source: Caselaw Access Project

author: PER CURIAM. POLSTON, J.,

license: Public Domain

text:
    Timothy A. ROBINSON, Appellant, v. STATE of Florida, Appellee. Timothy A. Robinson, Petitioner, v. Kenneth S. Tucker, etc., Respondent.
    Nos. SC09-1860, SC10-695.
    Supreme Court of Florida.
    July 12, 2012.

      Bill Jennings, Capital Collateral Regional Counsel, Mark S. Gruber and Maria Perinetti, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, and Stephen Richard White, Assistant Attorney General, Tallahassee, FL, for Appel-lee/Respondent.
   PER CURIAM.

Timothy Robinson appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentences of death filed under Florida Rule of Criminal Procedure 3.850. Robinson also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons set out in greater detail below, we reverse the circuit court’s denial of postconviction relief as it pertains to Robinson’s claim of ineffective assistance of counsel during the penalty phase. Specifically, we conclude that counsel rendered ineffective assistance by failing to investigate, develop, and present available mitigating evidence that would have legally precluded the trial court from overriding the jury’s life recommendation. We therefore vacate Robinson’s death sentences and remand for the imposition of sentences of life in prison. We deny Robinson’s petition for writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

The following facts were set forth in this Court’s opinion on direct appeal in the case of Robinson’s co-defendant, Michael Coleman:

Michael Coleman, Timothy Robinson, and brothers Bruce and Darrell Frazier were members of the “Miami Boys” drug organization, which operated throughout Florida. Pensacola members of the group moved a safe containing drugs and money to the home of Michael McCormick from which his neighbors Derek Hill and Morris Douglas stole it. Hill and Douglas gave the safe’s contents to Darlene Crenshaw for safekeeping.
Late in the evening of September 19, 1988[,] Robinson, Coleman, and Bruce Frazier, accompanied by McCormick, pushed their way into Hill and Douglas’ apartment. They forced Hill and Douglas, along with their visitors Crenshaw and Amanda Merrell, as well as McCormick, to remove their jewelry and clothes and tied them up with electrical cords. Darrell Frazier then brought Mildred Baker, McCormick’s girlfriend, to the apartment. Robinson demanded the drugs and money from the safe and, when no one answered, started stabbing Hill. Crenshaw said she could take them to the drugs and money and left with the Fraziers. Coleman and Robinson each then sexually assaulted both Merrell and Baker.
After giving them the drugs and money, Crenshaw escaped from the Frazi-ers, who returned to the apartment. Coleman and Robinson then slashed and shot their five prisoners, after which they and the Fraziers left. Despite having had her throat slashed three times and having been shot in the head, Mer-rell freed herself and summoned the authorities. The four other victims were dead at the scene.
Merrell and Crenshaw identified their abductors and assailants through photographs, and Coleman, Robinson, and Darrell Frazier were arrested eventually. A grand jury returned multiple-count indictments against them, charging first-degree murder, attempted first-degree murder, armed kidnapping, armed sexual battery, armed robbery, armed burglary, and conspiracy to traffic. Among other evidence presented at the joint trial, the medical examiner testified that three of the victims died from a combination of stab wounds and gunshots to the head and that the fourth died from a gunshot to the head. Both Crenshaw and Merrell identified Coleman, Robinson, and Frazier at trial, and Merrell identified a ring Coleman gave to a girlfriend as having been taken from her at the apartment. Several witnesses testified to drug dealing in Pensacola and to the people involved in that enterprise. Coleman and Robinson told their alibis to the jury with Coleman claiming to have been in Miami at the time of these crimes and Robinson claiming he had been in New Jersey then.

Coleman v. State, 610 So.2d 1283, 1284-85 (Fla.1992) (footnotes omitted).

Following the guilt phase of trial, the jury found Robinson guilty on all counts. See Robinson v. State, 610 So.2d 1288, 1289 (Fla.1992). At the penalty phase, trial counsel presented the testimony of Dr. James Larson, a psychologist who interviewed Robinson on two separate occasions, and Robinson’s mother, Mary Robinson. The jury returned a life recommendation. Subsequently, at a Spencer-like hearing, trial counsel presented character letters on Robinson’s behalf to the trial judge. The trial court ultimately disagreed with the jury’s recommendation and sentenced Robinson to death. Id. In its sentencing order, the trial court found the following aggravating circumstances: (1) Robinson was previously convicted of a violent felony; (2) the capital felonies were committed during a robbery, sexual battery, burglary, and kidnapping; (8) the capital felonies were committed to avoid or prevent a lawful arrest; (4) the capital felonies were especially heinous, atrocious, or cruel (HAC); (6) the capital felonies were cold, calculated, and premeditated, and committed without any pretense of moral or legal justification (CCP). Id. at 1291. In mitigation, the trial court found only that Robinson had maintained close family ties and had been supportive of his mother. Id. at 1292.

On direct appeal, Robinson raised several claims, most of which were denied by this Court. Id. at 1289-92. As to his claim that the trial court erred in overriding the jury’s life recommendation, we held that the “potential mitigating evidence presented in this case [did] not provide a reasonable basis for the jury’s recommendation.” Id. at 1292. Further, while we agreed with Robinson’s claim that the evidence did not support the avoid arrest aggravator, we held that the striking of this aggravator did not alter our conclusion as to the override because there was no reasonable likelihood that the trial court would have concluded that the mitigating evidence outweighed the four valid aggravators. Id.

On January 18, 2000, Robinson filed an initial Rule 3.850 motion for postconviction relief, which was subsequently amended, raising various claims. The trial court granted an evidentiary hearing on Robinson’s claim that trial counsel was ineffective for failing to investigate and present mitigation in the penalty phase. In a written order entered September 4, 2009, the trial court denied this claim and all other claims for relief. We now review Robinson’s appeal from the trial court’s denial of his postconviction motion and Robinson’s accompanying petition for writ of habeas corpus.

ANALYSIS

In his first claim under Rule 3.850, Robinson argues that counsel rendered ineffective assistance in failing to investigate and present mitigating evidence. In the portion of its order addressing this claim, the trial court found that the testimony presented during the postconviction evidentia-ry hearing was largely repetitious of the testimony presented at the original penalty phase proceedings. While acknowledging that the postconviction testimony discussed Robinson’s troubled background in greater detail, the trial court denied the claim of ineffective assistance, relying on this Court’s decisions in Lynch v. State, 2 So.3d 47, 71 (Fla.2008), and Darling v. State, 966 So.2d 366, 377 (Fla.2007). In those cases, this Court rejected ineffective assistance claims in part because the evi-dentiary hearing testimony was merely a more detailed presentation of mitigation than what was presented during the penalty phase. The trial court found that in Robinson’s case, the jury and the court were presented with evidence that Robinson was a perpetual witness to violence, that he grew up impoverished and in a crime-ridden neighborhood, and that he spent his childhood in a chaotic environment. The trial court also observed that the testimony of Robinson’s father could have been harmful to Robinson, and noted that the testimony of Ivory Baker, who formerly dated Robinson’s sister, suggests ed that the family seemed well-adjusted when the father was “taken out of the equation,” and that Mary Robinson was a “very good mother.” The trial court concluded that even if the additional testimony had been presented at trial, the record would still reveal facts suggesting a sentence of death to be so clear that “no reasonable person could differ.”

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.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted).

Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

There is a strong presumption that trial counsel’s performance was not deficient. See Strickland, 466 U.S. at 690, 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.” Id. 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 explained 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.” With these standards in mind, we now address Robinson’s ineffective assistance of trial counsel claim.

Deficiency

In arguing that counsel’s penalty phase performance was deficient, Robinson asserts that the defense did not employ a mitigation expert, did not request additional funding for mitigation beyond what was paid to Dr. Larson, did not obtain any institutional records regarding Robinson, and did not obtain any information regarding the Okeechobee Boys’ Home, where Robinson was placed for a time as a juvenile. Moreover, Robinson argues that defense counsel failed to provide Dr. Larson with background information and failed to conduct additional investigation despite indications from Dr. Larson that such investigation was needed. Finally, Robinson contends that trial counsel did not request additional time from the court to conduct a mitigation investigation and failed to seek out family and friends who could have provided important mitigation. In light of these allegations, it is clear that the crux of Robinson’s ineffective assistance claim rests on counsel’s failure to investigate possible mitigation.

Pursuant to Strickland, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 691, 104 S.Ct. 2052. “[A]n attorney’s obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated because this is an integral part of a capital case.” State v. Pearce, 994 So.2d 1094, 1102 (Fla.2008). In a failure to investigate claim, “a court must examine not only counsel’s alleged failure to investigate and present possibly mitigating evidence, but the reasons for doing so.” Schoenwetter v. State, 46 So.3d 535, 555 (Fla.2010) (quoting Jones v. State, 998 So.2d 573, 582 (Fla.2008)). “When evaluating claims that counsel was ineffective for fading to investigate or present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness deprived the defendant of a reliable penalty phase proceeding.” Henry v. State, 937 So.2d 563, 569 (Fla.2006) (quoting Asay v. State, 769 So.2d 974, 985 (Fla.2000)).

Based on the evidentiary testimony presented concerning Robinson’s troubled background, we conclude that counsel failed to conduct an adequate investigation into available mitigation. At the evidentia-ry hearing, counsel testified that he did not believe anyone on the defense team examined the court files of Robinson’s pri- or record. Moreover, counsel did not obtain a mitigation expert in the case. In addition, counsel had a concern that not much information was provided to Dr. Larson, yet counsel failed to assert that he took any steps to alleviate this concern. Although counsel could not remember many details about his preparation for Robinson’s penalty phase, counsel noted that the record speaks for itself.

As discussed above, counsel presented two witnesses at the penalty phase for Robinson: Dr. Larson and Mary Robinson. Dr. Larson testified that Robinson had a chaotic childhood. Mary, Robinson’s mother, testified that the family lived in a crime-ridden neighborhood when Robinson was young, that Robinson did not have a relationship with his father, that Robinson observed his father being violent towards his mother, breaking her jaw on one occasion, that his father, Edward Robinson, Sr., told Robinson that he was not his father, and that Robinson’s brother was killed. Mary Robinson further testified that Robinson attended church and Bible college, but that she suspected Robinson was on drugs. After the presentation of mitigating evidence to the jury, defense counsel presented several character letters at the Spencer-Wke. hearing, which spoke of Robinson’s good qualities.

This testimony and evidence pales in comparison to the postconviction testimony. At the evidentiary hearing, Robinson presented testimony from the following witnesses: Ivory Baker, who formerly dated the defendant’s sister and spent significant time at the Robinson home; Gloria Baker, Ivory Baker’s mother; Richard De-lancey, the defendant’s uncle and Edward Robinson, Sr.’s younger brother; Edward Robinson, Jr., the defendant’s older brother; Marjorie Hammock, the former Director of Social Work for South Carolina who conducted a biopsychosocial evaluation of the defendant; Dr. Marvin Dunn, a community psychologist and retired teacher from Florida International University who performed an assessment of the impact of community factors and external factors on the defendant’s life; and Dr. James Larson, the mental health expert who testified at the defendant’s penalty phase. The court was also presented with the perpetuated testimony of Edward Robinson, Sr.

The investigation performed for the evi-dentiary hearing revealed the following: Edward Robinson, Sr. (hereinafter “Edward”) often threatened to kill the entire family; Edward introduced the defendant to drugs; Edward was often under the influence of drugs such as cocaine and heroin and was emotionally damaged from drug use; Edward was high around the children, although they never saw him use cocaine; Edward and at least two of the defendant’s brothers were drug dealers; Edward glorified drug dealing in front of his children; there were guns in the Robinson home; the defendant’s family made the children fight each other; the defendant was exposed to illegal activity by his older brother; the defendant used alcohol, marijuana, cocaine, pills, and Quaaludes; the defendant attended an alternative school; the defendant was sent to a group home where there was ongoing physical and sexual abuse, although no evidence was presented that the defendant was personally abused; and the defendant was beaten by his father with two-by-fours, sticks, extension cords, and his fists. None of the above evidence was presented through Mary Robinson’s penalty phase testimony, Dr. Larson’s testimony, or the character letters.

As to the testimony concerning the defendant’s background, counsel had a valid reason for presenting Mary Robinson as a penalty phase witness. Mary Robinson was presented because she raised the defendant and the defense hoped to garner sympathy with her testimony. Counsel assumed that Mary knew the defendant best. Counsel’s error does not lie in the decision to present Mary Robinson as a witness, but rather in the failure to investigate potential mitigation from other witnesses who knew the defendant. Although counsel believed that Mary knew the defendant best, and made a strategic decision to present her as a witness, the record does not indicate that he attempted to investigate additional witnesses. An effort to obtain other witnesses, such as social worker Marjorie Hammock, would have been beneficial. Hammock’s testimony indicated that Mary may not have been the best witness to testify as to the defendant’s background because victims of abuse such as Mary tend to minimize their experiences.

This Court is “cognizant of the danger in assessing the adequacy of counsel’s investigation and preparation through the distorting lens of hindsight and take[s] care to evaluate the performance through counsel’s perspective at the time.” Blackwood v. State, 946 So.2d 960, 973 (Fla.2006) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). However, counsel’s strategic decisions are reasonable only if based on information resulting from a reasonable investigation conducted by counsel. See Wiggins v. Smith, 539 U.S. 510, 524, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“[C]ounsel were not in a position to make a reasonable strategic choice ... because the investigation supporting their choice was unreasonable.”). Here, it is clear that counsel made the strategic decision to use Mary Robinson as the sole witness concerning Robinson’s childhood before conducting a full investigation.

Moreover, counsel was not prevented from conducting a full investigation. The State argues that counsel did not have to investigate child abuse because Robinson did not report child abuse to Dr. Larson. The State also claims that in this case “reasonable professional judgments supported] the limitations on investigation.” Wiggins, 539 U.S. at 533, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). In addition, the State asserts that Robinson gave counsel “reason to believe that pursuing certain investigations would be fruitless or even harmful,” and that “counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” Reed v. State, 640 So.2d 1094, 1097 (Fla.1994) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). However, the record does not indicate that Robinson prevented counsel from pursuing other mitigation. Although Dr. Larson testified that Robinson was not fully cooperative with his evaluation, counsel testified at the evidentiary hearing that Robinson “cooperated with [counsel] — no question.” Further, Dr. Larson’s indication that Robinson was not an adequate historian should have prompted counsel to investigate other sources of information to obtain sufficient and accurate facts concerning Robinson’s background.

A review of the record demonstrates that this case is distinguishable from other cases where the lack of a full investigation was due to the defendant’s actions or requests. See, e.g., Brown v. State, 894 So.2d 137, 147 (Fla.2004) (“[T]he shortcomings of the penalty phase arose mainly from [the defendant’s] strict instructions to counsel not to speak to family members other than his mother. This lack of cooperation at the penalty phase undermines [the defendant’s] present allegations of ineffective assistance of counsel.”); Cherry v. State, 781 So.2d 1040, 1052 (Fla.2000) (“[W]hile counsel appears to have failed to give [the psychiatrist] sufficient information upon which to base an evaluation, counsel testified at the hearing that he would have given [the psychiatrist] everything within his possession, which in this case was apparently very little because of [the defendant’s] alleged lack of cooperation.”); Sims v. State, 602 So.2d 1253, 1257-58 (Fla.1992) (concluding that counsel could not be considered ineffective for honoring the defendant’s wishes where the defendant directed counsel not to collect other mitigating evidence).

Further investigation would have uncovered the mitigation that was presented at Robinson’s evidentiary hearing. The trial court found, and the State argues in this appeal, that the postconviction testimony was merely repetitive of information presented during Robinson’s penalty phase. It is true that counsel will not be held to be ineffective for failing to present evidence that is duplicative of evidence presented at the penalty phase. See Darling, 966 So.2d at 378. However, evidence presented at the evidentiary hearing was not merely more detailed or cumulative, it was new evidence. For example, testimony that Robinson grew up in a crime-ridden neighborhood does not reveal that he witnessed a murder at the age of five years old. Testimony that Robinson’s mother suspected he was on drugs is not as persuasive as testimony that Robinson used cocaine in addition to other illegal substances. Testimony that Robinson did not have a relationship with his father does not indicate that Edward glorified illegal activities to his children and physically abused Robinson. In light of the major differences between the penalty phase and postconviction testimony, it is clear that this case does not fall into the category of cases where postconviction counsel has presented cumulative evidence. See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1353 (11th Cir.2011) (concluding that post-conviction testimony was not cumulative of testimony presented during the penalty phase where penalty phase testimony by the defendant’s mother “did not begin to describe the horrible abuse testified to by [the defendant’s] brother and sister” during postconviction proceedings).

The trial court also relied on the post-conviction testimony of Ivory Baker and the perpetuated testimony of Edward Robinson, Sr. in rejecting Robinson’s ineffective assistance claim. As to witness Baker, the trial court mischaracterized his testimony. According to the order denying postconviction relief, Baker suggested that the family seemed well-adjusted when the father was taken out of the equation. Yet, according to testimony from both Baker and Dr. Dunn, Edward ivas never fully out of the equation. Specifically, Baker testified that even when Mary and the children moved to another house, Edward was at the new house “off and on.” In addition, Baker believed that Mary had a problem ending her relationship with Edward. Dr. Dunn testified that “[i]n a way, Mary Robinson never left Ed, Sr., and, in a way, she may still be with him, which is typical of [a] battered woman. Many of them find it difficult to break the relationship even though it’s very painful for them.” Indeed, although Baker and Dr. Dunn testified that Mary was a good and loving mother, Dr. Dunn concluded that Mary “was a passive, ineffective, battered woman, who did not have the strength, emotionally or in any other way, to protect her children from the ongoing trauma that they lived all their young lives.”

In regards to Robinson’s father, the trial court concluded that his perpetuated testimony could have been harmful to Robinson if presented at the penalty phase. The court noted that Edward characterized Robinson as cruel, mean and very aggressive, and that Edward opined that Robinson seemed to enjoy fighting and got into the most trouble out of all the children. Moreover, although not noted by the trial court, Edward stated that Robinson shot at a vehicle when Edward and Robinson’s siblings were' in the vehicle. However, Edward’s testimony would not have substantially harmed Robinson if presented in conjunction with the other postconviction testimony. Edward’s negative view of Robinson would have undoubtedly been tempered with the consistent accounts that Edward himself was cruel, mean and abusive. Moreover, Edward also accused Dr. Dunn of attempting to sleep with Mary. Thus, Edward’s observations and perceptions are questionable and point more towards a diagnosis of paranoia, as Dr. Dunn suggested. In light of the above, the content of statements by Baker and Edward do not undermine Robinson’s assertion that this evidence could have been presented during his penalty phase proceeding.

Although the majority of the postconviction testimony was not presented at Robinson’s penalty phase, it cannot be ignored that counsel did present some additional mitigation to the trial court after the penalty phase presentation to the jury. The State emphasizes that after the jury recommendation, counsel obtained twelve character letters from various individuals pleading with the trial court to spare Robinson’s life. Robinson asserts that counsel was deficient in failing to present additional mitigating evidence. As to this point, the case of Williams v. State, 987 So.2d 1 (Fla.2008), is instructive.

Ronald Lee Williams, the head of a Florida drug trafficking ring, was the individual who sent Robinson, Frazier and Coleman to retrieve the stolen drugs and money. See Williams v. State, 622 So.2d 456, 458 (Fla.1993). Robinson, Frazier and Coleman were tried, convicted, and sentenced before Williams’ trial. See Williams, 987 So.2d at 5. Williams was convicted and received a life recommendation by an 11-1 jury vote. Id. at 5-6. The trial court found the following six aggravating circumstances: (1) Williams was previously convicted of another capital felony, the murder of the other three victims; (2) the murders were committed while Williams was an accomplice in a robbery, sexual battery, burglary, and kidnapping; (3) the murders were committed for the purpose of avoiding arrest; (4) the murders were committed for pecuniary gain; (5) the murders were HAC; and (6) CCP. Id. at 6. The court found one nonstatutory mitigator: Williams was loving to his son and mother. Id. On direct appeal, this Court struck the HAC and avoid arrest aggravators, but affirmed the death sentence because there was only “miniscule” evidence of mitigation. Id.

During Williams’ subsequent postconviction proceedings, Williams alleged that counsel was deficient in failing to present mitigating evidence. In concluding that counsel rendered deficient performance, we observed that even under ordinary circumstances defense counsel is obligated to investigate and present mitigating evidence. Id. at 13. We explained, however, that where there is a “known and substantial risk of override, defense counsel’s responsibility to investigate and present mitigating evidence [is] heightened.” Id. In Williams’ case, we found that although trial counsel was aware that the trial judge overrode Robinson’s, Frazier’s and Coleman’s life recommendations, counsel failed to present extensive, available mitigation concerning Williams’ abusive childhood, history of substance abuse, and mental impairments. Id. at 5,11-12.

Similarly, in this ease, counsel was specifically cautioned that this Court had a history of affirming life overrides in the absence of substantial factual mitigation. In a letter addressed to trial counsel dated June 5, 1989, Chief Assistant Public Defender Terry D. Terrell stated:

I thought you should be aware that Judge Geeker has the attached Memorandum in Support of Jury Recommendation of Life before him for his consideration in the Vernon Ray Cooper case. I have spelled out the long line of recent authority supporting upholding life recommendations.
It is significant to note that in the absence of substantial factual mitigation the Florida Supreme Court has been affirming life overrides.
I think you should share this information with the counsel for the co-defendants in your case. It will be extremely important to detail specific factual mitigation arising from the evidence relating to guilt or from the information supplied before the jury in mitigation. It may also be necessary for you to supply additional factual mitigation for the trial court that goes beyond that presented to the jury. The Court is allowed to consider information outside the presence of the jury.
As you may see from a reading of these cases, providing an evidentiary basis for the jury’s recommendation is crucial.

Thus, counsel was placed on notice that failing to provide at a minimum “specific factual mitigation arising from the evidence relating to guilt or from the information supplied before the jury in mitigation” increased the risk of a jury override.

Moreover, unlike in Williams, counsel in Robinson’s case had the additional opportunity to present mitigation evidence to the trial judge before Robinson was sentenced. After the jury rendered its advisory sentence, the trial court stated, “I want to hear from you any additional information you had for me particularly in the way of any mitigating factors or circumstances you want to articulate for me to consider — in considering an appropriate sentence in this case.” Rather than expand on what was presented to the jury and conduct further investigation into Robinson’s troubled childhood, counsel provided character letters which merely affirmed Mary Robinson’s testimony that Robinson was a “sweet child.” In addition, counsel referenced Robinson’s young age and lack of prior convictions for violent crimes. Thus, besides counsel’s comments on the lack of prior violent crimes, counsel’s mitigation presentation to the trial court was largely repetitive of the mitigation presentation to the jury. As such, it appears that counsel failed to “detail specific factual mitigation arising from the evidence relating to guilt or from the information supplied before the jury in mitigation” or to “supply additional factual mitigation for the trial court that goes beyond that presented to the jury,” and failed to fulfill the Williams duty of investigating and presenting mitigating evidence where there is a known and substantial risk of override.

In light of counsel’s failure to investigate and present mitigating evidence concerning Robinson’s difficult childhood, we conclude that counsel rendered deficient performance.

Prejudice

Because the jury recommended a life sentence in this case, Robinson cannot demonstrate prejudice stemming from counsel’s failure to present the additional evidence as to his background to the jury. Instead, we must analyze whether Robinson was prejudiced in counsel’s failure to present mitigating evidence concerning Robinson’s background to the trial judge during the Spencer-like proceeding. If the additional evidence presented through the postconviction testimony would have provided a reasonable basis for a life recommendation and sentence, then prejudice has occurred. See Williams, 987 So.2d at 11 (citing Hall v. State, 541 So.2d 1125, 1128 (Fla.1989)). To this end, Robinson argues that the substantial amount of mitigation presented at his evidentiary hearing would have provided a reasonable basis for the jury’s life recommendation.

The State, citing several cases, argues that the postconviction evidence would not have overcome the aggravation found by the trial court. In addition, the State discusses the strength of the aggravation in Robinson’s case and the lack of mitigation as compared to other cases. However, the weighing process which a trial court conducts after a death recommendation is different from the review conducted after a life recommendation. As pronounced by this Court in Tedder v. State, 322 So.2d 908, 910 (Fla.1975), “A jury recommendation under our trifurcat-ed death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” “The singular focus of a Tedder inquiry is whether there is ‘a reasonable basis in the record to support the jury’s recommendation of life,’ rather than the weighing process which a judge conducts after a death recommendation.” Washington v. State, 907 So.2d 512, 514 (Fla.2005) (quoting Keen v. State, 775 So.2d 263, 283 (Fla.2000)). “[T]he jury’s life recommendation changes the analytical dynamic and magnifies the ultimate effect of mitigation on the defendant’s sentence.” Keen, 775 So.2d at 285. Thus, even though there may be several valid aggra-vators in this case, the question is whether enough mitigation exists upon which a reasonable juror could rely. See id. at 286-87, 287 n. 24. The crucial question in this case therefore becomes the following: If the postconviction testimony had been presented at the Spencer-like hearing before the trial judge, would the jury’s life recommendation have been supported by a reasonable basis?

At the postconviction evidentiary hearing, Robinson presented testimony that (1) he grew up in a crime-ridden neighborhood; (2) his family was poor; (3) his father physically abused him; (4) his father introduced him to drugs and abused drugs; (5) the loss of his older brother had a large effect on him; (6) he had a substance abuse problem; (7) he witnessed his father physically abusing his mother; (8) he was protective of his family members; (9) he witnessed physical violence against others; (10) he was emotionally traumatized; and (11) he had an erratic school record. Each of the above factors has been considered as mitigating evidence in prior cases. See McGirth v. State, 48 So.3d 777, 785 (Fla.2010); Zommer v. State, 31 So.3d 733, 743-44 (Fla.2010), cert. denied, — U.S. -, 131 S.Ct. 192, 178 L.Ed.2d 115 (2010); Stewart v. State, 37 So.3d 243, 253-54 (Fla.2010); Hernandez v. State, 4 So.3d 642, 655 (Fla.2009); Williams, 987 So.2d at 11; Philmore v. State, 937 So.2d 578, 581 n. 1 (Fla.2006); Douglas v. State, 878 So.2d 1246, 1260 (Fla.2004); Hamilton v. State, 875 So.2d 586, 592-93 (Fla.2004).

Most relevant to our analysis is our recently issued opinion in Coleman v. State, 64 So.3d 1210 (Fla.2011). Coleman, one of Robinson’s co-defendants, was sentenced to death based on the same aggravating and mitigating factors as Robinson. Id. at 1214. In our opinion, we noted that Coleman presented substantial mitigation at the postconviction evidentiary hearing, which demonstrated that Coleman (1) came from an impoverished background; (2) had an unstable childhood; (3) had a poor relationship with his father; (4) was traumatized by the loss of his father at a young age; (5) was traumatized by the loss of his half-brother; (6) suffered from negative experiences, such as riots and violence, at a young age; (7) had an erratic school record and history of special education placement; (8) had a long history of substance abuse; (9) was molested as a child; (10) received a severe head injury at the age of eighteen; and (11) suffered from mental health illness and deficiencies. Id. at 1218-19. We held that trial counsel’s failure to investigate and present this mitigation deprived Coleman of a reliable penalty phase proceeding. Moreover, we held that the failure to present this evidence precluded this Court from making a fully informed decision regarding the disposition of the case on direct appeal. Id. at 1225.

Notably, this Court stated in Coleman’s direct appeal: “[T]he potential mitigating evidence presented in the instant case is of little weight and provides no basis for the jury’s recommendation.” Coleman, 610 So.2d at 1287. We explained that we reached this conclusion, even though we struck one of the aggravators found by the trial court, because we found “no reasonable likelihood that the trial court would conclude that the mitigating evidence outweighed the four remaining aggravators.” Id. In a separate opinion, Chief Justice Barkett wrote, “I cannot say that no reasonable person could have recommended a life sentence here.”. Id. at 1288 (Barkett, C.J., concurring in part and dissenting in part). These statements were taken into account when Coleman sought postconviction relief before this Court. We explained: “[I]t is clear that [defense coun-selj’s failure to investigate, develop, and present the mitigation evidence not only undermined confidence in the outcome of the trial proceedings, but also precluded this Court from making a proper disposition of the ease on direct appeal.” Coleman, 64 So.3d at 1225 (emphasis added).

Notably, many of Robinson’s mitigating factors established through the postconviction testimony are similar to the mitigating factors that formed the basis of Coleman’s valid ineffective assistance claim. Admittedly, the cases are not identical. Coleman’s mental health expert testified to mental health mitigation not present in Robinson’s case, and evidence was also presented that Coleman was molested when he was young. However, Robinson has also established mitigation that was not found in Coleman’s case, namely, (1) the abuse he endured at the hands of his father and the extremely negative influence his father had on his life, and (2) that from a young age he witnessed violent acts being committed against his mother and others, including witnessing others being killed. We conclude that Robinson has presented mitigation that is equally as strong as the mitigation presented in Coleman’s case on postconviction review.

Moreover, the analyses in the direct appeals of Robinson and Coleman as to the jury override are nearly identical. We held on direct appeal that the potential mitigating evidence presented in Robinson’s case did not provide a reasonable basis for the jury’s life recommendation. See Robinson, 610 So.2d at 1292 (“As with Coleman, any sentence other than death for Robinson would be disproportionate.”). In light of the similarities between Robinson’s and Coleman’s cases, we conclude that the mitigating evidence presented by Robinson during his postconviction eviden-tiary hearing provided a reasonable basis for the jury’s life recommendation. Accordingly, we hold that the trial court erred in denying Robinson’s claim of ineffective assistance of counsel based on trial counsel’s failure to investigate and present mitigating evidence.

CONCLUSION

Because we determine that Robinson is entitled to relief based on trial counsel’s failure to investigate and present mitigating evidence, it is unnecessary for this Court to address the remaining claims raised in Robinson’s motion under Rule 3.850, and we decline to do so. We find no merit in the claims raised in Robinson’s petition for writ of habeas corpus. As in Coleman, 64 So.3d at 1227, we vacate Robinson’s death sentences and remand for the imposition of a sentence of life in prison on each count of first-degree murder.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

POLSTON, C.J., and CANADY, J., dissenting.

POLSTON, J.,

dissenting.

I disagree with the majority’s conclusion that Robinson has demonstrated prejudice relating to trial counsel’s failure to investigate and present mitigating evidence. Even when considering the mitigating evidence presented during the postconviction evidentiary hearing, there is no “reasonable basis in the record to support the jury’s recommendation of life.” Washington v. State, 907 So.2d 512, 514 (Fla.2005) (quoting Keen v. State, 775 So.2d 263, 283 (Fla.2000)). As the postconvietion court accurately determined, the mitigation presented during the postconviction evidentia-ry hearing was merely repetitive of the mitigation presented to the jury during the penalty phase and to the trial court during the Spencer-like hearing. And this Court upheld the life override on direct appeal, explaining that “the potential mitigating evidence presented in this case does not provide a reasonable basis for the jury’s recommendation.” Robinson v. State, 610 So.2d 1288, 1292 (Fla.1992).

The majority bases its conclusion that Robinson has demonstrated prejudice entirely upon this Court’s recent decision in Coleman v. State, 64 So.3d 1210 (Fla.2011). See majority op. at 184-85. However, unlike the situation here, Coleman presented additional mitigating evidence during the postconviction evidentiary hearing that would have provided a reasonable basis for the jury’s recommendation of life. Most notably, Coleman presented evidence that he “suffered from mental health illness and deficiencies,” that he “was molested as a child,” that he had “history of special education placement,” and that he suffered “a severe head injury.” Majority op. at 184 (describing the substantial mitigation presented at the postconviction evidentiary hearing in Coleman). No similar mitigation involving mental health issues, molestation, or head injury exists in this case.

Accordingly, because Robinson has failed to demonstrate prejudice and because this case is drastically different from Coleman, I would uphold the denial of Robinson’s postconviction motion. I respectfully dissent.

CANADY, J., concurs.

      . The facts are taken from the co-defendant's case because the facts were not fully summarized in Robinson’s opinion on direct appeal.

      . The phrase "Spencer-like" is used in this opinion because Robinson's trial was held before this Court's decision in Spencer v. State, 615 So.2d 688 (Fla.1993), was issued.

      . The claims addressed were as follows: (1) whether the trial court erred in denying both a continuance and a change of venue; (2) whether the trial court erred in refusing to sever Robinson’s trial from his co-defendants; (3) whether the trial court erred in not severing out the conspiracy count; (4) whether the evidence was insufficient to support Robinson’s conspiracy conviction; (5) whether the prosecutor’s act of placing two knives that had been entered into evidence on the bar of the jury box inflamed the jury; (6) whether Robinson’s shackling during trial violated his due process rights; (7) whether the trial court erred in denying a continuance relating to DNA testing and in admitting DNA testimony; (8) whether the evidence supported the avoid arrest aggravator; (9) whether the trial court erred in overriding the jury's recommendation of life imprisonment; and (10) whether Robinson's sentence was disproportionate. See Robinson, 610 So.2d at 1289-92. Robinson also argued in his initial brief that the trial court erred in rejecting the victims’ participation in the events leading to his charges as a statutory mitigating factor. This Court did not discuss this claim but merely quoted the trial court, which stated, "[T]he victim’s background cannot be used to mitigate the sentence to be imposed and warranted under these facts.” Id. at 1292.

      .Robinson’s amended postconviction motion is governed by the requirements applicable to Florida Rule of Criminal Procedure 3.850 rather than Rule 3.851 because his initial motion was filed before October 1, 2001, the effective date of Rule 3.851. See Rodriguez v. State, 39 So.3d 275, 282 n. 4 (Fla.2010).

      . Robinson has raised the following claims in his appeal: (1) whether the trial court erred in denying his claim that trial counsel was ineffective in failing to investigate and present mitigating evidence; and (2) whether the trial court erred in summarily denying his claims that (a) his due process rights were violated when he was shackled throughout trial and (b) trial counsel provided ineffective assistance by failing to inquire into the necessity of the shackling.

      . Robinson has raised the following claims in his petition for habeas corpus: (1) whether appellate counsel provided ineffective assistance by failing to file a petition for certiorari with the United States Supreme Court and by failing to advise her client of his right to file such a petition; (2) whether this Court erred in summarily denying Robinson’s pro se claims of ineffective assistance of appellate counsel; (3) whether Robinson was improperly charged and convicted of attempted felony murder; (4) whether Florida’s legislative scheme for the appointment of counsel in capital postconviction cases is unconstitutional to the extent that it prohibits Capital Collateral Regional Counsel and registry counsel from bringing a section 1983 method of execution challenge and from representing defendants in noncapital cases used as aggravators, clemency proceedings, and other related proceedings; (5) whether Florida’s method of execution constitutes cruel and unusual punishment and would deprive Robinson of his rights to due process and equal protection; (6) whether Robinson’s Eighth Amendment right against cruel and unusual punishment will be violated because he may be incompetent at the time of execution; (7) whether Robinson's execution is barred by the Eighth and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Florida Constitution because he suffered from a major mental illness at the time of the offense; and (8) whether Double Jeopardy precludes death as a possible punishment in the event postconviction relief in any form is granted.

      . When this Court reverses a jury override, the proper remedy is to remand for the imposition of sentences of life in prison rather than for a new sentencing proceeding. See Coleman, 64 So.3d at 1226-27. To this extent, we have receded from our decisions in Torres-Arboleda v. Dugger, 636 So.2d 1321 (Fla.1994), Heiney v. State, 620 So.2d 171 (Fla.1993), Stevens v. State, 552 So.2d 1082 (Fla.1989), Hall, 541 So.2d 1125 (Fla.1989), and their progeny. Coleman, 64 So.3d at 1226 n. 13. Whether these life sentences should be concurrent or consecutive is a matter within the trial court’s discretion. Id. at 1227 (citing Williams, 987 So.2d at 16).


author: PER CURIAM.

text:
    Dennis SOCHOR, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1938.
    Supreme Court of Florida.
    July 12, 2012.
    Neal A. Dupree, Capital Collateral Regional Counsel, Rachel L. Day and Anna-Liisa Nixon, CCR Counsel, Region South, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL and Consiglia Terenzio, Bureau Chief, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

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


text:
    Bobby Allen RALEIGH, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1272.
    Supreme Court of Florida.
    July 12, 2012.
    Martin J. McClain of McClain & McDer-mott, Estero, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

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


author: PER CURIAM. EMAS, J.,

text:
    M.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D11-1222, 3D11-2264.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Rehearing Denied Aug. 6, 2012.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before CORTINAS, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Santiago v. State, 900 So.2d 710 (Fla. 3d DCA 2005).

CORTINAS and FERNANDEZ, JJ., concur.

EMAS, J.,

dissenting.

I respectfully dissent, because our decision in E.S. v. State, 886 So.2d 311 (Fla. 3d DCA 2004) requires reversal. I believe the trial court erred in denying the motion for judgment of dismissal, as there was no competent substantial evidence to establish that the pellet gun in M.M.’s possession was a “deadly weapon.” Therefore, the charge of possession of a weapon on school grounds cannot be sustained.

The State filed a delinquency petition alleging M.M. possessed a weapon on school grounds, in violation of section 790.115(2)(a), Florida Statutes (2011). That section provides:

A person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school....

(Emphasis added).

Because a pellet gun is not one of the specifically enumerated items under the statute, it can qualify under the statute only if it falls within the catchall category of “other weapon” as defined by section 790.001(13), Florida Statutes (2011), which provides:

“Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.

(Emphasis added).

Thus, in order to sustain the charge of possession of a weapon on school grounds, the statute requires the State to prove that the pellet gun in M.M.’s possession was not simply a “weapon,” but a “deadly weapon.” A “deadly weapon” is defined as “one likely to produce death or great bodily injury.” Dale v. State, 703 So.2d 1045, 1047 (Fla.1997); Goswick v. State, 143 So.2d 817, 820 (Fla.1962), receded from on other grounds by State v. Smith, 240 So.2d 807 (Fla.1970).

At the adjudicatory hearing, the only evidence presented on this issue was the testimony of Officer Ferguson, a member of the Miami-Dade Schools Police Department. Officer Ferguson found and retrieved the pellet gun from M.M.’s backpack. The sum and substance of the officer’s testimony regarding the pellet gun is as follows:

— When he initially retrieved the weapon from the backpack, he thought it was a firearm;
— He soon determined it was a pellet gun;
— He has “very little” familiarity with pellet guns, although he has fired a pellet gun in the past;
— He does not know whether the gun found in M.M.’s backpack was actually a pellet gun or a BB gun;
— Pellet guns “shoot projectiles”;
— Those projectiles are “capable of injuring people”;
— The pellet gun was not loaded when he discovered it in M.M.’s backpack; and
— He did not test-fire the pellet gun and didn’t know whether it was “functional.”

The pellet gun was introduced into evidence at the hearing, and, at the close of the evidence, M.M. moved for a judgment of dismissal, arguing that the State failed to prove the pellet gun was a “deadly weapon.” The trial court denied the motion and ultimately found the evidence sufficient to establish that the gun was a deadly weapon, thus adjudicating M.M.

We review de novo the trial court’s denial of a motion for judgment of dismissal. C.W. v. State, 76 So.3d 1093 (Fla. 3d DCA 2011). The finding that the pellet gun was a deadly weapon will be sustained on review if there is competent substantial evidence to support the finding. Dale, 703 So.2d at 1047.

Officer Ferguson’s testimony fails to provide the requisite competent substantial evidence that the pellet gun was “likely to produce death or great bodily injury.” The only testimony in this specific regard was that the pellet gun shoots projectiles and the projectiles are capable of injuring people.

The evidence introduced in this case is indistinguishable from the evidence held insufficient in E.S. In E.S., the juvenile was found in possession of a BB gun, and was charged with the offense of carrying a concealed weapon. In E.S., as in the instant case, the State was required to prove the gun was a “deadly weapon”; that is, a weapon which is “likely to cause death or great bodily injury.” The arresting officer’s testimony at the adjudicatory hearing established:

— The BB gun looked “like a .45 or a semi-auto .45” firearm;
— The BB gun was “capable of inflicting injury” when operated properly;
— No C02 cartridges or ammunition were found when the BB gun was seized.
— In E.S. (as in the instant case), the BB gun was introduced into evidence.

The Court in E.S. began its analysis by recognizing the general rule: “Whether or not the weapon involved is to be classed as ‘deadly’ is a factual question to be resolved by the jury under appropriate instructions.” E.S., 886 So.2d at 312 (quoting Dale, 703 So.2d at 1047). Notwithstanding this general rule, there must be competent, substantial evidence to support a finding that the weapon was a deadly weapon. Dale, 703 So.2d at 1047. In E.S., we determined that the evidence presented failed to meet this burden:

At trial, although the BB gun was introduced into evidence, there was no testimony regarding its operation. The evidence showed that the gun had no cartridge in it and could not discharge pellets. The only evidence regarding the gun’s ability to injure was the police officer’s testimony that the gun was “capable of inflicting injury ... [if] properly operated.” Thus the evidence taken as a whole, failed to support a factual determination that the BB gun in question was “likely to produce death or great bodily injury.” Dale v. State, 703 So.2d at 1045.

E.S., 886 So.2d at 311 (underscore emphasis added).

As was the evidence in E.S., the material testimony in the instant case is insufficient as a matter of law to support a finding that the pellet gun was a “deadly weapon,” because the only evidence regarding the pellet gun’s ability to injure was that the projectiles are “capable of injuring people.” The trial court thus erred in denying the motion for judgment of dismissal. Accord L.M. v. State, 77 So.3d 720 (Fla. 3d DCA 2011); K.C. v. State, 49 So.3d 841 (Fla. 4th DCA 2010). Compare J.T. v. State, 47 So.3d 934, 935 (Fla. 4th DCA 2010) (holding there was sufficient evidence to establish the BB gun possessed by juvenile on school property qualified as “deadly weapon” where officer testified how the gun operates and that a BB pellet shot from the gun “could put someone’s eye out”).

The majority relies for affirmance on Santiago v. State, 900 So.2d 710 (Fla. 3d DCA 2005). Santiago, however, is distinguishable from the instant case and E.S. In Santiago, the defendant was charged with, and convicted of, carjacking and armed burglary of a vehicle with a “dangerous weapon.” The issue on appeal was “whether the trial court erred in permitting the jury to consider whether the BB gun used in the burglary was a ‘dangerous weapon.’ ” Id. at 711. In affirming the convictions, this Court relied, at least in part, on the fact that “a jury may conclude that a weapon is either a dangerous or a deadly weapon where the defendant’s words or actions imply that the weapon is dangerous or deadly.” Id. at 712. Such a consideration was proper in Santiago because the defendant was charged with using (or threatening to use) a deadly weapon in the commission of a felony (i.e., a burglary and carjacking). Where the offense charged involves use of a weapon in the commission of another felony, the fact-finder may 'consider, in its determination of whether that weapon is a “deadly weapon,” the manner in which the defendant threatened or intended to use that weapon. See, e.g., Dale, 703 So.2d at 1047 (affirming conviction for armed robbery with a deadly weapon where defendant told store clerk “I got a gun” and raised his shirt to display what looked like a firearm but which turned out to be an unloaded BB gun or pellet gun).

In Santiago, the defendant pulled a gun from the waistband of his pants, pointed it at the victim and told her: “The gun is loaded and I’ll use it, now open the car.” Santiago then took the victim’s car. The gun used by the defendant turned out to be a BB gun. The Santiago court, citing Dale, recognized that in determining whether the BB gun used in the armed burglary qualified as a “deadly weapon”, the jury was entitled to consider the whether “the defendant’s words or actions implied] the weapon is dangerous or deadly.” Santiago, 900 So.2d at 712 (citing Dale, 703 So.2d at 1047). The Santiago court concluded:

The defendant’s actions and words implied ... that the gun he was brandishing was dangerous. The victim was certainly in no position to question its ability to inflict serious harm upon her, just as she was in no position to question whether the defendant was telling her the truth when he told her it was loaded, or whether he actually would shoot her if she did not comply with his demands.

Santiago 900 So.2d at 712.

By contrast, in the instant case (as well as in E.S.) the juvenile was charged only with a possessory offense (here, possession of a weapon on school property; in E.S., carrying a concealed weapon) and was not charged with using the weapon in the course of committing another felony. Pos-sessory weapons offenses differ in this material respect from offenses involved in cases such as Santiago and, to the extent that Santiago relied on evidence of the defendant’s intended or threatened use of the weapon, that decision is inapplicable. E.S. is on all fours and requires reversal.

I recognize the alarming trend of juveniles bringing weapons onto a school campus, and share the concern that such actions threaten the safety of students and staff. However, the solution to this growing problem is vested in the legislature, not the judiciary. Under the statutory framework that currently exists, the express language of the statute, and our own precedent, the State failed to provide competent, substantial evidence that the pellet gun in M.M.’s possession was a “deadly weapon” as defined by section 790.001(13), and therefore cannot sustain a conviction for possession of a weapon on school grounds under section 790.115.

I would reverse the adjudication and remand with directions to enter a judgment of dismissal on the charge of possession of a weapon on school grounds.

      . The terms “dangerous weapon” and "deadly weapon” are used interchangeably in this area. See Jones v. State, 885 So.2d 466 (Fla. 4th DCA 2004); King v. State, 779 So.2d 466 (Fla. 2d DCA 2000).

      . See also Fla. Std. J. Inst. (Crim.) 15.1 ("A weapon is a ‘deadly weapon’ if it is used or threatened to be used in a way likely to produce death or great bodily harm.”) (Emphasis added).

      . Santiago attempted to distinguish E.S., characterizing E.S. as holding that the ”BB gun was not a deadly weapon since it was incapable of being fired.” Santiago, 900 So.2d at 711. This is not the holding in E.S. Operability was not the issue. In fact, it is clear (and was clear at the time of the decision in E.S.) that the absence of ammunition or C02 cartridges is not, by itself, dispositive of the issue of whether a weapon qualifies as a deadly weapon. See, e.g., Dale, 703 So.2d at 1047; Gooch v. State, 652 So.2d 1189 (Fla. 1st DCA 1995) and cases collected. While E.S. did include the fact that the gun contained no ammunition or C02 cartridges, E.S. never concluded that the gun was incapable of being fired. Rather, the central focus was on the capability of the gun to produce death or great bodily injury. The Court in E.S. held:
      The only evidence regarding the gun’s ability to injure was the police officer's testimony that the gun was "capable of inflicting injury ... [if] properly operated.” Thus, the evidence taken as a whole, failed to support a factual determination that the BB gun in question was "likely to produce death or great bodily injury.” Dale v. State, 703 So.2d at 1045.”

        E.S., 886 So.2d at 312. Where the only testimony regarding the nature and capacity to cause harm is that the weapon is "capable of inflicting injury” (as in E.S.) or "capable of injuring people” (as here) such evidence is simply insufficient to sustain a finding that the weapon is "likely to produce death or great bodily injury.”


author: DAVIS, Judge.

text:
    Elena GONZALEZ, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Indenture Trustee for American Home Mortgage Investment Trust 2006-1, Mortgage-Backed Notes, Series 2006-1; Manuel Gonzalez; City of Cape Coral, Florida; Board of County Commissioners of Lee County, Florida; Unknown Tenant # 1; Unknown Tenant # 2; Unknown Tenant # 3; Unknown Tenant # 4, Appellees.
    No. 2D10-5561.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    Michael C. Tice, Fort Myers, for Appellant.
    Mariya Weekes of Robertson, Anschutz & Schneid, P.L., Boca Raton (Debra Res-eigno and Kevin Garbowit substituted as counsels of record), for Appellee Deutsche Bank National Trust Company.
    No appearance for remaining Appellees.
   DAVIS, Judge.

Elena Gonzalez challenges the trial court’s final order denying her motion for relief from judgment in which she challenged the final summary judgment of mortgage foreclosure that the court had entered against her and in favor of Deutsche Bank National Trust Company. Because a genuine issue of material fact remains with regard to when Deutsche Bank took possession of the note, we reverse and remand for further proceedings.

On January 16, 2009, Deutsche Bank filed a two-count complaint against Gonzalez seeking to foreclose her mortgage and to reestablish the note. In its complaint, Deutsche Bank specifically alleged that “[t]he subject promissory note has been lost or destroyed and is not in the custody or control of the Plaintiff who is the owner and holder of the subject Note and mortgage and its whereabouts cannot be determined.”

However, on March 27, 2009, Deutsche Bank filed a Notice of Filing Original Note and Original Mortgage, attaching those documents and voluntarily dismissing count two of its complaint to reestablish the note. The last page of the attached note is a signature page signed by Gonzalez as the borrower. No other signatures appear on the page, but it is stamped “pay to the order of_without recourse by: American Home Mortgage Acceptance, Inc. Rosa Montella Asst. Secretary.” “Deutsche Bank National Trust Company CS Indenture Trustee” is handwritten in the blank, and it appears that Rosa Montella has initialed the notation. Neither is dated, however.

On August 4, 2009, Deutsche Bank filed a notice of filing the assignment of mortgage by which Mortgage Electronic Registration Systems, Inc., assigned the instant mortgage to Deutsche Bank effective December 27, 2009 — nearly a year after the foreclosure complaint was filed.

Gonzalez then filed her answer and affirmative defenses, alleging among other things that “the complaint fails to adequately show the chain of the title demonstrating that Plaintiff is in fact the real party in interest with standing to bring this action.”

Deutsche Bank ultimately moved for final summary judgment of foreclosure, and in opposition, Gonzalez argued that summary judgment is improper because the pleadings raise a question of material fact as to whether Deutsche Bank was the real party in interest at the time of the filing of the foreclosure action.

Following a hearing, the trial court entered its final judgment of mortgage foreclosure. Gonzalez then filed a motion entitled “Motion from Relief From Final Judgment,” in which she cited Florida Rules of Civil Procedure 1.540 and 1.530. With respect to rule 1.530, Gonzalez argued that she was entitled to rehearing because

the exhibits attached to Plaintiffs complaint and filed in support of its motion for summary judgment are inconsistent with Plaintiffs allegations as to ownership of the subject promissory note and mortgage, Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. When exhibits are inconsistent with the plaintiffs allegations of material fact as to whom the real party in interest is, such allegations cancel each other out.

The trial court denied Gonzalez’s motion.

On appeal, Gonzalez argues that the trial court erred because the December 27, 2009, mortgage assignment that Deutsche Bank relied on to establish its standing to maintain the foreclosure action was insufficient in that it did not take effect until well after the foreclosure action was initiated. She also argues that a genuine issue of material fact remains as to when the special endorsement assigning the note to Deutsche Bank was signed.

Deutsche Bank responds that the mortgage assignment is irrelevant and that when it filed the original promissory note on March 27, 2009, it perfected its status as the real party in interest because the last page of the note included an assignment of the note from American Home Mortgage Acceptance to Deutsche Bank.

We start with the basic premise that “[t]he holder of a note has standing to seek enforcement of the note.” Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007). And we do agree with Deutsche Bank that the fact that the assignment of the mortgage is not effective until December 27, 2009, is irrelevant and that the true issue is whether Deutsche Bank is the holder of the note. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004) (“ ‘If the note or other debt secured by a mortgage [is] transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt, unless there [is] some plain and clear agreement to the contrary ....’” (quoting Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938))).

However, we also agree with Gonzalez that the trial court erred in granting Deutsche Bank’s motion for summary judgment because a genuine issue of material fact existed.

The standard of review on a summary judgment is de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006).... The movant has the burden to prove the absence of a genuine issue of material fact, and “this court must view ‘every possible inference in favor of the party against whom summary judgment has been entered.’ ” Id. (quoting Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003)). And, “if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000). Furthermore, ... [a plaintiff seeking summary judgment] “must either factually refute the affirmative defenses or establish that they are legally insufficient.” Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011).

Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1116-17 (Fla. 2d DCA 2011).

Here, a genuine issue of material fact remains as to whether the note was assigned prior to Deutsche Bank instituting the foreclosure suit. Gonzalez placed the standing issue before the trial court by raising it in her affirmative defenses. Deutsche Bank then filed with the trial court the original note with the stamped assignment on the last page. The first page of the note does indicate a date of October 5, 2005, and presumably that is the date on which Gonzalez signed the note and closed on her property. The problem is that the additional stamp and handwritten notation transferring the note from American Home Mortgage to Deutsche Bank is not dated. Accordingly, Deutsche Bank failed to establish its standing by showing that it possessed the note when it filed the lawsuit. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (“Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action.”). As a result, Deutsche Bank has not refuted Gonzalez’s affirmative defense, and a genuine issue of material fact exists that should have precluded the entry of summary judgment.

Accordingly we must reverse and remand for further proceedings.

SILBERMAN, C.J., and CASANUEVA, J., Concur.

      . The remaining appellees made no appearance in this appeal but were named defendants in the foreclosure action below and thus are included as appellees pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).

      . The record before us does not include a transcript of this hearing.

      . Deutsche Bank argues that the standard of review is abuse of discretion because Gonzalez is appealing the denial of her Motion for Relief from Final Judgment, which she filed pursuant to rule 1.540. See Leach v. Salehpour, 19 So.3d 342, 344 (Fla. 2d DCA 2009). However, regardless of how Gonzalez titled her postjudgment motion, in the text of the motion, she also cited rule 1.530 and argued that the trial court should not have granted summary judgment where a genuine issue of material fact remained.


author: DAMOORGIAN, J.

text:
    PHILIP MORRIS USA, INC., Appellant, v. Elaine HESS, as Personal Representative of the Estate of Stuart Hess, deceased, Appellee.
    No. 4D09-2666.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.
    Rehearing Denied Sept. 14, 2012.

      Miguel A. Estrada of the Law Firm of Gibson, Dunn & Crutcher LLP, Washington, D.C., Patricia A. Melville, Andrew S. Brenner and Luis E. Suarez of Boies Schiller & Flexner LLP, Miami, and Gary L. Sasso of Carlton Fields, Tampa, for appellant.
    Bruce S. Rogow, Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, Gary M. Paige and Adam Trop of Paige, Trop & Ameen, P.A., Hollywood, and Alex Alvarez of The Alvarez Law Firm, Coral Gables, for appellee.
   DAMOORGIAN, J.

Philip Morris USA, Inc. (“PM USA”) appeals the trial court’s final judgment entered in favor of Elaine Hess, as surviving spouse and personal representative of the estate of her deceased husband, Stuart Hess. PM USA raises three issues on appeal. First, it contends that the trial court erred in denying its motion for judgment as a matter of law on the fraudulent concealment claim because it was barred by the statute of repose. Next, it argues that the trial court misapplied the Engle findings. Lastly, it submits that the trial court erred in denying its motion to remit the punitive damages award because it was excessive under federal and Florida law. Mrs. Hess cross appeals the trial court’s final judgment to the extent it reduced the compensatory damages award based on the comparative fault of the decedent Mr. Hess. She argues that the substance of her action was the intentional tort of fraudulent concealment, precluding application of the comparative fault statute. See § 768.81(3)-(4), Fla. Stat. (1993). We affirm with respect to the application of the Engle findings. We reverse the denial of PM USA’s motion for judgment as a matter of law on the fraudulent concealment claim, upon which the punitive damages award was based. Because we reverse for entry of judgment in PM USA’s favor on the fraudulent concealment claim, PM USA’s argument on appeal regarding the denial of its motion for remittitur is rendered moot as is Mrs. Hess’s issue on cross appeal regarding the trial court’s reduction of the compensatory damages award.

The instant case commenced as one of the Engle progeny cases. See Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). By way of background, Mrs. Hess filed a complaint against PM USA for strict liability, negligence, conspiracy to commit fraud, and fraudulent concealment, seeking to recover damages for the death of her husband, a longtime smoker. The complaint admitted that Mr. Hess bore some measure of fault for his smoking-related injuries and death.

The case proceeded to trial in two phases and in the manner we approved in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011). Id. at 714. In the first phase, the jury was required to determine whether Mr. Hess was a member of the Engle class, i.e. whether he was addicted to PM USA’s cigarettes, and, if so, was his addiction a legal cause of his death. Mrs. Hess presented substantial evidence of Mr. Hess’s smoking history and medical background, as well as expert testimony regarding his addiction in this phase. Testimony also indicated that Mr. Hess’s cigarette of choice was PM USA’s Benson & Hedges brand. Furthermore, she presented evidence regarding the tobacco companies’ strategy to conceal the addictive nature of nicotine from smokers. Pursuant to the parties’ stipulations, the jury was instructed that (i) cigarettes containing nicotine are addictive; (ii) smoking cigarettes causes lung cancer; (iii) Mr. Hess’s lung cancer was caused by PM USA’s cigarettes containing nicotine; and (iv) Mr. Hess died of lung cancer. At the conclusion of this phase, the jury found that Mr. Hess was addicted to cigarettes containing nicotine, and his addiction was the legal cause of his death.

In the second phase of trial, limited testimony was presented to the jury from Mrs. Hess and her son, David Hess, regarding Mr. Hess’s exposure to cigarette advertising, his knowledge of the health risks posed by smoking, and the emotional loss they suffered as a result of Mr. Hess’s death in 1997 at the age of 55. At the conclusion of evidence in this phase, the trial court instructed the jury that the strict liability, negligence, and fraudulent concealment Engle findings were binding on it. It also explained to the jury that the complaint had admitted Mr. Hess bore some measure of responsibility and instructed that his behavior was “a concurring legal cause in combination with acts or omissions of Philip Moms USA of his smoking related injuries and death.” The trial court also instructed:

The conduct of Stuart Hess and Philip Morris USA may be considered a legal cause if it directly and in natural and in continuance (sic) sequence produces or contributes substantially to producing the loss so that it can reasonably be said that but for that conduct, the loss would not have occurred. Accordingly, you must assign some percentage of responsibility on your verdict form to Mr. Hess.

In regard to the fraudulent concealment claim, the trial court instructed the jury:

You must determine whether Stuart Hess relied to his detriment on any statements made by Philip Morris USA that omitted material information. If the greater weight of the evidence does not support the Plaintiffs claim on this issue, then your verdict should be for the Defendant on this claim.
Relating to that claim, Stuart Hess’ reliance to his detriment on any statements by Philip Morris USA that omitted material information is a legal cause of loss if it directly and in natural and continuance (sic) sequence produces or contributes substantially to producing such loss so that it can reasonably be said that but for Stuart Hess’ reliance, the loss would not have occurred.
In order to be regarded as a legal cause of loss, Stuart Hess’ reliance on omitted statements to his detriment need not be the only cause. Stuart Hess’ reliance on omitted statements to his detriment may be a legal cause of loss ... even though it operates in combination with the act of another, some natural cause or some other cause.

The verdict form in this second phase directed the jury as follows:

By answering the following questions, you will determine the damages that ELAINE HESS and DAVID HESS sustained as a result of the incident in question. In determining the amount of damages, do not make any reduction because of the fault of the parties. The Court, in entering judgment, will make an appropriate reduction of the damages awarded.

It then asked the jury to (i) state the percentage of responsibility it charged to PM USA and Stuart Hess; (ii) state the amount of damages sustained by Mrs. Hess due to pain and suffering and the loss of her husband’s companionship and protection; (iii) state the amount of damages sustained by David Hess due to pain and suffering and the loss of parental companionship, instruction and guidance; (iv) determine whether Mr. Hess had relied to his detriment on any statement by PM USA omitting material information, which caused or contributed to his injury and death; (v) choose the time period during which he relied on such; (vi) determine whether punitive damages were warranted against PM USA by clear and convincing evidence; and (vii) if punitive damages were warranted, to assign a total amount. It did not ask the jury to return findings on any other element of Mrs. Hess’s claims.

The jury returned a verdict of $3 million in compensatory damages, presumably on all three claims. It determined Mr. Hess was 58% responsible and PM USA was 42% responsible. It also found Mr. Hess had relied on PM USA’s statements only before May 5, 1982, and found punitive damages were warranted on the fraud by concealment claim in the amount of $5 million. Before entering its final judgment, the trial court sua sponte reduced the compensatory damage award to $1.26 million based on the comparative fault assigned to Mr. Hess.

PM USA moved for judgment as a matter of law on the fraudulent concealment claim, upon which the punitive damages award was based. It argued that in light of the jury’s finding that PM USA did not defraud Mr. Hess within the twelve years prior to the filing of the Engle complaint, the fraudulent concealment claim and the punitive damages award were barred by the statute of repose. Without explanation, the trial court denied the motion. It also denied PM USA’s motion to remit the punitive damages award. This appeal and cross-appeal follows.

We first address PM USA’s issue with the trial court’s application of the Engle findings. We reject PM USA’s various arguments regarding the application of the findings. This Court recently addressed the scope of application of the Engle findings in the Engle progeny cases. See Brown, 70 So.3d at 717-18. In Brown, we stated that “the Engle findings preclu-sively establish the conduct elements” of claims brought in a post-Engle action. Id. at 715. Therefore, despite PM USA’s urging, plaintiffs are not required to relitigate these elements. See id. at 717, 718. However, we further recognized that establishing membership in the Engle class does not satisfy a plaintiff’s burden of proving legal causation on individual claims. Id. at 715. With respect to the strict liability and negligence claims, we concluded in Brown that the trial court properly instructed the jury on legal causation and submitted the relevant questions to the jury. Id. As such, we affirmed the final judgment because there was no error in the trial court’s application of the Engle findings. Id. at 718.

To find that Mr. Hess was a member of the Engle class, the jury was required to find that his addiction to cigarettes containing nicotine was a legal cause of his death. However, unlike Brown, the jury was not instructed on legal causation as it pertained to the claims of strict liability and negligence. Moreover, the second phase verdict form did not require the jury to make a legal causation finding on the strict liability or negligence claims. This aspect of legal cause is directed at the loss, injury, or damage claimed by the plaintiff.

Despite these failings, we affirm the final judgment on the strict liability and negligence claims due to certain stipulations made by PM USA. In the first phase of trial, pursuant to the parties’ stipulations, the trial court instructed the jury that “Stuart Hess’ lung cancer was caused by smoking Philip Morris USA cigarettes that contained nicotine” and “Stuart Hess died of lung cancer.” In addition, the jury was later instructed that PM USA’s cigarettes were “defective and unreasonably dangerous” and PM USA was “negligent in failing to exercise the degree of care that a reasonable manufacturer would exercise under like circumstance.” The particular stipulations found here coupled with the accepted Engle findings concerning PM USA’s conduct obviated the need to provide strict liability and negligence causation instructions in the second phase and submit those questions to the jury, as would otherwise be required pursuant to Brown, See Brown, 70 So.3d at 717, 718. Under these specific circumstances, the causation instructions necessary for consideration of the causes of action and subsequent jury findings on that element were not required. Cf. Philip Morris USA v. Douglas, 83 So.3d 1002 (Fla. 2d DCA 2012) (affirming the final judgment on a strict liability claim based on the Phase I finding that cigarettes were “defective and unreasonably dangerous” and the jury’s determination that Mrs. Douglas’ diseases were legally caused by her smoking cigarettes manufactured by Tobacco).

Turning to the fraudulent concealment claim, the First District in R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), explained that in order to prevail on such a claim:

[Pjlaintiffs ha[ve] to prove [1] the tobacco companies concealed or failed to disclose a material fact; [2] the companies knew or should have known the material fact should be disclosed; [3] the companies knew their concealment of or failure to disclose the material fact would induce the plaintiffs to act; [4] the tobacco companies had a duty to disclose the material fact; and [5] the plaintiffs detrimentally relied on the misinformation.

Id. at 1068 (citations omitted). In response to Question 4(a), the Engle jury determined that Tobacco “concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.” See Engle, 945 So.2d at 1277. We hold this Engle finding established the conduct elements of a fraudulent concealment cause of action, i.e. that PM USA knowingly concealed material information with the purpose of inducing reliance. Engle did not relieve plaintiffs of the burden of proof with respect to the element of reliance in a fraud based claim. See Engle, 945 So.2d at 1263. Therefore, in accordance with Engle and our recent opinion in Brown, trial courts must instruct the jury on the remaining elements of a fraudulent concealment claim — reliance and damages — and allow the jury to make those determinations based upon the evidence presented. The trial court in this instance did instruct the jury regarding reliance with respect to the fraudulent concealment claim, and the jury was required to make a finding as to reliance and damages. Accordingly, we find no error in the application of the Engle findings with respect to the fraudulent concealment claim.

However, we must address whether in light of the jury’s finding that Mr. Hess relied on PM USA’s statements only before May 5, 1982, the fraudulent concealment claim was barred by the statute of repose. This Court reviews a trial court’s application of a statute of repose de novo because it involves an issue of law. Inmon v. Air Tractor, Inc., 74 So.3d 534, 537 (Fla. 4th DCA 2011) (citation omitted).

PM USA contends that the statute of repose bars the fraudulent concealment claim because each element of the claim, including reliance, must have occurred after May 5, 1982, twelve years before the filing of the Engle complaint. Mrs. Hess responds that the statute of repose sets forth the relevant time period for the statute’s application, focusing on the defendant’s conduct in committing the alleged fraud. Therefore, Mrs. Hess contends that reliance is irrelevant.

Florida’s statute of repose under section 95.031(2), Florida Statutes (1993) provides, “[Ajctions for ... fraud ... under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” § 95.031(2), Fla. Stat. (1993). “[A] statute of repose is a substantive statute which not only bars enforcement of an accrued cause of action but may also prevent the accrual of a cause of action where the final element necessary for its creation occurs beyond the time period established by the statute.” WRH Mortg., Inc. v. Butler, 684 So.2d 325, 327 (Fla. 5th DCA 1996). The Fifth District in Butler further stated that “[t]he period of time established by a statute of repose commences on the date of an event specified in the statute. At the end of that time period, the cause of action ceases to exist.” Id. (citations omitted); see also Carr v. Broward County, 505 So.2d 568, 570 (Fla. 4th DCA 1987) (also discussing how a statute of repose will “prevent the accrual of a cause of action where the final element necessary for its creation occurs beyond the time period established by the statute”), approved, 541 So.2d 92 (Fla.1989).

“On its face, section 95.031(2) clearly bars [a] fraud claim to the extent that it is based on fraudulent conduct committed more than twelve years before the institution of this action.” Shepard v. Philip Morris, Inc., 1998 WL 34064515, at *4 (M.D.Fla. Apr.28, 1998). As noted earlier, “a claim of fraudulent misrepresentation and/or concealment requires proof of detrimental reliance on a material misrepresentation.” Soler v. Secondary Holdings, Inc., 771 So.2d 62, 69 (Fla. 3d DCA 2000) (citing Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985)). The Engle class action was commenced on May 5, 1994. Engle v. RJ Reynolds Tobacco, No. 94-08273, 2000 WL 33534572, at * 5 (Fla.Cir.Ct. Nov. 6, 2000). Thus, any fraud committed before May 5, 1982 is barred by the statute of repose. See Puchner v. Bache Halsey Stuart, Inc., 553 So.2d 216, 218 (Fla. 3d DCA 1989) (“Because Pulchner filed suit in August of 1982, any fraud committed before August of 1971 is barred by the statute of repose.”).

On the verdict form in this progeny suit, the jury was asked whether Mr. Hess relied to his detriment on any statement made by PM USA that omitted a material fact before May 5, 1982, after May 5,1982, or both before and after May 5,1982. The jury returned a verdict that Mr. Hess relied to his detriment on an omission by PM USA only before May 5, 1982. Because reliance is an element of every fraud claim, and PM USA did not defraud Mr. Hess within the twelve-year period established by the statute of repose, we hold that the fraudulent concealment claim and the concealment-based punitive damages award are foreclosed by the statute of repose. Cf. Joy v. Brown & Williamson Tobacco Corp., 1998 WL 35229355, at *5 (M.D.Fla. May 8, 1998) (noting, in a summary judgment context, that plaintiffs pursuing a fraud claim must “adduce[ ] ... proof of reliance upon a misrepresentation that was committed within the 12-year [statute of repose] period prior to the filing of the complaint”).

In so holding, we reject Mrs. Hess’s contention that the date of reliance is irrelevant. While Mrs. Hess is correct that PM USA’s conduct with respect to fraudulent concealment was preclusively established by Engle, this alone does not resolve the issue. See Engle, 945 So.2d at 1277. As discussed above, the triggering event set forth in the applicable statute of repose, “the date of the commission of the alleged fraud”, necessarily includes reliance by the plaintiff. See § 95.031(2)(a), Fla. Stat. (1993). If it did not, a plaintiff would still be able to seek recovery from a defendant based on the defendant’s defrauding of third parties after the twelve-year repose period applicable to the plaintiff. Such a reading is contrary to the intent of a statute of repose. See Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 208 (Fla.2003) (“The very purpose of a statute of repose is to extinguish valid causes of action, sometimes before they even accrue.”) (citation omitted). Moreover, Mrs. Hess’s reliance on Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076 (Fla. 2d DCA 2000) is misplaced because Laschke explained that the date of the last act done is the critical date in cases of conspiracy, not fraud by concealment, which is at issue here. Id. at 1079 (“In claims alleging conspiracy, the critical date for statute of repose purposes should be the date of the last act done in furtherance of the conspiracy.”).

Based upon the foregoing, we reverse the judgment and punitive damages award on the fraudulent concealment claim and remand for entry of judgment for PM USA on that claim. In all other respects we affirm the final judgment.

Affirmed in part and Reversed in part.

POLEN and GROSS, JJ., concur.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . We also note that, based upon our review of the record, any error in the reduction of the compensatory damages award was invited by Mrs. Hess. See Franqui v. State, 59 So.3d 82, 100 (Fla.2011) ("‘[A] party may not invite error and then be heard to complain of that error on appeal.' ") (citation omitted).

      . The conspiracy to commit fraud claim was never submitted to the jury.

      . The Final Judgment and Amended Omnibus Order entered in the Engle class action reflects that Benson & Hedges, the brand Mr. Hess primarily smoked, was named in the Phase I jury findings. Engle v. R.J. Reynolds Tobacco, No. 94-08273, 2000 WL 33534572, at * 1 (Fla.Cir.Ct. Nov. 6, 2000).

      . These findings were as follows: (3) (strict liability) that Tobacco placed cigarettes on the market that were defective and unreasonably dangerous; (4)(a) (fraud by concealment) that Tobacco concealed or omitted material information not otherwise known or available knowing the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both; and (8) (negligence) that Tobacco was negligent. See Engle, 945 So.2d at 1276-77.

      . We note that while there were also stipulations in Brown, those stipulations did not satisfy the causation elements in the strict liability and negligence causes of action as they did here. See Brown, 70 So.3d at 712.


text:
    Norman Lashawn WEAVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2781.
    District Court of Appeal of Florida, First District.
    May 22, 2012.
    Rehearing Denied Aug. 31, 2012.
    Nancy A. Daniels, Public' Defender, Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., SWANSON, J., and SANTURRI, THOMAS R., Associate Judge, concur.


text:
    JOHN DOE NO. 69, Appellant, v. ARCHDIOCESE OF MIAMI, INC., Archdiocese of Miami, a corporation sole, and Archbishop Wenski, as corporate sole of the Archdiocese of Miami, Appellees.
    No. 3D11-2367.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Rehearing Denied Aug. 1, 2012.
    Herman, Mermelstein & Horowitz and Jeffrey Herman, Stuart Mermelstein, and Jessica D. Arbour, Miami, for appellant.
    Gaebe, Mullen, Antonelli & DiMatteo and Michael A. Mullen, Elaine D. Walter and Joseph M. Winsby; J. Patrick Fitzgerald, Coral Gables, for appellees.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See John Doe No. 23 v. Archdiocese of Miami, Inc., 965 So.2d 1186 (Fla. 4th DCA 2007); Zumpano v. Quinn, 6 N.Y.3d 666, 816 N.Y.S.2d 703, 849 N.E.2d 926 (2006).