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    David Sylvester FRANCES, Appellant, v. STATE of Florida, Appellee.
    No. SC05-892.
    Supreme Court of Florida.
    Oct. 11, 2007.
    Rehearing Denied Dec. 6, 2007.

      James S. Purdy, Public Defender, and James R. Wulchak, Chief, Appellate Division, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. Y, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm both the conviction and sentence.

Facts and Procedural History

David Sylvester Frances and his younger brother Elvis Frances were charged by indictment with the first-degree murders of Helena Mills and JoAnna Charles, the robbery of Mills’ automobile, and two counts of the petit theft of Charles’ jewelry and a Playstation video game system belonging to Mills’ son.

Gleneth Byron, the mother of the Frances brothers, was a close friend of Mills and lived about five minutes from Mills’ condominium in Orlando. The two families often socialized together. The Frances brothers had been living with Byron for about a month and neither was employed. Byron asked the brothers to move out and planned to give them money for bus tickets to Tallahassee, where the family had lived previously. David Frances called Byron around noon on November 6, 2000, to tell her that the brothers had a ride to Tallahassee. When Byron returned home at 5 p.m., her sons and all of their belongings were gone.

Early that same morning, the Frances brothers rang the doorbell at Mills’ condominium. Mills’ thirteen-year-old son Dwayne Rivers answered the door and talked to the brothers briefly for a minute or two. Rivers knew the brothers from when they all had lived in the Virgin Islands. Rivers told the brothers that JoAn-na Charles, who was a sixteen-year-old family friend living with Mills, was staying home from school that day because she was sick. The brothers departed and Rivers left for school at 8:45 a.m. When Rivers returned home at 6 p.m., he saw Charles’ red Toyota in front of the condominium, but he did not see his mother’s green Mazda 626 in the garage. Rivers called for Charles and banged on the locked door of the master bedroom, but did not receive a response. When Rivers entered the master bedroom through a sliding glass door on the balcony, he discovered the bodies of his mother and Charles on the floor of the bathroom. Rivers phoned Byron and then called 911.

When the paramedics arrived, they discovered Charles’ body on top of Mills’ body. Both women had been strangled with an electric cord. A cord was still wrapped around Charles’ neck. The bodies were in rigor mortis. There were no signs of forced entry into the condominium. The medical examiner testified that Mills had multiple recent abrasions to her face, injuries to her neck, ruptured blood vessels in her face, and a cut across her neck caused by the cord being wrapped around her neck and pulled at each end. Charles had a groove around her neck with superficial lacerations. She also had crescent-shaped fingernail marks on her right neck caused by her attempts to remove either the ligature or hands from her neck. The material under Charles’ nails matched her own DNA. Material removed from Mills’ nails was identified as male DNA. While neither David nor Elvis could be excluded as the contributor of the material found under Mills’ nails, the sample was so limited that this finding was not significant. The electrical cord around Charles’ neck was tested for latent fingerprints, but there were not enough ridge-lines on the latent prints to enable a match. No DNA testing was conducted on the electrical cord because the chemicals used for the latent print testing would have destroyed the DNA. Conversely, had the cord been tested for DNA, it would have obliterated any latent prints.

The tag number and information about Mills’ stolen vehicle were entered into the national law enforcement data base. On December 5, 2000, the Frances brothers and three other individuals were stopped in Mills’ vehicle in DeKalb County, Georgia. Elvis was driving the vehicle and David was a passenger in the back seat. The vehicle still bore Mills’ license plate. David claimed that he had bought the vehicle in Tallahassee, but was unable to name the seller.

Orlando police detectives traveled to Georgia to interview the brothers. Twenty-year-old David gave a statement after being advised of his Miranda rights and waiving them. In this statement, David originally denied any knowledge of the murders, claimed that he and Elvis took a bus from Orlando to Tallahassee, and stated that he had bought Mills’ car from someone named “Will” in Tallahassee. David subsequently admitted being at Mills’ house on the morning of the murders and stated that Elvis killed both victims. David admitted that he helped Elvis move the bodies and participated in stealing Mills’ car. David also admitted that the brothers took Mills’ car and drove it to Tallahassee.

The officers then interviewed sixteen-year-old Elvis at the juvenile detention facility where he was being held. The officers played David’s taped interview for Elvis. Elvis related a different version of events, claiming that David also participated in the murders. The brothers were arrested for first-degree murder and transported back to Florida. An attempt to record their conversations in the transport van was unsuccessful because the equipment did not work.

David was interviewed a second time on December 6. During this interview, David related the following additional details about the murders. Byron wanted the brothers out of her house, but they had no money and no place to go. After talking to Rivers on Monday morning, the brothers decided to steal Mills’ car. They went back to Mills’ house where they met her in her garden. Mills told the brothers to go inside. When she came in, both brothers jumped her. David strangled Mills with his hands until she passed out. Elvis attempted to do the same to Charles, but had difficulty because Charles struggled with him. Both brothers moved the women into the bedroom and David then strangled Mills with an electric cord. Because Charles “still had life in her,” the brothers wrapped the electric cord around her neck and each pulled on an end in order to kill her. They took jewelry and a Playstation from the house and drove off in Mills’ car. They pawned the stolen items for $240. They drove to Tallahassee and then to Georgia in Mills’ car. Both of David’s taped interviews were published to the jury at trial.

Mills’ vehicle was sealed and returned to Orlando in a sealed car trailer. David’s prints were lifted from the rear passenger window of the vehicle. The owner of the pawn shop identified receipts showing that the items from Mills’ house were pawned at 11:32 a.m. on the morning of the murders. David presented his driver’s license to pawn a PlayStation, a pendant, and three chains. Rivers was able to identify the pawned items as belonging to his mother and Charles. The thumbprint on the pawn ticket belonged to David Frances. Rivers was also able to recognize his mother’s-car keys based on a small blue flashlight with her employer’s logo that was on the key ring.

David filed a pretrial motion challenging the legality of Florida’s death penalty under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), based on the facts that the judge rather than the jury imposes sentence, jury unanimity is not required as to the sentence recommendation, and the role of the jury is allegedly minimized by the standard jury instructions. David also moved to bar victim impact evidence from the penalty phase, arguing that such evidence is irrelevant to any statutory aggravating circumstance and thus is unconstitutional. The trial court denied both motions.

The jury trial commenced on October 25, 2004, in the circuit court in Orange County. At the close of the State’s case, David moved for a judgment of acquittal, arguing that premeditation had not been shown. The trial court denied the motion. The jury returned guilty verdicts on all of the charges.

At the penalty phase, the State presented victim impact testimony from Mills’ son and Charles’ mother and additional testimony from the medical examiner about the physical effects of asphyxiation. The defense presented the testimony of nine witnesses: a psychotherapist and mitigation specialist who met and interviewed David and a number of people who knew him during his childhood; family members, friends, and former teachers and coaches; David’s corrections officer; and Dr. Eric Mings, the psychologist who evaluated David’s mental health status. All of the family members and friends testified that David was a quiet, respectful child and young man, but Elvis was aggressive and violent. They also testified that David tried to keep Elvis out of fights and trouble. Prison inmate Tameka Jones testified about the murder of Monique Washington in Tallahassee in September 2000. Jones, who had been a roommate of the brothers in Tallahassee, went with Elvis to Washington’s apartment, ostensibly to help Washington move her belongings. Instead, Elvis strangled Washington with his hands and an electric cord in order to steal her car. Jones also stated that David helped Elvis dispose of Washington’s body after the fact. Dr. Mings testified that David has average intelligence and had developed a pathologically dependent relationship with Elvis at an early age.

The jury recommended that David be sentenced to death for Mills’ murder by a vote of nine to three and for Charles’ murder by a vote of ten to two. Additional five and videotaped mitigating evidence was presented to the court during the Spencer hearing. The court found two aggravating circumstances applicable to Mills’ murder: a prior violent felony based on the contemporaneous conviction for the murder of the other victim and that the murder was committed during the course of a robbery. The court found these same two aggravators applicable to Charles’ murder, plus the heinous, atrocious, or cruel aggravating circumstance. The court rejected the statutory mitigators of no significant history of prior criminal activity (based on David’s helping Elvis dispose of Washington’s body and the fact that David was absent without leave (AWOL) from the United States Army) and acting under duress or the substantial domination of another, i.e., his brother Elvis. The court found and gave unspecified weight to David’s “relative youth [twenty years old] together with other factors,” but did not specify these other factors; the relative personalities of the two brothers (David being quiet and gentle; Elvis being aggressive and bad); and David’s pathologically dependent relationship with Elvis. The court also gave “serious weight” to David being abandoned by his mother shortly after birth and being raised by his grandmother in poverty in the Virgin Islands; David’s lack of a positive male role model; David’s pathological relationship with Elvis, and Elvis’s dominant role in the brothers’ relationship. The court ruled that the aggravating circumstances outweighed the mitigating and imposed death sentences for both murders. The court also sentenced David to a consecutive fifteen-year sentence on the robbery conviction and sixty days on the petit thefts.

In his appeal to this Court, Frances raises three issues, each of which encompasses a number of sub-issues. He claims that: (1) the trial court improperly restricted his presentation of guilt and penalty phase evidence that was relevant to his relative culpability for the crimes and what sentence he should receive; (2) the trial court improperly found the heinous, atrocious, or cruel aggravating circumstance (HAC), excluded existing mitigating evidence, and concluded that the aggravating circumstances outweighed the mitigating circumstances; and (3) Florida’s death penalty statute is unconstitutional under Ring v. Arizona. We address each claim in turn below.

Exclusion of Evidence

Frances claims that the trial court erred in preventing him from presenting relevant evidence during both the guilt and penalty phases of his trial. Frances claims that the excluded evidence was relevant to the question of his relative culpability and other mitigating factors. He raises this claim as to eight different instances in which the trial court upheld the State’s objections to testimony defense counsel sought to elicit. These included multiple hearsay objections to the testimony relating to the poor conditions of David’s childhood home, conversations between the mitigation specialist and individuals about the brothers’ childhood and background, David’s and Elvis’s reports of domestic abuse on David as a child, and David’s statements to the mental health expert about his dependent relationship with Elvis. The trial court also sustained the State’s objections to other defense testimony as being irrelevant or improper, including reports of prior violent acts by Elvis, testimony about why the Frances brothers had to leave their apartment in Tallahassee, the mental health expert’s testimony about whether David exhibited “street smarts,” and the mental health expert’s opinion as to whether in-court testimony by other background witnesses was inconsistent with the expert’s opinion about the brothers’ relationship.

The State asserts that this issue has not been adequately briefed by Frances so as to present a viable claim. While Frances’ exposition of these evidentiary claims is not a model of appellate clarity, we can discern the basis of his claims and the specific relevance that he attributes to the excluded evidence. Thus, we address these claims on the merits.

The only guilt phase claim involves evidence about why the Frances brothers had to leave their Tallahassee apartment. Frances argues that this evidence was relevant to his guilt because it showed why he “tried to minimize his brother’s role in these killings” in his confession to the police. The remaining claims involve penalty phase proceedings; Frances alleges that evidence that was “highly relevant to the jury’s consideration” of the appropriate sentence was excluded. We find no error on these evidentiary rulings.

A trial court’s rulings as to the excluded evidence should be reviewed under the abuse of discretion standard. See, e.g., LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001) (explaining that a trial judge’s rulings on the admission or exclusion of evidence are reviewed under the abuse of discretion standard). Under the abuse of discretion standard, “[discretion is abused only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’” Trease v. State, 768 So.2d 1050, 1058 n. 2 (Fla.2000) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)).

Our review of the record in this case shows that the trial court did not abuse its discretion in excluding the evidence in question. In several instances the evidence was actually presented through the testimony or videotaped depositions of the individuals who had firsthand knowledge of the information, rather than through the testimony of the mitigation specialist who was asked to relate her conversations with these individuals. In several other instances, the defense attempted to introduce hearsay statements made by the Frances brothers, neither of whom testified at trial and thus were not subject to the State’s cross-examination. Section 921.141(1), Florida Statutes (2006), provides in pertinent part: “Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.” While the statute “relaxes the evidentiary rules during the penalty phase of a capital trial, the statute clearly states that the defendant must have an opportunity to fairly rebut the hearsay evidence in order for it to be admissible. This rule applies to the State as well.” Blackwood v. State, 777 So.2d 399, 411-12 (Fla.2000) (citation omitted); see also Hitchcock v. State, 578 So.2d 685, 690 (Fla.1990) (finding no merit to claim that state’s ability to introduce hearsay in a penalty proceeding is limited while a defendant’s ability to introduce hearsay is unlimited). Additionally, the defense was able to elicit some of the information through opinion testimony of the mental health expert. Thus, the trial court did not abuse its discretion when it excluded these hearsay statements by the brothers.

We also conclude that Frances did not properly preserve the claim relating to Elvis’s unrelated act of violence because he never proffered the contents of the excluded evidence to the trial court. See Blackwood, 777 So.2d at 410-11; Lucas v. State, 568 So.2d 18, 22 (Fla.1990) (“A proffer is necessary to preserve a claim such as this because an appellate court will not otherwise speculate about the admissibility of such evidence.”); Jacobs v. Wainwright, 450 So.2d 200, 201 (Fla.1984) (“The purpose of a proffer is to put into the record testimony which is excluded from the jury so that an appellate court can consider the admissibility of the excluded testimony. Reversible error cannot be predicated on conjecture.”). The failure to do so, therefore, prevents appellate review of the excluded items. See Blackwood, 777 So.2d at 411; see also Finney v. State, 660 So.2d 674, 684 (Fla.1995) (“Without a proffer it is impossible for the appellate court to determine whether the trial court’s ruling was erroneous and if erroneous what effect the error may have had on the result.”).

Finally, we find no error in the exclusion of certain testimony by the mental health expert, including whether David possessed “street smarts” and comments on the credibility of testimony by lay witnesses who knew the Frances brothers during their childhood. A trial court has broad discretion in determining the range of subjects on which an expert witness can testify, and, absent a clear showing of error, the court’s ruling on such matters will be upheld. See Pagan v. State, 830 So.2d 792, 815 (Fla.2002); Finney, 660 So.2d at 682. Expert testimony should be excluded when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions. See Simmons v. State, 934 So.2d 1100, 1117 (Fla.2006), cert. denied, — U.S. -, 127 S.Ct. 1334, 167 L.Ed.2d 80 (2007); Johnson v. State, 438 So.2d 774, 777 (Fla.1983) (holding that jury was fully capable of assessing a witness’s ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony and finding no abuse of discretion in the trial court’s refusal to allow professor of psychology to testify as expert witness in the field of eyewitness identification). Additionally, it is not proper to allow an expert to vouch for the truthfulness or credibility of a witness. See Feller v. State, 637 So.2d 911, 915 (Fla.1994); State v. Townsend, 635 So.2d 949, 958 (Fla.1994). Thus, the trial court did not abuse its discretion in excluding this testimony.

Aggravating and Mitigating Circumstances

Frances claims that his death sentences are improper based on four alleged errors relating to the aggravating and mitigating circumstances. He claims that the heinous, atrocious, or cruel (HAC) aggravating factor does not apply in his case; that the trial court gave improper weight to the prior violent felony conviction aggravating circumstance and to the mitigating circumstances; and that the death sentence is disproportionate.

The trial court found the HAC aggravating factor applicable to the murder of Joanna Charles, but not to the murder of Helena Mills. Frances argues that the trial court improperly found HAC because the evidence “made it no more likely than not that Charles lost consciousness upon her initial manual strangulation at Elvis’ hands.” Frances contends that the trial court speculated that Charles was conscious when he joined Elvis in strangling her and there is nothing in the evidence to support the court’s supposition. Without such proof, Frances maintains, the HAC aggravator cannot be established.

When evaluating claims alleging error in the application of aggravators, this Court does not reweigh evidence to determine whether the State proved each aggravating factor beyond a reasonable doubt. See Alston v. State, 723 So.2d 148, 160 (Fla.1998). Rather, the Court’s function is “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.” Id (quoting Willacy v. State, 696 So.2d 693, 695 (Fla.1997)).

Here, the trial court cited the HAC definition set forth by this Court in State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and which is still cited as the standard definition for HAC. See Hutchinson v. State, 882 So.2d 943, 962 (Fla.2004) (Pariente, J., concurring). As this Court explained in Barnhill v. State, 834 So.2d 836 (Fla.2002),

HAC focuses on the means and manner in which the death is inflicted and the immediate circumstances surrounding the death, rather than the intent and motivation of a defendant, where a victim experiences the torturous anxiety and fear of impending death. Thus, if a victim is killed in a torturous manner, a defendant need not have the intent or desire to inflict torture, because the very torturous manner of the victim’s death is evidence of a defendant’s indifference. Because strangulation of a conscious victim involves foreknowledge and the extreme anxiety of impending death, death by strangulation constitutes prima facie evidence of HAC.

Id. at 849-50 (citations omitted).

In fact, this Court has repeatedly held that HAC applies to murders by strangulation of a conscious victim because a killing by this method is inherently torturous. See Mansfield v. State, 758 So.2d 636, 645 (Fla.2000); Orme v. State, 677 So.2d 258, 263 (Fla.1996); Tompkins v. State, 502 So.2d 415, 421 (Fla.1986) (“[I]t is permissible to infer that strangulation, when perpetrated upon a conscious victim, involves foreknowledge of death, extreme anxiety and fear, and that this method of killing is one to which the factor of heinousness is applicable.”).

In the sentencing order in this case, the trial court noted that the testimony of the medical examiner, Frances’ confession, and the circumstances of the murder all supported the HAC aggravator. The medical examiner testified that both victims died of strangulation and would have been conscious and aware of what was happening for a minimum of one to two minutes and would have felt the pain associated with hands and a ligature around their necks. Both victims had cuts on their necks that were consistent with an electrical cord being pulled tight around the neck, and the cord was actually recovered from Charles’ neck. Crescent-shaped fingernail marks or gouges were also found on Charles’ neck and her own DNA was found under her fingernails, indicating defensive attempts by Charles to prevent the strangulation. The medical examiner explained that an unconscious person does not fight or struggle. The medical examiner opined that Charles’ death was not instantaneous and not without her knowledge.

David’s taped confession confirmed the medical examiner’s testimony. He stated that Charles was still conscious and struggling when he helped Elvis strangle her with the electric cord. David described Charles as still having life in her when he and Elvis moved her to the bathroom floor. Therefore, they wrapped the cord around her neck a second time and strangled her again.

The sentencing order also noted that the other circumstances of the murder would have added to Charles’ anxiety and terror. She was attacked in her own home by two people she knew; she was clearly conscious during her initial struggle with Elvis and aware of her impending death; when David arrived, she soon realized that he was not there to help her but was aiding Elvis in killing her; and she struggled against the two attackers, who overpowered her. The trial court concluded that Charles suffered mental and physical torture inflicted by David Frances.

We conclude that Frances’ confession and the medical examiner’s testimony provide competent, substantial evidence to support the trial court’s finding that Charles was conscious and struggled against her attackers as she was strangled. Thus, we affirm the trial court’s finding that the HAC aggravating circumstance applied to Charles’ murder.

Frances argues that the trial court should have given less weight to the prior violent felony aggravating circumstance because it was based on his contemporaneous convictions for the murders of the two victims and because he had lived a violence-free life up to the time of these crimes. The weight to be accorded an aggravator is within the discretion of the trial court and will be affirmed if based on competent, substantial evidence. See Sexton v. State, 775 So.2d 923, 934 (Fla.2000); Campbell v. State, 571 So.2d 415, 419-20 (Fla.1990).

“[T]he contemporaneous conviction of a violent felony may qualify as an aggravating circumstance, so long as the two crimes involved multiple victims or separate episodes.” Pardo v. State, 563 So.2d 77, 80 (Fla.1990); see also Winkles v. State, 894 So.2d 842, 846 (Fla.2005) (finding that each murder in the indictment to which defendant pled guilty constituted a prior violent felony conviction as to the other murder conviction); Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (noting that one of the aggravating factors found was prior violent felony based on the contemporaneous murders of the two victims); Francis v. State, 808 So.2d 110, 136 (Fla.2001) (finding that trial court correctly found that murder conviction as to one victim aggravated the murder conviction as to other victim, and vice versa).

In the instant case, the jury found David Frances guilty of two counts of premeditated murder for killing the two victims. Thus, the prior violent felony aggravating circumstance clearly applies and the only real issue is the weight accorded to this aggravator, which we review under the abuse of discretion standard. A court abuses its discretion “only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’” Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)).

Frances cites Terry v. State, 668 So.2d 954, 965 (Fla.1996), and Almeida v. State, 748 So.2d 922, 933 (Fla.1999), in which this Court found that the prior violent felony aggravating factor should be accorded less weight based on the circumstances surrounding the prior convictions. However, the circumstances and facts of those cases are distinguishable from this case.

In Terry, the prior violent felony did not represent an actual violent felony previously committed by the defendant. 668 So.2d at 965. Rather, the aggravator was based on the defendant’s contemporaneous conviction as a principal to an aggravated assault simultaneously committed by a co-defendant who pointed an inoperable gun at the victim’s husband. Id. While we recognized that this contemporaneous conviction qualified as a prior violent felony and a separate aggravator, we concluded that we could not ignore the circumstances, namely that the felony occurred at the same time as the murder, was committed by a codefendant, and involved the threat of violence with an inoperable gun. Id. at 966. However, our final observation on this point in Terry belies Frances’ argument here. We explained that the situation in Terry “contrasts with the facts of many other cases where the defendant himself actually committed a prior violent felony such as homicide.” Id. These are the exact circumstances in Frances’ case.

In Almeida, the sole aggravating circumstance was a prior violent felony conviction, based on the defendant’s prior murders of two prostitutes. 748 So.2d at 933. Additionally, the trial court found three statutory mitigators (extreme emotional disturbance, impaired capacity, and age of twenty at the time of the crime) and extensive nonstatutory mitigation, including a brutal childhood and vast mental health mitigation. In light of this substantial mitigation and the single aggravator, we found Almeida’s death sentence disproportionate. Id.

While Frances was also twenty years old at the time of these two murders, he had little or no mental health mitigation, with the exception of his “pathologically dependent relationship” with Elvis. Additionally, Frances’ case involved two other aggravating circumstances, that Charles’ murder was HAG and both murders were committed during a robbery. Almeida did not commit his murders to get property from the victims; he apparently acted impulsively in.a drunken rage. Almeida, 748 So.2d at 932-33.

In other cases, we have described the prior violent felony aggravating circumstance as “especially weighty.” Ferrell v. State, 680 So.2d 390, 391 (Fla.1996) (affirming death sentence where single aggravating circumstance of prior violent felony was “weighty”); Duncan v. State, 619 So.2d 279, 284 (Fla.1993) (affirming death sentence where sole aggravating factor was prior second-degree murder). Thus, we find no abuse of discretion in the weight accorded this aggravating factor in this case, where the defendant strangled two women to death in order to steal a car and other items that he pawned for cash.

Frances also argues that the mitigating circumstances found by the trial court, along with other mitigators presented but not found, outweigh-the aggravating circumstances. Frances contends that the trial court should have found the statutory mitigators of extreme duress or substantial domination and no significant history of prior criminal activity. He also contends that the trial court’s consideration of the statutory mitigator of age was improper.

The trial court noted that Frances had offered evidence that he was under the influence of his younger brother Elvis, but the court did not find the evidence persuasive. The court found that because Frances “maintained a normal capacity of independent choice and freedom of action, such influence did not rise to the level of extreme duress or substantial domination.” The court also rejected the mitigator of no significant history of prior criminal activity because Frances’ “history of helping Elvis dispose of Monique Washington’s body while AWOL from the TJ.S. Army is significant and precludes this as a mitigating circumstance.”

The trial court did find a number of nonstatutory mitigating factors relating to Frances’ history, personality and conduct. The court “weighed them carefully and [gave] serious weight to them.” Ultimately, however, the court found that the aggravating circumstances “greatly outweigh” the mitigating circumstances.

The only statutory mitigating factor that the trial court found present was Frances’ age of twenty years at the time of the crime. Frances argues that the trial court did not properly detail its weighing process as to the age mitigating factor. The sentencing order does not state how much weight the court gave this factor. It simply states that the court “weighed [Frances’] relative youth together with other factors,” presumably the nonstatutory mitigating factors that the court found present and to which it gave serious weight. The trial court’s statement that it weighed and considered the age factor substantially comports with the requirements of Campbell v. State, 571 So.2d 415, 420 (Fla.1990).

Frances also contends that the trial court improperly rejected the statutory mitigating circumstances that the defendant acted under extreme duress or under the substantial domination of another individual and that the defendant has no significant history of prior criminal activity. The State contends that the statutory mitigating circumstances were waived by Frances and cites to a portion of the charge conference as evidence of this waiver. However, when the excerpt is read in context, it is clear that Frances did not waive the statutory mitigators but only the standard jury instructions on these mitigators. Instead of giving the jury individual instructions on each of the statutory mitigators and a general instruction on any other aspect of the defendant’s background or the circumstances of the crime, Frances requested that, the jury only receive the general instruction. Frances filed a motion in limine to preclude reference to nonenumerated miti-gators as “nonstatutory” mitigating factors, arguing that the delineation between statutory and nonstatutory mitigating factors tended to denigrate nonstatutory mit-igators as inferior. The transcript of the charge conference clearly indicates that Frances wanted a general instruction that the jury could consider any aspect of his character, background, or record that it found to be mitigating, in lieu of specific instructions listing the enumerated statutory mitigators and a general instruction on nonstatutory mitigators. Thus, we conclude that Frances did not waive the statutory mitigators and these claims are properly before this Court.

Ordinarily, it is within the trial court’s discretion to decide whether a mitigating circumstance is proven. Pardo v. State, 563 So.2d 77, 80 (Fla.1990); Scull v. State, 533 So.2d 1137, 1143 (Fla.1988); Teffeteller v. State, 439 So.2d 840, 846 (Fla.1983). Further, the relative weight given each mitigating factor is within the province of the sentencing court and will be sustained on appellate review if supported by sufficient, competent evidence in the record. Campbell, 571 So.2d at 420.

Frances argues that the trial court erred in rejecting the duress/domination mitigating factor in light of the “un-controverted evidence” that Elvis was the leader and that David “acted under duress and the substantial domination of Elvis.” The witnesses testified that Elvis had a quick temper, was aggressive, and got into fights often. In contrast, the witnesses described David as having a very calm temperament and noted that he often stepped in to break up Elvis’s fights. However, the witnesses did not testify that Elvis was the leader in the brothers’ relationship, that he dominated David, or that he forced David to participate in any of the criminal activities. Psychologist Dr. Mings testified that David has a pathologically dependent relationship with Elvis, that David sees Elvis as all he has emotionally, and the only thing unusual about David is the extent to which he is bonded to Elvis. Dr. Mings also testified that David went AWOL from the Army in part because he wanted to return to Elvis because Elvis was continuing to get into trouble. Moreover, even though David was not present when Elvis killed Monique Washington in Tallahassee, David agreed to help Elvis dispose of Washington’s body, stole several items from Washington’s apartment after the murder, pawned some of them, and drove with Jones to Atlanta in Washington’s car. This does not describe an individual who is acting under the domination of another.

Further, there was no evidence or testimony that Elvis was the primary motivator of the criminal episode that led to the murder of Mills and Charles. In fact, David admitted being actively involved in the murders: he jumped Mills when the brothers entered the apartment; he manually strangled Mills into unconsciousness; and he helped Elvis subdue and strangle Charles. David’s thumbprint and name appeared on the pawn ticket for the items stolen from Mills’ condominium. David was present in the vehicle stolen from Mills and initially claimed that he had bought the vehicle. David also initially placed all of the blame for the murders on Elvis. Only after the police spoke to Elvis and told David that their stories did not match did David admit his active participation in the murders. While David’s actions in these crimes are not consistent with his general personality traits and the behavior described by the witnesses, none of the evidence supports Frances’ claim that Elvis dominated him or that he acted under duress from Elvis. Thus, there is sufficient, competent evidence to support the trial court’s rejection of this mitigator.

Frances also argues that the trial court erred in rejecting the statutory miti-gator of no significant history of prior criminal activity. The trial court did not find this mitigator present because David helped Elvis dispose of Washington’s body and David was AWOL from the Army. The sentencing order finds these activities to be “significant” criminal activity that precludes this mitigating circumstance.

In Teffeteller, the trial court rejected the “no significant history of prior criminal activity” mitigating circumstance in light of the defendant’s previous forgery conviction and a prison escape. The defendant argued that this history did not rise to the level of “significant” prior criminal activity. In rejecting this claim, this Court stated that it could not “say that it was error for the trial court to find a forgery conviction and a prison escape to be a significant history of criminal activity.” 439 So.2d at 847.

The same can be said in the instant case. The record shows that David Frances was AWOL from the Army and was being sought by military authorities. He was also charged as an accessory after the fact in the murder of Monique Washington. He helped Elvis dispose of Washington’s body, did not report the crime to authorities, and took items of value from her house and pawned them. Thus, we conclude that the trial court did not abuse its discretion in determining that this constituted a significant history of prior criminal activity.

Finally, Frances contends that the death sentence is disproportionate in his case. In deciding whether a death sentence is proportionate, this Court must consider the totality of the circumstances and compare the case with other capital cases. See Sexton v. State, 775 So.2d 923, 935 (Fla.2000). This analysis “is not a comparison between the number of aggravating and mitigating circumstances.” Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Instead, this Court must look to the nature of and the weight given to the aggravating and mitigating circumstances. For purposes of proportionality review, this Court accepts the jury’s recommendation and the trial judge’s weighing of the aggravating and mitigating evidence. Bates v. State, 750 So.2d 6, 12 (Fla.1999).

Here, the jury recommended the death sentence for both murders, by a vote of nine to three in Mills’ murder and of ten to two in Charles’ murder. The trial court found two statutory aggravators for the murder of Mills: (1) the defendant was previously convicted of another capital felony (the contemporaneous conviction for the murder of the other victim) and (2) the murder was committed during the course of a robbery. The trial court also found the third aggravator of HAC applicable to Charles’ murder. The court found the statutory mitigating factor of age and a number of nonstatutory mitigators relating to Frances’ history, personality, and conduct and gave “serious weight” to them. The circumstances of the crime are the murder of two victims by manual and ligature strangulation in order to take a car and other items of value from them. This was not a “robbery gone bad.” Frances and his brother went to the victims’ house to take the ear and immediately “jumped” the victims and began strangling them. Moreover, rather than leave the victims unconscious from the strangling, Frances and his brother strangled them again to make sure they were dead.

Frances cites a number of cases in his proportionality argument. See Hawk v. State, 718 So.2d 159 (Fla.1998); Kramer v. State, 619 So.2d 274 (Fla.1993), DeAngelo v. State, 616 So.2d 440 (Fla.1993); Livingston v. State, 565 So.2d 1288 (Fla.1988); Fitzpatrick v. State, 527 So.2d 809 (Fla.1988). However, in several of these cases the murders occurred during a heated or ongoing dispute between the victim and the defendant. See Kramer, 619 So.2d at 278 (describing murder as “nothing more than a spontaneous fight, occurring for no discernible reason, between a disturbed alcoholic and a man who was legally drunk”); DeAngelo, 616 So.2d at 443 (noting “substantial evidence of an ongoing quarrel” between the defendant and the victim, who lived with defendant and his wife). Further, the defendants in all of the cases cited by Frances had mental health problems and some had substance abuse problems. See Hawk, 718 So.2d at 163 (noting that two aggravating circumstances were “arrayed against copious mitigation,” including statutory mitigator of impaired capacity, age of nineteen, brain damage from childhood meningitis, mental and emotional disturbance, loss of hearing, disadvantaged and abusive childhood, and lack of education and training); Kramer, 619 So.2d at 278 (noting presence of mitigating factors of alcoholism, mental stress, severe loss of emotional control and both statutory mental mitigators); DeAngelo, 616 So.2d at 443 (noting “significant mental mitigation,” including bilateral brain damage, hallucinations, delusional paranoid beliefs, and mood disturbance); Livingston, 565 So.2d at 1292 (noting mitigating factors of severe childhood abuse and neglect, youth and immaturity based on age of seventeen, marginal intellectual functioning, and extensive use of cocaine and marijuana); Fitzpatrick, 527 So.2d at 812 (noting that one expert described defendant as being “crazy as a loon,” that both statutory mental mitigators were present, and that defendant’s emotional age was between nine and twelve years old). Thus, the cases that Frances cites for his proportionality argument are factually distinguishable from this case, in which there was no evidence of a dispute or quarrel between the Frances brothers and either of the victims and, aside from the evidence of Frances’ “pathological dependence” on his brother Elvis, there was no evidence of mental mitigation.

In contrast, this Court has found death to be the appropriate penalty in other eases involving similar aggravating and mitigating circumstances. See, e.g., Conahan v. State, 844 So.2d 629 (Fla.2003) (finding death sentence proportionate where victim was strangled with a ligature and trial court found three aggravators of committed during course of kidnapping, cold, calculated, and premeditated (CCP), and HAC and four nonstatutory mitigating factors relating to defendant’s relationships and character); Hauser v. State, 701 So.2d 329 (Fla.1997) (finding death sentence proportionate where the victim was strangled and the trial court found three aggravators of HAC, CCP, and pecuniary gain balanced against one statutory miti-gator of no significant history of prior criminal activity and four nonstatutory mitigators, including being under the influence of drugs or alcohol at the time of the murder and a long history of mental health problems); Mann v. State, 603 So.2d 1141 (Fla.1992) (upholding death sentence for murder where the trial court found the aggravating circumstances of prior violent felony, murder during the commission of a felony, and HAG and several nonstatutory mitigating circumstances, including remorse).

The circumstances of these murders clearly demonstrate that the sentences of death in this case are proportionate to other murder cases involving multiple strangulation victims.

Ring Claims

Frances contends that Florida’s capital sentencing statute is facially unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because the judge rather than the jury-makes the findings of fact necessary to impose the death sentence. Frances filed a pretrial motion challenging the legality of Florida’s death penalty under Ring because the judge rather than the jury imposes sentence and jury unanimity is not required as to the sentence recommendation. He also claimed that Florida’s standard jury instructions minimize the role of the jury.

However, in over fifty cases since Ring’s release, this Court has rejected similar Ring claims. See Marshall v. Crosby, 911 So.2d 1129, 1134 n. 5 (Fla.2005), cert. denied, — U.S. -, 126 S.Ct. 2059, 164 L.Ed.2d 807 (2006). As the Court’s plurality opinion in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), noted, “the United States Supreme Court repeatedly has reviewed and upheld Florida’s capital sentencing statute over the past quarter of a century.” Id. at 695 & n. 4 (listing as examples Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)); see also King v. Moore, 831 So.2d 143 (Fla.2002) (denying relief under Ring).

Frances’ claim is without merit. Ring did not alter the express exemption in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that prior convictions are exempt from the Sixth Amendment requirements announced in the cases. Id. at 490, 120 S.Ct. 2348. This Court has repeatedly relied on the presence of the prior violent felony aggravating circumstance in denying Ring claims. See, e.g., Smith v. State, 866 So.2d 51, 68 (Fla.2004) (denying relief on Ring claim and “specifically not[ing] that one of the aggravating factors present in this matter is a prior violent felony conviction”); Davis v. State, 875 So.2d 359, 374 (Fla.2003) (“We have denied relief in direct appeals where there has been a prior violent felony aggravator.”); Johnston v. State, 863 So.2d 271, 286 (Fla.2003) (stating that the existence of a “prior violent felony conviction alone satisfies constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt”); Henry v. State, 862 So.2d 679, 687 (Fla.2003) (stating in postconviction case that this Court has previously rejected Ring claims “in cases involving the aggravating factor of a previous violent felony conviction”).

Additionally, this Court has rejected claims that Ring requires the aggravating circumstances to be individually found by a unanimous jury verdict. See Hodges v. State, 885 So.2d 338, 359 nn. 9-10 (Fla.2004); Blackwelder v. State, 851 So.2d 650, 654 (Fla.2003); Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003). The Court has also repeatedly rejected challenges to Florida’s standard jury instructions based on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). See Mansfield v. State, 911 So.2d 1160, 1180 (Fla.2005); Sochor v. State, 619 So.2d 285, 291 (Fla.1993); Turner v. Dugger, 614 So.2d 1075, 1079 (Fla.1992).

In the instant case, the trial court found the aggravating circumstances of a prior violent felony conviction, based on Frances’ contemporaneous convictions for the murder of the two victims, and the murder was committed during a robbery. In the guilt phase, a unanimous jury found Frances guilty beyond a reasonable doubt of two counts of premeditated murder and one count of robbery, thereby satisfying the mandates of the United States and Florida Constitutions. See Kimbrough v. State, 886 So.2d 965, 984 (Fla.2004); Doorbal v. State, 837 So.2d 940, 963 (Fla.2003). Thus, Frances is not entitled to relief on this claim.

Conclusion

For the reasons stated above, we find no merit to Frances’ claims relating to either the guilt or penalty phases of his trial. Accordingly, we affirm Frances’ convictions of first-degree murder and his sentences of death.

It is so ordered.

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

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

      . Jones was serving a sentence for third-degree murder based on her role in the murder of Monique Washington.

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

      . The sentencing order notes the following nonstatutory mitigating circumstances: Frances had a kind and gentle nature as a child and teen; he has a clear sense of right and wrong; he participated as a team player in sports; he exhibited good demeanor as a model inmate; he developed a pathologically dependent relationship with Elvis from an early age which resulted in him being pulled into Elvis's lifestyle; he is polite, quiet, and reserved; he was abandoned by his mother shortly after birth and was raised in poverty by his grandmother in a small home in the Virgin Islands; and he lacked a positive male role model.

      . In Apprendi, the Supreme Court held that “fojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added).


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Betty Jean WALTER, Appellee.
    No. 2D06-2832.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2007.
    Rehearing Denied Jan. 3, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    A.R. Mander, III, of Greenfelder, Man-der, Murphy, Dwyer & Morris, Dade City, for Appellee.
   ALTENBERND, Judge.

The State appeals the trial court’s order granting Betty Jean Walter’s motion to suppress evidence in its case against her for fraudulent use of personal identification forgery of bank bills, checks, drafts or promissory notes; and grand theft. We reverse because the trial court erred in finding that Ms. Walter’s statements were rendered involuntary by a detective’s statements during an initial interview.

Beginning in the summer of 2002, Ms. Walter was employed by a wireless telephone company as a salesperson in a retail store. When a customer purchased wireless service, Ms. Walter would give the customer a form on which the customer would provide personal information. Ms. Walter would verify the customer’s information, provide them with a cellular phone, and activate their service. The store manager, the employee, and the customer would each keep a copy of the customer’s personal information. Ms. Walter received a $10 commission for each contract.

When Ms. Walter was unavailable to cover her shift, she arranged for other people who were not employed by the company to cover for her. Ms. Walter would write and sign the contract for the applications, and the nonemployees would use those contracts and her employee identification number to activate the service.

In 2004, a detective contacted Ms. Walter several times over the telephone during an investigation of identity theft. Apparently, personal information from customer forms used to establish wireless service had been misappropriated to establish false accounts, all of which used Ms. Walter’s street address as the customer’s street address. On April 7, 2004, the detective conducted a noncustodial interview with Ms. Walter in her home. The detective wore plain clothes. A friend of Ms. Walter also participated in the interview. Although the interview was recorded, the tape was stopped and restarted with no explanation.

During this interview, the detective told Ms. Walter that he was there to investigate her as a possible suspect in the fraudulent use of personal identification on eel-lular phone applications. He showed her an investigation packet assembled by her employer that documented the identity theft. He assured her that she would not be arrested that day and that she was free to terminate the interview at any point. The detective informed Ms. Walter, however, that any information she gave him would be turned over to the State Attorney. Showing her the stack of paper evidence, the detective stated:

I’ve got to be honest with you. I’ve got to be honest with you both. My job is to gather information. My job is to present what information I gather to the State Attorneys for prosecution. I’ve got to be honest with you, based on the evidence I have right now, I have enough to make the arrest.
I’ll be honest with you. I can tell you that. I told you that. If it comes down to it and you’re working with me, I told you I’ll work with you, but that’s why I want an interview first to get to the bottom of this.
My job — my job is to clear this case and, if there’s enough evidence for prosecution, then that’s what I have to do and that’s just business. I mean, there’s no hard feelings. That’s just my job. That’s what I get paid to do.

Ms. Walter’s friend told the detective that Ms. Walter was nervous because she thought she was being placed under arrest. The detective responded, “I told her I wasn’t going to arrest her. I have no reason to lie to you, Ms. Walter. I told you that on the phone.” The friend proceeded to explain more details about the cell phone operation and the people involved. When Ms. Walter admitted that she knew about the scam but did not know how it was set up, the detective again showed her the forty pages of forged contracts that used her address. The friend asked if that was all of the detective’s evidence. He replied:

I have enough right here. That’s what we call probable cause. I need probable cause to make an arrest. Based on this packet alone, I have probable cause to make an arrest, but, once again, you’ve cooperated with me, Ms. Walter, I’m not going to do that.
I want to talk to you. I’m trying to give you the benefit of the doubt. I’m not accusing anybody of anything. That’s why I’m trying to get to the bottom of it. Like I said, my job is to gather information and forward it to the State Attorneys for prosecution and, if an arrest is necessary, that’s what I have to do.
At this point in time, it’s only an investigation. That’s why I’m out here talking to you. Once again, having cooperated, you’re not under arrest. You’re giving this interview of your own free will and you’re free to terminate at any time. You understand that; correct? Yes, no, maybe?

The interview continued with Ms. Walter explaining more about how the fraudulent wireless service scheme worked and implicating several other people as the primary participants. True to his statements, at the conclusion of the interview the detective did not arrest Ms. Walter.

Ms. Walter’s next reported contact on the case occurred almost a year later. On March 25, 2005, after reviewing the information and tapes from the previous investigation, a different detective' conducted a follow-up interview of Ms. Walter in her home. The same friend that participated in the previous interview was again present. The detective wore plain clothes. The interview was taped. At the conclusion of this interview, the detective arrested her.

Ms. Walter filed a motion to suppress. The tape of the first interview was played during the suppression hearing. Without listening to the tape of the second interview, the trial court granted the motion to suppress the statements made at both interviews because it concluded the first detective had made coercive promises to Ms. Walter that the second detective did not withdraw. In concluding that the statements were involuntary, the trial court relied on Grasle v. State, 779 So.2d 334 (Fla. 2d DCA 2000), in which the officer, under the auspices of friendship, promised to protect the defendant from certain charges.

On a motion to suppress, a trial court’s ruling is a mixed question of law and fact. Seibert v. State, 923 So.2d 460, 468 (Fla.2006). The determination of what statements were made is a matter of historical fact subject to a presumption of correctness. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Whether the statements constitute coercion, however, is a matter of law reviewed de novo. See Connor v. State, 803 So.2d 598, 608 (FIa.2001).

When a defendant challenges the voluntariness of his or her confession, the State has the burden to establish by a preponderance of the evidence that the confession was freely and voluntarily given. See DeConingh v. State, 433 So.2d 501, 503 (Fla.1983). Generally, a confession is not regarded as freely and voluntarily given if it has been elicited by a direct or implied promise of leniency. See Johnson v. State, 696 So.2d 326, 329 (Fla.1997). Where there is an express quid pro quo, such as a promise of protection from prosecution for cooperation, the promise of leniency may render a confession or inculpatory statement involuntary. See Walker v. State, 771 So.2d 573, 575 (Fla. 1st DCA 2000). In Brewer v. State, 386 So.2d 232 (Fla.1980), the court concluded that the two officers’ actions were coercive because they “raised the spectre of the electric chair” and suggested the officers had the power to see that the defendant received leniency. Id. at 235.

A distinction exists, however, between improper police techniques that are “calculated to exert improper influence, to trick, or to delude the suspect as to his true position” and proper police statements of relevant facts. Thomas v. State, 456 So.2d 454, 458 (Fla.1984). A police officer can initially approach a suspect under the pretense of collecting information without that pretense rendering any admissions involuntary. See Lukehart v. State, 776 So.2d 906, 917-20 (Fla.2000). Voluntary statements that support an arrest do not “warrant a presumption of compulsion.” Brown v. State, 565 So.2d 304, 306 (Fla.1990), abrogated on other grounds by Jackson v. State, 648 So.2d 85, 88 (Fla.1994). Moreover, a statement is not rendered involuntary if the officers inform a suspect of realistic penalties, encourage the suspect to tell the truth, or tell the suspect that things would be easier if the suspect told the truth. Frazier v. State, 107 So.2d 16, 22 (Fla.1958); Nelson v. State, 688 So.2d 971, 974 (Fla. 4th DCA 1997).

To render a statement inadmissible, the threat or promise must constitute “outrageous behavior” that induces the confession and must also have a “causal nexus between the improper police conduct and the confession.” Nelson, 688 So.2d at 974; see also Fare v. Michael C., 442 U.S. 707, 727-28, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (stating that a mere indication by police that “a cooperative attitude would be to respondent’s benefit” was not sufficient to find the police coerced a waiver of Miranda rights). An officer agreeing to “make one’s cooperation known to prosecuting authorities and to the court does not render a confession involuntary.” Maqueira v. State, 588 So.2d 221, 223 (Fla.1991).

Here, the first detective’s statements did not establish an express quid pro quo promise that Ms. Walter would be protected from prosecution if she cooperated. The first detective did not threaten harsher punishment if Ms. Walter did not cooperate. Taken in isolation, the statement “having cooperated, you’re not under arrest” might arguably appear to be a promise of leniency as to an initial arrest. See Johnson, 696 So.2d at 330. In context, however, the statements do not misstate the importance of Ms. Walter’s confession or constitute “outrageous behavior” inducing her cooperation. Rather, the detective clearly informed Ms. Walter that he was conducting an investigation and that he must forward all information to the State Attorney. He twice stated that he had enough evidence to make an arrest and that if there was enough evidence for prosecution, an arrest might be necessary. Unlike the cases where the police made misleading promises of protection from prosecution, in this situation the detective informed Ms. Walter that she was a suspect in an investigation and that he would turn over any evidence he gathered. Finally, it should not be overlooked that the promise the initial detective made that he was just gathering information and was not there to arrest Ms. Walter was true. He did not arrest her. She was not arrested until almost a year later by another detective at a time when law enforcement decided that the case should be prosecuted. The detective did not use pressure, threats, or promises to coerce Ms. Walter’s statements. Therefore, she made voluntary admissions during a noncustodial interview that should not have been suppressed.

The order of suppression is reversed and the case is remanded for further proceedings. This opinion does not preclude Ms. Walter from challenging the circumstances of the second interview, which were not fully developed during the suppression hearing.

Reversed and remanded.

WALLACE and LaROSE, JJ., concur.

      . See § 817.568(2)(a), Fla. Stat. (2002).

      . See § 831.07, Fla. Stat. (2002).

        .See § 812.014(2)(c), Fla. Stat. (2002).

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


author: PER CURIAM.

text:
    David A. DENNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3972.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 31, 2007.
    David A. Denney, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Logan v. State, 846 So.2d 472 (Fla.2003).

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    David A. DENNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4089.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 31, 2007.
    David A. Denney, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Logan v. State, 846 So.2d 472 (Fla.2003).

WEBSTER, DAVIS, and LEWIS, JJ., concur.


author: COPE, J.

text:
    Stan E. SCRUGGS, Willie Alexander Scruggs, and Alex Dane Scruggs, Appellants, v. D.W. SUTTON, Appellee.
    No. 3D07-845.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.

      Segredo & Weisz and Samuel C. Cozzo, for appellants.
    Greenman & Manz and Franklin D. Greenman, Marathon, for appellee.
    Before COPE and SALTER, JJ., and FLETCHER, Senior Judge.
   COPE, J.

Stan E. Scruggs, Willie Alexander Scruggs, and Alex Dane Scruggs (“the Scruggs”) appeal a judgment awarding attorney’s fees to D.W. Sutton (“Sutton”). We conclude that the judgment must be reversed.

The Scruggs filed a second amended complaint for eviction and ejectment against Sutton. For the eviction count, the Scruggs requested attorney’s fees under section 83.48, Florida Statutes (2004). Sutton answered the second amended complaint and filed a three-count counterclaim seeking to quiet title and impose a resulting trust or a constructive trust. Sutton only sought attorney’s fees for count II of his counterclaim, seeking a resulting trust. After a non-jury trial, the trial court entered final judgment establishing a resulting or constructive trust in Sutton’s favor. The judgment was appealed and affirmed by this Court. See Scruggs v. Sutton, 932 So.2d 206 (Fla. 3d DCA 2006) (table).

Sutton filed his motion for attorney’s fees asserting that he was the prevailing party under section 83.48. The Scruggs opposed the motion because Sutton never pled a claim for attorney’s fees except in the prayer for relief in count II of his counterclaim seeking a resulting trust. The trial court granted Sutton’s motion for attorney’s fees finding that attorney’s fees are defined as costs in section 83.48 and a prevailing party under the statute is entitled to costs without pleading entitlement thereto. The Scruggs have appealed.

“A party seeking attorney’s fees pursuant to statute or contract must plead entitlement to such fees.” Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991). Sutton concedes that he did not plead entitlement to attorney’s fees in his answer and affirmative defenses in response to the Scruggs’ complaint. Sutton argued, however, that he was the prevailing party because he successfully defended the eviction action, and that, as the prevailing party, he was entitled to costs. He pointed out that under section 83.48, Florida Statutes, “the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorney’s fees, from the nonprevailing party.” The trial court accepted this argument, ruling that “[t]he language of the statute includes attorneys fees as costs, not as a separate entitlement. Therefore, if the Court exercises its discretion to award costs to the prevailing party under a statute that treats attorneys fees as costs, that award includes attorneys fees as a part of the costs awarded.” (Citation omitted).

We respectfully disagree with that analysis. The Stockman decision mandates that an attorney’s fee claim be pled. 573 So.2d at 837-38. The Stockman court stated that it was recognizing one exception to that rule, and the exception has no application to the case now before us. Id. As we interpret Stockman, the claim must be pled, even if the applicable statute treats attorney’s fees as costs.

The trial court also pointed out that Sutton requested attorney’s fees in count II of his counterclaim, thus putting the Scruggs on notice of Sutton’s request for attorney’s fees. That request, however, was contained in the counterclaim seeking a resulting trust. Attorney’s fees are not recoverable in an action for a resulting trust. Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA 1981); See also Price v. Tyler, 890 So.2d 246 (Fla.2004) (absent an independent statutory or contractual basis, attorney’s fees are not recoverable in declaratory relief or quiet title actions). The fact that Sutton requested fees in his count for a resulting trust is insufficient to support an award of fees under section 83.48 for defeating the eviction action.

For the stated reasons, we reverse attorney’s fees judgment and remand with directions to enter judgment for the Scruggs on the motion for attorney’s fees.


text:
    Craig DAVIDSON, Appellant, v. Abel RAMIREZ, Appellee.
    No. 3D07-79.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.
    Welbaum, Guernsey, Hingston, Green-leaf, Gregory, Black, Rune & Thomas, L.L.P. and Solimar Santos, Miami, and Robert J. Black, Coral Gables, for appellant.
    Levey, Airan, Shevin, Roen, Kelso, Corona, & Herrera, LLP and John R. Kelso, Miami, for appellee.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   COPE, J.

Craig Davidson appeals a final order of the trial court awarding attorney’s fees to Abel Ramirez under subsection 57.105(5), Florida Statutes (2005). We conclude that the motion should have been denied for noncompliance with the notice provision of the statute. See id. § 57.105(4).

Plaintiff-appellant Davidson sued defendant-appellee Ramirez alleging abuse of process, fraud, civil conspiracy, and malicious prosecution. The defendant responded to each pleading with a motion to dismiss. The various complaints and amended complaints were dismissed with leave to amend. After dismissal of the Third Amended Complaint, the plaintiff decided not to attempt any further amendment and the dismissal became final.

The defendant filed a motion for attorney’s fees pursuant to subsection 57.105(5), Florida Statutes (2005), which, in substance, provides for an award of attorney’s fees where a claim or defense was frivolous. The plaintiff opposed the motion, arguing that the defendant had failed to comply with the notice provision set forth in subsection 57.105(4), Florida Statutes (2005). The trial court acknowledged that this objection was meritorious, but decided that the court could award such attorney’s fees on its own initiative. The court awarded attorney’s fees to the defendant, and the plaintiff has appealed.

We conclude that the trial court’s ruling was in error. The purpose of subsection (4) is to give a pleader a last clear chance to withdraw a frivolous claim. Burgos v. Burgos, 948 So.2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So.2d 40 (Fla. 3d DCA 2005). Subsection 57.105(4) states:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

(Emphasis added).

“Subsection (4) does more than require the giving of notice. It creates an opportunity to avoid the sanction of attorney’s fees by creating a safe period for withdrawal or amendment of meritless allegations and claims.” Walker v. Cash Register Auto Ins. of Leon County, Inc., 946 So.2d 66, 71 (Fla. 1st DCA 2006). “Having the parties police themselves, instead of requiring judicial intervention on section 57.105 issues, promotes judicial economy and minimizes litigation costs.” Vanderpol v. Frengut, 932 So.2d 1251, 1253 (Fla. 4th DCA 2006) (quoting Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004)).

In this case, as in O’Daniel, the defendant waited until the case was over to file the attorney’s fee motion. 916 So.2d at 41. In O’Daniel, the motion for attorney’s fees was stricken for noncompliance with subsection 57.105(4).

The trial court correctly recognized that the defendant had failed to comply with the notice requirement. However, the court noted that subsection 57.105(1) allows the court to impose attorney’s fees on the court’s own initiative. In essence the court adopted the defendant’s motion as the court’s own motion and awarded attorney’s fees.

We conclude that this procedure is contrary to the intent of the statute. The legislative intent is to require the twenty-one-day notice whenever a subsection 57.105(5) motion is filed by a party. It would frustrate the legislative intent to avoid the twenty-one-day notice by allowing the court to adopt the party-filed motion as the court’s own. Since this was a party-filed motion, the subsection 57.105(4) notice period had to be observed.

Because the defendant failed to comply with the requirements of subsection 57.105(4), Florida Statutes (2005), the trial court erred in awarding attorney’s fees under subsection 57.105(5). We therefore reverse the judgment and remand with the directions to enter judgment for the plaintiff on the attorney’s fee motion.

Reversed and remanded.


author: SUAREZ, J. SHEPHERD, J.,

text:
    Raul PINTADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-561.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2007.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

The defendant appeals the order revoking his probation. We affirm.

The defendant contends that the trial court violated his due process rights by excluding defense witnesses whom he listed on the day of the probation violation hearing. The State asserts that the trial court properly excluded the witnesses after conducting a Richardson hearing, and that any error was harmless beyond a reasonable doubt.

The defendant was serving probation for lewd and lascivious acts on a child when the State alleged that he violated probation by, among other things, stabbing his girlfriend and driving a stolen truck. The case had been pending for two years and had been continued at least two times at the request of the defendant. The defense provided a list of witnesses on the day of the probation violation hearing. The State objected and the trial court conducted a Richardson hearing. The defense proffered that the witnesses would impeach the victim’s deposition on matters such as her prior drug use, her children, and history of hitting the defendant, and would testify about the victim’s reputation for truthfulness in the community. The State objected on the grounds that these witnesses included the defendant’s relatives who could have been listed during the two years the case was pending. The State claimed that it was prejudiced because it had not received a copy of the victim’s deposition which was allegedly going to be challenged, and was unable to conduct background investigations on the new witnesses or otherwise refute their testimony. The trial court found that a discovery violation occurred, that it was substantial and not trivial, and excluded the witnesses. The court revoked the defendant’s probation and sentenced him to fifteen years imprisonment with credit for time served. The defendant seeks a new probation violation hearing. We review the trial court’s decision to exclude evidence for abuse of discretion. Alexander v. State, 931 So.2d 946, 949 (Fla. 4th DCA 2006).

A defendant in a criminal case has a right under the Sixth Amendment and the due process clause to present witnesses in defense of a charge. Delgado v. State, 890 So.2d 1269, 1271 (Fla. 5th DCA 2005); see also Cuciak v. State, 410 So.2d 916, 918 (Fla.1982) (“Fair play and justice require that a defendant in a probation revocation hearing be entitled to reasonable discovery pursuant to rule 3.220.”). Under Richardson v. State, 246 So.2d 771 (Fla.1971), if there is a discovery violation, the trial judge must first decide whether the violation prevented the aggrieved party from properly preparing for trial. If a court determines that a discovery violation has indeed occurred, “it must then fashion the appropriate sanction to be invoked.” Delgado, 890 So.2d at 1271. “[Ejxcluding a defense witness for failure of timely disclosure is a ‘severe sanction,’ that ‘should be a last resort reserved for extreme or aggravated circumstances.’” Delgado, 890 So.2d at 1271 (quoting Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998)).

The trial court conducted a Richardson hearing after the State objected to the defendant’s new witnesses. It appears that the trial judge immediately concluded that a discovery violation occurred. The defense proffered that the witnesses would testify regarding the victim’s specific bad acts regarding her prior drug use, history of domestic violence with the defendant, and issues regarding her children. Defense counsel explained that the witnesses’ testimony would contradict the victim’s deposition statements denying these bad acts, and therefore demonstrate that she lies. Character testimony regarding a victim’s reputation for truthfulness is admissible. §§ 90.404(1)(b), 90.609, Fla. Stat. (2006). A witness may also be impeached with statements that are inconsistent with the witness’ trial testimony. § 90.608, Fla. Stat. (2006). Here, the defense sought to call witnesses to impeach the victim on collateral matters such as drug use. The trial court did not abuse its discretion by prohibiting this improper impeachment. Ruland v. State, 614 So.2d 537 (Fla. 3d DCA 1993) (trial court did not err by excluding evidence of victim’s drug use and possession of drug paraphernalia; the evidence was not offered to impeach the victim, but attacked the victim’s character by suggesting that the victim was a drug dealer or user).

Nor did the trial court abuse its discretion by excluding evidence that the victim previously hit the defendant. Such evidence is not relevant and would not be admissible. The issue at the hearing was whether the defendant had stabbed his girlfriend or she injured herself by falling on the knife. Whether or not she had hit him on prior occasions was collateral and not relevant to the issue. This testimony was being introduced only to show bad character and would not be admissible as, generally, evidence regarding a victim’s character is inadmissible unless relevant to the issue being tried. § 90.404(1), Fla. Stat. (2006). However, paragraph 90.404(l)(b) does provide an exception for evidence of a pertinent character trait of the victim. “Under this exception, a defendant may use character evidence to show that the victim of a crime was the aggressor in support of his defense of self-defense.” Grace v. State, 832 So.2d 224, 226 (Fla. 2d DCA 2002). “While reputation evidence may be offered to corroborate the defendant’s testimony by showing the victim’s propensity toward violence, specific act evidence is only admissible to prove the reasonableness of the defendant’s apprehension.” Grace, 832 So.2d at 226. Again, the trial court did not abuse its discretion by finding evidence regarding the victim’s reputation for violence, and specific acts of violence, to be inadmissible. The defendant did not allege that he stabbed the victim in self defense. Instead, he claimed that he did not stab her at all-that she fell on her own knife and the injury was accidentally inflicted. Furthermore, it is clear from defense counsel’s proffer that the defense did not intend to use this information for a permissible purpose. Counsel sought to attack the victim’s character by presenting evidence that she lied in her deposition when she testified that she had never hit the defendant in the past. The trial court did not abuse its discretion by excluding this testimony.

Next, the court determined that testimony regarding the victim’s reputation in the community for truthfulness was admissible and relevant. The court should have attempted to fashion another, less severe, sanction such as continuing the hearing for the State to obtain the needed information, before deciding to exclude the witnesses. Comer v. State, 730 So.2d 769, 774 (Fla. 1st DCA 1999) (reversing where the trial court precluded a late-listed defense witness from testifying without conducting a Richardson hearing or considering less severe sanctions). However, we conclude that the error was harmless beyond a reasonable doubt because there is no “reasonable possibility that the lack of the evidence complained of might have contributed to the conviction.... ” Comer, 730 So.2d at 775.

Affirmed.

ROTHENBERG, J., concurs.

SHEPHERD, J.,

concurring in part and dissenting in part.

I concur in all respects with the majority’s well reasoned opinion except for the harmless error conclusion drawn with respect to the proposed testimony of the victim’s relatives concerning her reputation for truthfulness.

As the majority correctly states, character testimony concerning a victim’s reputation for truthfulness is admissible in a criminal case. §§ 90.404(1)(b), 90.609, Fla. Stat. (2006); see also Reyes v. State, 580 So.2d 309, 310 n. 4 (Fla. 3d DCA 1991) (noting that Section 90.609(2), Florida Statutes, permits only the admission of “evidence of ‘character relating to truthfulness’ by testimony ‘in the form of reputation’ ”). In this case, Defendant was violated on attempted murder and possession of a weapon charges. The victim’s testimony implicated Defendant. Defendant’s defense was self-defense. There were no other witnesses to the incident and the physical evidence did not refute either story. Whether the charges were sustainable was highly dependent upon the testimony of the victim and Defendant. In this “he said, she said,” there existed evidence to discredit both witnesses. Only the impeachment evidence discrediting defendant’s version of the events was presented. The testimony of the victim unfolded nearly unscathed. Defendant necessarily was violated, in substantial part, on this testimony.

Because the improper exclusion of this testimony deprived Defendant of his sixth and fourteenth amendment rights to provide witnesses on his own behalf, we are required to evaluate the exclusion according to the harmless error constitutional-error rule articulated by the United States Supreme Court, “whether there is a reasonable probability that the lack of evidence complained of might have contributed to the verdict or, in other words, was the error harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (emphasis added); see also Gurganus v. State, 451 So.2d 817, 823 (Fla.1984) (accord). The State argues that the implosion of defendant in his own testimony was sufficient to obtain a judicial bypass on this appeal. I disagree. The unimpeached testimony of the victim was essential to the adjudication. It may be, and we may even believe, that on a re-hearing below the same decision should or will obtain after the relatives’ impeachment is heard. However, such a belief is insufficient to sponsor a conclusion by us that the lack of evidence did “not contribute to the verdict.” Defendant was entitled to his witnesses. Cf. State v. Randol, 947 So.2d 609 (Fla. 3d DCA 2007) (reversing order excluding state evidence on the basis of discovery violations where evidence could have been sooner discovered).

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Defendant testified that he was first stabbed by the victim and pushed her out of fear, after which she fell on her own knife. According to the defendant, he never possessed the knife. If believed, Defendant’s version of events would negate both charges.

      . As properly conceded by defense counsel at oral argument, Defendant’s credibility after cross-examination "was shot."


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    Randy DALZELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2144.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.
    Rehearing Denied Dec. 21, 2007.
    Randy Dalzell, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm the trial court’s order dismissing Dalzell’s petition for writ of habe-as corpus. The petition raised the identical issue that was the subject of Dalzell’s prior Florida Rule of Criminal Procedure 3.850 motion. The trial court denied the prior motion on its merits and this court affirmed. Dalzell v. State, 918 So.2d 308 (Fla. 5th DCA 2005). A habeas petition is not a vehicle for obtaining additional appeals on issues that were raised and considered in a prior proceeding. Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

AFFIRMED.

SAWAYA, TORPY and EVANDER, JJ., concur.


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    Patricia Judy CONEFF, a/k/a Judy Cotter Coneff, Appellant, v. Ashley CONEFF, as Personal Representative of the Estate of Anthony B. Coneff, Appellee.
    Nos. 4D06-4741, 4D07-890.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Rehearing Denied Jan. 18, 2008.
    Mary Alice Gwynn of Mary Alice Gwynn, P.A., Delray Beach, for appellant.
    R. Lee McElroy, IV of Downey & Dow-ney, P.A., Palm Beach Gardens, for appel-lee.
   PER CURIAM.

We affirm, in all respects, but remand for correction of an apparent scrivener’s error in calculating the elective share. The sum used in calculating one-half of the $885,000 sales price of the home was $447,500, where the correct amount is $442,500.

STONE, MAY, JJ., and TUTER, JACK BEN, JR., Associate Judge, concur.


text:
    Dexter GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3770.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Rehearing Denied Jan. 17, 2008.

      Dexter Gunn, Carrabelle, pro se.
    No appearance required for appellee.
   PER CURIAM.

Dexter Gunn appeals an order denying his rule 3.800(a) motion to correct illegal sentence. The trial court denied the motion based on the state’s response. The state argued for denial both because the motion was successive to prior motions raising the same claim of discrepancy between the sentencing judge’s oral pronouncement and his written sentence, and on the merits.

We disagree with the state’s first reason; there is no indication that the claim ever was considered on the merits before. Until the supreme court issued Williams v. State, 957 So.2d 600 (Fla.2007), this court took the position that such a ground was not cognizable in a rule 3.800(a) motion. See Kelly v. State, 739 So.2d 1164 (Fla. 5th DCA 1999) (holding that consideration under rule 3.800(a) was not barred by law of the case because motion was first denied on procedural grounds).

However, upon consideration of the entire transcript of the sentencing hearing, as well as the trial court’s separate written habitualization order, which was entered on the same date as the sentencing hearing, we agree that, on the merits, Gunn’s claim either is refuted by the record, or at best is ambiguous; certainly, it is not one that is clear on the face of the record. “When the alleged illegality of the sentence is not apparent on the face of the record, a rule 3.850 motion is the only available remedy.” Renaud v. State, 926 So.2d 1241, 1242 (Fla.2006).

Affirmed.

STONE, FARMER and HAZOURI, JJ., concur.


text:
    Ramad TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3207.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.

      Ramad Terry, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant filed a rule 3.850 motion seeking postconviction relief. The trial judge denied the motion without ordering a response from the state or attaching records to refute the claims. The court also did not state any reason for the denial in its order. “When a trial court denies a rule 3.850 motion without an evidentiary hearing, it must ‘either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.’” Smith v. State, 956 So.2d 1266, 1267 (Fla. 4th DCA 2007) (quoting Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993)). As the trial court’s order in this case does neither, we summarily reverse and remand the trial court’s order denying appellant’s rule 3.850 motion for the attachment of records that conclusively refute the allegations of the motion or for an evidentiary hearing. See Fla. R.Crim. P. 3.850(d); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007); Hayes v. State, 958 So.2d 571 (Fla. 4th DCA 2007).

WARNER, STEVENSON and HAZOURI, JJ., concur.


author: ORFINGER, J.

text:
    Kelly WALLACE, as Personal Representative, etc., Appellant, v. Ed DEAN, Sheriff of Marion County, Appellee.
    No. 5D06-4289.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Dec. 21, 2007.

      Sharon H. Proctor, Lake Saint Louis, MO, and Mark A. Avera and James P. Gainey, of Avera & Smith, LLP, Gaines-ville, for Appellant.
    Bruce R. Bogan, of Hilyard, Bogan & Palmer, P.A., Orlando, for Appellee.
   ORFINGER, J.

Kelly Wallace (“Ms.Wallace”), as personal representative of the estate of her mother, Brenda Wallace (“decedent”), appeals the trial court’s dismissal of her wrongful death action against Ed Dean, in his official capacity as Sheriff of Marion County. Ms. Wallace contends that the trial court erroneously concluded that her complaint failed to state a cause of action and that the Sheriff was entitled to sovereign immunity. As explained below, we affirm.

In her complaint, Ms. Wallace alleged that on the day of the incident, she placed numerous phone calls to the decedent, all of which went unanswered. Because she lived out of state and could not personally check on her, Ms. Wallace called Marjorie Ginder, one of decedent’s neighbors, and asked her to check on the decedent. Ms. Ginder repeatedly knocked on the doors and windows of the decedent’s home, and when she received no response, called 911. Two Marion County deputy sheriffs responded to the 911 call. One of the deputies entered the decedent’s home through an unlocked window and let the other deputy, Ms. Ginder, and Ms. Ginder’s father into the home. They discovered the decedent on the couch, breathing but unresponsive, even when the officers called her name loudly and shook one of her legs. Ms. Ginder’s father suggested that the decedent might be in a diabetic coma, but, according to the complaint, the deputies told him that “one does not snore if in a diabetic coma.” Although Ms. Ginder suggested that they call an ambulance, the deputies did not call for medical assistance. Instead, the deputies suggested that Ms. Ginder leave the decedent’s door unlocked and return to check on her later. After the deputies left, Ms. Ginder called Ms. Wallace and told her that the decedent was sleeping. The next morning, Ms. Gin-der again found the decedent unresponsive, and, once more called 911. Emergency medical personnel responded to the call and transported the decedent to the hospital where she died several days later, without regaining consciousness.

Ms. Wallace subsequently filed suit against Sheriff Dean for the wrongful death of the decedent. The complaint alleged that the decedent died as a direct and proximate result of the negligent actions of the responding deputies. After several amendments, the trial court dismissed Ms. Wallace’s complaint with prejudice. The court concluded that based on the allegations of the complaint, Sheriff Dean owed no common law duty of care to the decedent; that law enforcement officers responding to well-being checks are performing discretionary law enforcement functions; and that no “special relationship” existed between the decedent and the Marion County deputies at the time the deputies were at the decedent’s home. The trial court also concluded that the claim was barred by the doctrine of sovereign immunity. This appeal followed.

Ms. Wallace contends that the Sheriff did owe a common law duty of reasonable care to the decedent. According to Ms. Wallace, the duty arose because (1) once the deputies undertook to check on the well-being of the decedent, they had a duty to do so with reasonable care; (2) the deputies’ negligent actions increased the risk of harm to the decedent; and (3) the decedent’s neighbor relied on the deputies’ actions and statements and, as a consequence, failed to call an ambulance. Further, Ms. Wallace argues that the claim is not barred by sovereign immunity.

“[T]he standard of review of an order dismissing a complaint with prejudice is de novo.” Palumbo v. Moore, 777 So.2d 1177, 1178 (Fla. 5th DCA 2001). We confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pled allegations. Huet v. Mike Shad Ford, Inc., 915 So.2d 723, 725 (Fla. 5th DCA 2005).

“[T]here can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances.” Henderson v. Bowden, 737 So.2d 532 (Fla.1999). “[0]ur courts have consistently required plaintiffs suing governmental entities for negligence to allege and prove that the defendant breached a common-law or statutory tort duty owed to the plaintiff individually and not a tort duty owed to the public generally.” Holodak v. Lockwood, 726 So.2d 815, 816 (Fla. 4th DCA 1999). Here, Ms. Wallace does not contend that there was any statutory duty owed to the decedent. Consequently, the threshold issue for us to determine is whether the deputies had a common law duty to act with care toward the decedent in performing the well-being check.

Generally, enforcement of the law and protection of public safety are discretionary duties, for which there is no common law duty of care owed to any particular individual. City of Daytona Beach v. Palmer, 469 So.2d 121, 122-23 (Fla.1985); Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 917-21 (Fla.1985). One exception to the general no-duty rule exists when a special relationship exists between a government actor and an individual. Everton v. Willard, 468 So.2d 936, 938 (Fla.1985); see also City of Ocala v. Graham, 864 So.2d 473, 476-77 (Fla. 5th DCA 2004) (holding that “sovereign immunity may disappear and liability may be imposed when a special relationship exists between the government actor and the tort victim”); Pierre v. Jenne, 795 So.2d 1062, 1063 (Fla. 4th DCA 2001) (“Liability may be imposed only where a special relationship exists between the government actor and the tort victim.”). To establish a special relationship between a government actor and an injured party, the injured party must plead and prove:

1) an express promise or assurance of assistance by the government actor;
2) justifiable reliance on the promise or assurance of assistance by the injured party, or one closely associated with the injured party; and,
3)harm suffered because of the reliance upon the express promise or assurance of assistance.

Graham, 864 So.2d at 477 (quoting Pierre, 795 So.2d at 1064).

Other situations exist that can give rise to government liability. For example, in Pollock v. Florida Department of Highway Patrol, 882 So.2d 928, 935-36 (Fla.2004), the Florida Supreme Court observed that:

[A] special tort duty does arise when law enforcement officers become directly involved in circumstances which place people within a single ‘zone of risk’ by creating or permitting dangers to exist, by taking persons into police custody, detaining them, or otherwise subjecting them to danger. The premise underlying this theory is that a police officers decision to assume control over a particular situation or individual or group of individuals is accompanied by a corresponding duty to exercise reasonable care....
Florida courts have also determined that a special duty is established when a police officer makes a direct representation to a plaintiff, or one so closely involved with the plaintiff that their interests cannot be separated, that he or she will take a specified law enforcement action.

(Internal citations omitted; emphasis added).

Similarly, in Henderson, the court recognized that “ ‘[ujnder our case law, our courts have found liability or entertained suits after law enforcement officers took persons into custody, otherwise detained them, deprived them of liberty or placed them in danger.’” 737 So.2d at 536 (quoting Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989)). The court explained that:

If there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse. ... [I]f [a law enforcement officer] does attempt to aid [a person in peril], and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility.

737 So.2d at 537 (citing W. Page Keeton, et al., Prosser & Keeton on the Law of Torts, § 53, at 378 (5th ed.1984)) (emphasis added).

Florida courts have not directly addressed whether responding to a 911 call to conduct a well-being check constitutes “an express promise or assurance of assistance.” However, we glean from the authorities that, as a general proposition, no tort liability exists for discretionary law enforcement duties unless the government actor places the injured party in a “zone of risk,” assumes control over a situation to the exclusion of others, or makes representations to the injured party (or their agent) that specific law enforcement action will be taken, thereby creating the special relationship described in Everton and Graham. In this case, the essence of Ms. Wallace’s argument is that if law enforcement officers undertake a well-being check, and, during the course of that check, they discover a person wholly dependent upon them for emergency aid, they are then under an affirmative duty to render that aid. We disagree.

Assuming the facts pled in the second amended complaint as true, the deputies took no affirmative action which contributed to, increased or changed the risk to the decedent, which otherwise already existed. See Rose v. County of Plumas, 152 Cal.App.3d 999, 199 Cal.Rptr. 842 (1984). In no sense can it be said that the officers placed the decedent within a “zone of risk,” nor can it be said that the deputies assumed control over this situation causing anyone, including Ms. Ginder, to detrimentally rely on the deputies’ representations. No express or implied promises were made by the deputies indicating that they would render aid, nor did they prohibit Ms. Ginder, her father, or Ms. Wallace from calling an ambulance. Pollock and Henderson make clear that the deputies’ obligation was simply not to increase the risk of harm to the decedent or cause her, or someone acting on her behalf, to rely on their representations to her detriment.

Public policy supports this conclusion. If law enforcement agencies are found to have liability under these circumstances, they may stop making well-being checks, thereby avoiding any liability. If they do respond, in order to avoid liability, they likely would direct that everyone be transported to the hospital, further taxing local hospitals and emergency services. Both outcomes harm the public. Though some of the decisions made by law enforcement in the course of making well-being checks may be wrong, overwhelmingly, the results of such checks are helpful and should be continued.

While the actions of the deputies, if they occurred as alleged, may have demonstrated poor judgment or were contrary to some moral obligation, their failure to act created no legal duty and cannot be the basis of a negligence action. Because we find that the Sheriff owed no duty to the decedent, we need not discuss the issue of sovereign immunity. The order of dismissal is affirmed.

AFFIRMED.

GRIFFIN and EVANDER, JJ., concur.

      . Marjorie Ginder is referred in the parties’ briefs as both "Ms. Ginder” and "Ms. Gim-der.”

      . For the purpose of this opinion, we assume, without deciding, that Mrs. Ginder was so closely involved with the decedent that their interests cannot be separated and that she was acting on the decedent’s behalf. See Pollock, 882 So.2d at 936.

      . Other courts have also rejected the argument that a duty to render aid to another who is helpless exists when law enforcement officials are on the scene but have not undertaken a rescue. See Rose, 152 Cal.App.3d 999, 199 Cal.Rptr. 842 (rejecting claim that plaintiff, injured in barroom brawl, was owed affirmative duty to arrange appropriate emergency care by police officers who investigated incident); Figueroa ex rel. Figueroa v. New York City Transit Auth., 152 Misc.2d 948, 579 N.Y.S.2d 831 (N.Y.Sup.Ct.1991) (determining that transit officer did not take charge of mother or her infant after questioning mother who was standing on elevated road bed near tracks; mother told officer she wanted to go home and left station; officer departed subway station and mother was later killed and infant injured when mother returned to station and stood on tracks in face of oncoming train); see also Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647 (Iowa 2000) (finding that fraternity brothers of severely intoxicated pledge did not take charge of pledge when they took him to room, placed him on bed and left him after one-half hour).