text:
    Floyd DAMREN, Appellant, v. STATE of Florida, Appellee. Floyd Damren, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC01-1469, SC01-2808.
    Supreme Court of Florida.
    Jan. 23, 2003.

      Jefferson W. Morrow, Jacksonville, FL, for Appellani/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Curtis M. French, Senior Assistant Attorney General, Tallahassee, FL, for Ap-pellee/Respondent.
   PER CURIAM.

Floyd Damren, an inmate under sentence of death, appeals an order of the circuit court denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the denial of Dam-ren’s postconviction motion and deny the petition for habeas corpus.

FACTS

Floyd Damren was convicted of first-degree murder, armed burglary, and aggravated assault and sentenced to death based on the following facts:

Floyd W. Damren entered the grounds of R.G.C. Mineral Sands, stole equipment, and told a friend: “There [is] ... some more good stuff down there I’d like to get.” Several weeks later, after drinking beer with .friends, Damren returned at night, May 1, 1994, with an accomplice, Jeff Chittam, and the two burglarized the electrical shop in the maintenance barn. As Chittam was taking a break, he was confronted by the duty electrician, Don Miller. Damren then snuek up behind Miller and struck him with a steel pipe. As Miller fell to the ground, he pleaded for mercy, saying he was going on vacation the next day and was taking his grandson fishing. Chittam too begged Dam-ren not to hurt Miller any more. Dam-ren paced the floor for a while, then proceeded to bludgeon Miller. As Dam-ren was dragging Miller’s body across the floor, the shift supervisor, Michael Knight, entered the building and hollered at Damren. Damren turned, looked Knight “dead in the eye,” and came at him with the pipe. Knight ran from the building, yelling. Damren fled. Miller died later that night.
Knight immediately identified Damren to police (Damren had lived in Knight’s neighborhood since childhood) and Dam-ren was arrested and charged with first-degree murder, armed burglary, and aggravated assault. At trial, the medical examiner testified that the victim, Miller, had been struck a minimum of seven times on the head and four on the body. Four of the head wounds would have caused unconsciousness and death, including one “chopping wound that basically goes from the base of the nose all the way across the head,” breaking open the skull and exposing the lacerated surface of the brain underneath. Miller had numerous defensive wounds.
Evidence against Damren included the following: Knight testified as to what he saw when he entered the maintenance building that night; several witnesses testified that Damren had made incriminating statements to them following the murder; and blood stains on Damren’s pants matched Miller’s blood. Chittam was not charged, nor did he testily — he became the victim of a separate homicide, in which Damren was charged.
Damren relied principally on an intoxication defense, arguing that he had drunk several beers that day. He was convicted as charged. During the penalty phase, numerous relatives and Mends testified on Damren’s behalf. The jury voted unanimously for death and the judge imposed a sentence of death based on four aggravating circumstances, [Note 1] no statutory mitigating circumstances, and four nonstatutory mitigating circumstances. [Note 2]
[Note 1:] The court found the following: Damren had previously been convicted of a violent felony; the murder took place during commission of a burglary; the murder was especially heinous, atrocious, or cruel [HAC]; and the murder was committed in a cold, calculated, and premeditated manner [CCP].
[Note 2:] The court gave “little” or “some” weight to the following: The underlying burglary did not involve a preconceived plan to use weapons or violence; Damren did not act alone; Damren had an alcoholic father and had an alcohol problem himself; [and] Dam-ren had been a good prisoner.

Damren v. State, 696 So.2d 709, 710-711 (Fla.1997). Damren appealed, raising nine issues. We affirmed. Id.

Damren subsequently filed a motion to vacate the judgment and sentence pursuant to rule 3.851, raising twenty-six claims. The circuit court held an eviden-tiary hearing on April 10, 2001, and denied relief. Damren appeals, raising three issues. He also has filed a petition for a writ of habeas corpus.

3.851 APPEAL

A. Ineffective Assistance of Counsel

In Damren’s first claim, he asserts that his trial counsel was ineffective during the penalty phase of the trial. Damren contends that counsel provided ineffective assistance because counsel faded to present evidence of a nonstatutory mitigator, potential brain damage. He alleges that his attorney failed to give Damren’s medical records to Dr. Ernest Miller (an expert who testified on Damren’s behalf during the original trial) and that if he had done so, Dr. Miller would have known that Damren had suffered a seizure which likely produced brain damage. To support this claim, postconviction counsel presented the opinion of Dr. Miller, who testified that he was not provided with Damren’s medical records during the trial but was provided with them during the postconviction proceedings. Those records revealed the fact that several years before the crime, Damren suffered from a cocaine-related seizure. Based on this fact, Dr. Miller opined that it was 90-95% probable that Damren suffered mild “neuronal damage” or brain damage during the seizure. Dr. Miller, however, was not able to discern the scope of this injury since he never tested Damren.

Pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to establish a claim of ineffective assistance of counsel, a defendant must prove two elements:

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

Valle v. State, 778 So.2d 960, 965 (Fla.2001) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). As this Court has held, “The standard of review for a trial court’s ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the deficiency and prejudice prongs de novo.” Bruno v. State, 807 So.2d 55, 61-62 (Fla.2001).

Damren’s trial counsel testified during the postconviction proceedings. Although defense counsel possessed Damren’s medical records at the time of trial, he made a strategic decision not to provide these records to Dr. Miller. Specifically, after counsel unsuccessfully attempted to discover mental health mitigation from two other experts, defense counsel chose to change tactics. Since there was evidence that Damren had been drinking on the night of the crime, he focused on presenting a voluntary intoxication defense and retained Dr. Miller in order to ask him limited, hypothetical questions relating to alcohol and its potential effect on a person’s judgment. Hence, Dr. Miller was not given the records. Moreover, counsel decided that it was best if Dr. Miller did not personally interview Damren since Damren had a clear memory of the events on the night of the crime — a fact which would have compromised the voluntary intoxication defense.

We agree with the trial court’s conclusion that Damren has failed to demonstrate that his trial counsel was deficient. As noted above, counsel possessed the medical records in question and had a valid reason for not providing them to Dr. Miller. Counsel also contacted two other experts in an attempt to present mental health mitigation but chose to not present their testimony because it would be more damaging than helpful. The fact that Damren has now found an expert to testify to potential brain damage does not equate to a finding that the initial investigation was insufficient. See Asay v. State, 769 So.2d 974, 986 (Fla.2000) (“[Tjrial counsel conducted a reasonable investigation into mental health mitigation evidence, which is not rendered incompetent merely because the defendant has now secured the testimony of a more favorable mental health expert.”).

We also agree with the trial court’s conclusion that no prejudice was established. At the most, this proffered evidence would constitute a nonstatutory mit-igator which would have minimal impact, if any. First, the evidence regarding brain damage was speculative. No tests confirmed that Damren had indeed suffered any neuronal injury, but it was merely assumed that based on his seizure, Damren must have suffered brain damage. Second, in preparing for the trial proceedings, Dr. Sherry Risch tested Damren for organic brain damage. Her testing revealed that Damren had a high average intelligence and was not deficient in problem solving skills, cognitive flexibility, impulse control, or visual and motor integration. Brain damage, if any, was minimal at best and did not significantly affect these areas. When viewing this minimal amount of mitigation in light of the strong aggravating factors which were present (CCP, HAC, prior violent felonies, and that the crime was committed during the course of a burglary), the alleged deficiency did not affect the fairness and reliability of the proceeding. We find no error.

Next Damren contends that his counsel was deficient for failing to present evidence that Damren was addicted to cocaine. Trial counsel, however, clearly considered this potential mitigator and made the strategic decision not to present it. Specifically, when postconviction counsel asked trial counsel why he did not introduce any of Damren’s cocaine history, counsel replied:

A number of reasons. Number one, it wasn’t — no cocaine history was related to the offense that I represented him on. The murder here in Clay County, from everything I could determine, was not committed while Floyd was under the influence of cocaine.
Number two, it was our feeling that the best way to try to get a life recommendation for Floyd was to have the jury think that he was just a drunk who was—
Q: Rather than a drug addict?
A: Rather than a drug addict. And although cocaine addiction and cocaine use is considered to be mitigating rather than aggravating, I think I’m not alone as a defense attorney in thinking that that — the fact of cocaine use or cocaine addiction sometimes is considered as aggravation by a jury in spite of what lawyers say.

As this Court has held, “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). We agree with the trial court’s conclusion that counsel was not deficient in this regard. We find no error.

In his next allegation relating to ineffectiveness, Damren contends that counsel was ineffective in failing to request individual voir dire. Postconviction counsel alleges as follows:

Counsel also failed to request individual sequestered voir dire, a commonly used device for insulating prospective jurors from the contaminating effect of other jurors’ prejudicial comments. Had counsel moved for such examination, the motion should have been granted. Here, there was far more than the “significant possibility of prejudice” which mandates individual voir dire. As a result of the use of en masse voir dire, every venire person became exposed to the collective pretrial knowledge and opinions of the entire venire.
An excusal for cause should be granted if there is any reasonable doubt about a juror’s impartiality.

Counsel, however, fails to explain which prejudicial comments and opinions contaminated the panel. Nor does he cite to any portion of the record to support this contention. We find this claim facially insufficient. See Sweet v. State, 810 So.2d 854, 869 (Fla.2002) (holding that the conclusory allegations that counsel “failed to conduct an adequate voir dire; to object to the introduction of inflammatory and improper evidence; and failed to present adequate argument to the jury” were facially insufficient).

As his final allegation of ineffectiveness, Damren contends that trial counsel was ineffective in failing to call Arlene DeLong as a penalty phase character witness. DeLong was a close friend of Dam-ren’s, and during their relationship together, she became pregnant with Damren’s child. When she told Damren about the pregnancy, he was abusing cocaine heavily and told her that he could not handle that type of responsibility but would send her money for an abortion. DeLong suffered medical complications from the abortion and soon after had a nervous breakdown.

Although DeLong could have testified that Damren was helpful to her and her disabled son, trial counsel had already presented numerous other witnesses (Doloris Hill, Roger Prout, John Shagg, and Nancy Waldrup) who testified that Damren was good to his friends. Moreover, in light of DeLong’s testimony regarding Damren’s cocaine abuse and the fact that he abandoned her after she became pregnant with his child, DeLong’s testimony would have been more damaging than helpful. Hence we agree with the trial court’s conclusion that counsel was not ineffective in this regard. We find no error.

B. Public Records

Damren asserts that the trial court erred in denying his request for certain public records from the State Attorney’s office. According to Damren, the circuit court failed to review these records for exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We disagree.

As this Court has held, “where doubt existed as to whether the State must disclose a particular document, the proper procedure is to have a trial judge conduct an in-camera review of the documents.” Rose v. State, 774 So.2d 629, 636 (Fla. 2000). This Court applies an abuse of discretion standard when reviewing a trial court’s determination on a public records request. Moore v. State, 820 So.2d 199, 204 (Fla.2002).

The record reveals that the State provided the requested records to the trial court for an in-camera review and the postconviction judge granted the public records request in part and denied it in part. During a hearing, the circuit court carefully reviewed each folder of materials which was submitted, explained what information was contained in each folder and whether it included exculpatory information, and indicated the files to which defense counsel was entitled. We find that the trial court did not abuse its discretion in denying in part Damren’s request and hence deny relief. We find no error.

HABEAS CORPUS PETITION

In Damren’s first habeas claim, he contends that HAC was not established because the victim’s consciousness during the fatal beating was proven only through “inadmissible hearsay evidence” relating to statements made by Chittam. Damren raised a similar claim on direct appeal, which this Court rejected:

Damren claims that the court erred in allowing Wendy Hedley, Tessa Mosley, and Joanne Waldrup to testify in the penalty phase as to what Chittam said about the murder when he returned to Hedley’s trailer immediately following the killing. We disagree.
The State argued the following in its proffer of Chittam’s statements to the trial court: 1) Hearsay is admissible in the penalty phase; 2) Damren was accorded a fair opportunity to rebut Chit-tam’s statements because Hedley, Mosley, and Waldrup were available for cross-examination; 3) Chittam’s statements were corroborated by other witnesses who also were available for cross-examination; and 4) Chittam himself was unavailable for cross-examination only because Damren, in order to silence him, had beaten him to death with a hatchet shortly after he made the statements. The State also argued that the statements were admissible in any event as excited utterances.
Our review of the record shows no abuse of discretion in admitting Chit-tam’s statements. See Blanco v. State, 452 So.2d 520, 523 (Fla.1984). We addressed a similar deceased-declarant scenario in Spencer v. State, 645 So.2d 377 (Fla.1994), wherein the out-of-court statements of the murder victim (describing a prior attack and threat by the defendant) were admitted in the penalty phase via the in-court testimony of a police officer. We found it sufficient under section 921.141(1), Florida Statutes (Supp.1992), that “Spencer was ... given an opportunity to cross-examine the officer.” Id. at 388-84. Damren was accorded the same opportunity. See also Waterhouse v. State, 596 So.2d 1008 (Fla.1992).
Further, Chittam’s statements fall within the excited utterance exception to the hearsay rule. The statements were made shortly after the murder of Miller; Chittam was in a highly agitated state over the burglary gone awry when he made the statements; and he was in dire fear for his own life because of the killing he had just witnessed. As noted above, Chittam was killed within hours of making the statements. We find no error.

Damren, 696 So.2d at 713-14 (footnotes omitted). Appellate counsel also contended that the murder was not heinous, atrocious, or cruel—another claim which this Court rejected. See id. at 714 n. 17.

Damren now attempts to re-argue these two issues in his habeas petition. As this Court has repeatedly stated, “it is improper to argue in a habeas petition a variant to a claim previously decided.” Porter v. Crosby, 840 So.2d 981, 984 (Fla.2003). See also Thompson v. State, 759 So.2d 650, 657 n. 6 (Fla.2000) (declining the petitioner’s “invitation to utilize the writ of habeas as a vehicle for the reargument of issues which have been raised and ruled on by this Court”). Accordingly, as these issues, or variants of them, were already raised and rejected on direct appeal, we deny this ground.

Damren next claims that the HAC aggravating factor is unconstitutionally vague and that the jury was not sufficiently instructed on this factor. In support, he relies on Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), wherein the United States Supreme Court found Florida’s jury instruction regarding the aggravating factor of “especially wicked, evil, atrocious, or cruel” was unconstitutionally vague. In the instant case, however, the jury was not given the same instructions. Specifically, the trial judge instructed the jury as follows:

The crime for which the defendant is to be sentenced was especially heinous, atrocious, or cruel. “Heinous” means extremely wicked or shockingly evil. “Atrocious” means outrageously wicked and file [sic], “Cruel” means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. The kind of crime intended to be included as heinous, atrocious, or cruel is one accompanied by additional acts that show that the crime was conscienceless or pitiless and was unnecessarily torturous to the victim.

In Hall v. State, 614 So.2d 473, 478 (Fla.1993), this Court held that the same jury instruction was not unconstitutionally vague. Accordingly, we deny this claim, since appellate counsel cannot be deemed ineffective for failing to raise a claim which this Court already rejected. Sweet v. Moore, 822 So.2d 1269, 1274 (Fla.2002) (“[A]ppellate counsel cannot be ineffective for failing to raise a meritless claim.”).

In Damren’s final habeas claim, he asserts that his counsel was ineffective for failing to object when the trial court informed the jury that its role was merely advisory. Since trial counsel failed to preserve this claim for appeal and it does not constitute fundamental error, we deny relief. See Combs v. State, 525 So.2d 858, 857 (Fla.1988); Jackson v. State, 522 So.2d 802, 809 (Fla.1988).

CONCLUSION

For the above reasons, we affirm the lower court’s denial of Damren’s 3.851 motion for postconviction relief and deny the petition for habeas corpus.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, QUINCE and CANTERO, JJ., and SHAW, Senior Justice, concur.

      . Damren claimed that the trial court erred by (1) admitting similar-fact evidence, (2) refusing to give the standard jury instruction on the rule of evidence derived from Williams v. State, 110 So.2d 654 (Fla. 1959), (3) overruling Damren's objection to the prosecutor’s remarks about the intoxication defense, (4) admitting victim-impact evidence, (5) admitting Chittam’s hearsay statements, (6) finding that the murder was HAC, (7) finding that the murder was CCP, (8) failing to find certain mitigation, and (9) imposing a disproportionate death sentence.

      . Specifically, postconviction counsel raised the following claims: (1) requiring Damren to file a motion for postconviction relief within one year after the affirmance of his convictions violates his constitutional rights; (2) Damren is innocent of first-degree murder; (3) newly discovered evidence establishes that Damren's capital conviction and sentence are unreliable; (4) Damren is innocent of the death penalty; (5) Damren was denied his constitutional rights when the prosecutor suggested to the jury that the law required the jury to recommend a sentence of death; (6) the rule prohibiting Damren’s counsel from interviewing jurors is unconstitutional; (7) defense counsel was ineffective during the penalty phase by failing to call certain witnesses; (8) Florida's death penalty statute is unconstitutional on its face and as applied in this case; (9) Damren's constitutional rights were violated because no reliable transcript of the trial exists; (10) Damren was denied a fair trial because the trial court permitted the State to introduce gruesome and shocking photographs; (11) defense counsel was ineffective during voir dire proceedings; (12) the trial court instructed the jury erroneously regarding the standard to apply to expert witnesses; (13) the trial court failed to find and weigh mitigating evidence which was clearly established in the record; (14) introducing nonstatutory aggravators resulted in an arbitrary imposition of the death penalty; (15) defense counsel failed to object to the prosecutor's statement regarding the believabilily of the star State witness; (16) the sentencing jury was misled by erroneous instructions and arguments which diminished its sense of responsibility; (17) Damren was denied effective assistance of counsel at both the guilt and penalty phases; (18) defense counsel failed to adequately employ the services of available mental health experts; (19) application of the aggravating circumstances violated Damren’s constitutional rights; (20) improper consideration of character and victim impact statements violated Damren’s constitutional rights; (21) during the penalty phase, the burden of proof was shifted; (22) the prosecutor's closing arguments during the guilt and penalty phases denied Damren a reliable trial; (23) the jury was incorrectly informed as to its role during the penalty phase; (24) the trial court erred in permitting the State to argue a lack of remorse; (25) the State withheld exculpatory evidence and presented misleading evidence; and (26) based on cumulative errors, Damren is entitled to a new trial.

      . In fact, Dr. Miller conceded that it would be extremely difficult to determine whether this potential injury had any effect on Damren:
      I will tell you it’s very difficult with even neuropsychological testing to identify subtle impairments which may be subtle, but meaningful. There is a great deal of redundancy built into the brain. We have ten thousand million neurons. We may lose ten thousand of them. In all appearances through most testing, testing which measures cognitive functions, show relatively good functions. But that's only meaningful if we have a base line by which to compare it, and also a specific benchmark to compare for cognitive impairment with respect to what skill in a person of some of abstrac-tive relatedness or whatever it is. It's a very difficult area to be concrete about, without having quite specifics and certainly without having a brain biopsy which is not realistic.

      . For example, when discussing the jury selection lists, the judge declared, “There is absolutely no exculpatory-type [evidence].” Again, when reviewing the State’s trial order notes, the judge stated, "And it would appear to me that it is attorney work product, contains no exculpatory information that I can glean.”

      . To the extent that counsel is attempting to raise the ineffectiveness of trial counsel, we reject this claim because it is not the proper subject of a habeas petition. See Hall v. Moore, 792 So.2d 447, 449-50 (Fla.2001) ("We reject this issue because such a claim concerning the failure to present evidence at trial is a claim concerning the effectiveness of trial counsel which is properly raised in a rule 3.850 motion and is not a claim concerning the effectiveness of appellate counsel, which is the sole subject of this habeas petition.”).

      . We reject any other issues or subissues raised by Damren in his rule 3.851 proceeding and in his habeas petition.


source: Caselaw Access Project

author: PER CURIAM. WELLS, J.,

license: Public Domain

text:
    CODE OF JUDICIAL CONDUCT.
    No. SC02-878.
    Supreme Court of Florida.
    Jan. 23, 2003.
   PER CURIAM.

The Judicial Ethics Advisory Committee (committee) petitions this Court to amend Canon 3 of the Florida Code of Judicial Conduct. The committee proposal was published for comment in the June 15, 2002, edition of The Florida Bar News, but no comments were received.

The committee proposes an amendment to Canon 3E(1), which addresses judicial disqualification. The canon provides: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:.... ” The committee proposes adding new subdivision (e), which provides, “[T]he judge’s spouse or a person within the third degree of relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge.” In its petition, the committee notes that it is not uncommon for judges in the State of Florida to be related to one another by marriage or within the third degree of relationship. The Code of Judicial Conduct lists the following relatives as being within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece. The committee states that the proposed addition of subdivision (e) and the accompanying commentary will alleviate any doubt that may exist as to the proper role of a reviewing judge over a relation’s case.

Having considered the proposed amendment and having received no comments, we adopt the amendment as proposed. In doing so, we note that Canon 3(F), which allows the parties to waive disqualification of a judge who is disqualified under Canon 3E, applies to new subdivision (e).

Accordingly, we hereby amend Canon 3 of the Florida Code of Judicial Conduct as set forth in the attached appendix. New language is indicated by underscoring. The amendment is effective immediately.

It is so ordered.

ANSTEAD, C.J., PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

WELLS, J., concurs in part and dissents in part with an opinion.

WELLS, J.,

concurring in part and dissenting in part.

I concur in the adoption of this addition to the Canons. I believe that it is an appropriate addition to make express the required recusal of judges who would be reviewing the decisions of judges who are spouses or family members. We have recognized that the Florida Constitution provides a constitutional right to appeal. In re Amendments to Fla. Rules of App. Pro., 685 So.2d 773 (Fla.1996). To assure litigants and the public that this constitutional right is protected, the judiciary must assure that this is and has the appearance of being an independent appellate review. Decisions which are reviewed by spouses or family members simply do not present sufficient indicia of independence. Such decisions are too subject to being suspected of having an intra-spouse or intra-family influence.

I do not concur that this is a canon which should be allowed to be waived. Unlike the other provisions of canon 3E(1), which are case specific, this canon is not. This canon covers situations which repeatedly occur because the canon is directed to the relationship of judges who have many cases subject to review in the appellate structure. This means that those who are repeatedly before the court, such as the State and public defenders, are placed in a position of having to constantly make decisions in respect to waiver. I am concerned that this places undue and unnecessary pressure on these parties, since these parties also have many other cases before the same judges. Therefore, I conclude that this is a canon which should not be allowed to be waived.

APPENDIX

Canon 3. A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

A. Judicial Duties in General.

The judicial duties of a judge take precedence over all the judge’s other activities. The judge’s judicial duties include all the duties of the judge’s office prescribed by law. In the performance of these duties, the specific standards set forth in the following sections apply.

B. Adjudicative Responsibilities.

(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.

(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

(3) A judge shall require order and decorum in proceedings before the judge.

(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control.

(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and shall not permit staff, court officials, and others subject to the judge’s direction and control to do so. This section does not preclude the consideration of race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors when they are issues in the proceeding.

(6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words, gestures, or other conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, against parties, witnesses, counsel, or others. This Section 3B(6) does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors are issues in the proceeding.

(7)A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits are authorized, provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(Ü) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond.
(c) A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

(8) A judge shall dispose of all judicial matters promptly, efficiently, and fairly.

(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge’s direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

(10) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.

(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.

C.Administrative Responsibilities.

(1)A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

(2) A judge shall require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.

(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

D. Disciplinary Responsibilities.

(1) A judge who receives information or has actual knowledge that substantial likelihood exists that another judge has committed a violation of this Code shall take appropriate action.

(2) A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action.

(3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2) are part of a judge’s judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge.

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;
(c) the judge knows that he or she individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(in) is known by the judge to have a more than de minimus interest that could be substantially affected by the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.;
(e) the judge’s spouse or a person within the third degree of relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge.

(2) A judge should keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the economic interests of the judge’s spouse and minor children residing in the judge’s household.

F. Remittal of Disqualification.

A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

COMMENTARY

Canon 3B(4). The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and business-like while being patient and deliberate.

Canon 3B(5). A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge’s direction and control.

A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

Canon 3B(7). The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.

To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party’s lawyer, or if the party is unrepresented, the party who is to be present or to whom notice is to be given.

An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief as amicus curiae.

Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge.

A judge must not independently investigate facts in a case and must consider only the evidence presented.

A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.

A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge’s staff.

If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties.

Canon 3B(8). In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.

Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants, and their lawyers cooperate with the judge to that end.

Canon 3B(9). The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. This Section does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity is governed by Rule 4-3.6 of the Rules Regulating The Florida Bar.

Canon 3B(10). Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.

Canon 3C(4). Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, mediators, arbitrators, and guardians and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4). See also Fla.Stat. § 112.3135 (1991).

Canon 3D. Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, or reporting the violation to the appropriate authority or other agency. If the conduct is minor, the Canon allows a judge to address the problem solely by direct communication with the offender. A judge having knowledge, however, that another judge has committed a violation of this Code that raises a substantial question as to that other judge’s fitness for office or has knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, is required under this Canon to inform the appropriate authority. While worded differently, this Code provision has the identical purpose as the related Model Code provisions.

Canon 3E(1). Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis. Similarly, if a lawyer or party has previously filed a complaint against the judge with the Judicial Qualifications Commission, that the fact does not automatically require disqualification of the judge. Such disqualification should be on a case-by-case basis.

By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

Canon 3E(l)(b). A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(l)(b); a judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge’s impartiality might reasonably be questioned because of such association.

Canon 3E(l)(d). The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that “the judge’s impartiality might reasonably be questioned” under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be “substantially affected by the outcome of the proceeding” under Section 3E(l)(d)(iii) may require the judge’s disqualification.

Canon 3E(l)(e). It is not uncommon for a judge’s spouse or a person within the third degree of relationship to a judge to also serve as a judge in either the trial or appellate courts. However, where a judge exercises appellate authority over another judge, and that other judge is either a spouse or a relationship within the third degree, then this Code requires disqualification of the judge that is exercising appellate authority. This Code, under these circumstances, precludes the appellate judge from participating in the review of the spouse’s or relation’s case.

Canon 3F. A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek, or hear comment on possible remittal or waiver of the disqualification, unless the lawyers jointly propose re-mittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.

      . Canon 3(F) provides:
      A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

      . I do expressly note that my colleagues who are in the circumstances of having spouses or family covered by this rule have voluntarily recused themselves from cases covered by the rule. I appreciate their having done this in the public interest.


author: PER CURIAM.

text:
    David FAMIGLIETTI, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1305.
    Supreme Court of Florida.
    Jan. 23, 2003.
    Eric M. Cohen, Miami, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Michael J. Neimand, Bureau Chief, and Paulette R. Taylor, Assistant Attorney General, Miami, FL, for Respondent.
    H. Scott Fingerhut, Miami, FL; and Benedict P. Kuehne of Sale & Kuehne, P.A., Miami, FL, for Florida Association of Criminal Defense Lawyers and Florida Association of Criminal Defense Lawyers — Miami Chapter, Amicus Curiae.
   PER CURIAM.

We originally accepted review of State v. Famiglietti 817 So.2d 901 (Fla. 3d DCA 2002), in which the Third District Court of Appeal certified direct conflict with the Fourth District Court of Appeal’s decision in State v. Pinder, 678 So.2d 410 (Fla. 4th DCA 1996), pursuant to article V, section 3(b)(4) of the Florida Constitution. Upon closer examination, however, we find that jurisdiction was improvidently granted in this case. Therefore, we dismiss review of this cause.

It is so ordered.

ANSTEAD, C.J., WELLS,

PARIENTE, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

LEWIS, J., dissents.


text:
    Floyd PERSAUD, Petitioner, v. STATE of Florida, Respondent. Wardell Sanders, Petitioner, v. State of Florida, Respondent. Raymond Baker, Petitioner, v. State of Florida, Respondent.
    Nos. SC02-1406, SC02-1858, SC02-2198.
    Supreme Court of Florida.
    Jan. 23, 2003.

      Jo Ann Barone Kotzen, West Palm Beach, FL, for Petitioner Floyd Persaud.
    Wardell Sanders, Polk City, FL, Petitioner, pro se.
    No appearance for Respondent.
    Raymond Baker, Raiford, FL, for Petitioner, pro se.
    No appearance for Respondent.
   PER CURIAM.

Petitioners Floyd Persaud and Wardell Sanders have filed petitions for writs of habeas corpus, see art. V, § 3(b)(9), Fla. Const., seeking review of the decisions of the Fourth and Fifth District Courts of Appeal in Persaud v. State, 814 So.2d 1101 (Fla. 4th DCA 2002), and Sanders v. State, 805 So.2d 1064 (Fla. 5th DCA 2002). Petitioner Raymond Baker has filed a petition for a writ of mandamus, see art. V, § 3(b)(8), Fla. Const., seeking review of the decision of the Fifth District in Baker v. State, 820 So.2d 382 (Fla. 5th DCA 2002). We consolidate these cases for purposes of this opinion and, for the reasons expressed below, dismiss the petitions for lack of jurisdiction.

FACTS

The decision from the Fourth District in Persaud’s case reads in its entirety: “Affirmed. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Persaud, 814 So.2d at 1101. Per-saud argues that “[hjabeas corpus is the proper remedy to challenge the denial of [his] claim in the Fourth District Court of Appeal that [he] was denied due process under the Constitution of the United States by not receiving effective assistance of trial counsel.” He further states that “[i]t is from [the] affirmance [of the trial court’s summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, by] the Fourth District [that he] seeks a writ of habeas corpus herein.” Persaud indicates that he filed his petition in this Court in an effort to “exhaust his state remedies before filing a petition for federal habeas relief’ as is required by the United States Supreme Court’s decision in O Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). In an apparent effort to demonstrate why the Fourth District’s affirmance of the trial court’s summary denial of his rule 3.850 motion was in error, Persaud argues at length in his petition why the trial court should have granted him an evidentiary hearing on his ineffective assistance of counsel claim and ordered a new trial.

The decision from the Fifth District in' Sanders’ case reads in its entirety: “AFFIRMED. See Banck v. State, 798 So.2d 814 (Fla. 5th DCA 2001).” Sanders, 805 So.2d at 1064. Sanders argues that his sentence for the crime of lewd and lascivious assault upon a child is illegal under this Court’s decision in Heggs v. State, 759 So.2d 620 (Fla.2000). Sanders indicates that he unsuccessfully challenged the illegality of his sentence under Heggs in the trial court in a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and on appeal from the trial court’s denial of relief in the Fifth District. Sanders also asserts that “[a] complete exhaustion of judicial remedies has been thoroughly met by the Petitioner” with regard to his illegal sentence claim and that he now seeks relief from this Court. In his prayer for relief, Sanders asks this Court for an order “reversing and remanding the instant case for a guidelines sentence.” These statements in Sanders’ petition collectively indicate that he intends for his petition in this Court to be the next step in the review process relative to his illegal sentence claim, as opposed to a true original writ proceeding.

The decision from the Fifth District in Baker’s case reads in its entirety: “AFFIRMED. See Fla. Stat. § 782.04(2) (2001).” Baker, 820 So.2d at 382. Baker asks this Court to compel the Fifth District to recall its mandate in his case, arguing that the Fifth District clearly “overlooked and or misapprehended” its duty to correct illegal sentences “whenever presented with [a] motion indicating that [a] sentence is truely [sic] illegal.” Baker explains the procedural history of his case as follows:

On April 15, 2002, Petitioner filed [a] motion for correction of his illegal sentence in the trial court, in which he argues his sentence of 99 years illegally exceeds the statutory maximum authorized under the 1983 statute 775.082(3)(a) whereas his charged offenses occurred December 19, 1983. On the 30th day of April, 2002, the trial court rendered its order denying Petitioner’s 3.800(a) motion without addressing any of the claims presented therein, [and instead] based its denial on [an] uncontested ground which [was] not relevant to any of Petitioner’s claims.
A timely appeal of the trial court’s order of denial was ensued by Petitioner to the Fifth District Court of Appeal, whereupon, on May 28, 2002, the court issued its none [sic] final order of a per-curiam decision citing Florida Statute 782.04 (2001), without any consideration of the fact that the charged offenses occurred December 19, 1983, and the fact that the charged offense under count one of the indictment, reduced to second degree murder by jury verdict, being a first degree felony “must be reclassified to a life felony” pursuant to 775.087(3)(a), Fla. Stat. Petitioner filed a timely motion for rehearing, which was ultimately denied and mandate issued on the 19th day of July, 2002.
On the 6th day of August, 2002, Petitioner submitted his motion to withdraw mandate to the Fifth District Court of Appeal. There, Petitioner further pointed out facts and matters which the court had obviously overlooked and or misapprehended thus requiring that the mandate be withdrawn or recalled. Nevertheless, on August 16, 2002, the court issued its order denying Petitioner’s motion to withdraw the mandate.

(Citations to accompanying appendix omitted.) At the conclusion of this procedural history, Baker states that he “has no other available remedy to redress the issues presented herein thus he seeks mandamus relief.” This statement, when coupled with the procedural history and arguments presented in the petition, indicates that Baker intends for this mandamus proceeding to be a review of the district court’s decision in his case, as opposed to a true original writ proceeding.

ANALYSIS

This Court’s decisions in Dodi Publishing Co. v. Editorial America, S.A., 385 So.2d 1369 (Fla.1980), and Jollie v. State, 405 So.2d 418 (Fla.1981), when read together, stand for the proposition that this Court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this Court. In Dodi Publishing, we rejected “the assertion that we should reexamine a case cited in a per curiam decision to determine if the contents of that cited case ... conflict with other appellate decisions.” 385 So.2d at 1369. In Jollie, we reaffirmed that “mere citation PCA decisions ... will remain nonreviewable by this Court” and distinguished those district court PCA opinions that cite as controlling authority “a case that is pending review in or has been reversed by this Court.” 405 So.2d at 421.

The decision in Dodi Publishing explicitly addressed this Court’s lack of jurisdiction to review per curiam decisions from the district courts of appeal that merely cite to a case not pending on review in this Court. However, this Court has historically applied the reasoning of Dodi Publishing to other district court citation per cu-riam decisions, like those in Persaud’s and Baker’s cases, which merely cite to a statute, a rule, or a decision of the United States Supreme Court or this Court. See, e.g., Herrera v. State, 804 So.2d 621 (Fla. 3d DCA) (affirming with citations to a decision of this Court, a decision of the Second District, and a statute), review dismissed, 819 So.2d 135 (Fla.2002); Colonel v. State, 756 So.2d 172 (Fla. 3d DCA) (affirming with citations to Strickland and a decision of this Court), review dismissed, 767 So.2d 455 (Fla.2000); Anderson v. State, 748 So.2d 316 (Fla. 5th DCA 1999) (affirming with citations to three decisions of this Court and a citation to a rule of criminal procedure), review dismissed, 753 So.2d 563 (Fla.2000). Our decision in Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988), explains why our application of the reasoning in Dodi Publishing beyond its specific facts, in each of these described circumstances, is entirely consistent with the parameters of this Court’s limited discretionary review jurisdiction.

As we explained in Florida Star, this Court’s discretionary review jurisdiction can be invoked only from a district court decision “that expressly addresses a question of law within the four corners of the opinion itself’ by “containing] a statement or citation effectively establishing a point of law upon which the decision rests.” Florida Star, 530 So.2d at 288. We further explained that “there can be no actual conflict discernible in an opinion containing only a citation to other case law unless one of the cases cited as controlling authority is pending before this Court, or has been reversed on appeal or review, or receded from by this Court, or unless the citation explicitly notes a contrary holding of another district court or of this Court.” Id. at 288 n. 3. This is true because, in those cases where the district court has not explicitly identified a conflicting decision, it is necessary for the district court to have included some facts in its decision so that the question of law addressed by the district court in its decision can be discerned by this Court. See Reaves v. State, 485 So.2d 829, 830 (Fla.1986) (denying review in case where “[t]he district court decision correctly states and applies the law based on the facts given,” and noting that “[c]onflict between decisions must be express and direct, i.e., it must appear within the four comers of the majority decision”); Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla.1981) (“It is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an ‘express’ conflict under section 3(b)(3)”).

In Grate v. State, 750 So.2d 625, 626 (Fla.1999), we concluded that “[rjegardless of how a petition seeking review of a district court decision is styled, this Court does not have jurisdiction to review per curiam decisions rendered without opinion and this Court’s holding in Jenkins [v. State, 385 So.2d 1356 (Fla.1980)] cannot be circumvented simply by seeking relief by filing an extraordinary writ petition.” We held, therefore, “that those provisions of the Florida Constitution governing this Court’s jurisdiction to issue extraordinary writs may not be used to seek review of an appellate court decision issued without a written opinion.” Grate, 750 So.2d at 626. In Stallworth v. Moore, 827 So.2d 974 (Fla. 2002), we recently summarized the facts upon which the decision in Grate was based:

In Grate, the petitioner filed a petition for a writ of mandamus which sought review of an affirmance by the Third District, issued without opinion, of a trial court order denying the petitioner’s motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. In his petition, petitioner Grate alleged that the district court’s decision in his case was inconsistent with an opinion of this Court, and he asserted that he had no avenue available to him for seeking review of the district court’s decision other than a petition for an extraordinary writ, because the district court had not provided any form of written opinion supporting its per curiam affirmance. After discussing the decisions in both Jenkins and St. Paul [Title Insurance Corp. v. Davis, 392 So.2d 1304 (Fla.1980) ], this Court concluded that it was without jurisdiction to entertain petitioner Grate’s petition....

Id. at 978 (citations omitted).

The reasoning and holding in Grate, even though specifically applicable to extraordinary writ petitions seeking review of district court per curiam affir-mances issued without written opinion, applies with equal force to extraordinary writ petitions seeking review of per curiam decisions from the district courts of appeal that merely cite to a case not pending on review in this Court, or to a statute or rule of procedure. We therefore apply the reasoning in Grate to citation per curiam af-firmances and specifically hold that this Court’s extraordinary writ jurisdiction may not be used to seek review of per curiam decisions of the district courts of appeal like those issued in Persaud’s, Sanders’ and Baker’s cases.

Accordingly, we hereby dismiss the petitions in these cases. Consistent with the recent amendment to Florida Rule of Appellate Procedure 9.330(d), promulgated “to expressly provide that the Court will not entertain motions for rehearing addressed to the dismissal of a petition for an extraordinary writ when that writ is used to seek review of a district court of appeal decision without an opinion,” Amendments to Florida Rules of Appellate Procedure, 827 So.2d 888, 890 (Fla.2002), no motions for rehearing or clarification will be entertained in these cases or in cases which are dismissed in the future based on the reasoning set forth in this opinion.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

      . Persaud also filed a notice of supplemental authority in his case calling this Court's attention to our recent decision in Ford v. State, 825 So.2d 358 (Fla.2002), and a motion seeking a remand to the trial court for reconsideration of the rule 3.850 motion in light of this Court's decision in Ford.

      . In fact, this Court specifically stated in Allstate Insurance Co. v. Langston, 655 So.2d 91, 93 n. 1 (Fla. 1995), that it "does not have jurisdiction based on alleged conflict with a rule of civil procedure."

      . Although all of the orders dismissing review in these cases were unpublished, the records of this Court indicate that each of the orders cited to this Court's decision in Dodi Publishing as authority for the dismissals.

      . The pending motion for remand in Per-saud's case is also denied.


author: LEWIS, J., dissenting.

text:
    FISHBONES-SAND LAKE ROAD, INC. v. ALLEN, DRYER DOPPELT, MILBRATH & GILCHRIST, P.A.
    No. SC02-426.
    Supreme Court of Florida.
    Jan. 23, 2003.
    Prior report: Fla.App., 805 So.2d 90.
    ANSTEAD, C.J., WELLS and PARIENTE, JJ., and SHAW, Senior Justice, concur.
    LEWIS, J., dissents with opinion.
   LEWIS, J., dissenting.

The majority’s decision to decline jurisdiction in the instant case extends the rule established in Moossun v. Orlando Regional Health Care, 826 So.2d 945 (Fla. 2002), which I maintain was in error, even further to a scenario that is clearly distinguishable from that case. We clearly have jurisdiction under the authority of Jollie v. State, 405 So.2d 418, 420 (Fla.1981), and the proceedings in this case were even stayed due to our consideration of Moos-sun. The result of the Court’s decision in this case is an ever-widening circle of Floridians being artificially precluded from pursuing their legal rights due to an unjustifiably high bar for access to the judiciary created by misguided rule interpretations. Therefore, I must respectfully dissent.

In Moossun, the majority applied the rule established in Toney v. Freeman, 600 So.2d 1099 (Fla.1992), that a status order is not sufficient “record activity” to preclude dismissal of a case for lack of prosecution under rule 1.420(e) of the Florida Rules of Civil Procedure, to instances in which case management conferences — not just status reports — had been ordered. See Moossun, 826 So.2d at 946. I dissented in Moossun because of the meaningful distinction that exists between a mere status request and an order setting a case for conference. Moossun, 826 So.2d at 952 (Lewis, J., dissenting). As I explained in my dissenting opinion, a status request constitutes an attempt by the ordering court to manage its docket, whereas a case management conference is calculated to “ ‘hasten the suit to judgment’ ” as required by Toney as it provides a venue to take any number of aggressive, substantive actions, from expediting discovery to pursuing settlement options to the entry of judgment. See id. at 952 (Lewis, J., dissenting) (quoting Toney, 600 So.2d at 1100).

Even if I had agreed with the majority opinion in Moossun, I would not extend that rule further, as the majority does in the present case, to instances where a case management conference has not only been ordered, but allegedly actually attended by counsel. The extension of Moossun in this regard is simply unjustified. Courts do not squander their own precious resources by convening case management conferences for simply the purpose of passively checking the parties’ status. Such conferences are designed and intended to make meaningful progress toward completion of the case. As any participating attorney should know, one must be prepared to zealously advocate a client’s position in that arena, or risk receiving unfavorable determinations on substantive issues. The analysis and decisions of the district courts of appeal in Samuels v. Palm Beach Motor Cars Ltd. by Simpson, Inc., 618 So.2d 810 (Fla. 4th DCA), review denied, 629 So.2d 134 (Fla.1993), and Miami Beach Awning Co. v. Heart of the City, Inc., 565 So.2d 739 (Fla. 3d DCA 1990), were eminently correct.

For these reasons, I cannot agree that the scheduling of a case management conference and counsel’s actual participation in a case management conference would not constitute sufficient record activity under rule 1.420(e) to preclude dismissal of the case for failure to prosecute. If this result must follow, the rule should be changed. I therefore dissent from the Court’s decision to decline jurisdiction in the instant case, and, consequently, to subject cases presenting the instant factual scenario to the rule established in Moos-sun.


author: SHAW, Senior Justice.

text:
    William Gregory THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. SC01-1439.
    Supreme Court of Florida.
    Jan. 30, 2003.

      Dale G. Westling, Sr., Jacksonville, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Appellee.
   SHAW, Senior Justice.

William Gregory Thomas appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm.

I. FACTS

The underlying facts are set forth in this Court’s decision on direct appeal, which provides as follows in relevant part:

Thomas planned the kidnapping and murder of his wife, Rachel, in order to avoid paying his part of a settlement agreement in their pending divorce. Thomas and a friend, Douglas Schraud, went to Rachel’s house, September 12, 1991, the day before a substantial payment was due, and Thomas beat, bound, and gagged Rachel. When Rachel tried to escape by hopping outside, Thomas knocked her to the ground and dragged her back inside by her hair. He then put her in the trunk of her car and drove off. She was never seen again.
Thomas was charged with first-degree murder, burglary, and kidnapping. The State presented numerous witnesses to whom he had made incriminating statements. Thomas presented no evidence during the guilt phase and was found guilty on all counts. During the penalty phase, several witnesses testified on his behalf and Thomas himself took the stand. The jury recommended death by a vote of eleven to one....

Thomas v. State, 693 So.2d 951, 951 (Fla. 1997).

The court imposed a sentence of death based on five aggravating circumstances and no mitigating circumstances. Thomas raised nine issues on direct appeal; this Court affirmed. On October 5, 1998, Thomas filed the present (his first) motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and filed amendments to the motion on April 19, 2000, and August 15, 2000. The circuit court conducted an evidentiary hearing on the motion on January 29, 2001, and denied relief. Thomas appeals, raising eight issues.

II. STANDARD OF REVIEW

Thomas claims that the circuit court erred in rejecting his claim that trial counsel was ineffective in various ways. This Court in Stephens v. State, 748 So.2d 1028 (Fla.1999), addressed the proper standard of proof (for the trial court) and standard of review (for the appellate court) in addressing a claim of ineffectiveness of trial counsel raised in a rule 3.850 motion. This Court later summarized those standards as follows:

The test to be applied by the trial court when evaluating an ineffectiveness claim is two-pronged: The defendant must show both that trial counsel’s performance was deficient and that the defendant was prejudiced by the deficiency. The standard of review for a trial court’s ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the deficiency and prejudice prongs de novo.

Bruno v. State, 807 So.2d 55, 61-62 (Fla. 2001) (footnote omitted).

III. THE VALIDITY OF THE WAIVER

Thomas murdered his wife on September 12, 1991, and murdered his mother on May 4, 1993. He was charged separately. The “wife-murder” is at issue in the present case. Here, the jury returned a guilty verdict on March 24, 1994, and a death recommendation on March 30, 1994. The judge deferred sentencing pending resolution of the “mother-murder” case. Thomas entered a negotiated plea in the mother-murder case on July 14, 1994, and was sentenced in the present case on July 22, 1994.

In the plea agreement in the mother-murder case, Thomas agreed to waive any right to appeal — either directly or collaterally — any guilt phase issues arising out of the wife-murder trial. However, he reserved the right to appeal any sentencing issues arising out of the wife-murder trial. Thomas now claims that this waiver violates general constitutional principles and contravenes public policy, or alternatively, that trial counsel in the wife-murder case was ineffective in allowing him to agree to waive his rights. We disagree.

As for Thomas’s claim that the waiver is unconstitutional and violates public policy, this claim is procedurally barred because it “could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.” Had the trial court in the wife-murder case held the waiver invalid, the State at that time could have reevaluated its position in the mother-murder case. Thomas cannot wait until years later and then use rule 3.850 as a vehicle to “blindside” the State in this way.

As for Thomas’s claim that trial counsel in the wife-murder case was ineffective in failing to object to the validity of the waiver, this claim too is procedurally barred. A claim of ineffectiveness of trial counsel must be raised in circuit court, not this Court, for — above all — it is this Court’s job to review a circuit court’s ruling on a rule 3.850 claim, not to decide the merits of that claim. The record shows that the present claim was not raised in Thomas’s original rule 3.850 motion or amendments thereto. Thus, there is no ruling on this issue before this Court to review.

IV. INADEQUATE PREPARATION

Thomas claims that the circuit court erred in rejecting his ineffectiveness claim on the following points: Thomas’s counsel visited the defendant in jail only a few times before trial and the visits were brief; counsel did not interview impeachment witnesses suggested by the defendant; counsel did not interview Harry Mahon, an attorney who represented Thomas in his divorce, even though the alleged motive for the murder was defendant’s inability to pay the financial obligations imposed by the divorce; and counsel did not review the court file from the divorce case, and investigation of that file would have revealed that the obligation for the lump sum payment, which purportedly prompted the murder, had already been satisfied. We find no error.

At the evidentiary hearing below, both Thomas and his attorney testified in person concerning various aspects of this claim. The circuit court evaluated the conflicting testimony, made findings on each part of this claim, and denied relief. To the extent that Thomas alleges that counsel was not prepared for the penalty phase and had little or no discussion with Thomas prior to the penalty phase, the circuit court addressed the testimony relating to this claim in three pages of its written order and concluded as follows:

This Court specifically finds that counsel’s testimony was both more credible and more persuasive than Defendant’s allegations and testimony. Blan-co v. State, 702 So.2d 1250, 1252 (Fla. 1997); Laramore v. State, 699 So.2d 846 (Fla. 4th DCA 1997). Additionally, the testimony of [trial counsel] demonstrates that Defendant and he discussed the penalty phase of the trial, Defendant’s potential testimony at that phase, and the aggravating and mitigating circumstances which were appropriate during that phase. Therefore, the Court finds that Defendant has failed to demonstrate either error on behalf of counsel or prejudice to his case.

To the extent that Thomas alleges that counsel failed to present guilt phase witnesses on his behalf, the circuit court addressed the testimony relating to this claim in two and one-half pages of its written order and concluded as follows:

Again, this Court specifically finds that counsel’s testimony was both more credible and more persuasive than Defendant’s allegations and testimony. Blanco; Laramore. [Trial counsel] indicated that he discussed with Defendant the aspects of the case, including the decision not to call witnesses for the defense during the guilt phase, and it was Defendant’s decision to make. Therefore, this Court finds that it was Defendant’s decision not to call any witnesses for the defense, and hence, Defendant has failed to demonstrate either error or prejudice.

To the extent that Thomas alleges that counsel failed to formulate a defense strategy and failed to investigate the background of the “jailhouse snitches” and failed to adequately impeach their testimony, the circuit court addressed the testimony relating to this claim in two pages of its written order and concluded as follows:

Once again, this Court specifically finds that counsel’s testimony was both more credible and more persuasive than Defendant’s allegations and testimony. Blanco; Laramore. [Trial counsel] outlined his strategy for the defense of Defendant. Moreover, counsel indicated that Defendant did not participate actively in his defense, nor did he provide names of witnesses who could have been beneficial to the defense. In fact, [counsel] believed, based upon discussions with Defendant, that there were no witnesses who could have contradicted the “jailhouse snitches” since Defendant did exactly as they testified. This Court finds that Defendant has failed to prove that counsel’s defense strategy was not a reasonable tactical decision. Therefore, this Court finds that Defendant has failed to demonstrate either error or prejudice.

To the extent that Thomas alleges that counsel failed to rebut the State’s allegation that the murder was committed to evade payment of an installment on his divorce settlement agreement and that trial counsel failed to call Thomas’s divorce lawyer as a witness to show that the payment already had been made, the circuit court addressed the testimony relating to this claim in one and one-half pages of its written order and concluded as follows:

This Court finds that counsel’s testimony was both more credible and more persuasive than Defendant’s allegations. Blanco; Laramore. [Trial counsel] indicated that he discussed with Defendant the possibility of calling Mr. Mahon to testify for the defense, but that both agreed that the benefits of that testimony would not outweigh the loss of the final closing argument. Finally, the testimony of [counsel] discloses that his decision, and Defendant’s, not to utilize Mr. Mahon as a defense witness was a tactical decision based upon what he felt the facts of the case supported. Therefore, Defendant agreed to this course of action, and may not now attempt to claim ineffective assistance based upon his own decision. Moreover, defense counsel was not ineffective for failing to raise such a defense. Remeta v. Dug-ger, 622 So.2d 452 (Fla.1998); Gonzales v. State, 691 So.2d 602, 603 (Fla. 4th DCA 1997) (“Tactical or strategic decisions of counsel do not constitute ineffective assistance of counsel.”).

Applying the Stephens standard of review, which is set forth above, to the circuit court’s rulings on this claim, we conclude that the circuit court’s factual findings are supported by competent substantial evidence in the record and its rulings comport with the applicable law. We find no error.

V. JURY INSTRUCTIONS

Thomas claims that the circuit court erred in rejecting his claim that trial counsel was ineffective in failing to object to several jury instructions that “unconstitutionally and inaccurately diluted the jury’s sense of responsibility for sentencing.” We disagree. The circuit court denied relief on this claim for the following reason:

In Defendant’s first claim for relief in the Amended Motion, he avers that counsel rendered ineffective assistance by failing to object to jury instructions given by this Court which allegedly failed to inform the jury of its sentencing responsibility. Defendant relies upon Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), for his assertion that this Court improperly instructed the jury that “they had virtually no responsibility for the sentencing decision, and that no matter what they did the judge would do what he wanted regarding sentencing, the jurors were encouraged to pass the responsibility to the judge.”
This Court will note that the Florida Standard Jury Instructions have been determined to be in compliance with the requirements of Caldwell. Burns v. State, 699 So.2d 646, 654 (Fla.1997); Sochor v. State, 619 So.2d 285, 291-92 (Fla. 1993). In this case, the model jury instructions were followed when instructing the jury and counsel cannot be termed ineffective for failing to object to a standard jury instruction which has not been invalidated at the time of a defendant’s sentencing. Thompson v. State, 759 So.2d 650, 665 (Fla.2000); Downs v. State, 740 So.2d 506, 517 (Fla. 1999).

Applying the Stephens standard of review, set forth above, to the circuit court’s ruling on this claim, we conclude the circuit court’s factual findings are supported by competent substantial evidence in the record and its ruling comports with the applicable law. We find no error.

Thomas next claims that the circuit court erred in rejecting his claim that trial counsel was ineffective in failing to object to the jury instruction concerning the “cold, calculated, and premeditated” (CCP) aggravating circumstance. We disagree. The trial court delivered to the jury the then-standard jury instruction for this aggravator. Three weeks later, but before the trial court sentenced Thomas, this Court decided Jackson v. State, 648 So.2d 85 (Fla.1994), wherein we set forth a recommended expanded instruction for the CCP aggravator. The trial court reevaluated the CCP aggravator under Jackson and found that CCP was “clearly” established. Thomas raised the validity of the CCP jury instruction on direct appeal but this Court found the claim procedurally barred.

The circuit court below denied relief on this claim for the following reason:

In Defendant’s sentencing Order, this Court analyzed Defendant’s sentence based upon the standard enunciated in Jackson, and found that the aggravator applied to Defendant. Therefore, Defendant is unable to demonstrate prejudice. Further, Defense counsel cannot be deemed ineffective for failing to object to a standard jury instruction which has not been invalidated at the time of a defendant’s sentencing. Thompson v. State, 759 So.2d 650, 665 (Fla.2000); Downs v. State, 740 So.2d 506, 517 (Fla. 1999). Hence, Defendant is unable to demonstrate deficient performance.

Our review of the record shows that the circuit court’s ruling comports with the applicable law. We find no error.

Finally, Thomas claims that the circuit court erred in rejecting his claim that trial counsel was ineffective in failing to object to the “heinous, atrocious, or cruel” (HAC) aggravating circumstance. We disagree. The circuit court denied relief on this claim for the following reason:

In Defendant’s next allegation of ineffective assistance, he avers that this Court gave an incorrect instruction to the jury regarding the heinous, atrocious, or cruel (HAC) aggravator, to which counsel should have objected. However, as Defendant candidly concedes, the standard instruction which this Court provided the jury had already been determined to be proper. Hall v. State, 614 So.2d 473, 478 (Fla.1993). Therefore, counsel cannot be termed ineffective for failing to object to a standard jury instruction which has not been invalidated at the time of a defendant’s sentencing. Thompson, 759 So.2d at 665; Downs, 740 So.2d at 517. Hence, Defendant is unable to demonstrate deficient performance, or prejudice to his case.

Our review of the record shows that the circuit court’s ruling comports with the applicable law. We find no error.

VI. CONCLUSION

Based on the foregoing, we conclude that the circuit court did not err in rejecting each of the claims raised in Thomas’s rule 3.850 motion. We affirm the circuit court’s order denying rule 3.850 relief.

It is so ordered.

ANSTEAD, C.J., WELLS,

PARIENTE, LEWIS, and QUINCE, JJ., and HARDING, Senior Justice, concur.

      . The aggravating circumstances are set forth in this Court's opinion on direct appeal:
      Thomas had committed a prior violent felony; the murder was committed in the course of a burglary; the murder was committed for financial gain; the murder was especially heinous, atrocious, or cruel (HAC); the murder was committed in a cold, calculated, and premeditated manner (CCP).

        Thomas, 693 So.2d at 951 n. 1.

      . Thomas's claims are summarized in this Court's opinion on direct appeal:
      1) The State failed to prove the corpus de-licti; 2) the sentencing order is deficient;' 3) the CCP instruction was faulty; 4) the prosecutor misinformed the jury about the weighing process; 5) the court improperly informed the jury on the weighing process; 6) the HAC instruction was faulty; 7) the prosecutor made improper comments in closing; 8) the court used the felonies underlying the first-degree murder conviction as an automatic aggravator; 9) the evidence was insufficient to support the pecuniary gain aggravator.

        Thomas, 693 So.2d at 951-52 n. 2.

      . Thomas raises the following claims (as framed by Thomas) in his present appeal: (1) "the trial court erred in holding that the negotiated plea in another case waived defendant's right to appeal from any errors in the guilt phase of the trial in the instant case; alternatively, defendant was denied the effective assistance of counsel before trial because counsel failed to advise defendant against entering the negotiated plea in the other case;” (2) "appellant was denied the effective assistance of counsel because, before trial, counsel visited appellant infrequently, counsel failed to investigate the background of a key witness, and counsel failed to interview or present the testimony of available impeachment witnesses;” (3) "appellant was denied the effective assistance of counsel during the sentencing phase of his trial because counsel failed to object to and thus preserve for review improper comments by the state during its closing argument;” (4) "appellant was denied the effective assistance of counsel during the sentencing phase of his trial because counsel failed to object to and thus preserve for review numerous comments by the prosecutor which suggested that the law required a death penalty in the instant case;” (5) "appellant was denied the effective assistance of counsel during the sentencing phase of his trial because counsel failed to object to and thus preserve for review argument by the State which told the jury that the underlying crime of kidnapping was an automatic aggravating factor;” (6) "appellant was denied the effective assistance of counsel during the sentencing phase of his trial because counsel failed to object to and thus preserve for review instructions and argument which unconstitutionally and inaccurately diluted their sense of responsibility for sentencing;” (7) "appellant was denied the effective assistance of counsel during the sentencing phase of his trial because counsel failed to object to and thus preserve for review the jury instruction regarding the cold, calculated, and premeditated aggravating factor;” and (8) "appellant was denied the effective assistance of counsel during the sentencing phase of his trial because counsel failed to object to and thus preserve for review the jury instruction regarding the heinous, atrocious, or cruel aggravating factor.”

      .The plea agreement states in relevant part:
      My attorney, the prosecutor, and I have negotiated my sentence in this case in that the prosecutor will recommend to the Judge of this Court that I be sentenced to: plead guilty to murder in the first degree [in the mother-murder case], adjudicated guilty, sentenced to life in Fl. State Prison with no possibility for parole for 25 yrs., sentence to be consecutive to sentences on all counts in [the wife-murder case], I agree to waive my rights to appeal any matter whatsoever arising out of [the wife-murder case] whether direct, collateral or appeals under rule 3.850 FRCP. However, the defendant specifically reserves the right to appeal matters concerning the sentencing in [the wife-murder case] on the count alleging murder. Further waive all appeal rights, whether direct, collateral or under FRCP 3.850 in [the mother-murder case] except matters of sentencing.

      . See Fla. R.Crim. P. 3.850(c)(6).

      . See generally Bruno, 807 So.2d at 61-62.

      . See Thomas v. State, 693 So.2d 951 (Fla. 1997).

      . We also reject claims 3, 4, and 5 and any remaining claims or subclaims. Although our review of the record shows that several of the prosecutor's comments made during closing argument were improper, we conclude that the circuit court did not err in rejecting Thomas’s ineffectiveness claim in this regard,