text:
    David D. PAYNE v. STATE of Alabama.
    CR-04-2005.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.

      Lee F. Knowles, Geneva, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, David D. Payne, was convicted of four counts of fraudulent use of a credit card, violations of § 13A-9-14(b), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve concurrent terms of ten years in prison. See § 13A. — 5—9(b)(1), Ala.Code 1975. The appellant filed an untimely motion for a new trial. This appeal followed.

The State presented evidence that Donald Lolley and his son owned Circle L Quail Farm, Incorporated, and that Andre Hogue worked for Lolley. Lolley testified that, on the morning of January 14, 2004, he told Hogue to take his truck to get a part and to take that part to Elba; that he gave Hogue one of the company’s BP gasoline credit cards and told him to use it to buy gasoline for the truck; that the card had the business’ name on it, and he had signed his name on the back of the card; that his truck did not have his business’ name on it at that time; that Hogue left between 8:15 a.m. and 8:30 a.m.; and that Hogue did not return. (R. 42.) He also testified that, on the morning of January 15, 2004, he found out that Hogue had gotten the part, but he had not gone to Elba; that he made a police report regarding the unauthorized use of his vehicle; that, around 8:00 a.m. on January 15, 2005, he telephoned BP to cancel the credit card he had given Hogue; that the credit card was not canceled until approximately 8:30 p.m.; and that the card was used seven times on January 15, 2004. Lolley further testified that he did not know the appellant; that the appellant was not authorized to use the credit card; that Hogue was the only person who was authorized to use that credit card; and that his employees knew that they were not supposed to use company credit cards for anything other than purchases for the business vehicle. Finally, he testified that he had looked at the receipts from the January 15, 2004, purchases; that the receipts had different names on them; that some of the receipts had the name “Andrew Mills” on them; and that he did not know anyone named Andrew Mills. (R. 47.)

Lieutenant Ron Sanders of the Hartford Police Department testified that he became involved in the investigation regarding the gasoline card on January 21, 2004; that Lolley showed him a printout that showed purchases that had been made with the card on January 15, 2004; that six of the seven purchases had been made at a BP gasoline station in Hartford; and that he went to that gasoline station and spoke to the clerk, Martha Davis. He also testified that Davis showed him the receipts for six purchases; that the first receipt was dated January 14, 2004, and the other five receipts were dated January 15, 2004; that some of the receipts were signed by Andre Hogue and others had been signed “Andrew Mills”; and that one of the receipts had a partial signature of “David” and then the signature “Andrew Mills” underneath it. Finally, Sanders testified that he obtained the gasoline station’s security videotapes for January 14, 2004, and January 15, 2004; that he watched the videotapes; and that the appellant was the person who made some of the purchases that corresponded with the receipts signed “Andrew Mills.”

Martha Davis testified that she worked at Al’s BP gasoline station in Hartford; that, on January 15, 2004, the appellant, another man, and a young woman were at the station; that the other man pumped the gasoline; that the appellant used a credit card that had the name “Circle L Quail Farm” on it to make purchases; that the appellant signed the receipts “Andrew Mills”; and that the appellant used the credit card to purchase gasoline, drinks, and snacks. She also testified that, at one point, another vehicle came to the station; that the driver of that vehicle asked if he could fill his vehicle with gasoline; and that the appellant and the other man said, “ ‘[Y]eah, go ahead.’ ” (R. 88.)

The appellant testified that, on January 15, 2004, he was at his father’s house; that Hogue came to his father’s house in a truck that had a business sign on it; that he had never met Hogue before that; that Hogue asked about buying parts from his father’s vehicle; that, when he told Hogue that his father would not sell parts off of that vehicle, Hogue told him that he needed money to buy a fuel pump for his work truck; that Hogue asked him for money, but he told him that he did not have any money; that Hogue told him that he had a BP gasoline credit card, but he could only use the card to buy gasoline and things from the gasoline station; that Hogue offered to sell gasoline for one dollar a gallon; that he knew some people who might be interested, and he took Hogue to meet them; that some people agreed to buy gasoline from Hogue; and that he drove four vehicles to the BP gasoline station, put gasoline in them, signed receipts for the gasoline, and gave Hogue cash for the gasoline. He also testified that he did not know that the credit card was stolen; that he knew that Hogue worked for the company because he was wearing a suit and because the name of the company was on Hogue’s shirt, the truck, and the credit card; that Hogue told him to sign the receipts “Andrew Mills”; that he thought that Hogue’s name was Andrew Mills; and that he did not know Hogue’s real name until he later went to court.

I.

The appellant argues that the State did not present sufficient evidence to support his convictions. Specifically, he contends that the State did not prove that he was not authorized to use the credit card and that he knew that he was not authorized to use the credit card.

“A person commits the crime of fraudulent use of a credit card or debit card if he or she uses, attempts to use, or allows to be used, a credit card or debit card for the purpose of obtaining property, services, or anything else of value with knowledge that:
“(1) The card is stolen; or
“(2) The card has been revoked or cancelled; or
“(3) For any other reason the use of the card is unauthorized by either the issuer or the person to whom the credit card or debit card is issued.”

§ 13A-9-14(b), Ala.Code 1975.

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d. 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala. Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr. App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App. 1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 288 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

“‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
“ ‘ “The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for' decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).- An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial' defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (I960).’ Granger [v. State], 473 So.2d [1137,] 1139 [ (Ala.Crim.App.1985) ].
“... ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala. 1985).”

White v. State, 546 So.2d 1014, 1017 (Ala. Crim.App.1989). Also,

“ ‘[e]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979).’
“Ward, 610 So.2d at 1191-92.”

Lockhart v. State, 715 So.2d 895, 899 (Ala. Crim.App.1997). Finally,

“ ‘[ijntent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ McCord v. State, 501 So.2d 520, 528-529 (Ala.Cr.App.1986), quoting Pumphrey v. State, 156 Ala. 103, 47 So. 156 (1908).”

French v. State, 687 So.2d 202, 204 (Ala. Crim.App.1995), aff'd in part, rev’d in part on other grounds, 687 So.2d 205 (Ala.1996).

“ ‘The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury. McMurphy v. State, 455 So.2d 924 (Ala. Crim.App.1984); Craig v. State, 410 So.2d 449 (Ala.Crim.App.1981), cert. denied, 410 So.2d 449 (Ala.[Crim.App. J1982).’ Loper v. State, 469 So.2d 707, 710 (Ala.Cr.App.1985).”

Oryang v. State, 642 So.2d 989, 994 (Ala. Crim.App.1994).

In this case, the State presented evidence that, on January 14, 2004, Lolley gave Hogue his truck and a company credit card and told him to use the credit card to put gasoline in that' truck; that the truck did not have a sign on it; that Hogue did not return with the truck or the credit card; that the credit card had the business’ name on the front and was signed on the back by Lolley; that, on January 15, 2004, the appellant used that credit card to make four purchases at the BP gasoline station in Hartford; that the appellant signed the receipts with the name Andrew Mills; that, on one of those receipts, the appellant initially signed the name David, but stopped and signed the name Andrew Mills underneath that; that the appellant and Hogue allowed another man to use the credit card to purchase gasoline; and that Lolley did not authorize the appellant to use that credit card. Based on this evidence, the jury could have reasonably concluded that the appellant had used the credit card to obtain property; that he was not authorized to use the credit card; and that he knew that the person to whom the card was issued had not authorized him to use the' credit card. Further, “[t]he weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury.” Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997). Therefore, the State presented sufficient evidence to support the appellant’s convictions.

To the extent the appellant challenges the weight of the evidence, his argument is not properly before this court.

“The issue of the weight of the evidence is preserved by a motion for a new trial, stating ‘that the verdict is .contrary to law or the weight of the evidence.’ See [Ala.] R. [Crim.] P. 24.1(c)(1).”

Zumbado v. State, 615 So.2d 1223, 1241 (Ala.Crim.App.1993). Although the appellant filed a motion for a new trial in which he challenged the weight of the evidence, that motion was not timely. Therefore, he did not preserve this argument for our review.

For the above-stated reasons, we affirm the appellant’s convictions.

II.

The appellant also argues that the trial court erroneously sentenced him as a habitual offender. The record indicates, and the State concedes, that the two prior Florida convictions that were used to enhance the appellant’s sentences were based on nolo contendere pleas. Therefore, the State asks this court to remand this case for the appellant to be resentenced without the use of his prior Florida convictions.

“The Alabama Supreme Court has held that a conviction based upon a plea of nolo contendere cannot be used in Alabama to enhance punishment under the Habitual Felony Offender Act. Ex parte Jenkins, 586 So.2d 176, 177 (Ala.1991). See also, e.g., Kain v. State, 700 So.2d 355, 356 (Ala.Cr.App.1996); McHarris v. State, 678 So.2d 259, 260 (Ala.Cr.App. 1996).”

McCray v. State, 738 So.2d 911, 916 (Ala. Crim.App.1998). Because the appellant’s two prior Florida convictions were based on nolo contendere pleas, the trial court erred when it used those convictions to enhance his sentences. Accordingly, we remand this case to the trial court with instructions that it conduct a new sentence hearing and sentence the appellant without the application of the Habitual Felony Offender Act. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include a transcript of the new sentencing hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, p.j., and COBB, SHAW, and WISE, JJ., concur.

      . The trial court pronounced the sentences in these cases on May 20, 2005, and it entered the sentences on the case action summary sheets on May 31, 2005. The appellant filed his motion for a new trial on June 23, 2005. "A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced." Rule 24.1(b), Ala. R.Crim. P. (emphasis added). Because the appellant did not file his motion within thirty days after the trial court pronounced his sentences, that motion was not timely.

      . Based on our holding that the appellant's prior Florida convictions could not properly be used to enhance his sentences because they were based on nolo contendere pleas, we need not address his argument that the State did not properly prove that those convictions were not youthful offender adjudications.


source: Caselaw Access Project

author: PER CURIAM. ANSTEAD, J.,

license: Public Domain

text:
    Harold Lee HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. SC95075.
    Supreme Court of Florida.
    June 15, 2006.
    Rehearing Denied Jan. 8, 2007.

      Ross B. Bricker, Jeffrey A. Koppy and Ellen C. Lamond of Jenner and Block, Chicago, IL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Harold Lee Harvey, a prisoner under a sentence of death, appeals an order of the trial court denying his motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We previously issued an opinion in this case which only addressed the issue of whether counsel was ineffective for conceding Harvey’s guilt of first-degree murder. We found counsel was ineffective and remanded the case for a new trial. While rehearing was pending, the United States Supreme Court granted certiorari review of this Court’s opinion in Nixon v. State, 857 So.2d 172 (Fla.2003), which addressed the same issue. The court reversed our decision, Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), and held that the proper standard to be applied in cases involving counsel’s concession of guilt is the two-pronged test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, we issue this opinion on rehearing and address all of the issues raised in Harvey’s motion for postconviction relief. The opinion issued on July 3, 2003, is withdrawn, and this opinion is substituted in its place. For the reasons set forth below, we affirm the trial court’s denial of rule 3.850 relief.

FACTS AND PROCEDURAL HISTORY

Harvey was charged with two counts of first-degree murder in the killings of William and Ruby Boyd, which occurred during the course of a robbery at the Boyds’ home. After obtaining money from the Boyds, Harvey and Scott Stiteler, the co-defendant, discussed what they were going to do with the victims and decided they had to kill them. Harvey shot both victims. Harvey v. State, 529 So.2d 1083, 1084 (Fla.1988).

At trial, Harvey was convicted of both counts of first-degree murder. The jury recommended death by a vote of eleven to one on each conviction. The sentencing judge found four aggravating circumstances and as mitigating circumstances found Harvey had a low IQ and poor educational and social skills. Id. at 1088 n. 5.

On appeal, we affirmed Harvey’s convictions and sentences of death. Id. at 1088. After the governor signed a death warrant on March 29, 1990, Harvey filed a petition for writ of habeas corpus with this Court along with a request for stay of execution. We issued a stay so that Harvey could seek relief under rule 3.850. Thereafter, Harvey filed a motion for posteonvietion relief in the trial court. After an eviden-tiary hearing on one of the claims, the trial judge entered an order denying relief. Harvey appealed the denial of his postcon-viction motion, raising seventeen claims, and he also filed a supplemental habeas petition raising seven issues. We denied the petition for writ of habeas corpus, but reversed the trial court’s summary denial of the postconviction motion as to five issues and remanded to the trial court to determine if Harvey was denied effective assistance of counsel. Harvey v. Dugger, 656 So.2d 1253 (Fla.1995). After an evi-dentiary hearing on these five issues, the trial court denied postconviction relief in an amended order.

Harvey now appeals the denial of post-conviction relief, raising the following claims for review: (1) whether trial counsel was ineffective for failing to investigate and present evidence of mental mitigation; (2) whether trial counsel was ineffective for failing to adequately investigate and present mitigating evidence; (3) whether trial counsel was ineffective for admitting Harvey’s guilt during opening statement; (4) whether trial counsel was ineffective for failing to make several arguments in support of his motion to suppress Harvey’s confession; and (5) whether the cumulative effect of trial counsel’s other errors constituted ineffective assistance of counsel. For the reasons explained below, we affirm the trial court’s denial of relief.

DISCUSSION

I. Ineffective Assistance of Counsel/Guilt Phase

A. Admission of Guilt

Harvey claims that trial counsel was ineffective for admitting guilt without his consent during the guilt phase opening statement. The trial court concluded that counsel’s concession of guilt was not a concession of guilt to first-degree murder and thus was not improper. Harvey argues that trial counsel’s statements to the jury were the functional equivalent of a guilty plea to both first-degree and second-degree murder, and that this concession of guilt, without Harvey’s consent, constituted, per se, ineffective assistance of counsel. The State argues that the trial court properly denied relief because trial counsel did not concede guilt to the crime charged.

Crucial to this issue’s resolution is a determination of the appropriate standard of review. We initially reviewed this issue under our earlier decision in Nixon v. Singletary, 758 So.2d 618 (Fla.2000), which relied on the per se rule of ineffective assistance of' counsel discussed in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). However, the United States Supreme Court held in Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), that a defendant’s claim of ineffective assistance of counsel based on counsel’s concession of guilt to the crime charged, even without the defendant’s consent, must be evaluated under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, in order to establish a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel’s performance was deficient and that the defendant was prejudiced by the deficient performance. As to the first or performance prong of Strickland, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland 466 U.S. at 687, 104 S.Ct. 2052. On the second or prejudice prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. See id. at 694, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. 2052.

Trial counsel began his arguments to the jury by stating:

Harold Lee Harvey is guilty of murder. If anything is established over the next week it will be that Harold Lee Harvey is guilty of murder. I have been doing defense work for some time. I’ve never said that in a court of law, that my client is guilty of murder. But he is. That doesn’t by any means end your consideration of his case. The physical act that he committed was that he pulled the trigger on what was an automatic military weapon firing it into a room, discharging projectiles that hit human beings and killed them.
Now, what events lead up to that? What events place this young man in that chair in this room before these 14 people to determine not whether or not he’s a murderer but merely what type of murderer he is?

Based on these statements, the State argues that trial counsel’s strategy was obvious: trial counsel was attempting, in the face of Harvey’s confession, to argue that while Harvey did commit murder, it was second-degree murder because it was done without premeditation. However, the State’s position is not supported by the record when viewed with trial counsel’s entire opening statement. In describing the events leading up to the murder, trial counsel stated the following:

And then it happened just about the way that Mr. Morgan said it did. When they got' there Mrs. Boyd surprised them. She was outside the house. She was on her way out to get the garbage, they didn’t have'time to put their masks on. Mrs. Boyd came up to them, it was, I believe, shortly before nightfall, and asked them at the front door, “What are you doing out here?” And Stiteler looked at Lee and Lee looked at Stiteler and they knew that things were starting to go wrong.
And they had Mrs. Boyd walk back into the house and Mr. Boyd was in the house and they told them, “We want your money.” And Stiteler ran around the house, all through the house looking for this cache of money, while Lee went into the bedroom with Mr. and Mrs. Boyd. Mr. and Mrs. Boyd then gave Lee what little bit they had, which was about $30 or $40 at the time. They didn’t have any stash of money there. And Stiteler never did find the stash of money and they came down and completed the robbery. And little facts come out in cases that are always sometimes more indicative of what’s really going on and is more indicative about the human beings involved than what the real plan was than other things. And the little fact in this case is Mr. Boyd asked for money for church, it was Saturday. And he said, “I have to go to church tomorrow, you’re taking all my money.” After all, he’s thinking this is the neighbor kid. I know this kid, he lives over here. What’s this crazy kid doing? And Lee gave him back money for church, because he didn’t plan to kill him.
But then they went outside.. And at that time Stiteler had the imposing weapon and Lee had the handgun. And at that point they began this frenzied conversation. They were just outside the home and the door was half open. They asked Mr. and Mrs. Boyd to sit down at a card table in the room, and you’ll see pictures of the room.
And they had this conversation and without question what was discussed during this conversation was whether or not to kill these two people. This is a crazy conversation for these two young men to be having but that’s what it had gotten to.

(Emphasis added.) The emphasized language clearly demonstrates that trial counsel admitted that Harvey deliberated his plan to kill the Boyds. By stating that Harvey and Stiteler had a conversation in which they discussed the plan to commit murder, trial counsel conceded that Harvey acted with premeditation and, therefore, conceded Harvey’s guilt of first-degree murder.

However, because Harvey has failed to demonstrate prejudice based on counsel’s concession of guilt, we need not address the deficiency prong of Strickland, and we deny 3.850 relief on this issue. See Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. 2052 (holding there is no need for a court deciding an ineffective assistance of counsel claim to address both prongs of the inquiry if there as been an insufficient showing on one prong). In order to establish prejudice, a defendant must demonstrate that there is a reasonably probability that the result of. the proceeding would have been different, but for counsel’s unprofessional error. See Valle v. State, 778 So.2d 960, 965-66 (Fla,2001) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Williams v. Taylor, 529 U.S. 362,120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

Trial counsel testified that he was trying to fashion a defense around Harvey’s confession, which he knew the jury would hear. Thus, counsel’s strategy was to concede that Harvey committed second-degree murder and argue that he did not have the necessary, intent for first-degree murder. The trial court’s amended order on Harvey’s motion for postconviction relief provides the following facts: Harvey was arrested on two counts of second-degree murder and one count of robbery. He was immediately interviewed. The interview lasted throughout the morning and into the afternoon. It was during this interview that Harvey made a confession. Harvey never requested a lawyer. After his first appearance, counsel was appointed and Harvey was indicted on two counts of first-degree, murder. At trial, Harvey’s full confession was- admitted into evidence. In the confession, Harvey told police that he and the codefendant went to the victims’ house to rob them. They cut the power lines from the telephone pole. They went to the victims’ door and were surprised when Mrs. Boyd approached them from outside the house and asked them if she could help them. They were not wearing masks. At that point, Harvey brandished a gun and took Mrs. Boyd inside the house and told her he wanted her money. Harvey told police that after they took the victims’ money, they stood there talking about what they were going to do. They decided to kill the Boyds. Harvey said, ‘Well, they know me. What are we gonna do?” The codefendant said he did not know, and said, “I guess we’re gonna have to kill’em, shoot’em.” Harvey indicated the victims heard the conversation. He said the victims started to run, so he shot them. He further said that he then ran out of the door, and the codefendant was waiting for him in Harvey’s car. Harvey went back in the house for the shell casings, and because Mrs. Boyd was still moaning, he shot her again in the head. He left, got in the car, and as he and the codefendant drove down the street, he realized that he had left the victims’ wallets in the house and that he had touched them. They turned around and went back. Harvey went into the house and retrieved the wallets.

Trial counsel said nothing more to the jury than what Harvey said during his confession to police. The evidence against Harvey was overwhelming even without counsel’s admission that Harvey committed first-degree murder. See, e.g., Patton v. State, 784 So.2d 380 (Fla.2000) (finding the facts counsel conceded were supported by overwhelming evidence and even if counsel had denied these facts, there was no reasonable possibility the jury would have rendered a different verdict). We cannot say, given all of the evidence introduced at trial, there is a reasonable probability that, but for any errors by counsel, the result of the proceeding would have been different, i.e., that our confidence in the outcome has been undermined.

Therefore, we affirm the trial court’s denial of relief on this issue.

B. Motion to Suppress

Harvey next alleges that trial counsel was deficient in arguing the motion to suppress his confession made to police because counsel failed to introduce the police booking sheet pertaining to his arrest. Initially, the trial court summarily denied this claim. This Court reviewed the summary denial and remanded the issue for a hearing, stating that if the booking sheet was authentic, and if it was signed at 6:35 a.m., it “might bear on Harvey’s claim of ineffective assistance of counsel in relation to the motion to suppress.” Harvey v. Dugger, 656 So.2d at 1257.

On remand, the trial court conducted an evidentiary hearing and found that Harvey was arrested at 6:20 a.m. He arrived at the Okeechobee County jail at approximately 6:30 a.m. The booking officer only asked Harvey his name and noted a $3 million bond. Harvey was then immediately taken to an office and interviewed by Florida Department of Law Enforcement Officer Pete Lanier, Okeechobee County Chief Deputy O.L. Raulerson, and Deputy Sheriff Gary Hargraves. At no time during the interview, which lasted through the afternoon, did Harvey ask for a lawyer. Prior to making his statements, Harvey signed five forms waiving his Miranda rights, including the right to counsel.

Harvey made two incriminating statements during the course of the interview. The booking sheet was completed at approximately 5:50 p.m. Rose Bennett, a corrections officer, testified at the evidentiary hearing that she completed the booking sheet, including the portion of the booking sheet regarding Harvey’s invocation of his right to counsel, prior to the first appearance hearing. She stated that she must have checked the box concerning a request for an attorney just before the hearing because the public defender was present then and had seen Harvey, and she included his name on the sheet. The first appearance hearing was held at 6:10 p.m. before County Judge Burton Connor. Harvey was then photographed and fingerprinted at approximately 7:15 p.m. Based upon these factual findings, the trial court concluded that the introduction of the booking sheet would not have been helpful because the booking sheet indicates that Harvey requested a lawyer after he made the incriminating statements.

Because the booking sheet was completed and the request for counsel was made after Harvey’s confession, trial counsel was not deficient for failing to submit the booking sheet in support of the motion to suppress. This Court remanded this matter for an evidentiary hearing to determine if the booking sheet was signed at 6:35 a.m. It has been determined that the booking sheet was not signed at 6:35 a.m.; therefore, Harvey’s claim that counsel was deficient has not been demonstrated.

II. Ineffective Assistance of Counsel/Penalty Phase

A. Failure to Investigate and Present Evidence of Mental Mitigation

Harvey claims his trial counsel was ineffective for failing to ensure that he received a competent mental health examination. Ineffective assistance of counsel claims are mixed questions of law and fact. This Court therefore conducts “an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings.” State v. Riechmann, 777 So.2d 342, 350 (Fla.2000); see also Cherry v. State, 781 So.2d 1040 (Fla.2000). The trial court’s factual findings will be upheld when they are supported by competent, substantial evidence in the record. See Stephens v. State, 748 So.2d 1028, 1035 (Fla.1999).

Harvey alleges that trial counsel failed to fully investigate his background for mental health mitigation. The trial court found, however, that trial counsel retained psychologist Dr. Fred Petrilla, met and ate dinner with Harvey’s parents and siblings on two occasions, and obtained Harvey’s school records. The trial court also found that Dr. Petrilla interviewed Harvey’s family and coworkers and that Dr. Petrilla was given background material concerning Harvey. These findings are supported by the record.

At the evidentiary hearing, trial counsel testified that he was concerned with Harvey’s mental health and hired Dr. Petrilla for the purpose of conducting a mental health evaluation. Counsel indicated that he provided Dr. Petrilla with case materials and medical records. Counsel testified that neither Harvey nor Harvey’s family gave him any indication of possible mental health mitigators, although they did inform counsel that Harvey had been in a serious car accident when he was sixteen years old. Trial counsel said it was determined that Harvey had never been institutionalized. Dr. Petrilla testified at the eviden-tiary hearing that he performed a personality assessment and several other tests on Harvey. He also said he tested Harvey to determine his IQ. Dr. Petrilla further testified that he and trial counsel discussed the results of these tests. As a result of this testing, Dr. Petrilla recommended that Harvey be given antidepressant medications and receive psychotherapy with assertiveness training. He tested Harvey for organic brain damage, but he did not diagnose Harvey as having brain damage. Dr. Petrilla’s testimony at the penalty phase of the trial was consistent with his investigation. He testified that Harvey was depressed, had low-self esteem, had a mental age of eighteen years and a physical age of twenty-three, did not have brain damage, and was impulsive.

Harvey argues that trial counsel was deficient because he did not retain a psychiatrist as Dr. Petrilla had recommended. As the trial court found, trial counsel and Dr. Petrilla conferred, and Dr. Petrilla recommended Dr. Carmen Ebalo as an examining psychiatrist for Harvey. Harvey argues that because his own psychologist recommended that he be evaluated by a psychiatrist, trial counsel was deficient in failing to retain one.

Although Dr. Petrilla suggested it, trial counsel testified at the evidentiary hearing that he did not employ a psychiatrist because he felt the jury might see calling more than one mental health expert as trying too hard to make an excuse for bad behavior, especially given the fact that Harvey had never been treated for mental illness. Based on the evidence available to trial counsel, including his interviews with Harvey’s parents, trial counsel’s decision was consistent with his sound trial strategy to present Harvey as a good person with a positive family upbringing. The evidence presented at the postconviction hearing painted Harvey in a different light and would have been inconsistent with the trial strategy that was employed.

While in hindsight counsel could have pursued a different penalty phase strategy, the strategy counsel employed was not unreasonable and did not fall outside the broad range of competent performance “under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In considering a claim of ineffective assistance of counsel, we must fairly assess trial counsel’s performance at the time of trial based on the information he had. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689.

In order to obtain a reversal of his death sentence on the ground of ineffective assistance of counsel, Harvey must show (1) that the identified acts or omissions of counsel were deficient or outside the wide range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different. See Banks v. State, 842 So.2d 788, 790 (Fla.2003); Rose v. State, 675 So.2d 567, 571 (Fla.1996).

Harvey has not demonstrated that trial counsel was deficient in his investigation of possible mental health mitigation. This Court has found counsel’s performance to be deficient where counsel “never attempted to meaningfully investigate mitigation” although substantial mitigation could have been presented. Rose, 675 So.2d at 572; see also Hildwin v. Dugger, 654 So.2d 107, 109 (Fla.1995) (finding that a woefully inadequate investigation failed to reveal a large amount of mitigating evidence such as prior psychiatric hospitalizations and statutory mental health mitigators); State v. Lara, 581 So.2d 1288, 1289 (Fla.1991) (finding counsel virtually ignored preparation for penalty phase). This is not the ease here. Consistent with the trial court’s factual findings, trial counsel conducted a reasonable investigation into Harvey’s mental health background and incorporated his findings into a penalty phase strategy.

Trial counsel explained his strategy at the evidentiary hearing. He chose to present Harvey as a “good person.” Trial counsel wanted the jury to see that these murders were inconsistent with Harvey’s character and were committed without premeditation in the midst of a robbery gone wrong. Trial counsel testified that he thought about this strategy and decided to implement it after the motion to suppress Harvey’s statement was denied. Trial counsel testified that he thought it was important to carry a consistent theme throughout both phases of the trial and believed this was Harvey’s best chance for a life sentence. In cases where counsel did conduct a reasonable investigation of mental health mitigation and then made a strategic decision not to present this information, this Court has affirmed the trial court’s finding that counsel’s performance was not deficient. See Asay v. State, 769 So.2d 974, 985 (Fla.2000). We agree with the trial court and find that trial counsel’s strategy was not unreasonable under the circumstances and did not fall outside the range of professional competent assistance.

B. Failure to Investigate and Present Other Mitigating Evidence

Harvey next argues that trial counsel was ineffective in failing to investigate and present the mitigating evidence of his personal background. We disagree becaüse the record supports the trial court’s findings and conclusion that counsel conducted a reasonable investigation and presented this evidence at the penalty phase proceeding. At the conclusion of the postconviction evidentiary hearing, the trial judge made the following findings in his order denying relief:

Mr. Watson met with Mr. Harvey’s mother and father and siblings and ate dinner in their home on two occasions. He felt they were good, decent people. He also obtained Mr. Harvey’s school records. He did not uncover any evidence that Harvey used or abused cocaine or marijuana or Quaaludes, that he drove an automobile drunk, or that his parents abused him. He determined that Harvey was involved in a very serious automobile accident at age 16 where he lost consciousness and a female companion was killed. He determined that Harvey had never been institutionalized.
During the penalty phase the defendant presented 16 witnesses including Dr. Petrilla who testified that he had been a state’s witness in earlier cases and that this was the first time he had testified in a death penalty case for a defendant.
The evidence including Dr. Petrilla’s testimony showed that Harvey was depressed, had low self-esteem and a mental age of 18 and physical age of 23, did not have brain damage, and was impulsive. Evidence was also presented that he was hard-working, from a good, decent family who would be negatively effected [sic] if he would be executed, that he had been a loving brother to his disabled sister, that the crime was out of character, and that he was pressured by his wife to provide things he could not financially do. Evidence showed that he was involved in the fatal accident at age 16 and would be able to adapt to a life sentence in prison.

Thus, it is evident that trial counsel presented much of the evidence that postcon-viction counsel has presented and that trial counsel presented the evidence that was uncovered during his investigation of this case.

As the trial judge found, sixteen witnesses testified on Harvey’s behalf at the penalty phase proceeding concerning his background and history. These witnesses included Harvey’s parents and siblings, who testified concerning Harvey’s history and background. Other witnesses who testified included family friends, family members, an employer, a coworker, and several teachers. In sum, the witnesses stated that Harvey had a normal childhood, was a loving son, brother, and friend, was generally a good person, and came from a loving and hard-working family. The jury viewed several childhood photographs of Harvey with his siblings, as well as home movies of various family outings. This evidence is consistent with the general theme that the murders were out of character for Harvey.

At the evidentiary hearing, Harvey presented witnesses who painted a new and different picture of his background, including extreme poverty, physical abuse, substance abuse, and mental problems. The evidence Harvey now presents supports an entirely different theory for the penalty phase. However, speculation that another theory of defense would have been more successful is not sufficient to establish the deficiency prong of Strickland. In Strickland, the Supreme Court stated that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 690, 104 S.Ct. 2052. See also Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (stating that “the deference owed such strategic judgments” under Strickland is defined “in terms of the adequacy of the investigations supporting those judgments”). The record clearly demonstrates that counsel conducted an adequate investigation into Harvey’s background, and that counsel presented the evidence that was discovered during his investigation to argue for a sentence less than death.

We therefore find that counsel’s performance was not deficient.

C. Other Alleged Penalty Phase Errors

Harvey next argues that trial counsel committed other penalty phase errors and that the cumulative effect of these errors warrants reversal. He claims that counsel failed to know the law relating to the mitigating factor of “no significant history of prior criminal activity,” that counsel conceded several aggravating factors, that counsel failed to investigate potential aggravating and mitigating factors, that counsel encouraged the introduction of irrelevant and highly prejudicial testimony, that counsel permitted nonstatutory aggravating evidence of lack of remorse, and that counsel failed to present evidence on Harvey’s behalf prior to sentencing.

Harvey claims that counsel should have waived the mitigating factor of lack of significant history of prior criminal activity because otherwise the State was allowed to present evidence of his escape from jail after his arrest on these charges. At the time of this trial, acts committed prior to sentencing and after the murder could be considered for purposes of sentencing. See Ruffin v. State, 397 So.2d 277, 283 (Fla.1981). In this case, the State was permitted to introduce evidence of Harvey’s escape. In fact, during the guilt phase of the trial, the State introduced evidence of the escape and the theft of a motor vehicle. Because this evidence had already been presented to the jury during the guilt phase, we agree with the trial court that counsel was not ineffective for failing to waive the mitigating factor of lack of significant criminal history.

Next, Harvey argues that trial counsel improperly attempted to distance himself from Harvey in arguments to the jury by expressing revulsion at what Harvey had done. The trial court reviewed the statements, and found that counsel’s final argument was a “well-organized plea for mercy.” This finding is supported by the record. Trial counsel argued that the killings were out of character for Harvey and emphasized that the killings occurred while Harvey was in a state of panic after the robberies were completed. Trial counsel also emphasized that there was no intent to kill at the time Harvey went to the Boyds’ home. At the evidentiary hearing, trial counsel explained that his strategy for the closing penalty phase argument was to use the guilt phase to set the toné for the penalty phase and to maintain consistency between both phases. The comments upon which Harvey relies were clearly part of counsel’s overall strategy to portray Harvey as a panicked young man who did not intend to commit murder. Trial counsel explained that given the jury’s decision to convict, he could not tell them that the decision was unreasonable. Rather, counsel acknowledged the verdict and then made a plea that Harvey was deserving of mercy.

Harvey relies heavily on Clark v. State, 690 So.2d 1280 (Fla.1997), in support of this claim. In Clark, this Court held that trial counsel failed to function reasonably as an effective counsel when he indicated his own doubts or distaste for the case and when he attacked the defendant’s character and emphasized the seriousness of the crime. - Id. at 1288. Furthermore, in Clark, trial counsel “virtually encouraged the jury to impose the death penalty, [and] he assisted the prosecution in making its case.” Id. In the case now before us, trial counsel did not encourage the jury to impose the death penalty, but instead maintained a consistent theme, pleading for mercy and a life sentence. Trial counsel’s performance was not deficient.

Harvey also argues that trial counsel’s failure to investigate potential aggravating and mitigating factors constituted ineffective assistance of counsel. He argues that counsel failed to investigate evidence concerning the heinous, atrocious, or cruel aggravating factor. Harvey bases this claim on the sentencing court’s finding that that the victims had, in fact, heard conversations between Harvey and his co-defendant about disposing of the witnesses. Harvey argues that trial counsel should have challenged this evidence because the television was- loud and one of the victims was hard of hearing. However, as the trial court found, the evidence that the victims began to run and the defendant’s own statement support the conclusion that the victims heard the conversation that , took place between Harvey and the codeferidant wherein they discussed killing the victims. Ineffective assistance of counsel has not been demonstrated.

Harvey also asserts that trial counsel should have pursued the theory that he was substantially dominated by the codefendant. The trial court found that counsel had requested a jury instruction on substantial domination and the request was denied. Counsel then decided not to argue that Harvey was under substantial domination by another because the evidence did not support this theory. Harvey was older than his codefendant, they went to the crime scene in Harvey’s car, Harvey was married with marital pressures, and Harvey was the shooter and took the automatic weapon from his codefendant’s hands immediately before shooting the victims. These findings are supported by the record. Trial counsel was not deficient for failing to argue the mitigating factor of substantial domination.

Harvey next claims trial counsel encouraged the introduction of irrelevant and highly prejudicial testimony. A guard at the Okeechobee County jail was allowed to testify concerning a statement made by Harvey to another inmate to the effect that he had killed twice, had nothing to lose, and would kill again. The trial judge ruled that only the first- part of the statement was admissible. However, defense counsel asked the trial judge to admit the entire statement. Defense counsel wanted to put the entire statement into context by explaining the circumstances under which it was made. Counsel questioned the officer about the statement and demonstrated that the other inmate initiated an altercation with Harvey. Counsel’s examination showed that Harvey had ignored the other inmate for one-half hour before the statement was made. Under these circumstances, we cannot say that counsel’s strategy in handling this matter amounted to ineffective assistance of counsel.

Next, Harvey asserts that trial counsel permitted the admission of non-statutory aggravating evidence of lack of remorse in violation of Randolph v. State, 562 So.2d 331 (Fla.1990). The record reflects that the defense relied on remorse as a mitigating factor during the penalty phase and the State attempted to rebut this factor. Even though the defense argued remorse as a mitigating factor, defense counsel nonetheless objected to the State presenting any evidence on lack of remorse. Counsel’s objection to the State’s evidence on lack of remorse was overruled. Thus, Harvey has failed to demonstrate ineffective assistance of counsel.

Finally, Harvey argues that trial counsel was ineffective because the sentencing occurred two hours after the jury-returned its advisory verdict, and trial counsel only said, “We know of no legal cause of non-sentencing.” Harvey argues that counsel was ineffective because he called no witnesses and made no argument for a life sentence. However, Harvey does not allege any new information that counsel could have presented at this stage. Thus, this claim is insufficiently pled, and Harvey has failed to demonstrate that trial counsel’s performance was deficient.

Because Harvey has failed to show that any of the alleged errors demonstrate both the deficiency and prejudice prongs of the test set forth in Strickland, there are no errors to consider cumulatively. As the trial court found, “[T]he overall and specific effects of Mr. Watson’s efforts were effective assistance of counsel.” We affirm the trial court’s order. See Downs v. State, 740 So.2d 506, 509 (Fla.1999) (holding that where allegations of individual error are without merit, a cumulative error argument based thereupon must also fail).

CONCLUSION

For the reasons set forth above, we affirm the trial court’s denial of postconviction relief.

It is so ordered.

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

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

ANSTEAD, J.,

concurring in part and dissenting in part.

While I concur in the majority opinion in many respects, including its decision to grant rehearing on the Nixon issue, I cannot concur in the majority’s ultimate conclusion that the defendant is not entitled to a new penalty phase proceeding. It is apparent that trial counsel’s conduct was deficient in numerous respects and that there was no genuine adversarial testing of the appropriate penalty to be imposed in this case.

First, as to the Nixon issue, it is apparent from the posteonviction proceedings that counsel’s conduct was deficient. In fact, counsel gave detailed testimony that his strategy was to demonstrate that the defendant was guilty at most of second-degree murder, a crime to which the death penalty does not apply. He testified that he probably told the defendant of this second-degree murder strategy and that it was this theory that he outlined in his opening statement. However, as detailed in the majority opinion, defense counsel did not. outline a second-degree murder case in his opening statement. Rather, as the majority explains, defense counsel conceded the defendant’s guilt to premeditated murder, i.e., first-degree capital murder. Unfortunately, this strategy of conceding guilt to two senseless killings permeated counsel’s performance. Counsel’s summations to the jury in the guilt and penalty phases simply demonstrated his inability to do much more than show his frustration at having to defend the case.

Second, counsel’s frustration may have been understandable if he had done a thorough job of investigating the defendant’s life for evidence of mitigation. However, he was content with a superficial investigation. For example, while counsel did consult with a psychologist, someone without a medical degree or license to practice medicine, he then proceeded to ignore the psychologist’s pointed and repeated advice that a medically trained and licensed psychiatrist be consulted. Of course, we now know because of the unrebutted evidence presented at the postconviction evidentiary hearing that had the psychiatrist been consulted, numerous and serious mental problems, including organic brain damage, would have been detected. In addition, the causes for these serious mental problems growing out of the defendant’s deprived and abusive childhood, and at least two major traumatic events, could have been properly developed and presented to the judge and jury, including evidence of several important statutory mitigators and extensive nonstatutory mitigation. But, due to counsel’s blatant neglect in heeding the psychologist’s advice, none of this powerful mitigating evidence was ever investigated, developed, or presented. As our death penalty jurisprudence makes clear, counsel’s duty is to thoroughly investigate first, and then evaluate in order to develop a sound defense strategy. We have a clear breach of counsel’s duty here and substantial prejudice as a result. In the face of an almost apologetic case for mitigation, the jury’s recommendation for death was virtually a certainty.

Finally, after the jury returned its recommendation of death, counsel essentially abandoned his client. Defense counsel presented absolutely no case for life to the true sentencer, the trial judge, and of course, the trial judge simply followed the jury’s recommendation. Because it is the trial court that does the actual sentencing, it is essential that counsel not abandon his client and that counsel be prepared to make a case for life to the trial court. That did not happen here.

I would hold that we cannot have confidence in the outcome of proceedings so infected by trial counsel’s neglect and ineffectiveness. While counsel’s neglect may ultimately have made no difference in the establishment of his guilt, the record in this case clearly establishes that the adversarial testing mandated by Strickland did not take place in the penalty phase proceedings of this case. We should remand for a new penalty phase, so that this essential adversarial testing can take place before a reasoned and informed judgment is rendered on life or death.

PARIENTE, C.J., concurs.

      . The murders were found to be (1) especially heinous, atrocious, or cruel; (2) committed for the purpose of avoiding lawful arrest; (3) committed in a cold, calculated, and premeditated manner; and (4) committed during the commission of or the attempt to commit robbery or burglary. Id. at 1087 n. 4, 104 S.Ct. 2052.

      . This Court affirmed the denial of Harvey's remaining rule 3.850 claims. See Harvey v. Dugger, 656 So.2d 1253 (Fla.1995).

      . In Harvey v. Dugger, 656 So.2d at 1256, we found the remainder of this claim to be procedurally barred, with the exception of the portion of the claim relating to the booking sheet, because the issue of the suppression of Harvey’s confession was raised on direct appeal and rejected by this Court.

      . Florida Rule of Criminal Procedure 3.171(c)(1) provides:
      Defense counsel shall not conclude any plea agreement on behalf of a defendant-client without the client's full and complete consent thereto, being certain that' any decision to plead guilty or nolo contendere is made by the defendant.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Michael A. PUSKAC, Respondent.
    No. SC04-988.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Rehearing Denied Jan. 9, 2007.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Michael A. Puskac, pro se, Arcadia, FL, for Respondent.
   PER CURIAM.

We have for review Puskac v. State, 872 So.2d 1008 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal cited with approval its decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), reh’g granted in part, 884 So.2d 950, 952 (Fla. 4th DCA 2004), quashed, 915 So.2d 86 (Fla.2005), and certified conflict with the Second District Court of Appeal’s decision in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), review denied, 920 So.2d 627 (Fla.2005) (table), and approved by State v. Richardson, 915 So.2d 86, 89 (Fla. 2005). At the time that the Fourth District Court of Appeal issued its decision in Puskac, both Richardson and McCall were pending review in this Court. We have jurisdiction. See art. Y, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in State v. Richardson, 915 So.2d 86 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Richardson.

It is so ordered.

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


author: CANTERO, J.

text:
    Robert Lavon SANDERS, Petitioner, v. STATE of Florida, Respondent. State of Florida, Petitioner, v. Solomon Willis, Respondent.
    Nos. SC03-640, SC03-642.
    Supreme Court of Florida.
    Oct. 12, 2006.
    Rehearing Denied Jan. 5, 2007.

      Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner in No. SC03-640.
    Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Tallahassee Bureau Chief Criminal Appeals, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, FL, for Respondent in No. SC03-640.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, James J. Carney and Claudine M. LaFrance, Assistant Attorneys General, West Palm Beach, FL, for Petitioner in No. SC03-642.
    Bianca G. Liston of Cabaniss, Smith, Toole and Wiggins, PL, Maitland, FL and James K. Clark of Clark, Robb, Mason, Coulombe, Buschman and Cecere, Miami, FL, for Respondent in No. SC03-642.
   CANTERO, J.

In this case, we consider whether a defendant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel for failing to request an instruction on a lesser-included offense. We have consolidated two cases for review, Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003), and Willis v. State, 840 So.2d 1135 (Fla. 4th DCA 2003), which conflict with each other. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we hold that a trial court may summarily deny such a claim. We approve the reasoning as well as the decision of the First District Court of Appeal, sitting en banc, in Sanders. We quash the decision of the Fourth District Court of Appeal in Willis.

I. FACTS AND PROCEDURAL HISTORY

Sanders and Willis were both charged with robbery with a firearm. The category-one lesser-included offenses of that crime are robbery with a weapon, robbery, and second-degree petit theft. The category-two lesser included offenses include attempt, grand and petit theft, battery, aggravated battery, assault, aggravated assault, display of a firearm, and resisting a merchant. See Fla. Std. Jury Inst. (Crim.) 15.1. In each case, the trial court gave various jury instructions on both permissive and necessarily lesser-included offenses to the charge. However, neither jury received an instruction on robbery with a weapon, a necessarily lesser-included offense. Sanders and Willis brought postconviction claims, alleging that trial counsel was ineffective for failing to request this instruction. In both cases, the trial court summarily dismissed the motions.

In Willis, the Fourth District reversed the dismissal and remanded for an eviden-tiary hearing. It held that “failure to request an instruction on a necessarily lesser-included offense is a legally sufficient ground to support an ineffective assistance of counsel claim.” Willis, 840 So.2d at 1136. The court cited its own precedent, Smith v. State, 807 So.2d 755 (Fla. 4th DCA 2002), to support this conclusion. It certified conflict with Sanders.

In Sanders, the First District upheld the trial court’s summary denial of Sanders’s motion. 847 So.2d at 506. It held that trial counsel’s failure to request a lesser-included offense does not create a reasonable probability that the jury, given the opportunity, would have returned a guilty verdict only as to the lesser offense. Id. at 508 (answering in the negative the certified question in Hill v. State, 788 So.2d 315 (Fla. 1st DCA 2001), revieiv denied, 807 So.2d 655 (Fla.2002)). The First District expressly receded from its earlier decisions holding otherwise. Id. (receding from McClendon v. State, 765 So.2d 247 (Fla. 1st DCA 2000); Hill, 788 So.2d at 315; Critton v. State, 668 So.2d 242 (Fla. 1st DCA 1996); Kennedy v. State, 637 So.2d 987 (Fla. 1st DCA 1994); and Bateson v. State, 516 So.2d 280 (Fla. 1st DCA 1987)). It certified conflict with Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000), Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995), and Newton v. State, 527 So.2d 876 (Fla. 2d DCA 1988). Sanders, 847 So.2d at 508.

II. ANALYSIS

The defendants in these cases argue that their defense counsel were constitutionally ineffective for failing to request jury instructions on lesser-included offenses. They further argue that, had counsel requested such instructions and the court agreed to give them, the juries possibly would have disregarded the evidence demonstrating their guilt of the greater crime and instead convicted them of the lesser-included offenses. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), however, the standards for determining ineffective assistance of counsel — specifically, the test for determining whether counsel’s deficient performance prejudiced the defendant’s case — preclude such speculation. As we will explain, under Strickland, a defendant cannot, as a matter of law, demonstrate prejudice by relying on the possibility of a jury pardon, which by definition assumes that the jury would have disregarded the law, the trial court’s instructions, and the evidence presented.

In the following discussion, we (A) outline the two-part test for ineffective assistance of counsel in Strickland, focusing on the prejudice prong; (B) explain the concept of jury pardons and why they are contrary to the law; and (C) conclude that the possibility of a jury pardon cannot establish prejudice under Strickland.

A. The Strickland Test

A defendant asserting ineffective assistance of counsel must prove two elements: “First, the defendant must show that counsel’s performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish deficiency, the defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. To establish prejudice, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in , the outcome.” Id.

As the Supreme Court has warned, to demonstrate prejudice “[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052. Rather, “the defendant must show that they actually had an adverse effect on the defense.” Id. In determining whether counsel’s alleged errors prejudiced the defendant,

a court should presume ... that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless decision-maker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncra-cies of the particular decisionmaker, such as unusual propensities toward harshness or leniency.

Id. at 694-95, 104 S.Ct. 2052. The Court’s admonitions seem especially apt in the context of potential jury pardons.

Our focus must begin with “the strong presumption of reliability” attached to the result of a proceeding. Id. at 696, 104 S.Ct. 2052. We must give proper weight to the jury’s verdict, especially when defendants do not assert any error in the jury’s finding of guilt beyond a reasonable doubt. As the Court states, we “should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Id. at 695, 104 S.Ct. 2052. Furthermore, as the Court warned, our approach must be based on logic, not “arbitrariness, whimsy, caprice, ‘nullification,’ ” or “the idiosyncra-cies of the particular decisionmaker.” Id.

B. Jury Pardons

A jury pardon is “the jury’s inherent power to pardon a defendant by convicting the defendant of a lesser offense.” State v. Estevez, 758 So.2d 1, 4 (Fla.1999) (internal quotation marks omitted); see also State v. Baker, 456 So.2d 419, 420-21 (Fla.1984) (defining a jury pardon as “the nonconstitutional right of ... giving the jury an opportunity to find the accused guilty of an offense lesser in severity of punishment than that with which he was charged”) (quoting Baker v. State, 425 So.2d 36, 53 (Fla. 5th DCA 1982) (Cowart, J., dissenting)). We have recognized the possibility of jury pardons in holding that “[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.” Reddick v. State, 394 So.2d 417, 418 (Fla.1981); see also State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) (“The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon -a recognition of the jury’s right to exercise its ‘pardon power.’ ”)

This “pardon power” allows the jury to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes. See, e.g., Amado v. State, 585 So.2d 282, 282-83 (Fla.1991) (reversing trial court’s refusal to instruct on the permissive lesser-included offense of simple drug possession on a charge of trafficking cocaine, even though the evidence overwhelmingly showed that the amount of drugs involved exceeded twenty-eight grams). The typical motivation for use of this power is mercy or leniency: “In its ultimate wisdom [the jury] has been given the power to ‘temper ... justice with mercy.’ If such be warranted, it can reduce the charge.... This is commonly known as [the] jury pardon.” Potts v. State, 430 So.2d 900, 903 (Fla.1982) (quoting John Milton, Paradise Lost, in 32 Great Books of the Western World 93, 276 (Robert Maynard Hutchins ed.1952)). The jury pardon checks the severity of the consequences required by law.

The Rules of Criminal Procedure have also incorporated the idea that the jury may ■ consider lesser-included offenses. For instance, Florida Rule of Criminal Procedure 3.490 now states, “If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence.” (Emphasis added.) Rule 3.510(b) also incorporates this idea into the determination of attempts and lesser-included offenses: “On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of ... any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged.... ”

Notwithstanding its role in the criminal justice system, however, the jury pardon remains a device without legal foundation. It is, as Judge Klein .aptly noted below, “essentially ‘a not guilty verdict rendered contrary to the law and evidence’ and is an aberration.” Willis, 840 So.2d at 1138 (Klein, J., concurring specially) (quoting Wimberly, 498 So.2d at 932 (Shaw, J., dissenting)).

By definition, jury pardons violate the oath jurors must take before trial, as well as the instructions the trial court gives them. In Florida; all jurors must swear to “truly try the issues between the State ... and the defendant and render a true verdict according to the law and the evidence.” Fla. R.Crim. P. 3.360 (emphasis added). After administering the oath, the trial court instructs the jury that its “verdict must be based solely on the evidence, or lack .of evidence, and the law” Fla. Std. Jury Instr. (Crim.) 2.1 (emphasis added). The court also apprises the jury of its “responsibility to decide what the facts of [the] case may be, and to apply the law to those facts.” Id. (emphasis added). Before the jury retires to deliberate, the court again reminds it that

it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case. Even if you do not like the laws that must be applied, you must use them. For two centuries we have lived by the constitution and the law. No juror has the right to violate rules we all share.

Fla. Std. Jury Instr. (Crim.) 3.13 (emphases added).

Although the jury also is instructed about lesser-included offenses, the instruction specifically allows the jury to consider a lesser-included offense only if it “de-cídete] that the main accusation has not been proved beyond a reasonable doubt.” Fla. Std. Jury Instr. (Crim.) 3.4. The United States Supreme Court restates these instructions as a simple duty: “Jurors ... take an oath to follow the law as charged, and they are expected to follow it.” United States v. Powell, 469 U.S. 57, 66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (citing Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)).

As shown above, the jury must anchor its verdict in, and only in, the applicable law and the evidence presented. Nothing else may influence its decision. When a jury convicts a defendant of a criminal offense, it has decided that the evidence demonstrated beyond a reasonable doubt that the defendant committed the crime charged. To assume that, given the choice, the jury would now acquit the defendant of the same crime of which it convicted him, and instead convict of a lesser offense, is to assume that the jury would disregard its oath and the trial court’s instructions. See Vickery v. State, 869 So.2d 623, 629 (Fla. 5th DCA 2004) (Sawaya, C.J., concurring specially) (“It is clear to me that when a jury grants a pardon to a defendant by finding him or her guilty of a lesser included offense when the state has proven guilt beyond a reasonable doubt regarding the offense charged ... the jury violates the oath it took and the instructions given it by the trial court.”); Willis, 840 So.2d at 1138 (Klein, J., concurring specially) (noting that jury pardons “are contrary to the evidence and the law”); Wimberly, 498 So.2d at 932 (Shaw, J., dissenting) (“The ultimate exercise of the jury pardon power is a not guilty verdict rendered contrary to the law and evidence, thus expressing the jury’s refusal to enforce a law of which it disapproves.”); In re Amendment to Rules of Criminal Procedure—3.890(a), 416 So.2d 1126, 1126-27 (Fla.1982) (Alderman, J., dissenting) (“A jury that returns a verdict contrary to the evidence based on feelings of prejudice, bias, or sympathy is an ‘outlaw1 jury, and its verdict will be a miscarriage of justice.”).

C. The Jury Pardon and Strickland’s Prejudice Prong

As noted above, despite their suspect pedigree, jury pardons have become a recognized part of the system; so much so that, in direct appeals, “[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.” Reddick, 394 So.2d at 418. Such a standard is appropriate on direct review because “it would be difficult for an appellate court to conclude beyond a reasonable doubt that a jury in a particular case, given the opportunity, would not disobey the law and grant a pardon.” Sanders, 847 So.2d at 507 (quoting Hill, 788 So.2d at 319).

Once the case is final, however, the standard drastically changes. We have emphasized that “once a conviction has been affirmed on direct appeal ‘a presumption of finality and legality attaches to the conviction and sentence.’ ” Goodwin v. State, 751 So.2d 537, 546 (Fla. 1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). As the First District noted below, “the test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance.” Sanders, 847 So.2d at 506 (quoting Hill, 788 So.2d at 318). “These differences clearly make reversal on direct appeal for the trial court’s failure to give an instruction on a requested lesser included offense logical, and relief granted in collateral.proceedings for trial counsel’s failure to request such an instruction illogical.” Vickery, 869 So.2d at 626 (Sawaya, C.J., concurring specially).

In these cases, we consider jury pardons, not in the context of direct appeals, but in the context of defendants seeking postconviction relief due to counsel’s alleged ineffectiveness. In considering this issue, we assume that an allegation that counsel failed to request an instruction on a lesser-included offense adequately states a claim of deficient performance. That is, at least the defendant is entitled to an evidentiary hearing on that element. The more problematic issue is whether, in such cases, a defendant can sufficiently allege prejudice.

As stated above, to prove that counsel’s deficient performance prejudiced the defense, a. defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. However, any finding of prejudice resulting from defense counsel’s failure to request an instruction on lesser-included offenses necessarily would be based ón a faulty premise: that a reasonable probability exists that, if given the choice, a jury would violate its oath, disregard the law, and ignore the trial court’s instructions. As did the district court in Sanders, we, too,

have difficulty accepting the proposition that there is even a, substantial possibility that a jury which has found every element of an offense proved beyond a reasonable doubt, would have, given the opportunity, ignored its own findings of fact and the trial court’s instruction on the law and found a defendant guilty of only a lesser included offense.

847 So.2d at 507 (quoting Hill, 788 So.2d at 319). As the Court warned in Strickland, a defendant has no entitlement to an aberrant jury — “ the luck of a lawless deci-sionmaker.” 466 U.S. at 695, 104 S.Ct. 2052. Thus, the defendants do not raise any issue that would undermine our confidence in their convictions. That is, they assert no error — either by their defense counsel or by the judge at trial — that calls into question the jury’s determination that they were guilty, beyond a reasonable doubt, of the crimes charged. The possibility of a jury pardon cannot form the basis for a finding of prejudice.

III. CONCLUSION

For the reasons stated above, we hold that, as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland. Therefore, a claim alleging ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied. We approve the reasoning as well as the denial of postconviction relief of the First District, sitting en banc, in Sanders. We quash the Fourth District’s decision in Willis.

It is so ordered.

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

LEWIS, C.J., and ANSTEAD, J., concur in result only.

      . In addition to the instruction on robbery with a firearm, Sanders’s jury received instructions on robbery (category-one lesser-included offense), attempt, assault, aggravated assault, and theft (all category-two offenses). Likewise, in Willis’s trial, the jury was instructed on robbery with a firearm, robbery (categoty-one lesser-included offense), aggravated assault, assault, and theft (all category-two lesser-included offenses).