source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

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text:
    Troy MERCK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC04-1902.
    Supreme Court of Florida.
    Dec. 6, 2007.
    Rehearing Denied Feb. 11, 2008.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Landry, Assistant Attorney General, Tampa, Florida, for Appellee.
   PER CURIAM.

Troy Merck, Jr., appeals the death sentence imposed upon him after a second remand for resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the sentence.

I. FACTS AND PROCEDURAL HISTORY

Troy Merck, Jr., was convicted of first-degree murder following the 1991 stabbing of James Anthony Newton. The facts surrounding the murder are set forth in Merck v. State, 664 So.2d 939 (Fla.1995) (Merck I). The jury recommended a sentence of death, and the trial court followed that recommendation. On October 12, 1995, this Court affirmed Merck’s conviction but reversed his death sentence because we found that a North Carolina juvenile adjudication presented to the jury was not a “conviction” within the meaning of the conviction of a prior violent felony aggravator and that admitting evidence regarding this adjudication was harmful error. Id. at 944. On remand in July of 1997, a circuit court jury unanimously recommended a death sentence, which the trial court imposed. On July 13, 2000, this Court again reversed Merck’s death sentence because we found that the trial court failed to adequately consider nonstatutory mitigation in its sentencing order and inappropriately applied the felony probation aggravator, which did not exist at the time of Newton’s murder. Merck v. State, 763 So.2d 295, 298-99 (Fla.2000) (Merck II).

Merck’s third resentencing proceeding, held in March of 2004 and now before us for review, resulted in a jury recommendation of death by a nine-to-three vote. The trial judge held a Spencer hearing on March 28, 2004. Both the State and the defense presented psychological experts who testified regarding Merck’s mental and emotional states at the time of the murder and at the time of the instant resentencing. The defense also introduced into evidence a copy of the 1997 penalty-phase testimony of Ron Bell, Chief Toxicologist for the Pinellas/Pasco County Medical Examiner’s Office, who offered an opinion regarding Merck’s levels of intoxication and impairment at the time of the murder. After considering this evidence, the trial court followed the jury’s recommendation and imposed the death penalty, finding two aggravating factors: the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; and the capital felony was especially heinous, atrocious, or cruel (HAC). The trial court found one statutory mitigating factor, Merck’s age of nineteen at the time of the offense, which it assigned some weight. The court further found three nonstatutory mitigating factors: difficult family background, assigned some weight; alcoholism/alcohol abuse-intoxication, assigned little weight; and the capacity to form and maintain positive relationships and the capacity for growth, assigned some weight. State v. Merck, CRC9116659CFANO-C (Fla. 6th Cir. Ct. order filed Aug. 6, 2004) (Sentencing Order).

On appeal, Merck presents six claims: (1) the trial court improperly excluded evidence relating to Merck’s presumptive parole release date; (2) the trial court improperly excluded evidence that was relevant to the nature and circumstances of the offense, had bearing on the finding of an aggravating factor, and could have been the basis of additional mitigating factors; (3) the assistant state attorney’s closing argument included improper remarks, which denied Merck a fair penalty-phase proceeding; (4) the trial court failed to find or gave too little weight to mitigating factors; (5) the death sentence is disproportionate; and (6) Florida’s capital sentencing scheme violates the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

II. EXCLUSION OF EVIDENCE CLAIMS

A. Exclusion of Parole Expert Testimony

Merck argues that the trial court erred in excluding proffered expert testimony regarding Florida’s parole procedures and his likelihood of being paroled. Because this murder occurred in 1991, the resentencing jury was instructed that Merck could be sentenced to death or to life in prison without the possibility of parole for twenty-five years. Merck contended that the 2004 resentencing jury would unduly consider that he could be paroled twelve years from the date of its sentencing recommendation. Thus, the defense wanted to present as a witness Felix Ruiz, Regional Administrator in the Tampa Bay Area for the Florida Parole Commission, to testify as to the unlikelihood of Merck actually being paroled. The State objected that this testimony was “wildly speculative” and irrelevant because the State would not be drawing the jury’s attention to the fact that Merck would be considered for parole in 2016 if he was given a life sentence. The defense argued that this testimony was relevant to the mitigating circumstance of length of sentence.

The Court addressed the admissibility of evidence about a defendant’s likelihood of parole in Jackson v. State, 530 So.2d 269 (Fla.1988), where the defendant argued that the trial judge erred in prohibiting him from presenting as a mitigating circumstance the philosophy of the then-existing parole commission not to grant parole to defendants convicted of capital offenses. The Court found that the trial judge did not abuse his discretion because such evidence did not concern the appellant’s character and it was “probable that none of the present parole commission would be serving at the time Jackson could be eligible for parole in twenty-five years had a life sentence been imposed.” Id. at 274.

Likewise, in King v. Dugger, 555 So.2d 355, 359 (Fla.1990), this Court found no error where a trial court excluded testimony by the Executive Director of the Florida Parole and Probation Commission that a life sentence for first-degree murder includes a minimum mandatory sentence of twenty-five years of imprisonment because such evidence was not relevant to King’s character, his prior record, or the circumstances of the crime. This Court held that the “standard instruction on the possible sentences for first-degree murder adequately inform[s] the jury of the minimum mandatory portion of a life sentence.” Id. That same year, this Court found no error in Lucas v. State, 568 So.2d 18, 20 n. 2 (Fla.1990), where the trial court refused to allow Lucas to present testimony that he would not be paroled if sentenced to life imprisonment.

Given these precedents, we find that the trial court did not abuse its discretion in excluding the proffered testimony.

B. Evidence of Circumstances of the Murder

In this claim, Merck argues that the trial court erred in excluding defense evidence regarding the circumstances of the murder. He claims that the trial court improperly excluded testimony that would tend to show that he did not fatally stab the victim and that his involvement in the crime was minor.

The record reflects that except for the testimony identified below that was not proffered, the allegedly excluded testimony was presented to the jury. Contrary to Merck’s argument on appeal, the jury heard that Neil Thomas illegally bought alcoholic drinks for an underage Merck on the night of the murder. Thomas testified that he, not Merck, called the victim a “pussy” and that the victim’s subsequent refusal to fight may have been perceived by Merck as disrespectful and annoying. Thomas testified that he drove Merck away from the crime scene and that they changed clothes so that they would be less recognizable, hid from the police in some bushes, and played pool together later that night. Finally, Thomas testified that he had not been charged with any crime regarding Newton’s murder, denied being given preferential treatment, and explained the prosecuting attorney’s role in and the circumstances surrounding his release after turning himself in to police in 1997 on a 1994 arrest warrant.

Merck argues that the trial court excluded potentially exculpatory testimony by a fingerprint examiner and evidence that eyewitness Katherine Sullivan’s description of the stabber’s clothing matched Thomas’s clothing, not Merck’s. The record does not contain a proffer of such testimony. Thus, we deny Merck’s claim. See Lucas v. State, 568 So.2d 18, 22 (Fla.1990) (“A proffer is necessary to preserve a claim such as this because an appellate court will not otherwise speculate about the admissibility of such evidence.”).

III. CLOSING ARGUMENTS

Merck argues that he was denied a fundamentally fair penalty phase because the prosecutor made numerous improper comments during closing arguments. Attorneys are permitted wide latitude in closing arguments but are not permitted to make improper argument. Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence. Counsel must contemporaneously object to improper comments to preserve a claim for appellate review. Unobjected-to comments are grounds for reversal only if they rise to the level of fundamental error. The Court considers the cumulative effect of objected-to and unobjected-to comments when reviewing whether a defendant received a fair trial. Brooks v. State, 762 So.2d 879, 898-99 (Fla.2000). A trial court has discretion in controlling opening and closing statements, and its decisions will not be overturned absent an abuse of discretion. Dufour v. State, 905 So.2d 42, 64 (Fla.2005). We look at the closing argument as a whole to determine whether that discretion was abused.

In this case, defense counsel made one contemporaneous objection to the prosecutor’s closing argument, which the trial court overruled. The defense objected to the prosecutor making an impermissible “mercy” argument when the prosecutor stated:

The Defense will be talking to you about what we call mitigation. Things about [Merck’s] background they believe should warrant you affording him some mercy that he never afforded Mr. Newton.

The prosecutor revisited this subject at the close of his argument, stating:

What [Merck] did here, there should be no mercy for a merciless crime, ladies and gentlemen. On behalf of the People of [the] State of Florida and Jim Newton, I ask you all to recommend that he die.

This Court has repeatedly condemned mercy arguments that ask the jury to show to the defendant the same amount of mercy as the defendant showed to his or her victim. See, e.g., Brooks, 762 So.2d at 901; Urbin v. State, 714 So.2d 411, 421 (Fla.1998); Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992); Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989). The defense’s objection to the mercy argument should have been sustained. The trial court erred in allowing this argument. However, because the mercy comments were not dwelled upon or emphasized in the context of the entire closing, we conclude that the trial court’s error does not require reversal. We have previously held that a mercy argument standing alone does not constitute reversible error. See Reed v. State, 875 So.2d 415, 438 (Fla.2004).

Merck also urges in this appeal that the Court find that the prosecutor made several improper “golden rule” arguments. Golden rule arguments are arguments that invite the jurors to place themselves in the victim’s position and “imagine the victim’s final pain, terror and defenselessness,” and have long been prohibited. Bertolotti v. State, 476 So.2d 130, 133 (Fla.1985). No objection was made to these alleged golden rule arguments during trial. Specifically, Merck challenges the following statements made by the prosecutor during closing argument:

The Defendant was described to you today as a kind man, a man with positive values. One has to wonder on October 11, 1991, how kind Jim Newton felt when the Defendant jabbed this into his throat and twisted it. Twisted it until blood squirted out of his neck, as the Defendant described it, like a squirt gun....
... [I]sn’t this among the worst ways to die that anyone can imagine? This is one of the worst most aggravated murders ....
... How did that feel to have a knife penetrate his skull?....
Now. That’s one minute. How many thoughts went through your mind in that one minute? Did he live two minutes? Did he live three minutes? Four minutes? Enough time for his life to go, roll his eyes, to think about the people that he would never see again. Was that an unnecessarily torturous way for the man to lose his life that night for no good reason?

Again, we consider these arguments not in isolation but in the context in which the statements were made.

Each of these comments was made in the context of arguing that the evidence supported finding the HAC aggravating factor and that the aggravating factors should be found to outweigh the mitigating factors. The first statement, when placed in context, responds to the defense’s presentation of mitigating evidence and relates to the HAC aggravating factor:

The Defendant was described to you today as a kind man, a man with positive values. One has to wonder on October 11, 1991, how kind Jim Newton felt when the Defendant jabbed this into his throat and twisted it. Twisted it until blood squirted out of his neck, as the Defendant described it, like a squirt gun. Was that the man that you heard these people describing to you today? Was that the person whose life’s decision had brought him to that point? That was not the boy in the donkey suit singing a song in the parking lot that night, it was a grown man deciding to take another man’s life in a gruesome, painful, heinous, atrocious, and cruel manner.

Similarly, the next two challenged prosecu-torial comments were made in direct response to defense counsel’s argument during opening statement that the murder was “an awful crime, but it [was] not by any means the worst” because it was sudden and quick:

Mr. Watts, when he made his opening remarks to you, said this is only for the most aggravated murders. I’m sure that — I know that there are probably more painful and probably worse murders, but isn’t this among the worst ways to die that anyone can imagine? This is one of the worst most aggravated murders. I submit from bringing up the incidents in his childhood, his age, alcohol use, least mitigated.

The final two comments arose in the context of recounting the testimony of the medical examiner and of the eyewitnesses who described the victim’s “awareness, his pain, and his last moments.” The prosecutor stated:

The doctor said that, well, really he could not remain conscious for more than a few minutes. Maybe a minute, maybe two or three would not be, but long enough, ladies and gentlemen, to be torturous.... First of all, he had the wounds to his back, then he gets them to the chest, and then he is jabbed in the throat and it is twisted. How did that feel to have a knife penetrate his skull? I don’t care how much alcohol he has had. Then he just started slashing at his face. The doctor told you about the nerve endings. It is possible that those smaller incise wounds could be just as painful as some of the big ones.... He is grasping at his throat, moaning, kicking, holding his throat. The doctor told you that actually pressure could slow down the bleeding. Those were the last few minutes of his life. And a minute doesn’t sounds [sic] like much, ladies and gentlemen, but for some reason companies all over the world pay millions of dollars for a few minutes of commercials, for instance, during the Superbowl. It is a long time.
Now. That’s one minute. How many thoughts went through your mind in that one minute? Did he live two minutes? Did he live three minutes? Four minutes? Enough time for his life to go, roll his eyes, to think about the people that he would never see again. Was that an unnecessarily torturous way for the man to lose his life that night for no good reason?

Again, the trial transcript reflects that the prosecutor’s arguments were all made in support of the State’s position that the HAC aggravating factor was established by the evidence and supported a recommendation of death.

The Court recently discussed somewhat similar arguments in Rogers v. State, 957 So.2d 538, 549 (Fla.2007). In that case, the prosecutor argued:

We know that she knew she was going to be killed, ... we know when she was stabbed the first time, she didn’t become unconscious; she remained conscious and she could feel the pain of the knife going through her body and could feel the pain of the knife as it was twisted and pulled out of her body, and then he did it again.
What weight do you give to the ten, twenty minutes where she was there in that bathroom reflecting back on her life, on the things that she hadn’t done that she wished she could, the opportunities that had never been presented to her, on her children that she would never see again, on her mother who loved her so dearly....

The Court found that these “arguments were not improper because they were based upon facts in evidence — the victim was stabbed twice, she struggled with her assailant, and she remained alive for at least a short period of time after being stabbed.” Id. We explained that “a common-sense inference as to the victim’s mental state” may be the basis of proper argument. Id. (quoting Banks v. State, 700 So.2d 863, 366 (Fla.1997)). Such arguments are not improper golden rule arguments because they do not attempt to place the jury in the position of the victim.

Similarly, in the instant case, we do not find that the prosecutor’s arguments were improper given their context, and thus we do not find fundamental error. The first four comments described the victim’s injuries and suffering based on facts in evidence and common-sense inferences from those facts. The final comment was designed to illustrate that one minute can be a significant period of time. While one of the comments did invite the jurors to vividly imagine how long a minute could feel, it did not invite the jurors to place themselves in the victim’s position and “imagine the victim’s final pain, terror and defenselessness.” Bertolotti, 476 So.2d at 133.

Next, Merck challenges the prosecutor’s arguments to the jury regarding how many books and Penthouse magazines the victim could have read since 1991 and the prosecutor’s denigration of Merck’s reading books while in prison as a part of a mitigation strategy by Merck’s counsel. Merck is correct that we and the district courts have held that such prosecu-torial comments are improper. See, e.g., Taylor v. State, 583 So.2d 323, 329-30 (Fla.1991) (holding comment that victims could no longer read books and engage in other activities was improper because it urged consideration of factors outside scope of deliberations); Redish v. State, 525 So.2d 928, 931 (Fla. 1st DCA 1988) (holding verbal attacks on personal integrity of opposing counsel are unprofessional and inconsistent with prosecutor’s role). However, the prosecutor’s comments in this case were not the sort of pervasive errors that compromise the integrity of the penalty-phase proceeding and thus were not fundamental errors.

In sum, after considering the prosecutor’s closing argument as a whole, we do not find that the objected-to error and the unobjected-to improper arguments cumulatively resulted in reversible error. Merck received a fair penalty-phase proceeding and is not entitled to relief on this claim.

IV. MITIGATING FACTORS

Merck argues that the trial judge erred by failing to find two statutory mitigating factors: that Merck was under the influence of extreme mental or emotional disturbance; and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired at the time of the stabbing. A trial judge may reject a claim that a mitigating circumstance has been proven, provided that the record contains competent, substantial evidence to support the rejection. Franqui v. State, 804 So.2d 1185, 1196 (Fla.2001) (citing Mansfield v. State, 758 So.2d 636, 646 (Fla.2000)). A trial court’s rejection of a proposed mitigating factor will be upheld on appeal so long as competent, substantial evidence exists to support the rejection. Banks v. State, 700 So.2d 363, 368 (Fla.1997); see also Willacy v. State, 696 So.2d 693, 696 n. 6 (Fla.1997) (noting that Court’s appellate review function does not involve reweighing or reevaluating evidence of aggravating and mitigating circumstances, and receding from prior cases to extent that they indicated otherwise). After reviewing the record, we find that the trial judge did not abuse his discretion in rejecting the proposed mitigating factors because his findings are supported by competent, substantial evidence.

First, competent, substantial evidence supports the trial judge’s finding that Merck’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired. Katherine Sullivan, a friend of the victim who witnessed the stabbing, testified that Merck successfully caught keys thrown to him just moments before the stabbing, despite his alleged alcohol consumption, and that Merck did not have any trouble walking at the time of the murder. Neil Thomas, Merck’s companion on the night of the murder, testified that Merck did not have any trouble walking or talking as a result of his alcohol consumption. Merck’s efforts to evade police after the stabbing, such as abandoning the car, changing clothes, and hiding in bushes, indicate that he was not too drunk to appreciate the criminality of his actions. Finally, Dr. Slo-man, the State’s expert psychologist, testified that he did not believe that impairment from Merck’s personality disorder or his alcohol consumption rose to the level of this statutory aggravator because he concluded that Merck made conscious decisions to behave as he did.

Second, competent, substantial evidence supports the trial judge’s finding that the capital felony was not committed while Merck was under the influence of extreme mental or emotional disturbance. While Dr. Maher, the defense’s expert psychiatrist, testified that he believed Merck was experiencing extreme mental or emotional turmoil at the time of the crime, Dr. Sloman testified that he did not believe that Merck was experiencing extreme mental or emotional distress at the time of the crime. When experts disagree, the trier of fact is entitled to resolve the resulting factual issue. See Walls v. State, 641 So.2d 381, 390 (Fla.1994). Here, the trial court gave greater weight to Dr. Slo-man’s testimony. Questions relating to ev-identiary weight are within the province of the circuit court, and this Court will not reweigh the evidence on appeal. Trotter v. State, 932 So.2d 1045, 1050 (Fla.2006). We defer to the trial judge’s finding that this mitigating factor was not established because his finding was supported by Dr. Sloman’s testimony.

Merck also argues that the trial judge erred by not weighing more heavily the nonstatutory mitigating factors that were found to be established. This Court reviews a trial court’s assignment of weight to proven mitigating factors under an abuse-of-discretion standard. Again, we do not reweigh the aggravating and mitigating factors. We defer to the trial court’s determination “unless no reasonable person would have assigned the weight the trial court did.” Rodgers v. State, 948 So.2d 655, 669 (Fla.2006), cert. denied, — U.S. -, 128 S.Ct. 59, 169 L.Ed.2d 50 (2007) (No. 06-10961). And “while a proffered mitigating factor may be technically relevant and must be considered by the sentencer ... the sentencer may determine in the particular case at hand that it is entitled to no weight for additional reasons or circumstances unique to that case.” Trease v. State, 768 So.2d 1050, 1055 (Fla.2000) (receding from holding in Campbell v. State, 571 So.2d 415 (Fla.1990), that disallowed trial court assigning no weight to established mitigating factors).

Here, the trial judge described Merck’s difficult childhood and noted Merck’s apparent effort to make “the best of’ being in prison before assigning those mitigating circumstances “some weight.” He also explained in detail his reasons for finding that the mitigating circumstance of Merck’s alcoholism and his alcohol consumption on the night of the murder merited only little weight. Again, after reviewing the record, the trial judge’s assignments of weight to the established mitigating factors do not appear unreasonable or arbitrary given the entirety of the evidence presented. Thus, we find this claim is without merit.

V. PROPORTIONALITY

Merck next asserts that his death sentence is disproportionate. “To determine whether death is a proportionate penalty, we consider the totality of the circumstances of the case and compare the case with other capital cases where a death sentence was imposed.” Seibert v. State, 923 So.2d 460, 473 (Fla.) (citing Pearce v. State, 880 So.2d 561, 577 (Fla.2004)), cert. denied, — U.S. -, 127 S.Ct. 198, 166 L.Ed.2d 162 (2006). Considering the totality of the circumstances surrounding this ease, the aggravating and mitigating circumstances, and other similar cases, the death sentence imposed upon Merck is proportionate.

In this case, the trial court found two aggravating factors, conviction of a prior violent felony and HAC, which it compared to Merck’s age of nineteen at the time of the offense and several non-statutory mitigating factors, including Merck’s difficult family background, his alcoholism and alcohol use on the night of the murder, and his capacity to form and maintain positive relationships. This Court has found the death penalty proportionate where the prior violent felony and HAC aggravating factors are proven, even in cases more heavily mitigated than Merck. See, e.g., Singleton v. State, 783 So.2d 970 (Fla.2001) (holding death sentence proportionate in stabbing death where trial court found prior violent felony and HAC aggravating factors and substantial mitigation, including extreme mental or emotional disturbance; impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law; age of sixty-nine at time of offense; under influence of alcohol and possibly medication at time of offense; alcoholism; mild dementia; attempted suicide; honorable military service; and model prisoner during prior sentence); Spencer v. State, 691 So.2d 1062, 1066 (Fla.1996) (holding death sentence proportionate where trial court found prior violent felony and HAC aggravating factors and proven mitigation included extreme mental or emotional disturbance; impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law; drug and alcohol abuse; paranoid personality disorder; sexual abuse; honorable military record; good employment record; and ability to function in structured environment). Based on the foregoing, we find that Merck’s death sentence is proportionate under Florida law.

VI. RING CLAIM

Finally, Merck asserts that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court addressed the constitutionality of Florida’s capital sentencing scheme in light of those decisions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and denied relief. Moreover, we have previously rejected each of Merck’s specific arguments regarding the constitutionality of Florida’s capital sentencing scheme. See State v. Steele, 921 So.2d 538, 543 (Fla.2005) (stating State must prove at least one aggravating circumstance beyond reasonable doubt to support death sentence); Parker v. State, 904 So.2d 370, 383 (Fla.2005) (holding jury may recommend death by majority vote); Lynch v. State, 841 So.2d 362, 378 (Fla.2003) (holding defendant not entitled to notice of aggravators in indictment because aggravators are clearly listed in statutes); Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003) (holding jury not required to make specific findings of aggravating circumstances). Finally, one of the aggravating circumstances found by the trial court in this case was Merck’s prior conviction of a violent felony. This Court has held that the requirement that the jury make all of the findings necessary to enhance a defendant’s sentence is satisfied where one of the aggra-vators is the prior violent felony aggravator. See Patton v. State, 878 So.2d 368, 377 (Fla.2004) (“The existence of this prior violent felony aggravator satisfies the mandates of the United States and Florida Constitutions.... ”). Thus, Merck is not entitled to relief.

VII. CONCLUSION

For the reasons stated above, we find most of Merck’s claims to be either unpre-served or without merit. Regarding the prosecutor’s closing statement, we are deeply troubled by this prosecutor’s failure to abide by this Court’s prior rulings. However, we do not find that the cumulative effect of the objeeted-to and unobject-ed-to comments rise to the level of fundamental error. Accordingly, we affirm Merck’s death sentence.

It is so ordered.

LEWIS, C.J., and WELLS, CANTERO, and BELL, JJ., concur.

PARIENTE, J., dissents with an opinion, in which ANSTEAD and QUINCE, JJ., concur.

PARIENTE, J.,

dissenting.

The question presented is how many times will this Court condemn a specific closing argument and how bad does a closing argument have to be before we will reverse a verdict based on improper prosecutorial comment. In my view, the cumulative effect of multiple improper closing arguments, many of which have been repeatedly condemned by this Court, unquestionably crossed the line in this case and should not be tolerated by this Court. Combined with using a completely improper mercy argument that has been condemned as far back as 1989, the prosecutor’s numerous impermissible closing arguments that repeatedly denigrated the mitigation presented denied Merck a fundamentally fair penalty phase.

Reversal is further required in light of the trial court’s error in refusing to allow expert testimony on the parole process in Florida, leaving the jury with the misim-pression that Merck would be paroled after twenty-five years, an important point in this case because this crime occurred in 1991. We have allowed such testimony in other death penalty proceedings. See, e.g., Hartley v. State, 686 So.2d 1316, 1319 (Fla.1996). The prejudice to the defendant from the trial court’s failure to allow the proffered evidence is demonstrated by the jury’s request for additional instructions on whether Merck’s time served would count toward a sentence of life without possibility of parole for twenty-five years, and asking when the twenty-five year period would begin.

As to the closing argument issue, as the majority recognizes, attorneys are permitted wide latitude in closing arguments, but they are not permitted to make improper argument. See Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). More importantly, in death cases “both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects.” Id. at 1202. As we have reiterated over the years, this Court expects “prosecutors, as representatives of the State, to, refrain from inflammatory and abusive argument, maintain their objectivity, and behave in a professional manner.” Id. (citing Urbin v. State, 714 So.2d 411, 418-22 (Fla.1998); Campbell v. State, 679 So.2d 720, 725 (Fla.1996);. Nowitzke v. State, 572 So.2d 1346, 1356 (Fla.1990); Garron v. State, 528 So.2d 353, 359 (Fla.1988); Bertolotti v. State, 476 So.2d 130, 133 (Fla.1985); Adams v. State, 192 So.2d 762, 764-65 (Fla.1966)).

These admonitions are especially important in the penalty phase of a capital case where, often the nature of the crime, coupled with images of the victim being viciously murdered, makes the concept of mitigation difficult for the jury to accept. That is why it is critical that the prosecutor, as an officer of the court, not make arguments that are inflammatory, especially ones that suggest that the death penalty should be imposed simply because the defendant killed another human being. That is not the law in this State or in this country, as repeatedly spelled out by the United States Supreme Court decisions both interpreting the death penalty in light of the Eighth Amendment’s prohibition against cruel and unusual punishment and recognizing the importance of mitigation in death penalty proceedings. The Constitution requires individualized sentencing in capital cases in which the circumstances of each case and each individual defendant must be considered. See Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Prosecutorial comments arguing that no mercy should be given to one who has shown no mercy fly in the face of the constitutional requirement that the penalty recommendation in each case be made on the basis of its individual facts and circumstances. Moreover, an argument exhorting the jury to show the defendant the same mercy as the defendant showed the victim is in essence a demand for vengeance. The State’s role in a criminal prosecution is not to seek vengeance but to seek justice under our controlling law. This type of comment “violates the prosecutor’s duty to seek justice, not merely ‘win’ a death recommendation.” Urbin, 714 So.2d at 422 (quoting Bertolotti, 476 So.2d at 133).

Topping the list of egregious comments in this case is the prosecutor’s impermissible mercy argument, which the majority agrees was improper, and which was objected to and permitted by the trial court without admonition to the jury:

The Defense will be talking to you about what we call mitigation. Things about [Merck’s] background they believe should warrant you affording him some mercy that he never afforded Mr. Newton.

The defense contemporaneously objected to this comment and asked that it be stricken from the record but the trial court overruled the objection. This ruling was unquestionably erroneous because this Court, as far back as 1989, has condemned the argument that asks the jury to show the defendant the same amount of mercy as the defendant showed his or her victim. See, e.g., Brooks v. State, 762 So.2d 879, 901 (Fla.2000); Urbin, 714 So.2d at 421; Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992); Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989). This type of comment is “an unnecessary appeal to the sympathies of the jurors[,] calculated to influence their sentence recommendation.” Urbin, 714 So.2d at 421 (quoting Rhodes, 547 So.2d at 1206). In Urbin, the Court found this type of argument “blatantly impermissible” given precedent such as Rhodes and Richardson:

If you are tempted to show this defendant mercy, if you are tempted to show him pity, I’m going to ask you to do this, to show him the same amount of mercy, the same amount of pity that he showed Jason Hicks on September 1, 1995, and that was none.

714 So.2d at 421. We have stated before, and I am compelled to do so here again, that “[t]his line of argument is blatantly impermissible.” Urbin, 714 So.2d at 421. The prosecutor violated his duty to, above all, seek justice by making a clearly impermissible argument.

There is no question that the prosecutor should have known that the argument was impermissible and the trial judge should not have allowed the prosecutor to get away with this remark. Instead, as a result of the trial court overruling the objection, the prosecutor revisited this same argument at the end of the closing:

What [Merck] did here, there should be no mercy for a merciless crime, ladies and gentlemen. On behalf of the People of [the] State of Florida and Jim Newton, I ask you all to recommend that he die.

I acknowledge that the prosecutor’s mercy argument was the only prosecutorial comment objected to by the defense. But I would point out that the impermissible mercy argument to which defense counsel did object occurred near the beginning of the closing argument and was unsuccessful. While not an excuse for the defense counsel failing to object, it is possible that counsel may have been reluctant to continue to object after his objection to this clearly impermissible argument was immediately overruled. Although in my view this single unobjected-to closing argument cannot be considered harmless beyond a reasonable doubt in the context of this case, when reviewing closing arguments this Court considers the cumulative effect of all improper arguments, including the objected-to and unobjected-to closing arguments. See Brooks, 762 So.2d at 898-99 (considering cumulative effect of numerous instances of both objected-to and unobjected-to improper prosecutorial comment).

Merck also complains that the prosecutor improperly denigrated the defense’s mitigation case, which is prosecutorial misconduct we have condemned in the past. Most disturbingly, the prosecutor suggested that it was a mere strategy instigated by defense counsel to have Merck read literature and science books while in prison and then assert that he had matured and changed as a result of this reading. Specifically, the prosecutor argued:

They want you to believe that this man that you heard testify today is the new Troy. This is not the Troy that taught Jim Newton how to bleed. He is reading books. He is not the only person in the jail that is of above average intelligence, he is not the first person to read a book in jail. He is reading Steinbeck now, books on science, great literature. It is interesting that his lawyer with 20 years of experience thought we have this proceeding coming up here, while we are waiting. Why don’t you read these books. I’m sure that you are bored in your solitary cell there. I guess we can go and tell a jury that you are reading these books. Could I be so cynical to say that that was all by design? Maybe so. It is a strategy, is what I’m saying.

There was no evidence from which to infer that Merck’s reading was his attorney’s idea. The prosecutor’s suggestion that Merck’s reading was a manufactured strategy rather than self-education was without foundation and disparaged defense counsel as having contrived mitigating circumstances. Verbal attacks on the personal integrity of opposing counsel are inconsistent with the prosecutor’s role and are unprofessional. Redish v. State, 525 So.2d 928, 931 (Fla. 1st DCA 1988); see also Clark v. State, 881 So.2d 724, 726-27 (Fla. 1st DCA 2004) (finding new trial warranted where prosecutor suggested that defense counsel manipulated evidence); Servis v. State, 855 So.2d 1190, 1193-94 (Fla. 5th DCA 2003) (finding cumulative effect of many improper comments, including suggestion that defense counsel was throwing whatever they could against the wall to see what “sticks,” constituted fundamental error); D’Ambrosio v. State, 736 So.2d 44, 48 (Fla. 5th DCA 1999) (finding fundamental error due to several improper comments, including comment that defense counsel was trying to inundate jury in “the sea of confusion”). This Court likewise disapproves of such arguments by the State, which serve only to foster doubt in the jury as to the reliability of what defense counsel tells them.

This argument was part of another theme the prosecutor undertook to denigrate the proffered mitigation, arguing to the jury that “alcohol is not mitigation” and that Merck’s background cannot diminish what he did to the victim. In Urbin, we expressly condemned prosecuto-rial disparagement of proffered mitigation relating to the defendant’s childhood. 714 So.2d at 421. In Brooks, we condemned prosecutorial disparagement of mitigation when it was characterized as “flimsy” or “phantom” or “excuses.” 762 So.2d at 904 (citing Urbin, 714 So.2d at 422 n. 14). The prosecutor improperly disparaged Merck’s mitigation in a similar manner in this case.

The prosecutor then impermissibly asked the jury how many books and Penthouse magazines the victim could have read if the victim had not been murdered, another example of a completely impermissible emotional appeal to the jury. This Court has previously held that comments that the murder victim can no longer read books and do other activities is improper because it urges consideration of factors outside the scope of deliberations. See, e.g., Jackson v. State, 522 So.2d 802, 809 (Fla.1988). This comment was made in the context of belittling Merck’s effort to become educated through reading and also implied that Merck had been reading Penthouse in prison, another fact not in evidence.

There were at least two instances where the prosecutor simply invented evidence. For example, no witness testified that Merck had “Mom” tattooed on his arm. Only the prosecutor “testified” to this detail. Perhaps even more disturbing, the prosecutor, without any evidentiary basis, argued that Merck observed a fake orgasm contest the night of the murder by stating that his mitigation witnesses saw Merck as the little boy that they knew and “not the guy who spent the night drinking and watching the fake orgasm contest and decided that he was going to teach Mr. Newton how to bleed in the parking lot.” (Emphasis supplied.) Clearly, comments on matters not in evidence are improper. Pagan v. State, 830 So.2d 792, 813 (Fla.2002); Pope v. Wainwright, 496 So.2d 798, 803 (Fla.1986) (citing ABA standards for Criminal Justice 3-5.8(d) (2d. ed.1980)). Together with the reference to Penthouse magazine, the prosecutor’s attempt to inject a sexual element into this case seems particularly egregious because during a pretrial hearing the trial judge explicitly excluded testimony that Merck purportedly stated that he derived sexual gratification from killing as being more prejudicial than probative.

I recognize that other than the no-mercy argument, these latter remarks were not objected to and that the Court does not examine improper comments in isolation. “Rather, the Court examines the totality of the errors in the closing argument and determines whether the cumulative effect of the numerous improprieties deprived the defendant of a fair penalty phase hearing.” Card v. State, 803 So.2d 613, 622 (Fla.2001) (citing Brooks, 762 So.2d at 899).

Just as in Brooks, the prosecutor’s remarks here “were not mere casual innocuous observations,” but rather the “record here suggests that the objectionable arguments were tendered calmly and in & fashion calculated to forestall a mercy recommendation.” 762 So.2d at 905 (alteration in original) (quoting Pait v. State, 112 So.2d 380, 385 (Fla.1959)). And, in accordance with our holding in Brooks, I find “that the objected-to comments, when viewed in conjunction with the unobjected-to comments, deprived [the defendant] of a fair penalty phase hearing.” 762 So.2d at 899 (“Taken individually, in a different case, the prosecutor’s comments may not have been so egregious as to warrant reversal. However, the remarks must be viewed cumulatively in light of the record in this case. Here, the improprieties in the prosecutor’s closing argument reached the critical mass of fundamental error.”) (quoting Cochran v. State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998)). This Court recognized in Ruiz v. State, 743 So.2d 1, 7 (Fla.1999), and I would likewise hold here, that “[w]hen the properly preserved comments are combined with additional acts of prosecutorial overreaching ... the integrity of the judicial process has been compromised and the resulting ... sentence[ ] irreparably tainted.”

Looking at the totality of the circumstances in this resentencing, I conclude that the prosecutor’s improper comments compromised the integrity of the penalty phase process and that the jury’s recommendation was tainted by the State’s improper emotional appeals. As this Court has said more than once, the prosecutor in a death penalty case is charged with an obligation to ensure fundamental fairness in all aspects of the trial. See Brooks, 762 So.2d at 905; Gore, 719 So.2d at 1202. Here, the prosecutor failed in that obligation.

In addition to the improper closing argument, I agree with Merck’s contention that the trial court erred in excluding proffered expert testimony regarding Florida’s parole procedures and the likelihood of Merck being paroled. As the majority points out, because of the sentencing law in effect when the crime was committed in 1991, the resentencing jury was instructed that Merck could be sentenced to death or to life in prison without the possibility of parole for twenty-five years. Merck was justifiably concerned that given the possibility of parole after twenty-five years, a sentencing jury in 2004 would unduly consider that he could be paroled only twelve years from the date of their sentencing recommendation if Merck were not sentenced to death. The jury even submitted a question to the court during deliberations as to the penalty, asking: “When the term life in prison without the [possibility] of parole for 25 years is used, when does the time start counting, from this date forward or does his time served count towards the 25 years?” The trial judge responded that he could not answer them directly.

I do not agree that either Jackson v. State, 530 So.2d 269 (Fla.1988), or King v. Dugger, 555 So.2d 355 (Fla.1990), cited by the majority, controls our decision on this issue because Merck’s resentencing is not as temporally distant from the day when he will become eligible for parole consideration. As we explained in Hitchcock v. State, 673 So.2d 859, 863 (Fla.1996), the potential for prejudice to the defendant as a result of parole arguments is heightened when resentencing occurs close to the expiration of the twenty-five-year minimum sentence. Accordingly, Merck should have been permitted to offer appropriate expert testimony regarding Florida’s parole procedures as they pertain to a defendant who is serving a life sentence without the possibility of parole for twenty-five years. Evidence explaining the parole process would have assisted the jury in making a fair assessment of the appropriate penalty. The expert should not be allowed to opine whether or not Merck will receive parole but neither should the jury receive the misimpression that a defendant who has been convicted of first-degree murder is likely to be paroled after" twenty-five years.

Lastly, I would point out that once a particular closing argument has been condemned, this Court should not send mixed signals by once again condemning the argument but affirming the death sentence. As Chief Justice Lewis aptly noted in his special concurring opinion in Brooks:

If the decisions of this Court are to have meaning, particularly in the context of argument in connection with the imposition of capital punishment, we must have uniform application of the standards announced by this Court and not random application which, in my view, leads to confusion and destabilizes the law. I must respectfully but pointedly disagree with the dissenting view that Urbin should not be followed here. I conclude that we must either follow and give meaning to the standards announced in Urbin, or reject its pronouncements and articulate the standard we deem appropriate that should be applied on a uniform basis.

762 So.2d at 906.

Urbin was decided in 1998 but the prosecutor in this sentencing proceeding six years later still made some of the same erroneous arguments expressly condemned in Urbin. Even in Urbin, this Court was constrained to comment that the fact that some of the improper comments present in Urbin were “verbatim examples of conduct we have unambiguously prohibited in Bertolotti, Garron, and their progeny simply demonstrates that there are some who would ignore our warnings concerning the need for exemplary professional and ethical conduct in the courtroom.” Urbin, 714 So.2d at 422. The majority remains “deeply troubled” by this conduct but elects not to reverse because of it. I fear that, despite our best efforts to condemn improper closing arguments and urge prosecutors to refrain from emotional appeal, the majority’s affir-mance may send a mixed signal to prosecutors.

In his relatively short penalty-phase closing argument, the prosecutor made an improper mercy argument, commented on matters outside the scope of evidence, and suggested that defense counsel manufactured mitigation to deceive the jury, all of which are comments that have been expressly held to be improper. What is worse, all these comments were made with the apparent goal of attempting to inflame the jury’s passions toward imposition of the death penalty. For all these reasons, I would reverse and remand for a new penalty phase proceeding.

ANSTEAD and QUINCE, JJ., concur.

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

      . The Legislature amended section 775.082(1), Florida Statutes, to provide that defendants facing the death penalty pursuant to section 921.141, Florida Statutes, for first-degree murder committed on or after May 25, 1994, shall be punished by death or life imprisonment and shall be ineligible for parole. See § 775.082, Fla. Stat. (1995).

      . Our decision in Hitchcock v. State, 673 So.2d 859, 863 (Fla.1996), which found that the potential for prejudice to the defendant as a result of parole arguments is heightened when resentencing occurs close to the expiration of the twenty-five-year sentence is distinguishable. In the instant case, the State did not argue that Merck would be considered for parole after serving twenty-five years.
      Merck’s appeal does raise a pertinent issue as to whether the portion of the standard jury instruction applicable to first-degree murders committed before May 25, 1994, that informs jurors that a life sentence is “without the possibility of parole for twenty-five years” is necessary. We will refer the question of whether the standard jury instruction should be amended to the Criminal Court Steering Committee.

      . The trial judge initially denied Merck’s motion in limine regarding the foregoing evidence because he found that the prior trial judge’s denial of the same motion during the first resentencing became the "law of the case" after it was upheld on appeal by this Court. This law-of-the-case reasoning was erroneous. First, in Merck's appeal from his first resentencing, this Court declined to reach Merck’s claim that the trial court erred in excluding evidence regarding another suspect because the Court found reversible error on another ground. Merck II, 763 So.2d at 297. Second, this Court has consistently applied the "clean slate” rule to resentencing proceedings. Preston v. State, 607 So.2d 404, 408 (Fla.1992). A resentencing is to proceed in every respect as an entirely new proceeding. A trial judge is to properly apply the law during the new penalty phase and is not bound in proceedings after remand by a prior legal error. Id. at 409 (citing Spaziano v. State, 433 So.2d 508, 511 (Fla.1983), aff'd, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984)). However, the evidence was either admitted or not proffered, and therefore the trial court’s erroneous law-of-the-case ruling was harmless error.

      . Merck's argument on appeal does identify numerous factual misstatements in the trial court’s sentencing order concerning mitigating circumstances. Factual errors in a sentencing order are subject to harmless error analysis. See Lawrence v. State, 846 So.2d 440, 450 (Fla.2003); Hartley v. State, 686 So.2d 1316, 1323 (Fla.1996). As stated above, we find that the trial judge’s mitigation findings and assignments of weight are supported by the record. Thus, the factual errors are harmless.

      . The importance of the jury’s ability to consider all properly submitted, relevant mitigation cannot be underestimated. See, e.g., Lockett, 438 U.S. at 604, 98 S.Ct. 2954 (holding that the sentencing judge or jury may not be precluded from considering any evidence regarding a mitigating circumstance that is proffered by a defendant in order to receive a sentence less than death); see also Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (same).


author: LEWIS, C.J.

text:
    Thomas C. SUTTON, et al., Petitioners, v. STATE of Florida, Respondent.
    No. SC06-1000.
    Supreme Court of Florida.
    Jan. 31, 2008.

      Michael Ufferman of the Law Firm of Michael Ufferman, P.A., Tallahassee, FL, for Petitioners.
    Bill McCollum, Attorney General, Robert R. Wheeler, Trisha Meggs Pate, and Bryan Jordan, Assistant Attorneys General, Tallahassee, FL, for Respondent.
   LEWIS, C.J.

We have for review Sutton v. State, No. 1D05-5922 (Fla. 1st DCA Apr. 20, 2006), which expressly and directly conflicts with the decisions in Housing Authority of Tampa v. Burton, 873 So.2d 356 (Fla. 2d DCA 2004), Pinfield v. State, 710 So.2d 201 (Fla. 5th DCA 1998), and Guzzetta v. Hamrick, 656 So.2d 1327 (Fla. 5th DCA 1995). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We approve the decision under review for the reasons provided in our analysis.

FACTUAL AND PROCEDURAL HISTORY

The instant action arises from the order issued in Sutton. In the county court, the petitioners filed identical motions to disqualify a trial court judge based upon the alleged bias of the judge toward the petitioners’ attorneys, which was alleged to have been demonstrated during a single hearing. The trial judge was presiding over the misdemeanor criminal cases of the petitioners. The motions to disqualify were denied. The petitioners subsequently requested that the circuit court issue writs of prohibition in each case to direct the county court judge to take no further action. The circuit court denied the petitions for writs of prohibition. The petitioners then immediately filed notices of appeal to seek review of the circuit court’s denial of the petitions for writs of prohibition, rather than waiting until the conclusion of their trials (for the misdemeanor criminal charges) to seek review. On December 22, 2005, the First District issued an order to show cause why the notices of appeal should not be considered petitions to invoke certiorari jurisdiction. After the parties presented their respective positions, the First District issued multiple orders on April 20, 2006, with regard to this matter. The order in Sutton contained only the following language:

Upon the Court’s own motion, the appeal is hereby redesignated as invoking the Court’s certiorari jurisdiction. See State v. Frazee, 617 So.2d 350 (Fla. 4th DCA 1993)(reviewing circuit court order on petition for writ of prohibition by petition for writ of certiorari); but see Guzzetta v. Hamrick, 656 So.2d 1327 (Fla. 5th DCA 1995)(reviewing circuit court order denying prohibition by appeal). The petitioner shall have 20 days from the date of this order within which to file a petition which conforms to the requirements of Florida Rule of Appellate Procedure 9.100. The petition shall be accompanied by an appendix which complies with Florida Rule of Appellate Procedure 9.220.

No. 1D05-5922. On April 24, 2006, the First District consolidated the eleven cases “for all appellate purposes.” On June 16, 2006, the First District denied the petitioners’ motion to certify conflict and motion to conduct a rehearing en banc with regard to the issue of whether an order denying a petition for writ of prohibition is reviewable by appeal or certiorari. On January 19, 2007, this Court accepted discretionary jurisdiction to resolve the conflict between the instant cáse and Burton, Pinfield, and Guzzetta.

ANALYSIS

The single issue under review is whether a circuit court’s order on a petition for writ of prohibition in this context is reviewable by appeal or certiorari. This is a pure question of law that is subject to de novo review. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1259 (Fla.2006) (concluding that a de novo standard of review is proper for a question of law) (citing D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)); see also Smith v. Smith, 902 So.2d 859, 861 (Fla. 1st DCA 2005) (“The standard of review regarding the trial court’s construction of the rules is de novo.”).

Petition for Writ of Prohibition in Circuit Court

As a preliminary matter, it should be noted that the petitioners properly utilized petitions for writs of prohibition to seek review in the circuit court of the denials of the motions to disqualify the trial judge. In Florida, circuit courts have original jurisdiction under certain circumstances to do the following:

(3) Original Jurisdiction. Circuit courts may issue writs of mandamus, prohibition, quo warranto, common law certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction.

Fla. R.App. P. 9.030(c)(3) (footnote omitted). A writ of prohibition is available only whehe there is no other “appropriate and adequate legal remedy.” S. Records & Tape Serv. v. Goldman, 502 So.2d 413, 414 (Fla.1986) (citing English v. McCrary, 348 So.2d 293 (Fla.1977)). “[A] defendant cannot resort to a writ of prohibition where he [or she] has an adequate remedy via appeal.” Sparkman v. McClure, 498 So.2d 892, 895 (Fla.1986) (citing State ex rel. Turner v. Earle, 295 So.2d 609 (Fla.1974); State ex rel. Schwarz v. Heffernan, 142 Fla. 137, 194 So. 313 (1940); Benton v. Circuit Court for Second Judicial Circuit, 382 So.2d 753 (Fla. 1st DCA 1980)).

Furthermore, notwithstanding that prohibition is generally available only to prevent courts from acting when there is no jurisdiction to act (rather than to prevent an erroneous exercise of jurisdiction), see Goldman, 502 So.2d at 414 (citing English, 348 So.2d 293), prohibition is also clearly recognized as the proper avenue for immediate review of whether a motion to disqualify a trial judge has been correctly denied. See Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978) (“Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy.”) (citing Brown v. Rowe, 96 Fla. 289, 118 So. 9 (Fla.1928)); Dep’t of Pub. Safety v. Koonce, 147 Fla. 616, 3 So.2d 331, 334 (1941); State ex rel. Bank of America v. Rowe, 96 Fla. 277, 118 So. 5, 8 (1928) (“Prohibition may be an appropriate remedy to prevent judicial action, when the judge is disqualified, as well as when the judge is without jurisdiction in the cause.”).

In the instant case, the petitioners’ decision to petition for writs of prohibition to review the denial of the motions to disqualify was the correct avenue of review for multiple reasons. This Court has recognized that prohibition is a proper remedy to seek review of the denial of a motion to disqualify, and we have implicitly recognized in this context that the petitioners would not have an adequate remedy through direct appeal at the conclusion of the trial. The need for immediate review after a denial of a motion to disqualify arises due to practical considerations. On a motion to disqualify, the same judge who allegedly is biased is the one who rules on the motion. Thus, this ruling should be immediately reviewable because it could be erroneously denied in numerous situations in which a trial by that biased judge should have been avoided altogether. Moreover, the petitioners here did not have an adequate alternative remedy for immediate review with an appeal because they could not seek an interlocutory appeal under these circumstances. Under Florida Rule of Appellate Procedure 9.030, nonfinal orders of the county courts may be reviewed on appeal by a district court of appeal only if the county courts have certified them to be of great public importance. See Fla. R.App. P. 9.030(b)(4)(B). Additionally, the petitioners could not seek an interlocutory appeal in the circuit court. Under Florida Rule of Appellate Procedure 9.140, which governs appeal proceedings in criminal cases, only the state is allowed to appeal to the circuit court the nonfinal orders issued in the county court. See Fla. R.App. P. 9.140(c)(2). Here, it was the defendants who sought review of the trial court’s order of denial.

Petition for Writ of Prohibition Serves Similar Function as a Direct Appeal

Immediate review of a county court ruling in a petition for writ of prohibition to the circuit court serves a function similar to a direct appeal, but is discretionary in nature. Notwithstanding that a petition for writ of prohibition is technically an original proceeding, see Fla. R.App. P. 9.030(b)(3), its function is to seek review of the action by the lower court to ensure that the lower court is not acting without jurisdiction or has not erroneously denied a motion to disqualify. See State ex rel. Associated Utils. Corp. v. Chillingworth, 132 Fla. 587, 181 So. 346, 348 (1938) (“Proceedings by mandamus, quo warran-to, habeas corpus, certiorari and prohibition are original in their nature, though they may be invoked to perform functions that are appellate in their nature.” (emphasis supplied)). Here, a remedy in an interlocutory appeal was not available, but a remedy in prohibition was available as an alternative for such circumstances even though it is discretionary in nature and not a matter of right.

As the petitioners correctly argue, a petition for writ of prohibition is technically sought to prevent the judge from proceeding further in the action, rather than to correct legal error, due to its status as an original proceeding. See Sparkman, 498 So.2d at 895. Although this distinction is correct in a formalistic sense, from a functional perspective, this writ provides the opportunity for review of the allegedly erroneous action of the lower court. Thus, although the mechanics may differ, the two avenues of review by direct appeal (either an interlocutory appeal or an appeal at the trial’s conclusion) and discretionary review by petition for writ of prohibition may operate in functionally the same manner if review is accepted.

The fact that a writ of prohibition is a discretionary writ, see Topps v. State, 865 So.2d 1253, 1257 (Fla.2004) (“Since the nature of an extraordinary writ is not of absolute right, the granting of such writ lies within the discretion of the court.”), does not render it completely distinguishable from a direct appeal, which is guaranteed as a matter of right in this context. See Amendments to the Fla. Rules of Appellate Procedure, 685 So.2d 773, 774 (Fla.1996) (discussing that article V, section 4(b)(1) of the Florida Constitution should be interpreted as providing a constitutional protection of the right to appeal). When a court acts without jurisdiction or the trial judge has erroneously denied a motion to disqualify, the higher court reviews the allegations and has discretion with regard to whether to grant the writ, which necessitates consideration of the substance of the petition. The discretion exercised when a petition for writ of prohibition is denied in this context is analogous to consideration of issues on an appeal before a decision is rendered. Moreover, if the circuit court in the instant case had determined that the motion for disqualification was erroneously denied by the county court, the circuit court would have granted the writ of prohibition in its review capacity. See Bundy, 366 So.2d at 442 (“Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy.” (emphasis supplied)) (citing Brown, 96 Fla. 289, 118 So. 9). Thus, notwithstanding that a writ of prohibition is a discretionary writ, we conclude that review through a petition for writ of prohibition in this context and review in direct appeal are functionally the same with regard to the next step, if any, in a review process.

No matter what serves as the underlying basis for the petition for writ of prohibition, the court ruling on that petition in this context will undertake a similar analysis to that conducted by a court on direct appeal. This clearly supports that an order on a petition for writ of prohibition is reviewable by certiorari. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 526 n. 4, 530 (Fla.1995) (“There are societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals.... As a case travels up the judicial ladder, review should consistently become narrower, not broader.”).

Sheley v. Florida Parole Commission

Additionally, this Court’s decision in Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998) (“Sheley II”), clearly supports the principle of law that a circuit court’s order on a petition for writ of prohibition in this context is reviewable by certiorari. In that case, the defendant sought a writ of mandamus in the circuit court seeking to challenge an order of the Parole Commission with regard to a presumptive parole release date. See id. at 217. The circuit court denied relief in the petition for writ of mandamus. See id. The defendant sought review of the denial of the petition for writ of mandamus in an appeal to the First District. See id. The First District treated the appeal as a petition for writ of certiorari and denied relief. See id. This Court approved the decision of the First District. See id. at 216. In so holding, this Court quoted with approval the following from the decision of the First District in Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997) (“Sheley I ”):

The inmate has already been afforded the right to review the Commission’s action on the merits by filing a petition for writ of mandamus in the circuit court. It would be illogical to provide the inmate a second opportunity for review on the merits by allowing a plenary appeal from the circuit court order. For these reasons, we treat the appeal as a petition for writ of certiorari and we review the case by the limited standard that applies when certiorari is used to review a prior appellate decision.

Sheley II, 720 So.2d at 217 (quoting Sheley I, 703 So.2d at 1206). Additionally, this Court reasoned:

The district court drew an analogy to two lines of cases: (1) those cases wherein a defendant files a petition for an extraordinary writ in circuit court to review an order of the county court; and (2) those cases governing secondary appellate review of local administrative action. In both lines of cases, the petitioner is unentitled to a second plenary appeal on the merits.
We agree with the district court’s reasoning and find its analogies apt.

Sheley II, 720 So.2d at 217 (emphasis supplied; footnotes omitted).

The significance of this quoted language to the single issue in this case cannot be overstated. In Sheley II, this Court adopted the analogy with regard to the two lines of cases. The first line of cases described by this Court is precisely the fact in the instant case. Thus, contrary to the petitioners’ argument, it is irrelevant that the other facts in Sheley I are somewhat distinguishable from those before us today. In holding that the defendant was not entitled to a second plenary appeal of the administrative action, this Court explicitly concluded that a defendant would not also be entitled to a second plenary appeal under the more general circumstances when a petition for an extraordinary writ (e.g., a petition for writ of prohibition) is filed in circuit court to review an order of the county court. Thus, there is precedent from this Court which clearly supports the principle of law that an order on a petition for writ of prohibition in connection with an issue of recusal is reviewable by certiorari.

Constitutional Provisions and the Florida Rules of Appellate Procedure

The Florida Constitution and the Florida Rules of Appellate Procedure also clearly support the principle that an order on a petition for writ of prohibition is reviewable by certiorari. The petitioners argue that because a petition for writ of prohibition is technically an original proceeding, a circuit court’s order on a petition for writ of prohibition is a final order; thus, it is reviewable by appeal pursuant to article V, section 4(b)(1) of the Florida Constitution, which provides:

(1) District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appeal-able to the supreme court or a circuit court.

Art. V, § 4(b)(1), Fla. Const. (emphasis supplied). Contrary to the petitioners’ argument, this constitutional provision does not establish that an order on a petition for writ of prohibition is a final order or final judgment reviewable by appeal. Instead, the Florida Rules of Appellate Procedure provide insight into the meaning of this constitutional provision and support the determination that an order on a petition for writ of prohibition is reviewable by certiorari. Florida Rule of Appellate Procedure 9.030 provides:

(b) Jurisdiction of District Courts of Appeal.
(1) Appeal Jurisdiction. District courts of appeal shall review, by appeal
(A) final orders of trial courts, not directly reviewable by the supreme court or a circuit court, including county court final orders declaring invalid a state statute or provision of the state constitution;
(B) non-final orders of circuit courts as prescribed by rule 9.130;
(C) administrative action if provided by general law.
(2) Certiorari Jurisdiction. The cer-tiorari jurisdiction of district courts of appeal may be sought to review
(A) non-final orders of lower tribunals other than as prescribed by rule 9.130;
(B) final orders of circuit courts acting in their review capacity.

Fla. R.App. P. 9.030(b)(1)-(2) (footnotes omitted). Rule 9.030(b)(1)(A) is taken directly from article V, section 4(b)(1) of the Florida Constitution. When read in conjunction, the statement that district courts of appeal must review “final orders of trial courts,” Fla. R.App. P. 9.030(b)(1)(A), obviously does not include “final orders of circuit courts acting in their review capacity.” Fla. R.App. P. 9.030(b)(2)(B). In formulating rule 9.030, this Court recognized that these two types of final orders are distinguishable and the latter, when the court is acting in a review capacity, may instead be reviewed by certiorari. Under rule 9.030(b)(1)(A), the “trial courts” language establishes that this mandatory appeal rule only applies to county courts and circuit courts acting in their trial capacity, rather than “circuit courts acting in their review capacity.” Fla. R.App. P. 9.030(b)(2)(B). As previously discussed, although a petition for writ of prohibition may technically be classified as an original action, courts act only in their review capacity in this context in the determination of a petition for writ of prohibition.

An order on a petition for writ of prohibition is clearly reviewable by cer-tiorari. As a general rule, certiorari should not be used as a second appeal:

[I]f the role of certiorari was expanded to review the correctness of the circuit court’s decision, it would amount to a second appeal. If an appellate court gives what amounts to a second appeal, by means of certiorari, it is not complying with the Constitution, but is taking unto itself the circuit courts’ final appellate jurisdiction and depriving litigants of final judgments obtained there.

Heggs, 658 So.2d at 526 n. 4. Because review in the nature of a petition for writ of prohibition in this context functions like an appeal, additional review that functioned as a second appeal would be problematic. Thus, the distinguishing features of review under common-law certiorari, in comparison to review by appeal, must be utilized to review an order on a petition for writ of prohibition in this context to ensure there is not another appeal under “the guise of certiorari.” Id. These distinguishing features are:

First, common-law certiorari is available only “where no direct appellate proceedings are provided by law.” Second, common-law certiorari is entirely discretionary with the court, as opposed to appeal which is taken as a matter of right. Third, the scope of review by common-law certiorari is traditionally limited and much narrower than the scope of review on appeal.... Fourth, common-law certiorari will only lie to review judicial or quasi-judicial action, never purely legislative action....

Id. at 526 n. 3 (emphasis supplied; citations omitted) (quoting G-W Dev. Corp. v. Village of N. Palm Beach, 317 So.2d 828, 830 (Fla. 4th DCA 1975)). With regard to the scope of review, the reviewing court in this context can only grant a petition for writ of certiorari based on a departure from the essential requirements of law. See Combs v. State, 436 So.2d 93, 94 (Fla.1983). A departure from the essential requirements of law is not mere legal error, but instead, involves a “gross miscarriage of justice.” Heggs, 658 So.2d at 527. Due to its discretionary nature, a district court of appeal may refuse to grant certiorari relief even if there is legal error which could be argued to be a departure from the essential requirements of law. See Combs, 436 So.2d at 96. These standards govern the process of a district court of appeal in certiorari review of an order on a petition for writ of prohibition in this context to ensure that such review will neither function like nor actually be a second appeal.

Contrary to the petitioners’ assertion, review by certiorari under these standards will not violate the petitioners’ (or future parties’) constitutional right to appeal. In its interpretation of article V, section 4(b)(1) of the Florida Constitution, this Court concluded that this provision is a constitutional protection of the right to appeal. See Amendments to the Fla. Rules of Appellate Procedure, 685 So.2d at 774. As described above, the petitioners were given review, through the circuit court’s consideration of the original petition for writ of prohibition, on the narrow issue of whether the motion to disqualify was improperly denied. Thus, we conclude that the petitioners have been afforded the right of review in accordance with the Florida Constitution. Accordingly, the proper method to review the order on the petition for writ of prohibition in this context is certiorari.

CONCLUSION

For the foregoing reasons, we approve the decision under review and remand for proceedings consistent with this opinion. In so doing, we disapprove the decisions in Burton, Pinfield, and Guzzetta to the extent they are inconsistent with this opinion.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ„ concur.

      . The State argues that there is no conflict jurisdiction because the action below by the First District Court of Appeal was an unpublished order without table citation and such does not constitute a "decision” as contemplated by article V, section 3(b)(3) of the Florida Constitution. This argument is without merit. This Court has previously exercised its discretionary jurisdiction where the action below was an unpublished order. In Department of Law Enforcement v. House, 678 So.2d 1284, 1284 (Fla.1996), and Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1379 (Fla. 1993), this Court held that jurisdiction existed under article V, section 3(b)(4), even though conflict was certified by an unpublished order (and no table citation was provided). In both House and Espinosa, this Court subsequently rendered a decision on the merits. See House, 678 So.2d at 1284; Espinosa, 612 So.2d at 1380. Also, in Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984), this Court held that jurisdiction existed under article V, section 3(b)(4), even though the question of great public importance was certified by unpublished order (and no table citation was provided). See id. at 514. In Stanley, this Court also subsequently rendered a decision on the merits. See id. at 515. Thus, there is precedent for this Court exercising its discretionary jurisdiction with regard to unpublished orders that are without table citation, and this includes cases that involve conflict jurisdiction. Similar to the use of the word "decision” in article V, section 3(b)(4) of the Florida Constitution, the term "decision” is also used in article V, section 3(b)(3) to define the parameters of this Court’s review through discretionary jurisdiction. In the cases previously discussed, this Court has concluded that unpublished orders without table citation constitute "decisions” for discretionary jurisdiction purposes. Therefore, the decision to invoke discretionary jurisdiction in the instant case is within the existing jurisprudence of this Court.

      . There are ten separate petitioners in eleven cases, which were eventually consolidated for review in the First District. Sutton was designated as the lead case. The petitioners all argue one identical issue — -whether a circuit court’s order on a petition for writ of prohibition is reviewable by appeal or certiorari.

      . The First District issued an order for each of the eleven cases. The orders either contained the identical language or language that was similar in substance to the order in Sutton.