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    Lynford BLACKWOOD, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. Lynford Blackwood, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC03-1553, SC04-945.
    Supreme Court of Florida.
    Oct. 12, 2006.
    Rehearing Denied Jan. 8, 2007.

      Todd G. Scher, Law Office of Todd G. Scher, P.L., Miami, FL, for Appellant/Cross-Appellee.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Debra Rescigno and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, FL, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Lynford Blackwood appeals an order of the circuit court denying the part of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851 which requested a new trial. The State of Florida cross-appeals the part of the order granting Blackwood a new sentencing proceeding. Blackwood also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the decision of the circuit court granting in part and denying in part the motion for posteonviction relief, and we deny habeas relief.

FACTUAL AND PROCEDURAL HISTORY

Lynford Blackwood was charged with the first-degree murder of Carolyn Thomas-Tynes. The two had dated on and off for approximately ten years, but the relationship ended in October 1994. The victim had since begun dating another man and was six weeks pregnant when Black-wood visited her to return some personal items on January 6, 1995. The two engaged in consensual sex, but a heated argument ensued. The victim was discovered with a folded washcloth and a bar of soap lodged in the back of her throat. She also appeared to have been strangled, both manually and with speaker wire. Forensic evidence indicated that the victim struggled during several minutes of asphyxiation. Blackwood admitted having strangled the victim but stated his belief that she was alive when he left and reiterated that he did not intend to kill her. See Blackwood v. State, 777 So.2d 399, 403 (Fla.2000).

After the withdrawal of prior counsel, the trial court’ appointed Robert Ullman as Blackwood’s counsel in June 1996. Ullman represented Blackwood in both the trial and penalty phases. The jury found Blackwood guilty of first-degree murder, and the penalty phase commenced on January 23, 1997, approximately seven weeks after trial. During the penalty phase, the State presented the medical examiner, who testified as to the cause and nature of the death, and the victim’s mother, who presented victim impact testimony. Black-wood presented eleven witnesses consisting of friends and family, as well as a detention officer who testified that Black-wood demonstrated good behavior while incarcerated and had become an inmate trustee. The jury recommended the death sentence by a vote of nine to three. Id. at 403.

Ullman contacted Dr. Trudy Block-Garfield, a clinical psychologist, on February 25, 1997, to elicit her aid in investigating mitigating circumstances. Block-Garfield had evaluated Blackwood on two prior occasions for competency. She had been unable to determine competency at the first evaluation due to Blackwood’s severely depressed state but found him competent to stand trial after the second evaluation, during which she performed a psychosocial evaluation and an initial screening test for neurological deficits. The tests indicated a low IQ range and possible neurological deficits, but due to Blackwood’s continuing depression, she could not definitively determine whether Blackwood suffered neurological impairment. Block-Garfield evaluated Black-wood a third time in March 1997 for evidence of mitigating circumstances. In addition to her own prior competency reports, she consulted a transcript of Black-wood’s confession, the medical examiner’s deposition and autopsy reports, and police reports. She did not administer any clinical tests for determining mental health mitigation during this third evaluation. She found that Blackwood had no prior criminal history and. that he had been under the influence of a mental or emotional disturbance at the time of the crime but that it did not rise to the level of being extreme. The trial court held a Spencer hearing on April 11, 1997, at which Blackwood presented testimony from Block-Garfield. 777 So.2d at 404-05.

Based at least in part upon Bloek-Gar-field’s testimony, the trial court ultimately found Blackwood’s lack of a significant history of prior criminal activity as a statutory mitigating circumstance, and gave that mitigating circumstance significant weight. The court also found eight nonstatutory mitigating circumstances: (1) Blackwood suffered from a mental or emotional disturbance that was not extreme (given moderate weight); (2) he had a good capacity for rehabilitation (given very little weight); (3) he had cooperated with police (given moderate weight); (4) the murder resulted from a lover’s quarrel (given no specific weight, but the court considered this factor to the extent that the killing was born out of a prior relationship and was fueled by passion); (5) Blackwood’s remorse (given some weight); (6) Blackwood is a good parent (given some weight); (7) his employment record (given some weight); and (8) his low intelligence level (given some weight). However, the trial court also found one aggravating circumstance in that the murder was heinous, atrocious, or cruel (HAC). See § 921.141(5)(h), Fla. Stat. (1995).

The court accepted the recommendation of the jury and imposed the death sentence. On direct appeal, this Court affirmed the conviction and death sentence by a vote of four to three. Id. at 413. The United States Supreme Court denied certiorari review. Blackwood v. Florida, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001). Blackwood filed an initial motion for postconviction relief in October 2002. The trial court struck the motion for failure to comply with the requirements of rule 3.851. An amended motion was filed on December 2, 2002, raising five issues. After summarily denying three of the claims and holding an evidentiary hearing on the other two claims, the trial court concluded that Blackwood was entitled to a new sentencing proceeding. It denied relief on all other claims. This appeal and cross-appeal followed.

MOTION FOR POSTCONVICTION RELIEF

Subsequent to a Huff hearing, the trial court summarily denied Blackwood’s claim of ineffective assistance of counsel during the guilt phase. The trial court stated Blackwood failed to show any nexus between his allegations of counsel’s substance abuse and counsel’s deficient performance. In addition, the trial court said that Blackwood failed to demonstrate any legal basis upon which counsel could have successfully challenged the jurors and that he failed to show how counsel’s cross-examination of the lead detective was deficient or prejudicial. Relief was also denied because Blackwood failed to show prejudice because counsel’s failure to object to evidence solicited during the state’s examination of one of the police detectives was harmless error. The court found that the claims of inadequate penalty phase preparation and inadequate assistance of a mental health expert were sufficiently pled and ordered an evidentiary hearing on these claims.

After the evidentiary hearing, the court stated, “The dispositive issue presented by [these claims] is whether Mr. Blackwood was deprived of the effective assistance of counsel as a result of his counsel’s failure to investigate and present any mental health mitigation at the penalty phase proceeding.” The court found that Blackwood had been deprived of the effective assistance of counsel and held that he was entitled to receive a new penalty phase. Blackwood appeals the summary denial of his claim of ineffective assistance of counsel during the guilt phase of the trial, and the State cross-appeals the granting of a new penalty phase.

ANALYSIS

Ineffective Assistance of Counsel During the Guilt Phase

Blackwood argues his trial counsel was ineffective during the guilt phase of his trial and that the trial court erred in summarily denying relief on this claim. Claims of ineffective assistance of counsel must be analyzed under the standard espoused in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to be entitled to relief, a defendant must successfully address two components:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citing Strickland). Black-wood contends that the trial court erred in summarily denying his postconviction claim of ineffectiveness of counsel during the guilt phase of the trial. He contends that he made specific fact-based allegations, unrefuted by the record, that demonstrate the ineffective assistance of trial counsel Robert Ullman in five areas: racial bias; substance abuse; jury selection; cross-examination; and failure to object.

“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999). Each of Blackwood’s claims alleging ineffective assistance of counsel during the guilt phase is either facially invalid or refuted by the record. In addition, Blackwood failed to preserve the issue of racial bias and failed to demonstrate that he is entitled to relief on the four remaining subissues raised under the ineffectiveness claim.

Racial Bias

Blackwood contends the postcon-viction motion sets forth an unrefuted allegation of racial bias by trial counsel. The motion alleges that during an incident unrelated to this case a police officer heard trial counsel use a racial epithet.- Black-wood argues there should be an evidentia-ry hearing to determine whether trial counsel’s alleged racist views affected his performance. We note that Blackwood’s postconviction motion expressly enumerated four issues regarding ineffective assistance of counsel during the guilt phase. The allegation that counsel made a racist remark was included, without elaboration, as a part of his claim concerning counsel’s substance abuse. No argument was made that attempted to link this alleged racist attitude with any specific allegations of ineffectiveness by counsel.

On appeal, Blackwood presents “racial bias” as a separate and distinct fifth issue. Blackwood failed to present the trial court with an opportunity to rule upon the specific arguments now raised and the claim is therefore procedurally barred. “[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal’ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).

Trial Counsel’s Substance Abuse

Blackwood next argues that an evi-dentiary hearing is needed to determine if the alleged trial deficiencies may be attributed to counsel’s substance abuse problem. Blackwood points out specific allegations of counsel’s drug abuse, including counsel’s drug overdose prior to his representation of Blackwood, his arrest after representation for driving under the influence, and his eventual conviction of a federal drug felony. Blackwood also relies on counsel’s denial that he was experiencing any personal problems at the time of trial. These allegations, though tragic, are insufficient because the allegations have not been linked to any specific deficient performance by counsel in this case.

Blackwood fails to allege that trial counsel was under the influence of drugs or alcohol to the extent of impairment during his trial or representation. In fact, Blackwood fails to allege that counsel was even under the influence during the representation. Even if Blackwood had alleged specific facts suggesting that trial counsel was impaired during the representation, he would still need to demonstrate both that counsel’s performance fell below constitutional standards as a consequence of the abuse and that Blackwood suffered prejudice therefrom. At best, Blackwood makes only a conclusory allegation that counsel’s experience with substance abuse may have affected his representation. He fails to demonstrate any connection between the abuse and the alleged deficient performance in the remaining claims. Therefore, the claim is facially insufficient. “The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.” LeCroy v. Dugger, 727 So.2d 236, 239 (Fla.1998) (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).

Deficient Jury Selection

Blackwood contends trial counsel rendered grossly ineffective assistance during the voir dire process with respect to three individual members of the venire. Black-wood argues that counsel should have used a cause challenge against prospective juror Pitz, rather than a peremptory challenge. He argues a challenge for cause would have been appropriate because juror Pitz said he would always vote for a sentence of death for anyone convicted of first-degree murder. Blackwood further contends that counsel exhausted his peremptory challenges as a result of using a peremptory challenge on Pitz and thus allowed two hostile jurors, Wolf and Weil, to serve on the jury during his trial.

In denying this claim the trial court said, “If Mr. Ullman had challenged this juror for cause, the challenge would have been denied since Pitz stated, that he would be able to put his feelings aside and follow the law.” The trial court’s determination on this issue is supported by the record. After Pitz made his initial statement in support of the death sentence, he was further questioned by defense counsel. During that questioning Pitz unequivocally stated that not only would he follow the law, but also that he would follow the law even if it conflicted with his personal convictions.

A prospective juror is only excusable for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his oath and the instructions as given by the court. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). In other words, the question is “whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.” Kearse v. State, 770 So.2d 1119, 1128 (Fla. 2000). Trial counsel was not ineffective for exercising a peremptory challenge on Pitz, as there was no basis for a challenge for cause.

Blackwood also contends that jurors Wolf and Weil would have been excusable for cause if counsel had specifically asked whether their views and experiences with the criminal justice system would affect their ability to be fair and impartial jurors. Although each of the named jurors indicated that family members had been involved with the criminal justice system as victims, Blackwood has nonetheless failed to support his claim of bias. The record fails to reveal any basis upon which counsel could have reasonably challenged any of the jurors for cause.

The State specifically questioned the panel as to whether each person could “be fair and impartial to everyone,” and neither Wolf nor Weil indicated an inability to render an impartial verdict. In response to an individual question regarding her ability to be fair and impartial, Wolf affirmatively stated that she would follow the law. Because each juror ultimately expressed that he or she could put feelings aside and exercise his or her duties impartially, Blackwood fails to demonstrate any deficiency on the part of his defense counsel or any potential for prejudice. See Blackwelder v. State, 851 So.2d 650, 652 (Fla.2003) (holding that jury’s recommendation of death was subject to proper adversarial testing where two jurors ultimately agreed that they were capable of recommending life after weighing miti-gators); Barnhill v. State, 834 So.2d 836, 844 (Fla.2002).(holding that a juror is only unqualified if he or she expresses an unyielding conviction and rigidity towards the death penalty).,

Ineffective Cross-Examination

Blackwood next argues that counsel’s cross-examination of the lead detective was so devastating to the defense that it could have been considered an effective direct examination by the State on the issue of premeditation. He also argues counsel improperly permitted the detective to discredit Blackwood by allowing the detective to assert that Blackwood knew that the victim was dead before he left her home. Lastly, he contends that without laying a foundation, trial counsel cross-examined the detective regarding Blackwood’s intelligence and consequently bolstered the view that Blackwood was quite smart and articulate.

Blackwood again fails to demonstrate that counsel’s performance was deficient. Blackwood selects trivial examples of counsel’s alleged ineffective cross-examination that simply do not demonstrate a constitutional deprivation of the Sixth Amendment right to counsel. On the contrary, the record indicates the success of trial counsel’s cross-examination skill in diminishing the strength of the State’s premeditation theory. Despite the detective’s assertion that the crime was premeditated, counsel forced the detective to admit that there was no evidence that Blackwood had ever discussed or made plans to kill the victim. And despite the detective’s stated belief that Blackwood knew the victim was dead when he left the scene, the transcript of counsel’s examination demonstrates that counsel forced the detective to admit that Blackwood consistently reiterated his belief to the contrary and that Blackwood never wavered from that position. Counsel’s cross-examination falls squarely within the range of reasonable professional assistance, particularly where “[jjudicial. scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Blackwood fails to present any instance in which the performance of counsel falls to the level of being objectively unreasonable, particularly when considered in context of an overall strategy of showing that the murder was not premeditated. The trial court order denying Blackwood relief on this issue emphasized that counsel, “carried out this particular trial strategy effectively and his performance fell well within the range of reasonable professional assistance.” The instances of cross-examination cited by Blackwood are legally insufficient to demonstrate deficient performance of counsel and fail to demonstrate that Blackwood is entitled to relief on this claim.

Failure to Object

Finally, Blackwood contends that the motion for postconviction relief shows that trial counsel failed to object to comments that would have resulted in a motion for a mistrial. On direct examination by the State, one police detective mentioned that Blackwood had invoked his right to remain silent when questioned by police. Black-wood also posits that the State was permitted, without objection, to characterize ■Blackwood’s statement regarding his knowledge of the victim’s pregnancy as “an outright lie.” He argues trial counsel should have objected and requested a mistrial.

The detective’s testimony may fairly be said to be a comment on Black-wood’s silence where he stated, “At that point, he informed me he didn’t want to speak to me anymore, that he had the right to an attorney.” See Jackson v. State, 522 So.2d 802 (Fla.1988) (holding that all evidence that is fairly susceptible of being interpreted by the jury as a comment on the right of silence will be deemed as such a comment). However, on this record we hold that counsel was not ineffective for failing to object to this comment. Even assuming it was error in not objecting, Blackwood has failed to demonstrate prejudice. It was an isolated comment in a multi-day trial, and the comment was not emphasized to the jury. Under these circumstances, ineffective assistance has not been demonstrated.

Similarly, we find no ineffectiveness in counsel’s failure to object to the State’s characterization of Blackwood’s statement. On direct examination, the State asked whether its witness thought Blackwood’s statement, which declared that Blackwood was unaware that the victim was pregnant at the time of the murder, was an “outright lie.” The witness answered in the affirmative. Blackwood argues that trial counsel’s failure to object to the testimony should result in a new trial. This Court has held that it is improper for a prosecutor to state that a defendant has lied. See O’Callaghan v. State, 429 So.2d 691, 696 (Fla.1983). However, courts will not reverse a conviction where a prosecutor’s comment on the defendant’s veracity was made in fair reference to the evidence. See Zack v. State, 911 So.2d 1190, 1205 (Fla.2005)(denying claim of ineffective assistance of appellate counsel where prosecutor’s characterization of defendant as a liar was supported by the evidence)(eiting Lugo v. State, 845 So.2d 74,107-108 (Fla.2003)).

The record demonstrates that the victim’s mother and sister both testified that Blackwood knew that the victim was pregnant at the time of the murder. Thus, the harmful testimony elicited from the detective is at best cumulative to that elicited from two other witnesses. In fact, the testimony is likely to be more compelling from the mother and sister since they avowed personal knowledge of the lie through their contact with Blackwood pri- or to the murder. The State’s characterization was made in fair reference to the trial evidence, and any motion for a mistrial on this basis could properly have been overruled.

' Blackwood fails to demonstrate a reasonable probability that, but for counsel’s failuré to object to the State’s characterization of his statement, the result of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Rather than demonstrate that counsel’s failure to object affected the fairness or reliability of the proceeding, Blackwood merely alleges that the prejudice is “apparent.” A conclusory statement is insufficient to support the grant of an evidentiary hearing on a post-conviction claim. See Johnson v.. State, 904 So2d 400 (Fla.2005). Moreover, the record conclusively refutes Blackwood’s allegation. Blackwood fails to demonstrate that he was prejudiced as a result of any failure on the part of counsel to object. Because Blackwood also fails to demonstrate deficient performance in his claims regarding racial bias, substance abuse, jury selection, or cross-examination, the trial court properly denied Blackwood’s claim that counsel was ineffective during the guilt phase of his trial.

Ineffective Assistance During the Penalty Phase

In his postconviction motion Blackwood argued that he was denied effective assistance of counsel because trial counsel failed to adequately investigate and prepare mitigation evidence and because he was deprived of the adequate assistance of a mental health expert that is prescribed under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The trial court agreed and granted Blackwood a new penalty phase. The State now appeals that decision, contending that counsel made a reasonable strategic decision not to present mental health mitigation evidence. The State also contends that the record does not otherwise show a reasonable probability that the additional mitigation evidence would have resulted in a life sentence. We find no error in the trial court’s determination of this issue and affirm the decision to grant Blackwood a new penalty phase proceeding.

In granting relief and finding trial counsel ineffective during the penalty phase, the trial court made the following observations:

Mr. Ullman never met with Dr. Maca-luso. On January 7, 1997, sixteen days prior to the penalty phase proceeding, Dr. Macaluso wrote a letter to Mr. Ull-man advising that he could not assist in the penalty phase. After receiving the letter, on January 9, 1997, Mr. Ullman contacted Dr. Macaluso by telephone. Dr. Macaluso was unhappy with the fee arrangement and he advised Mr. Ull-man that he was not willing to work for $150.00. Even though Dr. Macaluso never met with Mr. Blackwood subsequent to his competency evaluation, on November 3, 1995, Dr. Macaluso stated in his letter of January 7, 1997, that he “would not be able to testify with reasonable medical certainty that any of the statutory mitigating circumstances are present.” This Court finds that the record reflects no evidence of any discussion with Dr. Macaluso relative to nonstatutory mental health mitigation evidence....
Mr. Ullman testified that he was left in a terrible position only two. weeks prior to the scheduled commencement of the penalty phase proceeding; he had no mental health mitigation witnesses. Rather than ask for a continuance of the penalty phase proceeding or contact Dr. Block-Garfield or Dr. Spencer, this Court finds that Mr. Ullman did nothing. He defended Mr. Blackwood at the ■penalty phase proceeding without further investigation and without any mental health mitigation witness to provide statutory or nonstatutory mitigators. This Court finds that Mr. Ullman’s performance was deficient under Strickland, supra.
This Court finds that Mr. Ullman’s decision not to investigate further by contacting Dr. Block-Garfield and/or Dr. Spencer and/or any other mental health expert fell far short of prevailing professional standards in capital cases. It should be noted that counsel’s “strategic choices made after less than complete investigation are [considered] reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland at 690-691, 104 S.Ct. 2052. “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Wiggins [v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ] and Strickland at 690-691, 104 S.Ct. 2052. This Court finds that Mr. U11-man’s decision to do absolutely nothing regarding mental health mitigation at the penalty phase was not reasonable under the facts and circumstances of this case.

In addition, the trial judge discussed the nonstatutory mental mitigating evidence that would have been available through the testimony of- Dr. Block-Garfield. Dr. Block-Garfield would have testified that Blackwood was depressed and emotionally disturbed at the time of the offense. She would also have testified that Blackwood’s verbal IQ was 70, placing him in the borderline mentally retarded range of intelligence. One of the tests administered by Dr. Block-Garfield indicated some neurological impairment, and she would have recommended a neurological evaluation had Mr. Ullman asked. Furthermore, Dr. Block-Garfield would have testified that Blackwood had no prior criminal history and was a good candidate for rehabilitation. Based on.this information, the trial court found Dr. Block-Garfield was available to give persuasive mental health evidence during the penalty phase.

The trial court also evaluated the other mental health evidence that was presented at the evidentiary hearing. At the hearing the defense presented testimony from Dr. Martha Jacobson, a clinical psychologist, and Dr. Hyman Eisenstein, a clinical psychologist specializing in neuropsychology. Dr. Jacobson administered a number of personality tests to Blackwood and conducted clinical interviews. Based on this testing, the interviews, and review of statements, school records, testimony of witnesses, and Dr. Block-Garfield’s testimony from the Spencer hearing, Dr. Jacobson diagnosed Blackwood as suffering from major depression and avoidant personality traits with masochistic features. Dr. Jacobson opined that Blackwood was experiencing extreme emotional disturbance at the time of the crime.

Dr. Eisenstein interviewed the defendant on three occasions and reviewed a summary of Blackwood’s school records, a transcript of Blackwood’s statement to the police, and police records from Fort Laud-erdale. The doctor interviewed Black-wood’s former boss and spoke with Black-wood’s sister on the issue of a possible head injury. Dr. Eisenstein also opined that, within a reasonable degree of neurop-sychological certainty, Blackwood was experiencing extreme emotional disturbance at the time of the commission of the murder.

In evaluating the prejudice prong of the Strickland analysis, the trial court said:

[T]his Court finds that there is a reasonable probability that, but for Mr. Ull-man’s errors of omission, the result of the penalty phase proceeding would have been different. In weighing the single aggravator against the mitigators presented, this Court gave great weight to the jury’s recommendation. Had the jury been presented with expert mental health mitigation, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have changed their recommendation. At the very least, this Court finds that there is a probability sufficient to undermine confidence in the prior jury’s sentencing recommendation.

The trial court therefore found ineffective assistance during the penalty phase of Blackwood’s trial because defense counsel’s performance was deficient and there was resulting prejudice to the defendant. See Strickland.

To succeed on a claim of ineffective assistance, the defendant must show that counsel’s deficient performance was so serious as to deprive him of his Sixth Amendment right to counsel and render the result of the proceedings unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. We are cognizant of the danger in assessing the adequacy of counsel’s investigation and preparation through the distorting lens of hindsight and take care to evaluate the performance through counsel’s perspective at the time. See id. at 689,104 S.Ct. 2052.

In State v. Coney, 845 So.2d 120 (Fla.2003), under somewhat analogous facts, we held:

[A] circuit court’s ruling on an ineffectiveness claim is a mixed question of law and fact, and a reviewing court must defer to the circuit court’s factual findings as long as those findings are supported by competent, substantial evidence in the record. Competent, substantial evidence is tantamount to legally sufficient evidence, and a reviewing court must assess the record evidence for its sufficiency only, not its weight.

Id. at 132-33 (footnote omitted). This deferential standard of review foremost requires us to determine whether there is competent, substantial evidence to support the trial court’s factual findings.

In this instance, the postconviction court found that trial counsel’s “decision to do absolutely nothing regarding mental health mitigation at the penalty phase was not reasonable under the facts and circumstances of this case.” Though the State attempts to offer factual evidence in support of its position that Ullman conducted a very thorough investigation and was thus not deficient, such facts at best demonstrate that there was conflicting evidence on this issue. “Evidence contrary to the circuit court’s ruling is outside the scope of the inquiry at this point, for a reviewing court cannot reweigh the ‘pros and cons’ of conflicting evidence.” Id. at 133. We agree with Blackwood’s contention that the court made adequate findings of fact establishing trial counsel’s prejudicial failure to meaningfully investigate and present statutory and nonstatutory mental health mitigation at the penalty phase. We also agree that these findings are supported by competent, substantial evidence in the record.

The record establishes that approximately five weeks before commencement of the guilt phase of the trial, counsel contacted psychiatrist Dr. Peter Macaluso with the intent of engaging his services as a mental health expert. Dr. Macaluso had evaluated Blackwood in 1995 and found him incompetent to stand trial. He also had concluded that Blackwood suffered from a depressive illness with possible psychotic features. Counsel forwarded Dr. Macaluso a packet of materials related to Blackwood’s mental health mitigation approximately two months before trial and also sent a follow-up letter. One week after the jury returned its guilty verdict, counsel wrote to the doctor and officially requested that he testify in the penalty phase proceedings. He wrote again several days later and provided the date of the penalty phase proceedings and other information. Dr. Macaluso first responded by letter three weeks after counsel’s formal request, only sixteen days before sentencing was set to begin. The letter expressed the doctor’s dissatisfaction with the fee arrangement and notified counsel that he would be unable to testify that the statutory mitigators were present. It is apparent that counsel had never confirmed the use of the expert’s services. Though the mishap cannot be entirely attributed to fault of counsel, it is telling that with only two weeks before commencement of the penalty phase, counsel had not attempted to schedule an evaluation of the defendant with the sole expert upon whom he was relying for evidence of mental health mitigation. In fact, counsel had not even spoken or met with the expert. Trial counsel proceeded to the penalty phase without mental health evidence.

The trial court noted there was no evidence that trial counsel had discussed non-statutory mental health mitigation evidence with the expert. Though the State contends that counsel’s failure to present mental health mitigation evidence to the jury was a strategic decision, the record reveals that Blackwood’s counsel admitted his intention to rely upon Dr. Macaluso’s expert testimony at the penalty phase to support the existence of mental health mitigating circumstances. Critically, upon learning that this expert was unavailable, counsel discontinued any effort to investigate and present mental health mitigation to the jury.

The United States Supreme Court has advised, “[Ijnvestigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’ ” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.1.4(c) (1989)). Here, counsel failed to investigate whether Dr. Macaluso could testify to the existence of any nonstatutory mitigating circumstances and never attempted to secure any other mental health expert for an evaluation of Blackwood. Despite a strategy of presenting mental health mitigation evidence, trial counsel wholly abandoned efforts to present evidence from a mental health expert to the jury. In light of trial counsel’s strategy, his failure to attempt to present mental health mitigation evidence to the jury was unreasonable. There is substantial, competent evidence in the record to support the trial court’s finding of deficient performance.

The State also argues that no prejudice could have resulted from any alleged deficiency. To establish prejudice, there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Presented with only the mitigation testimony of family and friends, the jury recommended a sentence of death for Blackwood by a vote of nine to three. Thereafter, trial counsel presented mental health mitigation evidence to the sentencing judge.

One month after the verdict, trial counsel contacted clinical psychologist Dr. Trudy Block-Garfield to enlist her services as a mental health expert. Dr. Block-Garfield evaluated Blackwood and suggested to trial counsel that Blackwood might suffer from a neurological deficit. Counsel declined the opportunity to confirm this through additional testing. The Spencer hearing took place approximately six weeks after the expert was engaged. Dr. Block-Garfield testified that Blackwood had a verbal IQ of 70, which placed him in the range of borderline retardation. She found that he suffered from mental or emotional disturbance at the time of the crime, but did not find the statutory miti-gator of “extreme” méntal or emotional disturbance. She did find another statutory mitigator — no prior criminal history— and also testified to the existence of several nonstatutory mitigators.

The trial court relied heavily upon Dr. Block-Garfield’s testimony but was required to give great weight to the jury recommendation. The court concluded that the single aggravating circumstance outweighed the finding of one statutory mitigating circumstance of significant weight and eight nonstatutory mitigating circumstances of varying weights. The court thus accepted the recommendation of the jury and imposed the death sentence. It cannot be overlooked that a court’s imposition of the sentence must originate in the recommendation of the jury. See Tedder v. State, 322 So.2d 908, 910 (Fla.1976) (stating that under Florida’s death penalty statute the jury recommendation should be given great weight); Cooper v. State, 336 So.2d 1133, 1140 (Fla.1976) (“The Legislature intended that the trial judge determine the sentence with advice and guidance provided by a jury, the one institution in the system of Anglo-American jurisprudence most honored for fair determinations of questions decided by balancing opposing factors.”).

The trial court observed that persuasive nonstatutory mitigation evidence was available through Dr. Block-Garfield that was never presented to the jury. This expert testified regarding Blackwood’s extreme depression, capacity for rehabilitation, and lack of a prior criminal history. She also noted that Blackwood scored in the impaired range on the Benton Visual Retention Test, which suggested a neurological impairment. Trial counsel admitted that Dr. Block-Garfield advised him that additional testing by a specialist was necessary to confirm impairment. Counsel stated that he failed to pursue such testing because of “time parameters, costs involved, case costs involved.” Despite a preliminary indication of neurological impairment, Blackwood was never tested for the purpose of mental health mitigation before the death sentence was imposed.

At the postconviction hearing, further expert mental health testimony was presented by the defense from two additional psychologists, both of whom found the statutory mitigating circumstance of extreme mental or emotional disturbance at the time of the crime. Dr. Hyman Eisenstein determined that this statutory mitigating circumstance was present after interviewing Blackwood’s family members, reviewing collateral sources, and conducting a complete battery of neuropsychological tests on Blackwood. Dr. Eisenstein also presented evidence indicating that Blackwood was incapable of complete decision-making and that his borderline intellectual functioning was in the bottom five percent of the population. Similarly, after reviewing relevant materials and conducting extensive interviews and comprehensive personality tests with Blackwood, clinical psychologist Dr. Martha Jacobson also determined that Blackwood suffered from major depression and had been under the influence of an extreme mental or emotional disturbance at the time of the murder. Substantial interviews with Blackwood’s family members also permitted Dr. Jacobson to reconstruct a history of head injuries endured by Blackwood that supported the neurological impairment suggested in Dr. Block-Garfield’s initial screening.

The State contends that Blackwood has years later merely found more favorable testimony in these mental health experts, which is generally insufficient to entitle him to relief. See, e.g., Cherry v. State, 781 So.2d 1040, 1052 (Fla.2000). However, a substantial amount of mitigation evidence that is significant in nature, noncumulative, and unrefuted by the record was presented at the evidentiary hearing. In addition to the revelation of a second statutory mitigator, potential nonstatutory mental health mitigators were also presented, including corroborating evidence of neuropsychological impairment. Importantly, . this mitigation evidence was available at the time of the penalty phase, and trial counsel had in fact reasonably' concluded that presentation of mental health mitigation evidence to the jury was warranted.

Despite that conclusion, Blackwood’s sentencing jury was provided with no opportunity to consider mental health mitigation evidence from a mental health expert. See Phillips v. State, 608 So.2d 778, 783 (Fla.1992) (remanding for a new sentencing after finding that the jury was entitled to hear strong mental health mitigation evidence as well as background mitigation evidence that was less compelling). After considering only nonstatutory mitigating circumstances, the jury recommended the death penalty by a vote of nine to three. On direct appeal, this Court affirmed the trial court’s sentence by a vote of four to three, finding that the court did not abuse its discretion in determining that the single aggravator outweighed the mitigating circumstances.

On this record, we agree with the trial judge’s conclusion that trial counsel was ineffective because there was both deficient performance and prejudice. This Court has often repeated that the sentence of death is reserved for the most aggravated and least mitigated of murders. See Woods v. State, 733 So.2d 980, 990 (Fla. 1999) (reversing sentence of death in light of one valid aggravator where there was substantial mitigation evidence including borderline IQ and lack of prior criminal behavior); Kramer v. State, 619 So.2d 274, 278 (Fla.1993) (reversing for life sentence where significant mitigating circumstances outweighed two aggravators). As noted previously in this case, “[significantly, the death sentence imposed in this case rests solely upon a trial court finding of only one aggravating factor.” Blackwood v. State, 777 So.2d 399, 413 (Fla.2000) (Anstead, J., concurring in part and dissenting in part). We therefore affirm the trial court’s determination that in light of the available mental health mitigation evidence, trial counsel’s failure to further investigate, prepare, and present such evidence to the jury constituted ineffective assistance of counsel during the penalty phase. We affirm the trial court’s determination that a new penalty phase trial is warranted.

PETITION FOR WRIT OF HABEAS CORPUS

Blackwood presents two interrelated claims for habeas corpus relief based upon alleged violations of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Blackwood raised a Ring/Appren-di claim in his postconviction motion in November 2002. The claim was summarily denied by the trial court, and that denial was not appealed. Because Blackwood’s habeas claims either have been raised or could have been raised on appeal or at postconviction, they are now procedurally barred. See Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992) (“Habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been ... or were raised on direct appeal.”). Furthermore, both the United States Supreme Court and this Court have held that Ring does not apply retroactively; thus, the claim is otherwise barred. Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Johnson v. State, 904 So.2d 400 (Fla.2005).

Moreover, Blackwood presents no meritorious arguments in his petition and fails to distinguish his case from the many in which the Court has rejected the same claims. This Court has rejected the allegation that the jury is required to make specific findings of the aggravating circumstances necessary for the imposition of the death penalty. See, e.g., Porter v. Crosby, 840 So.2d 981 (Fla.2003). Likewise, this Court has consistently denied Ring claims alleging that aggravating circumstances must be included in the indictment or found by a unanimous verdict. See Hodges v. State, 885 So.2d 338 (Fla.2004); Blackwelder v. State 851 So.2d 650 (Fla. 2003); Porter v. Crosby, 840 So.2d 981 (Fla.2003). Recently, this Court also decided that the requirement of a majority vote on each aggravator is an unnecessary expansion of Ring. See State v. Steele, 921 So.2d 538 (Fla.2005) (holding that the trial court departed from the essential requirements of law in requiring the jury to find specific aggravators on a penalty phase special verdict form). Considering the significant case law from this Court finding no Ring violations based on these claims, Blackwood has failed to demonstrate that he is entitled to habeas relief.

CONCLUSION

Accordingly, we affirm the trial court’s order denying Blackwood a new trial and affirm that portion of the order granting him a new penalty phase based on ineffective assistance of counsel. We deny habe-as relief.

It is so ordered.

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

      . Ullman was not practicing law at the time of the postconviction hearing. His license to practice law was suspended for three years in December 2001, effective nunc pro tunc from February 1, 2000, because of his conviction on federal felony charges of using a telephone to facilitate a drug purchase.

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

      .On direct appeal, Blackwood raised nine issues: (1) whether the sentence of death was disproportionate because the trial court found only one aggravator and substantial mitigation; (2) whether the state failed to establish premeditation; (3) whether the court erred in finding the HAC aggravator; (4) whether the court erred in refusing to admit three evaluative reports of Dr. Trudy Block-Garfield; (5) whether the court erred in allowing the victim's daughter to testify regarding certain statements made by Blackwood; (6) whether the court erred in rejecting the statutory miti-gator of extreme disturbance because Dr. Block-Garfield applied an incorrect standard in her analysis; (7) whether the court erred by failing to make the determination under section 921.141(3) that the HAC aggravator was sufficient to justify the death penalty; (8) whether the trial court erred in failing to find Blackwood's age at the time of the crime, thirty-eight years, to be a mitigating circumstance; .and (9) whether the court erred in excluding hearsay evidence of statements made by the decedent. Btaclcwood, 777 So.2d at 405-06 n. 4.

      . The issues raised were ineffective assistance of counsel based on counsel’s substance abuse and failures during the guilt phase of trial, denial of Blackwood's rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), inadequate mental health evaluation, ineffective assistance of counsel based on failure to adequately investigate and prepare mitigating evidence, and a violation of Blackwood's Sixth Amendment rights as outlined in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

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

      . Blackwood does not challenge the trial court’s summary denial of his other postcon-viction claims. One claim, which alleged that trial counsel failed to adequately investigate and prepare other mitigating evidence, was summarily denied as cumulative, legally insufficient, or harmless error beyond a reasonable doubt. Blackwood's final claim, which, asserted that his rights were violated under an application of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), was summarily denied based upon several decisions from this Court.

      . The racist remark was allegedly made when counsel was arrested for driving under the influence.

      . Blackwood mistakenly analogizes his situation to that of the defendant in Bruno v. State, 807 So.2d 55 (Fla.2001), in which there was abundant evidence of counsel’s impairment during the representation. There, counsel had begun substance abuse therapy and admitted himself into a hospital. He denied, however, being impaired while working on the case. Both the trial court and this Court ultimately declined relief on that basis.

      . Psychiatrist Dr. Peter Macaluso, who had previously evaluated Blackwood for competency, was expected to present evidence of mental health mitigation.

      . Psychiatrist Dr. John Spencer had also evaluated Blackwood for competency,


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Gerald John D’AMBROSIO, Respondent.
    No. SC04-922.
    Supreme Court of Florida.
    Oct. 19, 2006.
    Rehearing Denied Dec. 28, 2006.

      John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, Lorraine C. Hoffman, Bar Counsel, The Florida Bar, Fort Lauder-dale, FL, and Yvette M. Trelles, Past Vice Chair, Fifteenth Judicial Circuit Grievance Committee, West Palm Beach, FL, for Complainant.
    Kevin P. Tynan of Richardson and Tyn-an, PLC, Tamarac, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Gerald John D’Ambrosio. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained herein, we disapprove the referee’s recommendation that D’Ambrosio be disbarred. Instead, we impose a one-year suspension.

FACTS

The Florida Bar filed a five-count complaint against Gerald John D’Ambrosio alleging that he failed to provide notice of his suspension to his clients and the courts, failed to execute written contingency fee agreements, failed to provide competent representation, charged an excessive fee, and appeared in court while suspended from the practice of law. After holding a hearing, the referee issued a report in which he made the following sparse findings and recommendations.

Count I. D’Ambrosio was retained -by Karl Bachert to file a corporate bankruptcy for Reecie’s Ristorante Italiano (Ree-cie’s), an Italian restaurant, in which Bac-hert owned a fifty-one percent interest. There was no written agreement concerning the terms and conditions of D’Ambro-sio’s employment. Although Bachert paid D’Ambrosio $1450, D’Ambrosio never filed the corporate bankruptcy petition. Bac-hert discharged D’Ambrosio and retained substitute counsel to file the bankruptcy petition. D’Ambrosio never returned any unearned fees, or provided Bachert with any accounting.

Bachert later discovered that D’Ambro-sio was the registered agent for Kayk International Trading, Inc., (Kayk), a Florida corporation. After Reecie’s closed, Kayk operated a restaurant at the premises where Reecie’s was previously located.

Count II. D’Ambrosio was retained by Randy Dennis in connection with Dennis’s arrest. Again, there was no written agreement concerning the terms and conditions of D’Ambrosio’s employment. D’Ambrosio was paid $3000 in advance for the representation.

In January 2002, the Florida Supreme Court ordered a ninety-day suspension for D’Ambrosio, effective February 22, 2002. D’Ambrosio failed to furnish a copy of his suspension order to Dennis. Further, on March 7, 2002, while his suspension was in effect, D’Ambrosio “appeared on behalf of Randy Dennis” before a Palm Beach County circuit court judge. Dennis later discharged D’Ambrosio and retained other counsel. D’Ambrosio never returned any unearned fee or provided Dennis with an accounting.

Count III. D’Ambrosio was retained by David Friedman in connection with a divorce. During his ninety-day suspension, D’Ambrosio “appeared on behalf of David Friedman”' before ‘ another Palm Beach County circuit court judge. D’Ambrosio failed to furnish Friedman with a copy of his suspension order. Friedman retained another lawyer to represent him in connection with the divorce.

Count IV. D’Ambrosio was retained by Richard Appelman in connection with a mortgage foreclosure. There was no written agreement concerning the terms and conditions of D’Ambrosio’s employment. D’Ambrosio and Appelman understood that D’Ambrosio would be paid an unspecified fee, contingent on the success of the foreclosure. D’Ambrosio filed an answer and affirmative defenses to the mortgage foreclosure and a counterclaim for compensatory and punitive damages. D’Ambrosio was not paid any funds in connection with the mortgage foreclosure. Appelman endorsed a $70,000 check, payable to Appelman, over to D’Ambrosio’s trust account. The check was deposited but never cleared D’Ambrosio’s trust account.

Count V. D’Ambrosio was retained by Appelman in connection with a personal injury claim. There was no written agreement concerning the terms and conditions of D’Ambrosio’s employment. D’Ambrosio and Appelman understood that D’Ambro-sio would be paid an unspecified fee, contingent upon the success of the personal injury claim. Appelman discharged D’Am-brosio and settled the claim for an unspecified amount.

Without analyzing the facts ór discussing any case law, the referee recommended disbarment. In the same abbreviated manner, the referee found that D’Ambrosio violated Rules Regulating the Florida Bar 3 — 5.1(g) (upon service of suspension order, respondent shall furnish a copy of the order to all clients, opposing counsel or co-counsel, and all courts); 4-1.1 (a lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation); 4-1.5(a) (an attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost); 4 — 1.5(f)(1) (a contingent fee shall be in writing); 4-1.16(d) (upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as surrendering papers and property to which the client is entitled); 4-3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); and 4-8.4(a) (a lawyer shall not violate the rules of professional conduct).

D’Ambrosio petitions this Court for review, arguing that the referee’s findings of fact are insufficient to support the recommended sanction of disbarment.

ANALYSIS

A referee’s finding of fact carries with it a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. Fla. Bar v. Barrett, 897 So.2d 1269, 1275 (Fla.2005). Absent a showing that the referee’s findings are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee. Id.

In this case, the crucial issues are intertwined with the events that took place before the circuit courts in counts II (Dennis) and III (Friedman), while D’Ambrosio was suspended. Although this Court defers to the referee’s findings of fact, the referee did not make adequate findings demonstrating that D’Ambrosio engaged in the practice of law at the circuit court proceedings. Further, the record of the disciplinary proceeding indicates that there are extremely different accounts of what took place at those circuit court proceedings. The referee did not discuss those differing accounts, make any credibility findings, resolve conflicts in the evidence, or present specific factual findings. Without elaboration, the referee’s report simply states that D’Ambrosio “appeared” on behalf of Dennis and Friedman. The report does not provide any findings of fact to clarify the nature of the appearances. The referee’s report does not tell this Court whether D’Ambrosio filed papers, presented arguments, counseled Dennis or Friedman, or otherwise actively represented either former client before the court. Thus, there is insufficient support for the conclusion that D’Ambrosio’s presence at the proceedings was an attempt to continue representing the former clients. In fact, testimony in the disciplinary record suggests that D’Ambrosio may have attended those circuit court proceedings solely to ensure a smooth transition of his former clients’ cases to their new attorneys. D’Ambrosio’s mere attendance at a courtroom proceeding, without any accompanying activities or misconduct, does not necessarily support a conclusion that he continued to engage in the practice of law while suspended.

With regard to the disciplinary-sanction, this Court does not hesitate to disbar attorneys who continue to engage in the practice of law while suspended. See Fla. Bar v. Forrester, 916 So.2d 647, 654 (Fla.2005); Fla. Bar v. Heptner, 887 So.2d 1036, 1045 (Fla.2004); Fla. Bar v. McAtee, 674 So.2d 734 (Fla.1996). Further, in Florida Bar v. Brown, 635 So.2d 13, 13 (Fla.1994), this Court stated that a “[cjlear violation of any order or disciplinary status that denies an attorney the license to practice law generally is punishable by disbarment.” In this case, the referee’s report and the record do not sufficiently establish that D’Ambrosio clearly violated this Court’s order of suspension by appearing in court. In addition to the inadequacy of factual findings, the referee’s report also fails to conduct an analysis of the facts in light of the case law. Given these deficiencies in the record and the referee’s report, there is an insufficient basis for this Court to disbar D’Ambrosio. See Fla. Bar v. Rayman, 238 So.2d 594 (Fla.1970) (holding that the evidence did not present the proof necessary to warrant the findings of guilt and disbarment); see also Fla. Bar v. Shoureas, 892 So.2d 1002 (Fla.2004) (stating that disbarment is an extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards). Instead of disbarment, the record supports a suspension.

In determining the length of the suspension, the record establishes that D’Ambrosio demonstrated a complete disrespect for the disciplinary process by failing to comply with the disciplinary rules. See R. Regulating Fla. Bar 3-5.1(g) (respondent is required to furnish a copy of a suspension order to clients, opposing counsel, and the courts, and to provide the Bar with an affidavit listing all persons and entities that were furnished copies of the order). D’Ambrosio did not provide his clients, the courts, and some opposing counsel with notice of his suspension. Further, the testimony establishes that D’Ambrosio never advised Dennis of his suspension. In fact, immediately before the hearing discussed in count II, D’Am-brosio informed Dennis that he could not represent Dennis further in the case due to a heart or pacemaker problem, not because of a suspension.

D’Ambrosio’s misconduct is further demonstrated by his failure to comply with rule 3-5.1(g), a duty encompassed in this Court’s January 17, 2002, order of suspension. Pursuant to rule 3-5.1(g), within thirty days-of service of this order, D’Am-brosio was required to file an affidavit with the Bar listing the names and addresses of all persons and entities to whom he sent copies of his suspension order. . He did do so until approximately a year later. By this misconduct, D’Ambrosio willfully ignored this Court’s January 17, 2002, order of suspension. This disrespect for an order of this Court merits the imposition of serious discipline.

With the exception of finding that D’Am-brosio continued to engage in the practice of law, the record supports the referee’s remaining recommendations of guilt. For example, with regard to count I, D’Ambro-sio is guilty of violating rules 4-l.l(eompe-tence), 4-1.5(a) (excessive fees), and 4-8.4(a) (a lawyer shall not violate the rules of professional conduct). D’Ambrosio failed to return Bachert’s phone calls, falsely represented to Bachert that he filed the corporate bankruptcy petition, and ultimately -failed to file the petition that he was paid to file. - See Fla. Bar v. Centurion, 801 So.2d 858, 860 (Fla.2000) (approving referee’s conclusion that respondent was guilty of violating rule 4-1.1 by failing to file all required documents, failing to follow up on the filing of the documents, and failing to comply with court orders). Next, rule 4-1.5(a) provides that a fee is clearly excessive when “a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee exceeds a reasonable fee for services provided to such a degree as to constitute clear overreaching.” Because D’Ambrosio never filed the corporate bankruptcy petition, and never returned any portion of the paid $1450 fee, the referee’s conclusion is clearly supported. See Fla. Bar v. Carlon, 820 So.2d 891, 893 (Fla.2002) (approving referee’s conclusions that respondent violated the rules regarding excessive fees).

For counts II and III, the referee found that D’Ambrosio violated rules 3-5.1(g) (notice to clients, opposing counsel and courts of suspension order) and 4-3.4(c) (knowing disobedience of an obligation under a tribunal’s rules). As previously .discussed, D’Ambrosio did not give notice of his suspension to his clients, the courts, and some opposing counsel. Therefore, the referee properly found that D’Ambro-sio violated rules 3-5.1(g) and 4-3.4(c). See generally Fla. Bar v. Heptner, 887 So.2d 1036 (Fla.2004) (lawyer found guilty of violating rule 3-5.1(g)).

With regard to counts IV and V, D’Am-brosio violated rule 4 — 1.5(f)(1) (written contingency fee agreement). Appelman’s testimony reveals that there was no written contingency agreement in either the mortgage foreclosure case or the personal injury case. Thus, the referee’s finding that D’Ambrosio violated rule 4 — 1.5(f)(1), which requires a contingency fee agreement to be in writing, is supported.

In addition to these rule violations, the referee found four aggravating factors: (1) a pattern of misconduct; (2) multiple offenses; (3) a refusal to acknowledge the wrongful nature of his conduct; and (4) previous disciplinary offenses. See Fla. Bar v. Temmer, 753 So.2d 555 (Fla.1999) (recognizing that the Court sanctions more harshly for cumulative misconduct than for isolated misconduct). Further, the referee specifically found that there are no mitigating factors.

In light of D’Ambrosio’s disregard of this Court’s order of suspension (as evidenced by his failing to timely inform clients and others of his suspension), the numerous rule violations, the four aggravating factors, and the lack of any mitigating factors, we impose a one-year suspension. See Fla. Bar v. Golden, 563 So.2d 81 (Fla. 1990) (imposing a one-year suspension due to the seriousness of respondent’s failure to abide by his suspension, failure to inform the client of his suspension, failure to return funds, his lack of remorse, and his past disciplinary actions). Further, for D’Ambrosio to be reinstated to the practice of law in Florida, he must establish his rehabilitation, in part, by providing an accounting to The Florida Bar as well as to Bachert, Dennis, and Friedman of the funds those clients paid D’Ambrosio in advance. As a condition of reinstatement, D’Ambrosio shall refund any unearned amounts to those clients.

CONCLUSION

Accordingly, we disapprove the referee’s conclusory finding that Gerald John D’Ambrosio continued to engage in the practice of law while suspended. We also disapprove the referee’s recommendation of disbarment for D’Ambrosio. Instead of disbarment, Gerald John D’Ambrosio is hereby suspended from the practice of law for one year. To be reinstated, he must make an affirmative demonstration of rehabilitation in accord with the Rules Regulating the Florida Bar as well as satisfy the conditions discussed herein.

This suspension will be effective thirty days from the filing of this opinion so that Gerald John D’Ambrosio can close out his practice and protect the interests of existing clients. If D’Ambrosio notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. D’Ambrosio shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Gerald John D’Ambrosio in the amount of $3,136.27, for which sum let execution issue.

It is so ordered.

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

      . For counts II and III, the referee did not provide any facts describing D’Ambrosio’s actions in the circuit courts. Thus, it is unclear whether D'Ambrosio was merely present in the courtrooms or whether he attempted to act as an attorney representing Dennis and Friedman.


author: PER CURIAM. QUINCE, J.,

text:
    Noel Thomas PATTON, et al., Petitioners, v. KERA TECHNOLOGY, INC., et al., Respondents.
    No. SC05-667.
    Supreme Court of Florida.
    Oct. 26, 2006.
    Rehearing Denied Dec. 28, 2006.

      Wendy Shay Temple and Howard S. Marks of Graham, Builder, Jones, Pratt and Marks, LLP, Winter Park, FL, for Petitioners.
    John S. Schoene, Maitland, Florida and Todd M. Hoepker, Orlando, FL, for Respondents.
   PER CURIAM.

We have for review Patton v. Kera Technology, Inc., 895 So.2d 1175 (Fla. 5th DCA 2005), which expressly and directly conflicts with the decision of the First District Court of Appeal in Dye v. Security Pacific Financial Services, Inc., 828 So.2d 1089 (Fla. 1st DCA 2002), and the decision of the Third District Court of Appeal in Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383 (Fla. 3d DCA 1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS AND PROCEEDINGS BELOW

In December 1998, Noel Thomas Patton, Eve M. Patton, and Edwin W. Dean (petitioners) filed suit against Kera Technology, Inc., George Cheng-Hao Huang, Gabriel Simon, and Unidata, Inc. (respondents) for recovery under a contract and two promissory notes. Petitioners were represented by a Florida attorney and two Georgia attorneys from Atlanta. In November 1999, Terrance McCollough became Florida counsel of record for the petitioners.

In early May 2001, respondents filed motions to dismiss or strike the amended complaint. McCollough filed a notice of hearing on the motions, and a hearing was held on July 9, 2001. No transcript of the hearing exists, and the parties disagree about the outcome. According to petitioners, they were informed by McCollough that the trial judge reserved ruling on the motion. According to respondents, the trial judge ruled on the motion by granting the motion in part and denying the motion in part. Respondents further contended that the trial judge instructed McCollough to submit a proposed order, which McCol-lough failed to do. On appeal, the Fifth District Court of Appeal concluded that nothing in the record supported the assertions of either party. At a subsequent hearing, the trial judge stated that he had “absolutely no recollection” of the proceedings.

Over one year later, in late July and early August 2002, respondents filed motions to dismiss for lack of prosecution (LOP motions) pursuant to Florida Rule of Civil Procedure 1.420(e). The court held a hearing on the LOP motions, and on August 22, 2002, the court entered an order granting the LOP motions and dismissing the case without prejudice. Consistent with the past practice of the parties, Atlanta counsel was not served with .copies of the motions or the court’s order.

On December 10, 2002, the petitioners, through new Florida counsel, filed a motion seeking substitution of counsel and to have the orders of dismissal quashed. Petitioners argued that the dismissal violated their due process rights because Atlanta counsel was not served with copies of . the LOP motions. The court agreed with petitioners, and on February 26, 2003, issued a written order quashing the dismissal and granting the motion for substitution of Florida counsel.

Soon thereafter, respondents served petitioners with notices of hearing on the previously filed LOP motions along with copies of the LOP motions attached as exhibits. Service was provided to substitute Florida counsel and Atlanta counsel. On March 3, 2003, petitioners filed a response and objection to the LOP motions. On March 10, 2003, a new judge heard the motions and took the matter under advisement. On April 8, 2003, the new trial judge granted the LOP motions and dismissed the case for lack of prosecution pursuant to rule 1.420(e). No transcript of the March 10, 2003, hearing exists, and the order does not explain the reason for dismissal.

Petitioners appealed the trial court’s dismissal to the Fifth District, arguing the following: (1) the trial court’s failure to enter an order disposing of the motions argued on July 9, 2001, constituted “unfinished business”, that precluded dismissal; (2) dismissal was improper because the one-year time period required under rule 1.420(e) had not elapsed; and (3) McCol-lough’s abandonment of the case and misrepresentations regarding the status of the case provided good cause to preclude dismissal. After evaluating and rejecting each claim, the Fifth District affirmed the trial court’s dismissal. Patton, 895 So.2d at 1180.

CONFLICT ISSUE

The conflict at issue in the present case concerns petitioners’ claim that it was improper to dismiss the case for failure to prosecute because there was a motion pending before the court. When addressing this claim, the Fifth District found that a trial court’s failure to enter an order disposing of a motion is not always sufficient to avoid dismissal for lack of prosecution. Noting that a plaintiff bears the responsibility to proceed with litigation that the plaintiff has initiated, the Fifth District held that dismissal was warranted in this case because the petitioners failed to take steps within their control to resolve the case or to -ensure prompt dispatch of court orders. Patton, 895 So.2d at 1178.

The Fifth District’s decision in Patton is in apparent conflict with decisions by other district courts reversing dismissals for failure to prosecute because motions were pending. In Lukowsky, the Third District Court of Appeal reversed an order dismissing a case because a motion for summary judgment was pending before the trial court. The Third District specifically held that “whenever a dispositive motion is pending before the court, and the parties are awaiting the court’s ruling on that motion, the duty to proceed rests squarely upon the court. During that period of the court’s deliberation, the cause cannot be dismissed for lack of record activity.” Lu-kowsky, 677 So.2d at 1384. In Dye, the First District Court of Appeal similarly reversed a dismissal for failure to prosecute because there was a motion to dismiss for failure to state a cause of action for which there had been no disposition. The First District held that in such situations, the duty to proceed rests on the trial court. As support for its decision, the First District cited to the Third District’s decision in Lukowksy.

In Fuster-Escalona v. Wisotsky, 781 So.2d 1063, 1065 (Fla.2000), this Court cited to Lukowsky. Noting this citation, the First District in Dye concluded that this Court appears to have approved Lukow-sky’s broad holding that pending motions preclude dismissal for failure to prosecute. Dye, 828 So.2d at 1090.

ANALYSIS

Rule 1.420(e) creates a mechanism for the dismissal of actions that have not been diligently prosecuted. At the time of the trial court’s dismissal in this ease, rule 1.420(e) provided:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. Pro. 1.420(e) (2003). In Wilson v. Salamon, 923 So.2d 363 (Fla.2005), we recently held that this rule was to be given its plain meaning. We stated:

However, the language of the rule is clear — if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending; however, if a review of the face of the record reveals activity by “filings of pleadings, order of court, or otherwise,” an action should not be dismissed.

Id. at 368. This Court has identified a two-step test to be applied by trial courts considering whether a dismissal for failure to prosecute is proper under rule 1.420(e): “[F]irst, the defendant must show that there was no record activity for the year preceding the motion. Second, if there was no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.” Metropolitan Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001).

In the present case, there was no activity on the face of the record in the year preceding the filing of the LOP motions in late July and early August 2002. The last record activity in the case was a hearing on the respondents’ motions to dismiss held on July 9, 2001. Since there was no record activity, the second step of the analysis applied, and it was incumbent upon petitioners to establish good cause why the action should not be dismissed.

The second step of the analysis places the burden on the non-moving party to demonstrate why the case should remain pending. Wilson, 923 So.2d at 367 n. 2 (“During the second step, however, the analysis favors the defendant, and the plaintiff has the ‘high’ burden to establish good cause.”). Once a case has been dismissed pursuant to rule 1.420(e), the party seeking to reverse the dismissal on appeal must demonstrate that the trial court’s determination of good cause was an abuse of discretion. See, e.g., Hall, 784 So.2d at 1090 n. 4; Andres v. City of Jacksonville, 911 So.2d 1286, 1286 (Fla. 1st DCA 2005); Chase v. Lavender, 810 So.2d 1004, 1005 (Fla. 5th DCA 2002) (“The standard of review of the trial court’s dismissal for lack of ‘good cause’ under Rule 1.420(e) is abuse of discretion.”). Therefore, the appellate issue in Patton was whether the trial court abused its discretion when it found that petitioners failed to meet then-burden of showing good cause why the case should not be dismissed.

The district court decisions of Lu-kowsky and Dye do not follow this two-step procedure. Rather, the Third and First Districts found that a trial court has a duty to proceed when there is a pending motion for which there has not been a disposition. We do not agree with these holdings. The holdings do not adhere to the plain meaning of the rule and the two-step procedure. Where there has been no record activity for a year, we reiterate that the second step requires a determination of good cause.

In a situation where there is a pending motion, the issue when applying the second step is whether the pending motion provided good cause why there was no record activity during the one-year period. We do not approve the First District’s reading of our decision in Fuster-Escalona as holding that an LOP motion cannot be granted if there is any pending motion. In Fuster-Escalona, the pending motion provided good cause because of the statute and rule of procedure requiring the trial court to rule on a motion to disqualify the trial judge. Fuster-Escalona, 781 So.2d at 1066. Our Fuster-Escalona decision is distinguished on that basis.

In the present case, the court was not subject to a statutory or procedural requirement as in Fuster-Escalona. Here, the parties disagree about the outcome of the July 9, 2001, hearing on the motions at issue. Respondents contend that the trial judge ruled on the motions at the hearing and directed petitioners’ counsel, McCollough, to prepare a proposed order in accord with the ruling. Petitioners, on the other hand, dispute these contentions and claim that they are unsubstantiated and self-serving. Because no transcript of the hearing existed and because the trial judge stated that he had “absolutely no recollection” of the proceedings, the Fifth District determined that the record did not support the contentions of either party. We reiterate that the burden was on petitioners to demonstrate good cause why the case should not be dismissed. Petitioners could not rely on a silent record.

Moreover, the record indicates that petitioners submitted no evidence on the issue of good cause prior to the court’s consideration of the LOP motions on March 10, 2003. See Fla. R. Civ. Pro. 1.420(e) (good cause must be shown in writing at least five days before the hearing on the motion why the action should remain pending). If petitioners could have shown that a dispos-itive motion remained pending, in which the trial judge had not issued even an oral ruling, that would have furnished good cause under the rule. In Hall, we expressly stated the following:

[W]hen there is no record activity for a year and a hearing is set on a dismissal motion, the non-moving party must set forth in writing five days before the hearing the record activities that move the case forward to a conclusion upon which that party relies as good cause.

784 So.2d at 1090. Petitioners timely filed a response and objection to the LOP motions before the hearing on March 10, 2003, but the filing was not supported by affidavit or deposition testimony. Furthermore, there is no transcript of the March 10, 2003, hearing. Consequently, there is no record of the arguments or evidence, if any, advanced by petitioners at the hearing to show good cause. In sum, petitioners failed to meet their burden of establishing good cause.

CONCLUSION

For the foregoing reasons, we approve the result reached in Patton v. Kera Technology, Inc., 895 So.2d 1175 (Fla. 5th DCA 2005). We disapprove of the holdings in Dye v. Security Pacific Financial Services, Inc., 828 So.2d 1089 (Fla. 1st DCA 2002), and Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383 (Fla. 3d DCA 1996), to the extent that those decisions are in conflict with this decision. We decline to reach any additional issues raised by petitioners.

It is so ordered.

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

LEWIS, C.J., concurs in result only.

QUINCE, J., dissents with an opinion, in which ANSTEAD, J., concurs.

QUINCE, J.,

dissenting.

I agree with the majority that “[i]f petitioners could have shown that a dispositive motion remained pending ... that would have furnished good cause under the rule.” Majority op. at 987. However, I do not agree with the majority’s conclusion that petitioners did not meet their burden of demonstrating good cause under rule 1.420(e). The trial court failed to enter an order disposing of the motions at issue. Because there were dispositive motions still pending, this case should not have been dismissed for failure to prosecute.

ANSTEAD, J., concurs.

      . Petitioners eventually submitted affidavits to support their good-cause argument, but petitioners did not do so until rehearing after the trial court had dismissed the case for failure to prosecute. This belated filing did not meet the time requirements of the rule.