author: QUINCE, J.

text:
    STATE of Florida, Petitioner, v. Moroni LOPEZ, Respondent.
    No. SC05-88.
    Supreme Court of Florida.
    Jan. 10, 2008.

      Bill McCollum, Attorney General, Robert R. Wheeler, Bureau Chief Criminal Appeals, and Felicia A. Wilcox, Assistant Attorneys General, Tallahassee, FL, for Petitioner.
    Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.
    Paula S. Saunders, Office of the Public Defender, Tallahassee, Florida, and Michael Robert Ufferman, Tallahassee, FL, for the Florida Association of Criminal Defense Lawyers, as Amicus Curiae.
   QUINCE, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Lopez v. State, 888 So.2d 693 (Fla. 1st DCA 2004). The district court certified that its decision is in direct conflict with the decision of the Fifth District Court of Appeal in Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004), review granted, No. SC04-1823 (Fla. Sept. 8, 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we approve the decision of the First District Court of Appeal in Lopez that a prior discovery deposition of a de-clarant by the defendant’s counsel did not qualify as a “prior opportunity for cross-examination” under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and that the admission of this testimonial statement at trial violated the defendant’s confrontation rights. We also disapprove the decision of the Fifth District in Blanton to the extent that it conflicts with this opinion.

STATEMENT OF THE CASE AND FACTS

Moroni Lopez was convicted of possession of a firearm by a convicted felon. The evidence presented against Lopez was a hearsay statement made to a police officer by a person who stated that he had observed Lopez in possession of a firearm.

Police officers were dispatched to an apartment complex in Tallahassee to investigate a reported kidnapping and assault. The alleged victim, Hector Ruiz, met the police officers in the parking lot and told Officer Mel Gaston that a man had abducted him in his own car at gunpoint. Ruiz appeared upset and nervous as he spoke to the officer. Ruiz surreptitiously indicated that Lopez, who was also standing in the parking lot, was the person who had pointed a gun at him and forced him out of his home. Ruiz also told Officer Frank Arias that the gun used in his abduction was still in his car. The officers’ search of the car revealed a loaded .38 caliber Smith & Wesson revolver under the front passenger seat.

Officer Arias advised Lopez of his rights and questioned him about the gun. Lopez admitted that the gun was his and explained that he had hidden the gun in Ruiz’s car when he saw the police officers. The State charged Lopez with armed kidnapping, assault with a weapon, and possession of a firearm by a convicted felon. Lopez pled not guilty and sought discovery from the State. Ruiz appeared for a discovery deposition and was questioned by Lopez’s defense counsel. At the time of trial, however, Ruiz was unavailable as a witness and the State was unable to serve him with-a subpoena.

Just before trial, the State informed the court and defense counsel that it would be proceeding only on the charge of possession of a firearm by a convicted felon. The defendant moved to exclude Ruiz’s statement to Officer Gaston. At a hearing outside the presence of the jury, the prosecutor argued that the statement was admissible as an excited utterance. Defense counsel argued that the statement did not qualify under the excited utterance exception and also argued that the admission of the statement would violate Lopez’s Sixth Amendment confrontation rights. The trial court ruled that the statement was admissible and allowed the officers to relate an edited version of the events. The jurors were not told about the alleged abduction, but did hear Ruiz’s statement to Officer Gaston identifying Lopez as the person who had the revolver.

Lopez testified in his own defense. He denied possession of the firearm and repudiated the admission attributed to him by Office Arias. Lopez also stated his belief that he had been set up by Ruiz and his employer Mario Morqucho in retaliation for sexual battery complaints he had made against them. The jury found Lopez guilty with a special finding that he was in actual possession of the firearm. Lopez was sentenced to three years in the Department of Corrections with a three-year mandatory minimum term.

On appeal, the First District Court of Appeal concluded that the admission of Ruiz’s testimonial statement without an opportunity for cross-examination violated Lopez’s confrontation rights. Lopez v. State, 888 So.2d 693, 695 (Fla. 1st DCA 2004). The First District agreed with the trial court that Ruiz’s statement was an excited utterance because the abduction at gunpoint was a startling event, Ruiz made the statement in question only six to eight minutes after the crime had been reported, and Ruiz appeared to be under the stress of the event when he made the statement as he appeared nervous and was speaking rapidly. Id. at 696-97. The First District also concluded that Ruiz’s “excited utterance” identifying Lopez as the suspect in response to Officer Gaston’s questioning at the crime scene was a testimonial statement because Ruiz knew that this was a form of accusation that would be used against the suspect. Id. at 699-700. The First District concluded that a prior discovery deposition of Ruiz by Lopez’s counsel did not qualify as a “prior opportunity for cross-examination” under Crawford. Id. at 700-01. Finally, the First District certified conflict with the Fifth District’s decision in Blanton, 880 So.2d at 798, on the discovery deposition issue. Lopez, 888 So.2d at 701-02.

ANALYSIS

The State contends that the victim’s statement was not testimonial and thus was outside the scope of Crawford v. Washington. The State also argues that even if the victim’s statement was testimonial, the Confrontation Clause was satisfied when Lopez’s counsel conducted a pretrial deposition of the witness who did not testify at trial. Lopez, on the other hand, asserts that the victim’s statement was testimonial in violation of Crawford. Lopez further asserts that the pretrial deposition here did not satisfy his constitutional right to confront his accuser and that there was no opportunity for cross-examination because the witness did not testify at trial.

Was the Victim’s Statement Testimonial under Crawford ?

The trial court admitted Ruiz’s statement under the excited utterance hearsay exception in section 90.803(2), Florida Statutes (2006). Section 90.803(2) authorizes the admission of “[a] statement or excited utterance relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition,” notwithstanding the general prohibition against the admission of hearsay. The rationale for this exception is that a statement made during a period of excitement is likely to be more reliable than a statement made after a period of reflection. See Evans v. State, 838 So.2d 1090 (Fla.2002). A person who is startled and excited does not have the capacity to analyze the facts or to make a conscious misrepresentation of the event. A statement made during a period of excitement is therefore less likely to be contrived.

With these guiding principles, the trial judge could properly conclude that the statement at issue was an excited utterance because Ruiz’s abduction at gunpoint was obviously a startling event and he appeared to still be under the stress of that event when he made his statement to the officer, who described Ruiz as being nervous, shaken, and speaking rapidly. However, the mere fact that evidence meets the requirements of an exception to the hearsay rule does not necessarily mean it is admissible as evidence. The statement might be inadmissible for other reasons, including that the use of the statement would violate the defendant’s constitutional right of confrontation. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The right guaranteed by this part of the Sixth Amendment differs from the kind of protection that is afforded by state evidentiary rules governing the admission of hearsay.

The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Before Crawford, the issue was controlled by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability. This test focused on the reliability of the statement. As explained in Roberts, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore “particularized guarantees of trustworthiness.” Id.

In Crawford, the Supreme Court dispensed with the Roberts reliability analysis for testimonial hearsay statements and held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if “testimonial” evidence is at issue, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354. “Only [testimonial statements] cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id. Thus, we must initially determine whether the statement at issue in the instant case was testimonial.

While Crawford did not establish a precise definition of the term “testimonial,” the Supreme Court did provide some guid-anee, holding that, at a minimum, statements are testimonial if the declarant made them “at a preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Since Crawford was decided, courts have come to different conclusions on the question of whether statements made in response to interrogation during the early stages of an investigation are testimonial. The Supreme Court, however, recently addressed this question in Davis, providing guidance for our analysis of the nature of the victim’s statement here.

Davis further clarified Crawford’s definition of “testimonial,” analyzing two separate scenarios involving witness statements. Davis actually involved two separate cases decided by the Washington and Indiana Supreme Courts, State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (2005), and Hammon v. State, 829 N.E.2d 444 (Ind.2005). In both cases, the trial courts admitted statements made by victims of domestic battery and the defendants argued that the admission of the statements, in the absence of the declarant’s testimony at trial, violated their Sixth Amendment right to confrontation. In Davis, the relevant statements were made to a 911 emergency operator as the declarant was actually being attacked by the defendant. The declarant identified Davis as the assailant. In Hammon, the relevant statements were made to police officers who had responded to a domestic dispute call. The declarant recounted to the police the details of a previous attack by Hammon. The Supreme Court concluded that the statements made during the 911 call in Davis were nontestimonial, while the statements to the police officers in Ham-mon were testimonial. As explained by the Supreme Court, the distinction rests on the primary purpose of the interrogation in each instance. 126 S.Ct. at 2273-74.

In Davis, the questioning by the 911 operator was to enable the responding officers to meet an ongoing emergency. The Supreme Court noted the following circumstances in Davis: the declarant was speaking about events as they were actually happening; the declarant was facing an ongoing emergency and made the 911 call in order to seek help against a bona fide physical threat; the elicited statements were crucial to resolving the ongoing emergency (i.e., the 911 operator asked who was attacking the caller, whether the attacker was using a weapon, and whether the attacker had been drinking); and the declarant was giving frantic answers over the phone in the midst of hectic events and an unsafe environment. 126 S.Ct. at 2276-77.

In contrast, the Supreme Court concluded that the primary purpose of the interrogation in Hammon was to establish or prove past events potentially relevant to later criminal prosecution. The Supreme Court noted very different circumstances surrounding the interrogation in Ham-mon: there was no emergency in progress when the officers arrived; the declarant was alone on the front porch and told the officers that she was fine and in no immediate danger; the officer questioned the declarant in a separate room about “what had happened”; the declarant delivered a narrative of past events removed in time from the danger she described; and the officer asked the declarant to execute a written affidavit in order to establish the events that had occurred previously. The Supreme Court described these statements in Hammon as “an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” 126 S.Ct. at 2278-79.

From these two scenarios, the Davis Court established a general rule for determining whether statements are testimonial or nontestimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, 126 S.Ct. at 2273-74.

Applying this analysis to the instant case, we conclude that Ruiz’s statement to Officer Gaston was testimonial, and is therefore within the scope of Crawford. The circumstances here indicate that there was no ongoing emergency at the time Officer Gaston questioned Ruiz. Officer Gaston arrived at the scene of the crime six to eight minutes after the crime had been reported. Lopez, 888 So.2d at 697. At the time Officer Gaston approached him, Ruiz was standing in a parking lot about twenty-five yards away from Lopez, separated from his alleged abductor in much the same way the declarant in Ham-mon was separated from defendant Ham-mon when the police arrived. Id. at 695. A short time later, Ruiz revealed that the gun that was allegedly used in his abduction was under the front passenger seat of his car, presenting no immediate danger at the time Officer Gaston arrived. Id. Even though the questioning of Ruiz was not as formal as it may have been in Ham/mon, it seems clear that the “primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 126 S.Ct. at 2274. Therefore, the statement in Lopez was testimonial.

Was the Discovery Deposition a Prior Opportunity to Cross-Examine?

Because we have determined Ruiz’s statement to Officer Gaston was testimonial, it is subject to analysis under Crawford. In order for a testimonial statement to be admissible under Crawford, the following two requirements must be met: the declarant must be unavailable to testify at trial and the defendant must have had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The First District properly concluded that the first requirement of unavailability was met because the parties were not able to serve Ruiz with a subpoena for trial because he apparently had absconded. Lopez, 888 So.2d at 700. Thus, the remaining question is whether the discovery deposition of Ruiz by defense counsel satisfies the requirement of an “opportunity to cross-examine” under Crawford.

The First District concluded that the discovery deposition of Ruiz did not satisfy Crawford’s cross-examination prong. Lopez, 888 So.2d at 701-02. The First District noted a number of reasons why a discovery deposition does not satisfy the requirement of an opportunity for cross-examination. First, Florida Rule of Criminal Procedure 3.220(h) was not designed as an opportunity to engage in adversarial testing of the evidence against the defendant, nor is the rule customarily used for the purpose of cross-examination. Instead, the rule is used to learn what the testimony will be and attempt to limit it. Second, a discovery deposition is not intended as an opportunity to perpetuate testimony for use at trial. Third, the defendant is not entitled to be present during a discovery deposition pursuant to rule 3.220(h). Id. We agree.

In examining the history of the Sixth Amendment’s Confrontation Clause in Crawford, the Supreme Court explained that it was based on the English common law tradition of “live testimony in court subject to adversarial testing.” Crawford, 541 U.S. at 43, 124 S.Ct. 1354. The Supreme Court explained that this tradition was in contrast to the civil law that “condone[d] examination in private by judicial officers.” Id. The Supreme Court further explained that the proposed federal Constitution did not contain a right of confrontation, although many of the states’ declarations of rights did. Id. at 48, 124 S.Ct. 1354. In response to general criticism of this omission, the First Congress included the Confrontation Clause in the proposal that became the Sixth Amendment. Id. at 48-49, 124 S.Ct. 1354. Early state decisions involving this right held that depositions or other prior testimony could only be admitted against an accused if he was present and had an opportunity to cross-examine the witness when the testimony was given. Id. at 49, 124 S.Ct. 1354. The Supreme Court also explained that a “pri- or opportunity to cross-examine” was both a “necessary” and “dispositive” requirement to the admission of testimonial statements. Id. at 55-56, 124 S.Ct. 1354. The Supreme Court stated most emphatically that “under no circumstances” shall the defendant be deprived of “seeing the witness face to face and ... subjecting him to the ordeal of a cross-examination.” Id. at 57,124 S.Ct. 1354 (quoting Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 39 L.Ed. 409 (1895)). Further, the Supreme Court explained that the Confrontation Clause provides a procedural, not a substantive, guarantee. Id. at 61, 124 S.Ct. 1354. “It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. (emphasis added).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court explained that the right of the accused to be confronted with the witnesses against him is more than being allowed to confront the witnesses physically. The primary interest secured by confrontation is the right of cross-examination. The Supreme Court stated:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.... [T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Id. at 316-17, 94 S.Ct. 1105. Thus, it stands to reason that the prior opportunity to cross-examine required by Crawford must serve the same functions. In Ohio v. Roberts, 448 U.S. 56, 70, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court addressed the adequacy of the defendant’s examination of a declarant at an adversary preliminary hearing. The Supreme Court noted that the testimony from a preliminary hearing was properly admitted in Roberts because the defendant had examined the witness at that hearing. Id. Thus, we can discern that the requirement for confrontation is satisfied where the opportunity is exercised, is more than “de min-imis,” and is “the equivalent of significant cross-examination.” Roberts, 448 U.S. at 70, 100 S.Ct. 2531; see also John F. Yetter, Wrestling with Crawford v. Washington and the New Constitutional Law of Confrontation, Fla. B.J., Oct. 2004, at 26, 31. In light of Crawford, the Colorado Supreme Court recently held that its preliminary hearings, which are usually restricted to a determination of probable cause and limit the opportunity for cross-examination, “do[ ] not provide an adequate opportunity to cross-examine sufficient to satisfy the Confrontation Clause requirements.” People v. Fry, 92 P.3d 970, 978 (Colo.2004).

The State contends that Florida’s rules of criminal procedure provide an adequate opportunity for cross-examination through the opportunity to conduct a discovery deposition and to perpetuate the testimony of a witness through a deposition. Florida Rule of Criminal Procedure 3.220(h)(1)(A) provides that after the charging document has been filed the defendant may take the deposition of any witness listed by the prosecutor as a Category A witness under rule 3.220(b)(l)(A)(i). Rule 3.220(h)(7) provides that a defendant is not to be physically present at a deposition except by stipulation of the parties. The court can also order the defendant’s physical presence upon a showing of good cause. As explained in the committee notes, “[c]ases requiring the defendant’s presence are the exception rather than the rule.” Fla. R.Crim. P. 3.220 comm, note (1989). The Florida Supreme Court Commission on Criminal Discovery also explained that it was a common complaint that “the presence of the defendant intimidates [rape and child abuse] victims” and this “trauma to the victim surpasses the benefit to the defense of having the defendant present at the deposition.” Id. Because the Commission found no right of a defendant to attend a deposition other than that granted by the rules of discovery, the Commission stated its belief that “no such right should exist in those cases,” i.e., rape and child sexual abuse cases. Id. Thus, discovery depositions do not function as the equivalent of the cross-examination opportunity envisioned by Crawford.

Professor Yetter pointed out this problem in his article dealing with the constitutional law of confrontation post-Crawford. He noted that the 1989 amendment to the discovery rule prohibits the presence of a defendant at discovery depositions without a court order or stipulation of the parties. Yetter, supra, at 30. Professor Yetter cautioned that “if a discovery deposition is to have any chance of substitution for at-trial confrontation, the prosecution will at least have to stipulate to the attendance of the defendant, who, in turn, will have to be given the opportunity to attend.” Id.

Additionally, the purpose of a discovery deposition is at odds with the concept of a meaningful cross-examination. Often discovery depositions are taken for the purpose of uncovering other evidence or revealing other witnesses. As this Court has explained, the fundamental distinctions between depositions taken pursuant to Florida Rule of Criminal Procedure 3.190(j) (Motion to Take Deposition to Perpetuate Testimony) and those taken under rule 3.220 are:

Depositions taken pursuant to rule 3.190 are specifically taken for the purpose of introducing those depositions at trial as substantive evidence. Depositions taken pursuant to rule 3.220, on the other hand, are for discovery purposes only and, for a number of reasons, assist in shortening the length of trials. How a lawyer prepares for and asks questions of a deposition witness whose testimony may be admissible at trial as substantive evidence under rule 3.190 is entirely different from how a lawyer prepares for and asks questions of a witness being deposed for discovery purposes under rule 3.220. In effect, the knowledge that a deposition witness’s testimony can be used substantively at trial may have a chilling effect on a lawyer’s questioning of such a witness.

State v. Green, 667 So.2d 756, 759 (Fla.1995). A defendant cannot be “expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition.” State v. Basiliere, 353 So.2d 820, 824-25 (Fla.1977). This is especially true if the defendant is “unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent’s statements.” Id. at 824.

Finally, a deposition that is taken pursuant to rule 3.220 is only admissible for purposes of impeachment and not as substantive evidence. See Rodriguez v. State, 609 So.2d 493 (Fla.1992) (ruling that only depositions taken pursuant to rule 3.190(j) may be used as substantive evidence because rule 3.220 makes no provision for the use of discovery depositions as substantive evidence); State v. James, 402 So.2d 1169, 1171 (Fla.1981) (“[Discovery depositions may not be used as substantive evidence in a criminal trial.”); Basiliere, 353 So.2d at 823 (holding that deceased victim’s discovery deposition was not admissible as evidence in defendant’s trial because defendant was not present during the examination). Cf. State v. Green, 667 So.2d at 759 (ruling that an inconsistent discovery deposition given by a victim who recanted at trial was not admissible as substantive evidence under section 90.801(2)(a), Florida Statutes (1989), which provided that an inconsistent statement given under oath in a deposition was not hearsay).

Thus, the exercise of the right to take a discovery deposition under rule 3.220 does not serve as the functional substitute of in-court confrontation of the witness because the defendant is usually prohibited from being present, the motivation for the deposition does not result in the “equivalent of significant cross-examination,” and the resulting deposition cannot be admitted as substantive evidence at trial. In light of the analysis above, we hold that the discovery deposition of Ruiz by defense counsel did not satisfy the requirement of an “opportunity to cross-examine” under Crawford. Because only one of the Crawford requirements was satisfied, Ruiz’s statement to Officer Gaston was not admissible at trial.

Was the Error Harmless?

“It is well established that violations of the Confrontation Clause, if preserved for appellate review, are subject to harmless error review ... and Crawford does not suggest otherwise.” United States v. McClain, 377 F.3d 219, 222 (2d Cir.2004). Under Florida’s harmless error analysis, the reviewing court must determine “whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). The State, as the beneficiary of the error, has the burden to show that the error was harmless. Id. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id.

Here, Lopez was charged with possession of a firearm by a convicted felon. Lopez, 888 So.2d at 695. The evidence of this crime was Ruiz’s statement to Officer Gaston identifying Lopez as the person who had the revolver and Lopez’s own statement to Officer Arias admitting that the revolver was his. Id. at 695-96. Lopez testified in his own defense and denied that he had possessed the firearm. Id. at 696. He also repudiated the admission attributed to him by Officer Arias that the gun was his, claiming that he had been set up by Ruiz and his employer in retaliation for complaints that Lopez had made against them. Id.

Without Ruiz’s statement tying the gun to Lopez, the only evidence of the crime is Lopez’s own statement to Officer Arias, which he denies ever making. While it is possible that the jury found Officer Arias more credible than Lopez, it cannot be said “beyond a reasonable doubt that the error did not affect the verdict.” DiGuilio, 491 So.2d at 1139. “[T]he reviewing court must resist the temptation to make its own determination of whether a guilty verdict could be sustained by excluding the impermissible evidence and examining only the permissible evidence.” Goodwin v. State, 751 So.2d 537, 542 (Fla.1999). In light of this standard, the State has not met its burden of showing that the erroneous admission of Ruiz’s statement was harmless error.

CONCLUSION

Therefore, we approve the decision of the First District Court of Appeal holding that the statement in this case was testimonial and that the discovery deposition was not a sufficient opportunity for cross-examination of the declarant. We disapprove of the Fifth District Court of Appeal’s decision in Blanton on the discovery deposition issue to the extent that it is inconsistent with this opinion. We also remand this case for further proceedings consistent with this opinion.

It is so ordered.

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

      . The Fifth District’s decision in Blanton is also before this Court for review. See Blan-ton v. State, No. SC04-1823 (Fla. order granting review filed Sept. 8, 2005).

      . Even though the Supreme Court receded from the Roberts reliability test in Crawford for testimonial hearsay statements, the Court cited Roberts with approval for the proposition that prior trial or hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine. See Crawford, 541 U.S. at 58, 124 S.Ct. 1354.

      . Category A witnesses include: eyewitnesses; alibi witnesses and rebuttal to alibi witnesses; witnesses present when a recorded or unrecorded statement was made by a defendant or codefendant; investigating officers; witnesses known by the prosecutor to have exculpatory material information; child hearsay witnesses; and expert witnesses who have not provided a written report and curriculum vitae or who are going to testify as to test results or give opinions subject to Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Fla. R.Crim. P. 3.220(b)(l)(A)(i).

      . As noted above, the State also originally charged Lopez with armed kidnapping and assault with a weapon, but dropped those charges just before trial.

      . As noted above, the trial court only admitted an edited version of Ruiz's statement identifying Lopez as the person who had the gun, but excluded the portion pertaining to the alleged abduction.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Denise C. SHARON, Petitioner, v. C. William SHARON, Respondent.
    No. SC06-93.
    Supreme Court of Florida.
    Jan. 17, 2008.
    Marie Tomassi and Karen E. Lewis of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill and Mullís, St. Petersburg, FL, for Petitioner. '
    Virginia R. Vetter, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review Sharon v. Sharon, 915 So.2d 630 (Fla. 2d DCA 2005), in which the Second District Court of Appeal cited as authority its decision in Nicoletti v. Nicoletti 902 So.2d 215 (Fla. 2d DCA 2005), disapproved by Montello v. Montello, 961 So.2d 257 (Fla.2007), and review dismissed, No. SC05-949 (Fla. Oct.23, 2007). At the time that the Second District Court issued its decision in Sharon, its Nicoletti decision was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed the present case pending our disposition of Montello v. Montello, 961 So.2d 257 (Fla.2007), in which we ultimately disapproved the Second District Nicolet-ti decision. Petitioner thereafter filed a motion for summary relief pursuant to our decision in Montello. Upon consideration of petitioner’s motion, respondent’s opposing response thereto, and the parties’ previously filed jurisdictional briefs, we hereby grant petitioner’s motion for summary relief.

We accordingly grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Second District for reconsideration upon application of this Court’s decision in Montello.

It is so ordered.

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


author: BELL, J.

text:
    Saysinh KHIANTHALAT, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1802.
    Supreme Court of Florida.
    Jan. 17, 2008.
    James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Krauss, Bureau Chief, and Jonathan P. Hurley, Assistant Attorneys General, Tampa, FL, for Respondent.
   BELL, J.

Is a defendant charged under section 800.04(4), Florida Statutes (2002), with lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age entitled to a jury instruction on simple battery if the information does not allege lack of consent and the evidence presented at trial does not support lack of consent? In Khianthalat v. State, 935 So.2d 583 (Fla. 2d DCA 2006), the Second District Court of Appeal determined that the defendant was not entitled to this instruction. In Jackson v. State, 920 So.2d 737 (Fla. 5th DCA 2006), the Fifth District Court of Appeal reached the opposite conclusion. As explained below, we agree with the Second District and hold that a defendant facing these circumstances is not entitled to a jury instruction on simple battery.

FACTUAL AND PROCEDURAL BACKGROUND

The Second District recited these relevant facts:

The State charged Khianthalat with nine counts of committing a lewd [or lascivious battery] upon a child twelve years of age or older but less than sixteen years of age under section 800.04(4), Florida Statutes (2002). The information alleges that Khianthalat “engaged in sexual activity with [the victim], a child older than 12 years of age but less than 16 years of age.” At trial, the victim testified that she was thirteen years old when she first had sex with Khianthalat: “Well, at that time I was thirteen years old and didn’t know much. And I thought that since he was older than me, that it was okay and no one would find out, and we would just do our thing and no one would ever know.”
During the jury charge conference, Khianthalat asked the court to instruct the jury on simple battery as a lesser-included offense of committing a lewd [or lascivious battery] upon a child. The State objected because the information did not allege and the victim never testified that Khianthalat touched her against her will. Khianthalat argued that the instruction was proper because the minor victim could not legally consent. The trial court refused to give the instruction.

Khianthalat, 935 So.2d at 584. Thereafter, Khianthalat was convicted and sentenced for lewd or lascivious battery upon a child twelve years of age or older but less than sixteen years of age. Id.

On appeal, the Second District affirmed Khianthalat’s judgment and sentences, specifically rejecting his assertion that the trial court committed reversible error by denying his request for the simple battery instruction. Id. The Second District found that “[b]ecause in this case the presumption of incapacity to consent is inapplicable and the sexual activity was not against the minor victim’s will, Khianthalat was not entitled to an instruction on simple battery.” Id. at 586.

Khianthalat sought review on the grounds that the Second District’s opinion was in express and direct conflict with the Fifth District’s decision in Jackson, 920 So.2d 737. Relying on the principle that a child of tender years cannot legally consent to sexual activity, the Fifth District held that the defendant charged with lewd or lascivious battery upon a child twelve years of age or older but less than sixteen years of age was entitled to a simple battery instruction. Id. at 738.

DISCUSSION

Khianthalat argues that he was entitled to a jury instruction on simple battery as a permissive lesser included offense because lack of consent is presumed by law in a child of tender years. Because this matter involves a legal determination based upon undisputed facts, this Court’s standard of review is de novo. See Williams v. State, 957 So.2d 595, 598 (Fla.2007).

Upon request, a trial judge must give a jury instruction on a permissive lesser included offense if the following two conditions are met: “(1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.” Jones v. State, 666 So.2d 960, 964 (Fla. 3d DCA 1996) (citing Brown v. State, 206 So.2d 377, 383 (Fla.1968)). We recently reiterated this longstanding rule of law by stating that “[a]n instruction on a permissive lesser included offense is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser offense.” Williams v. State, 957 So.2d 595, 599 (Fla.2007) (emphasis added).

Neither of these two conditions was satisfied in this case. The elements of simple battery are: (1) actually and intentionally touching or striking another person; and (2) against the will of the other person. § 784.03(l)(a)(l), Fla. Stat. (2002). This second element was completely absent from both the charging document and the evidence at trial. The information did not allege that the illegal sexual activity was against the will of the victim, and there was no evidence at trial that the charged conduct was against her will. In such a circumstance, Khianthalat was not entitled to an instruction on simple battery as a permissive lesser included offense of lewd or lascivious battery under section 800.04.

Despite the complete absence of evidence that his act was against the victim’s will, Khianthalat’s contends that the “against the will” element of simple battery was present because lack of consent is presumed by law in a child of tender years. As the Second District correctly determined, this argument confuses the unavailability of consent as a defense to lewd or lascivious battery under section 800.04 with the legal presumption that a child under twelve cannot consent to sexual activity under section 794.011, Florida Statutes (2002). The Second District reasoned as follows:

Examining the lineage of Florida’s sexual offenses makes the distinction between the two clear. Early cases indicate that Florida’s first rape statute simply codified the common law offense of rape. The statute defined rape as having carnal knowledge of a female age ten or older by force and against her will or of a female under the age of ten irrespective of consent. See McKinny v. State, 29 Fla. 565, 10 So. 732, 733 (1892).
In 1892, the legislature enacted a new statute that made it a misdemeanor to have “carnal intercourse” with any unmarried female under the age of sixteen. See Wilson v. State, 50 Fla. 164, 39 So. 471 (1905). In Wilson, the court addressed the effect of the new statute on the provision in the existing rape statute that dealt with females under the age of ten. The supreme court held that when the legislature enacted the statute, it had created a new crime, it had not repealed the existing rape law, even though the new misdemeanor statute on its face applied to all unmarried females under the age of sixteen. Id. at 471-72.
The court explained that before a child reaches the age of ten, “the law conclusively presumes that a child of such immature age is incapable of either consenting to or protesting against the act.” Id. Because of that presumption, intercourse with a female under the age of ten still constituted rape under the old statute. Id. After a child reached the age of ten, however, the law no longer presumed she could not consent; therefore, if she consented to intercourse, the act was not a crime under the existing rape law. Id. Accordingly, the court concluded that the purpose of the new statute was to criminalize consensual sexual intercourse with an unmarried female between the ages of ten and sixteen, not to repeal the rape law. Id.
The presumption of incapacity to consent is still embodied in current statutes defining sexual offenses. Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven. Subsections (3), (4) and (5) define sexual batteries involving victims twelve or older. To constitute sexual battery under those subsections, the State must prove the victim did not consent. This requirement recognizes that a person twelve or older has the ability to consent.
In contrast, subsection (2)(a) provides: “[A] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony.” This subsection of the sexual battery statute does not explicitly mention consent because it incorporates the presumption that “a child of such immature age is incapable of either consenting to or protesting against the act.” As noted by the court in Caulder v. State, 500 So.2d 1362, 1363-64 (Fla. 5th DCA 1986), in a prosecution for sexual battery on a child eleven years of age or younger, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent. Thus, because lack of consent is an element of sexual battery under subsection (2)(a), the offense always includes a charge of simple battery as a necessarily lesser-included offense, just as it does under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 794.011.
Khianthalat’s argument that he was entitled to a jury instruction on battery as a permissive lesser-included offense fails because section 800.04(4), the statute under which he was charged, does not apply to children under the age of twelve; accordingly, the presumption of incapacity to consent is not applicable to offenses under that statute. Section 800.04(4) is intended to criminalize sexual activity with children twelve years of age or older but less than sixteen years of age even where the activity is consensual. See Welsh v. State, 850 So.2d 467 (Fla.2003). “The legislature enacted section 800.04 based on a ‘morally neutral judgment’ that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child.” Jones v. State, 640 So.2d 1084, 1086 (Fla.1994) (quoting Pans Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)). The fact that section 800.04 eliminates consent as a defense necessarily implies that the sexual activity may be consensual, but nevertheless, the State, as a matter of policy, will ignore the consent because of its legitimate interest in protecting minors from sexual exploitation. See id. Because in this case the presumption of incapacity to consent is inapplicable and the sexual activity was not against the minor victim’s will, Khianthalat was not entitled to an instruction on simple battery.

Khianthalat, 935 So.2d at 584-86 (footnotes omitted). We agree with this reasoning.

CONCLUSION

Given the above, we hold that a defendant charged under section 800.04(4), Florida Statutes, with lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age is not entitled to an instruction on simple battery when the information did not allege lack of consent and the evidence presented at trial did not support lack of consent. Accordingly, we approve Khianthalat, 935 So.2d 583, and disapprove Jackson, 920 So.2d 737.

It is so ordered.

WELLS, PARIENTE, QUINCE, and CANTERO, JJ., concur.

LEWIS, C.J., and ANSTEAD, J„ dissent.

      . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

        . Khianthalat was also sentenced for solicitation of perjury and tampering with a witness. Those offenses are not at issue in this case.


author: PER CURIAM. ANSTEAD, J.,

text:
    Charles JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. SC07-668.
    Supreme Court of Florida.
    Jan. 24, 2008.
    Charles Johnson, Polk City, FL, pro se.
    Bill McCollum, Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

Petitioner Charles Johnson has filed a pro se petition for a writ of mandamus seeking relief from an allegedly illegal sentence. Because Johnson is represented by court-appointed counsel in a pending appeal involving the same conviction and sentence, we dismiss the petition as unauthorized. We also take this opportunity to clarify that the rule we announced in Logan v. State, 846 So.2d 472 (Fla.2003), applies to pro se filings in this Court by litigants represented by counsel in criminal proceedings pending in a district court of appeal.

BACKGROUND

Johnson wants us to compel the district court to enforce its decision in Johnson v. State, 902 So.2d 276 (Fla. 1st DCA 2005). In Johnson, the First District Court of Appeal held that his sentence was an illegal departure sentence and that he was sentenced pursuant to invalid guidelines. 902 So.2d at 277. According to Johnson, after remand of his case to the Second Judicial Circuit in Leon County, the trial court refused to correct the sentence. Another appeal followed, and the Office of the Public Defender for the Second Judicial Circuit was appointed as appellate counsel. While this appeal was pending and while he was represented by counsel, Johnson filed this petition.

ANALYSIS

The rule we announced in Logan is stated as follows:

[W]e will not entertain pro se extraordinary writ petitions from criminal defendants seeking affirmative relief in the context of pending trial court criminal cases, where it is clear from the face of the petitions that the petitioners are represented by counsel in the pending criminal proceedings and the petitioners do not clearly indicate that they are seeking to discharge counsel in those proceedings. If a petition clearly indicates that the petitioner is represented by counsel in the pending criminal proceeding, and the petitioner does not unequivocally seek to discharge counsel in that proceeding by way of the petition, the petition will be dismissed as unauthorized. In circumstances where it is not clear from the face of the petition whether the petitioner is represented by counsel in the pending criminal proceeding, and he or she does not unequivocally indicate in the petition that he or she is seeking to discharge counsel in that proceeding, the clerk’s office will automatically issue an order directing the petitioner to show cause why the petition should not be dismissed as unauthorized. At that point, it will be the petitioner’s burden to demonstrate that he or she is either not represented by counsel in the proceeding below, or that he or she is seeking through the petition to discharge counsel in that proceeding. If it is clear from the petitioner’s response to the show cause order that he or she is represented by counsel in the proceeding below and is not seeking to discharge counsel in that proceeding, then the petition in this Court will be dismissed as unauthorized.

846 So.2d at 479. This rule was premised upon the grounds that criminal defendants have no right under the Sixth Amendment or under the Florida Constitution to engage in “hybrid representation” — that is, to simultaneously represent themselves and be represented by counsel. Id. at 473.

We now clarify that the rule announced in Logan is not limited to cases where the defendant is represented by trial counsel. The rule applies to any pro se filings submitted by litigants seeking affirmative relief in the context of any criminal proceeding where a death sentence has not been imposed, whether direct or collateral, either in the trial court or a district court of appeal, and who are represented by counsel in those proceedings. The Court’s current procedure for automatic dismissals pursuant to Logan, as stated in section 11(c)(7)(b), Supreme Court Manual of Internal Operating Procedures, will be followed for all such filings. Any papers filed pro se, addressing matters that are related to such ongoing proceedings, whether in the form of a petition, notice, motion, or another form of request for relief, will be deemed unauthorized and subsequently dismissed.

Based upon the foregoing, the instant petition for a writ of mandamus is dismissed as unauthorized.

It is so ordered.

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

ANSTEAD, J., concurs in part and dissents in part with an opinion, in which LEWIS, C.J., concurs.

ANSTEAD, J.,

concurring in part and dissenting in part.

While I agree with the substance of the majority opinion extending Logan, I do not agree with the majority’s decision to delegate the Court’s authority to dismiss to the Clerk of this Court. The members of this Court should determine whether dismissal is appropriate in a particular case.

The decision to dismiss an action is inherently a judicial function, and should be made by judges, not ministerial officers. The issue of whether a litigant in this Court is currently being represented by counsel can arise in a variety of contexts, many of which may require the exercise of this Court’s discretion or judgment in determining the status of representation at a given time. The dismissal of an action in this Court or any Florida court is obviously a serious matter, especially in view of Florida’s constitutional guarantee of access to the courts. We should not minimize the fundamental importance of this right by vesting authority in a ministerial officer, our Clerk, to make the call on whether access to the Court will be denied.

LEWIS, C.J., concurs.

      . Johnson also filed several pro se pleadings in the district court. One, filed in case number 1D06-877 (the appeal referred to above) was stricken because he was represented by counsel; the other, an extraordinary writ petition filed in case number 1D07-415, was dismissed. After Johnson filed his petition in this Court, the district court affirmed the order at issue in case number 1D06-877. We recognize that because that appeal has now concluded, Johnson may no longer be represented by counsel. We note that dismissal of this petition as unauthorized does not preclude Johnson from seeking review of that decision.


text:
    Edward T. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. SC06-426.
    Supreme Court of Florida.
    Jan. 24, 2008.

      John W. Jennings, Capital Collateral Regional Counsel, Carol C. Rodriguez, and Robert T. Strain, Assistant Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion for reappointment of Capital Collateral Regional Counsel (CCRC) and reinstatement of a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. We affirm the trial court’s order.

PROCEEDINGS TO DATE

Edward T. James pleaded guilty and was convicted of two counts of first-degree murder, one count of aggravated child abuse, one count of attempted sexual battery, one count of kidnapping, one count of grand theft, and one count of grand theft of an automobile. After the penalty phase, James was sentenced to death. We summarized the facts of the case and affirmed James’ convictions and death sentence in James v. State, 695 So.2d 1229 (Fla.1997).

James filed a motion for postconviction relief on May 27, 1998. An amended motion was filed on November 1, 2001. A third amended motion was filed September 10, 2002. The trial court set an evidentia-ry hearing on some of the claims. However, on March 10, 2003, James filed, pro se, a notice of voluntary dismissal of the post-conviction proceedings. The trial court subsequently held a hearing to determine whether James was competent and fully understood the consequences of dismissing the postconviction motion filed on his behalf. During the hearing, the trial court followed a procedure mandated by this Court to ensure that James understood the consequences of discharging counsel and withdrawing his postconviction motion. In essence, James was informed by the trial court that his actions would result in the waiver of any legal barriers to the State’s ability to enforce the sentence of death. On April 22, 2003, the trial court entered an order discharging counsel and allowing James to withdraw his postconviction motion. In the order, the trial court also notified James that he had thirty days to appeal the order, and further warned that the time for filing for relief in the federal court might be affected by the dismissal of state proceedings. No appeal was filed.

Subsequently, in November 2005, James contacted CCRC and indicated that he had changed his mind, and he requested reappointment of counsel to resume postconviction proceedings. CCRC filed a motion on his behalf in the trial court seeking to reinstate postconviction proceedings. After a hearing, the trial court denied the motion on January 17, 2006. Thereafter, James wrote a letter to this Court, which was treated as a notice of appeal from the order denying reinstatement of the post-conviction proceedings.

ANALYSIS

The issue presented is whether the trial court properly denied reappointment of collateral counsel for James, a death row inmate, to resume postconviction proceedings after he had discharged collateral counsel and dismissed postconviction proceedings more than two and a half years prior to his motion.

In Durocher v. Singletary, 623 So.2d 482, 483 (Fla.1993), this Court was confronted with the issue of whether a capital defendant could waive the appointment of postconviction counsel and waive postcon-viction proceedings on his behalf. Despite CCRC’s contention that it had a statutory duty to represent the defendant and prosecute postconviction proceedings on his behalf, even in the face of defendant’s objection, we concluded that “[i]f the right to representation can be waived at trial, we see no reason why the statutory right to collateral counsel cannot also be waived.” Id. We explained that “[competent defendants have the constitutional right to refuse professional counsel and to represent themselves, or not, if they so choose.” Id. (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Hamblen v. State, 527 So.2d 800 (Fla.1988)). However, we cautioned that “the state has an obligation to assure that the waiver of collateral counsel is knowing, intelligent, and voluntary.” Id. at 485. We held that a detailed Faretta -type inquiry must be conducted by the trial court to determine the defendant’s competency and ability to understand the consequences of the waiver of counsel and the waiver or dismissal of postconviction proceedings before such a waiver could be approved. See id.

Following Durocher, we have consistently held that the right to counsel and to prosecute postconviction claims may be waived so long as the waiver is made voluntarily, knowingly, and intelligently. See generally Alston v. State, 894 So.2d 46 (Fla.2004); Castro v. State, 744 So.2d 986 (Fla.1999); Sanchez-Velasco v. State, 702 So.2d 224 (Fla.1997). In Slawson v. State, 796 So.2d 491 (Fla.2001), for example, we reaffirmed that Durocher “established that the relevant test for competency in the context of waiving collateral counsel and collateral proceedings in Florida is whether the person seeking waiver has the capacity to ‘understand [ ] the consequences of waiving collateral counsel and proceedings.’ ” Id. at 502 (quoting Durocher, 623 So.2d at 485).

In the present case, the record reflects that the trial court conducted a comprehensive Durocher inquiry in 2003 and found that James was competent to discharge counsel and dismiss all postconviction proceedings. In so doing, the court explicitly warned James that he would be precluded from any further relief in the state courts by his waiver:

THE COURT: And that means that this case is basically going to be over.
MR. JAMES: I’m sort of hoping that that’s going to be the outcome of this hearing here.... It will be all said and done with and the State can go ahead and proceed in carrying out its sentence.

In addition to this pointed exchange the record reflects that the 2003 hearing was conducted in complete accord with our opinion in Durocher.

In this appeal, James does not attack the validity of the prior waiver hearing. Rather, it is apparent that James has simply changed his mind and has decided he wants “to take up [his] appeals again.” However, we conclude that a mere change of mind is an insufficient basis for setting aside a previous waiver. The procedures we have outlined in Durocher and other cases are intended to allow condemned prisoners to waive postconviction counsel and dismiss the proceedings only when it can be determined that such prisoners are competent and fully understand the consequences and finality attached to a waiver. Those proceedings are mandated to ensure that a capital defendant is making an intelligent and knowing decision while respecting his wishes to determine his fate. Because there is no dispute that those procedures were followed here and James has asserted no valid basis for avoiding his waiver, we affirm the trial court’s order denying James’ request to reappoint CCRC to resume posteonviction proceedings.

It is so ordered.

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

      . There was no second amended motion. The third amended motion brought ten claims including claims of ineffective assistance of counsel, cruel and unusual punishment, and the unconstitutionality of the death penalty statute.

      . On order from this Court, the trial court appointed CCRC to represent James in this appeal.

      . Faretta, 422 U.S. at 835, 95 S.Ct. 2525 ("Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' ” (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942))).

      . We have contemplated the possibility of needing to review the trial court's findings during the Durocher hearing, and have now codified the procedure for review of dismissal of postconviction proceedings and discharge of counsel. Fla. R.App. P. 9.142; Fla. R.Crim. P. 3.851 (i). In our opinion regarding rule 3.851 (i), we rejected the notion to extend our holding in Klokoc v. State, 589 So.2d 219, 222 (Fla.1991) (where defendant was not allowed to dismiss his direct appeal and counsel was instructed "to proceed to prosecute the appeal in a genuinely adversary manner”), to postconviction proceedings. In re Amendments to Fla. Rules of Criminal Procedure 3.851 & 3.590, 945 So.2d 1124, 1125-26 (Fla.2006). However, because of the amendment to rule 3.851, review of the waiver of counsel in postconviction proceedings is now automatic.