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    Michael A. TANZI, Appellant, v. STATE of Florida, Appellee.
    No. SC05-457.
    Supreme Court of Florida.
    May 10, 2007.
    Rehearing Denied Aug. 27, 2007.

      Bennett H. Brummer, Public Defender, Andrew Stanton, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appel-lee.
   PER CURIAM.

Michael A. Tanzi appeals his conviction and sentence of death for first-degree murder. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm his conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

During her lunch hour on April 25, 2000, Janet Acosta was reading a book while seated inside her maroon van parked at the Japanese Gardens in Miami. At that time, Tanzi was stranded in Miami without a means of returning to Key West, where he had been residing for the previous months. Tanzi saw Acosta sitting in her vehicle with her window rolled down and approached her, asking for a cigarette and the time. When Acosta was distracted, Tanzi punched her in the face until he gained entry to the van. He then threatened her with a razor blade and drove away with Acosta in the van. Tanzi held Acosta by the wrist until he reached Homestead.

Upon reaching Homestead, Tanzi stopped at a gas station, where he bound Acosta with rope that was in her van and gagged her with a towel. Tanzi further threatened Acosta, telling her that if she kicked or made noise he would cut her from ear to ear. Tanzi took Acosta’s fifty-three dollars in cash. He then bought some cigarettes and a soda and attempted to use Acosta’s bank card, which he had obtained after rifling through her belongings. While still in Homestead, Tanzi also forced Acosta to perform oral sex, threatening to kill her with his razor if she injured him. However, he stopped her from continuing because Acosta’s teeth were loose as a result of the earlier beating.

Tanzi then continued to drive with Acosta bound and gagged in the rear of the van until he reached Tavernier in the Florida Keys, where he stopped at approximately 5:15 p.m. to withdraw money from Acosta’s bank account. He again threatened Acosta with the razor in order to obtain Acosta’s personal identification number. Tanzi thereafter stopped at a hardware store to purchase duct tape and razor blades.

Tanzi continued his journey until approximately 6:30 p.m. when he reached Sugarloaf Key. He decided that he needed to get rid of Acosta as she was getting in the way. He also knew he would get caught quickly if he released her alive. Tanzi proceeded to Blimp Road, an isolated area in Cudjoe Key. Tanzi told Acosta that he was going to kill her and then crosslaced a piece of rope and began to strangle her. He temporarily stopped to place duct tape over her mouth, nose, and eyes in an attempt to stifle the noise. Tanzi then continued to strangle Acosta until she died. Tanzi disposed of Acosta’s body in a wooded, secluded area where he thought she would go unnoticed.

After the murder, Tanzi drove to Key West, where he shopped, ate, smoked marijuana, visited with friends, and used Acosta’s ATM card. Tanzi had planned to access more of Acosta’s money, sleep in a hotel, purchase drugs, and alter the van’s appearance. However, on April 27, 2000, Tanzi’s activities were interrupted when the police observed him returning to Acosta’s van, which the police had located and placed under surveillance after Acosta’s friends and coworkers reported her missing. When the police approached Tanzi, he had receipts in his pocket showing his ATM withdrawals and purchases. Tanzi stated that he “knew what this was about.” He also spontaneously stated he wanted to talk about some bad things he had done.

After waiving his rights and while in a police car en route to the Key West Police Department, Tanzi confessed that he had assaulted, abducted, robbed, sexually battered, and killed Janet Acosta. Tanzi repeated his confession with greater detail several times on audio and video tape. Tanzi also showed the police where he had disposed of Janet Acosta’s body and where he had discarded the duct tape and rope.

Tanzi was indicted for the first-degree murder of Janet Acosta. He was also charged by amended information with carjacking with a weapon, kidnapping to facilitate a felony with a weapon, armed robbery with a deadly weapon, and two counts of sexual battery with a deadly weapon. Initially, Tanzi pled not guilty; however, shortly before trial, Tanzi entered a guilty plea to the first-degree murder, carjacking, kidnapping, and armed robbery counts. The two remaining sexual battery counts were severed.

After the plea colloquy and following a lunch recess, defense counsel moved to waive the penalty phase jury; however, the trial judge denied the motion. Hours later and arguing pro se, Tanzi stated that he had problems with one of his attorneys and vaguely mentioned that he should have a jury determine his guilt if he was forced to have a penalty phase jury. While the trial judge inquired into Tanzi’s dissatisfaction with his attorneys, the judge did not rule on Tanzi’s oral motion to withdraw his plea. The case proceeded to the penalty phase before a jury.

On February 19, 2003, the jury returned a unanimous recommendation of a death sentence. The court followed the jury’s recommendation and sentenced Tanzi to death, finding that the aggravators greatly outweighed the mitigators. The court also sentenced Tanzi to consecutive life sentences for carjacking with a deadly weapon, kidnapping to facilitate a felony with a deadly weapon, and armed robbery with a deadly weapon.

On May 9, 2003, Tanzi filed a written motion to withdraw his plea, and an evi-dentiary hearing on the motion was held on November 15, 2004. The court entered a written order denying Tanzi’s motion to withdraw his plea on January 6, 2005. This direct appeal followed.

II. ISSUES RAISED ON APPEAL

Tanzi raises six claims on appeal: (A) the trial court erred in denying Tanzi’s motion to withdraw his guilty plea; (B) the trial court erred in permitting questions regarding lack of remorse; (C) the trial court erred in permitting impeachment of Tanzi’s expert witness by a specific and unrelated act of misconduct; (D) the trial court erred in admitting Tanzi’s confession to sexual battery; (E) the trial court erred in assessing the murder in the course of a felony aggravator twice; and (F) the trial court did not properly consider and weigh mitigation evidence. None of these claims warrant relief.

A. Motion to Withdraw Guilty Plea

Tanzi asserts that the trial court abused its discretion in denying his motion to withdraw his plea of guilty of first-degree murder. As stated previously, hours after entering his plea and after the trial court denied his motion to waive the penalty phase jury, Tanzi expressed dissatisfaction with his counsel and vaguely mentioned that he should have a guilt phase jury since he was being forced to have a penalty phase jury. Tanzi’s feeling that he should have a jury determine his guilt was intertwined with his expressions of dissatisfaction with his counsel. While the trial court inquired into Tanzi’s dissatisfaction with his counsel, the trial court did not inquire into Tanzi’s statements regarding a guilt phase. Then, after Tanzi was sentenced, defense counsel presented a more artfully written motion to withdraw Tanzi’s guilty plea.

After holding an evidentiary hearing on the motion, the trial court concluded that Tanzi did not establish “good cause” for withdrawing his guilty plea. The trial court’s order stated:

The evidence presented showed that Counsel and the Defendant discussed entering a plea of guilty, the reasons for doing so, and the hoped for result. The Defendant knew that the results of the strategy were necessarily uncertain because the decision was entirely within the Court’s discretion. Having been fully informed and having elected to adopt the strategy recommended by Counsel, the Defendant will not be heard to repudiate that choice because it was not successful.

The trial court found that Tanzi was properly advised and that Tanzi understood the consequences of his plea, specifically that a penalty phase jury waiver was not guaranteed as a result of his plea.

Because Tanzi orally mentioned a desire to have a guilt phase prior to his sentence, both parties agree that the presentence standard of Florida Rule of Criminal Procedure 3.170(f) applies to Tanzi’s motion to withdraw his plea. At the outset, we note that this presentence standard is favorable to defendants, and trial courts are encouraged to liberally grant motions made before sentencing. See State v. Partlow, 840 So.2d 1040, 1044-45 (Fla.2003) (Cantero, J., concurring). However, in this case, Tanzi did not present an unequivocal request to withdraw his plea prior to sentencing. And, when Tanzi presented a written motion to withdraw his plea after sentencing, the trial court properly related the written motion back to the earlier oral motion and applied the more lenient pre-sentence standard of rule 3.170(f).

Specifically, rule 3.170(f) provides that “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn.” In Robinson v. State, 761 So.2d 269 (Fla.1999), this Court explained the presentence standard in the following manner:

The burden is upon a defendant to establish good cause under the rule, and use of the word “shall” indicates that such a showing entitles the defendant to withdraw a plea as a matter of right. Use of the word “may,” however, suggests that the rule also allows, in the discretion of the court, withdrawal of the plea in the interest of justice, upon a lesser showing than good cause. In any event, this rule should be liberally construed in favor of the defendant. Adler v. State, 382 So.2d 1298, 1300 (Fla. 3d DCA 1980). The law inclines toward a trial on the merits; and where it appears that the interests of justice would be served, the defendant should be permitted to withdraw his plea. Morton v. State, 317 So.2d 145, 146 (Fla. 2d DCA 1975). A defendant should be permitted to withdraw a plea “if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights” (emphasis supplied). Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982).

Id. at 274 (emphasis omitted) (quoting Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983)). At the trial level, “[i]n order to show cause why the plea should be withdrawn, mere allegations are not enough; the defense must offer proof that the plea was not voluntarily and intelligently entered.” Id. “Further, on appeal from the denial of the motion to withdraw the plea, the burden rests on the defendant to show the trial court abused its discretion in denying the defendant’s motion.” Id.

Because the trial court’s findings are supported by competent, substantial evidence in the record, we find that the trial court did not abuse its discretion in denying Tanzi’s motion to withdraw his plea. For example, the record demonstrates that during the plea colloquy, Tanzi stated that he understood that a penalty phase before a jury would follow and that he could still be sentenced to death. Additionally, Tanzi signed an affidavit, which was presented to the court when Tanzi moved to waive the penalty phase jury, that indicated that “[n]o person has made any ‘off the record’ assurances to him regarding the consequences of this plea.” At the evidentiary hearing, Tanzi’s counsel, Mr. Kuypers, testified that Tanzi agreed to a strategy of pleading guilty and then requesting a jury waiver. Mr. Kuypers also testified that he had explained to Tanzi that it was uncertain whether the trial court would agree to the jury waiver and that Tanzi appeared to understand. Further, during the Nelson inquiry, Tanzi stated that his counsel accurately advised him that he “would be able to waive the jury part of the guilt phase, but [he] wouldn’t be able to waive the jury part of the trial of the penalty phase.”

Therefore, the trial court’s findings are supported by competent, substantial evidence in the record. And, this Court “recognize[s] and honorfe] the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.” Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999). Accordingly, we find that the trial court did not abuse its discretion in denying Tanzi’s motion to withdraw his plea.

B. Lack of Remorse

Tanzi alleges that the trial court erred in allowing the State to present evidence of lack of remorse. In an attempt to establish mitigation, Tanzi’s own mental health expert explained on direct examination how antisocial personality disorder can develop from childhood abuse, and that lack of remorse, particularly as a child, is a symptom of antisocial personality disorder. This same mental health expert indicated that Tanzi suffered from antisocial personality disorder. Consistent with the defense expert’s theory, the State during rebuttal mentioned that childhood mental health reports indicated Tanzi demonstrated lack of remorse as a child. In its closing, the State also mentioned these childhood reports and that lack of remorse is a symptom of antisocial personality disorder. The trial court instructed the jury that lack of remorse is not an aggravating circumstance and that the jury was not to consider it as one.

“The admissibility of evidence is within the sound discretion of the trial court, and the trial court’s determination will not be disturbed on appellate review absent a clear abuse of that discretion.” Brooks v. State, 918 So.2d 181, 188 (Fla.2005), cert. denied, — U.S. -, 126 S.Ct. 2294, 164 L.Ed.2d 820 (2006). This Court’s precedent clearly prohibits lack of remorse as evidence of an aggravating factor. In Pope v. State, 441 So.2d 1073, 1078 (Fla.1983), this Court held that “lack of remorse is not an aggravating factor” and that “lack of remorse should have no place in the consideration of aggravating factors.” Additionally, in Atwater v. State, 626 So.2d 1325, 1828 (Fla.1993), this Court found that a trial court “erred in permitting the State on cross-examination to ask [the defense’s expert] whether persons with antisocial personality showed remorse.” However, this Court has permitted evidence of lack of remorse to rebut proposed mitigation, such as remorse and rehabilitation. See Singleton v. State, 783 So.2d 970, 978 (Fla.2001) (holding “that lack of remorse is admissible to rebut evidence of remorse or other mitigation such as rehabilitation”); cf. Derrick v. State, 581 So.2d 31, 36 (Fla.1991) (finding that although lack of remorse is permitted to rebut evidence of remorse or rehabilitation, the trial court erred in permitting the State to present evidence of lack of remorse before the defense presented any testimony).

In this case, the trial court did not abuse its discretion in allowing the State’s questions regarding lack of remorse. Tanzi’s mitigation witness opened the door to this line of questioning. See Ellison v. State, 349 So.2d 731, 732 (Fla. 3d DCA 1977) (“Having opened the door to this line of questioning by his own direct testimony, [defendant] cannot now be heard to complain that the State marched through the door so opened.”). Further, from a review of the record, it is clear that the State used lack of remorse to rebut the proposed mitigator of bipolar disorder, not to establish an aggravator. The State did not present any testimony regarding Tanzi’s remorse or lack thereof for Acosta’s murder. Moreover, the trial judge instructed the jury that it was not to consider lack of remorse as an aggravator. Because lack of remorse was mentioned by the defense on direct and because the State used it to rebut a proposed mitigator, we find that the trial court did not abuse its discretion.

C. Impeachment of Expert Witness

Tanzi asserts that the trial court abused its discretion when it permitted the State to impeach the character of Dr. Vi-cary, a defense mental health expert, with a specific and unrelated act of misconduct. More specifically, the trial court allowed the prosecution to question Dr. Vicary regarding a 1998 suspension of his California medical license due to his involvement in the case of Eric Menendez as both a treating physician and a forensic scientist. At the direction of Menendez’s attorney, Dr. Vicary had rewritten his notes and deleted passages that were damaging to the defense.

A trial court’s admission of evidence will not be disturbed on appeal absent a clear abuse of discretion. Brooks, 918 So.2d at 188; see also Morrison v. State, 818 So.2d 432, 448 (Fla.2002) (“[T]he decision as to whether a particular question properly goes to interest, bias, or prejudice lies within the discretion of the trial judge.”) (quoting Charles W. Eh-rhardt, Florida Evidence § 608.5 (1997 ed.)). While impeachment of a witness’s character by specific acts of misconduct is prohibited, Fernandez v. State, 730 So.2d 277, 282 (Fla.1999); Farinas v. State, 569 So.2d 425, 429 (Fla.1990), “[o]ur evidence code liberally permits the introduction of evidence to show the bias or motive of a witness.” Gibson v. State, 661 So.2d 288, 291 (Fla.1995). “Included within the types of matters that demonstrate bias are those that relate to the interest of the witness, favoritism, and corruption.” Morrison, 818 So.2d at 447 (alteration in original) (quoting Ehrhardt, supra § 608.5).

Dr. Vicary’s willingness to forge his interview notes at the request of a defense attorney could illustrate Dr. Vicary’s corruption as a mental health expert. Therefore, because this line of impeachment could properly relate to the witness’s bias, we find that the trial court did not abuse its discretion in permitting it.

D. Sexual Battery Confession

Next, Tanzi claims that the trial court failed to follow the requirements of section 92.565, Florida Statutes (2002), when admitting Tanzi’s confession to sexual battery. However, the trial court admitted Tanzi’s sexual battery confession because it found the existence of a prima facie case (or in other words, the existence of the corpus delicti), making it unnecessary for the trial court to test the reliability of the confession using the procedures outlined in section 92.565.

It is within the trial court’s province “to determine the sufficiency of the proof of the corpus delicti.” Frazier v. State, 107 So.2d 16, 26 (Fla.1958). This Court has articulated the following standards that govern a corpus delicti analysis:

The general order of proof is to show that a crime has been committed and then that the defendant committed it. Spanish v. State, 45 So.2d 753 (Fla.1950); see State v. Allen, 335 So.2d 823 (Fla.1976). “But in many cases the two elements are so intimately connected that the proof of the corpus delicti and the guilty agency are shown at the same time.” Spanish, 45 So.2d at 754. Thus, the “evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together and inseparable on one foundation of circumstantial evidence.” Cross v. State, 96 Fla. 768, 780-81, 119 So. 380, 384 (1928). A defendant’s confession or statement “may be considered in connection with the other evidence,” but “the corpus de-licti cannot rest upon the confession or admission alone.” Id. at 781, 119 So. at 384. Before a confession or statement may be admitted, there must be prima facie proof tending to show the crime was committed. Frazier v. State, 107 So.2d 16 (Fla.1958); Cross; see Farinas v. State, 569 So.2d 425 (Fla.1990); Bassett v. State, 449 So.2d 803 (Fla.1984). Additionally, by the end of trial the corpus delicti must be proved beyond a reasonable doubt. Cross.

Schwab v. State, 636 So.2d 3, 6 (Fla.1994).

Based upon the facts in the record, the same facts which were before the trial court, the trial court did not err in finding the required prima facie existence of the corpus delicti. Tanzi confessed to forcing Acosta to perform oral sex under a threat to cut her throat with a razor and that he ordered her to stop when her loose teeth had lessened his pleasure. A medical examiner determined that Acosta’s teeth were in fact loose. A towel containing Tanzi’s semen was found in Acosta’s van, the location Tanzi indicated the oral sexual battery took place. Further, razors were discovered in Acosta’s van. Based on these facts, the trial court did not abuse its discretion in finding the corpus delicti and admitting Tanzi’s confession to sexual battery.

E. Assessment of the Murder in the Course of a Felony Agyravator

Tanzi asserts that the trial court impermissibly doubled the aggravator that the murder was committed during the course of a felony by listing its finding that Tanzi committed the murder during the course of a kidnapping as aggravator number two and by listing its finding that Tanzi committed the murder during the course of sexual batteries as aggravator number three.

In reviewing aggravating factors on appeal, this Court “review[s] the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” Willacy v. State, 696 So.2d 693, 695 (Fla.1997). Section 921.141(5), Florida Statutes (1999), provides an exclusive list of aggravating factors, expressly stating that “[a]ggravating circumstances shall be limited to” those aggravators. This Court has stated that section 921.141 “is designed to limit the unbridled exercise of judicial discretion in cases where the ultimate penalty is possible.” Provence v. State, 337 So.2d 783, 786 (Fla.1976). The particular statutory ag-gravator at issue is:

The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.

§ 921.141(5)(d), Fla. Stat. (1999). Nothing in this provision appears to authorize a trial court to treat this single aggravator as multiple and separate aggravators depending upon the number of felonies committed. Instead, if a trial court determines that a defendant committed a capital offense during the course of any of the felonies delineated above, the trial court can find this single aggravating circumstance. See also Stevens v. State, 419 So.2d 1058, 1063-64 (Fla.1982) (treating the fact that a murder was committed during the course of multiple felonies as a single aggravating circumstance). Of course, the trial court is free to give this single felony murder aggravating circumstance greater weight due to the fact the murder was committed during the course of multiple felonies. Therefore, the trial court in this case should have found one murder in the course of a felony aggravator based upon the multiple felonies of kidnapping and sexual battery and weighed the aggravator accordingly.

Having determined that one murder in the course of a felony aggravating circumstance was erroneously listed by the trial court, this Court must determine if this error was harmless. The record reflects six valid aggravators: (1) that the murder was committed by a person previously convicted of a felony and under sentence of imprisonment or on community control or on felony probation; (2) that the murder was committed while Tanzi was engaged in the commission of kidnapping and sexual batteries; (3) that the murder was committed for the purpose of avoiding arrest; (4) that the murder was committed for pecuniary gain; (5) that the murder was especially heinous, atrocious, or cruel (HAC); and (6) that the murder was committed in a cold, calculated, and premeditated manner (CCP). The trial court gave each of these valid aggravators “great weight’! except the HAC aggravator, which the trial court gave “utmost weight.” Therefore, there are six substantial aggra-vators, including the HAC. and CCP aggra-vators, and nonstatutory mitigation that the trial judge gave “some weight” and “some small weight.” After carefully reviewing the record, including the jury’s unanimous recommendation of death, it is clear beyond a reasonable doubt that even without a second murder in the course of a felony aggravator, the trial court would have found that the aggravating factors present in this case substantially outweighed the mitigating evidence. Thus, this Court concludes beyond a reasonable doubt that the error did not contribute to the trial court’s imposition of a death sentence. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (stating that the harmless error test requires the State “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict”).

F. Consideration of Mitigation Evidence

Tanzi next claims that the trial court erred in three respects: first, by failing to properly weigh the mitigating factors; second, by not finding the proposed mitigating factor of a history of substance abuse; and third, by not finding the proposed mitigating factor of the alternative of life without parole. “When addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of non-statutory factors, it is truly of a mitigating nature.” Campbell v. State, 571 So.2d 415, 419 (Fla.1990) (footnote omitted), receded from on other grounds by Trease v. State, 768 So.2d 1050, 1055 (Fla.2000). “Whether a particular circumstance is truly mitigating in nature is a question of law and [is] subject to de novo review by this Court[.]” Ford v. State, 802 So.2d 1121, 1135 (Fla.2001) (quoting Blanco v. State, 706 So.2d 7, 10 (Fla.1997)). “A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.” Campbell, 571 So.2d at 419-20 (quoting Fla. Std. Jury Instr. (Crim.) Homicide). However, “[i]f competent substantial evidence exists to support a trial court’s rejection of proposed mitigation, that rejection will be upheld on appeal.” Banks v. State, 700 So.2d 363, 368 (Fla.1997). “The relative weight given each mitigating factor is within the discretion of the sentencing court.” Trease, 768 So.2d at 1055. “[W]hile a proffered mitigating factor may be technically relevant and must be considered by the sentencer because it is generally recognized as a mitigating circumstance, the sentencer may determine in the particular ease at hand that it is entitled to no weight for additional reasons or circumstances unique to that case.” Id.

(1) Weighing Mitigation

First, Tanzi claims that the trial court abused its discretion in assigning “some weight” to most of the mitigating circumstances it determined were established. The trial court considered each of the twenty-three mitigating circumstances supplied by Tanzi, and the trial court provided detailed factual findings as to reasons or unique circumstances upon which it based its evaluation of each mitigating circumstance. The trial court’s findings are supported by competent, substantial evidence in the record. Further, the trial court detailed the weight it decided to afford to each established mitigator with the one exception of the substance abuse mitigator. Having expressly considered each mitigator and the unique circumstances of this case, we find that the trial court did not abuse its discretion in weighing the mitigating circumstances.

(2) History of Drug Abuse

Second, Tanzi asserts that the trial court erred in its evaluation of the proposed mitigating circumstance that Tanzi had a history of substance abuse. After a lengthy discussion of Tanzi’s substance abuse at the time of the crime, the trial court’s sentencing order stated the following conclusion regarding this mitigating circumstance:

The court finds that the Defendant has a history of drug abuse and dependence, but that this problem was in remission at the time. This is borne out by the fact that after he robbed the victim of the $53 that was in her purse, he used the money to purchase a soda and several packs of cigarettes. He did not buy alcohol or attempt to buy drugs in Florida City. As it was in remission, this problem did not contribute to the commission of this capital crime.

The trial court’s order expressly states that that the proposed mitigating circumstance of a history of substance abuse was established. Although the trial court ideally should have assigned a specific weight to this mitigator, it is clear that the trial court carefully evaluated this mitigating factor. Its findings that Tanzi’s problem was in remission at the time of the crime and that Tanzi was not under the influence at the time of the crime indicate that the trial court did not place much weight on this mitigator. Further, its finding that Tanzi’s substance dependence was in remission is supported by competent, substantial evidence in the record. Therefore, because the trial court carefully evaluated Tanzi’s substance abuse, found that Tanzi had a history of substance abuse, and included detailed findings regarding its significance as a mitigating factor that are supported by competent, substantial evidence, any possible error in the trial court’s articulation of this mitigating circumstance was harmless. See Morris v. State, 811 So.2d 661, 667 (Fla.2002) (finding that the trial court found and properly weighed defendant’s history of drug abuse as a mitigating circumstance even though the sentencing order’s language was confusing); Barwick v. State, 660 So.2d 685, 696 (Fla.1995) (“Any error in articulating the particular mitigating circumstance was harmless.”), receded from on other grounds by Topps v. State, 865 So.2d 1258 (Fla.2004).

(3) Alternative Sentence of Life without Parole

Finally, Tanzi claims that the trial court erred in its generalized rejection of the proposed mitigating circumstance that a sentence of life imprisonment without the possibility of parole would protect society. This Court has held that “[pjarole ineligibility is mitigating in nature because it relates to the circumstances of the offense and reasonably may serve as a basis for imposing a sentence less than death.” Ford, 802 So.2d at 1136. “While [parole ineligibility] is mitigating in nature, it may or may not be mitigating under the facts in the case at hand (that is for the trial court to determine).” Id.

The trial court included the following in its sentencing order regarding this proposed mitigating factor:

This is not a mitigating circumstance. Arguably, it would be true for all capital cases.
Protection of society is a proper consideration as one of the goals to be achieved through incarceration of a criminal. However, imprisonment will not guarantee that a prisoner will not commit any further criminal acts. Incarcerated prisoners commit crimes. And a life sentence without the possibility of parole does not guarantee that a prisoner will not escape at some time in the future.
This court is of the opinion that the legislature did not intend to create an automatic mitigator when enacting the law providing for the sentence of life without the possibility of parole in capital cases. The court will give this alternative sentence no weight as a mitigator.

In its order, the trial court does not decide whether life without the possibility of parole was mitigating under the particular facts of this case. Instead, the trial court found that life without the possibility of parole is not mitigating in nature, a finding that is contrary to this Court’s precedent. However, any error present was harmless beyond a reasonable doubt in light of the following: (a) the trial court recognized and gave weight to numerous other mitigating circumstances; (b) this case involves substantial aggravation, including the HAC and CCP aggravating circumstances; and (e) the life without parole proposed mitigator is minor and tangential with respect to the record in this case. Accordingly, Tanzi’s claim is denied.

III. PROPORTIONALITY

“This Court must review the proportionality of a death sentence, even if the issue has not been raised by the defendant.” Bolin v. State, 869 So.2d 1196, 1204 (Fla.2004). Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Crook v. State, 908 So.2d 350, 356 (Fla.2005) (quoting Urbin v. State, 714 So.2d 411, 416 (Fla.1998)). Instead, the Court considers the totality of the circumstances to determine if death is warranted in comparison to other cases where the death sentence has been upheld. Davis v. State, 859 So.2d 465, 480 (Fla.2003). In addition, the heinous, atrocious, or cruel aggravator and the cold, calculated, and premeditated aggravator are “two of the most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.2d 90, 95 (Fla.1999).

The instant case involves a murder by strangulation after a kidnapping, robbery, and carjacking. The jury recommended death by a vote of twelve to zero for one count of first-degree premeditated murder. The trial court found six aggravating factors beyond a reasonable doubt, including HAC, CCP, prior felony, and commission for pecuniary gain. The trial court gave each aggravating circumstance “great weight,” except the HAC aggravator, which the judge gave “utmost weight.” The court found no statutory mitigators, although the trial court gave “some weight” and “some small weight” to ten nonstatutory mitigating circumstances: (1) “axis two” personality disorders; (2) institutionalization as a youth; (3) positive response to psychotropic drugs; (4) death of father at young age; (5) sex abuse as a child; (6) attempts to join the military; (7) cooperation with police; (8) assistance of inmates and love of reading; (9) familial relationship; and (10) history of substance abuse.

Under the totality of the circumstances, Tanzi’s sentence is proportional in relation to other death sentences that this Court has upheld. See, e.g., Davis, 859 So.2d 465 (finding death sentence proportional where three aggravators, including crime committed while on felony probation, HAC, and CCP, outweighed one statutory miti-gator and four nonstatutory mitigators); Johnston v. State, 841 So.2d 349 (Fla.2002) (finding death sentence proportionate for sexual battery, beating, and strangulation where court found prior violent felony, murder in the course of a felony, pecuniary gain, and HAC aggravators); Blackwood v. State, 111 So.2d 399 (Fla.2000) (finding death sentence proportional for strangulation where court found HAC aggravator, one statutory mitigator, and eight nonstat-utory mitigators); Mansfield v. State, 758 So.2d 636 (Fla.2000) (upholding death sentence where two aggravators, HAC and crime committed during the commission of a sexual battery, outweighed five nonstatu-tory mitigators); Hauser v. State, 701 So.2d 329 (Fla.1997) (finding death sentence proportionate where victim was strangled and trial court found three ag-gravators of HAC, CCP, and pecuniary gain, measured against one statutory miti-gator and four nonstatutory mitigators). Accordingly, Tanzi’s death sentence is proportional.

IV. SUFFICIENCY

This Court reviews “the record of a death penalty case to determine whether the evidence is sufficient to support the murder conviction.” Winkles v. State, 894 So.2d 842, 847 (Fla.2005). “However, ‘[w]hen a defendant has pled guilty to the charges resulting in a penalty of death, this Court’s review shifts to the knowing, intelligent, and voluntary nature of that plea.’ ” Id. (quoting Lynch v. State, 841 So.2d 362, 375 (Fla.2003)).

Tanzi’s plea was knowing and voluntary. During the plea colloquy, Tanzi expressed an understanding of the consequences of his plea, including an understanding that he could still face the death penalty. Tan-zi also stated that he was not coerced or promised anything in return. Additionally, in its order denying Tanzi’s motion to withdraw his plea, the trial court concluded that when Tanzi pled guilty, he was “fully informed” and “elected to adopt the strategy recommended by Counsel.” The trial court’s findings are supported by competent, substantial evidence in the record. Accordingly, this Court finds that Tanzi voluntarily and knowingly entered his plea and that the trial court properly accepted it.

V. CONCLUSION

For the reasons expressed above, we deny each claim raised on appeal and affirm Tanzi’s conviction and sentence of death.

It is so ordered.

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

      . Specifically, the trial court found the following aggravators: (1) that the murder was committed by a person previously convicted of a felony and under sentence of imprisonment or on felony probation; (2) that the murder was committed during the commission of a kidnapping; (3) that the murder was committed during the commission of two sexual batteries; (4) that the crime was committed for the purpose of avoiding arrest; (5) that the murder was committed for pecuniary gain; (6) that the murder was especially heinous, atrocious, or cruel (HAC); and (7) that the murder was committed iji a cold, calculated, and premeditated (CCP) manner. The court gave each aggravator "great weight” except the HAC aggravator, which the court gave "utmost weight.” The court found the following mitigators: (1) that Tanzi suffered from "axis two” personality disorders; (2) that he was institutionalized as a youth; (3) that his behavior benefited from psychotropic drugs; (4) that he lost his father at an early age; (5) that he was sexually abused as a child; (6) that he twice attempted to join the military; (7) that he cooperated with law enforcement; (8) that he assisted inmates by writing letters and that he enjoys reading; (9) that that his family has a loving relationship for him; and (10) that he had a history of substance abuse.

      . Tanzi also claims that Florida’s death sentencing statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). However, we need not reach this issue because in this case the jury unanimously recommended a death sentence, and Tanzi pled guilty to kidnapping, robbery, and carjacking, thereby establishing the aggravator® of a murder committed during the course of a felony.

      . Arguing pro se, Tanzi confusingly alleged the following, among other items: (a) that he had a sexual relationship with his lead counsel; (b) that his counsel was incompetent and lied; (c) that he should not need two attorneys; (d) that he should have a guilt phase if he was forced to have a penalty jury; (e) that there is no difference between the slow death of a life sentence and the fast death of the death penalty; and (£) that a plea would be a waste of the Court’s time. Further, during the inquiry held pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), that followed, Tanzi unsuccessfully attempted numerous arguments to disqualify his lead counsel, including (a) accusations of sexual contact (i.e., sexual touching and his masturbating in her presence); (b) statements that he would threaten to harm or kill his attorneys and statements that such threats had worked previously in other states to disqualify his attorneys; (c) accusations that his attorney lied to the court; and (d) a claim that his counsel had provided incorrect advice when counsel accurately informed him that he could waive the guilt jury but not the penalty juiy.

      . Tanzi's reply brief also included a claim that he should be entitled to relief based on cumulative error. When considering all of Tanzi's claims cumulatively, this Court remains confident in the outcome. Therefore, we reject this claim as well.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marbel MENDOZA, Appellant, v. STATE of Florida, Appellee. Marbel Mendoza, Petitioner, v. State of Florida, Respondent.
    Nos. SC04-1881, SC05-2143.
    Supreme Court of Florida.
    May 24, 2007.
    Rehearing Denied Aug. 23, 2007.

      Neal A. Dupree, Capital Collateral Regional Counsel — Southern Region and Rachel L. Day and Carla Chavez, Assistant CCRC — Southern Region, Fort Lauder-dale, FL, for Appellant/Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Ap-pellee/Respondent.
   PER CURIAM.

Marbel Mendoza appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.850, and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. We find that the circuit court erred in denying Mendoza’s postconviction claims. Neither in its order nor in the record did the circuit court evaluate the evidence presented at the postconviction evidentiary hearing. We therefore reverse. The circuit court judge who heard the evidence is now deceased, and thus a new evidentiary hearing is to be held upon remand. We deny Mendoza’s habeas petition on the merits.

I. FACTS AND PROCEDURAL HISTORY

Mendoza was convicted of first-degree murder, conspiracy to commit robbery, attempted armed robbery, armed burglary with an assault, and possession of a firearm during the commission of a felony following the killing of Conrado Calderon. The trial court sentenced him to death for the murder conviction, and we affirmed that sentence on direct appeal. Mendoza v. State, 700 So.2d 670, 672 (Fla.1997). The facts of this case were fully set out in our opinion on direct appeal. Briefly, Humberto Cuellar testified at Mendoza’s trial that he, Mendoza, and Lazaro Cuel-lar, Humberto’s brother, went to Calderon’s home with the intention of robbing Calderon. Humberto testified that Lazaro remained in the car while Humberto and Mendoza approached Calderon. Humberto and Mendoza were armed as they approached Calderon, who was also armed, outside of Calderon’s home. During the ensuing struggle, Calderon shot Humberto in the chest. Humberto then ran to Lazaro’s car. As he ran, Humberto heard other shots. Less than a minute later, Mendoza arrived at Lazaro’s car and stated that he had shot Calderon.

Following Mendoza’s convictions and the penalty phase, the jury recommended a sentence of death by a seven-to-five vote. The trial court followed the jury’s recommendation, sentencing the defendant to death for the murder conviction, as well as a prison sentence of fifteen years for the conspiracy to commit robbery conviction, fifteen years for the attempted armed robbery with a firearm conviction, and life imprisonment for the armed burglary with an assault conviction. State v. Mendoza, No. 92-9940C (Fla. 11th Cir. Ct. order filed Aug. 2, 1994). In imposing this sentence, the trial court found two aggravating and no mitigating factors.

Mendoza appealed his convictions and death sentence to this Court, raising nine issues. We rejected each of Mendoza’s claims and affirmed the convictions and death sentence. Mendoza, 700 So.2d at 679. The United States Supreme Court thereafter denied Mendoza’s petition for writ of certiorari. Mendoza v. Florida, 525 U.S. 839, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998).

Mendoza filed an amended motion for postconviction relief on September 5, 2000, raising twenty-seven claims. The circuit court summarily denied the motion on January 26, 2001, and Mendoza appealed. Following oral argument, we entered the following order:

We have for review Mendoza’s appeal from the circuit court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 motion. We vacate the circuit court’s order and remand for an evidentiary hearing on the claims of ineffective assistance of counsel at the guilt and penalty phase of the original trial. The Chief Judge of the Eleventh Judicial Circuit shall appoint a new circuit court judge to preside over these proceedings. We dismiss Mendoza’s petition for writ of habeas corpus without prejudice.

Mendoza v. State, 817 So.2d 848 (Fla.2001).

On remand to the circuit court, a new trial judge was appointed to preside over the evidentiary hearings. Six postconviction evidentiary hearings were held from April 22, 2003, through March 14, 2004, and the defense called a number of witnesses at those hearings to support its ineffective assistance of counsel claims.

The circuit court denied Mendoza’s post-conviction motion claims in a very brief, two-page order, which simply set out the standards from case law for ineffective assistance of counsel claims and held: “This Court finds that the Defendant’s petition did not meet nor did it overcome the requirements of the above-mentioned case law.” State v. Mendoza, No. F92-9940C (Fla. 11th Cir. Ct. order filed Aug. 18, 2004). Mendoza appeals that denial, raising two issues. Mendoza also petitions this Court for a writ of habeas corpus, raising nine issues.

II. ANALYSIS OF ISSUES ON POSTCONVICTION APPEAL

Mendoza asserts that he received ineffective assistance of counsel at both the guilt and penalty phases of his trial. Mendoza asserts that his counsel was ineffective because his counsel relied on inconsistent theories as to the identity of the shooter in opening and closing statements; failed to call Lazaro Cuellar to testify; deficiently prepared the sole defense witness at trial; did not hire an investigator; failed to investigate and present mitigating evidence; improperly opened the door to otherwise inadmissible evidence; and called an improper witness at the penalty phase. To establish a claim of ineffective assistance of counsel, a defendant must first show that counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the defendant must show that counsel’s deficiency prejudiced the defendant, which occurs when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In considering a circuit court’s denial of an ineffective assistance of counsel claim, we apply a mixed standard of review and therefore defer to the circuit court’s factual findings, but review its legal conclusions de novo. Sochor v. State, 883 So.2d 766, 772 (Fla.2004).

Despite the six days of evidentiary hearings and extensive presentation of testimony, the circuit court’s order essentially summarily denied Mendoza’s postconviction claims. We expressly remanded the circuit court’s previous summary denial of the postconviction motion for an evidentia-ry hearing on the ineffective assistance of counsel claims. As noted, evidentiary hearings were held, but following these extensive hearings, the circuit court neither stated on the record nor rendered an order detailing its factual findings and the reasons for its decision on the postconviction motion.

A complete circuit court order enables this Court to review any factual and credibility questions with the appropriate standard of review. The evidentiary record here presents factual conflicts which must be resolved by the circuit court in findings of fact. Likewise, the circuit court’s determination as to the credibility of expert testimony presented at the evidentiary hearing needs to be set forth in an order. Such factual and credibility determinations are not available in the instant case due to the brief and incomplete order of the circuit court.

Circumstances exist in this case which prevent our remanding to the circuit court for further explanation of the post-conviction judge’s decision on the basis of the evidence presented at the evidentiary hearings. Instead, we must remand for a new evidentiary hearing so that the ineffective assistance of counsel claims can be properly considered and determined on the evidence presented to the new postconviction judge. Without the circuit court’s determination in the instant case of the facts demonstrated at the evidentiary hearing or the credibility of the witnesses, we are unable to have a meaningful and appropriate appellate review.

For instance, one of Mendoza’s claims is that trial counsel was ineffective for failing to call Lazaro Cuellar to testify at the guilt phase of trial. Arnaldo Suri and Barry Wax represented Mendoza at trial, and both testified at the evidentiary hearing. Neither Suri nor Wax could remember why they did not call Lazaro to testify at trial but maintained that their reason was part of the defense strategy. A determination including an evaluation of the credibility of the witnesses is necessary on this claim.

Mendoza also claims that his trial counsel was ineffective in preparing and presenting exculpatory evidence of gunshot residue. At trial, the defense presented only one witness: Gopinath Rao, a crimi-nalist for the Miami-Dade County Police Department who testified as an expert in particle analysis. Part of Rao’s testimony was demonstrated by the State to be inaccurate because he reported the wrong time that gunshot residue swabs were taken from Lazaro and Humberto. This inaccurate testimony was highlighted by the State in its closing argument.

Without a postconviction order setting forth factual findings in respect to this claim, we cannot determine on appeal the merits of the claim that counsel were ineffective in preparing their witness at trial. See Freeman v. State, 761 So.2d 1055, 1065 n. 9 (Fla.2000) (without an evidentiary hearing and finding of fact by circuit court, it was unclear why defense counsel did not present certain evidence).

Mendoza raised numerous other guilt and penalty phase claims that require an evaluation of the evidence and factual determinations. Since the new evidentiary hearing will proceed under the clean slate rule in accordance with Preston v. State, 607 So.2d 404, 407 (Fla.1992), we will not further discuss here claims that should have had an evidence evaluation and factual findings. Each of Mendoza’s claims and factual presentations must be made again. This case again demonstrates how this Court’s appellate review of postconviction death penalty cases depends upon thorough and complete orders by the circuit court.

III. ANALYSIS OF HABEAS CLAIMS

Though we are remanding for a new evidentiary hearing on the postconviction claims, we deny the claims raised in Mendoza’s petition for a writ of habeas corpus. Mendoza argues in his petition that appellate counsel was ineffective for failing to raise on direct appeal the following claims: (1) the trial court erred in limiting questioning regarding the victim’s illegal activities; (2) the trial court erroneously denied the defense motion for mistrial following the prosecutor’s improper remarks about the death penalty; (3) the trial judge made improper comments during voir dire; (4) the State made a variety of improper comments in its closing arguments at the guilt and penalty phases of trial; (5) the trial court erred in not granting defense motions relating to the State’s violation of the witness sequestration rule; (6) the trial court gave erroneous jury instructions regarding expert witness evidence; (7) various improper remarks were made by the prosecutor and trial judge about the jury’s note-taking; (8) the trial judge’s ex parte communication with jurors was improper; and (9) the trial court committed constitutional error in admitting evidence of pending robbery charges.

When evaluating an ineffective assistance of appellate counsel claim, we must determine:

[Fjirst, 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.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Moreover, “[t]he failure to raise a meritless issue does not constitute ineffective assistance of counsel.” Fennie v. State, 855 So.2d 597, 607 (Fla.2003). “In fact, appellate counsel is not required to raise every conceivable nonfrivolous issue.” Id.

First, Mendoza argues appellate counsel was ineffective for failing to raise the issue on appeal that the trial court erred in denying the defense motion to present evidence of the victim’s participation in bolito. Evidence is generally admissible at trial, provided it is relevant. It is true that when evidence tends in any way to establish a reasonable doubt as to the defendant’s guilt, it should be admitted. Rivera v. State, 561 So.2d 536, 589 (Fla.1990). “However, the admissibility of this evidence must be gauged by the same principle of relevancy as any other evidence offered by the defendant.” Id. Relevant evidence is defined as “evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (1995).

Mendoza argues that evidence that the victim was a bolitero was improperly excluded because it supported his defense to the robbery charges that Mendoza and the Cuellars’ purpose in approaching the victim on the day of the murder was to collect a debt. However, we find that Mendoza’s argument is without merit because he has failed to demonstrate that this evidence is relevant to his claim of innocence to the robbery conviction. Even if Mendoza was able and had been permitted to prove that the victim was a bolitero or that he was known to be one, such evidence would not have tended to prove a relevant fact. From the fact that the victim was a bolite-ro it could not be lawfully inferred that Mendoza or the Cuellars ever made a loan to the victim or that their purpose in going to the victim’s house was to collect a debt. That inference would require stacking one inference upon another, which we decline to do. See Merck v. State, 664 So.2d 939, 942 (Fla.1995) (defendant could not demonstrate evidence was material or exculpatory without impermissibly stacking inferences). Appellate counsel is not ineffective for faffing to raise a meritless issue on direct appeal, and we therefore deny this claim.

Mendoza also claims that the trial court should have granted the defense motion for mistrial after it altered its ruling on the admissibility of this evidence and that appellate counsel was ineffective for not raising this issue on appeal. Before trial, the court granted the State’s motion in limine to prevent the defense from introducing evidence of the victim’s arrest for racketeering. The trial judge stated at that time, however, that he did not have a problem with defense counsel asking the victim’s wife whether the victim was a bolitero. Later, however, the trial judge limited the defense counsel’s questioning of the victim’s wife and police officers to whether they knew if the defendant was a bolitero at the time of his death. The trial judge denied the defense’s motion for mistrial based on this evidentiary ruling.

We find that the trial judge’s subsequent ruling did not significantly alter his original ruling on this evidence; he simply clarified that witnesses could only testify to information within their personal knowledge that the victim was a bolitero at the time of this crime. Therefore, the motion for mistrial was properly denied, and appellate counsel was not ineffective for failing to raise this issue on direct appeal.

Mendoza next argues that appellate counsel was ineffective for failing to raise the issue of the trial court’s denial of a motion for mistrial based on improper prosecutorial comments during the State’s closing arguments. The relevant comments in the prosecutor’s closing rebuttal argument were:

If you don’t like the sentence, if you don’t want to give him the death penalty, don’t, but you promised in jury selection that this part of the trial is the guilt or innocence phase. It has nothing to do with the penalty, nothing. And if you don’t like the penalty the other guys got, then adjust your recommendation then. Don’t go for death. Forget about the death penalty—

The defense objected, and the trial court sustained the objection and gave the following instruction to the jury:

This case must not [be] decided for or against anyone because you feel sorry for anyone or are angry. Your duty is to determine whether the defendant is guilty or not guilty in accord with the law.

Following the conclusion of the State’s rebuttal, the defense moved for a mistrial, which the trial court denied.

“A ruling on a motion for mistrial is within the sound discretion of the trial court. A motion for mistrial should be granted only when it is necessary to ensure that the defendant receives a fair trial.” Cole v. State, 701 So.2d 845, 858 (Fla.1997) (citation omitted). We find that the trial court gave an appropriate curative instruction following the inappropriate comment by the prosecutor. Mendoza has failed to establish that the trial court abused its discretion in denying the motion for mistrial. We therefore deny Mendoza’s claim that his appellate counsel was ineffective on this basis.

Mendoza next claims that several statements made by the trial court during voir dire were error that appellate counsel should have raised on direct appeal. Mendoza admits that the relevant comments were not objected to at trial but

argues that they were fundamental error. In the absence of fundamental error, appellate counsel has no obligation to raise an issue that was not preserved for review. See Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000). Fundamental error is error that “reaches down into the validity of the trial itself to the extent that a verdict of guilt could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla. 1997) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).

Mendoza cites the following comments as the basis for this claim, each made by the trial judge during voir dire:

Now I told you the defendant is presumed innocent. That presumption stays with him throughout the trial until those jurors who are selected go into the jury room and find that he has been proven either not guilty, and then the case will be over, or if you should in your deliberations decide that he is guilty beyond and to the exclusion of every reasonable doubt, of course, the presumption of innocence leaves him at that stage.
You will understand that the defendant has an absolute right to remain silent and you are not to draw any inferences in this conduct. There may be a number of reasons why somebody remains silent; that is, somebody may not testify, and I am sure you can give many reasons why they have chosen to do that, whether they can’t articulate themselves, or perhaps it is their inability to remember the facts, or the lawyer’s recommendation not to testify.
You may be asked who would like to hear from the defendant. Number one, understand that the defendant doesn’t have to do anything. You understand that the defendant has an absolute right to remain silent.
Now, you may personally feel that you would like to hear from him. There is nothing wrong with that as long as you understand that he doesn’t have to do anything or say anything.

While comments on the defendant’s silence or shifting the burden of proof to the defense can constitute error, we find that these particular comments were not fundamental error. In previously considering a similar claim, we held:

For an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process. See State v. Johnson, 616 So.2d 1, 3 (Fla.1993). In cases in which courts have found judges’ or prosecutors’ comments to be fundamental error, the improper comments were made in the presence of the jury during the presentation of evidence or arguments. In this case, however, the judge made the complained-of comment prior to voir dire and in the context of describing trial procedure to prospective jurors. See Harmon v. State, 527 So.2d 182, 186-87 (Fla.1988).... Our review of the record also demonstrates that subsequently throughout the trial the judge repeatedly instructed the jury to consider only the evidence presented at trial. We find, under the circumstances of this case, that this comment does not constitute fundamental error when considered in context of the entire trial.

Randall v. State, 760 So.2d 892, 901 (Fla.2000) (some citations omitted). We find that the comments in the instant case were not fundamental error, and appellate counsel was not ineffective for failing to raise them on direct appeal.

Mendoza also asserts that comments made by the prosecutor during her guilt phase closing arguments were fundamental error. First, Mendoza asserts that the prosecutor denigrated the law before the jury in stating, “The Court is required to read to you a lot of instructions and many of them do not apply and I will discuss that with you.” Mendoza also claims that the prosecutor’s remarks in closing arguments improperly accused the defense of perpetrating a fraud. In commenting on the discrepancy between Rao’s testimony as to the time of the sampling and the actual timing, the prosecutor stated that the defense knew that the testimony Rao gave was false and asserted that the defense purposely attempted to mislead the jury. Mendoza also claims that error occurred in the conclusion of the prosecutor’s closing argument:

I’m going to sit down now and the defense attorney is going to have an opportunity to answer some questions for you and suggest to you how Crimi-nalist Rao’s testimony, which suggested to you Lazaro Cuellar might have, could have, would have, maybe if, fired a gun except this whole conclusion is based on the wrong time and they purposely put it on to mislead you because they knew the right time. Let him explain to you how it is that they have any evidence whatsoever that contradicts what Humberto Cuellar told you and that you shouldn’t believe Humberto Cuellar.

No objections were made to these comments. Even if the prosecutor’s comments were error, we find that they do not rise to the level of fundamental error such that appellate counsel could have successfully argued that this case warranted reversal on direct appeal. Therefore, we deny this claim.

Mendoza also asserts that certain comments during the prosecutor’s closing argument at the penalty phase of trial were reversible error. These comments included remarks indicating that the defendant’s mitigating evidence was simply an excuse and that the testimony of one of the experts was “garbage.” These comments were also not objected to, and so appellate counsel can only be deemed ineffective if the comments were fundamental error. To constitute fundamental error, improper comments by the prosecutor must be so prejudicial that they would taint the jury’s verdict. Fennie v. State, 855 So.2d 597, 609 (Fla.2003). We find that the instant comments were not so egregious or so continuous as to constitute the same type of fundamental error that we have found in other cases. See Brooks v. State, 762 So.2d 879, 905 (Fla.2000) (finding fundamental error based on numerous, overlapping improprieties in the prosecutor’s penalty phase closing argument).

In his next claim, Mendoza argues that appellate counsel was ineffective for not raising the issue that the trial court erred in denying the defense motion for mistrial due to the prosecutor’s violation of the sequestration rule. “[T]he rule of sequestration is intended to prevent a witness’s testimony from being influenced by the testimony of other witnesses in the proceeding.” Wright v. State, 473 So.2d 1277, 1280 (Fla.1985). The trial court is given discretion in its enforcement of this rule. Id. The trial court held a hearing regarding the defense assertion that the State violated this rule because of the prosecutor’s conversation with its rebuttal witness, Richard Gallagher. The trial court denied the motion for mistrial after Gallagher testified as to what he discussed with the prosecutor. Mendoza has failed to demonstrate that Gallagher’s testimony was in any way altered or influenced by the conversation that he had with the prosecutor. The hearing transcript reveals that Gallagher simply testified about evidence that had been carefully gathered and documented before trial. See Lott v. State, 695 So.2d 1239, 1243 (Fla.1997) (finding that trial court properly denied request for sanctions because rule of sequestration was not violated since three witnesses in question testified regarding facts about physical evidence found at the crime scene). Therefore, this claim was meritless, and appellate counsel cannot be ineffective for failing to raise a meritless claim.

Mendoza next argues that appellate counsel should have raised the issue of the prosecutor’s introduction of improper nonstatutory aggravating factors at the penalty phase closing arguments. The various comments made by the prosecutor that Mendoza argues introduced nonstatu-tory aggravators include:

The fact of the matter is the citizens in this country — and especially the citizens here in the State of Florida have decided that certain people and certain crimes warrant the death penalty.
In your deliberations in the jury room the Judge tells you you are to go back there and first look at whether or not there are sufficient aggravating circumstances to warrant your recommending the death penalty before you even get to the mitigating.
I suggest to you that there are, that this defendant’s actions and activities in this community, from what you have heard, warrants that you recommend that he receive the death penalty.
... You heard nothing, nothing until after he had committed violent crimes against people in this community, that he wanted to say that he had mental problems and that is why or that is some excuse for what he did.

Trial counsel did not object to any of these comments, and we find that Mendoza has failed to prove that the comments introduced nonstatutory aggravators or were fundamental error. Therefore, appellate counsel was not ineffective for failing to raise this issue.

Mendoza also argues that appellate counsel was ineffective for failing to argue error due to the closing remarks by the prosecutor addressing Mendoza’s pending charges for robbery. However, it is clear that this issue was raised on direct appeal, and we found it to be harmless error. See Mendoza, 700 So.2d at 677-78 (“[T]he trial court erred in overruling appellant’s objection to the State’s question to Dr. Toomer during cross-examination and the comment in the State’s closing argument asking whether Dr. Toomer was aware that the defendant had a pending trial in other robberies using a firearm.”). Therefore, this claim is procedurally barred.

Mendoza also argues that appellate counsel was ineffective for failing to raise as an issue on direct appeal an error in the jury instructions on expert testimony. However, we have reviewed the instruction given and find that it was a standard jury instruction that Mendoza does not argue has been invalidated by this Court. We have held that “trial counsel’s failure to object to standard jury instructions that have not been invalidated by this Court does not render counsel’s performance deficient.” Thompson v. State, 759 So.2d 650, 665 (Fla.2000). Thus, appellate counsel was not ineffective for failing to raise this as an issue on direct appeal.

Mendoza next argues that the prosecutor violated the rules of discovery in presenting the medical examiner’s opinion that the laceration on Calderon’s head was consistent with having been caused by a Taurus nine millimeter gun. Mendoza fails to demonstrate what rule of discovery he is arguing on the basis of or how it was violated. From the record cited to by Mendoza, it is clear that the defense did object to this testimony on the basis of a discovery violation — that counsel had not been informed that the State’s medical examiner had inspected the gun used by Humberto to hit the victim. The trial court held a Richardson hearing, and the defense conceded that there was no prejudice. Mendoza sets forth no argument to dispute this conclusion, and thus we do not find error.

Next, Mendoza argues that comments by the trial judge and prosecutor led to the improper use of note-taking by the jury. It is within the sound discretion of the trial court to determine whether a jury may take notes. Kelley v. State, 486 So.2d 578, 583 (Fla.1986). Mendoza points to no case law or other support for his assertion that any comments at trial about the note-taking were improper. We do not find that these comments were fundamental error.

Mendoza also argues that error occurred during the penalty phase because the prosecutor’s closing arguments set forth that Mendoza threatened to kill a victim in a previous similar crime introduced at the penalty phase as an aggravating factor. While the victim, who testified at the penalty phase, never explicitly stated that the defendant threatened to kill him, he did clearly state that Mendoza’s accomplice told Mendoza to shoot the victim and then Mendoza hit the victim with the gun. We find that the prosecutor’s characterization of this testimony was accurate.

Mendoza’s final arguments are that appellate counsel was ineffective for failing to successfully argue two of the issues raised to this Court on direct appeal. Mendoza does not explain how these arguments could have been successfully argued to obtain a different result than that reached on appeal. These claims are therefore denied because they are procedurally barred.

IV. CONCLUSION

Because we conclude that the circuit court’s order effectively summarily denied postconviction relief, we remand to the circuit court for a new evidentiary hearing on the ineffective assistance of counsel claims. We deny Mendoza’s petition for a writ of habeas corpus.

It is so ordered.

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

      . The trial court found the following aggravating factors: (1) Mendoza was previously convicted of another capital felony or of a felony involving a threat of violence to a person; and (2) the crime was committed while Mendoza was engaged or was an accomplice in the commission of or an attempt to commit, or in flight after committing or attempting to commit a robbery, and the crime was committed for pecuniary gain.

      . Mendoza argued that (1) the evidence at trial did not prove burglary as an underlying crime to felony murder; (2) the trial court erred in allowing the admission of the sworn prior consistent statement of Humberto Cuel-lar; (3) the trial judge engaged in improper ex parte communications with jurors; (4) the trial court erred in denying three challenges for cause to prospective jurors based on their beliefs concerning the death penalty; (5) the trial court erred in excluding mitigation evidence; (6) the trial court erred in allowing the State to improperly impeach Mendoza's expert witness; (7) the trial court erred in finding the aggravating circumstance that the murder was committed for pecuniary gain; (8) the trial court erred in failing to adequately consider Mendoza’s proposed mitigation; and (9) the death penalty is not proportional.

      . Mendoza raised the following claims: (1) Mendoza had insufficient access to public records; (2) Mendoza was denied a fair trial due to the cumulative effects of ineffective assistance of counsel, withholding of exculpatory or impeaching material, newly discovered evidence, and improper trial court rulings; (3) the State withheld evidence that was exculpatory and material; (4) trial counsel was ineffective for failing to challenge jurors based on their biases toward the death penalty; (5) the State's arguments and the trial court’s statements at trial presented impermissible considerations to the jury, misstated the law and facts, and were inflammatory and improper; (6) Mendoza was denied the right to an adequate mental health evaluation; (7) trial counsel failed to investigate and prepare mitigating evidence; (8) Mendoza is innocent of first-degree murder; (9) Mendoza is innocent of the death penalty; (10) incorrect penalty phase jury instructions were given by the trial judge; (11) the trial court gave erroneous instructions to the jurors on the standard by which they must judge expert testimony; (12) the jury received inadequate guidance on aggravating circumstances; (13) the State improperly introduced nonstatutory aggravating factors; (14) prosecutorial and judicial comments to the jury mischaracterized the importance of the jury’s role; (15) Florida's rules prohibiting appellate counsel from interviewing jurors are unconstitutional; (16) trial counsel was ineffective for failing to object to the State’s overbroad and vague arguments in aggravating circumstances; (17) execution by electrocution or lethal injection is cruel and unusual punishment; (18) Florida’s capital sentencing scheme is unconstitutional; (19) pretrial publicity and failure to change venue denied Mendoza a fair and impartial jury; (20) the trial court erred in refusing to find and consider mitigating circumstances clearly set out by the record; (21) the trial court’s sentencing order does not reflect an independent weighing or reasoned judgment; (22) Mendoza was denied a proper direct appeal because of omissions in the record; (23) it was unconstitutional for the judge and jury to consider Mendoza's prior conviction in the penalty phase; (24) the death sentence was predicated on an automatic aggravating factor; (25) the trial judge was not impartial; (26) Mendoza is insane to be executed; and (27) the jury venire was not properly sworn before trial.

      . Mendoza asserts in his postconviction appeal that defense counsel was ineffective at the guilt and penalty phases of his trial.

      . Mendoza asserts in his habeas petition that appellate counsel was ineffective for failing to raise on direct appeal the following claims:
      (1) the trial court erred in limiting questioning regarding the victim’s illegal activities;
      (2) the trial court erroneously denied the defense motion for mistrial following the prosecutor's improper remarks about the death penalty; (3) the trial judge made improper comments during voir dire; (4) the State made a variety of improper comments in its closing arguments at the guilt and penalty phases of trial; (5) the trial court erred in not granting defense motions relating to the State’s violation of the witness sequestration rule; (6) the trial court gave erroneous jury instructions regarding expert witness evidence; (7) various improper remarks were made by the prosecutor and trial judge about the jury’s note-taking; (8) the trial judge's ex parte communication with jurors was improper; and (9) the trial court committed constitutional error in admitting evidence of pending robbery charges.

      . We now require that following an evidentia-ry hearing, a circuit court "shall render its order, ruling on each claim considered at the evidentiary hearing and all other claims raised in the motion, making detailed findings of fact and conclusions of law with respect to each claim, and attaching or referencing such portions of the record as are necessary to allow for meaningful appellate review.” Fla. R.Crim. P. 3.851(f)(5)(D). Mendoza’s motion was filed before the effective date of this rule revision, but that does not affect the necessity of findings of fact and reasons for decisions in deciding motions which predate October 1, 2001, when these motions are still under consideration.

      . The postconviction judge is deceased.

      . According to arguments made at trial and at the evidentiary hearing, “bolito” is an illegal lottery. Evidence that the victim was a bol-itero, or ran the lottery, was claimed to be a critical part of the defense theory.

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


author: • PER CURIAM.

text:
    Joseph KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-842.
    Supreme Court of Florida.
    June 28, 2007.
    Rehearing Denied Aug. 31, 2007.

      Fred Haddad, Fort Lauderdale, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, 'Celia A. Terenzio, Bureau Chief, and Diane F. Medley, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   • PER CURIAM.

This case is before the Court for review of the decision of -the Fourth District Court of Appeal in Kelly v. State, 924 So.2d 69 (Fla. 4th DCA 2006). On motion for rehearing, the district- court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Johnson v. State, 695 So.2d 861 (Fla. 2d DCA 1997), and Frazier v. State, 630 So.2d 1237 (Fla. 2d DCA 1994), and the First District Court of Appeal in Vickery v. State, 515 So.2d 396 (Fla. 1st DCA 1987). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that the Legislature intended that the mandatory minimum sentences for the two crimes in question in this case could be imposed consecutively, we approve the decision of the district court below denying Kelly’s motion under Florida Rule of Criminal Procedure 3.850.

FACTS AND PROCEDURAL HISTORY

Pursuant to a plea agreement, Kelly pled guilty to conspiracy to traffic in cocaine and trafficking in cocaine ,of more than-400 grams. Kelley [sic] v. State, 821 So.2d 1255, 1256 (Fla. 4th DCA 2002) (Kelly I). He then violated his plea agreement and was sentenced to twenty years in prison with a fifteen-year mandatory minimum provision, consisting of two concurrent fifteen-year mandatory minimum sentences. Id. In sentencing Kelly, the judge explained that she had no discretion to deviate below the statutorily mandated minimum sentence of fifteen years for the trafficking charge without the prosecutor’s waiver. Id. Kelly filed a Motion to Correct Sentencing Error pursuant to Florida Rule of Criminal Procedure 3.800(b), arguing that the judge should have exercised discretion to sentence him to less than the mandatory minimum since he intended to purchase only an ounce of cocaine but ultimately purchased a kilogram due to police entrapment and inducement. Id. This motion was denied, and Kelly then appealed his sentence to the Fourth District, again arguing that the sentencing judge had the discretion to depart below the mandatory minimum sentence since Kelly was induced by the police into buying the larger amount of cocaine. . Id. at 1256-57. The Fourth District affirmed Kelly’s sentence. Id. at 1258.

Kelly then filed a rule 3.850 motion for postconviction relief, subject of the instant case, alleging that trial counsel was ineffective for advising him that he was potentially facing a thirty-year mandatory prison term, consisting of stacked fifteen-year mandatory minimum sentences, one each for the trafficking charge and for the conspiracy to traffic charge. Kelly, 924 So.2d at 69 (Kelly II). Kelly argued that since the mandatory mínimums for these two crimes could only run concurrently under governing case law, he was actually only faced with a fifteen-year mandatory term. Id. at 70. Kelly alleged that but for this bad advice regarding a possible thirty-year mandatory term, he would not have taken the State’s plea agreement. Id. The trial court summarily denied the 3.850 motion, and Kelly appealed this summary denial to the Fourth District, arguing that he set forth a legally sufficient claim of ineffective assistance of counsel. Id. at 69.

In affirming the trial court’s denial of relief, the Fourth District concluded that there was no misadviee, because the trial court could properly have imposed the mandatory minimum terms consecutively. Id. First, the court below looked to the exact language of the governing statute, section 893.135, Florida Statutes, which reads in pertinent part:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:
(b)l. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as “trafficking in cocaine,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:
c. Is 400 grams or more, but less than 150 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000.
(5) Any person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by subsection (1) commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act. Nothing in this subsection shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any violation of subsection (1).

Kelly II, 924 So.2d at 70 (quoting § 893.135(1), (5), Fla. Stat. (2005)). The lower court concluded that the statute clearly “authorizes convictions and sentences, with mandatory mínimums for both the trafficking and conspiracy, even though they may arise out of the same transaction.” Id. The Fourth District then turned to two opinions from this Court, Daniels v. State, 595 So.2d 952 (Fla.1992), and Hale v. State, 630 So.2d 521 (Fla.1993), to determine whether the mandatory minimum terms could be imposed consecutively. Kelly II, 924 So.2d at 70-71. Utilizing to the “Daniels/Hale analysis,” the court below held that trial counsel correctly advised Kelly that his sentences could be stacked because the statute specifically requires a mandatory minimum sentence for each separate crime. Id. at 71. “Paraphrasing Daniels, because the statute prescribing the penalty for [Kelly’s] offenses does contain a provision for a minimum mandatory sentence, Kelly’s minimum mandatory sentences imposed for the crimes he committed arising out of the same criminal episode may be imposed consecutively.” Id.

The lower court acknowledged that its holding was in conflict with case law from other districts courts establishing that sentences for trafficking and conspiracy to traffic in the same cocaine on the same day cannot be stacked. Id. However, the Fourth District reasoned that Vickery, the primary case in conflict, was superseded by Daniels and Hale. Kelly II, 924 So.2d at 71. Thus, the Fourth District held that the trial court was correct in denying Kelly’s motion for postconviction relief since he was not misadvised regarding the trial court’s ability to order consecutive mandatory minimum sentences for his two crimes. Id. at 71-72.

ANALYSIS

Kelly argues on appeal that the Fourth District incorrectly concluded that the mandatory minimum prison terms for trafficking and conspiracy to traffic in the same cocaine could be imposed consecutively. We disagree. We begin our analysis by noting that the intent of the Legislature as expressed in the plain language of the applicable sentencing statutes guides our decision as to whether the trial judge could have imposed consecutive mandatory minimum prison terms in Kelly’s case. See State v. Sousa, 903 So.2d 923, 928 (Fla.2005) (“The fundamental rule of construction in determining legislative intent is to first give effect to the plain and ordinary meaning of the language used by the Legislature.”).

Kelly asserts that the Fourth District’s conclusion below runs contrary to the weight of authority from other district courts, where a number of cases have held that sentences for trafficking and conspiracy to traffic in the same narcotic cannot be stacked when they arise out of the same criminal episode. Notably, in Vickery, the First District clearly held that mandatory minimum sentences imposed for trafficking and conspiracy to traffic in cocaine pursuant to section 893.135 could only be imposed concurrently, not consecutively. 515 So.2d at 397. In reaching this conclusion, that court held that the cocaine offenses “constituted a single criminal episode and were neither separate nor distinct,” and thus the mandatory sentences could not be imposed consecutively for each offense. Id. The “single criminal episode” reasoning evidenced in Vickery has been followed by a number of other district courts, including the Second District in Frazier, which the court below also certified as conflicting with the instant case. In that case, again involving convictions for trafficking in cocaine and conspiracy to traffic in cocaine, as well as possession of marijuana, the court analogized to Vickery in concluding that the mandatory minimum sentences were improperly stacked “[b]ecause of the similarity in time, place and amounts of cocaine, the facts show the same criminal episode.” Frazier, 630 So.2d at 1237. The Second District again employed the “same criminal episode” analysis in Johnson when it held, “Consecutive minimum mandatory sentences may not be imposed for trafficking in cocaine and conspiracy to traffic in cocaine, when those offenses arise out of the same criminal episode and involve the same contraband.” 695 So.2d at 861. Thus, Kelly correctly asserts that the lower district courts have consistently held that sentences for trafficking and conspiracy to traffic in the same substance must be imposed concurrently.

However, we believe that more recent precedent from this Court better resolves the instant question, as it focuses our inquiry on the Legislature’s intent as expressed in the applicable sentencing statutes. In Daniels, we answered a certified question of great public importance from the First District regarding a trial judge’s decision to impose three consecutive mandatory minimum sentences for first-degree felonies committed by a habitual violent felony offender. 595 So.2d at 952-53. The defendant in Daniels was convicted of burglary while armed, sexual battery with a deadly weapon, and armed robbery, all arising out of a single criminal episode. Id. at 953. He was sentenced to three fifteen-year mandatory minimum sentences, designated to run consecutively. Id. The consecutive mandatory minimum sentences, however, were predicated on Daniels’ status as a habitual violent felony offender under statutory enhancement provisions; the applicable statutes prescribing the individual punishments for the underlying felonies contained no authorization for mandatory minimum penalties. Id. at 953-54. We therefore analogized to Palmer v. State, 438 So.2d 1 (Fla.1983), in holding, “[Daniels’] minimum mandatory sentences imposed for the crimes he committed arising out of the same criminal episode may only be imposed concurrently and not consecutively.” 595 So.2d at 954. Thus, in Daniels, we were not persuaded to stack mandatory minimum sentences when the underlying felony statute contained no authorization for a mandatory term.

In Hale, we relied upon Daniels in deciding whether sentences for the sale of cocaine and possession of cocaine with intent to sell could be imposed consecutively. 630 So.2d at 524. The defendant in Hale was also designated a habitual violent felony offender, allowing the trial judge to sentence him to consecutive ten-year mandatory terms for each count. Id. at 522-23. Addressing whether the trial court erred in imposing the sentences consecutively in light of our recent decision in Daniels, we held that Hale’s consecutive sentences had to be reversed since his mandatory terms were likewise the result of an enhancement statute and were not expressly provided for in the statute. Id. at 524.

In [Daniels ] we distinguished statutory sentences in which the legislature had included a minimum mandatory sentence ... from sentences in which there is no minimum mandatory penalty although one may be provided as an enhancement through the habitual violent offender statute.... We find that the same principle applies in the instant case. None of the statutes under which Hale was sentenced contain a provision for a minimum mandatory sentence.

Id. While the trial court was permitted to impose separate consecutive sentences for the possession of the cocaine and for the sale of the cocaine, we held that it was not allowed to first enhance Hale’s sentence as a violent offender and then make the enhanced sentence for each charge run consecutively without specific legislative authority. Id. at 525.

Turning to the instant case, it is our view that the plain language of the statutes permit the prescribed mandatory minimum sentences for conspiracy to traffic and trafficking in the same cocaine to be stacked. As quoted above, the conspiracy to traffic statute, section 893.135(5), provides that “[a]ny person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by [the trafficking statute] commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act.” 893.135(5), Fla. Stat. (2005). By the plain wording of the statute, the Legislature provides that the punishment for a conspiracy to traffic offense should mirror that for an actual trafficking offense; the penalty for trafficking as prescribed in the applicable statute requires a mandatory minimum prison term of fifteen years. See § 893.135(l)(b)l.c. The conspiracy statute then specifically provides that “[n]othing in this [conspiracy] subsection shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any violation of [the trafficking statute].” 893.135(5). Thus, the governing statutes provide that a defendant is to be sentenced separately for conspiracy and for trafficking, with each crime requiring a mandatory minimum prison term. Accordingly, we find that the Fourth District was correct in concluding that Kelly’s minimum mandatory sentences for conspiracy to traffic and trafficking in cocaine could have been imposed consecutively.

CONCLUSION

Since section 893.135, Florida Statutes, prescribes a separate fifteen-year mandatory minimum sentence for conspiracy to traffic in cocaine and for trafficking in cocaine, we agree with the Fourth District’s conclusion that the trial court could have imposed these mandatory minimum sentences consecutively. Kelly s ineffective assistance of counsel claim was properly denied, as trial counsel did not misad-vise Kelly that he was potentially facing a thirty-year mandatory term. We disapprove of the decisions in Johnson, Frazier and Vickery to the contrary. The Fourth District’s decision herein is approved.

It is so ordered.

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

      . See, e.g., Peoples v. State, 576 So.2d 783, 789 (Fla. 5th DCA 1991) (“Consecutive minimum mandatory sentences are not appropriate when the multiple offenses for which sentences are imposed are committed during a single continuous episode. This rationale is applicable to sentences imposed pursuant to section 893.135.” (citing to Vickery and Palmer v. State, 438 So.2d 1 (Fla.1983))) approved in result, 612 So.2d 555 (Fla.1992); Short v. State, 572 So.2d 1007, 1007 (Fla. 3d DCA 1991) (reversing consecutive mandatory minimum sentences for conspiracy to traffic in cocaine and trafficking in cocaine and holding “[b]ecause the offenses of trafficking and conspiracy to traffic in cocaine arose from a single criminal episode involving the same contraband, the offenses were ‘not sufficiently distinct to permit consecutive mandatory sentences.' ” (quoting Vickery, 515 So.2d at 397)).

      . In Palmer, defendant Palmer was convicted of thirteen counts of robbery, one count of aggravated assault, and one count of carrying a concealed firearm after robbing mourners at a funeral parlor during a wake. 438 So.2d at 2. In addition to the other sentences for other charges, the trial court sentenced him to a mandatory minimum sentence of three years for each robbery for a total of thirty-nine years mandatory time on the robbery charges. Id. The statutory authority for the mandatory minimums was apparently derived from a firearm enhancement statute, section 775.087(2), Florida Statutes (1981); another statute, section 775.021(4), Florida Statutes (1981), provided that trial judges were allowed to issue consecutive prison sentences for separate offenses occurring during the same criminal episode. 438 So.2d at 3. Thus, since Palmer robbed thirteen individuals at gunpoint at the funeral home in one criminal episode, the trial judge imposed thirteen consecutive three-year mandatory terms for the robberies. Id. We reversed, however, ruling that the applicable firearm enhancement sentencing statute did not authorize a trial court to deny a defendant the eligibility for parole for a period greater than three calendar years, and accordingly the robbery sentences could only be imposed concurrently. Id. at 3-4.