had ample opportunity to release [the victim] after the robbery,” but chose to kill him); Eutzy v. State, 458 So.2d 755, 757 (Fla.1984) (sustaining CCP where there was no sign of struggle, yet the victim was shot execution-style).

We have reviewed the record on appeal and conclude that the trial court did not err in denying McCoy’s motions for judgment of acquittal. The State introduced substantial evidence demonstrating the appellant’s guilt in the instant case, and successfully rebutted McCoy’s hypothesis of innocence. Correlatively, “after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Bradley v. State, 787 So.2d 732, 738 (Fla.2001). The record contains sufficient evidence to support McCoy’s conviction for first-degree murder.

While not raised by McCoy, this Court is constitutionally charged with review of his sentence for proportionality. “Due to the uniqueness and finality of death, this Court addresses the propriety of all death sentences in a proportionality review.” Bryant v. State, 785 So.2d 422, 436 (Fla.2001). This review is a “unique and highly serious function of this Court, the purpose of which is to foster uniformity in death-penalty law.” Tillman v. State, 591 So.2d 167, 169 (Fla.1992). “It is not a comparison between the number of aggravating and mitigating circumstances; rather, it is a ‘thoughtful, deliberate proportionality review to consider the totality of the circumstances in a case, and to compare it with other capital cases.’ ” Beasley v. State, 774 So.2d 649, 673 (Fla.2000) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)).

In the instant case, four aggravating circumstances apply: (1) prior conviction of felonies involving the use or threat of violence; (2) appellant was under a sentence of imprisonment when he committed the instant murder; (3) CCP; and (4) the murder was committed for financial gain and was committed while engaged in the commission of the crime of armed robbery (aggravators merged). The trial court found twenty mitigating circumstances, giving each “some weight.”

While it is clear that the instant case may not be the most vicious or outrageous of murders reported in Florida, application of the death penalty is certainly not disproportionate here. This Court has previously noted the “particular weight” of the prior violent felony aggravator. See Ocha v. State, 826 So.2d 956, 966 (Fla.2002). Likewise, it is well settled that CCP is “one of the ‘most serious’ aggravators in the sentencing scheme.” Pagan v. State, 830 So.2d 792, 817 (Fla.2002) (quoting Larkins v. State, 739 So.2d 90, 95 (Fla.1999)), cert. denied, — U.S. —, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). This Court has upheld application of the death penalty in cases involving less aggravation, and more evidence in mitigation. See, e.g., Pagan, 830 So.2d at 815-17 (affirming death sentence where prior violent felony, murder committed while in the course of an armed robbery, and CCP aggravators applied and numerous mitigating circumstances existed); Pope v. State, 679 So.2d 710 (Fla.1996) (holding death penalty proportionate where two aggravating factors, murder committed for pecuniary gain and prior violent felony, outweighed two statutory mitigating circumstances, commission while under influence of extreme mental or emotional disturbance and impaired capacity to appreciate criminality of conduct, and several nonstatutory mitigating circumstances); Melton v. State, 638 So.2d 927 (Fla.1994) (holding death penalty proportionate where two aggravating factors of murder committed for pecuniary gain and prior violent felony outweighed moderate nonstatutory mitigation); Heath v. State, 648 So.2d 660 (Fla.1994) (affirming defendant’s death sentence based on presence of two aggravating factors of prior violent felony and murder committed during course of robbery, despite the existence of the statutory mitigator of extreme mental or emotional disturbance). Given the evidence in aggravation and mitigation in the instant case, the appellant’s sentence is proportionate.

Finally, McCoy contends that Florida’s death penalty scheme is unconstitutional on a variety of grounds. Having examined his assertions, we conclude that each of them has failed in previous cases before this Court, and McCoy advances no basis to justify revisiting settled jurisprudence. Of note, McCoy has asserted that Florida’s capital sentencing scheme violates both the United States and Florida Constitutions under the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and denied relief. We conclude that McCoy is likewise not entitled to relief on this claim. Additionally, with regard to aggravating factors, a jury unanimously found McCoy guilty of armed robbery here, and it is undisputed that he was previously convicted of violent felonies and was under a sentence of imprisonment at the time of the instant murder.

Conclusion

In accordance with the above analysis, we hold that the appellant has not presented any legal basis upon which we may set aside his judgment or sentence of death. We affirm the decision of the court below.

It is so ordered.

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

WELLS and LEWIS, JJ., concur in result only.

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

ANSTEAD, C.J.,

concurring in part and dissenting in part.

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

      . Marcel was married to a different man throughout the relationship she had with McCoy.

      . McCoy is also known as Jamil Rashid, the name he adopted upon Islamic conversion. For ease of presentation, we refer only to the appellant’s birth name, Richard McCoy.

      . As McCoy does not contest his armed robbery conviction, and was not convicted of armed burglary, we address only the appellant’s conviction and sentence for first-degree murder.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . (1) The defendant suffered an abusive childhood; (2) the defendant suffered an emotionally deprived childhood; (3) the defendant suffered an economically deprived childhood; (4) the defendant’s mother had relationships with different abusive and non-abusive males; (5) the defendant suffered from unstable living conditions in his childhood; (6) the defendant's parents’ divorce at age ten devastated him; (7) the defendant received poor and inadequate medical care, particularly when he suffered from a high fever; (8) the defendant is a caring son to his mother, providing her food, renting movies for her, and spending time with her; (9) the defendant had a good relationship with his father; (10) the defendant was a caring brother to his sisters, Barbara McCoy and Dorothy McCoy Robertson; (11) the defendant was a caring parent, before his incarceration, to his two sons, Andre (age 17) and Kenny (age 15); (12) as a child, the defendant did poorly in school; (13) as a child, the defendant did not receive the psychological counseling recommended by school officials; (14) there is no evidence that the defendant has ever been violent or abusive in his personal relationships with family members or friends; (15) the defendant is a member of the Muslim faith; (16) the defendant successfully held employment as a welder; (17) the defendant performed laudable humanitarian deeds for Paul Gillians, Diane Peterson, and Trina Rivers; (18) the defendant demonstrated good behavior during the trial after the verdict was rendered; (19) for the eleven months that he was on conditional release prior to the commission of this robbery and murder, the defendant apparently did well and complied with the requirements of conditional release; and (20) the defendant would die in prison regardless of the sentence imposed.

      . The appellant contends that the trial court erred in (1) admitting the audiotape conversation between McCoy and Marcel into evidence; (2) permitting the jury to view a transcript of the conversation between McCoy and Marcel; (3) denying McCoy’s motions for judgment of acquittal made at the close of the State's case, as well as at the close of the evidence; (4) allowing Marcel to testify; (5) restricting the cross-examination of Marcel; and (6) finding that the instant murder was committed in a cold, calculated, and premeditated fashion. Finally, McCoy asserts that (7) the Florida death penalty scheme is unconstitutional.

      . While the appellant chose to present these claims separately, we conclude that they are interrelated, and thus address them together.

      . Because the transcript was used as a demonstrative aid and not introduced as evidence, separate and technical authentication in the traditional sense under the rules of evidence was not independently necessary at trial. Additionally, no argument regarding authentication of the transcript was ever asserted below.

      . It is worth noting that the instruction given to the jury below regarding the proper role of a transcript as a demonstrative aid is quite similar to the language of the instruction specifically approved in Martinez, as well as the standard jury instruction adopted subsequent to the trial proceedings in this case. See Martinez, 161 So.2d at 1086 (quoting Macht v. State, 642 So.2d 1137, 1138 (Fla. 4th DCA 1994)); Fla. Std. Jury Instr. (Crim.) 2.6.

      . The prior violent felony convictions found by the court below were three counts of armed robbery in 1985, and one count of attempted armed robbery in 1989.

      . As noted earlier, the trial court merged a fifth aggravator, committed for the purpose of avoiding or preventing a lawful arrest, with the CCP aggravating factor.


author: WELLS, J.

text:
    A.L.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2593.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Andrea D. England, (Ft.Lauderdale), Assistant Attorney General for appellee.
    Before JORGENSON, COPE and WELLS, JJ.
   WELLS, J.

A.L.M., the respondent below, a juvenile, appeals his adjudication of delinquency for aggravated battery for intentionally striking the victim with a three-foot long broomstick, on the basis that there was insufficient evidence that respondent intended to, and did, use the broomstick to cause death or great bodily harm. We disagree and affirm.

The victim testified that respondent chased him, hit him with his fists, pushed him, and then threw him to the ground. Thereupon, respondent proceeded to hit the victim twice with a three-foot long broomstick. As a result of the beating, the victim was dazed and had various bumps and substantial bruising on his head and body. Pictures of the victim’s injuries, which were introduced into evidence, demonstrated that the victim had numerous injuries across his head, arms and back. Likewise, the police detective assigned to investigate the beating testified as to the extreme severity of victim’s injuries, including significant injuries to the victim’s head where he had been hit with the broomstick.

In a companion case involving a co-respondent who participated in the attack upon the victim, this court held that the broomstick used in this attack qualified as a deadly weapon under section 784.045(l)(a)2, Florida Statutes (2002). See E.M.M. v. State, 836 So.2d 1125, (Fla. 3d DCA 2003). There also was sufficient evidence in the record to support a finding that respondent intentionally used the broomstick to inflict great bodily harm upon the victim. See Mitchell v. State, 698 So.2d 555, 558 (Fla. 2d DCA 1997), review granted, 701 So.2d 868 (Fla.1997), approved, 703 So.2d 1062 (Fla.1997) (finding an aggravated battery conviction was supported when the defendant used a BB gun as a bludgeon to strike his wife, causing two gashes on her head); Taylor v. State, 672 So.2d 580 (Fla. 1st DCA 1996)(finding that a surprise attack with a crowbar, which was wielded with enough force to split open the victim’s head, was competent substantial evidence of the use of a deadly weapon).

Accordingly, the order under review is affirmed.