author: PER CURIAM.

text:
    Paul Christopher HILDWIN, Appellant, v. STATE of Florida, Appellee.
    No. SC09-1417.
    Supreme Court of Florida.
    June 2, 2011.
    Rehearing Denied July 28, 2011.

      Martin J. McClain of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Kenneth Sloan Nunnel-ley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Paul Christopher Hildwin was convicted and sentenced to death in 1986 for the murder of Vronzettie Cox. This Court affirmed Hildwin’s conviction and sentence of death on direct appeal. Hildwin v. State (Hildwin I), 531 So.2d 124, 129 (Fla.1988). Hildwin was subsequently granted a new penalty-phase trial on the basis that his trial counsel rendered ineffective assistance for failing to adequately investigate, prepare, and present mitigating evidence. Hildwin v. Dugger (Hildwin II), 654 So.2d 107, 110-11 (Fla.1995). After the new penalty-phase proceeding was held in 1996, Hildwin was again sentenced to death, and this Court affirmed his sentence on direct appeal. Hildwin v. State (Hildwin III), 727 So.2d 193, 198 (Fla.1998). Hildwin then filed a motion for postconviction relief attacking his death sentence under Florida Rule of Criminal Procedure 3.850, which was denied by the trial court after an evidentiary hearing.

This appeal follows from the denial of postconviction relief alleging ineffective assistance of counsel in the second penalty-phase proceeding. For the reasons explained in this opinion, we affirm the trial court’s denial of Hildwin’s motion for post-conviction relief.

FACTS AND PROCEDURAL HISTORY

The following facts were set forth in this Court’s 1988 decision on direct appeal from the conviction and sentence:

Appellant was arrested after cashing a check purportedly written to him by one Vronzettie Cox, a forty-two-year-old woman whose body had been found in the trunk of her car, which was hidden in dense woods in Hernando County. Death was due to strangulation; she also had been raped. Evidence indicated she had been killed in a different locale from where her body was found. Her purse, from which some contents had been removed, was found in dense woods, directly on line between her car and appellant’s house. A pair of semen-encrusted women’s underpants was found on a laundry bag in her car, as was a sweat-stained wash rag. Analysis showed the semen and sweat came from nonsecretor (i.e., one who does not secrete blood into other bodily fluids). Appellant, a white male, was found to be a nonsecretor; there was testimony that white male nonsecretors make up eleven percent of the population.
The victim had been missing for four days when her body was found. The man she lived with, one Haverty, said she had left their home to wash clothes at a coin laundry. To do so, she had to pass a convenience store. Appellant’s presence in the area of the store on the date of her disappearance had come about this way: He and two women had gone to a drive-in movie, where they had spent all their money. Returning home early in the morning, their car ran out of gas. A search of the roadside yielded pop bottles, which they redeemed for cash and bought some gasoline. However, they still could not start the car. After spending the night in the car, appellant set off on foot at 9 a.m. toward the convenience store near the coin laundry. He had no money when he left, but when he returned about an hour and a half later, he had money and a radio. Later that day, he cashed a check (which he later admitted forging) written to him on Ms. Cox’s account. The teller who cashed the check remembered appellant cashing it and recalled that he was driving a car similar to the victim’s.
The check led police to appellant. After arresting him the police searched his house, where they found the radio and a ring, both of which had belonged to the victim. Appellant gave several explanations for this evidence and several accounts of the killing, but at trial testified that he had been with Haverty and the victim while they were having an argument, and that when Haverty began beating and choking her, he left. He said he stole the checkbook, the ring, and the radio. Haverty had an alibi for the time of the murder and was found to be a secretor.
Appellant made two pretrial statements that are pertinent here. One was a confession made to a cellmate. The other was a statement made to a police officer to the effect that Ms. Cox’s killer had a tattoo on his back. Haverty had no such tattoo, but appellant did.

Hildwin I, 531 So.2d at 125-26. Hildwin was convicted of first-degree murder. During the penalty phase, Hildwin did not present any mental health expert testimony, but did present lay witness testimony that “was quite limited.” Hildwin II, 654 So.2d at 110 n. 7. The testimony “revealed that Hildwin’s mother died before he was three, that his father abandoned him on several occasions, that Hildwin had a substance abuse problem, and that Hildwin was a pleasant child and is a nice person.” Id. Following the penalty phase, the jury unanimously recommended death. The trial court followed the jury’s recommendation, finding four aggravators and no mitigation. This Court affirmed Hildwin’s conviction and sentence on direct appeal. Hildwin I, 531 So.2d at 129.

Hildwin then filed a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850 and a habeas petition. See Hildwin II, 654 So.2d at 108. Among other things, Hildwin asserted that his counsel was ineffective for failing to investigate and present mitigating evidence. Id. at 109. Am evidentiary hearing was held in which Hildwin put on testimony from experts and lay witnesses to show that counsel’s investigation and presentation of evidence was deficient and constituted ineffective assistance of counsel. This Court agreed, noting that Hildwin had “presented an abundance of mitigating evidence which his trial counsel could have presented at sentencing,” including two mental health experts that the trial court found “most persuasive and convincing,” as well as “substantial lay testimony.” Id. at 110 & n. 8. This Court vacated Hildwin’s sentence of death and remanded for a new penalty-phase trial. Id. at 111.

The new penalty-phase trial was held in 1996. At the trial, Hildwin presented two mental health experts, Drs. Maher and Berland, who testified that Hildwin had a brain injury or impairment and was mentally ill. Lay witnesses also testified that Hildwin had a horrible childhood, which included physical and mental abuse inflicted by his father, suicide attempts, and abandonment and neglect.

After the new penalty-phase trial, the jury voted to recommend the death sentence by a vote of eight to four, and the trial court sentenced Hildwin to death. In its resentencing order, the trial court found four aggravators: (1) Hildwin was under a sentence of imprisonment at the time of the murder; (2) he had previously been convicted of prior violent felonies; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious, or cruel (HAC). Hildwin III, 727 So.2d at 194.

In contrast to the first penalty phase in which no mitigation was found, the trial court found two statutory mitigators, both of which it assigned “some weight”: (1) Hildwin was under the influence of an extreme mental 'or emotional disturbance at the time of the murder; and (2) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. Id. Finally, the trial court found five nonstatutory mitigators, all of which it also assigned “some weight”: (1) Hildwin had a history of childhood abuse, including sexual abuse by his father; (2) he had a history of drug or substance abuse; (3) he had organic brain damage; (4) he had the ability to do well in a structured environment like prison; and (5) his type of mental illness was readily treatable in a prison setting. Id.

In reviewing proportionality, this Court explained the trial court’s evaluation of the mitigation:

While the trial court accorded “some weight” to a variety of statutory and nonstatutory mitigators, the trial court explained at length why it did not find the psychological mitigating evidence to be particularly compelling:
There is also the problem of [the psychological experts] not having talked to sufficient people who knew the defendant around the time of the crime. Dr. Berland testified that he had talked to no one who knew the defendant after 1979, and thus didn’t talk to any people who had been around the defendant close to the time of the murder. John Hildwin, who presented perhaps the most emotional testimony as to the abuse his brother suffered as a child, indicated that he had not seen the defendant since 1971.
Next, it should be noted that the experts, though generally agreeing with each other, subtly differ with one another in their analysis. Dr. Maher opines that the defendant had an impaired ability to appreciate wrongness and conform his conduct based on a severe mental defect. Dr. Berland does not talk specifically about the defendant’s ability to appreciate the wrongfulness of his actions and to conform his action to the requirements of law, but is of the opinion that the defendant was mentally ill at the time of the crime. Dr. Berland believes that the defendant was under the influence of mental or emotional disturbance at the time of the crime; however, Dr. Berland was not able to say that the defendant was under the influence of “extreme” emotional disturbance at the time, but only classified the defendant as suffering from a “mild to moderate” condition. Dr. Maher says that the defendant was under the influence of an “extreme” mental or emotional defect at the time of the crime.
There is also a practical conflict between the opinions of the doctors, and the psychological picture they paint of the defendant, and with the way the defendant presented himself in court, as well as the way others who knew him close to the time of the crime described him. Dr. Maher spoke with a woman, Cynthia Wriston, who had known the defendant for some time and was with the defendant the night before the murder, who described the defendant as a “nice guy.” Dr. Ber-land testified that the defendant should not ever be properly described as “a nice guy.” Violet Hoyt described the defendant as “always polite.” She further said that Paul was okay around her, and never gave her any trouble. Henry Hoyt said the defendant was very nice to him whenever he saw him. Patricia Lee Hild-win, who married the defendant while he was in prison, testified that she had never seen the defendant hit anybody and never saw the defendant with a quick temper. She said that she never observed any truly bizarre behavior from the defendant. Dr. Berland had testified that [the] defendant would not have been fun to be around, and that he would have been an angry, irritable, volatile, explosive person.

Id. at 197-98. This Court affirmed the sentence on direct appeal. Id. at 198.

Hildwin filed a postconviction motion attacking the performance of his counsel in the second penalty-phase proceeding. The trial court granted an evidentiary hearing on the following two claims raised in the motion: (1) ineffective assistance of penalty-phase counsel for failing to investigate, prepare, and present mitigating evidence; and (2) ineffective assistance of penalty-phase counsel in failing to object to improper remarks made by the prosecutor in closing argument. At the evidentiary hearing, the following witnesses testified: Dr. Richard S. Greenbaum (an expert on posttraumatic stress disorder); Dr. Robert M. Berland (one of the mental health experts who testified at resentencing); William Hallman (resentencing co-counsel); and Richard Howard (resentencing lead counsel).

ANALYSIS

Hildwin raises two issues for this Court’s review: (1) ineffective assistance of penalty-phase counsel for failing to investigate, prepare, and present mitigating evidence, and (2) ineffective assistance of penalty-phase counsel in failing to object to improper remarks made by the prosecutor in closing argument.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

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 shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Schoenwetter v. State, 46 So.3d 535, 546 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

To establish the deficiency prong under Strickland, the defendant must prove that counsel’s performance was unreasonable under “prevailing professional norms.” Morris v. State, 931 So.2d 821, 828 (Fla.2006) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “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.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”

“Penalty phase prejudice under the Strickland standard is measured by whether the error of trial counsel undermines this Court’s confidence in the sentence of death when viewed in the context of the penalty phase evidence and the mitigators and aggravators found by the trial court.” Stewart v. State, 37 So.3d 243, 253 (Fla.2010) (quoting Hurst v. State, 18 So.3d 975, 1013 (Fla.2009)). That standard does not “require a defendant to show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of his penalty proceeding, but rather that he establish ‘a probability sufficient to undermine confidence in [that] outcome.’ ” Porter v. McCollum, _ U.S. _, 130 S.Ct. 447, 455-56, 175 L.Ed.2d 398 (2009) (alteration in original) (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052). “To assess that probability, [the Court] consider[s] ‘the totality of the available mitigation evidence ... ’ and ‘reweigh[s] it against the evidence in aggravation.’ ” Id. at 453-54 (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

As to the application of the Strickland standard in a case involving the presentation of mitigating evidence, the United States Supreme Court has explained:

We certainly have never held that counsel’s effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant. To the contrary, we have consistently explained that the Strickland inquiry requires [a] ... probing and fact-specific analysis....

Sears v. Upton, _ U.S. _, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010).

Both prongs of the Strickland test present mixed questions of law and fact. Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004). “In reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts.” Mungin v. State, 932 So.2d 986, 998 (Fla.2006).

I. Mitigating Evidence Claim

In this claim, Hildwin asserts that defense counsel was ineffective in various respects with regard to the investigation and presentation of mental health mitigation during Hildwin’s 1996 resentencing proceeding. Hildwin’s primary claims are that defense counsel were deficient for failing to call Dr. Carbonell, a clinical psychologist, as an expert witness and for failing to provide Dr. Berland with institutional records and sufficient information to contact certain lay witnesses. His argument is that there must have been ineffective assistance of counsel because in granting a new penalty phase this Court quoted the trial court’s statement that the expert mental health testimony was “most persuasive and convincing”; however, on re-sentencing, the trial court found fault with the mental health mitigation presentation, as outlined in the trial court’s sentencing order.

We begin our analysis of this claim by noting that this is Hildwin’s second penalty phase. Thus, Hildwin’s claim “must be analyzed in light of the fact that this was a resentencing and that his counsel, in preparing for the second penalty phase, had the advantage of analyzing the first penalty phase, which resulted in a sentence of death.” Derrick v. State, 983 So.2d 443, 458 (Fla.2008). At the first penalty phase, defense counsel did not present any mental health mitigation and very little in the way of mitigation by lay witnesses. The jury unanimously recommended death. In contrast, at resentenc-ing, two mental health experts testified, both of whom diagnosed Hildwin with brain damage and mental illness. Further, testimony was presented as to the horrific conditions of Hildwin’s childhood and the abuse inflicted by his father. The jury recommended death by a vote of eight to four.

Hildwin first contends that defense counsel were ineffective for failing to present Dr. Carbonell as an expert witness in the 1996 penalty phase. Dr. Carbonell testified at the 1992 evidentiary hearing on Hildwin’s initial postconviction motion from his first penalty phase, and her testimony was part of the basis on which this Court granted Hildwin the new penalty-phase proceeding. In support of this claim, Hildwin points out that in reversing for a new penalty phase, this Court noted that the trial court had found the testimony of the mental health experts offered at the 1992 evidentiary hearing—Drs. Maher and Carbonell—“most persuasive and convincing.” Hildwin II, 654 So.2d at 109 n. 8. In contrast, after the new penalty phase, the trial court found that the opinions of the experts — Drs. Maher and Berland—would be “based on extrapolation, speculation, and conjecture” regarding Hildwin’s state of mind at the time of the murder. Thus, Hildwin argues, defense counsel were ineffective for failing to present an expert that was previously found to be “most persuasive and convincing,” contending that counsel’s ineffectiveness is demonstrated by the markedly different conclusion reached after the new penalty phase in which Dr. Carbonell did not testify-

“[T]he defendant bears the burden of proving that counsel’s representation was unreasonable under prevailing professional standards and was not a matter of sound trial strategy.” Asay v. State, 769 So.2d 974, 984 (Fla.2000). Hildwin has not met that burden in this ease. Hildwin’s defense counsel testified at the evi-dentiary hearing that Dr. Carbonell would have been an unwilling and hostile witness at the 1996 penalty-phase proceeding if she were called to testify. As stated by the trial court in its order on this claim: “Clearly, defense counsel cannot be admonished for the strategic decision not to call an expert witness who openly admits that they would not be helpful to the defense.” We conclude that the decision not to call Dr. Carbonell to testify at the 1996 penalty-phase proceeding was a matter of sound trial strategy.

Hildwin argues that, in the alternative to presenting Dr. Carbonell as an expert witness, defense counsel was ineffective for failing to provide Dr. Berland with institutional records already in the court file — on which Dr. Carbonell based her expert testimony at the 1992 eviden-tiary hearing — as well as sufficient information to contact certain lay witnesses who knew Hildwin around the time of the murder. From a review of Dr. Berland’s testimony at the new penalty-phase proceeding, it appears that Dr. Berland was not given the institutional records or provided sufficient information as to the witnesses. He testified at the proceeding that he did not rely on any records or institutional records that predated the murder; he “had the opportunity to look at some prison records after his incarceration, but nothing before.” Further, he stated at resentencing that he had “tried very hard” to contact witnesses who knew Hildwin after 1979 (the murder took place in 1985), but “was unsuccessful in doing so.” At the evidentiary hearing on this claim, Dr. Berland testified that he had asked for information in order to contact the lay witnesses, but was told that they were unavailable. Defense counsel did not give an explanation at the evidentiary hearing for why Dr. Berland was not provided with the records or the means to contact the witnesses.

The State points to Dr. Berland’s testimony at the evidentiary hearing that he has since reviewed the institutional records and interviewed the lay witnesses and that his opinions and conclusions remain unchanged from his 1996 testimony. However, Hildwin is not arguing that Dr. Berland’s testimony would have been different, but rather that the jury and the trial court would have accorded more weight to the testimony. On cross-examination, the State was able to highlight Dr. Berland’s failure to review the records or speak with lay witnesses who knew Hild-win at the time of the murder. Hildwin also points to the trial court’s resentencing order, in which the court stated that the expert testimony had “the problem of not having talked to sufficient people who knew the defendant around the time of the crime,” specifically that “Dr. Berland testified that he talked to no one who knew the defendant after 1979, and thus didn’t talk to any people who had been around the defendant close to the time of the murder.”

We first note that Hildwin has not demonstrated that the witnesses were available to be contacted in 1996. In fact, the State moved to have the prior testimony of one of the witnesses read into the record because neither the State nor defense counsel had been able to find her. Further, none of the witnesses testified at the evi-dentiary hearing on this claim. Lastly, when Dr. Berland was finally able to interview the witnesses, he did not ask them whether they were available in 1996. If the witnesses were unavailable in 1996, defense counsel cannot be ineffective for failing to provide Dr. Berland with the means to contact them.

Assuming that defense counsel were deficient in not providing Dr. Ber-land with the institutional records and assuming that more weight would have been given to the mental health mitigation, Hildwin has still failed to demonstrate prejudice. Based on a review of the evi-dentiary hearings and the new penalty-phase trial, we conclude that in light of the aggravators and mitigators, Hildwin has not demonstrated that confidence in the outcome of the penalty-phase proceeding has been undermined. Porter, 130 S.Ct. at 455-56. Even with more weight given to the mitigation, there remain four aggravators: prior violent felony, murder committed while under a sentence of imprisonment, HAC, and pecuniary gain. The HAC and prior violent felony aggravators have been described as especially weighty or serious aggravators set out in the sentencing scheme. Frances v. State, 970 So.2d 806, 817 (Fla.2007) (describing prior violent felony aggravator as “especially weighty” (citing Ferrell v. State, 680 So.2d 390, 391 (Fla.1996))); Buzia v. State, 926 So.2d 1203, 1216 (Fla.2006) (describing HAC as one of the “most serious aggravators set out in the statutory sentencing scheme” (quoting Larkins v. State, 739 So.2d 90, 95 (Fla.1999))). Further, the trial court found in its resentencing order that the mitigators were “greatly outweighed” by the aggravators, noting in particular the “senselessness,” “needlessness,” “heartlessness,” and “callousness” of the murder:

Finally, the Court is struck by the stark senselessness and pure needlessness of the murder. At the time of the murder, it would appear that the defendant was decently situated materially. He had gotten out of prison and had relocated to Florida. While true that he was on parole, he lived a fairly normal life. He had a girlfriend, and he lived with his father in a mobile home in the woods. He was living like a normal citizen. The evidence of this case indicated that the defendant enjoyed the things that most of us enjoy, the company of friends, movies, and so forth. Yet the defendant was apparently not satisfied by this peaceful coexistence. For some strange reason, not nearly understandable, even given the intense psychological scrutiny to which the defendant has been subjected, the defendant decided to commit a senseless, wasteful, and unnecessary murder, apparently motivated primarily for economic gain. He brutally killed a young woman merely to acquire some money with which to put gas in his car, and for a few personal possessions with which to stock his bedroom. This ruthless, savage, cruel and unnecessary murder cannot be lawfully justified under any circumstances present in this case, even considering the mitigating factors present, and giving them some weight. It is true that the childhood of the defendant was horrible; the defendant had a history of substance and drug abuse; that based on the psychological experts he suffered from, organic brain damage; that he has the ability to do well in a structured setting; and that his type of mental illness is appropriate and treatable in a prison setting. Nevertheless, these mitigating factors are greatly outweighed by the heartlessness and callousness of the murder ofVronzettie Cox.

(Emphasis added.) Accordingly, we conclude that Hildwin has not demonstrated prejudice, and therefore his claim of ineffective assistance of counsel must fail.

II. Closing Argument Claim

Hildwin next contends that defense counsel Richard Howard was ineffective for failing to object to the following statements made by the State during closing argument:

In weighing the circumstances that are before you, it is the choices made by Paul Hildwin which far outweigh everything that had ever happened to him in his own life.
When he got out of that car on the side of the road without gas, he had a choice to make.
Paul Hildwin held Vronzettie Cox’s life in his balance. And on this side of the balance was Vronzettie Cox’s life. On this side of the balance was this cheap little radio, a pearl that she had gotten out of an oyster at Silver Springs and $75. And he weighed that against her life.
And for Vronzettie Cox, Paul Hildwin chose death and not life. And as we choose, our lives are formed. In choosing for Vronzettie Cox. [sic] Paul Hild-win chose for himself. He chose his own fate. And just as for Vronzettie Cox, he chose death and not life. Thank you, Your Honor.

(Emphasis added.) Specifically, Hildwin asserts that the statements were an improper eye-for-an-eye argument, analogous to a mercy argument, and an improper appeal to the sympathies of the jurors. At the evidentiary hearing on this claim, counsel testified that he made a strategic decision not to object to these comments.

In order to prevail on an ineffective assistance of counsel claim on this ground, Hildwin “must first show that the comments were improper or objectionable and that there was no tactical reason for failing to object.” Stephens v. State, 975 So.2d 405, 420 (Fla.2007). Second, he must demonstrate prejudice.

“Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” Merck v. State, 975 So.2d 1054, 1061 (Fla.2007). However, prosecutorial arguments that “unnecessarily] appeal to the sympathies of the jurors” are improper. Nowell v. State, 998 So.2d 597, 607 (Fla.2008). An example of an improper argument that unnecessarily appeals to the sympathies of the jurors is the “mercy” argument, in which a prosecutor argues that the jury should show the defendant the same mercy that the defendant showed the victim. See id. “This Court has consistently held that it is improper during closing argument for the prosecutor to encourage the jury to show a defendant the same amount of mercy as he showed his victim because such argument tends to unnecessarily appeal to the sympathies of the jury.” Conahan v. State, 844 So.2d 629, 640-41 (Fla.2003).

Even assuming that the argument was improper, we conclude that Hildwin has failed to demonstrate prejudice. This Court has previously stated that “a mercy argument standing alone does not constitute reversible error.” Merck, 975 So.2d at 1062 (citing Reed v. State, 875 So.2d 415, 438 (Fla.2004)). In that case, this Court concluded that no relief was warranted where “the mercy comments were not dwelled upon or emphasized in the context of the entire closing.” Id. Here, while the prosecutor at length described the choices that Hildwin had made in his life, the arguably improper comments— that by choosing death for the victim, Hild-win chose death for himself — are relatively brief and not emphasized by the prosecutor. Accordingly, we conclude that Hild-win has not demonstrated prejudice on this claim and thus his claim of ineffective assistance of counsel must fail.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of Hildwin’s motion for postconviction relief.

It is so ordered.

CANADY, C.J., and PARIENTE, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

      . Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction. See art. V, § (b)(1), Fla. Const.

      . The following claims raised in the motion were summarily denied: (1) violations of chapter 119, Florida Statutes, because various agencies have not furnished public records to the records repository or to defense counsel; (2) ineffective assistance of penalty-phase counsel for failing to investigate, prepare, and present evidence regarding the circumstances of the offense; (3) ineffective assistance of penalty-phase counsel for failing to request an instruction pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), pertaining to Hildwin’s ineligibility for parole; (4) the death sentence was based on consideration of two invalid aggravating circumstances and penalty-phase counsel was ineffective in failing to request a limiting instruction on the same; (5) the resentencing jury was preconditioned to recommend death because the jury heard that Hildwin had been previously found guilty, and penalty-phase counsel was ineffective for failing to request an instruction pursuant to Hitchcock v. State, 673 So.2d 859 (Fla.1996), to advise the resentencing jury on its proper role; (6) Florida’s death penalty statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (7) Hildwin may be incompetent at the time of execution.

      . William Hallman and Richard Howard are now circuit court judges.

      . We reject the State's contention that Hild-win has abandoned or waived the claims at issue in this case. The delay between the filing of the postconviction motion and the evidentiary hearing was caused by the unique and unusual procedural posture of this case. While the postconviction motion at issue was pending in the trial court, DNA testing was conducted on two items found at the crime scene. The DNA test excluded Hildwin as the source of the DNA profile found on the items, and Hildwin moved for postconviction relief on the basis of the test results. The trial court denied relief, and this Court agreed in a four-three decision, holding that "[ajlthough the newly discovered DNA evidence is significant, this evidence is not ‘of such nature that it would probably produce an acquittal on retrial.’ " Hildwin v. State (Hildwin IV), 951 So.2d 784, 789 (Fla.2006).
      The DNA results are also the subject of a pending all-writs petition in this Court, which seeks to have the DNA profile compared to DNA profiles in CODIS (the FBI-maintained national DNA databank) and the Florida statewide databank for the purpose of identifying the source of the DNA. See Hildwin v. State, No. SC10-1082 (Fla. pet. filed June 9, 2010).

      . Hildwin summarily contends that defense counsel was ineffective for failing to supervise the investigator and in rushing both experts. These claims were not raised below and thus are procedurally barred. See Green v. State,
        975 So.2d 1090, 1104 (Fla.2008). We further conclude that they are without merit.
      Hildwin also summarily asserts that defense counsel was ineffective for failing to develop and present evidence of posttraumatic stress disorder (PTSD) and organic brain damage. As to PTSD, Hildwin presented the expert testimony of Dr. Greenbaum at the evidentia-ry hearing, who diagnosed Hildwin with PTSD. However, Dr. Greenbaum’s testimony was vague and nonspecific, and he could not connect the diagnosis to the murder. Further, Hildwin does not assert how the failure to develop and present evidence of PTSD prejudiced him. As to the organic brain damage claim, we first note that the trial court found organic brain damage as a nonstatutory miti-gator. Second, Hildwin has not demonstrated deficiency or prejudice as to this claim.

      . To the extent that Hildwin asserts that defense counsel should have presented Dr. Car-bonell’s prior testimony from the 1992 evi-dentiary hearing in lieu of her live testimony, the record reflects that defense counsel attempted to do so; however, their motion to use her prior testimony was denied by the trial court.

      . Hildwin suggests that this Court should consider in its prejudice analysis the DNA test results that exclude Hildwin as the source of the DNA profile found at the crime scene. However, the DNA results go to the issue of guilt, and this Court has previously made it clear that lingering doubt is not a valid mitigating circumstance. Reynolds v. State, 934 So.2d 1128, 1152 (Fla.2006).

      . Defense counsel did not object at any point during the State’s closing argument.


source: Caselaw Access Project

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA RULES OF APPELLATE PROCEDURE.
    No. SC11-192.
    Supreme Court of Florida.
    Nov. 8, 2011.
    John G. Crabtree, Chair, Appellate Court Rules Committee, Crabtree and Associates, P.A., Key Biscayne, FL, John F. Harkness, Jr., Executive Director, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Judge Mark King Leban, Eleventh Judicial Circuit, Miami, FL; Harvey Ruvin, Clerk of Courts, Miami-Dade County, Miami, FL; Michael A. Catalano, P.A., Miami, FL; Michael R. Rollo, P.A., Pensacola, FL, Responding with comments.
   PER CURIAM.

The Appellate Court Rules Committee (Rules Committee) has filed its regular-cycle report of proposed rule changes in accordance with Florida Rule Judicial of Administration 2.140(b)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Rules Committee proposes amendments to existing rules 9.100(b) (Original Proceedings); 9.110(b) (Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases); 9.120(b) (Discretionary Proceedings to Review Decisions of District Courts of Appeal); 9.125 (Review of Trial Court Orders and Judgments Certified by the District Courts of Appeal as Requiring Immediate Resolution by the Supreme Court); 9.130 (Proceedings to Review Non-Final Orders and Specified Final Orders); 9.140 (Appeal Proceedings in Criminal Cases); 9.150 (Discretionary Proceedings to Review Certified Questions from Federal Courts); 9.160 (Discretionary Proceedings to Review Decisions of County Courts); 9.180 (Appeal Proceedings to Review Workers’ Compensation Cases); 9.190 (Judicial Review of Administrative Action); 9.200(b)(4) (The Record; Transcript(s) of Proceedings); 9.225 (Notice of Supplemental Authority); 9.870 (Amicus Curiae); 9.420 (Filing; Service of Copies; Computation of Time); and 9.800 (Uniform Citation System). The Rules Committee also proposes new rule 9.170 (Appeal Proceedings in Probate and Guardianship Cases) and new form 9.900(j) (Notice of Supplemental Authority), which corresponds to its proposed amendments to rule 9.225.

The Rules Committee proposed new and amended rules; it published the proposals for comment in accordance with rule 2.140(b)(2). Three comments were received and considered by the Rules Committee. The Florida Bar Board of Governors unanimously approved the proposals.

The Court published the proposals for comment and received four comments: one comment addressing amendments to rule 9.140; one comment addressing new rule 9.170; and two comments addressing proposed amendments to rule 9.420. The Rules Committee filed a response, which includes revised proposed amendments for rules 9.140 and 9.420, respectively.

AMENDMENTS

Oral argument was held on the proposals. Having considered the Committee’s proposals, the comments, and the responses, and having heard oral argument, we adopt the new rules and the amendments, with modifications to the proposal for rule 9.140 as explained below.

Rule 9.140(d)(1)(E) (Appeal Proceedings in Criminal Cases; Withdrawal of Defense Counsel After Judgment and Sentence or After Appeal by State) is amended to recognize the recently created Office of Criminal Conflict and Civil Regional Counsel and to clarify the procedures regarding representation in criminal cases. We modify the proposed amendment because chapter 27, Florida Statutes, provides that private counsel may be appointed by court order and compensated with public funds. See § 27.40(7)(a), Fla. Stat. (2011).

Accordingly, we amend the Florida Rules of Appellate Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. These amendments shall become effective on January 1, 2012, at 12:01 a.m.

It is so ordered.

CANADY, C.J. and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 9.100. ORIGINAL PROCEEDINGS

(a) [No change]

(b) Commencement; Parties. The original jurisdiction of the court shall be invoked by filing a petition, accompanied by a-filing fee ifany filing fees prescribed by law, with the clerk of the court deemed to have jurisdiction. If the original jurisdiction of the court is invoked to enforce a private right, the proceeding shall not be brought on the relation of the state. If the petition seeks review of an order entered by a lower tribunal, all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents.

(c)-(d) [No Change]

(e) Exception; Petitions for Writs of Mandamus and Prohibition Directed to a Judge or Lower Tribunal. When a petition for a writ of mandamus or prohibition seeks a writ directed to a judge or lower tribunal, the following procedures apply:

(1) Caption. The name of the judge or lower tribunal shall be omitted from the caption. The caption shall bear the name of the petitioner and other parties to the proceeding in the lower tribunal who are not petitioners shall be named in the caption efas respondents.

(2)-(3) [No change]

(fHO [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES

(a) Applicability. This rule applies to those proceedings that

(1) [No change]

(2)seek review -of-orders-entered — ⅛ probate and - guardianship-matter-s-that finally determine a right or- obligation of an interested person as defined-in-the ■F-lorida- Probate-Code;

(g)(2) seek review of administrative action described in rules 9.030(b)(1)(C) and (c)(1)(C); and

(4)(3) seek review of orders granting a new trial in jury and non-jury civil and criminal cases described in rules 9.130(a)(4) and 9.140(c)(1)(C).

(b)-(n) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 9.120. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL

(a) [No change]

(b) Commencement. The jurisdiction of the supreme court described in rule 9.030(a)(2)(A) shall be invoked by filing 2 copies of a notice, accompanied by tfaeany filing fees prescribed by law, with the clerk of the district court of appeal within 30 days of rendition of the order to be reviewed.

(c)-(f) [No change]

Committee Notes

[No change]

RULE 9.125. REVIEW OF TRIAL COURT ORDERS AND JUDGMENTS CERTIFIED BY THE DISTRICT COURTS OF APPEAL AS REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT

(a)-(f) [No change]

(g) Procedure When Supreme Court Accepts Jurisdiction. The jurisdiction of the supreme court attaches on rendition of the order accepting jurisdiction. If the supreme court accepts jurisdiction, it shall so order and advise the parties, the clerk of the district court, and the clerk of the lower tribunal. The clerk of the district court in possession of the record shall transfer the record in the case to the supreme court within 10 days thereafter. The time limitations of the applicable-jur-is-dictional rule will continue in-effect, ■ except thatThe supreme court shall issue a briefing schedule and all papers formerly required to be filed in the district court shall be filed in the supreme court. If the supreme court denies .jurisdiction, it shall so order and advise the parties and the clerk of the district court.

Committee Notes

[No change]

RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS

(a) Applicability.

(l)-(2) [No change]

(3) Appeals to the district courts of appeal of non-final orders are limited to those that

(A)-(B) [No change]

(C) determine

(i)-(vi) [No change]

(vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law; — or

(viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001 (6)(a), Florida Statutes; or

(ix) the issue of forum non conve-niens.

(D) [No change]

(4) — (6) [No change]

(b) Commencement. The jurisdiction to seek review of orders described in subdivisions (a)(3)-(a)(6) shall be invoked by filing 2 copies of a notice, accompanied by theany filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.

(c)-(h) [No change]

Committee Notes

[No change]

RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES

(a)-(c) [No change]

(d) Withdrawal of Defense Counsel after Judgment and Sentence or after Appeal by State.

(1) The attorney of record for a defendant in a criminal proceeding shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed:

(A)-(D) [No change]

(E)in publicly funded defense and state appeals, when the lower tribunal has entered an order appointeding the office of the public defender for the local circuit court, the district office of criminal conflict and civil regional counsel, or private counsel as provided by chapter 27, Florida Statutes, that office, or attorneywho- shall initially remain counsel for the appeal until the record is transmitted to the appellate court. In publicly funded state appeals, defense counsel shall additionally file inwith the appellate court a copy of the lower tribunal’s order appointing the local public defender, the office of criminal conflict and civil regional counsel, or private counsel. In non-publicly funded defense and state appeals, retained appellate counsel shall file a notice of appearance in the appellate court, or defense counsel of record shall file a motion to withdraw in the appellate court, with service on the defendant, that states what the defendant’s legal representation on appeal, if any, is expected to be. Documents filed in the appellate court shall be served on the attorney general (or state attorney in appeals to the circuit court).

(2) [No change]

(e) [No change]

(f) Record.

(1) Service. The clerk of the lower tribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal. However, the clerk shall not serve the record until all proceedings designated for transcription have been transcribed by the court reporter(s) and filed with the clerk. If the designated transcripts have not been filed by the date required for service of the record, the clerk shall file with the appellate court, and serve on all parties and any court reporter whose transcript has not been filed, a notice of inability to complete the record, listing the transcripts not yet received. In cases where the transcripts are filed after a notice from the clerk, the clerk shall prepare and file the record within 20 days of receipt of the transcripts. An order granting an extension to the court reporter to transcribe designated proceedings shall toll the time for the clerk to serve this notice or the record on appeal.

(2)-(6) [No change]

(g)-(i) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 9.150. DISCRETIONARY PROCEEDINGS TO REVIEW CERTIFIED QUESTIONS FROM FEDERAL COURTS

(a) Applicability. On either its own motion or that of a party, the Supreme Court of the United States or a United States court of appeals may certify one or more a questions of law to the Supreme Court of Florida if the answer is determinative of the cause and there is no controlling precedent of the Supreme Court of Florida.

(b) Certificate. The — certificate—shah containThe question(s) may be certified in an opinion by the federal court or by a separate certificate, but the federal court should provide the style of the case, a statement of the facts showing the nature of the cause and the circumstances out of which the questions of law arise, and the questions of law to be answered. The certificate shall be prepared-as-directed by the federal court. — It shall-be certified to the Supreme Court of Florida by the clerk of the federal court.

(c) [No change]

(d) Briefs. The-br-ief of the party designated-by- the federal court as the moving-party shall be -served-within-20 days of the filing of the certificate. — Additional-briefs shall be served — as prescribed by rule 9r2IQJf the Supreme Court of Florida, in its discretion, requires briefing, it will issue an order establishing the order and schedule of briefs.

(e) Costs. The costs of these -proceedings shall be divided-equally between the parties unless otherwise-ordered by the coarkThe taxation of costs for these proceedings is a matter for the federal court and is not governed by these rules.

Committee Notes

[No change]

RULE 9.160. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF COUNTY COURTS

(a) [No change]

(b) Commencement. Any appeal of an order certified by the county court to be of great public importance must be taken to the district court of appeal. Jurisdiction of the district court of appeal under this rule shall be invoked by filing 2 copies of a notice and a copy of the order containing certification, accompanied by tfaeany filing fees prescribed by law, with the clerk of the lower tribunal. The time for filing the appeal shall be the same as if the appeal were being taken to the circuit court.

(c)-(j) [No change]

Committee Notes

[No change]

RULE 9.170. APPEAL PROCEEDINGS IN PROBATE AND GUARDIANSHIP CASES

(a) Applicability. Appeal proceedings in probate and guardianship cases shall be as in civil cases, except as modified by this rule.

(b) Appealable Orders. Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Orders that finally determine a right or obligation include, but are not limited to, orders that:

(1) determine a petition or motion to revoke letters of administration or letters of guardianship;

(2) determine a petition or motion to revoke probate of a will;

(3) determine a petition for probate of a lost or destroyed will;

(4) grant or deny a petition for administration pursuant to section 733.2123, Florida Statutes;

(5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made;

(6) remove or refuse to remove a fiduciary;

(7) refuse to appoint a personal representative or guardian;

(8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward;

(9) determine a motion or petition to restore capacity or rights of a ward;

(10) determine a petition to approve the settlement of minors’ claims;

(11) determine apportionment or contribution of estate taxes;

(12) determine an estate’s interest in any property;

(13) determine exempt property, family allowance, or the homestead status of real property;

(14) authorize or confirm a sale of real or personal property by a personal representative;

(15) make distributions to any beneficiary;

(16) determine amount and order contribution in satisfaction of elective share;

(17) determine a motion or petition for enlargement of time to file a claim against an estate;

(18) determine a motion or petition to strike an objection to a claim against an estate;

(19) determine a motion or petition to extend the time to file an objection to a claim against an estate;

(20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate;

(21) settle an account of a personal representative, guardian, or other fiduciary;

(22) discharge a fiduciary or the fiduciary’s surety;

(23) award attorneys’ fees or costs; or

(24) approve a settlement agreement on any of the matters listed above in (1) — (28) or authorizing a compromise pursuant to section 733.708, Florida Statutes.

(c) Record; Alternative Appendix. An appeal under this rule may proceed on a record prepared by the clerk of the lower tribunal or on appendices to the briefs, as elected by the parties within the time frames set forth in rule 9.200(a)(3) for designating the record. The clerk of the lower tribunal shall prepare a record on appeal in accordance with rule 9.200 unless the appellant directs that no record shall be prepared. However, any other party may direct the clerk to prepare a record in accordance with rule 9.200. If no record is prepared under this rule, the appeal shall proceed using appendices pursuant to rule 9.220.

(d) Briefs. The appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220 (if applicable), shall be served within 70 days of filing the notice of appeal. Additional briefs shall be served as prescribed by rule 9.210,

(e) Scope of Review. The court may review any ruling or matter related to the order on appeal occurring before the filing of the notice of appeal, except any order that was appealable under this rule. Multiple orders that are separately appealable under rule 9.170(b) may be reviewed by a single notice if the notice is timely filed as to each such order.

RULE 9.180. APPEAL PROCEEDINGS TO REVIEW WORKERS’ COMPENSATION CASES

(a) [No change]

(b) Jurisdiction.

(l)-(3) [No change]

(4) Notice of Appeal. The notice shall be substantially in the form prescribed by rule 9.900(a) or (c), and shall contain a brief summary of the type of benefits affected, including a statement setting forth the time periods involved which shall be substantially in the following form:

I hereby certify that this appeal affects only the following periods and classifications of benefits and medical treatment:

1. Compensation for.(TTD, TPD, wage loss, impairment benefits, PTD, funeral benefits, or death benefits). from.(date).to.(date).

2. Medical benefits.

3. Rehabilitation.

4. Reimbursement from the SDTF for benefits paid from.(date). to.(date).

5. Contribution for benefits paid from.(date).to.(date).

(c)-(e) [No change]

(f) Record Contents: Final Orders.

(1) — (5) [No change]

(6) Preparation — of—RecordTran-script(s) of Proceedings.

(A) Selection of Reporter by Lower Tribunal, The-lewer tribunal shall supervise-the-preparation of the rec-—The lower tribunal or-deputy chief judge of compensation claims shall select the reporter or transcriber to prepare the recordtranscribe any hearing(s). The deputy chief judge who makes the selection shall give the parties notice of the selection.

(B) [No change]

(C) Certification of Record Transcript by Court Reporter or Transcriber. The reporter or transcriber designated by the lower-tribunal or deputy chief judge of compensation claims shall transcribe, certify and deliver all necessary copiesan electronic version of the record transcripts) to the lower-tr-ibunal as required — under-these rulesclerk of the office of the judges of compensation claims. The reeordtranscript(s) shall be delivered in sufficient time for the lower tribunal clerk of the office of the judges of compensation claims to review-incorporate transcript(s) in the recordand send it to-the court. The reporter or transcriber shall promptly notify all parties in writing when the recor4transcript(s) is delivered to the lower tribunalclerk of the office of the judges of compensation claims.

(D)-Certification-and-Transmittal by Lower -Tribunal, — The lower tribunal shall review the original-record, certify that it-was-prepared in accordance — with these rules, and within 60 days of the notice-of-appeal being filed transmit the record to the-cour-t,

(E) Copies. The lower tribunal shall provide a copy of the record-to all counsel of record-and all unrepresented -parties.

(7) Preparation, Certification, and Transmittal of the Record. The deputy chief judge of compensation claims shall designate the person to prepare the record. The clerk of the office of the judges of compensation claims shall supervise the preparation of the record. The record shall be delivered to the lower tribunal in sufficient time for the lower tribunal to review the record and send it to the court. The lower tribunal shall review the original record, certify that it was prepared in accordance with these rules, and within 60 days of the notice of appeal being filed transmit the record to the court. The lower tribunal shall provide an electronic image copy of the record to all counsel of record and all unrepresented parties.

(7)(8) Extensions. For good cause, the lower tribunal may extend by no more than 30 days the time for filing the record with the court. Any further extension of time may be granted by the court.

(g)(9) Applicability of Rule 9.200. Rules 9.200(a)(3), (c), and (f) shall apply to preparation of the record in appeals under this rule.

(g)-(i) [No change]

Committee Notes

1996 Adoption. [No change]

2011 Amendments. Subdivision (b)(4) was amended to provide for the use of form 9.900(c) in appeal of non-final orders.

Subdivisions (f)(6) and (f)(7) were amended to conform to section 440.29(2), Florida Statutes, providing that the deputy chief judge, not the lower tribunal, is authorized to designate the manner in which hearings are recorded and arrange for the preparation of records on appeal. Moreover, it provides statewide uniformity and consistency in the preparation of records on appeal by incorporating electronic and other technological means to promote efficiency and cost reduction. Currently the electronic version of the transcript is the Portable Document Format (PDF).

RULE 9.190. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

(a) [No change]

(b) Commencement.

(1) An appeal from final agency action as defined in the Administrative Procedure Act, chapter 120, Florida Statutes, including immediate final orders entered pursuant to section 120.569(2)(n), Florida Statutes, or other administrative action for which judicial review is provided by general law shall be commenced- in accordance with rule 9.110(c).

(2) Review of non-final agency action under the Administrative Procedure Act, including non-final action by an administrative law judge, under the-Administrative Procedure Act and agency orders entered pursuant to section 120.60(6), Florida Statutes shall be commenced by filing a petition for review in accordance with rules 9.100(b) and (c).

(3) [No change]

(c) The Record.

(1) [No change]

(2) Review of Final Action Pursuant to the Administrative Procedure Act.

(A)-(E) [No change]

(F) In an appeal from an immediate final order entered pursuant to section 120.569(2)(n), Florida Statutes, the record shall be compiled in an appendix pursuant to rule 9.220 and served with the briefs.

(3)-(6) [No change]

(d) [No change]

(e) Stay Pending Review.

(1)[No change]

(2) Application for Stay Under the Administrative Procedure Act.

(A) [No change]

(B) When an agency has ordered emergency suspension, restriction, or limitations of a license under section 120.60(6), Florida Statutes, or issued an immediate final order under section 120.569(2)(n), Florida Statutes, a licensee-the affected party may file with the reviewing court a motion for stay on an expedited basis. The court may issue an order to show cause and, after considering the agency’s response, if timely filed, grant a stay on appropriate terms.

(C)-(D) [No change]

(3) — (4) [No change]

Committee Notes

1996 Amendment. [No change]

2000 Amendment. [No change]

2004 Amendment. [No change]

2011 Amendment. Subdivisions (b)(1) and (b)(2) were amended to clarify the procedures for seeking judicial review of immediate final orders and emergency orders suspending, restricting, or limiting a license. Subdivision (c)(2)(F) was added and subdivision (c)(2) was amended to clarify the record for purposes of judicial review of immediate final orders.

RULE 9.200. THE RECORD

(a) [No change]

(b) Transcript(s) of Proceedings

(l)-(3) [No change]

(4)If no report of the proceedings was made, or if the transcript is unavailable, the appellanta party may prepare a statement of the evidence or proceedings from the best available means, including the appellanfeparty’s recollection. The statement shall be served on the appelleeall other parties, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement or approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

(c)-(g) [No change]

Committee Notes

[No change]

RULE 9.225. NOTICE OF SUPPLEMENTAL AUTHORITY

Notices of supplemental authority may be filed with the court before a decision has been rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that have been discovered after the last brief served in the cause. The notice shall not contain argument, but may identify briefly the pointsissues argued on appeal to which the supplemental authorities are pertinent but shall not contain-argument jf the notice is substantially in the form prescribed by rule 9.900(j). Copies of the supplemental authorities shall be attached to the notice.

Committee Notes

1996 Adoption. [No change]

2011 Amendment. When filing a notice of supplemental authority, attorneys and parties are encouraged to use pinpoint citations to direct the court to specific pages or sections of any cited supplemental authority.

RULE 9.370. AMICUS CURIAE

(a)-(b) [No change]

(c) Time for Service. An amicus curiae must serve its brief no later than 510 days after the first brief, petition, or response of the party being supported is servedfiled. An amicus curiae that does not support either party must serve its brief no later than 510 days after the initial brief or petition is servedfiled. A court may grant leave for later service, specifying the time within which an opposing party may respond. The service of an amicus curiae brief does not alter or extend the briefing deadlines for the parties. An amicus curiae may not file a reply brief.

(d) [No change]

Committee Notes

[No change]

RULE 9.420. FILING; SERVICE OF COPIES; COMPUTATION OF TIME

(a) [No change]

(b) Service.

(1) By a Party or Amicus Curiae. All original papers shall be filed either before service or immediately thereafter. A copy of all documents filed under these rules shall, before filing or immediately thereafter, be served on each of the parties. The lower tribunal, before the record is transmitted, or the court, on motion, may limit the number of copies to be served.

(2) By the Clerk of Court. A copy of all orders and decisions shall be transmitted, in the manner set forth for service in rule 9.420(c), by the clerk of the court to all parties at the time of entry of the order or decision, without first requiring payment of any costs for the copies of those orders and decisions. Prior to the court’s entry of an order or decision, the court may require that the parties furnish the court with stamped, addressed envelopes for transmittal of the order or decision.

(c)-(f) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

RULE 9.800. UNIFORM CITATION SYSTEM

This rule applies to all legal documents, including court opinions. Except for citations to case reporters, all citation forms should be spelled out in full if used as an integral part of a sentence either in the text or in footnotes. Abbreviated forms as shown in this rule should be used if the citation is intended to stand alone either in the text or in footnotes.

(a)-(b) [No change]

(c) Florida Circuit Courts and County Courts.

(1) — (2) [No change]

(3)For opinions not published in Florida Supplement, cite to Florida Law Weekly Supplement: State v. Campean, 16 Fla. L. Weekly Supp. C65 (Fla. 9th Cir.Ct. Nov. 7, 1990). If not therein, cite to the slip opinion: State v. Cam-pean, No. 90-4363 (Fla. 9th Cir.Ct. Nov. 7, 1990).

(d) Florida Administrative Agencies. (Cite if not in Southern Reporter.)

(l)-(2) [No change]

(3) For-deeisions of all other agencies; Insurance Co. v. Department of Ins., 2 F.A.L.R. 648-A (Fla. Dept. of Insurance 1980). For decisions posted on the Division of Administrative Hearings’ website: Big Bend Hospice, Inc, v. Agency for Health Care Administration, Case No. 01-4415 CON (Fla. DOAH Nov. 7, 2002; Fla. AHCA Apr. 8, 2003).

(4) For decisions that are not posted on the Division of Administrative Hearings’ website but are reported in the Florida Administrative Law Reports: Insurance Co. v. Dep’t of Ins., 2 F.A.L.R. 648-A (Fla. Dep’t of Ins. 1980).

(5)For orders that are not posted on the Division of Administrative Hearings’ website or reported in one of the above reporters: In re Town of Inglis Petition for Waiver, Final Order No. 07-0590 (Fla. PEP Apr. 12, 2007) (available from the agency clerk).

(e)-(h) [No change]

(i) Florida Rules.

Fla. R. Civ. P. 1.180.

Fla. R. Jud. Admin. 2.110.

Fla. R.Crim. P. 3.850.

Fla. R. Work. Comp. P. 4.113.

Fla. Prob. R. 5.120.

Fla. R. Traf. Ct. 6.165.

Fla. Sm. Cl. R. 7.070.

Fla. R. Juv. P. 8.070.

Fla. R.App. P. 9.100.

Fla. R. Med. 10.100.

Fla. R. Arb. 11.010.

Fla. Fam. L.R.P. 12.010.

Fla. Admin. Code R. 62D-2.014.

R. Regulating Fla. Bar 4-1.10.

Fla. Bar Found. By-Laws, art. 2.19(b).

Fla. Bar Found. Charter, art. Ill, § 3.4.

Fla. Bar Integr. R., art. XI, § 11.09.

Fla. Jud. Qual. Comm’n R. 9.

Fla. Std. Jury Instr. (Civ.) 6.4(c)601.4.

Fla. Std. Jury Instr. (Crim.) 2.03.

Fla. Std. Jury Instr. (Crim.) Robbery.

Fla. Stds. Imposing Law. Sanes. 9.32(a).

Fla. Bar Admiss. R. 3-23.1.

(j)-(p) [No change]

Committee Notes

1977 Adoption. [No change]

1992 Amendment. [No change]

2011 Amendment. Subdivision (d)(3) was revised and subdivisions (d)(4) and (d)(5) were added to reflect changes in how agencies are publishing their decisions. Section 120.53(2)(a), Florida Statutes, was revised in 2008 to allow agencies to electronically transmit their decisions to the Division of Administrative Hearings for posting on the Division’s website in lieu of publishing them in an official reporter. Additionally, recommended and final orders in cases heard by the Division are available on the Division’s website, www. doah.state.fl.us. See § 120.57(l)(m), Fla. Stat. Final orders in cases not heard by the Division or electronically submitted to the Division by an agency for posting on the Division’s website or published in a reporter should be available from the agency that issues the order.

RULE 9.900. FORMS

(a)-(i) [No change]

(j) Notice of Supplemental Authority

.(Title of Court).

Case No.: ,)

Appellant/Petitioner,) ) v.) ) )

Appellee/Respondent.)

NOTICE OF SUPPLEMENTAL AUTHORITY

[Appellant/Petitioner] [Appellee/Respon-dent], ., submits as supplemental authority the [decision/rule/statute/other authority] of _, a copy of which is attached to this notice. The supplemental authority is pertinent to the issue on appeal identified as _ and [discussed on pages of the . brief] [raised at oral argument].

Attorney for.(name of party).

.(address and phone number).

Florida Bar No.

Committee Notes

[No change]

      . There was no opposition to the proposals at oral argument.

      . Section 27.40(7)(a) provides:
      A private attorney appointed by the court from the registry to represent a client is entitled to payment as provided in s. 27.5304. An attorney appointed by the court who is not on the registry list may be compensated under s. 27.5304 if the court finds in the order of appointment that there were no registry attorneys available for representation for that case.


text:
    Gary M. DIRK, Petitioner, v. STATE of Florida, Respondent.
    No. SC08-6.
    Supreme Court of Florida.
    March 1, 2012.
    James S. Purdy, Public Defender, Ailene S. Rogers and James R. Wulchak, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review Dirk v. State, 969 So.2d 1170 (Fla. 5th DCA 2007), in which the Fifth District Court of Appeal certified conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005). We have jurisdiction. See art. V, § (3)(b)(4), Fla. Const.

We stayed proceedings in this case pending disposition of Isaac. See State v. Isaac, 66 So.3d 912 (Fla.2011). We thereafter issued an order directing petitioner to show cause why this Court’s decisions in State v. Fleming, 61 So.3d 399 (Fla.2011), and State v. Isaac, 66 So.3d 912 (Fla.2011), are not controlling in this case and why the Court should not decline to exercise jurisdiction in this case. Upon review of the responses, we have determined to exercise jurisdiction. Accordingly, we grant the petition for review in the present case and quash the decision under review. This matter is therefore remanded to the Fifth District Court of Appeal for further proceedings.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.