author: PER CURIAM. BELL, J.,

text:
    Alwin J. JACOBS, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-107.
    Supreme Court of Florida.
    June 24, 2004.

      R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Michael J. Neimand, Bureau Chief, and Meredith L. Balo and John D. Barker, Assistant Attorneys General, Miami, FL, for Respondent.
   PER CURIAM.

We have for review Jacobs v. State, 800 So.2d 322 (Fla. 3d DCA 2001), based on conflict with the decision in Smith v. State, 481 So.2d 988 (Fla. 5th DCA 1986). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We quash Jacobs, and hold that the district court erred in affirming the trial court’s summary denial of petitioner’s postconviction claim of ineffectiveness of counsel as facially insufficient.

PROCEEDINGS TO DATE

In the trial court Jacobs was charged, tried, and found guilty by a jury of burglary, petit theft, and criminal mischief. Before trial, Jacobs’ counsel filed a notice of alibi, stating: “At the exact date and time of the alleged offense, the defendant was at: 3638 Percipal Avenue, Coconut Grove, Florida.” The notice expressly listed Mike Lee and Nika Lee as alibi witnesses. However, these alibi witnesses were not called at trial and Jacobs was subsequently convicted on all charges.

After his conviction, Jacobs filed a motion for postconviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Among his eight claims for relief, Jacobs asserted that his trial counsel was ineffective for failing to call at trial the alibi witnesses listed in his notice of alibi. He further asserted that these witnesses were available, known to counsel, and would have testified that at the time of the alleged crimes Jacobs was with them and not at the scene of the crimes. The trial court expressly found this claim to be facially insufficient and summarily denied Jacobs’ postconviction motion in its entirety.

On appeal, the Third District agreed and affirmed the trial court’s summary denial of relief. See Jacobs v. State, 800 So.2d 322 (Fla. 3d DCA 2001). Judge Cope concurred with the denial of all of Jacobs’ postconviction claims except for the ineffective assistance of counsel (IAC) claim regarding the failure to call alibi witnesses. Jacobs, 800 So.2d at 324 (Cope, J., concurring in part and dissenting in part). In his partial dissent, Judge Cope noted that a notice of alibi was filed in this case, and that the notice listed the two alibi witnesses by name and address.

Jacobs now seeks review of the Third District’s decision, asserting that he set out a facially sufficient claim of ineffectiveness of counsel regarding defense counsel’s failure to call alibi witnesses at trial, and that he is entitled to an evidentiary hearing on this claim.

PROCEDURE UNDER RULE 3.850

Florida’s rule for postconviction relief is largely self-explanatory as to its procedure. Florida Rule of Criminal Procedure 3.850(a)-(c) sets forth the criteria for filing a facially sufficient postconviction motion. The rule requires the movant to include “a brief statement of the facts (and other conditions) relied on in support of the motion.” Fla. R.Crim. P. 3.850(c)(6). Hence, if a movant properly and timely alleges a valid legal claim with sufficient factual support, and complies with the oath and contents requirement, then he will ordinarily have stated a facially sufficient postconviction motion. After a determination of facial sufficiency, rule 3.850(d) directs the course of further proceedings:

On filing of a rule 3.850 motion, the clerk shall forward the motion and file to the court. If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing. In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order. Unless the motion, files, and records of the case conclusively show that the movant is entitled to no relief, the court shall order the state attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate. The answer shall respond to the allegations of the motion. In addition it shall state whether the movant has used any other available state remedies including any other post-conviction motion under this rule. The answer shall also state whether an evi-dentiary hearing was accorded the mov-ant. If the motion has not been denied at a previous stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing is required. If an evidentiary hearing is not required, the judge shall make appropriate disposition of the motion. If an evidentiary hearing is required, the court shall grant a prompt hearing thereon and shall cause notice thereof to be served on the state attorney, determine the issues, and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the movant as to render the judgment vulnerable to collateral attack, the court shall vacate and set aside the judgment and shall discharge or resentence the movant, grant a new trial, or correct the sentence as may appear appropriate.

Fla. R.Crim. P. 3.850(d).

Under these comprehensive provisions a trial court’s consideration of a motion under rule 3.850 involves a number of possible steps: First, a trial court must determine whether the motion is facially sufficient, i.e., whether it sets out a cognizable claim for relief based upon the legal and factual grounds asserted. It would logically' follow that if no valid claim is alleged, the court may deny the motion outright, and the court need not examine the record. Second, if the court determines that the motion is facially sufficient, the court may then review the record. If the record conclusively refutes the alleged claim, the claim may be denied. In doing so, the court is required to attach those portions of the record that conclusively refute the claim to its order of denial. Third, if the court determines that the motion is facially sufficient and that there are no files or records conclusively showing that the movant is not entitled to relief, the court may order the state attorney’s office to file a response to the defendant’s motion. The state attorney must respond to the allegations of the motion, state whether the movant has pursued any other available remedies (including any other postconviction motions), and state whether the defendant received an evidentiary hearing. Fourth, after the state attorney has filed the required response, the trial judge must determine whether the claims alleged in the motion have been denied at a previous stage in the proceedings. Finally, if the claims presented in the motion have not been denied previously, the judge shall then determine whether an evidentiary hearing is required in order to resolve the claims alleged in the motion. Thus, if the trial court finds that the motion is facially sufficient, that the claim is not conclusively refuted by the record, and that the claim is not otherwise procedurally barred, the trial court should hold an evidentiary hearing to resolve, the claim.

Thus, rule 3.850 distinguishes between claims that are facially insufficient and those that are facially sufficient but are also conclusively refuted by the record. A determination of facial sufficiency will rest upon an examination of the face, or contents, of the postconviction motion. Because the determination of facial sufficiency under rule 3.850 is one of law and involves an evaluation of the legal sufficiency of the claim alleged, the evidence in the record will ordinarily be irrelevant to such an evaluation. The examination of the record will ordinarily come only after a claim is found to be facially sufficient, and the purpose of that examination will be solely to determine whether the record conclusively refutes the claim.

FACIAL SUFFICIENCY

Both the trial court and the district court in this case appear to have mixed the first two procedural stages of rule 3.850, i.e., they have combined the issue of a claim’s facial sufficiency with the issue of whether the claim is conclusively refuted by the record. In addressing the defendant’s claim of ineffective assistance of counsel based on the failure to call alibi witnesses, the trial court expressly denied the motion based on facial insufficiency. In doing so, however, the court relied upon the “overwhelming evidence against the defendant” — a clear indication that the court had reviewed not only facial sufficiency of the claim itself, but also the record of the trial. The court also cited Cooley v. State, 642 So.2d 108 (Fla. 3d DCA 1994), for the proposition that counsel is not ineffective where there is “ample evidence contradicting the testimony the witness would have given” — another sign that the court was relying on the contents of the record, rather than the facial sufficiency of the claim, to deny the motion.

The Third District’s opinion appears to have repeated the trial court’s mistake in its analysis. In holding that the defendant’s claim was facially insufficient, the district court stated that “[ajlthough the defendant claims these witnesses would have testified that he was in their home at the time of the crime, other eyewitness testimony placed the defendant at the scene of the crime and there was overwhelming evidence of the defendant’s burglary of the unoccupied dwelling.” Jacobs v. State, 800 So.2d 322, 323 (Fla. 3d DCA 2001). The court also noted the “abundance of evidence contradicting [the witnesses’] testimony.” Id. at 324. These statements indicate the district court, too, looked-not at the legal sufficiency of the allegations of the motion, but to the record to refute the claim. ■

CASE LAW

Jacobs claims that the Third District’s decision conflicts with case law from the other district courts of appeal. Most of the cases cited for conflict hold that a facially sufficient claim is stated when a movant alleges that trial counsel was ineffective for failing to call known alibi witnesses, and, in such instances, the trial court must either attach portions of the record that conclusively refute the IAC claim' to its order, or require the State to respond before making the decision to hold an evidentiary hearing.

In Smith v. State, 481 So.2d 988 (Fla. 5th DCA 1986), the Fifth District expressly found that an IAC claim similar to the one asserted here was facially sufficient, despite the fact that the defendant did not list “the complete names of the potential witnesses or their addresses,” because he did factually describe how the witnesses would have supported his alibi. Id. at 989. Hence, the Fifth District concluded that a facially sufficient claim was alleged. On the other hand, in Robinson v. State, 516 So.2d 20 (Fla. 1st DCA 1987), the First District held that an IAC claim regarding the failure to call alibi witnesses was facially insufficient when the defendant fails to support it with “facts such as the identity of such witnesses, what they would testify to if called, or their availability.” Id. at 21. See also Baker v. State, 839 So.2d 851, 852 (Fla. 1st DCA 2003) (reversing the trial court’s summary denial of the IAC alibi witness claim because the trial court “failed to attach portions of the record conclusively refuting the appellant’s claim that counsel was ineffective for failing to interview and call alibi witnesses”); Cohens v. State, 775 So.2d 336, 337 (Fla. 2d DCA 2000) (finding that the trial court erred in finding the IAC alibi witness claim facially insufficient because a notice of alibi was filed in the case); Stringer v. State, 757 So.2d 1226, 1226 (Fla. 4th DCA 2000) (remanding the case for the trial court to either hold a hearing or attach further record excerpts because the exhibits incorporated in the trial court’s order did not conclusively refute the IAC alibi witness claim); Reid v. State, 745 So.2d 1114, 1114-15 (Fla. 1st DCA 1999) (finding that the IAC claim was facially sufficient, but that the trial court failed to attach the portion of the record that “refutes, or even addresses, the defendant’s claim that counsel failed to call an alibi witness”); Beatty v. State, 647 So.2d 266, 267 (Fla. 4th DCA 1994) (remanding the case on several IAC claims, including counsel’s failure to call an alibi witness, directing the trial court to either hold a hearing or “attach portions of the files and records conclusively showing that appellant is not entitled to relief on each ground”); Mallory v. State, 577 So.2d 987, 988 (Fla. 4th DCA 1991) (remanding the case because the defendant’s motion stated a facially sufficient IAC claim regarding the failure to investigate alibi witnesses); Harrell v. State, 443 So.2d 1080, 1080 (Fla. 2d DCA 1984) (remanding the case on the IAC claim that defense counsel failed to contact potential alibi witnesses after the defendant provided their names and addresses because the trial court summarily denied the claim and failed to at-taeh portions of the record refuting the allegations).

The provisions of rule 3.850 and the decisions discussed above support a conclusion that Jacobs set out a facially sufficient claim here, because, in accord with the provisions of the rule and the holdings of the cases, he specifically identified the alibi witnesses, stated the substance of their exculpatory evidence, and averred that they were known to counsel. We conclude that Jacobs’ IAC claim was pled sufficiently in accordance with rule 3.850 because in the motion Jacobs expressly provided (1) the names of the two potential alibi witnesses who had been previously listed in the trial court record as alibi witnesses; (2) the witnesses’ phone numbers; and (3) a rather specific factual recitation of their proposed alibi testimony supporting his alibi defense. The petitioner’s motion contained both a legal claim of ineffective assistance of counsel, 1.e., an unexplained failure to present a valid defense, that, if accepted, would have supported a not guilty verdict, and a detailed factual predicate for the claim, i.e., the availability of identified witnesses known to counsel who would have supported the defense. The rule does not require more. Therefore, we find that both the trial court and the Third District erred by finding the instant claim to be facially insufficient.

EVIDENTIARY HEARING

While we acknowledge that the denial of relief in this case was expressly predicated upon rulings of law by both the trial court and the district court that the claim was facially insufficient, we also consider whether the claimant was entitled to an evidentiary hearing. As noted above, the Third District’s ruling actually relied upon the contents of the record rather than the facial sufficiency of the motion:

The defendant’s claim that counsel was ineffective for failing to call two proposed alibi witnesses at trial is facially insufficient. Although the defendant claims these witnesses would have testified he was in their home at the time of the crime, other eyewitness testimony placed the defendant at the scene of the crime and there was overwhelming evidence of the defendant’s burglary of the unoccupied dwelling. We agree with the State that the failure to call these witnesses where there was an abundance of evidence contradicting their testimony constituted a sound tactical decision and not ineffectiveness of counsel. See Jones v. State, 747 So.2d 982 (Fla. 3d DCA 1999), quashed in part on other grounds, 759 So.2d 681 (Fla.2000).
Under rule 3.850, a defendant is entitled to an evidentiary hearing unless the motion and record conclusively show the defendant is not entitled to relief. See Harich v. State, 484 So.2d 1239, 1240 (Fla.1986). Since the defendant’s motion is facially insufficient, no error has been shown in the trial court’s summary denial. See State v. Pelham, 737 So.2d 572 (Fla. 1st DCA 1999) (affirming summary denial of ineffective assistance claim as to alibi witnesses since arguments were facially insufficient). Accordingly, no evidentiary hearing is required and the order below is affirmed in all respects.

Jacobs, 800 So.2d at 323-24. On the other hand, in his partial dissent, Judge Cope explained his reasoning for concluding that an evidentiary hearing was necessary:

The record reflects that counsel had filed a notice of alibi listing two alibi witnesses by name and address. Defendant alleged that the witnesses “were prepared to testify on behalf of the Defendant.” Motion for Postconviction Relief, at 8. Defendant says the witnesses would have testified he was in their home at the time of the crime. However, the alibi witnesses were not called to testify at trial.
Defendant contends that he would have testified at trial that he was at the home of the two alibi witnesses at the time of the crime. However, he says that counsel advised him that if he testified, the details of his prior record could be placed before the jury. In reality, the State would only be able to bring out the number of the defendant’s prior convictions, but not the details. See § 90.610, Fla. Stat. (1997); Charles W. Ehrhardt, Florida Evidence, § 610.5 (2001).
“On appeal from the denial of relief [without an evidentiary hearing], unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. R.App. P. 9.141(b)(2)(D).
In my view, the record does not conclusively refute the defendant’s claim. The identification in this case was by a single witness who had never seen defendant before. We cannot say on this record what the effect would have been had the alibi witnesses, and the defendant, testified. Defendant’s allegations are sufficient to call for an evidentiary hearing on his motion.

Id. at 324 (Cope, J., concurring in part and dissenting in part). This analysis is consistent with the analysis set out above explaining the procedural framework for rule 3.850.

In addition to the district court ease law discussed above, our recent decision in Ford v. State, 825 So.2d 358 (Fla.2002), is instructive on the issue of the need for an evidentiary hearing in this case. Although not dealing specifically with alibi witnesses, we granted review in Ford “to resolve the issue of whether the trial court was required to hold an evidentiary hearing based upon the allegations in petitioner’s 3.850 motion concerning ineffective assistance of trial counsel for a failure to investigate and call witnesses.” Id. at 360. In Ford, we concluded that the trial court had erred in summarily denying a claim that trial counsel was ineffective for failing to call certain witnesses. We explained:

Without an evidentiary hearing or any record attachments refuting petitioner’s allegations, the trial court was bound to assume that the allegations in petitioner’s 3.850 motion were true. See Edwards v. State, 652 So.2d 1276, 1276-77 (Fla. 5th DCA 1995). We conclude that the Fifth District, by affirming the trial court’s order on the basis that “defense counsel could have well decided that calling them would not have been beneficial,” Ford, 776 So.2d at 374, erroneously allowed the trial court to deviate from this rule. The Fifth District’s statement in Ford resolved, without either a clear trial record basis identified by the trial court or an evidentiary hearing, the factual issue involving the reason why counsel did not call the witnesses identified by the petitioner. We conclude that, in the instant case, to determine the reason why trial counsel did not call the witnesses it was necessary to grant petitioner an opportunity to present evidence. See Williams v. State, 601 So.2d 596, 598-99 (Fla. 1st DCA 1992) (reversing trial court’s finding without benefit of evidentiary hearing that trial counsel’s decision not to call witnesses was tactical because such an allegation raised question of fact).

825 So.2d at 361. We conclude that the reasoning in our opinion in Ford applies here as well. Under the provisions of rule 3.850, the defendant’s allegations, which we have determined to be facially sufficient and not conclusively refuted by the record, now require the trial court to order the State to respond. The trial court must then consider (pursuant to the considerations specified in rule 3.850(d)) holding an evidentiary hearing to resolve the issue of counsel’s effectiveness concerning the use of the alleged alibi witnesses at trial.

In essence, both the trial court and the district court relied upon other evidence presented by the State of defendant’s presence at the scene of the crime and his guilt as a basis for denying an evidentiary hearing. However, a claim of ineffectiveness in failing to present important exculpatory evidence cannot be resolved on the basis of the mere existence of conflicting evidence in the record. Rather, the record evidence must conclusively rebut the claim if the claim is to be resolved without a hearing. For example, if the record demonstrated that these witnesses had actually testified, the claim would obviously be conclusively rebutted.

However, the mere existence of evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing to present evidence of innocence in the form of known and available alibi witnesses. Rather, such a claim involves an assertion that a defendant is entitled to have counsel act reasonably and effectively, in determining whether to present exculpatory evidence in support of the defense. And, where it is facially asserted that such evidence exists, but was not presented, a State response must be ordered and considered before determining if a hearing is required unless the record demonstrates a reasonable explanation or otherwise conclusively refutes the claim. Upon a trial court ordering a hearing, the burden will remain on the defendant at such an evi-dentiary hearing to demonstrate a valid claim of ineffective assistance of counsel under the two-pronged analysis contained in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Accordingly, we quash the decision of the Third District and remand for further proceedings in accord with this opinion.

It is so ordered.

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

BELL, J., concurs specially with an opinion, in which WELLS, J., concurs.

BELL, J.,

specially concurring.

I agree with the majority that Jacobs’ motion sets forth a facially sufficient claim of ineffective assistance of counsel. However, I am concerned about the consequences of reading the majority opinion too broadly. In almost every trial, counsel makes a decision not to call one or more witnesses for a variety of reasons. The failure of counsel to call witnesses is a very common claim of ineffective assistance of counsel. Rarely does the typical trial record contain sufficient evidence to explain a decision not to call a particular witness. Without a reasonable application of rule 3.850 in respect to counsel not calling a witness, this inevitable gap in the typical record will easily result in an enormous, imprudent expenditure of limited judicial resources on unnecessary hearings. Therefore, we should continue to adhere to the sound view that absent extraordinary circumstances, the simple failure of counsel to call a witness is not sufficient grounds for collateral attack. Cooley v. State, 642 So.2d 108 (Fla. 3d DCA 1994). In this case, I concur in the result of the majority opinion because the failure to call previously noticed alibi witnesses is exactly such an extraordinary circumstance that should prohibit a summary denial based upon the record before us.

Additionally, it is important to reiterate the importance of making an adequate record if one wishes to minimize evidentiary hearings on meritless collateral attacks. Florida law imposes no duty upon counsel to obtain a client’s on-the-record consent to counsel’s tactical decision regarding trial strategy. See Jones v. State, 484 So.2d 577, 579-80 (Fla.1986). And the attorney-client privilege limits the scope of a trial judge’s inquiry. However, if a record is developed to make it clear that a defendant has given free, voluntary, and knowing consent to the strategy advocated by counsel, it logically follows that no later claim for ineffective assistance of counsel can prevail. In this case, the trial court had a brief dialogue with defense counsel and Jacobs when counsel informed the court that the defense was not going to present any evidence. The entire exchange went as follows:

THE COURT: I have just been told by [counsel] that you have chosen not to testify or present any defenses in this case.
THE DEFENDANT: Yes, sir.
THE COURT: Have you had an opportunity to discuss that tactical decision with [counsel]?
THE DEFENDANT: Yes.
THE COURT: They have explained to you their reasons for doing that?
THE DEFENDANT: Yes, sir.
THE COURT: And you have concurred with their reasons for doing that?
THE DEFENDANT: Yes, I have.
THE COURT: You believe it’s in your best interest not to testify or present any defenses at this time?
PETITIONER: Yes, I do.

Neither the trial court nor the Third District relied on this colloquy to justify the underlying summary denial of the motion. However, such colloquies, when sufficiently thorough, provide a sufficient basis on the record to rule on postconviction motions without the need for an evidentia-ry hearing. If this colloquy had adequately reflected that the defendant knew of his right not only to present his own testimony but also to call witnesses and that he was freely and knowingly consenting to the strategy of counsel not to present a defense, there might be sufficient on-the-record consent to trial counsel’s decision not to call witnesses, thereby precluding a later objection to this strategy.

The colloquy with this defendant was not sufficient to rebut the claim of ineffectiveness. The subject of agreeing not to call other witnesses, particularly important alibi witnesses, was not adequately covered. Without such a thorough colloquy, I concur with the majority that there is insufficient evidence in the record before us to rebut the allegations made in an otherwise facially sufficient motion, and the case should be remanded to require the State to answer the motion and then for further proceedings in accordance with the rule.

WELLS, J., concurs.

      . Cooley is distinguishable from the circumstances here because it did not involve a claim based upon counsel’s failure to call alibi witnesses. Rather, it is unclear from the brief opinion in Cooley how the alleged witnesses may have affected the case. Under those circumstances, the Third District concluded that Cooley had failed to demonstrate that there was "a likelihood that the alleged erroneous decision affected the outcome of the trial.” Cooley, 642 So.2d at 109. However, we disapprove Cooley to the extent it may be construed to hold that the facial sufficiency of the motion may be determined based on an examination of the record to refute the claim.

      . Although Mike Lee and Nika Lee’s exact address is not listed in the postconviction motion, their home is referenced as being in “Coconut Grove,” which is consistent with the address given in the notice of alibi.


source: Caselaw Access Project

author: WELLS, J.

license: Public Domain

text:
    Cynthia Cleff NORMAN, Petitioner, v. Terri Lamarria FARROW, Respondent.
    No. SC02-2659.
    Supreme Court of Florida.
    June 24, 2004.

      Richard A. Sherman, Sr. of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, FL and Linda H. Wade of Schofield and Wade, Pensacola, FL, for Petitioner.
    Daniel M. Soloway and Robert T. Bleach of Daniel M. Soloway, P.A., Pensacola, FL, for Respondent.
    Lloyd J. Heilbrunn, Palm Beach Gardens, FL, for The Academy of Florida Trial Lawyers, Amicus Curiae.
   WELLS, J.

We have for review Norman v. Farrow, 832 So.2d 158 (Fla. 1st DCA 2002), which expressly and directly conflicts with the decision in Assi v. Florida Auto Auction of Orlando, Inc., 717 So.2d 588 (Fla. 5th DCA 1998). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTUAL BACKGROUND

On December 8, 1998, William Cleff was driving on University Parkway in Escam-bia County, Florida, when his vehicle collided with the rear of Terri Lammaria Farrow’s vehicle. As a result, Farrow (the plaintiff) filed a tort suit against Cleff (the defendant), alleging damages in the form of bodily injury, pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expenses of hospitalization and nursing care, loss of ability to earn money, and aggravation of a preexisting condition. In his amended answer to the complaint, the defendant alleged as an affirmative defense that the plaintiffs negligence was the sole or a contributing factor causing the accident. The theory of the defendant’s case was that although he rear-ended the plaintiffs vehicle, the plaintiffs erratic and careless driving of cutting in front of him caused the accident.

At trial, the jury was instructed regarding comparative fault and found the defendant ninety-percent negligent and the plaintiff ten-percent negligent. The jury also found that the plaintiff had sustained a permanent injury as a result of the accident and total damages amounting to $19,647.71 ($6,247.71 in past medical expenses; $8,400 in future medical expenses; $2,500 for past pain and suffering; and $2,500 for future pain and suffering).

The parties agreed at pretrial that pursuant to section 627.736(3), Florida Statutes (2003), the defendant was entitled to a setoff for “damages for which personal injury protection benefits are paid or payable” to the plaintiff, which would be implemented by the trial judge after the jury returned a verdict. Posttrial, however, a dispute arose regarding whether that set-off should be reduced by the plaintiffs percentage of comparative fault. In their respective motions for entry of judgment, the plaintiff asserted that the PIP setoff should be reduced by the plaintiffs percentage of comparative fault, while the defendant argued that he was entitled to a setoff for the full PIP benefits paid or payable to the plaintiff. _

On October 15, 2001, the trial court rendered a final judgment, calculating the plaintiffs award as follows:

$19,647.71 A. Jury Verdict.
.1,964.77) B. Reduction, 10% Comparative Negligence .
C. PIP Offset.
1. PIP ($4,998.17) Offset.
2. Reduction, 10% Comparative .. SO 00 CO Or
D. Taxable Costs. OO 05 00 +
E. Pre-Judgment Interest on Verdict © © O -e*
TOTAL JUDGMENT ON JURY VERDICT $18,053.03

Farrow v. Norman, No. 00-0168-CA-01, Div. B, order at 1 (Fla. 1st Cir. Ct. order filed Oct. 15, 2001). In these calculations, the trial court reduced both the jury’s finding of total damages and the PIP setoff by the plaintiffs ten-percent comparative negligence.

The defendant appealed the trial court’s reduction of the PIP setoff, arguing that the trial court’s calculations led to a double recovery by the plaintiff and that pursuant to the Fifth District’s decision in Assi, defendants were entitled to a setoff of all damages for which PIP benefits were paid or payable to the plaintiff, with no consideration of comparative fault. The plaintiff, on the other hand, relied on the Fourth District’s decision in Aetna Casualty & Surety Co. v. Langel, 587 So.2d 1370 (Fla. 4th DCA 1991), and requested that the judgment be affirmed. The First District Court of Appeal affirmed the trial court’s reduction of the PIP setoff. See Norman, 832 So.2d at 159.

The defendant sought discretionary review by this Court based on express and direct conflict with Assi and Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000). This Court accepted jurisdiction on the basis of conflict with Assi

ANALYSIS

The issue raised in this case involves the calculation of damages when a plaintiff has received PIP benefits but is also comparatively negligent. Thus, we consider the PIP statute and the comparative negligence statute.

Section 627.736(3) addresses how recovery in tort claims is to be impacted by an insured plaintiffs receipt of PIP benefits. It provides:

(3) INSURED’S RIGHTS TO RECOVERY OF SPECIAL DAMAGES IN TORT CLAIMS. — No insurer shall have a lien on any recovery in tort by judgment, settlement, or otherwise for personal injury protection benefits, whether suit has been filed or settlement has been reached without suit. An injured, party who is entitled to bring suit under the provisions of ss. 627.730-627.74,05,[] or his or her legal representative, shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his or her special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable.

(Emphasis added.) . Thus, section 627.736(3) dictates that an insured plaintiff has “no right to recover” damages paid or payable by PIP benefits.

Section 768.81(2), Florida Statutes (2003), addresses comparative negligence and provides:

(2) EFFECT OF CONTRIBUTORY FAULT. — In an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.

(Emphasis added.) A plain reading of section 768.81(2) is that “the amount awarded as economic and noneconomic damages” to the plaintiff is what is to be reduced by the percentage of the plaintiffs comparative fault.

Reading these statutes in conjunction, we find that pursuant to section 627.736(3), which bars all recovery of damages paid or payable by PIP benefits, the amount for which PIP benefits have been paid or payable is to be deducted by the trier of fact from the amount awarded as economic damages in the verdict. Those amounts are not recoverable. Following that deduction, the noneconomic damages awarded should be added and then the percentage of comparative negligence found by the trier of fact is to be applied to reduce the amount of damages which are recoverable from the tortfeasor. The remainder is the amount of the judgment.

Applying this to the instant case would result in the following calculation: the total economic damages found ($14,647.71), minus the damages for which there is “no right to recover” (i.e., damages for which PIP benefits are paid or payable) ($4,998.17), plus the total noneconomic damages found ($5,000), equals the “amount awarded as economic and noneco-nomic damages” ($14,649.54), minus the amount representing plaintiffs ten-percent comparative fault ($1,464.95), equals $13,184.59. Once costs ($4,868.44) are added, the plaintiff would receive a final judgment of $18,053.03. This amount is the mathematical equivalent of the trial court’s calculations below, which the First District affirmed. Although the trial court utilized a different procedure in the instant case, it apparently reached the correct result. Therefore, we approve the result reached in Norman v. Farrow, 832 So.2d 158 (Fla. 1st DCA 2002), and disapprove the holding in Assi v. Florida Auto Auction of Orlando, Inc., 717 So.2d 588 (Fla. 5th DCA 1998), in which the Fifth District affirmed a trial court’s method of calculation that first diminished the total award by the plaintiffs comparative fault and then subtracted the amount of damages paid or payable by the PIP benefits.

It is so ordered.

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

      . After trial but before the final judgment was rendered, the defendant died. Cynthia Cleff Norman assumed his defense as personal representative of his estate and became the named party in subsequent appeals.

      . The petitioner alleged in his jurisdictional brief to this Court that conflict exists between the decision below and this Court's decision in Rollins. However, this Court did not accept jurisdiction on that basis because Rollins addressed the issue of whether section 627.736 was properly construed as including only those PIP benefits already paid or also unused benefits believed to be available. Rollins did not address how the PIP setoff should be calculated or involve any consideration of comparative negligence and therefore does not expressly and directly conflict with the decision below.

      . Section 627.737(1) limits an injured party's entitlement to bring suit in tort by stating in pertinent part:
      Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by [the Florida Motor Vehicle No-Fault Law] ... is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury ... unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).
      § 627.737(1), Fla. Stat. (2003). Subsection (2) then provides for what is called the "threshold requirement” of permanent injury or death. Here, the jury found the plaintiff met the threshold permanency requirement. Therefore, she was entitled to bring suit.

      .A similar statute is section 768.76(1), Florida Statutes (2003), which addresses collateral sources of indemnity and provides in pertinent part that in any negligence action the court shall reduce the amount of damages awarded "by the total of all amounts which have been paid for the benefit of the claimant ... from all collateral sources.” Because section 627.736(3) more specifically addresses PIP benefits, it controls the present case.

      . We find it unnecessary to look to the legislative history of section 627.736 for resolution of this case; rather, we apply a plain meaning reading of these two statutes.

      . See Caruso v. Baumle, No. SC03-127, 880 So.2d 540 at 544, 2004 WL 1403170 (Fla. June 24, 2004) (holding that trier of fact, whether judge or jury, is to offset collateral source amount under section 627.736(3)).

      . This method of calculation presumes that the trier of fact has been presented with evidence of damages that would be covered by PIP benefits and has included all of those damages in the award of economic damages. As noted in Caruso, op. at 545 the jury need not be instructed on the PIP setoff if the plaintiff has not introduced evidence of damages paid or payable by PIP benefits.


author: PER CURIAM.

text:
    Faunce Levon PEARCE, Appellant, v. STATE of Florida, Appellee.
    No. SC02-476.
    Supreme Court of Florida.
    July 1, 2004.

      Steven Herman, Zephyrhills, FL, for Appellant.

      Charles J. Crist, Jr., Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and attempted second-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the judgments and sentences.

FACTUAL AND PROCEDURAL HISTORY

Faunce Pearce was charged as a code-fendant in the murder of Robert Crawford and in the attempted murder of Stephen Tuttle. The following facts were revealed at Pearce’s trial.

On the evening of September 13, 1999, Pearce visited Bryon Loucks at Loucks’ home, which was also Loucks’ place of business, a mobile home dealership known as We Shelter America. Pearce worked for the business by setting up mobile homes. Pearce was looking for Loucks’ teenage stepson, Ken Shook, in order to obtain LSD (lysergic acid diethylamide) geltabs. Shook called two friends, Stephen Tuttle and Robert Crawford, who in turn called another friend, Amanda Hav-ner. Havner contacted her source for drugs, Tanya Barcomb, who said she could obtain the geltabs. Tuttle, Crawford, and Havner then went to Loucks’ business, where Pearce gave them $1200 to obtain a book of 1000 geltabs. Pearce indicated that they should not return without either the money or the drugs. Shook, Tuttle, Crawford, and Havner went to Barcomb’s house, where Barcomb indicated that she, her boyfriend, and Havner would obtain the drugs from a supplier while the three boys remained behind. After arriving at an apartment complex, Barcomb told Hav-ner to stay in the car. Barcomb and her boyfriend entered a friend’s apartment. The boyfriend hid the money in his own shoe and punched himself in the face. When Barcomb and her boyfriend returned to the car, they told Havner that their drug supplier stole the money. Because of Barcomb’s deception, Shook, Tuttle, Crawford, and Havner eventually were forced to return to Loucks’ business without the money or the drugs.

While the teenagers were gone, Pearce and Loucks received a telephone call from Barcomb explaining that Pearce’s money had been stolen. Pearce became very angry and was standing outside with a gun visibly tucked in his pants when the four teenagers returned shortly thereafter. As Shook, Tuttle, Crawford, and Havner exited the car, Pearce waved the gun and ordered them inside Loucks’ business office. This business location was surrounded by a twelve-foot fence, topped with barbed wire. The fence also had a locked gate. Pearce confined Loucks and the four teenagers at this location for an unknown period of time. During this confinement, the witnesses described Pearce’s mood as swinging between calm and threatening. Pearce refused to allow anyone to leave and, at various times, waved his gun at the confined individuals. Hav-ner made some phone calls in a futile attempt to recover Pearce’s money. At one point, Pearce grabbed Havner by the throat and slammed her head against a wall. He also pointed the gun at Havner and threatened to shoot her in the head. Pearce eventually allowed Havner to leave when her brother arrived at the business location. At another point, Pearce took Tuttle outside and forced him at gunpoint to perform oral sex upon him.

At some point, Pearce called his friend Theodore Butterfield, and requested that Butterfield come armed to Loucks’ business. Pearce also requested that Butter-field bring Lawrence Joey Smith with him. Heath Brittingham, who was at the house with Butterfield, accompanied Butterfield and Smith. When Butterfield, Smith, and Brittingham arrived at Loucks’ business, they were visibly armed. Smith stated, “We’re here to do business.” According to Tuttle, Pearce spoke with these three men outside. Brittingham also testified that Pearce and Smith spoke to each other, but he was not able to hear their conversation. Pearce told the three men that Tuttle and Crawford were going to show them where to find the people who had stolen Pearce’s money. While still holding his gun, Pearce told Tuttle and Crawford to get in his car. Loucks refused to allow Pearce to take his stepson, Shook. Loucks also offered to drive Tuttle and Crawford to their homes and to get Pearce his money in the morning. Pearce refused, but told Loucks he was not going to hurt the boys — only take them down the road, punch them in the mouth, and make them walk home. Pearce instructed Loucks to wait by the phone to hear from the boys.

Pearce, Smith, Butterfield, Brittingham, Tuttle, and Crawford left in Pearce’s car, a two-door Trans Am with a t-top. Pearce drove the car and Smith sat in the front passenger seat. Tuttle sat on Crawford’s lap in the middle of the backseat, with Butterfield and Brittingham seated on both sides of the boys. After driving south on Highway 41 in Pasco County, Pearce turned right on State Road 54 and drove to a dark, desolate area. According to Butterfield’s testimony, sometime during this drive Smith told Pearce that his 9 mm pistol was jammed and the two men exchanged guns, with Smith receiving Pearce’s functional .40 caliber pistol. Brit-tingham also testified that Pearce and Smith exchanged guns during the drive.

Pearce stopped the car along the side of the road and told Tuttle to get out of the car. Smith first exited from the passenger’s side and stood between the door and the car while Tuttle exited the backseat on the passenger’s side. Pearce told Smith either to “break [Tuttle’s] jaw” or “pop him in the jaw for stealing my shit,” to which Smith replied, “Fuck that.” Smith then turned around and shot Tuttle once in the back of the head. When Smith got back in the car, Pearce asked, “Is he dead?,” and Smith replied, “Yeah, he’s dead. I shot him in the head with a fucking .40.” Pearce then drove approximately two hundred yards down the road, stopped the car, and Smith exited the vehicle again. Pearce ordered Crawford out. Crawford complied while pleading, “No. Please no.” Smith shot Crawford twice: in the head and in the arm.

After leaving the scene, Smith threatened to kill Butterfield and Brittingham if they “snitched” on him. Pearce drove to a restaurant where he and Smith ate breakfast. Pearce and Smith left Butterfield and Brittingham at a grocery store, telling them not to leave, and returned for them within an hour. Pearce then drove to the Howard Frankland Bridge over Tampa Bay, where Smith wrapped the .40 caliber pistol in newspaper and threw it in the water. Shortly thereafter, the four men split up. Smith attempted to leave town by bus but was unable to do so because of an approaching hurricane.

Tuttle survived the gunshot to his head. At trial, he testified that he remembered getting out of the car and then everything went black. His next memory was waking up on the side of the road. He felt the hole in his head, but did not remember being shot or who shot him. He eventually flagged down a passing motorist for assistance. Crawford, however, died at the scene. The medical examiner testified that Crawford’s injuries suggested that he was shot first in the arm, with that bullet traveling through his body and lodging in his throat; that the gunshot wound to Crawford’s head, which was fatal, entered the right side of Crawford’s head about four inches above his ear and exited the left side; and that Crawford would have lost consciousness fifteen to twenty seconds after the shot to his head and died within two to five minutes.

The entire course of these events occurred during the evening of September 13, and into the morning of September 14, 1999. That morning, Butterfield and Brit-tingham were located and interviewed by police. Smith was arrested on the same day, and Pearce was located and arrested a few weeks later. The murder weapon, Pearce’s .40 caliber pistol, was recovered from the location in Tampa Bay where Butterfield stated that Smith had thrown it. The bullets removed from Tuttle and Crawford were matched to the same pistol.

Butterfield and Brittingham agreed to cooperate with the State in exchange for not being charged with any crimes related to these offenses. Both testified at trial. During the cross-examination of Britting-ham, Pearce’s counsel attempted to offer a videotape of a prior statement that Brit-tingham made to an investigating officer. This prior statement was offered as impeachment evidence, but the court denied its introduction. A transcript of the videotape was proffered by the defense. In this videotaped statement, Brittingham stated that Pearce had no knowledge of Smith’s intention to shoot the victims and that Pearce had asked Smith what he was doing when he shot the victims.

Pearce did not testify or present any evidence during the guilt phase. Pearce was convicted of first-degree murder with a firearm for Crawford’s death and attempted second-degree murder with a firearm for the shooting of Tuttle. During the penalty phase, the State relied upon the evidence presented in its case in chief. Pearce chose not to testify or present penalty phase argument. The jury recommended death by a vote of ten to two.

During the Spencev hearing, Pearce declined to present evidence or argument and forbade his attorneys to do so. In imposing sentence, the trial court considered a handwritten letter from Pearce, letters from family members of Crawford, a comprehensive presentence investigation, and several hundred pages of court, criminal, school, and other records pertaining to Pearce. The trial court found three aggravating factors: a previous conviction of a violent felony, based on the attempted murder of Tuttle (given great weight); that the murder was committed while engaged in kidnapping (given great weight); and that the murder was cold, calculated, and premeditated without any pretense of moral or legal justification (given great weight). See § 921.141(5)(b), (d), (i), Fla. Stat. (2001). The trial court found no statutory mitigating factors. While Pearce requested no nonstatutory factors, the trial court considered a number of factors based on claims in Pearce’s correspondence to the court. The trial court concluded that two of Pearce’s claims (that he was afraid of Smith and only participated in the murder because of this fear, and that the State witnesses lied) were actually claims of lingering doubt and would not be considered as mitigating factors. The trial court also discounted Pearce’s claim that Crawford was killed because of his involvement in an illicit drug deal and Pearce’s complaints about the conduct of his trial. The trial court noted that a teenager’s foolish involvement with the illicit drug culture did not wax-rant his death and that any complaints about the trial proceedings could be raised during appellate review. The trial court did find Pearce’s good conduct in jail to be a mitigating factor, but only entitled to little weight. The trial court concluded that the aggravating factors far outweighed the mitigating factors and imposed a death sentence.

ISSUES ON APPEAL

In his direct appeal to this Court, Pearce raises five issues, three challenging the guilt phase proceedings of his trial and two directed at the penalty phase proceedings. Pearce claims that the trial court erred: (1) by refusing to allow defense counsel to impeach State witness Britting-ham with a previous videotaped statement; (2) in denying his motion for judgment of acquittal on first-degree murder on the element of premeditation; (3) in denying his motion for judgment of acquittal on felony murder; (4) in finding the aggravating circumstance that the murder occurred during the course of a kidnapping; and (5) in finding the cold, calculated, and premeditated (CCP) aggravating circumstance.

Impeachment Evidence of Witness

During cross-examination of State witness Heath Brittingham, defense counsel asked Brittingham if he had previously told the investigating detective that Pearce expressed surprise after Smith shot Tuttle. When Brittingham responded that he did not remember saying that, defense counsel requested that a videotape of a previous statement by Brittingham be shown to the jury. The judge responded that the defense would have to present the tape in its own case, not during the State’s case. After the State rested its case, Pearce moved for judgment of acquittal, which was denied by the judge. When the judge asked if the defendant intended to present testimony or evidence, defense counsel stated his intent to present the videotape of Brit-tingham’s statement as impeachment evidence. Defense counsel then proffered the testimony of the technician who had videotaped the interview. The technician stated that although she operated the video camera, she did not pay attention to the various interviews conducted by the detective, had not viewed the videotape in question, and could not authenticate its contents. Defense counsel also proffered the testimony of the investigating detective who conducted the interview. After viewing the videotape, the detective testified that it fairly and accurately depicted his interview with Brittingham. Defense counsel specified that he wanted admitted into evidence a part of the videotaped interview in which Brittingham stated that Pearce had expressed surprise after Smith shot Tuttle by stating, ‘What the hell? What are you doing?” and that Smith directed Pearce either to “go, go” or “drive, drive” after Smith shot Tuttle. Defense counsel argued that this was impeachment evidence that should be admitted. The State objected, arguing that the defense could not impeach Brittingham’s response of “I don’t recall” or “I don’t remember.”

The trial court did not permit Pearce to introduce Brittingham’s previous videotaped statement into evidence, even for impeachment purposes, but allowed defense counsel to proffer the videotape for the record after the State rested its case. The trial court ruled that the tape did not meet the requirements of the Florida Evidence Code for impeachment purposes.

In order to resolve this claim, we must examine the law relating to the admissibility of prior inconsistent statements. Prior inconsistent statements are not hearsay and can be admitted as substantive evidence “if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [[Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” § 90.801(2)(a), Fla. Stat. (2001) (emphasis added). However, in State v. Delgado-Santos, 497 So.2d 1199 (Fla.1986), this Court held that a statement given under oath during a police investigation is not a statement given at an “other proceeding” and consequently is not admissible as substantive evidence under section 90.801(2)(a). See also Ellis v. State, 622 So.2d 991, 997-98 (Fla.1993) (concluding that pretrial statement by witness during interview with prosecutor could not be admitted as substantive evidence under section 90.801(2)(a) because the interview was not an “other proceeding” within the meaning of the rule). Thus, the videotaped statement that Brit-tingham gave to the investigating detective did not meet the last requirement of section 90.801(2)(a) and could not be admitted as substantive evidence here.

However, introduction of a prior statement that is inconsistent with a witness’s present testimony is also one of the main ways to attack the credibility of a witness. See § 90.608(1), Fla. Stat. (2001); see also Charles W. Ehrhardt, Florida Evidence § 608.4 (2002 ed.). “The Florida Evidence Code does not require the witness’s prior inconsistent statement to be reduced to writing in order to impeach the witness under section 90.608(1)(a).” Kimble v. State, 537 So.2d 1094, 1096 (Fla. 2d DCA 1989). The theory of admissibility is not that the prior statement is true and the in-court testimony is false, but that because the witness has not told the truth in one of the statements, the jury should disbelieve both statements. See Florida Evidence § 614.1. To be inconsistent, a prior statement must either directly contradict or be materially different from the expected testimony at trial. The inconsistency must involve a material, significant fact rather than mere details. See State v. Smith, 573 So.2d 306, 313 (Fla.1990). “Nit-picking” is not permitted under the guise of prior inconsistent statements. See Morton v. State, 689 So.2d 259, 264 (Fla.1997) (“[C]aution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating.”), receded from on other grounds Rodriguez v. State, 753 So.2d 29 (Fla.2000) (receding from Morton to extent it holds that a prior inconsistent statement cannot be used as substantive evidence in a penalty phase proceeding); see also Florida Evidence § 608.4. If a witness has made a prior inconsistent statement concerning a collateral matter, cross-examining counsel may question the witness about the statement, but must “take the answer” and cannot present extrinsic evidence to prove the prior inconsistent statement. Florida Evidence § 608.4.

Before a witness can be impeached with a prior inconsistent statement, the proper foundation must be laid. Prior to questioning a witness about the contents of a previous inconsistent statement, counsel must call to the witness’s attention the time, place, and person to whom the statement was allegedly made. Rowe v. State, 128 Fla. 394, 174 So. 820, 821 (1937); see also Florida Evidence § 614.1. As provided in section 90.614(2),

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it.... If the witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

Thus, if the witness admits making the prior statement, examining counsel may not offer any evidence to prove the statement was made. See Jennings v. State, 512 So.2d 169, 172 (Fla.1987) (explaining that sworn pretrial motions, containing statement of a state witness which was inconsistent with his trial testimony, were not admissible for impeachment, where witness admitted making the prior inconsistent statement). Further, even if the witness admits making a prior statement, the witness should be given an opportunity to explain it, show that he or she was mistaken when it was made, or explain that the prior statement is not inconsistent.

Under section 90.614(2), extrinsic evidence is admissible when a witness does not “distinctly admit” making the prior statement. See Pugh v. State, 637 So.2d 313, 314 (Fla. 3d DCA 1994) (finding error in not admitting prior inconsistent portions of witness’s deposition into evidence when witness stated that “he did not remember the questions he was asked nor the answers he gave during his deposition”). If the witness does not distinctly admit making a prior statement, then when it is counsel’s turn to offer evidence, he or she may introduce extrinsic evidence that the statement was made. See Florida Evidence, § 614.1. This evidence can include a properly authenticated written statement and the testimony of individuals who were present when the statement was made. See id. § 608.4.

The record in this case shows that defense counsel laid the proper foundation under section 90.614(2): counsel called to Brittingham’s attention the time, place, and person to whom he made the prior inconsistent statements, quoted from the prior statements, and gave Brittingham an opportunity to explain his prior statements. See Brumbley v. State, 453 So.2d 381, 385 (Fla.1984) (finding it proper for State to impeach witness by quoting the precise language of his prior statements as “such references were a correct method of laying a predicate for the introduction of the prior statements”). Further, the prior statements and Brittingham’s in-court testimony were relevant to the issue of Pearce’s level of involvement in the shootings. When Brittingham did “not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement [was] admissible.” § 90.614(2), Fla. Stat. (2001). Thus, the trial court erred by not permitting defense counsel to admit extrinsic evidence of Brittingham’s prior statement.

However, we conclude that the error in excluding this evidence was harmless beyond a reasonable doubt in this case. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The evidence was only admissible for purposes of impeaching Brittingham’s credibility, not as substantive evidence of Pearce’s level of involvement in the killings or his prior knowledge of Smith’s intentions when he shot the victims. While the videotape itself was not admitted into evidence, defense counsel did call Brittingham’s credibility into question before the jury when he quoted directly from Brittingham’s 'previous statements. Further, even if Brittingham’s credibility had been called into question by the admission of his prior inconsistent statements, Brittingham’s account of the evening (i.e., that Pearce played the primary role in the kidnappings) was corroborated in every significant detail by the testimony of Butterfield, Tuttle, Loucks, Shook, and Havner. Cf. Garcia v. State, 816 So.2d 554, 563 (Fla.2002) (finding that exclusion of relevant impeachment evidence of key state witness was harmful where no physical evidence linked the defendant to the murder scene or murders and witness’s credibility was critical to strength of State’s case). Butterfield’s testimony recounted the same conversation between Pearce and Smith after Tuttle was shot as Brittingham did during his in-court testimony, i.e., Pearce sought assurance from Smith that Tuttle was dead but there was no other conversation. More importantly, Brittingham’s prior statement to the detective, Brittingham’s in-court testimony, and Butterfield’s in-eourt testimony were consistent as to the events and conversation that preceded Crawford’s shooting, which is the basis for Pearce’s first-degree murder conviction and death sentence. There was no evidence of any discussion between Pearce and Smith when Pearce stopped the car the second time and ordered Crawford out of the car. Pearce never distanced himself from Smith’s previous actions of shooting Tuttle and leaving him for dead. Notably, Pearce never told Smith not to kill or shoot Crawford when he stopped the car the second time, even though he thought that Smith had already killed Tuttle. There was also direct testimony and physical evidence that tied Pearce to the kidnappings, the shootings, and the murder of Crawford. Thus, the cases relied upon by Pearce are distinguishable as Pearce’s conviction did not rest solely or even primarily on the testimony of Brittingham. Cf. Pugh v. State, 637 So.2d 313, 314 (Fla. 3d DCA 1994) (finding that error in not admitting portion of pretrial deposition as prior inconsistent statement to impeach key prosecution witness was not harmless as this was only witness to claim defendant was directly involved in robbery and holding gun); Kimble v. State, 537 So.2d 1094, 1096 (Fla. 2d DCA 1989) (same as to prior inconsistent statement of witness-victim).

Thus, we conclude that any error in excluding extrinsic evidence of Britting-ham’s prior inconsistent statements was harmless beyond a reasonable doubt under the facts of this case. DiGuilio, 491 So.2d at 1135.

Denial of Judgment of Acquittal on Premeditation

After the State rested its case, Pearce moved for a judgment of acquittal on the first-degree murder charge, arguing that there was insufficient evidence to warrant submission of the case to a jury on the theory of premeditation. The trial court denied the motion. Pearce now claims that the trial court erred in not granting his motion for judgment of acquittal.

Under Florida law, the unlawful killing of a human being is murder in the first-degree (1) “[w]hen perpetrated from a premeditated design to effect the death of the person killed or any human being”; or (2) “[w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any .;. kidnapping.” § 782.04(1), Fla. Stat. (1999). A trial court should not grant a motion for judgment of acquittal unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law. Taylor v. State, 583 So.2d 323, 328 (Fla.1991). In moving for judgment of acquittal, Pearce admitted the facts in evidence as well as every conclusion favorable to the State that the jury might fairly and reasonably infer from the evidence. Id. Where there is room for a difference of opinion between reasonable people as to the proof or facts from which an ultimate fact is to be established, or where there is room for such differences on the inferences to be drawn from conceded facts, the trial court should submit the case to the jury. Id. Once competent, substantial evidence has been submitted on each element of the crime, it is for the jury to evaluate the evidence and the credibility of the witnesses. Davis v. State, 703 So.2d 1055, 1060 (Fla.1997); see also Hufham v. State, 400 So.2d 133, 135-36 (Fla. 5th DCA 1981).

Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act about to be committed and the probable result of that act. Green v. State, 715 So.2d 940, 943 (Fla.1998); Asay v. State, 580 So.2d 610, 612 (Fla.1991). Whether a premeditated design to kill was formed prior to a killing is a question of fact for the jury that may be established by circumstantial evidence. Asay, 580 So.2d at 612. Circumstantial evidence of premeditation can include the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted. Spencer v. State, 645 So.2d 377, 381 (Fla.1994); Holton v. State, 573 So.2d 284, 289 (Fla.1990). However, where the element of premeditation is sought to be established by circumstantial evidence, the evidence relied upon by the State must be inconsistent with every other reasonable inference. Cochran v. State, 547 So.2d 928, 930 (Fla.1989). Notably, the circumstantial evidence rule does not require the jury to believe the defendant’s version of the facts when the State has produced conflicting evidence. Spencer, 645 So.2d at 381. Where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. Id.

A review of the record in this case reveals that there was sufficient evidence from which the jury could have inferred premeditation by Pearce. Pearce told the victims and their companions that his “money was their life,” and that he expected them to come back with either his money or the drugs. Pearce subsequently told the victims and their companions that they would have to “pay the consequences” for losing his money. Pearce called armed assistance to the business location where he was holding the victims at gunpoint. Pearce rejected attempts and requests to let the victims leave. Pearce was the individual who ordered the victims into his car and drove the car to the remote location where the shootings took place. Pearce also switched guns with the triggerman, Smith, ostensibly to ensure that Smith had a functioning weapon. Pearce told Smith either to “pop” Tuttle in the jaw or “break” his jaw for stealing Pearce’s money. After Smith shot Tuttle, Pearce requested assurance that Tuttle was dead. Smith assured Pearce that Tuttle was dead as he had “shot him in the head with a fucking .40 caliber” gun. When Pearce stopped the car and ordered Crawford out of the car, he thought that Tuttle was dead. Thus, even assuming arguendo that Pearce did not intend for Smith to shoot Tuttle, there is little doubt that Pearce intended for Smith to shoot Crawford, whose death is the basis of Pearce’s first-degree murder conviction. There was no evidence that Pearce urged Smith not to shoot Crawford after Tuttle was shot or that Pearce in any way withdrew from this criminal plan. Pearce drove the car approximately 200 yards away from the scene where Tuttle was shot in the head and left for dead, stopped the car, and ordered Crawford to get out of the car. Crawford pled for his life before being shot in the head by Smith. There is no evidence that the victims provoked these shootings in any way during the drive.

In light of this circumstantial evidence of premeditation, we find no error in the trial court’s denial of Pearce’s motion for judgment of acquittal as to premeditation.

Denial of Judgment of Acquittal on Felony Murder

Pearce also moved for a judgment of acquittal on the theory of felony murder, arguing that the State failed to establish that he was an aider or abetter of an underlying kidnapping and presented no proof of his intent to participate in a kidnapping that would support a theory of first-degree felony murder. The trial court denied the motion and submitted the case to the jury. Pearce now argues that the trial court erred in denying his motion.

As discussed above, there are two ways in which first-degree murder can be proven under Florida law: through a premeditated design to kill or when the killing occurs during the course of an enumerated felony, including kidnapping. See § 782.04(1), Fla. Stat. (1999). In order to prove kidnapping in Pearce’s case, the State had to prove three elements: (1) Pearce forcibly or by threat confined and abducted Crawford and Tuttle against their will; (2) Pearce had no lawful authority to do so; and (3) Pearce acted with the intent to inflict bodily harm upon or terrorize the victims or another person. See § 787.01(l)(a), Fla. Stat. (1999).

Both Havner and Tuttle testified that Pearce ordered them into the business office, waved a gun around, and pointed the gun at them. Tuttle testified that Pearce threatened to shoot him in the head if he did not perform oral sex on him. Tuttle also testified that he repeatedly asked Pearce if he could leave and Pearce told him no. Havner and the others present testified that Pearce slammed her head against the air conditioner and threatened to shoot her in the head. Testimony also showed that Pearce refused to let the boys go when asked by Havner and Loucks at separate times. Even though Pearce may have left the victims alone in the office several times, there was little opportunity for them to escape from the business premises, which were surrounded by a high fence topped with barbed wire and behind a locked gate. According to Hav-ner’s brother, Havner was hysterical even after Pearce permitted her to leave and that she spent the rest of the night placing phone calls trying to verify the safety of Tuttle and Crawford. Havner testified that she was afraid of Pearce, that Pearce was irate, and that she and her companions were not free to leave the business location where Pearce confined them.

Pearce called his associate Butterfield, told him that he needed some help because he had been ripped off, and asked Butter-field to come armed. Butterfield arrived with Brittingham and Smith, who were also visibly armed. According to Butter-field, Pearce was “calling the shots” and was “in charge.” Tuttle and Crawford were ordered into the car by Pearce, who had a gun in his hand. Brittingham testified that he interpreted Pearce’s actions as threatening to the boys. Tuttle testified that he did not feel that he or Crawford was free to leave. Pearce stated his intent was to “rough up” the boys and teach them a lesson for losing his money. Pearce drove the car to a deserted area, ordered Tuttle out of the car, and instructed Smith to “break his jaw” or “pop him in the jaw.” Pearce then drove a short distance more and ordered Crawford out of the car. Because the victim’s liberty was never restored prior to his death, there was a continuing kidnapping here. See Stephens v. State, 787 So.2d 747, 754 (Fla.2001) (citing with approval State v. Stouffer, 352 Md. 97, 721 A.2d 207, 215 (1998)).

Pearce also argues that, in order to obtain his conviction for the acts of Smith under the felony murder rule, the State must establish beyond a reasonable doubt that Smith killed Crawford in furtherance of the kidnapping or a common criminal design, and not as an independent act of his own. However, because the State presented competent, substantial evidence that Pearce orchestrated the kidnapping and violence against the victims, it was a jury question whether the murder was an independent act of Smith.

The “independent act” doctrine that Pearce asserts “arises when one cofel-on, who previously participated in a common plan, does not participate in acts committed by his cofelon, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’ ” Ray v. State, 755 So.2d 604, 609 (Fla.2000) (quoting Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995)). Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act. Id. “Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate.” Id. (emphasis added); see also Lovette v. State, 636 So.2d 1304 (Fla.1994).

Here, Pearce set the kidnapping in motion, brought Smith into contact with the victims, gave Smith a functioning weapon that was used as the murder weapon, and drove the victims to a remote location where the shootings occurred. “Only a finding that the criminal episode had ceased might give significance to” Pearce’s argument. Ray, 755 So.2d at 609. The facts do not support such a conclusion here. Thus, there was sufficient evidence to deny Pearce’s motion for judgment of acquittal on felony murder.

Although Pearce raises no other issues relating to his convictions, we have reviewed the evidence and find sufficient evidence to support his convictions. See Fla. R.App. P. 9.142(a)(6) (“In death penalty cases, the court shall review the evidence to determine if the interest of justice requires a new trial, whether or not insufficiency of the evidence is an issue presented for review.”). Accordingly, we affirm Pearce’s convictions for first-degree murder with a firearm and attempted first-degree murder with a firearm.

During the Course of a Kidnapping Aggravating Circumstance

The trial court found that Crawford’s murder was committed while Pearce was engaged in or an accomplice in the commission of the crime of kidnapping. Pearce argues that the trial court erred in finding this aggravating circumstance as it was not proven beyond a reasonable doubt.

Section 921.141(5)(d), Florida Statutes (1999), provides that it is an aggravating circumstance if “[t]he capital felony was committed while the defendant was engaged in, or was an accomplice, in the commission of ... any ... kidnapping.” On appeal, this Court does not reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt— that is the trial court’s job. Rather, this Court reviews the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent, substantial evidence supports its finding. Alston v. State, 723 So.2d 148, 160 (Fla.1998). To establish the “during the commission of a kidnapping” aggravating circumstance, the State must prove beyond a reasonable doubt each of the elements of kidnapping. Anderson v. State, 841 So.2d 390, 404 (Fla.), cert. denied, — U.S. —, 124 S.Ct. 408, 157 L.Ed.2d 292 (2003).

As discussed above, the evidence supports the trial court’s finding of this aggravating circumstance. Tuttle, Havner, and other witnesses testified that Pearce held the victims against their will with a threat of violence and that he also ordered them to get in his car against their will. Pearce had no lawful authority to do so. Even assuming that Pearce did not originally intend to kill the victims, he clearly intended to inflict bodily harm upon them as evidenced by his statement to Loucks that he meant to “rough up” the victims and teach them a lesson. See § 787.01(l)(a)(3), Fla. Stat. (1999).

Pearce also argues that his death sentence is not appropriate under the Supreme Court’s rulings in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In Enmund, the United States Supreme Court held that the Eighth Amendment of the United States Constitution does not permit imposition of the death penalty on a defendant “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” 458 U.S. at 797, 102 S.Ct. 3368. In Tison, the Supreme Court expanded the Enmund culpability requirement for imposing a death sentence under a felony murder theory to include “major participation in the felony committed, combined with reckless indifference to human life.” 481 U.S. at 158, 107 S.Ct. 1676; see also Franqui v. State, 804 So.2d 1185, 1206 n. 12 (Fla.2001).

While the trial court did not engage in a specific Enmund/Tison analysis in its sentencing order, the court did analyze the role of Pearce and his culpability in this crime. Diaz v. State, 513 So.2d 1045, 1048 n. 2 (Fla.1987) (requiring trial courts to include in their sentencing orders findings supporting the Enmund/Tison culpability requirement). As explained in detail in the sentencing order and as supported by the evidence in this case, Pearce’s role in the murder satisfies the Enmund/Tison requirements. Pearce was a major participant in the underlying felony of kidnapping and “orchestrated the events leading to [the victim’s] death.” Lebron v. State, 799 So.2d 997, 1020 (Fla.2001). Additionally, where there is substantial, competent evidence to uphold a conviction under a premeditation theory, Enmund/Tison is not applicable. See Teffeteller v. Dugger, 734 So.2d 1009, 1018 (Fla.1999). As explained above, the record in this case reveals sufficient circumstantial evidence from which the jury could have inferred premeditation by Pearce.

Thus, we conclude that the trial court properly applied the aggravating circumstance of commission during the course of a kidnapping in this case.

CCP Aggravating Circumstance

The trial court concluded that Crawford’s murder was “committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” § 921.141(5)(i), Fla. Stat. (1999). Pearce contends that the State failed to show the necessary elements of CCP. He further argues that, even if the underlying felony of kidnapping was fully planned ahead, it would not constitute CCP if the kidnapping plan did not also include the commission of murder.

As discussed above, this Court reviews the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent, substantial evidence supports its finding. Alston v. State, 723 So.2d 148, 160 (Fla.1998). To establish the CCP aggravator, the State must prove beyond a reasonable doubt that (1) “the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic or a fit of rage (cold)”; (2) “the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated)”; and (3) “the defendant exhibited heightened premeditation (premeditated)”. Jackson v. State, 648 So.2d 85, 89 (Fla.1994).

This Court has held that execution-style killing is by its very nature a “cold” crime. See Lynch v. State, 841 So.2d 362, 372 (Fla.), cert. denied, — U.S. —, 124 S.Ct. 189, 157 L.Ed.2d 123 (2003); Walls v. State, 641 So.2d 381, 388 (Fla.1994). As to the “calculated” element of CCP, this Court has held that where a defendant arms himself in advance, kills execution-style, and has time to coldly and calmly decide to kill, the element of calculated is supported. See Hertz v. State, 803 So.2d 629, 650 (Fla.2001); Knight v. State, 746 So.2d 423, 436 (Fla.1998) (holding “[e]ven if Knight did not make the final decision to execute the two victims until sometime during his lengthy journey to his final destination, that journey provided an abundance of time for Knight to coldly and calmly decide to kill”). This Court has “previously found the heightened premeditation required to sustain this aggravator where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder.” Alston v. State, 723 So.2d at 162; see also Lynch, 841 So.2d at 372 (noting that defendant had five-to seven-minute opportunity to withdraw from the scene or seek help for victim, but instead calculated to shoot her again, execution-style).

The sentencing order in this case discusses in great detail the facts that support this aggravating circumstance: Pearce confined the victims, called for assistance from his friends, and requested they come to the location armed, thereby revealing a plan that required the use of firearms. The circumstances also showed that the “business” for which Pearce summoned the armed assistance “was intended to harm Crawford and Tuttle in some fashion.” Pearce and Smith engaged in a private conversation when Smith arrived at the location. While the content of this conversation is not known, the conversation shows they had an opportunity to discuss a plan. Pearce drove the car and stopped on his own initiative along the deserted rural road where the shootings occurred. Pearce exchanged firearms with Smith when informed that Smith’s gun was jammed. Even though Pearce did not actually pull the trigger, he voiced neither objection nor surprise when Smith shot Tuttle in the head. Instead, Pearce requested assurance that Tuttle was dead. Pearce drove the vehicle a short distance down the road and again stopped on his own initiative. He asked no questions after Smith shot Crawford twice. Pearce and Smith then drove to a restaurant where they ate breakfast and then threw the murder weapon into Tampa Bay. There was no evidence that Pearce acted in an emotional frenzy, panic or rage. There was no evidence of victim resistance or struggle that could have provoked the shootings. Further, Pearce had the means and opportunity to either “rough up” or shoot the victims at the business location. Instead, he called his associates, took the victims for a ride at night to a remote, unlighted location, and sat by while Smith shot them in the head execution style. There is competent, substantial evidence in the record to support these findings. Thus, we conclude that the CCP aggravating circumstance was properly found in this case.

Proportionality

Although Pearce does not raise an issue relating to the proportionality of his death sentence, this Court performs proportionality review to prevent the imposition of “unusual” punishments contrary to article I, section 17 of the Florida Constitution. See Sexton v. State, 775 So.2d 923, 935 (Fla.2000). In deciding whether the death sentence is proportional in a particular case, this Court is required to consider the totality of circumstances surrounding the case and compare it to other capital cases. Id.; Brown v. State, 721 So.2d 274 (Fla.1998). Our proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Porter v. State, 564 So.2d 1060, 1064 (Fla.1990).

Comparing this case to other capital cases with similar aggravating and mitigating circumstances demonstrates that Pearce’s sentence of death is proportional. The trial court found three aggravating circumstances (CCP, prior violent felony, and committed during a kidnapping) and little mitigating circumstances. As this Court stated in Larkins v. State, 739 So.2d 90, 95 (Fla.1999), the CCP aggravator is one of the “most serious aggravators set out in the statutory sentencing scheme.” In other similar “execution-style” killings, this Court has affirmed sentences of death. See Ford v. State, 802 So.2d 1121, 1133 (Fla.2001) (finding death sentence proportional with four aggravating circumstances of heinous, atrocious, or cruel, CCP, commission during the course of a felony, and contemporaneous murder of another victim and some mitigation), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002); Foster v. State, 778 So.2d 906, 921 (Fla.2000) (finding death sentence proportional with two aggravating circumstances of avoiding arrest and CCP and little mitigation); Jennings v. State, 718 So.2d 144 (Fla.1998) (upholding death sentence with three aggravating factors of commission during the course of a robbery, avoiding arrest, and CCP and several mitigating factors); Jones v. State, 690 So.2d 568, 571 (Fla.1996) (finding death sentence proportional with three aggravating circumstances of CCP, contemporaneous attempted murder of second victim, and pecuniary gain and two mitigating circumstances). Pearce’s death sentence is also proportionate to other cases where the persons who were the “masterminds” or dominating force behind the murder have been sentenced to death, even though they did not actually commit the murder. See, e.g., Larzelere v. State, 676 So.2d 394, 407 (Fla.1996); Fotopoulos v. State, 608 So.2d 784, 792-94 (Fla.1992). Thus, we find the death sentence proportionately warranted in this case.

CONCLUSION

Based on the reasons discussed above, we affirm Pearce’s convictions and his sentence of death.

It is so ordered.

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

      . Pearce and his codefendant Lawrence Joseph Smith were tried separately for these crimes. Smith was convicted of first-degree murder and attempted first-degree murder and sentenced to death. Smith’s convictions and life sentence for attempted first-degree murder were affirmed on direct appeal. See Smith v. State, 866 So.2d 51 (Fla.2004). However, based on erroneous statements in the sentencing order, this Court remanded the case for resentencing before the trial judge for the first-degree murder conviction. Id. at 67-68.

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


author: PARIENTE, C.J., WELLS, J.,

text:
    William SWEET, Appellant(s), v. STATE of Florida, Appellee(s).
    No. SC03-1818.
    Supreme Court of Florida.
    July 1, 2004.
   This matter is before the Court under Florida Rule of Appellate Procedure 9.142(b), on a petition to review the trial court’s nonfinal order replacing the former Capital Collateral Counsel-North (CCRC-North) attorney with different registry counsel. Sweet, who is under a sentence of death, has a first successive rule 3.850 motion pending before the trial court. Appointment of counsel at this stage of the proceedings was necessitated by the unique circumstance of the defunding of CCRC-North pursuant to a pilot program for the 2004 fiscal year.

Having considered the arguments of the parties, this Court remands the case to the trial court to comply with the requirements of section 27.710(5), Florida Statutes (2003), to wit:

The trial court must issue an order of appointment which contains specific findings that the appointed counsel meets the statutory requirements and has the high ethical standards necessary to represent a person sentenced to death.

In all other respects, the petition is denied.

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

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

WELLS, J., dissents with an opinion.

PARIENTE, C.J.,

concurring.

I concur in the remand in this case. Strict adherence to the statutory requirement of findings supporting the appointment of registry counsel is even more important in a case such as this, in which the trial court appointed counsel other than Sweet’s former CCRC-North counsel, with whom Sweet had an established and ongoing relationship.

ANSTEAD, J., concurs.

WELLS, J.,

dissenting.

I dissent from the order remanding this case because I conclude that the trial court’s order on rehearing substantially complies with section 27.710(5), Florida Statutes. I would dismiss the petition to review on its merits and allow this case to proceed with counsel appointed by the trial court.


author: PARIENTE, C.J.,

text:
    Ronnie FERRELL, Appellant(s), v. STATE of Florida, Appellee(s).
    No. SC03-1423.
    Supreme Court of Florida.
    July 1, 2004.
   This matter is before the Court under Florida Rule of Appellate Procedure 9.142(b), on a petition to review the trial court’s nonfinal order replacing the former Capital Collateral Counsel-North (CCRC-North) attorney with different registry counsel. Ferrell, who is under a sentence of death, has his initial rule 3.850 motion before the trial court. Appointment of counsel at this stage of the proceedings’ was necessitated by the unique circumstance of the defunding of CCRC-North pursuant to a pilot program for the 2004 fiscal year.

Having considered the arguments of the parties, this Court remands the case to the trial court to comply with the requirements of section 27.710(5), Florida Statutes (2003), to wit:

The trial court must issue an order of appointment which contains specific findings that the appointed counsel meets the statutory requirements and has the high ethical standards necessary to represent a person sentenced to death.

In all other respects, the petition is denied.

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

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

PARIENTE, C.J.,

concurring.

I concur in the remand in this case. Strict adherence to the statutory requirement of findings supporting the appointment of registry counsel is even more important in a case such as this, in which the trial court appointed counsel other than Ferrell’s former CCRC-North counsel, with whom Ferrell had an established and ongoing relationship.

ANSTEAD, J., concurs.