text:
    ADVISORY OPINION TO THE ATTORNEY GENERAL RE: PROTECT PEOPLE, ESPECIALLY YOUTH, FROM ADDICTION, DISEASE, AND OTHER HEALTH HAZARDS OF USING TOBACCO.
    Nos. SC05-1897, SC05-2098.
    Supreme Court of Florida.
    March 16, 2006.

      Charles J. Crist, Jr., Attorney General and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, FL, for Petitioner.
    Stephen H. Grimes of Holland and Knight, LLP, and Susan L. Kelsey of Anchors Smith Grimsley, P.L., Tallahassee, FL, for Floridians for Youth Tobacco Education, Inc., Sponsors.
    T. Elaine Holmes, Tampa, FL, on behalf of Counsel for American Cancer Society, Florida Division, Inc. and Campaign for Tobacco Free Kids; Allen T. Geiger of Rogers Towers, P.A., Jacksonville, FL, on behalf of Counsel for American Heart Association, Inc., Florida-Puerto Rico Affiliate; Mark 0. Cooper of O’Neill, Liebman and Cooper, P.A., Orlando, FL, on behalf of Counsel for American Lung Association of Florida, Inc., for Proponents.
   PER CURIAM.

The Attorney General has requested that this Court review a proposed amendment to the Florida Constitution designed to protect people, especially youth, from addiction, disease, or other health hazards of using tobacco, including the corresponding financial impact statement. We have jurisdiction. See art. IV, § 10, art. V, § 3(b)(10), Fla. Const. For the reasons explained below, we approve the amendment, the ballot title and summary, and the financial impact statement for placement on the ballot.

I. THE PROPOSALS

The text of the proposed amendment, the ballot title and summary, and the financial impact statement are set out individually below.

A. Proposed Amendment

The proposed amendment provides as follows:

BE IT ENACTED BY THE PEOPLE OF FLORIDA THAT:
Article X, Florida Constitution, is amended to add the following:
Section 27. Comprehensive Statewide Tobacco Education and Prevention Program. In order to protect people, especially youth, from health hazards of using tobacco, including addictive disorders, cancer, cardiovascular diseases, and lung diseases; and to discourage use of tobacco, particularly among youth, a portion of the money that tobacco companies pay to the State of Florida under the Tobacco Settlement each year shall be used to fund a comprehensive statewide tobacco education and prevention program consistent with recommendations of the U.S. Centers for Disease Control and Prevention (CDC), as follows:
(a) Program. The money appropriated pursuant to this section shall be used to fund a comprehensive statewide tobacco education and prevention program consistent with the recommendations for effective program components in the 1999 Best Practices for Comprehensive Tobacco Control Programs of the CDC, as such Best Practices may be amended by the CDC. This program shall include, at a minimum, the following components, and may include additional components that are also contained within the CDC Best Practices, as periodically amended, and that are effective at accomplishing the purpose of this section, and that do not undermine the effectiveness of these required minimum components:
(1)an advertising campaign to discourage the use of tobacco and to educate people, especially youth, about the health hazards of tobacco, which shall be designed to be effective at achieving these goals and shall include, but need not be limited to, television, radio, and print advertising, with no limitations on any individual advertising medium utilized; and which shall be funded at a level equivalent to one-third of each total annual appropriation required by this section;
(2) evidence-based curricula and programs to educate youth about tobacco and to discourage their use of it, including, but not limited to, programs that involve youth, educate youth about the health hazards of tobacco, help youth develop skills to refuse tobacco, and demonstrate to youth how to stop using tobacco;
(3) programs of local community-based partnerships that discourage the use of tobacco and work to educate people, especially youth, about the health hazards of tobacco, with an emphasis on programs that involve youth and emphasize the prevention and cessation of tobacco use;
(4) enforcement of laws, regulations, and policies against the sale or other provision of tobacco to minors, and the possession of tobacco by minors; and
(5) publicly-reported annual evaluations to ensure that moneys appropriated pursuant to this section are spent properly, which shall include evaluation of the program’s effectiveness in reducing and preventing tobacco use, and annual recommendations for improvements to enhance the program’s effectiveness, which are to include comparisons to similar programs proven to be effective in other states, as well as comparisons to CDC Best Practices, including amendments thereto.
(b) Funding. In every year beginning with the calendar year after voters approve this amendment, the Florida Legislature shall appropriate, for the purpose expressed herein, from the total gross funds that tobacco companies pay to the State of Florida under the Tobacco Settlement, an amount equal to fifteen percent of such funds paid to the State in 2005; and the appropriation required by this section shall be adjusted annually for inflation, using the Consumer Price Index as published by the United States Department of Labor.
(c) Definitions. “Tobacco” includes, without limitation, tobacco itself and tobacco products that include tobacco and are intended or expected for human use or consumption, including, but limited to, cigarettes, cigars, pipe tobacco, and smokeless tobacco. The “Tobacco Settlement” means that certain Settlement Agreement dated August 25, 1997, entered into in settlement of the case styled as State of Florida, et al. v. American Tobacco Company, et al., Case No. 95-1466 AH (Fla. 15th Cir. Ct.), as amended by Stipulation of Amendment dated September 11, 1998; and includes any subsequent amendments and successor agreements. “Youth” includes minors and young adults.
(d) Effective Date. This amendment shall become effective immediately upon approval by the voters.

B. Ballot Title and Summary

The ballot title for the proposed amendment is “Protect People, Especially Youth, From Addiction, Disease, and Other Health Hazards of Using Tobacco.” The summary for the proposed amendment states:

To protect people, especially youth, from addiction, disease, and other health hazards of using tobacco, the Legislature shall use some Tobacco Settlement money annually for a comprehensive statewide tobacco education and prevention program using Centers for Disease Control best practices. Specifies some program components, emphasizing youth, requiring one-third of total annual funding for advertising. Annual funding is 15% of 2005 Tobacco Settlement payments to Florida, adjusted annually for inflation. Provides definitions. Effective immediately.

C. Financial Impact Statement

The statement provides as follows:

This amendment requires the state government to appropriate approximately $57 million in 2007 for the Comprehensive Statewide Tobacco Education and Prevention Program. Thereafter, this amount will increase annually with inflation. This spending is expected to reduce tobacco consumption. As a result, some long-term savings to state and local government health and insurance programs are probable, but indeterminate. Also, minor revenue loss to state government is probable, but indeterminate.

II. STANDARD AND SCOPE OF REVIEW

The overall standard of review for the proposed amendment and the ballot title and summary are the same. In Advisory Opinion to the Attorney General re Amendment to Bar Government from Treating People Differently Based on Race in Public Education, 778 So.2d 888 (Fla.2000), this Court summarized its standard of review in initiative petition cases as follows:

The Court’s inquiry, when determining the validity of initiative petitions, is limited to two legal issues: whether the petition satisfies the single-subject requirement of article XI, section 3, Florida Constitution, and whether the ballot titles and summaries are printed in clear and unambiguous language pursuant to section 101.161, Florida Statutes (1999). In order for the Court to invalidate a proposed amendment, the record must show that the proposal is clearly and conclusively defective on either ground. In determining the propriety of the initiative petitions, the Court does not review the merits of the proposed amendments.

Id. at 890-91 (citations omitted).

III. SINGLE SUBJECT REQUIREMENT

A. Applicable Law

Article XI, section 3, Florida Constitution, requires that an amendment proposed by initiative “embrace but one subject and matter directly connected therewith.” This single-subject limitation protects the State Constitution from “precipitous” and “spasmodic” changes. See Fine v. Firestone, 448 So.2d 984, 993 (Fla.1984). There are two purposes for the single-subject rule. First, the limitation prevents logrolling by “allowing] the citizens to vote on singular changes in our government that are identified in the proposal and to avoid voters having to accept part of a proposal which they oppose in order to obtain a change which they support.” Id. Second, it “prevents] a single constitutional amendment from substantially altering or performing the functions of multiple aspects of government.” Advisory Op. to Att’y Gen. re Fla. Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation Sys., 769 So.2d 367, 369 (Fla.2000). In so doing, the single-subject rule ensures that the amendment’s impact on the Florida Constitution is limited and accurately disclosed.

In determining compliance with the single-subject rule as to the first purpose, “this Court examines the amendment to determine whether it ‘may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme. Unity of object and plan is the universal test.’” Advisory Op. to Att’y Gen. re Patients’ Right to Know About Adverse Med. Incidents, 880 So.2d 617, 620 (Fla.2004) (quoting Fine, 448 So.2d at 990). In determining compliance as to the second purpose, “a proposal that affects several branches of government will not automatically fail; rather, it is when a proposal substantially alters or performs the functions of multiple branches that it violates the single-subject test.” Id. We address each of these purposes in turn.

B. Application of Law

The proposed amendment complies with the single-subject rule. As shown below, it is not guilty of logrolling, and it embraces only one subject without imper-missibly altering or performing any governmental function in a substantial way.

1. Logrolling

Logrolling is “a practice whereby an amendment is proposed which contains unrelated provisions, some of which electors might wish to support, in order to get an otherwise disfavored provision passed.” Advisory Op. to Att’y Gen. re Referenda Required for Adoption & Amendments of Local Gov’t Comprehensive Land Use Plans, 902 So.2d 763, 766 (Fla.2005) (quoting High Speed Monorail, 769 So.2d at 369).

The proposed amendment does not suffer from logrolling. It addresses a single comprehensive plan for the education of youth about the health hazards related to tobacco. Although this plan includes a list of components such as advertising, school curricula, and law enforcement, all of these components are related to the single unifying purpose. It does not “combine subjects in such a manner as to force voters to accept one proposition they might not support in order to vote for one they favor.” Advisory Op. to Att’y Gen. re Fla.’s Amendment to Reduce Class Size, 816 So.2d 580, 583 (Fla.2002). In other words, the proposed amendment does not combine unrelated provisions, some of which are popular and others that may be disfavored.

2. Altering or Performing the Functions of Multiple Branches of Government

The proposed amendment impacts the executive and legislative branches, but it does not substantially alter or perform their functions. This proposed amendment impacts these branches because it mandates two things: (a) the development and implementation of a State program; and (b) the expenditure of State funds.to fund the program. However, these requirements are not substantial enough to be disqualifying. Both requirements will be discussed individually.

a. Program Development

The proposed amendment impacts the legislative branch because it mandates that the Legislature create and evaluate a comprehensive statewide tobacco education and prevention program. However, these requirements clearly are not disqualifying. This Court has found that proposed amendments delineating components for a program were permissible where “the branches of government [were] left with wide discretion in determining the details of the project.” Reduce Class Size, 816 So.2d at 584 (quoting High Speed Monorail, 769 So.2d at 371). Here, the proposed amendment sets forth a framework for the program but leaves the details for implementing and administering the program to the Legislature. Requiring the Legislature to create and evaluate such a program does not usurp the legislative lawmaking function.

The executive branch also is impacted because the amendment requires the enforcement of laws, regulations and policies against the purchase and possession of tobacco by minors. However, the executive branch already complies with this component of the proposal. Even if it did not, the fact that this branch of government is required to comply with a provision of the Florida Constitution does not necessarily constitute the usurpation of the branch’s function within the meaning of the single-subject rule. See, e.g., Advisory Op. to Att’y. Gen. re Right to Treatment and Rehabilitation for Non-Violent Drug Offenses, 818 So.2d 491, 497-98 (Fla.2002) (finding amendment left executive branch prime function intact where it had no effect on the power of prosecutors to charge persons with crime when appropriate). The executive branch’s prime function is the enforcement of the laws. All this component of the amendment requires is the enforcement of these laws.

Accordingly, the proposed amendment does not substantially alter or perform the function of the legislative or executive branch.

b. Program Funding

The proposal designates a percentage of funds from the Tobacco Settlement resulting in a specific dollar amount per year for appropriations to the program. A funding provision for an amendment may not substantially interfere with either the legislative appropriations function or the executive veto power. Advisory Op. to Att’y Gen. re Requirement for Adequate Pub. Educ. Funding, 703 So.2d 446, 450 (Fla.1997). This unique funding provision does not substantially interfere with the functions of either branch.

The amendment’s funding provision is distinguishable from the one in Adequate Public Education Funding, 703 So.2d 446. In that decision, this Court struck down a proposed constitutional amendment requiring the State to expend forty percent of its entire appropriations under article III of the Florida Constitution, not including lottery proceeds or federal funds, for public education funding. The Court reasoned that “[t]he educational funding amendment violated the single-subject principle because its rigid funding percentage actually performed the appropriation function of the Legislature and removed entirely the Governor’s ability to veto any portion of that appropriation.” High Speed Monorail, 769 So.2d at 370 (discussing this Court’s reasoning in Adequate Public Education Funding, 703 So.2d 446). This massive restriction on appropriations also limited the entirety of the State’s other functions to the remaining sixty percent of the budget, rendering many other government functions impossible to fund.

Our decisions in two other cases support our analysis of this current proposal. In High Speed Monorail, this Court found no violation of the single-subject rule where the proposed amendment did not require the Legislature to spend a specific percentage of the budget or even a specific amount, nor point to a specific tax or fee from which the revenues for the project would come. 769 So.2d at 370. Moreover, in Advisory Opinion to the Attorney General re Fee on Everglades Sugar Production, 681 So.2d 1124 (Fla.1996), where an initiative created new funding for a program rather than relying on the appropriations budget of the Legislature, the Court also found no violation of the single-subject rule.

Guided by this precedent, we find that the funding provision here is not imper-missibly rigid and restrictive to the legislative and executive branches. As to the legislative branch, the proposal funds the program by requiring the Legislature to set aside yearly the fifteen percent of the year 2005 annual Tobacco Settlement payment to the State, adjusted annually for inflation. It does not require that the Legislature appropriate a specified percentage of its budget to fund the program. More importantly, the proposal designates these funds for a use mandated by the settlement agreement itself.

As to the executive branch, this Court has held that an amendment may mandate the expenditure of state funds without improperly usurping the Governor’s veto power. See High Speed Monorail, 769 So.2d at 371 (finding that amendment placing some restrictions or limits on veto power regarding budget for money to implement the amendment was not a prohibited cataclysmic change nor did it substantially alter the Governor’s powers).

In essence, the proposed amendment has one chief purpose, which is to use a portion of the Tobacco Settlement money to create a tobacco education and prevention program especially directed toward youth. The mechanism for achieving this purpose does not substantially alter or perform the functions of either the legislative or executive branch. Therefore, the proposed amendment complies with the single-subject rule.

IY. REVIEW OF THE BALLOT TITLE AND SUMMARY

A. Applicable Law

Section 101.161(1), Florida Statutes (2005), specifies both substantive and technical requirements for the ballot title and summary. Substantively, the ballot title and summary must provide a clear and unambiguous explanation of the chief purpose of the measure. Id. Technically, the ballot title must consist of a caption not exceeding fifteen words in length and the ballot summary may not exceed seventy-five words in length. Id. These requirements provide “voters with fair notice of the contents of the proposed initiative so that the voter will not be misled as to its purpose and can cast an intelligent and informed ballot.” Advisory Op. to Att’y Gen. re People’s Prop. Rights Amendments Providing Comp. for Restricting Real Prop. Use May Cover Multiple Subjects, 699 So.2d 1304, 1307 (Fla.1997). “Simply put, the ballot must give the voter fair notice of the decision he must make.” Askew v. Firestone, 421 So.2d 151, 155 (Fla.1982). The title and summary must be accurate and informative, but they “need not explain every detail or ramification of the proposed amendment.” Advisory Op. to Att’y Gen. re Prohibiting Pub. Funding of Political Candidates’ Campaigns, 693 So.2d 972, 975 (Fla.1997).

B. Application of Law

First, when read together, the ballot title and summary are accurate and informative. They provide fair notice of the content of the proposed amendment so that the voter will not be misled and can cast an intelligent and informed ballot. The title of the initiative in this case is “Protect People, Especially Youth, From Addiction, Disease, and Other Health Hazards of Using Tobacco.” The ballot summary clearly and unambiguously sets forth the initiative’s primary purpose and source of funding. The ballot summary need not, and does not, reflect every component of the program. Instead, it sets out a comprehensive statewide tobacco education and prevention program, which follows the Centers for Disease Control best practices and includes advertising. The summary also states the funding for the program shall come annually from the Tobacco Settlement money in the amount of fifteen percent of the year 2005 payments, adjusted annually for inflation. Thus, the ballot title and summary of the proposed amendment are clear and unambiguous. They adequately inform the voters of the chief purpose of the proposed amendment.

Second, the title and summary comply with the statute’s technical requirements. The ballot title does not exceed fifteen words and the ballot summary does not exceed seventy-five words in accordance with section 101.161(1).

Therefore, the ballot title and summary comply with section 101.161(1) of the Florida Statutes.

Y. REVIEW OF THE FINANCIAL IMPACT STATEMENT

A. Applicable Law

Article XI, section 5(c), Florida Constitution, mandates that “[t]he legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by initiative pursuant to section 3.” Section 100.371(6), Florida Statutes (2005), sets out the procedure for placement of these financial impact statements related to ballot initiatives on the ballot. Section 100.371(6)(a) requires that the statement address the estimated increase or decrease in any revenues or costs to the state or local governments resulting from the proposed initiative. Section 100.371(6)(b)(3) requires that the statement be clear and unambiguous, consist of no more than seventy-five words, and permits the statement to set forth a range of potential impacts.

B. Application of Law

The financial impact statement complies with section 100.371(6), Florida Statutes (2005). The statement clearly conveys the financial impact as required by section 100.371(6)(a). The statement first addresses the direct impact of the proposed initiative — $57 million in 2005 to be increased annually with inflation. It next discusses indirect impact including long-term savings to State and local government health and insurance programs and minor revenue loss to State government, presumably through loss of tax revenue in light of decreased sales of tobacco products. Although the indirect financial impacts are described as indeterminate, rather than quantified, this Court has previously found no basis to reject similar wording. For example, in Advisory Opinion to the Attorney General re Authorizes Miami-Dade & Broward County Voters to Approve Slot Machines in Parimutuel Facilities, 882 So.2d 966, 967 (Fla.2004), this Court found that a financial impact statement stating that “governmental costs associated with [an initiative] will increase by an unknown amount” may be placed on the ballot. Not only did the statement decline to estimate the governmental costs, it also did not designate to what government, state or local, the costs would adhere. Here, although the statement states that both the long-term savings and revenue loss are indeterminate, each is ascribed to a particular government. Finally, the statement meets the requirements that it be clear and unambiguous and consist of no more than seventy-five words. § 100.371(6)(b)(3), Fla. Stat.

Accordingly, there is no basis for rejecting the financial impact statement under section 100.371(6).

VI. CONCLUSION

For the reasons stated, we hold that the initiative petition and proposed title and summary meet the legal requirements of article XI, section 3 of the Florida Constitution, and section 101.161(1), Florida Statutes (2005), and that the financial impact statement is in accordance with section 100.371(6), Florida Statutes (2005). Accordingly, we approve the amendment and financial impact statement for placement on the ballot. We note, however, that no other issue is addressed herein and this opinion should not be construed as expressing either favor for or opposition to the proposed amendment. No motion for rehearing will be permitted.

It is so ordered.

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

      . No briefs were filed in opposition to this ballot initiative.

      . The Tobacco Settlement, found at http:// stic.neu. edu/Fl/flsettle. htm, awards the State of Florida five and one-half percent of $8 Billion in the year 2005, and per annum indefinitely.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Richard Phillip GREENE, Respondent.
    No. SC04-1595.
    Supreme Court of Florida.
    March 16, 2006.

      John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, Alan Anthony Pascal, Bar Counsel and Eric Montel Turner, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
    Kevin P. Tynan of Richardson and Tyn-an, P.L.C., Tamarac, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Richard Phillip Greene. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact, recommendations as to guilt, and recommended discipline. We disbar Greene for five years, effective, nunc pro tunc, April 1, 2004.

1. Facts

A federal grand jury issued a five-count indictment charging attorney Richard Phillip Greene and others with the following felonies: Count 1, conspiracy to commit mail fraud and securities fraud; Count 2, mail fraud; Count 3, mail fraud; Count 4, securities fraud; and Count 5, securities fraud. Greene pled guilty to Count 5, and the remaining counts were dismissed. The federal court approved the plea agreement and Greene was convicted as charged in Count 5. Based on his conviction, this Court summarily suspended Greene for three years, see R. Regulating Fla. Bar 3-7.2 (providing for the summary suspension of an attorney convicted of a felony under applicable law), and The Florida Bar (the Bar) filed a two-count complaint alleging that Greene had committed ethical violations based on the following offenses: Count 1, securities fraud and trust account violations; and Count 2, mail fraud. The Court referred the matter to a referee. Greene filed a motion to dismiss, which was denied, and the Bar filed a motion for summary judgment, which was granted.

The referee conducted a hearing on the issue of sanctions and made the following findings of fact:

1. Respondent was suspended by the Court on April 1, 2004, as a result of pleading guilty to his participation in a criminal conspiracy to commit securities fraud and mail fraud.
2. For a three year period from August 1999 to August 2002, Respondent acted as the securities counsel for Mov-ieO Network, Inc. (“MovieO”) and its controlling shareholder, Walter “Art” Dorow.
3. During that three-year period of time, Respondent agreed that a $250,000 undisclosed bribe or kickback would be paid to an undercover FBI agent, posing as a foreign mutual fund manager and using the name of Michael Patterson, so the agent would induce the mutual fund to buy approximately 200,000 free-trading shares of MovieO stock at $2.50 per share for a total cost of $500,000.
4. Respondent also agreed to pay various kickbacks to two cooperating witnesses involved in the transactions.
5. Respondent conducted a $20,000 “test” trade in order to facilitate the fraudulent conduct.
6. Because of Respondent’s involvement in the securities fraud scheme, The Florida Bar requested Respondent’s trust account records, but he failed to provide the Bar with the records as requested.
7. Respondent failed to produce his deposit slips or some form of deposit .record.
8. Additionally, Respondent caused to be sent by private and commercial interstate carriers certain documents related to the fraudulent securities transactions thereby committing mail fraud.

Based on the above findings of fact, the referee recommended that Greene be found guilty as follows:

A. I recommend that Respondent be found guilty of violating Rule 3-4.3 [a lawyer shall not engage in misconduct or minor misconduct] of the Rules of Discipline and Rule 4-8.4(b) [a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness] and Rule 4-8.4(c) [a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation] of the Rules of Professional Conduct and Rule 5 — 1.2(b)(2) [a lawyer shall maintain original or duplicate deposit slips clearly identifying the date and source of trust funds received and the client or matter for which the funds were received] of the Rules Regulating Trust Accounts.

The referee made the following recommendation as to disciplinary measures to be imposed:

I recommend that Respondent be found guilty of misconduct justifying disciplinary measures, and that he be disciplined by:
A. Disbarment with an opportunity to apply for readmission as provided in the Rules.
B. Payment of The Florida Bar’s costs in these proceedings.

And finally, in recommending imposition of the above disciplinary measures, the referee took into account the following factors:

A. Personal History of Respondent:
Age: 49.
Date Admitted to the Bar: October
25,1985.
B. Aggravating Factors:
(1) Prior Discipline:
—-(a) April 14, 1997, Admonishment, The Florida Bar file no.1996-51,548(17H) [admonishing respondent for minor misconduct arising from conflict of interest in a stock sale transaction].
—(b) April 1, 2004, Felony Suspension, Supreme Court case no. SC03-2159 [suspending respondent for three years under the felony conviction provision in rule 3-7.2], (2) Standard 9.22(i) — substantial experience in the practice of law.
C. Mitigating Factors:
(1) Standard 9.32(g) — evidence of good character and reputation.

Greene petitions for review, claiming that the referee erred in denying his motion to dismiss and in granting the Bar’s motion for summary judgment and that the proper discipline in this case is a two-year suspension, not disbarment. The Bar, on the other hand, asks the Court to approve the referee’s report in all respects.

2. Motion to Dismiss

A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues, and the allegations of the complaint must be taken as true and all reasonable inferences therefrom construed in favor of the non-moving party. See, e.g., Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla.1983) (“For the purposes of a motion to dismiss ... allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.”). Dismissal may be based on various grounds, including failure of the complainant to abide by the applicable rules of procedure. See, e.g., Fla. Bar v. Rubin, 362 So.2d 12 (Fla.1978). A ruling on a motion to dismiss based on a pure question of law is subject to de novo review. See, e.g., Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000) (“A trial court’s ruling on a motion to dismiss based on a question of law is subject to de novo review.”).

Generally speaking, a complaint in a Bar disciplinary proceeding must be preceded by a grievance committee’s finding of probable cause. See R. Regulating Fla. Bar 3-3.2. There are exceptions, however, see R. Regulating Fla. Bar 3 — 3.2(b) (listing several exceptions to the probable cause requirement), and specifically, rule 3-7.2(i) provides:

(2) Conclusive Proof of Probable Cause. A determination or judgment of guilt, where the offense is a felony under applicable law, shall constitute conclusive proof of probable cause and The Florida Bar may file a complaint with the Supreme Court of Florida ... without there first having been a separate finding of probable cause.

R. Regulating Fla. Bar 3-7.2(i)(2).

In the present case, Greene contends that the referee erred in denying his motion to dismiss. Although he concedes that no prior finding of probable cause was required as to the securities fraud charge in Count 1 of the Bar’s complaint, he claims that the complaint was flawed because it was not preceded by a grievance committee’s finding of probable cause as to the trust account charge in Count 1 and the mail fraud charge in Count 2. We disagree. Greene pled guilty to the securities fraud charge in Count 5 of the federal indictment and the federal court convicted him of that offense. Count 5 of the indictment “realleged and incorporated” the factual predicate set forth in Count 1 of the indictment, and that factual predicate addressed both the trust account charge and the mail fraud charge as set forth in the Bar’s complaint. Because Greene was convicted on the securities fraud charge and because he admitted the allegations in the indictment as to the other two related charges, no prior finding of probable canse was required as to those related charges prior to the filing of the Bar’s complaint. We approve the referee’s denial of Greene’s motion to dismiss.

3. Summary Judgment

Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings, and summary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law. See, e.g., Fla. Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003) (“[A] referee ... has the authority to enter summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”). A ruling on a motion for summary judgment is subject to de novo review. See id. at 877 (“[T]he standard of review on summary judgment orders is de novo.”).

In the present case, Greene contends that the referee erred in granting the Bar’s motion for summary judgment. Although he concedes that his criminal conviction constitutes conclusive proof of guilt as to the securities fraud charge in the Bar’s complaint, he contends that genuine issues of material fact exist as to the trust account charge and the mail fraud charge. We disagree. First, as to the trust account charge, rule 5-1.2(b) addresses minimum trust account records and provides as follows in relevant part:

(b) Minimum Trust Accounting Records. The following are the minimum trust accounting records that shall be maintained:
(2) Original or duplicate deposit slips and, in the case of currency or coin, an additional cash receipts book ....

R. Regulating Fla. Bar 5-1.2 (emphasis added). The present record shows that Greene was given an opportunity to submit proof that he had complied with this rule and yet he failed to do so. In fact, he admitted in his answer that “the duplicate deposit slips were not produced to the Bar.” A review of the record shows that no original or duplicate deposit slips were submitted by Greene. The referee properly granted summary judgment as to the trust account charge.

And second, as to the mail fraud charge, Greene pled guilty to Count 5 of the federal indictment, and that count real-leged and incorporated all the allegations contained in paragraphs 1 through 13 and paragraphs 16 through 52 of Count 1 of the indictment. Paragraph 52 of Count 1 contained an omnibus provision that embraced all additional allegations in Counts 2 through 5 of the indictment. Specifically, Counts 2 and 3 of the indictment charged Greene with mail fraud. In light of the fact that Greene admitted committing the underlying acts that constituted mail fraud, the referee properly granted summary judgment as to that charge.

4. The Recommended Sanction

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

In the present case, the recommended sanction of disbarment meets the above standard. First, disbarment has a reasonable basis in the Court’s existing case law addressing felony convictions for fraud. The main case offered by Greene to support suspension, Florida Bar v. Cohen, 919 So.2d 384 (Fla.2005), is distinguishable. In Cohen, after the lawyer pled nolo contendere to a felony marijuana possession charge and five related misdemeanor counts including driving under the influence, he was adjudged guilty of driving under the influence and the court withheld adjudication on the remaining felony and misdemeanor counts. This Court suspended him for ninety days, followed by three years’ probation. Unlike the situation in the present case, the lawyer in Cohen had abused alcohol and other substances and had proven rehabilitation. The presumptive sanction there was a ninety-day suspension, not disbarment. See Fla. Stds. Imposing Law. Sanes. 10.3. In addition, the referee found no aggravating circumstances and ten mitigating circumstances, including “personal or emotional problems” and “physical or mental disability or impairment.” The Court noted that “Cohen did seek assistance from FLA [Florida Lawyers Assistance, Inc.] and began treatment with a psychologist, who determined that Cohen suffered from obsessive compulsive disorder.... He has tested negative in all categories during random monthly drug tests since early in his recovery and has participated actively in his recovery program.” Cohen, 919 So.2d at 388. The present case, in contrast, is not a substance abuse case and does not involve mitigation of the magnitude found in Cohen.

And second, the recommended sanction of disbarment is authorized under the Standards for Imposing Lawyer Sanctions (Standards). The Standards provide that disbarment is the presumptive sanetion for a lawyer convicted of a felony: “5.11 Disbarment is appropriate when: a. a lawyer is convicted of a felony under applicable law....” Fla. Stds. Imposing Law. Sanes. 5.11. A presumptive sanction under the Standards is subject to aggravating and mitigating circumstances, and a referee’s findings concerning aggravating and mitigating circumstances will be upheld if supported by competent, substantial evidence. See, e.g., Fla. Bar v. Spear, 887 So.2d 1242, 1247 (Fla.2004); Fla. Bar v. Barley, 831 So.2d 163, 170 (Fla.2002); Fla. Bar v. Bustamante, 662 So.2d 687, 689 (Fla.1995).

In the present case, the referee found several aggravating circumstances (prior admonishment for conflict of interest in a stock sale transaction, prior suspension for the felony conviction giving rise to the present case, and substantial experience in the practice of law) and one mitigating circumstance (evidence of good character and reputation). Greene contends that the referee erred in failing to find several additional mitigating circumstances. We disagree. We agree with the referee that the lone mitigating circumstance in this case fails to outweigh the aggravating circumstances and is insufficient to overcome the presumptive sanction of disbarment.

5. Conclusion

Based on the foregoing, we approve the referee’s rulings on the motion to dismiss and the motion for summary judgment. We also approve her factual findings and recommendation that Richard Phillip Greene be found guilty of violating rule 3-4.3 (a lawyer shall not engage in misconduct or minor misconduct), rule 4-8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness), rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), and rule 5 — 1.2(b)(2) (a lawyer shall maintain original or duplicate deposit slips clearly identifying the date and source of trust funds received and the client or matter for which the funds were received).

We approve the referee’s recommended sanction of disbarment, which we conclude should commence on the date when Greene was suspended for the underlying federal securities fraud conviction. Accordingly, Richard Phillip Greene is hereby disbarred, effective, nunc pro tunc, April 1, 2004. Because Greene currently is suspended, there is no need for a closeout provision to protect existing clients. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Richard Phillip Greene in the amount of $2,309.38, for which sum let execution issue.

It is so ordered.

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

      . See, e.g., Fla. Bar v. Dougherty, 769 So.2d 1027 (Fla.2000) (approving disbarment following federal wire fraud conviction); Fla. Bar v. Bustamante, 662 So.2d 687 (Fla.1995) (approving disbarment following federal wire fraud conviction); Fla. Bar v. Levine, 571 So.2d 420 (Fla.1990) (disapproving recommended sanction of three-years’ suspension and instead imposing disbarment following state securities fraud conviction); Fla. Bar v. Isis, 552 So.2d 912 (Fla.1989) (approving disbarment following state conviction for conspiracy to commit organized fraud); Fla. Bar v. Hosner, 536 So.2d 188 (Fla.1988) (approving disbarment following federal mail fraud conviction); Fla. Bar v. Haimowitz, 512 So.2d 200 (Fla.1987) (approving disbarment following federal fraud convictions).

      . Standard 10.3 provides that in situations where a Florida lawyer has been found guilty of felonious conduct involving the personal possession or use of a controlled substance and the lawyer has obtained assistance from Florida Lawyers Assistance, Inc., and has proven rehabilitation, the presumptive period of suspension is ninety days.

      .The other case relied on by Greene, Florida Bar v. Diamond, 548 So.2d 1107 (Fla.1989), also is distinguishable. There, the lawyer was convicted of six counts of federal mail fraud and wire fraud, and the Court approved the recommended sanction of three years’ suspension. Unlike the present case, Diamond involved copious mitigation: Diamond was one of twenty-six defendants named in a forty-nine count federal indictment, and the federal judge who presided over the trial testified in the disciplinary proceeding on Diamond’s behalf, stating that notwithstanding the verdict, he did not perceive Diamond as an active participant in an act of fraud; Diamond already had completed his federal sentence and his civil rights had been restored; the President of The Florida Bar and the Mayor of Miami Beach and others testified as to Diamond’s good reputation and his amenability to rehabilitation; and Diamond had an otherwise unblemished record.

      . Greene’s claim of absence of dishonest or selfish motive is belied by the fact that he was to be paid substantially for undertaking the fraudulent actions for which he was convicted. His claim of cooperation with the Bar is belied by the fact that he refused to produce the original or duplicate deposit slips from his trust account. As for his claims of interim rehabilitation and imposition of other penalties, he fails to explain how those factors are applicable to him in light of the fact that he has not yet successfully completed his federal sentence. And finally, as for his claim of remorse, he relies solely on the testimony of his character witnesses, and yet the referee had an opportunity to observe the demeanor and credibility of those witnesses and she declined to find remorse as a mitigating circumstance. See, e.g., Fla. Bar v. Batista, 846 So.2d 479, 483 (Fla.2003) ("Because the referee is in the best position to judge the credibility of the witnesses, we again defer to the referee's assessment.... ”).


text:
    John M. BUZIA, Appellant, v. STATE of Florida, Appellee.
    No. SC04-582.
    Supreme Court of Florida.
    March 23, 2006.

      James S. Purdy, Public Defender and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

We review appellant John M. Buzia’s appeal of a circuit court judgment sentencing him to death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As we explain below, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Buzia was indicted on charges of the first-degree murder of Charles Kersch, attempted first-degree murder of Thea Kersch, armed burglary of a dwelling with an assault or battery, and robbery with a deadly weapon. Trial was held in March 2003.

A. The Guilt Phase

The Kersches, both 71 years old and retired, lived in a gated community. In the past, Buzia had performed odd jobs around their residence and rental properties. On the morning of March 14, 2000, Charles Kersch and his wife Thea expected Buzia at their residence for work, but he did not appear. In a videotaped interview with the police, Buzia stated that he had a “money issue” with the Kersches and, on that day, decided to steal money from them.

Buzia arrived at the residence at about 2:30 p.m. He waited twenty minutes for someone to arrive. Mrs. Kersch arrived home between 4 and 4:30 p.m. Buzia told her that his brother had been beaten up and that he needed to talk to her husband. She allowed him to wait in the enclosed patio area until Mr. Kersch returned.

On the patio, Buzia retrieved a serving tray he found and approached the sliding glass door that led into the kitchen. Mrs. Kersch opened the door, and he handed it to her. Once she placed the tray on a table inside, Buzia entered. They briefly conversed. Mrs. Kersch said nothing to upset him. Yet, without warning, Buzia struck her several times with his fist. Blood sprayed from her nose. Buzia admitted that he was trying to make her unconscious so that he could take her money. He knocked her down and kicked her. She lost consciousness. He took her keys and removed about $80 from her purse. He dragged her into the back bedroom and covered her with a blanket. Then he searched the house and removed a Master-card from her purse.

Buzia then heard the garage door open and assumed that Mr. Kersch had arrived home. He considered at this point whether he should tell Mr. Kersch that he had attacked his wife, or whether he should assault him, too, and leave. As soon as Mr. Kersch entered the house through the garage entrance, Buzia hit him with his fist, causing him to fall on the floor and hit his head on the tile. Mr. Kersch was breathing, but bleeding severely. Buzia told the police, “I was ... thinking ... you know ... he’s gonna die, if [I] leave right now.” Mr. Kersch attempted to rise to his feet, getting up on his hands and knees. Buzia stated that his “intention was ... obviously to keep him down longer, so maybe [he] could drive away and get more time.” He was “committed” at this point. He struck him again with his fist, and Mr. Kersch again fell to the floor. He removed about $100 from Mr. Kersch’s wallet.

Buzia obtained one of the two axes from the garage. He thought about “using it to make ‘em unconscious” but then “threw it on the ... puddle of mess.” He claims he never hit Mr. Kersch with that ax. However, after hearing moaning and groaning from Mrs. Kersch in the back bedroom, he went to the garage a second time and returned with another ax. It is unclear which ax he used on the Kersches — the first one or the second one. It seems that he used the second one and hit Mr. Kersch once in the head with the flat side of it. He stated that his intention in hitting Mr. Kersch with the ax was to “slow him” and “put him out.” In the back bedroom, Mrs. Kersch was awake and attempting to get up, but he also hit her once with the same flat side of the ax. She lost consciousness again.

He covered Mr. Kersch with a blanket, and he duct-taped the door handle in the back bedroom where Mrs. Kersch lay unconscious. After looking in closets and other things, he tried to clean up the residence a little bit, but he admitted that it was “overwhelming.” Buzia then took Mr. Kersch’s car keys and one of his T-shirts. He changed his shirt because it was “nasty” and “dirty.” The Kersches were both moving, moaning, and groaning when he left. He drove away in Mr. Kersch’s car. Shortly thereafter, the paramedics arrived. Mrs. Kersch survived, but Mr. Kersch died of blunt force injuries to the head.

The following morning, the police arrested Buzia at a bank after he attempted to cash a check for $830 drawn from Mr. Kersch’s account. Buzia appeared to understand the officers’ commands, did not have any trouble walking, and did not resist the officers’ efforts to search him.

Investigators found Mr. Kersch’s body lying near the garage door and covered with a blanket. They also found a single-headed ax on the chair at the dinette table inside the house and a double-headed ax behind the couch. The medical examiner also testified regarding the various injuries Mr. Kersch suffered and the causes of those injuries.

The jury found Buzia guilty of the first-degree premeditated murder of Mr. Kersch, the attempted first-degree murder of Mrs. Kersch, armed burglary of a dwelling with an assault or battery, and robbery with a deadly weapon.

B. The Penalty Phase

At the penalty phase, Buzia presented several lay witnesses, as well as a psychologist, who testified about his problems with drugs and alcohol, including his cocaine dependence. The State rebutted this evidence with its own expert, who stated that Buzia’s actions suggested goal-directed and purposeful behavior. The jury, by a vote of eight to four, recommended the death penalty.

After the Spencer hearing, the trial court issued its sentencing order, in which it found that the evidence supported the following six aggravating circumstances: (1) that Buzia was previously convicted of another capital offense or of a felony involving the use of violence to some person; (2) that the murder was committed while he was engaged in the commission of or flight after committing or attempting to commit the crime of kidnapping; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (4) that the murder was committed for financial gain; (5) that the murder was especially heinous, atrocious, or cruel (“HAC”); and (6) that the murder was committed in a cold, calculated, and premeditated manner, and without any pretense of moral or legal justification (“CCP”). However, the court assigned great weight to only four aggra-vators — prior violent felony, avoid-arrest, HAC, and CCP. The court did not consider the other two — during the course of a robbery/burglary/kidnapping and pecuniary gain.

After reviewing the record for mitigation, the court assigned little weight to two factors under the statutory catchall provision, section 921.141(6)(h), Florida Statutes (2003), specifically Buzia’s interaction with the community and his work record. The court also found seven nonstatutory mitigating factors and ascribed weight as follows: (1) influence of a mental or emotional disturbance, not extreme in nature (substantial weight); (2) Buzia’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, but not substantially (substantial weight); (3) gainful employment (little weight); (4) appropriate courtroom behavior during the guilt and penalty phases of the trial and during the Spencer hearing (little weight); (5) cooperation with law enforcement (little weight); (6) difficult childhood (little weight); and (7) remorse (little weight). The trial court concluded that the aggravating circumstances outweighed the mitigation and sentenced Buzia to death. In addition, the court sentenced Buzia to three concurrent life sentences for the attempted first-degree murder, armed burglary, and armed robbery convictions.

II. THE ISSUES ON APPEAL

Buzia raises six issues on appeal, which we address in turn below: (A) the trial court erred in finding the prior violent felony aggravating circumstance; (B) the trial court erred in finding the avoid-arrest aggravating circumstance; (C) the trial court erred in finding the HAC aggravating circumstance; (D) the trial court erred in finding the CCP aggravating circumstance; (E) the death penalty is not warranted in this case; and (F) Florida’s capital sentencing procedures violate Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We also independently determine that the evidence was sufficient to convict Buzia of first-degree murder.

A. Prior Violent Felony Aggravating Circumstance

In his first claim, Buzia challenges the trial court’s finding of the prior violent felony aggravator. He argues that his contemporaneous guilty verdict for the attempted murder of Mrs. Kersch was not a “conviction” under section 921.141(5)(b), Florida Statutes (2003). However, Buzia failed to preserve this issue for appeal. See Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (“[A] litigant must make a timely, contemporaneous objection.”). A-though he filed pretrial motions contesting the application of this aggravator, those objections were not contemporaneous with the penalty phase. In his sentence memorandum, Buzia objected to the other ag-gravators, but he did not raise any arguments regarding the prior violent felony aggravator. Accordingly, this issue was not preserved.

This claim lacks merit anyway. Section 921.0011(2), Florida Statutes (2001), defines “conviction” as a “determination of guilt that is the result of a plea or a trial, regardless ofivketker adjudication is withheld.” (Emphasis added.) “The word ‘convicted’ as used in section 921.141(5)(b) means a valid guilty plea or jury verdict of guilty for a violent felony; an adjudication of guilt is not necessary ....” McCrae v. State, 395 So.2d 1145, 1154 (Fla.1980) (emphases added). Furthermore, we have long recognized that a contemporaneous conviction for a violent felony can serve as a basis for the prior violent felony aggravator. LeCroy v. State, 533 So.2d 750, 755 (Fla.1988); Correll v. State, 523 So.2d 562, 568 (Fla.1988).

Buzia’s argument rests on the incorrect assumption that, for purposes of this aggravator, a conviction requires adjudication. Under section 921.0011(2) and McCrae, the jury determined Buzia’s guilt as to the attempted murder of Mrs. Kersch at the end of the guilt phase and, thus, “convicted” him of that crime. Adjudication was unnecessary. The jury’s guilty verdict for the attempted murder of Mrs. Kersch was a “conviction” for purposes of the prior violent felony aggravator. Accordingly, we affirm the trial court’s finding.

B. Avoid-Arrest Aggravating Circumstance

In his second claim, Buzia challenges the trial court’s finding of the avoid-arrest aggravator. He argues that (1) he did not intentionally kill Mr. Kersch; and (2) the evidence in support of this aggravator was circumstantial and inconclusive. Buzia’s contention and accompanying arguments that he did not intend to kill Mr. Kersch attempt to reargue the merits of his first-degree murder conviction. At trial, the jury found Buzia guilty of first-degree murder and based its finding on both felony murder and premeditated murder. This latter finding establishes intent.

The correct question is whether competent, substantial evidence supports the trial court’s finding that Buzia murdered Mr. Kersch to avoid arrest. “[Ojur task on appeal is to review 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.” Owen v. State, 862 So.2d 687, 698 (Fla.2003) (quoting Way v. State, 760 So.2d 903, 918 (Fla.2000)). We have outlined the appropriate circumstances for finding the avoid-arrest aggravator:

Where the victim is not a police officer, “the evidence [supporting the avoid arrest aggravator] must prove that the sole or dominant motive for the killing was to eliminate a witness,” and “[m]ere speculation on the part of the state that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator.” However, this factor may be proved by circumstantial evidence from which the motive for the murder may be inferred, without direct evidence of the offender’s thought processes.
In other cases, this, Court has found it significant that the victims knew and could identify their killer. While this fact alone is insufficient to prove the avoid arrest aggravator, we have looked at any further evidence presented, such as whether the defendant used gloves, wore a mask, or made any incriminating statements about mtness elimination; whether the victims offered resistance; and whether the victims were confined or were in a position to pose a threat to the defendant.

Parker v. State, 873 So.2d 270, 289 (Fla.2004) (quoting Farina v. State, 801 So.2d 44, 54 (Fla.2001)). Buzia argues that the circumstantial evidence is too inconclusive to support this aggravator, while the State asserts that direct evidence of Buzia’s thought processes exists to support it. We address each of these arguments in turn.

First, Buzia relies heavily on Zack v. State, 753 So.2d 9 (Fla.2000), arguing that similar circumstances in that case did not warrant application of this aggravator. In Zack, the defendant and the victim returned to the victim’s home after meeting at a bar. The defendant hit the victim with a beer bottle, sexually assaulted her, and beat her head against the bedroom’s wooden floor. He retrieved a knife from the kitchen and stabbed her in the chest four times. The defendant went back to the kitchen, cleaned the knife, put it away, and washed the blood from his hands. He then returned to the master bedroom, placed the victim’s bloody shirt and shorts in her dresser drawer, stole a television, a VCR, and the victim’s purse, and placed the stolen items in her car and drove away. Id. at 14. We concluded that the evidence was inconclusive to support the avoid-arrest aggravator because the defendant had a larger “premeditated plan” in mind. Id. at 20. The defendant’s acts were part of a “crime-riddled journey” in which he had committed a variety of assaults and robberies against other victims. Id. at 13-14. Although he did not have to murder the victim “to accomplish his monetary goals, this alone does not make the defendant’s dominant motive the desire to avoid arrest.” Id. at 20.

This case is distinguishable from Zack. Unlike the defendant in Zack, Buzia was not on a “crime-riddled journey.” His actions involved one robbery at one location. Furthermore, aside from not having to murder Mr. Kersch “to accomplish his monetary goals,” additional circumstances (which were absent in Zack) prove that Buzia killed him to avoid arrest.

We agree with the State that Willacy v. State, 696 So.2d 693 (Fla.1997), is more similar to this case. In Willacy, the defendant bludgeoned the victim and tied her hands and feet together. Id. at 696. Because the victim no longer posed an immediate threat to him, and because she was his next-door neighbor and could identify him easily, -we concluded that he had little reason to kill her except to eliminate her as a witness. Id. Buzia, too, easily subdued his victim. Mr. Kersch, an elderly man who was injured and bleeding badly, no longer posed an immediate threat to Buzia. He “was incapable of thwarting [Buzia’s] purpose or of escaping and could not summon help.” Id. Buzia went to the garage not once, but possibly twice, to obtain an ax, which indicates that he had enough time to escape undetected with the Kersches’ money and valuables. There was little reason for Buzia to hit Mr. Kersch with an ax, except to kill him so Buzia could avoid arrest.

In addition to these circumstances, Bu-zia’s incriminating statements to the police evidence his thought processes. We have found that a defendant’s statements to the police, in part, support a finding of the avoid-arrest aggravator. Derrick v. State, 641 So.2d 378, 380 (Fla.1994) (“In a statement to the [police], [the defendant] indicated that the victim recognized him and that he killed the victim to ‘shut him up.’ ”). Buzia told the police that his “intention [in hitting Mr. Kersch the second time with his fist] was ... obviously to keep him down longer, so maybe [he] could drive away and get more time.” He admitted that, after doing so, he thought Mr. Kersch was going to die: “I was ... thinking ... you know ... he’s gonna die, if [I] leave right now.” Even more relevant is his statement to the police regarding why he used the ax — the instrument that ultimately killed Mr. Kersch. Buzia stated that his intention in hitting him with it was to “slow him ” and “put him out.”

In addition, Buzia admitted that, when he heard Mr. Kersch arrive, he considered whether or not he should tell him that he had hurt his wife, or instead attack him as well. He obviously decided on the latter course, most likely because it would help him escape undetected. These admissions prove that Buzia’s intent to avoid arrest extends beyond mere speculation. His “sole or dominant” motive for murdering Mr. Kersch was to eliminate him as a witness. We find no error in the trial court’s finding of the avoid-arrest aggravator.

C. HAC Aggravating Circumstance

In his third claim, Buzia challenges the trial court’s finding that the murder of Mr. Kersch was heinous, atrocious, or cruel. To qualify for this aggravator, “the crime must be both conscienceless or pitiless and unnecessarily torturous to the victim.” Hertz v. State, 803 So.2d 629, 651 (Fla.2001) (quoting Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992)). Buzia raises two grounds for the trial court’s error: he never intended to kill or torture Mr. Kersch; and Mr. Kersch was not acutely aware of impending death. The State responds that because the murder of Mr. Kersch was a beating, the HAC aggra-vator applies.

Buzia’s reliance on intent is misplaced. “The intention of the killer to inflict pain ... is not a necessary element of the aggravator.” Francis v. State, 808 So.2d 110, 135 (Fla.2001) (emphasis added) (quoting Guzman v. State, 721 So.2d 1155, 1160 (Fla.1998)). We have upheld a finding of the HAC aggravator where “the killer was utterly indifferent to the suffering of another.” Id. (quoting Guzman, 721 So.2d at 1160) “[The HAC aggravator] focuses on the means and manner in which death is inflicted and the immediate cir-eumstances surrounding the death....” Barnhill v. State, 834 So.2d 836, 849-50 (Fla.2002) (emphasis added); see also Brown v. State, 721 So.2d 274, 277 (Fla.1998). “[T]he focus should be upon the victim’s perceptions of the circumstances.” Lynch v. State, 841 So.2d 362, 369 (Fla.2003) (emphasis added) (citing Farina, 801 So.2d at 53); see also Hitchcock v. State, 578 So.2d 685, 692 (Fla.1990) (“That [the defendant] might not have meant the killing to be unnecessarily torturous does not mean that it ... was not unnecessarily torturous and, therefore, not [HAC].”). None of Buzia’s arguments regarding intent have any merit. Our analysis focuses on “the means and manner” in which Buzia killed Mr. Kersch and Mr. Kersch’s perceptions of the circumstances. Therefore, we address the following two issues: (1) whether the murder of Mr. Kersch was a beating; and (2) whether Mr. Kersch was acutely aware of impending death.

We have upheld the HAC aggravator in numerous cases involving beatings. Lawrence v. State, 698 So.2d 1219, 1221-22 (Fla.1997) (“We have consistently upheld HAC in beating deaths.”); see also, e.g., Colina v. State, 634 So.2d 1077, 1081 (Fla.1994) (holding that the HAC aggravator applied where one of the defendants hit the victim, who fell to the ground, and when that victim attempted to get to his feet, the other defendant hit him several times in the back of the head with a tire iron); Owen v. State, 596 So.2d 985, 990 (Fla.1992) (upholding the HAC aggravator where the sleeping victim was struck on the head and face with five hammer blows); Lamb v. State, 532 So.2d 1051, 1053 (Fla.1988) (upholding the HAC aggra-vator where the defendant struck the victim six times in the head with a claw hammer, pulled his feet out from under him, and kicked him in the face); Heiney v. State, 447 So.2d 210, 216 (Fla.1984) (upholding the HAC aggravator where seven severe hammer blows were inflicted on the victim’s head).

A crime scene analyst concluded that the blood spatter on the wall near Mr. Kersch’s body was the “result of a beating.” Based on those blood stains and patterns, she also concluded that there were at least two separate swings of the ax and two separate impacts to Mr. Kersch’s head. In addition, Buzia stated to the police that he twice knocked Mr. Kersch to the floor.

Although the beatings in Heiney, Owen, and Lamb were probably more severe than this one, these facts parallel the circumstances in Colina. In that case, one of the defendants hit the victim, who fell to the ground. At that point, the co-defendant administered several blows with a tire iron to the back of the head. 634 So.2d at 1081. We conclude the attack on Mr. Kersch amounts to a “beating” for purposes of the HAC aggravator.

Nevertheless, nothing done to the victim after the victim is dead or unconscious can support this aggravator. Zakrzewski v. State, 717 So.2d 488, 493 (Fla.1998); see also Jones v. State, 569 So.2d 1234, 1238 (Fla.1990); Jackson v. State, 451 So.2d 458, 463 (Fla.1984). Therefore, awareness of impending death is critical in determining whether a beating unnecessarily tortured the victim. See Cox v. State, 819 So.2d 705, 720 (Fla.2002) (noting that “a victim’s suffering and awareness of his or her impending death ... supports the ... [HAC] aggravating circumstance where there is a merciless attack and beating”); see also Colina, 634 So.2d at 1081 (upholding the HAC aggra-vator where one of the victims moaned, and the defendant dealt her several more blows); Owen, 596 So.2d at 990 (upholding the HAC aggravator where, after being struck on the head with a hammer, the sleeping victim awoke screaming and struggling and endured several more blows); Lamb, 532 So.2d at 1053 (upholding the HAC aggravator where, after being struck six times in the head with a claw hammer, the victim did not die instantaneously but fell to his knees and to the floor and moaned, and the defendant kicked him in the face).

Buzia argues that the murder happened quickly, and therefore Mr. Kersch was not conscious during the attack or aware of his fate. At oral argument, Buzia’s counsel insisted that the medical examiner’s testimony about the circumstances surrounding Mr. Kersch’s death contradicted Buzia’s statement to the police that Mr. Kersch attempted to get up on his hands and knees. We discern no such conflict. The medical examiner found, in addition to bruising on Mr. Kersch’s right hand, significant injuries in three areas: (1) lacerations in three places on the right side of his head — above the right ear, to the right of his eyebrow, and on the side of his nose — with abundant hemorrhaging underneath the injury just above his eye; (2) a laceration of the scalp on the back of his head with marked hemorrhaging and, underneath that, a large amount of accumulated blood and a small skull fracture; and (3) on the left side of his head, a large complex laceration (including fractured skull bones underneath) with superficial abrasion and some soft tissue hemorrhage.

The medical examiner concluded that the laceration on Mr. Kersch’s eye was consistent with the blunt force of being hit with a fist and inconsistent with a blow from an ax. The laceration above his right ear was less consistent with a blow from a fist, but he would not rule it out. Regarding the second injury — the laceration, hemorrhage, and skull fracture on the back of Mr. Kersch’s head — he stated that it was consistent with an ax or “a really rapid fall to the floor could cause this kind of injury.” It was “possible, but not necessarily likely” that this injury caused death. It “would very possibly have caused unconsciousness,” but it “may not have.” The examiner testified that, if Mr. Kersch had lost consciousness as a result of this injury, he might have regained it. In addition, he speculated that the third injury could have resulted from either one blow or separate blows. The contusion in that area was consistent with either being struck by an ax or falling and hitting one’s head on the floor. The skull bone fractures underlying the “gash” or laceration were consistent with a blow from the flat side of an ax but not consistent with hitting one’s head on the floor. This larger wound would have caused unconsciousness instantly and likely death within a couple of minutes. On cross-examination, the medical examiner stated’ that Mr. Kersch would not have regained consciousness from this injury.

Although the medical examiner did not testify that, after falling to the ground, Mr. Kersch attempted to get up on his hands and knees — in fact, neither side asked him about it — his testimony is consistent with Buzia’s confession to that effect. He ruled out that hitting his head on the floor caused the injury to the left side of Mr. Kersch’s head, and he concluded that that injury would have instantly caused unconsciousness and likely death within minutes. Logic dictates that this injury was the final one Mr. Kersch suffered. On the other hand, the laceration and skull fracture on the back of Mr. Kersch’s head was consistent with an ax or “a ... rapid fall to the floor.” Furthermore, it was “not necessarily likely” that this injury caused death. Unconsciousness could have resulted from this injury, but it was possible that Mr. Kersch regained it. This possibility reinforces Buzia’s admission that Mr. Kersch attempted to get up on his hands and knees.

Counsel insisted during oral argument that there is no evidence to suggest that Mr. Kersch pled for his life or screamed for help. The evidence shows that Mr. Kersch was awake and aware during at least part of this ordeal. Whether this state of consciousness lasted minutes or seconds, he was “acutely aware” of his “impending death[ ].” We have upheld the HAC aggravator where the victim was conscious for merely seconds. See Rolling v. State, 695 So.2d 278, 296 (Fla.1997). Competent, substantial evidence supports the trial court’s finding.

D. CCP Aggravating Circumstance

In his fourth claim, Buzia challenges the trial court’s finding of the CCP aggravator. To support the CCP aggravator, a jury must find “that 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), and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification.” Jackson v. State, 648 So.2d 85, 89 (Fla.1994) (citations omitted). Buzia argues that the evidence does not support a finding of heightened premeditation. “Premeditated” refers to “heightened premeditation,” which is more than what is required to prove first-degree, premeditated murder. Id. at 88. “[Deliberate ruthlessness” is “necessary to raise ... premeditation above that generally required for premeditated first-degree murder.” Fennie v. State, 648 So.2d 95, 99 (Fla.1994) (finding heightened premeditation where the defendant kept the victim waiting for her ultimate fate while he contemplated various methods of execution); see also Walls v. State, 641 So.2d 381, 388 (Fla.1994) (where the defendant “toyed with [the victim] prior to her death” and “told [the victim] that he was going to ‘hurt’ her,” and where the defendant “saw that the killing was a drawn-out affair”). We conclude that Buzia’s actions rise to this level of deliberate ruthlessness because (1) he had the opportunity to leave the scene, and (2) he procured a weapon. We address these issues in turn.

First, Buzia had the opportunity to leave the residence with the Kersches’ money and valuables without committing further harm. We have “found ... heightened premeditation ... where a defendant had the opportunity to leave the crime scene and not commit the murder but, instead, committed] the murder.” Alston v. State, 723 So.2d 148, 162 (Fla.1998) (where the defendant could have stopped at kidnapping and robbery, but instead confined the victim and forced him to contemplate his death while the defendant decided what to do with him) (citing Jack son v. State, 704 So.2d 500, 505 (Fla.1997)); see also Lynch, 841 So.2d at 372-73 (where the defendant waited “thirty to forty minutes” for the victim to arrive home and, after initially shooting the victim and then dragging her into the apartment, had five to seven minutes in which he could have left the scene and not inflicted the final harm). We conclude in part that, by remaining there and murdering Mr. Kersch, Buzia developed “heightened premeditation.”

In its sentencing order the trial court states the following:

The time lapse that occurred between the beating of Thea Kersch and the murder of Charles Kersch allowed [Bu-zia] to reflect wpon his criminal activity and to renounce any further violence. Instead [Buzia] used that extended period of time to ... perfect his plan of attack toward Charles Kersch.

(Emphasis added.) As in Lynch, where the defendant waited “thirty to forty minutes” for the victim to arrive home, 841 So.2d at 373, Buzia had a short period of time during which he could have left the scene and not inflicted further harm. He could have “renouncefd] any further violence” by either leaving or, upon Mr. Kersch’s arrival, passively explaining to him what occurred. Yet, when he heard the garage door open, he considered his options and decided to attack Mr. Kersch as well. He calmly chose the criminal option and “perfect[ed] his plan of attack.”

Despite this course, Buzia had one final instance where he could have left the scene without committing further harms — the lapse of time during which he obtained the ax. This interlude was similar to the five to seven minutes in Lynch. Moreover, Buzia could have stopped his criminal activity at the level of assault and robbery. Instead, he remained there, obtained the first ax, and thought about “using it to make ‘em unconscious.” Although he dropped it on the floor, he obtained the other ax and carried out his plan. Buzia could have left the scene without committing further harm, but he remained and committed murder. See Alston, 723 So.2d at 161-62 (emphasizing the defendant’s choice between stopping at the level of kidnapping and robbery and murdering the victim).

Most importantly, during this final lapse of time, Buzia procured his own weapon. “[T]he facts supporting [the CCP aggravator] must focus on the manner in which the crime was executed, e.g., advance procurement of weapon, lack of provocation, killing carried out as a matter of course....” Looney v. State, 803 So.2d 656, 678 (Fla.2001) (emphasis added) (quoting Rodriguez v. State, 753 So.2d 29, 48 (Fla.2000)). We have found the CCP aggravator where the defendant procured a weapon beforehand. See, e.g., Rodriguez, 753 So.2d at 46 (where the defendant armed himself with a loaded handgun before proceeding to commit the crime); Sireci v. Moore, 825 So.2d 882, 886 (Fla.2002) (acquisition of a tire iron); Zakrzewski, 717 So.2d at 492 (the defendant purchased the murder weapon the morning before the murders). However, such procurement need not be that far in advance. In Jackson, 704 So.2d at 505, the defendant went upstairs, obtained a gun, and made a deliberate and conscious choice to shoot a law enforcement officer. We found heightened premeditation because the defendant could have left the scene, but instead purposely returned with the gun to confront the officer. Id. at 505. We have found the CCP aggravator in other cases where the defendant did not procure his own murder weapon before arriving at the scene. See Mason v. State, 438 So.2d 374, 379 (Fla.1983) (where the defendant broke into the victim’s home, armed himself with a knife from her kitchen, and attacked the victim as she lay sleeping in bed).

Although Buzia did not bring his own weapon to the residence, he nevertheless procured one. Because he was performing various jobs for the Kersches at their residence, he knew exactly where to obtain the axes. Like the defendant in Jackson, 704 So.2d at 505, he left the immediate vicinity of the victim, obtained a weapon from a location nearby, and returned to use it on that victim. These actions reflect “a deliberate and conscious choice” to commit murder. Therefore, competent, substantial evidence supports the trial court’s finding of the CCP aggravator.

Buzia nevertheless relies on Geralds v. State, 601 So.2d 1157 (Fla.1992). In Geralds, the defendant interrogated the victim’s children regarding when family members would be present in the house; brought gloves, a change of clothes, and plastic ties to the house; left his car at a location away from the house; and bound and stabbed the victim. Id. at 1163-64. We held that the trial court erred in finding the CCP aggravator. Id. at 1164. Bu-zia asserts that this case is “indistinguishable” from Geralds. Although this case and Geralds bear one significant similarity — the weapon used in each crime was a “weapon of opportunity” found in the house rather than one “brought to the scene,” id. — Geralds is nonetheless distinguishable. First, the defendant in Geralds obtained information about who would be home probably to avoid contact with anyone during the burglary. Id. at 1163. Here, Buzia traveled to the Kersches’ residence for the explicit purpose of confronting the Kersches. Second, the defendant in Geralds bound the victim first instead of immediately killing her, which suggests that he might not have planned to kill her. Id. at 1163-64. There was also evidence of a struggle prior to the killing. Id. Here, Buzia never bound Mr. Kersch, and no frenzy or struggle occurred. He immediately attacked him with his fists and, shortly thereafter, struck him with an ax. Therefore, we find Geralds distinguishable.

E. Proportionality

In his fifth claim, Buzia challenges the weight assigned to the aggravating circumstances and argues that the death penalty is not appropriate. The weight to be given aggravating factors is within the discretion of the trial court, and it is subject to the abuse of discretion standard. Sexton v. State, 775 So.2d 923, 934 (Fla.2000). “[Discretion is abused only where no reasonable man would take the view adopted by the trial court.” Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). We affirm the weight accorded an aggravator if based on competent, substantial evidence. Sexton, 775 So.2d at 934. Here, the trial court assigned great weight the prior violent felony, avoid-arrest, HAC, and CCP aggravators. As discussed above, competent, substantial evidence supports the court’s finding of these aggravators. We find no abuse of discretion.

We are nevertheless obligated to review each death sentence for proportionality. Anderson v. State, 841 So.2d 390, 407 (Fla.), cert. denied, 540 U.S. 956, 124 S.Ct. 408, 157 L.Ed.2d 292 (2003). In this case, the jury recommended death by a vote of eight to four, and the trial court so sentenced Buzia. The court found and assigned great weight to four aggravating circumstances — prior violent felony, avoid-arrest, HAC, and CCP. We have held that both the HAC and CCP aggravators are “two of the most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.2d 90, 95 (Fla.1999). Furthermore, we have upheld death sentences where the prior violent felony aggravator was the only one present. See, e.g., LaMarca v. State, 785 So.2d 1209, 1217 (Fla.2001); Ferrell v. State, 680 So.2d 390, 391 (Fla.1996).

The court assigned little weight to two factors under the statutory catchall provision, section 921.141(6)(h), Florida Statutes (2003), specifically Buzia’s interaction with the community and his work record. The court also found several nonstatutory miti-gators and afforded the weight indicated: influence of a mental or emotional disturbance, not extreme in nature (substantial weight); capacity to appreciate the criminality of one’s conduct or to conform his conduct to the requirements of law was impaired, but not substantially (substantial weight); gainful employment (little weight); appropriate courtroom behavior (little weight); cooperation with law enforcement (little weight); difficult childhood (little weight); and remorse (little weight). The court determined that the aggravating circumstances outweighed the mitigation and sentenced Buzia to death.

We find that the sentence is proportional in relation to other death sentences we have upheld. See, e.g., Lynch, 841 So.2d at 377 (finding death sentence proportionate where three aggravators were found applicable to each murder — including prior violent felony, CCP, and HAC — and little weight was given one statutory mitigator and eight nonstatutory mitigators were accorded moderate or little weight); Way, 760 So.2d at 920-21 (finding the death penalty proportional where four aggrava-tors were found — -prior violent felony, murder committed during the commission of a felony, HAC, and CCP — and two statutory mitigators and seven nonstatutory miti-gators were found); Cave v. State, 727 So.2d 227, 229 (Fla.1998) (affirming death sentence where four aggravators were found — murder in the course of a felony (robbery-kidnapping), CCP, HAC, and avoid-arrest — and one statutory and eight nonstatutory mitigators were found).

F. The Ring Claim

In his final claim, Buzia argues that Florida’s capital sentencing procedures violate Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We have previously rejected this contention. See Jones v. State, 845 So.2d 55, 74 (Fla.2003) (citing Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002)). Additionally, we have repeatedly upheld the constitutionality of Florida’s capital sentencing procedures in cases, such as this one, that include the prior violent felony aggravator. See Robinson v. State, 865 So.2d 1259, 1265 (Fla.2004) (“[A] prior violent felony involve[s] facts that were already submitted to a jury during trial and, hence, [is] in compliance with Ring.”) (citing Owen v. Crosby, 854 So.2d 182, 193 (Fla.2003)). Accordingly, Buzia is not entitled to relief.

G. Sufficiency of the Evidence

Although Buzia has not challenged the sufficiency of the evidence, we have the independent duty to review the record in each death penalty case to determine whether competent, substantial evidence supports the murder conviction. See Fla. R.App. P. 9.140(i); Davis v. State, 859 So.2d 465, 480 (Fla.2003). After reviewing the record, we conclude that competent, substantial evidence supports Buzia’s first-degree murder conviction. At trial, the State presented Buzia’s videotaped confession, as well as other strong evidence to establish Buzia’s guilt beyond a reasonable doubt. A lab analyst matched the bloody shoe impressions found on the tiles in the foyer, family room, garage hallway, kitchen, and dinette area in the Kersches’ residence to Buzia’s shoes. Investigators found a blood smear on the door of the cabinet (which contained the axes) in the garage, and a print examiner concluded that Buzia’s palm print was on that cabinet. Furthermore, Buzia’s shorts had blood stains on the left front leg from the middle extending to the side seam, and he had bloodstains on his socks and shoes. The blood on his shorts and on one of the axes matched Mr. Kersch. This evidence, combined with Buzia’s own confession to the murder, provides sufficient proof to uphold the adjudication of guilt. Accordingly, competent, substantial evidence supports the verdict.

III. CONCLUSION

Having heard oral argument and considered each of the issues raised in this direct appeal, we affirm Buzia’s judgment and sentence of death.

It is so ordered.

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

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

      . The State cross-appealed and raised two issues. However, because we affirm all of the trial court's findings, the State’s cross-appeal is rendered moot.

      . First, Buzia asserts that he never hit Mr. Kersch with a full swing of the ax and simply intended to "knock him silly.” Those words, however, arose in response to police questioning, where Buzia hypothetically distinguished between swinging as hard as he could, which he admitted would kill a victim, and hitting someone "enough to ... you know ... to maybe knock silly.” Second, he argues that he used the flat side of the ax, not the sharp side, so that he could slow down Mr. Kersch and get out of the house. This statement undermines Buzia's position against the avoid-arrest aggravator.

      . Buzia makes various other arguments that do not support his position. First, his argument that he left Mrs. Kersch alive as a witness against him has no bearing on whether he killed Mr. Kersch to avoid arrest. Second, the fact that Buzia attempted to duct-tape the door of the bedroom to keep Mrs. Kersch inside suggests that he was trying to keep her from getting out — and, presumably, alerting someone. If anything, this evidence indicates that he had an intent to do what he could to avoid detection. Third, Buzia argues that his search for valuables proves that he did not immediately flee the house after assaulting Mrs. Kersch. This fact is irrelevant. The question, again, is whether he killed Mr. Kersch to eliminate him as a witness.

      . In addition, Buzia argues that the court improperly weighed the HAC aggravator. This Court’s function is not to reweigh the evidence but, rather, to determine whether competent, substantial evidence supports the lower court’s finding. Owen, 862 So.2d at 698. Our discussion of this argument properly belongs in our proportionality analysis.

      . Buzia repeats his argument that, instead of intending to kill Mr. Kersch, he only struck him hard enough to “knock him silly.” However, that statement again misrepresents the facts. See supra note 3. Second, he argues that his intent was to render the Kersches incapacitated so that he could rob them, escape, and "get high.” That admission essentially concedes the State's position regarding the avoid-arrest aggravator but does not address the manner of the killing.

      . The only conflict in the testimony concerns whether Mr. Kersch was moaning and groaning when Buzia left the residence. Buzia told the police that he heard such noises, but the medical examiner stated that Mr. Kersch would not have regained consciousness from the injury caused by the ax on the left side of his head.

      . Buzia cites various cases based on the assumption that only one aggravator in this case has merit. Because competent substantial evidence supports the trial court's finding of four aggravating circumstances, and because it properly assigned great weight to those aggravators, these cases do not apply.