author: PER CURIAM.

text:
    Robert CONSALVO, Appellant, v. STATE of Florida, Appellee.
    No. SC04-520.
    Supreme Court of Florida.
    May 18, 2006.
    Ira W. Still, III, Coral Springs, Florida for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee.
   PER CURIAM.

Robert Consalvo appeals an order of the circuit court denying a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 8(b)(1), Fla. Const. For the reasons set forth below, we affirm the trial court’s denial of Consalvo’s postconviction motion.

FACTUAL AND PROCEDURAL HISTORY

Consalvo was convicted and sentenced to death for the first-degree murder of Lorraine Pezza. The underlying facts appear in this Court’s opinion in Consalvo’s direct appeal:

On October 3, 1991, at approximately 12:40 a.m., Nancy Murray observed a man wearing a brown towel over his head cut a screen door and enter the residence of Myrna Walker, who lived downstairs from the victim. Murray called the police and Consalvo was apprehended while burglarizing the apartment. Fresh pry marks were found on a sliding glass door along with a cut porch screen. Assorted jewelry was found lying on the bedroom floor with a screwdriver and towel. When police searched Consalvo, they found checkbooks belonging to Pezza, as well as to Walker, and a small pocketknife. Con-salvo was arrested and subsequent to his arrest, Consalvo repeatedly asked the police what his bond would be for this burglary offense and how quickly he could be released.
That same day, Detective Doethlaff went to [the victim, Lorraine] Pezza’s apartment to investigate why Consalvo was in possession of her checkbook. Doethlaff observed fresh pry marks on Pezza’s front door between the deadbolt and the doorknob. When no one answered the door, which was locked, Doethlaff left a business card at the door requesting Pezza to contact the police. That evening, after Pezza’s family had tried unsuccessfully for several days to reach her, Eva Bell, a social worker for the Broward Mental Health Division, went to the victim’s apartment to check on her. While at the apartment, Bell encountered Pezza’s next-door neighbor, Consalvo’s mother, Jeanne Corropolli. Corropolli, who lived with Consalvo, related to Ms. Bell that her son had been arrested earlier that day (for the burglary of Mrs. Walker’s apartment). After receiving no response at Pezza’s apartment, Bell contacted the police. At 7:16 p.m. Officer Westberry responded to Bell’s request to check on Pezza. He knocked on Pez-za’s apartment door without getting a response and noticed Doethlaffs business card was still in the door jamb. The officer went back to his patrol car to complete his report. Bell, who was still in Corropolli’s apartment, testified that shortly after the officer left the apartment, Corropolli was on the phone. Corropolli hung up the phone and became hysterical. Corropolli told Bell that her son, Robert Consalvo, said that he was “involved in a murder.” Corro-polli testified that when she told her son the police were next door, he replied, “Oh, shit.” Bell immediately related this information to Officer Westberry, who then forced open Pezza’s apartment door and discovered her decomposing body in the apartment. The porch screens of Pezza’s apartment were cut.
At 10:10 p.m., Detective Gill of the Broward Sheriffs Office contacted Con-salvo at the Pompano Jail Annex. After advising Consalvo of his rights, Gill notified Consalvo that they wanted to speak to him about Pezza’s checks being found on his person at the time of his arrest. Consalvo responded by stating: “[Y]ou are not going to pin the stabbing on me.” At this time, Gill did not know that Pezza had been stabbed.
At 2:30 a.m. the next day, Detective Gill effectively arrested Consalvo by filing an add charge against him for the murder of Lorraine Pezza. Consalvo had not yet been released on bond for the burglary charge. When a search warrant was executed on Corropolli’s apartment, the police found a bloody towel in a dresser in Consalvo’s bedroom. Subsequent DNA testing matched the blood on the towel with the victim’s blood. In a statement to the police, Consalvo’s mother confirmed that her son had in fact called her from the county jail and had advised her that he might be implicated in a homicide. She further informed police that she had found a towel in her son’s room with blood on it.
While incarcerated in the Broward County Jail, Consalvo made inculpatory statements to a fellow inmate named William Palmer. Consalvo told Palmer that he killed Pezza after she caught him burglarizing her apartment and said she would call the police. When she started to yell for help, Consalvo stabbed her. Lorraine Pezza was stabbed three times with five additional superficial puncture wounds. The fatal wound was to the left side of the chest....
On February 11, 1993, appellant was convicted of armed burglary and the first-degree murder of Lorraine Pezza. The jury recommended the death sentence by a vote of eleven to one. The trial court found two aggravating factors: (1) the capital felony was committed while the defendant was engaged in the commission of a burglary, see 921.141(5)(d), Fia. Stat. (1995); and (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest, see id. 921.141(5)(e). The court found no statutory mitigating circumstances. As for nonstatutory mitigating circumstances it accorded the following “very little weight”: (1) appellant’s employment history; and (2) appellant’s abusive childhood. Because the “mitigating factors have been given very little weight and they in no way offset the aggravating factors,” the trial court found the death sentence “fully supported by the record.”

Consalvo v. State, 697 So.2d 805, 809-11 (Fla.1996) (footnotes omitted). This Court affirmed Consalvo’s conviction and sentence on October 3, 1996, and denied rehearing on July 17, 1997, as revised on denial of rehearing, October 16, 1997. See id. at 805, 809. The United States Supreme Court denied certiorari on May 4, 1998. See Consalvo v. Florida, 523 U.S. 1109, 118 S.Ct. 1681, 140 L.Ed.2d 819 (1998). On March 7, 2001, Consalvo filed his amended 3.850 motion. On March 7, 2002, after a Huff hearing, the trial court granted an evidentiary hearing on claims 1, II, III, and IV, and summarily denied claims V-XV. On February 19, 2004, the trial court entered a final order denying Consalvo’s amended motion for postconviction relief. Consalvo appeals the trial court’s summary denial of claims V-XV and also appeals the trial court’s rejection of claims I-IV after the evidentiary hearing.

NEWLY DISCOVERED EVIDENCE

The claims in Consalvo’s amended 3.850 motion upon which the trial court conducted an evidentiary hearing included: (I) a claim of newly discovered evidence based upon the recanted testimony of Mark Da-Costa; (II) a claim of newly discovered evidence based upon the recanted testimony of William Palmer; (III) a claim that the State failed to disclose exculpatory evidence that Assistant State Attorney (ASA) Brian Cavanagh had improperly briefed DaCosta on the particulars of the investigation of Consalvo’s case and that DaCosta had in turn passed this information on to Palmer; and (IV) a claim that the State deliberately used false and misleading evidence in the form of DaCosta’s and Palmer’s testimony during Consalvo’s original trial proceedings.

At the evidentiary hearing on his claims that Palmer and DaCosta had recanted their incriminating trial testimony, Consal-vo presented the testimony of DaCosta, Palmer, and ASA Ken Farnsworth. The State presented State Attorney Secretary Lisa Gardner, ASA Brian Cavanagh, Detective Frank Ilarraza, and Florida Department of Law Enforcement (FDLE) Special Agent Audrey Jones. After conducting an evidentiary hearing, the trial court found that the recantations were not credible and that the claims based on the truth and credibility of the recantations should be denied.

Consalvo first argues that the trial court erred in rejecting claims I and II by concluding after an evidentiary hearing that the recanted testimony of witnesses Da-Costa and Palmer was not credible. He argues that if Palmer’s testimony were excised from the trial, the result of both the guilt phase and penalty phase of Con-salvo’s trial would have been different.

In our opinion on direct appeal, this Court described Palmer’s trial testimony as follows: “While incarcerated in the Bro-ward County Jail, Consalvo made inculpa-tory statements to a fellow inmate named William Palmer. Consalvo told Palmer that he killed Pezza after she caught him burglarizing her apartment and said she would call the police. When she started to yell for help, Consalvo stabbed her.” Consalvo, 697 So.2d at 810. This Court also referred to Palmer’s testimony in reviewing and upholding the “avoid arrest” ag-gravator:

In this case, a witness testified regarding a conversation he had with appellant while in jail:
[Consalvo] went over there one day, and she didn’t answer the door, but he •knew she was home. He figured she was passed out. So he broke into the house.
While he was in there, she woke up and started yelling she was going to call the cops and get out of her house and this and that. And she reached to grab the phone, and he grabbed her and tried to pull, you know, tried to stop her from calling the cops; and she started screaming, so he said he stuck her. Then she really started screaming, so he stuck her a couple more times.

Id. at 819.

DaCosta testified at the evidentiary hearing that ASA Cavanagh gave him all the information he knew about the Consal-vo case when he met with ASA Cavanagh at the State Attorney’s office while he was being held at the Broward County Jail. He stated that during this meeting, ASA Cavanagh said there was an important murder case for which he needed a conviction, showed DaCosta crime scene photos, and said that if DaCosta would help the State by soliciting another jail inmate to testify, he would get a guideline sentence in his own case “no matter what happened in [DaCosta’s] case.” DaCosta was later given a guideline sentence in his case but was also declared a habitual offender. Da-Costa testified that after meeting with ASA Cavanagh, he contacted other law enforcement authorities to say he had information on a murder, and he gave a statement to Broward County Sheriffs deputies. DaCosta stated he also provided details of the case to Palmer, who subsequently testified at trial. In August 2000, DaCosta met with Consalvo’s investigator and broke down and told him he had lied in testifying and incriminating Consalvo. He then wrote the Governor twice, again asserting that he had lied concerning the Consalvo case. He also signed an affidavit stating that he had lied, although he did not mention ASA Cavanagh in the affidavit.

During the postconviction hearing, when asked about numerous facts that he knew about the case, DaCosta stated he did not hear those facts from Consalvo, and he denied overhearing any of Consalvo’s phone conversations. He stated that he only had conversations with Consalvo “about his girlfriend, things in general.” When asked about more specific facts that he had described previously, DaCosta’s responses were consistently, “I don’t remember” or “I don’t know,” or “I made it up.” When asked if the affidavit he signed in Consalvo’s attorney’s presence was true, he replied, “I don’t know.” DaCosta admitted that he has been labeled a snitch, has a psychiatric history including hallucinations, schizophrenia, and brain dysfunction, and had taken many psychotropic drugs.

Palmer testified that he was extremely reluctant to testify at the postconviction evidentiary hearing. Prior to Consalvo’s trial, Palmer had been facing a habitual offender sentence for battery on a law enforcement officer and possession of cocaine, but because of his assistance in the Consalvo matter, he received a misdemeanor probationary sentence. At the time of Consalvo’s trial, Palmer was no longer facing any charges.

Palmer learned from an investigator for the defense seven years after his trial testimony, while an inmate at a prison mental health institute, that Consalvo had been sentenced to death. The defense investigator told Palmer that his testimony put Consalvo on death row. Palmer told the investigator that his testimony had been untrue. He stated he did not want to be responsible for anyone being on death row and did not want to be labeled a snitch. He stated, “I don’t think he should be on death row, though, and if any statement that he told me he stabbed her put him there, then I’m wrong. I don’t think he ever told me he stabbed her.” Finally, he admitted that he would lie to avoid being labeled a snitch. When he met with Con-salvo’s postconviction attorney, he signed an affidavit that his testimony at trial was derived from conversations with DaCosta, not Consalvo. However, he testified that he still believed that Consalvo committed the murder.

He admitted during his testimony at the evidentiary hearing that Consalvo, DaCos-ta, and he would talk while in jail together, and Palmer admitted having conversations with Consalvo about his case. He stated that Consalvo told him a lot about the victim, that Consalvo had said he broke into the victim’s house and stole checks and car keys, and that Consalvo was going into the victim’s house to get drugs. He also admitted that Consalvo told him the police had found one of the victim’s checks in his pocket, and that Consalvo told him the police were saying he stabbed the victim “a whole bunch of times.” Despite his recollection of this information coming from Consalvo, he could not remember Consalvo telling him about the actual murder.

Since testifying at the Consalvo trial, Palmer has been in a mental health facility. He has a bad memory, he takes psychotropic drugs that affect his memory, and his ears ring. He also hears voices and considers himself to be crazy “in other people’s eyes.” Voices warned him not to get involved in any aspect of Consalvo’s trial. The day he testified, he smoked a marijuana joint and had three beers during the lunch break.

ASA Cavanagh testified that he had been an Assistant State Attorney for over twenty-five years. He specifically denied ever meeting with DaCosta before a brief meeting conducted prior to DaCosta’s grand jury testimony. In fact, he asserted that he was not the assigned prosecutor on the Consalvo case and was actually covering the grand jury hearing for the assigned prosecutor due to scheduling conflicts. He also testified that he never met with DaCosta in jail or at the State Attorney’s office. He first met DaCosta and Palmer the day of the grand jury, and he stated that while DaCosta indicated he wanted to speak to him about the case, ASA Cavanagh avoided the issue. His only preparation for their testimony was telling both men to tell the truth, and he never promised either of them anything for their testimony or cooperation.

Following the evidentiary hearing, the trial court denied postconviction relief, rejecting the recanted testimony of DaCosta and Palmer as “not credible” and finding Palmer’s testimony at the evidentiary hearing to be “bizarre and totally unworthy of belief.” The trial court stated, “It is clear to the Court that Palmer’s testimony at a new trial would not render probable a different verdict or different sentence.” The trial court also rejected Consalvo’s claims of improper conduct by the State and found that “there is no credible evidence that either DaCosta or Palmer had been briefed by the State as to any information regarding the Pezza murder investigation against Robert Consalvo and, therefore, the State did not fail to disclose exculpatory evidence.”

In Jones v. State, 591 So.2d 911 (Fla.1991), this Court redefined the test'for the granting of a new trial based upon newly discovered evidence from the prior strict requirement that the new evidence must “ ‘conclusively’ affect the verdict” to requiring a showing that the new “evidence would ‘probably’ affect the verdict.” Spaziano v. State, 660 So.2d 1363, 1365 (Fla.1995) (citing Jones, 591 So.2d at 915). In Armstrong v. State, 642 So.2d 730 (Fla.1994), this Court specified the standard for granting a new trial based upon a claim of newly discovered evidence that a witness called on behalf of the prosecution at trial has recanted his or her testimony:

Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981); Bell v. State, 90 So.2d 704 (Fla.1956). In determining whether a new trial is warranted due to recantation of a witness’s testimony, a trial judge is to examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. [Bell, 90 So.2d at 705]. “Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.” [Id.] (quoting Henderson v. State, 135 Fla. 548, 561, 185 So. 625, 630 (1938) (Brown, J., concurring specially)). Only when it appears that, on a new trial, the witness’s testimony will change to such an extent as to render probable a different verdict will a new trial be granted. Id.

Id. at 735. We have also held that “[alb-sent an abuse of discretion, a trial court’s decision on a motion based on newly discovered evidence [including a witness’s newly recanted testimony] will not be overturned on appeal.” Mills v. State, 786 So.2d 547, 549 (Fla.2001) (citing Woods v. State, 733 So.2d 980 (Fla.1999); State v. Spaziano, 692 So.2d 174 (Fla.1997); and Parker v. State, 641 So.2d 369 (Fla.1994), and further holding that the trial court did not abuse its discretion in finding that a witness’s new version of events would not have probably produced acquittal). We find no abuse of discretion by the trial court in rejecting as not credible the alleged newly discovered evidence presented by Consalvo and in determining that Con-salvo had not established an entitlement to a new trial under the Jones standard.

We rejected a similar claim of error in Sochor v. State, 883 So.2d 766 (Fla.2004), where the defendant claimed that the prosecutor offered a witness immunity in exchange for his testimony. Id. at 785. He also claimed that the prosecutor told the witness not to mention important facts in his testimony. Id. at 785-86. The prosecutor testified at the evidentiary hearing that he never offered the witness immunity and that he never told the witness to leave out facts in his testimony. Id. “The circuit court found [the witness]’s eviden-tiary hearing testimony to be ‘unreliable and not credible.’ On the other hand, it found [the prosecutorj’s testimony to be ‘candid, trustworthy, and credible’” and that the defendant was simply arguing on appeal “that the circuit court’s finding of fact was incorrect.” Id. at 785. This Court deferred to the circuit court’s resolution of the issue because its finding was “supported by competent, substantial evidence.” Id. (citing Right v. Dugger, 574 So.2d 1066, 1073 (Fla.1990)). In fact, the only evidence for the allegation that the prosecutor had told the witness to leave out facts in his trial testimony was the witness’s evidentiary hearing testimony, which directly contradicted his trial testimony and the prosecutor’s evidentiary hearing testimony. Id. at 786 (“We cannot say that the circuit court’s decision to discredit [the witnesses evidentiary hearing testimony was unreasonable or unsupported.”).

Similarly, in the present ease, Consalvo’s claim is that the trial court erred in not finding DaCosta’s and Palmer’s recanted testimony credible and instead finding the testimony of the State’s witness, ASA Cav-anagh, to be credible and reliable. There is competent, substantial evidence to support the trial court’s resolution of this matter, including the trial court’s assessment of both DaCosta’s and Palmer’s history of lying and psychiatric deficiencies and their inconsistencies and lack of memory when testifying at the evidentiary hearing, as well as the contrary testimony of ASA Cavanagh. See Spaziano, 692 So.2d at 175 (“This Court, as an appellate body, has no authority to substitute its view of the facts for that of the trial judge when competent evidence exists to support the trial judge’s conclusion.”); Kight, 574 So.2d at 1073 (“While there was conflicting testimony concerning whether the state made concessions in exchange for the informants’ testimony, it was within the trial court’s discretion to find the state’s witnesses more credible than those of the defense.”).

Consalvo also argues that if Palmer’s recanted testimony cannot be believed, it would be difficult to conclude that Palmer’s trial testimony is believable. However, we find that to be an improper hindsight analysis, based exclusively upon the current testimony of Palmer that the trial court has rejected as not credible. In addition, of course, there is other credible evidence to support Consalvo’s conviction, on which the trial court was entitled to rely in rejecting the Jones claim. This evidence was listed in Consalvo’s direct appeal and includes the victim suspecting Consalvo of taking her keys and money; the victim changing the locks at her apartment; Consalvo using the victim’s ATM card and driving a car similar to the victim’s; Consalvo’s possessing checkbooks belonging to the victim; Consalvo’s mother, who lived next door to the victim, saying that Consalvo had told her “that he was ‘involved in a murder,’ ” and that when she told Consalvo “the police were next door, he replied, ‘Oh, shit;’ ” Consalvo stating, “[Y]ou are not going to pin the stabbing on me” to a detective who was not yet aware the victim had been stabbed; and the police finding “a bloody towel in a dresser in Consalvo’s bedroom” that subsequent DNA testing matched to the victim’s blood. Consalvo, 697 So.2d at 809-10. When all of this evidence is considered together with the trial court’s determination of the lack of credibility of DaCosta’s and Palmer’s postconviction recantations, it becomes apparent that the trial court did not err in rejecting Consal-vo’s claims.

Because we affirm the trial court’s rejection of DaCosta’s and Palmer’s recanted testimony, we must also reject Consalvo’s argument that the trial court erred in not considering Palmer’s recanted testimony to be newly discovered evidence with regards to the “avoid arrest” aggravator sufficient to merit a new penalty phase proceeding.

Claims III and IV

For the same reasons we reject Consal-vo’s claims of error in the trial court’s resolution of his Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), claims. In view of the trial court’s findings as to the credibility of Palmer and DaCosta and the trial court’s acceptance of the credibility of the State’s evidence, we find that there existed no exculpatory evidence regarding this matter that the State should have turned over to the defense, and therefore Consalvo’s claim under Brady is meritless. We also conclude that Consalvo’s claim that the State committed a Giglio violation is meritless because the trial court did not err in concluding that no misleading testimony in fact existed.

CONCLUSION

In light of the above analysis, we affirm the trial court’s denial of all of the claims set out in Consalvo’s postconviction motion.

It is so ordered.

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

      . Consalvo argued twenty claims on direct appeal: (1) The trial court abused its discretion in finding the State did not commit a discovery violation when it failed to disclose a laboratory's inability to test cigarette butts found in the victim’s toilet and when it failed to disclose a letter requesting laboratory analysis on the same evidence; (2) the trial court abused its discretion in ruling that the State did not commit a discovery violation when, after the defense's opening statement, which asserted a third party killing theory, the State informed the defense that the fingerprint expert had identified several previously unidentified prints as belonging to the victim's deceased boyfriend; (3) the trial court abused its discretion in admitting evidence relating to the collateral burglary of another residence; (4) the trial court erred in allowing the State, during the guilt-phase closing argument, to argue a collateral burglary as similar fact evidence; (5) the trial court abused its discretion by admitting Consalvo's statement to the police upon arrest for a collateral burglary that he had permission to be in the victim’s residence; (6) the trial court abused its discretion by admitting certain out-of-court statements relating to a prior incident between Consalvo and the victim regarding an alleged theft; (7) the trial court abused its discretion in allowing a witness to testify to statements made by Consalvo in a telephone conversation with his mother, who then related them to the witness; (8) the trial court erred by allowing the State, during its guilt-phase closing argument, to rebut a suicide defense which the State believed was raised by the defense’s case; (9) the trial court erred in instructing the jury that proof of unexplained possession of recently stolen properly by means of burglary may justify a conviction for burglary; (10) constructive amendment of an indictment by instruction and argument on felony murder when the grand jury only charges premeditated murder violates article I, section 15(a) of the Florida Constitution and the Fifth Amendment;- (11) Consalvo's right to due process was violated and he was denied effective assistance of counsel when the trial court instructed the jury on, and allowed the prosecution to argue, a first-degree felony murder theory when the indictment charged only premeditated first-degree murder; (12) the trial court abused its discretion in admitting the victim-impact testimony of the victim's brother, and the prosecutor used victim-impact evidence in an improper manner; (13) the trial court abused its discretion in denying Consalvo's specially requested penalty-phase jury instructions which specifically defined certain nonstatutory mitigating circumstances that Consalvo believed were applicable in his case; (14) the trial court's sentencing order, which relied on testimony and deposition statements not -presented in open court, violated Consalvo's due process rights; (15) the trial court erred in failing to consider and find certain nonstatutory mitigating circumstances, and the court applied an improper standard in evaluating the “turbulent family background” mitigating circumstance; (16) the trial court erred in finding the "avoid arrest” aggravating circumstance; (17) the statute, delineating the "felony murder” aggravator is unconstitutional; (18) the statute authorizing the introduction of victim-impact evidence is unconstitutional; (19) death by electrocution is cruel and unusual punishment; and (20) the death penalty is not proportionally warranted in this case. Consalvo, 697 So.2d at 811 n. 3. With the exception of its conclusions that the, prosecutor’s mention of the similarities between the murder and a subsequent burglary during closing argument, that jury instructions that proof of the unexplained possession of property recently stolen justified a burglary conviction, and that the trial court's quoting of two statements never presented in open court in its sentencing order all constituted harmless error, this Court found no error and affirmed the death sentences.

      . The motion was Consalvo's second amended motion, but constituted his first motion for postconviction relief. The claims in Consal-vo’s amended 3.850 motion were: (I) newly discovered evidence, the recanted testimony of Mark DaCosta; (II) newly discovered evidence, the recanted testimony of William Palmer; (III) the State failed to disclose exculpatory evidence that Assistant State Attorney (ASA) Brian Cavanagh had briefed Mark DaCosta on the particulars of the investigation of Consalvo's case and that DaCosta had in turn briefed William Palmer; (IV) the State deliberately used misleading testimony in the form of DaCosta's and Palmer’s testimony during Consalvo's original trial proceedings; (V) the State withheld material and exculpatory evidence 'in the form of fiber evidence, cigarette butts, fingerprints, and a section of a knife blade; (VI) the trial court failed to determine whether Consalvo knowingly, intelligently, and voluntarily waived his right to testify at the guilt phase of his trial; (VII) the trial court failed to determine whether Con-salvo knowingly, intelligently, and voluntarily waived his right to testify at the penalty phase of his trial; (VIII) the trial court failed to determine whether Consalvo knowingly, intelligently, and voluntarily waived his right to testify at both the guilt phase and the penalty phase of-his trial; (IX) the trial court failed to require comparative evidence on proportionality, thereby violating Equal Protection; (X) new mitigation evidence has arisen since trial; (XI) the trial court permitted undue prejudice by failing to control the antics at trial of the victim's brother, a prominent Watergate prosecuting attorney; (XII) Consalvo's fundamental right to trial was threatened and there was vindictiveness in his sentencing; (XIII) Florida's death penalty law is unconstitutional on its face and in effect; (XIV) Florida's sentencing law is unconstitutional because it fails to properly narrow the class of persons eligible for the death penalty and because Consalvo’s death sentence is predicated on an automatic aggravator (felony murder/murder was committed in the course of a burglary); and (XV) Florida’s sentencing law is unconstitutional because victim impact evidence is necessarily discriminatory.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . We find no error in the trial court’s summary resolution of claims V through XV. Claims V through XV were either insufficiently pled, procedurally barred because they could have been or were raised on direct appeal, or meritless on their face. Claim V was insufficiently pled and was raised and resolved on direct appeal. Claims VI-VIII, X, XI, and XIII-XV could have been properly raised on direct appeal. See Hall v. State, 742 So.2d 225, 226 (Fla.1999) ("Issues that could have been raised on direct appeal but were not are noncognizable claims through collateral attack.”). Claim XII was insufficiently pled and could have been raised on direct appeal. Claim IX was actually reviewed by this Court on direct appeal. See Consalvo, 697 So.2d at 820 (“[W]e find that Consalvo's death sentence is not disproportionate to other cases.”).

      . While Palmer testified at the grand jury and during Consalvo's trial, DaCosta only testified at the grand jury.


source: Caselaw Access Project

license: Public Domain

text:
    Robert L. HENRY, Appellant, v. STATE of Florida, Appellee. Robert L. Henry, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC03-1312, SC04-1285.
    Supreme Court of Florida.
    May 25, 2006.

      Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, and Rachel L. Day, Assistant CCRC, Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.

      Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Robert L. Henry appeals an order of the circuit court denying a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the circuit court’s order denying postconviction relief and deny Henry’s habeas petition.

FACTS AND PROCEDURAL HISTORY

The facts of the crimes in this case are set forth in our opinion from Henry’s direct appeal:

Around 9:30 p.m. on November 1, 1987, fire fighters and police officers responded to a fire at a fabric store in Deerfield Beach. Inside they found two of the store’s employees, Phyllis Harris, tied up in the men’s restroom, and Janet Thermidor, on the floor of the women’s restroom. Each had been hit in the head with a hammer and set on fire. Harris was dead when found. Although suffering from a head wound and burns over more than ninety percent of her body, Thermidor was conscious. After being taken to a local hospital, she told a police officer that Henry, the store’s maintenance man, had entered the office, hit her in the head, and stolen the store’s money. Henry then left the office, but returned, threw a liquid on her, and set her on fire. Thermidor said she ran to the restroom in an effort to extinguish the fire. She died the following morning.
Based on Thermidor’s statement, the police began looking for Henry and found him shortly before 7:00 a.m. on November 3, at which time they arrested him. Henry initially claimed that three unknown men robbed the store and abducted him, but later made statements incriminating himself. A grand jury indicted Henry for two counts of first-degree murder, armed robbery, and arson. The jury convicted him as charged and recommended the death sentence for each of the murders, which the trial court imposed.
The trial court found as aggravating factors that these murders had been committed during the commission of robbery and arson, to avoid or prevent arrest, for pecuniary gain, and in a cold, calculated, and cruel manner and that they were heinous, atrocious, or cruel. The court, weighed these aggravators against the statutory mitigating factor that Henry had no prior criminal history and the nonstatutory factor of Henry’s service in the Marine Corps. Finding that the aggravators outweighed the mitigators, the court imposed two death sentences.

Henry v. State, 613 So.2d 429, 430, 432 (Fla.1992). On direct appeal, this Court affirmed the jury’s guilty verdicts on both counts of first-degree murder and the trial court’s sentences of death, as well as the two concurrent terms of life imprisonment for armed robbery with a deadly weapon and arson. Henry v. State, 586 So.2d 1033, 1034-35 (Fla.1991).

Henry appealed his convictions and death sentences to the United States Supreme Court, arguing that the jury instruction on the heinous, atrocious, and cruel aggravator (“HAC aggravator”) was inadequate. See Henry, 613 So.2d at 434. The Supreme Court vacated the judgment and remanded the case back to this Court for reconsideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). Upon remand, this Court again affirmed both the convictions and the death sentences. Henry, 613 So.2d at 430, 434. Regarding the HAC aggravator, we held that, since Henry received an expanded jury instruction that both defined its terms and limited its application, the HAC aggravator was not unconstitutionally vague. Id. at 434.

Henry filed his final amended 3.850 motion in October 1998, raising fifty-one claims for relief. The postconviction court held a Huff hearing on June 3, 1999, granting an evidentiary hearing on Henry’s claim alleging ineffective assistance of counsel for the failure to have qualified mental health experts assist with the penalty phase defense, including a portion of the subclaim that trial counsel did not make adequate use of Florida Rule of Criminal Procedure 3.216, which authorizes appointment of a mental health expert for the penalty phase. The postconviction court also included a portion of Henry’s claim regarding trial counsel’s alleged failure to ask the defense expert to address the mitigating factors of Henry’s organic brain problems and substance abuse. The trial court limited the focus of the hearing regarding ineffective assistance to the deficient performance prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The first evidentiary hearing was held on October 18, 2000, with additional hearings held on August 6-8, 2001. On January 22, 2003, the trial court entered an order denying all claims in Henry’s amended motion for postconviction relief, concluding that they were either procedurally barred, conclusively refuted by the record, facially or legally insufficient as alleged, without merit as a matter or law, or not ripe for consideration.

POSTCONVICTION CLAIMS

On appeal, Henry contests the summary denial of his postconviction claims, as well as the denial of the claims considered at the evidentiary hearing. Finding no error in the trial court’s conclusion that the majority of these claims are either procedurally barred, conclusively refuted by the record, facially or legally insufficient as alleged, or without merit as a matter of law, we conclude that only the postconviction claims that were considered at the evidentiary hearing merit discussion, including whether Henry’s trial counsel rendered ineffective assistance during the penalty phase of his trial with regard to the presentation of mental health mitigation, and whether this claimed ineffectiveness affected the validity of Henry’s decision to waive his right to present mitigation.

In addition, while the trial court granted an evidentiary hearing regarding ineffectiveness of counsel, Henry argues that the hearing was too limited in scope to allow him to fully develop his claim. Henry alleges that he was precluded by the judge from presenting the opinions of his mental health experts as to his mental condition at the time of his crimes, evidence that is relevant to both prongs of the ineffective assistance standard set forth in Strickland. Therefore, Henry maintains that the lower court’s decision to limit the evidentiary hearing to the deficient performance prong of Strickland denied him the opportunity for full and fair evidentiary development regarding whether trial counsel rendered constitutionally deficient performance.

I. Ineffective Assistance of Counsel

Henry asserts that the trial court erred in concluding that his trial counsel was not ineffective; instead, he argues that he was not afforded effective assistance of counsel for a number of reasons. Specifically, he argues that trial counsel failed to develop a mitigation strategy that emphasized his drug addiction, both to demonstrate the effects of his long-term polysubstance abuse disorder and to show that he was operating under a cocaine-induced psychosis at the time of the crime. Henry also claims that both the scope and the depth of his mental evaluation were constitutionally inadequate and that trial counsel failed to follow up Henry’s initial psychological screening with a full mental health mitigation workup. This deficient performance, Henry claims, constitutes prejudice under Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), since counsel’s failure to investigate and present this mitigating evidence was the direct cause of the jury’s recommendation of death.

This Court applies a mixed standard of review to ineffective assistance of counsel claims, deferring to the trial court for findings of fact, but reviewing questions of law de novo. Cave v. State, 899 So.2d 1042, 1052 (Fla.2005). Strickland sets forth the standard for ineffective assistance of counsel:

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

Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

The Supreme Court has further fleshed out the parameters for finding ineffective assistance of counsel regarding the presentation of mitigation in capital cases in Wiggins. In Wiggins, the defendant sought postconviction relief, arguing that his trial counsel rendered constitutionally ineffective assistance by failing to compile and present mitigating evidence regarding his dysfunctional background. 539 U.S. at 516, 123 S.Ct. 2527. Counsel claimed that the decision not to present mitigating evidence was a tactical one, since counsel chose to focus on an alternative strategy in the guilt phase. Id. at 521, 123 S.Ct. 2527. In upholding the lower court’s decision finding ineffective assistance, the Supreme Court held that the “principal concern ... is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of [defendant’s] background was itself reasonable.” Id. at 522-23, 123 S.Ct. 2527. The Court noted that the proper inquiry involves “an objective review of [trial counsel’s] performance, measured for ‘reasonableness under prevailing professional norms,’ which includes a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’ ” Id. at 523, 123 S.Ct. 2527 (citation omitted) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). Given the overwhelming evidence of a severely dysfunctional childhood, the Supreme Court concluded that “[t]he record of the actual sentencing proceedings underscores the unreasonableness of counsel’s conduct by suggesting that their failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.” Id. at 526, 104 S.Ct. 2052.

“When evaluating claims that counsel was ineffective for failing to investigate or present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness ‘deprived the defendant of a reliable penalty phase proceeding.’ ” Asay v. State, 769 So.2d 974, 985 (Fla.2000) (quoting Rutherford v. State, 727 So.2d 216, 223 (Fla.1998)). Other precedent from this Court addresses such a failure in light of a defendant’s waiver of mitigation. For example, citing specifically to Henry’s direct appeal as illustrative of a waiver that was “knowingly, voluntarily, and intelligently made,” this Court in Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993), found that, despite the defendant’s waiver of mitigation, trial counsel was still ineffective for failing to investigate and prepare for the penalty phase proceeding. Id. at 8. The total lack of preparation for the penalty phase meant the defendant “was not given the opportunity to knowingly and intelligently make the decision as to whether or not to testify or to call [possible] witnesses.” Id. (quoting trial judge’s order). This Court emphasized that the result of the proceeding must have been rendered fundamentally unfair to demonstrate ineffective assistance of counsel. Id.

More recently, in State v. Lewis, 838 So.2d 1102 (Fla.2002), we noted:

[T]he obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated — this is an integral part of a capital case. Although a defendant may waive mitigation, he cannot do so blindly; counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision.

Id. at 1113 (footnote omitted). In that case, this Court agreed with the trial court’s decision to vacate Lewis’s death sentence due to trial counsel’s ineffectiveness at the penalty phase. Id. at 1106-07, 1114. Among trial counsel’s shortfalls, we found that “[c]ounsel never contacted any of Lewis’s other family members in an attempt to discover potential mitigation, nor did counsel attempt to obtain mitigating evidence that was contained in Lewis’s background records.” Id. at 1109. Furthermore, trial counsel spent less than eighteen hours preparing for the penalty phase, and also waited more than two weeks after the guilty verdict before seeking the appointment of a mental health expert to testify in the penalty phase. Id. Because of this total lack of preparation, we held that “[trial counsel] was unable to advise Lewis as to potential mitigation which [the] witnesses and records could have offered.” Id. at 1113-14. Therefore, due to the lack of a knowing waiver and the “substantial mitigating evidence which was available but undiscovered,” this Court determined that Lewis did suffer prejudice from his trial counsel’s deficient performance, therefore establishing ineffective assistance. Id. at 1114. Thus, as Lewis makes clear, a defendant’s waiver of his right to present mitigation in the penalty phase does not relieve trial counsel of the duty to investigate mitigation to ensure that the defendant’s choice to waive his rights is a fully informed decision.

However, we also recognize that counsel’s decision not to present certain mitigation evidence may be a tactical decision properly within counsel’s discretion. See Brown v. State, 439 So.2d 872, 875 (Fla.1983) (“The choice by counsel to present or not present evidence in mitigation is a tactical decision properly within counsel’s discretion.”); Valle v. State, 705 So.2d 1331, 1335 n. 4 (Fla.1997) (same); Gorham v. State, 521 So.2d 1067, 1070 (Fla.1988) (same).

Taking both the preceding case law and the factual record of this case into account, we find that the trial court’s decision to deny Henry’s claim of ineffective assistance of counsel is supported by competent, substantial evidence.

A. Substance Abuse Disorder

First, as to Henry’s claim that trial counsel was ineffective for failing to pursue and present evidence of his drug addiction, the record is clear that Henry was adamant that trial counsel not rely on any evidence of intoxication or addiction in Henry’s defense, in either the guilt or penalty phases. “When a defendant preempts his attorney’s strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.” Rose v. State, 617 So.2d 291, 294 (Fla.1993) (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

In attempting to show that trial counsel missed obvious signs that his client had a drug problem at the time of his crime, postconviction counsel produced evidence tending to show that Henry was struggling with a crack cocaine addiction in 1987. However, this does not vitiate Henry’s role in firmly and consistently insisting that counsel not pursue such a strategy during trial. It seems clear that trial counsel met with stiff resistance from his client at every turn regarding any efforts to piece together a drug defense for either the guilt phase or for mitigation. Trial counsel’s testimony at the evidentiary hearings illustrates that Henry was vehemently opposed to any approach that relied on his drug use. He also made repeated denials of drug use both to counsel and to all three pretrial investigating mental health experts. Accordingly, we conclude that the trial court did not err in finding that trial counsel’s assistance was not ineffective in this regard.

On this issue of drug use, Henry also claims ineffective assistance regarding counsel’s failure to obtain forensic testing of both a beer can found at the scene of the crime and samples of Henry’s nails, hair, and clothing taken at the time of his arrest. He argues that this evidence would have established that he was operating under a cocaine-induced psychosis at the time of his crimes. Trial counsel testified at the evidentiary hearing that, while he was aware of the existence of the can prior to trial, he did not connect the can to Henry’s drug use and he did not learn until trial that the can had been modified for drug use. The trial court found that the requested forensic testing would not have been relevant since the testing of the clothing and the blood (forensic testing, but not DNA testing) would not account for Henry’s mental state at the time of the crime. The murders occurred between 9 and 9:30 p.m. on November 1, 1987, and Henry was not arrested until 7 p.m. on November 3, 1987; Henry’s blood was not extracted until 12:05 a.m. on November 4, 1987. The trial court concluded that testing of the physical evidence for the presence of drugs approximately fifty-two hours after the crime occurred would not have been probative of Henry’s mental state at the time of the crime. The trial court also found that the testing of the empty beer can would not have produced relevant evidence which could have been linked to Henry because no discernible fingerprints were discovered on the can. Even if trace amounts of a drug were found on the can, the court concluded that there was no nexus demonstrated between the can and Henry. We find no error in these conclusions.

B. Mental Health Mitigation

Henry also claims that trial counsel was ineffective for not ordering additional mental health evaluations to assist in developing mitigation for use in his penalty phase. This Court held in Rose that “a new sentencing hearing is warranted ‘in cases which entail psychiatric examinations so grossly insufficient that they ignore clear indications of either mental retardation or organic brain damage.’ ” 617 So.2d at 295 (quoting State v. Sireci, 502 So.2d 1221, 1224 (Fla.1987)).

The record reflects that at the direction of defense counsel, Henry was evaluated by Dr. Trudi Block-Garfield, a mental health expert, very early on in preparation for his trial. Dr. Block-Garfield testified at the evidentiary hearing that she saw no indication of organic brain damage, mental illness, or retardation, and that, had she , noted the need for additional mental health experts at the time of examination, she would have recommended they be consulted. Additionally, trial counsel testified at the evidentiary hearing that, during his entire working relationship with Henry, he did not observe any significant signs that Henry was mentally ill or incompetent in any fashion. Further, trial counsel retained two additional competency experts prior’to trial, Drs. John Spencer and Patsy Ceros Livingston, who performed mental health evaluations of Henry and found him to be competent and sane, essentially confirming Dr. Block-Garfield’s earlier findings. While not specifically retained to develop mental health mitigation evidence, none of these three mental health experts reported anything to counsel suggesting such mitigation evidence existed or merited further investigation.

While postconviction counsel presented expert testimony during the evidentiary hearings criticizing the adequacy of Dr. Block-Garfield’s pretrial evaluation, the trial court ultimately disagreed with the opinions of these experts. It instead found that the two additional competency evaluations, by Drs. Spencer and Livingston, generated closer to the time of trial, were supportive of and consistent with Dr. Block-Garfield’s findings. Considering all of the evidence available to the trial judge, we find no abuse of discretion in his conclusion that Henry’s trial counsel was not ineffective in the manner and degree to which he investigated the mental health issues and that Henry’s counsel was not ineffective for not retaining additional mental health experts.

C. Henry’s Waiver of His Right to Present Mitigation

Henry’s arguments regarding ineffective assistance of counsel during the penalty phase all culminate in his broader assertion that his decision to waive his right to mitigation was not knowingly and intelligently made. In other words, he claims that since trial counsel did not adequately investigate all of the mitigation that was available to him at the time, Henry was unable to fully appreciate the magnitude of his waiver, thus making his waiver invalid.

Initially, we note that this Court expressly considered the issue of Henry’s waiver of mitigation in his direct appeal, finding that “the instant trial court carefully and conscientiously considered this case, as evidenced by the finding of two miti-gators in spite of Henry’s refusal to allow presentation of more testimony. Thus, we see no error arising from Henry’s knowing and voluntary waiver....” Henry, 613 So.2d at 433. Henry’s present claim appears to be an attempt to revisit an issue already raised and rejected by this Court on direct appeal. Such relitigation of old issues under new arguments is prohibited. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (“It is also not appropriate to use a different argument to relitigate the same issue.”).

Regarding the merits of this claim, Henry relies on this Court’s decision in Lewis. As previously noted, in Lewis, this Court held that trial counsel was ineffective for not spending sufficient time preparing for mitigation prior to Lewis’s waiver. Lewis, 838 So.2d at 1114. In that case, as here, the defendant waived his right to present mitigation; Lewis likewise later argued ineffective assistance of trial counsel, claiming that his attorney did not conduct an adequate penalty phase investigation and therefore could not properly advise him as to the ramifications of waiving his right to present mitigation. Id. at 1108. Furthermore, like Henry, Lewis informed his attorney that he did not want any family members to testify at the penalty phase or for any other form of mitigation to be presented. Id. at 1110.

However, these two cases involve significant differences. First, this Court did not rule on Lewis’s waiver of his right to present mitigation on direct appeal, as we did in Henry. Furthermore, trial counsel in Lewis did not obtain any mental competency testing before trial, waiting to retain an expert until after the guilty verdict was rendered. Lewis, 838 So.2d at 1109. In fact, the expert, did not have time to render a professional conclusion before the penalty phase began. Id. However, in the instant case, a mental health evaluation had already been performed by the time trial counsel took over, and counsel also moved successfully for the appointment of two additional mental health experts to ensure competency. Also, while the defendants in each case requested that family members not testify at the penalty phase, in Henry’s case, trial counsel still contacted and subpoenaed five witnesses so they would be present and available, should Henry change his mind regarding his waiver.

Ultimately, we find no reason, based on the evidence presented at the postconviction hearing, to disturb our earlier ruling approving the trial court’s acceptance of Henry’s decision to waive his right to present mitigation in the penalty phase of this trial. Furthermore, we do not find that trial counsel rendered ineffective assistance under these circumstances. This Court held in Stewart v. State, 801 So.2d 59 (Fla.2001), that “the reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Id. at 67 (quoting Cherry v. State, 781 So.2d 1040, 1050 (Fla.2000)). Wiggins instructs that the inquiry regarding ineffective assistance and mitigation should focus on whether trial counsel’s decision was reasonable at the time the decision was made, without the benefit of hindsight. Certainly, both Wiggins and the ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases § 10.11 (rev. ed.2003) on counsel’s duties mandate mitigation investigation and preparation, even if the client objects. However, in this case, trial counsel complied with those dictates, investigating mental health issues and other mitigation and even subpoenaing witnesses against his client’s consent for the penalty phase in case he changed his mind. Given Henry’s adamant, informed refusal to participate in the investigation and preparation of any type of mitigation, we conclude that counsel’s preparation and Henry’s decision to waive his rights did not deny him of a rehable penalty phase proceeding. See Power v. State, 886 So.2d 952, 959-61 (Fla.2004) (denying ineffectiveness claim based on failure to present mitigating evidence because the failure was a result of compliance with the defendant’s request, not lack of investigation).

II. Bifurcation of the Evidentiary Hearing

While we uphold the trial court’s ultimate conclusion that trial counsel’s performance was not deficient in this instance, thus obviating the need for any inquiry as to whether he suffered the requisite prejudice under Strickland, we also consider Henry’s claim of error in the trial court’s decision to limit any testimony or evidence presented at the rule 3.850 evidentiary hearing to Strickland’s deficient performance prong only.

Recently, we expressed concerns for such practice in Grosvenor v. State, 874 So.2d 1176 (Fla.2004). In that case, the defendant filed a motion for postconviction relief, alleging that trial counsel was ineffective for failing to advise her of a possible defense that, presumably would have convinced her to proceed to trial instead of accepting a plea bargain. Id. at 1177. The trial court assumed, for the purposes of the evidentiary hearing, that trial counsel’s performance was deficient, and thus only considered whether Grosvenor suffered prejudice under Strickland. Id. at 1178. We explicitly addressed the trial court’s decision in that case to bifurcate the issues of performance and prejudice at the evidentiary hearing. Id. at 1182-83. Noting that the stated goal of the bifurcation in that instance was the conservation of time and resources, we concluded that Grosvenor demonstrated that “such a process fails to achieve the desired efficiency.” Id. at 1182. Furthermore, we observed:

In many ineffective assistance of counsel claims ... the deficient performance prong and the prejudice prong are related and can involve similar issues....
In this case, much of the evidence presented at the evidentiary hearing would have been relevant to counsel’s alleged deficient performance as well as to prejudice. For example, Grosvenor’s trial counsel testified that he considered the voluntary intoxication defense but that Sumter County juries do not view such a defense with favor. This testimony is relevant to whether Grosvenor’s counsel performed deficiently in failing to inform her of the voluntary intoxication defense. Because the evidentiary hearing and the trial court’s order specifically focused only on the prejudice prong, however, we cannot now consider this evidence to evaluate counsel’s performance.
For all these reasons, we are not convinced that bifurcating the hearing in this case achieved any efficiency. Moreover, when a court considers only the prejudice prong and concludes that no prejudice ensued, a later reversal— which may not happen until more than a year later — may require another eviden-tiary hearing on the deficient performance prong, thereby unnecessarily prolonging the process. We suggest that courts consider such problems when determining whether to bifurcate an ineffective assistance of counsel claim.

Id. at 1182-83. Although we have ultimately concluded that the trial court did not. err in rejecting Henry’s Strickland claims, we nevertheless repeat our concerns from Grosvenor here.

We conclude that while Strickland claims can be properly dispensed with on either of the two prongs, limiting the scope of inquiry at the outset to only one prong seems to create more problems than it solves. First, as in both Grosvenor and the instant case, the two inquiries are often too interrelated to meaningfully separate them for the purposes of evidentiary development. For example, in the case currently before us, the postconviction experts who examined Henry were called in to testify at the evidentiary hearings, but were allowed to testify only as to the sufficiency of Dr. Block-Garfield’s mental health evaluation insofar as it related to the adequacy of trial counsel’s performance. They were prevented from relating their findings and evaluations regarding Henry’s mental condition, which the trial court believed related only to prejudice. However, given the intertwined nature of such inquiries, the transcripts from the evidentiary hearings are full of instances when the parties would object to a line of questioning, forcing the trial court to stop and analyze the particular Strickland prong a potential answer could address and permit or prohibit the question accordingly. While the two inquiries under Strickland ultimately require separate and distinct analyses, limiting evidentiary development to only half of the full query seems to be an awkward approach for answering the broader question of ineffective assistance of counsel in postconviction motions.

When adopting the amendments to Florida Rule of Criminal Procedure 3.851, we clearly stated our intention to “identify and eliminate those capital postconviction procedures that have historically created unreasonable delays in the process, while still maintaining quality and fairness.” Amendments to Fla. Rules of Criminal Procedure 3.851, 3.852 3.993, 772 So.2d 488, 489 (Fla.2000). In fact, in adding the requirement for an evidentiary hearing on initial motions for postconviction relief, we specifically sought to reduce the “unwarranted delay[s]” that result when this Court is forced to overturn the trial court on postconviction motions. Id. As emphasized in Grosvenor, given our focus on adjudicating postconviction claims in a timely fashion, bifurcating a Strickland inquiry seems especially problematic, since a reversal by this Court on one prong of Strickland would require new proceedings on the same question of ineffective assistance of counsel as was addressed in the initial round of evidentiary hearings.

However, this case makes it abundantly clear that the ultimate goal of efficiency in postconviction proceedings was not achieved in bifurcating the evidentiary hearing regarding ineffective assistance of trial counsel. Henry originally filed his postconviction motion in October of 1998, with the Huff hearing held in June of 1999; the two subsequent evidentiary hearings were held, both confined to the deficient performance prong only, in October of 2000 and in August of 2001. However, the trial court did not issue its order denying relief until January of 2008, almost seventeen months after the conclusion of the second evidentiary hearing. If this Court had in fact found trial counsel’s performance to be deficient, it is clear that the final ruling on Henry’s postconviction motion would have been prolonged indefinitely, given the time it would take both for the trial court to schedule another round of evidentiary hearings and for the parties to have time to prepare. Such a protracted timeline is not consistent with this Court’s amendments to rule 3.851. While we find no reversible error here, we again caution trial judges to be very careful when considering such a procedure.

PETITION FOR WRIT OF HABEAS CORPUS

Henry raises three claims in his petition for writ of habeas corpus filed directly in this Court: (1) whether appellate counsel failed to raise numerous issues which warranted reversal due to the page number limitation imposed on appellate briefs by this Court; (2) whether appellate counsel failed to raise claims on direct appeal concerning an incomplete record and change of venue; and (3) whether the constitutionality of the first-degree murder indictment must be revisited in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

I. Page Limitations

Unless leave is otherwise granted, this Court limits initial briefs in capital cases to 100 pages. In Basse v. State, 740 So.2d 518 (Fla.1999), this Court explained the rationale for such limitations in holding that district courts have the authority to establish page limitations on writ petitions:

Placing page limits on writ petitions simply requires a petitioner to provide a distinct and succinct focus and improves the ability of a court to issue rulings in writ cases in a more timely and efficient fashion than if the court had to pore through countless pages of what may be unnecessary and repetitive arguments or irrelevant information. Therefore, we conclude that courts may impose reasonable page limits on petitions for extraordinary writs.

Id. at 519. In addition, the federal circuit courts have also upheld reasonable page limitations as conducive to effective appellate advocacy:

Even in a death-penalty case, the court expects counsel to be highly selective about the issues to be argued on appeal and about the number of words used to press those issues....
We do not understand a limitation on the number of pages in a brief to be a blow against an appellant’s case or an act that undercuts effective advocacy. To the contrary, we see reasonable limitations of pages to be a help to good advocacy by directing busy lawyers to sharpen and to simplify their arguments in a way that — as experience has taught us — makes cases stronger, not weaker.

United States v. Battle, 163 F.3d 1, 1 (11th Cir.1998). We agree with this reasoning. Furthermore, this Court rejected a similar claim in Johnson v. Singletary, 695 So.2d 263, 266 (Fla.1996), in which we held that the page limitation did not preclude the defendant from appealing matters that would not fit within the initial brief. In addition, we find that this claim is insufficiently pled, since Henry does not cite to specific arguments that could have been made had counsel been allowed an infinite page limit. Without any claim as to what meritorious issues could have been argued, it is impossible to determine any prejudice Henry could have suffered from the page limitation.

II. Ineffectiveness of Appellate Counsel

We conclude, as with the page limitation claim, that both of Henry’s arguments with regard to ineffective assistance of appellate counsel are insufficiently pled. Regarding the incomplete trial file, Henry argues only that a hearing regarding the voir dire, which was later referenced during voir dire, was not recorded, nor were discussions that occurred during bench conferences. However, there is no discussion of any prejudice resulting from these omissions. Henry further alleges that “critical exhibits, depositions, trial transcripts, the jury questionnaires, and pages from the record on appeal” were omitted. However, other than asserting that these documents are “material” to Henry’s claims, Henry does not explain how they are material or why he has suffered prejudice.

This Court faced a similar argument in Thompson v. State, 759 So.2d 650 (Fla.2000). There, we held:

Thompson contends that this Court was not provided with an adequate record during the direct appeal because some pretrial hearings and bench conferences were not transcribed and included in the appellate record. Because Thompson did not raise any inadequacy in the appellate record during direct appeal, his posteonviction claim on this basis is procedurally barred.
In his closely related habeas claims one and two, Thompson asserts that his appellate counsel was ineffective for failing to ensure that a complete record was compiled for the direct appeal and failing to raise this issue on direct appeal .... In order to grant habeas relief on the basis of ineffective assistance of appellate counsel, this Court must determine “first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.”
We have previously rejected a similar claim that appellate counsel was ineffective for failing to have transcribed portions of the record, including parts of voir dire, the charge conference, and a discussion of whether the defendant would testify. We reasoned that “[h]ad appellate counsel asserted error which went uncorrected because of the missing record, or had [the defendant] pointed to errors in this petition, this claim may have had merit.” However, because the defendant “point[ed] to no specific error which occurred” during the portions of the record that remained untranscribed, we concluded that appellate counsel was not ineffective. As with the defendant in Ferguson, Thompson has not pointed to any errors that occurred during the untranscribed portions of the proceedings. Therefore, these habeas claims are without merit.

Id. at 660 (citations omitted) (alterations in original) (quoting Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995), and Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993)). Therefore, without any specificity as to how Henry has been prejudiced by the omissions in the record, denial of this claim is warranted under the applicable law.

The change of venue claim is likewise insufficiently pled. Henry devotes only three sentences to this argument in his initial brief, and barely expands upon it in his reply. There are no specific references made to any prejudice Henry suffered as a result of appellate counsel’s ineffectiveness in pursuing the change of venue argument. In fact, there is no specific record reference to the alleged “pervasive prejudicial pretrial publicity that permeated this case in Broward county,” other than the unsubstantiated statement that such prejudicial publicity existed.

As explained in Thompson, to succeed on a claim of ineffective assistance of appellate counsel, Henry must first demonstrate that the error was so substantial that it fell outside of the range of professionally acceptable performance and, furthermore, that this deficiency compromised the appellate proceedings to such an extent as to undermine confidence in the result. 759 So.2d at 660. Aside from asserting that appellate counsel should have pursued this claim on appeal, Henry has alleged no facts establishing how the confidence in Henry’s appeal has been compromised. Thus, we find no merit in these contentions.

III. Relief Pursuant to Ring and Apprendi

We reject this claim because this Court has held that Ring does not apply retroactively to collateral proceedings. Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (‘We therefore hold that Ring does not apply retroactively in Florida and affirm the denial of Johnson’s request for collateral relief under Ring.”).

CONCLUSION

For the reasons stated, we affirm the circuit court’s denial of postconviction relief and deny Henry’s petition for a writ of habeas corpus.

It is so ordered.

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

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . Because we conclude that they are procedurally barred, we reject Henry's arguments that the following claims were improperly summarily denied: (1) Henry’s third statement to the police was involuntary, and it was admitted into evidence in violation of his constitutional rights; (2) the trial court erroneously admitted irrelevant and gruesome photographs into evidence, and trial counsel was ineffective for conceding admissibility; (3) the police lacked probable cause to arrest Henry; (4) Heniy did not make a knowing and intelligent waiver of his right to present penalty phase evidence, and trial counsel was ineffective for failing to investigate whether he was capable of waiving his right to present mitigation; (5) the avoid arrest aggravator is unconstitutional, it was improperly applied in this instance, and the juty received inadequate instructions; (6) the jury was improperly instructed regarding the burden of proof at sentencing; (7) the cold, calculated and premeditated aggravating factor was not supported by the evidence; (8) the trial court overbroadly and vaguely instructed the jury on the previous conviction of a violent felony aggravating circumstance; (9) the jury was misled regarding its ability to exercise mercy and sympathy, depriving Henry of a reliable and individualized capital sentencing determination; (10) Henry was absent from critical stages of the proceedings; (11) Henry was denied his constitutional right to a fair and impartial trial when the trial court failed to change venue; (12) Henry was denied effective assistance of counsel at trial because trial counsel failed to object to the use of evidence concerning the decedents and their families; (13) trial counsel was ineffective for failing to object to unreliable scientific and forensic evidence; (14) there was insufficient evidence for the existence of the HAC aggravator; (15) Henry was denied effective assistance of counsel for failing to attack the aggravating circumstances; (16) Henry was denied effective assistance of counsel for failing to object to the admission of Thermidor's dying declaration; and (17) Henry was discouraged from exercising his constitutional right to present evidence by operation of Florida Rule of Criminal Procedure 3.250.

      . We find that the following claims were properly denied without an evidentiary hearing because they are conclusively refuted by the record: (1) the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) Henry’s jury was improperly instructed that one single act supported two separate aggravating factors; and (3) the trial court erred in refusing to excuse for cause jurors who were biased in favor of the death penalty.

      . We conclude that the following claims are facially or legally insufficient as alleged and thus were properly summarily denied: (1) access to certain files pertaining to Henry's case was withheld by certain agencies; (2) access to Henry's trial file was denied by Henry's current counsel; (3) Florida’s capital sentencing statute is unconstitutional both on its face and as applied; (4) trial counsel was ineffective for failing to pursue a voluntary intoxication defense; (5) Henry is insane and, therefore, cannot be executed; and (6) the entire body of forensic testimony presented in the case was tainted by the low standards endemic to the Broward Sheriff's Office Forensics laboratory at the time of Henry's arrest.

      .Because we conclude that the following claims are without merit as a matter of law, we reject Henry’s arguments that they were improperly denied without an evidentiary hearing: (1) the jury was improperly instructed on the pecuniary gain aggravator, Henry's death sentence is unconstitutional because of the improper application of the pecuniary gain aggravator, and counsel was ineffective for not objecting to these instructions during the penalty phase; (2) the felony murder ag-gravator is unconstitutional; (3) the cumulative effect of all the alleged errors amounts to fundamental error; and (4) Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders the Florida capital sentencing scheme unconstitutional.