author: PER CURIAM. PARIENTE, J.,

text:
    Renaldo Devon McGIRTH, Appellant, v. STATE of Florida, Appellee.
    No. SC08-976.
    Supreme Court of Florida.
    Nov. 10, 2010.

      Christopher J. Anderson, Atlantic Beach, Florida, and Jeffrey D. Deen, Regional Counsel, Fifth District, Altamonte Springs, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida, Kenneth S. Nunnelley, Senior Assistant Attorney General, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Renaldo D. McGirth appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. See Art. V, § (3)(b)(l), Fla. Const. For reasons set forth below, we affirm McGirth’s convictions and death sentence.

FACTUAL AND PROCEDURAL HISTORY

Overview

Renaldo McGirth was convicted of the 2006 first-degree murder of Diana Miller. McGirth, who was eighteen years old at the time of the murder, was also convicted of the contemporaneous attempted first-degree murder with a firearm of Diana’s husband, James Miller, robbery with a firearm of James and Diana Miller, and fleeing to elude a law enforcement officer operating a marked patrol vehicle. After the penalty phase proceeding, the jury recommended that McGirth be sentenced to death for the murder of Diana by a vote of eleven to one. We first discuss the factual and procedural history of the case. We then address the guilt phase and penalty phase issues raised by McGirth.

The Guilt Phase

The evidence at trial established that James and Diana Miller (“the Millers”), both in their sixties and married for forty-two years, lived in The Villages, a gated retirement community situated in Marion County, Florida. Their daughter, Sheila Miller, who was in her late thirties at the time, was residing with them while she recovered from injuries sustained in an automobile accident that left her confined to a wheelchair.

McGirth, a prior acquaintance of Sheila, Jarrord Roberts, and Theodore Houston, Jr., visited Sheila at the Miller home on the afternoon of July 21, 2006. Sheila greeted McGirth with an embrace at the front door, after which the three men followed her inside the residence. James Miller saw the three men enter his home and observed Sheila embracing one of them. He excused himself as it was near noon and he had to shower for a haircut appointment scheduled for 1:00 p.m. that day. Thereafter, McGirth, who had entered the home with a black backpack, set the bag down on the floor and the three men joined Sheila in the living room for some conversation. After some discussion, Sheila, McGirth, and Houston went into Sheila’s bedroom, while Roberts remained in the living room with Diana. Once in the bedroom, McGirth pointed a small, silver gun in Sheila’s direction and instructed Houston to tape Sheila’s mouth and bind her wrists with duct tape that had been purchased at a Dollar General store on the way to the Miller residence. Diana was then called into Sheila’s bedroom where McGirth pushed her onto the bed. Sheila told Diana to give McGirth all of her money. Diana responded that she only had seventy dollars and explained that she did not keep that kind of money at the house. McGirth, in turn, insisted she had money because she lived in The Villages. After agreeing to get the money, Diana raised her hands in the air and was making her way toward the bedroom door to retrieve money when McGirth stood in front of the bedroom door and shot her once in the chest, causing her to fall on Sheila’s bed. McGirth then instructed Houston to pick up the shell casing from the floor and wipe down any objects the men had touched to remove fingerprints. As she bled on Sheila’s bed, Diana whispered to McGirth, “Please call 911; you just shot me in the heart.” However, her pleas for help were ignored.

At some point, Roberts collected wallets and car keys belonging to the Millers and handed them to McGirth. In the meantime, James had just finished his shower when he was grabbed by the arm and dragged to Sheila’s bedroom where he was forced to lie on the floor while one of the men pinned his head with a foot. After the men obtained the couple’s credit cards and a personal identification number, Diana, still conscious, was taken to the computer room in an unsuccessful attempt to purchase cell phones online. A few minutes later Diana was able to crawl back into Sheila’s bedroom.

McGirth and Houston removed Sheila from the home and Roberts placed her in the Millers’ van. As Roberts and Sheila remained in the van, McGirth and Houston returned to the home. Soon thereafter, as Houston was leaving the house with some items, McGirth shot James and Diana in the backs of their heads as they lay on the bedroom floor. James survived the gunshot wound and was able to climb out of the bedroom window and summon the assistance of a neighbor.

McGirth, Roberts, and Sheila left in the Millers’ van, while Houston followed in the silver Ford in which the men arrived. Following McGirth’s orders, Sheila withdrew $500 from an automated teller machine (ATM) nearby and gave the money to McGirth, who subsequently divided the money into thirds. The four then drove to a K-Mart store in Belleview where McGirth and Sheila attempted to locate a particular type of cell phone. A few minutes later the men left the silver Ford in the K-Mart parking lot and took Sheila in the van to a mall in Gainesville. At the mall, efforts to withdraw money from various ATMs and purchase items from stores failed.

At the Miller residence, law enforcement officers secured the scene and issued a BOLO (“be on the lookout”) alert for a red van occupied by three black males and a possible kidnap victim. A police officer spotted the van at a convenience store in Ocala where McGirth was observed getting out and leaving the passengers in the vehicle. When McGirth returned and drove the vehicle out of the parking lot, the police officer activated his siren and lights which prompted McGirth to pull over. As the officer approached the vehicle, one of the men in the van told McGirth to “just shoot the cop.” McGirth responded that he had it handled. When the officer ordered the driver to shut the van off, McGirth sped away. A high-speed chase in excess of 100 miles per hour ensued. As he drove the vehicle while being pursued by the police, McGirth handed the gun to Houston and ordered him to shoot Sheila because she could identify them. Houston, however, did not do so. The police ultimately used stop sticks to slow the van and then disabled it by employing the PIT maneuver, which caused the van to roll several times. Sheila was found inside the van, and Houston was attempting to pull himself from underneath the van when police took him into custody. McGirth and Roberts were able to get out of the van and fled in opposite directions, but were apprehended and taken into custody shortly thereafter.

The police found bloody, folded money totaling $259 in McGirth’s pocket, and his fingerprints were identified on two paper items from James’s wallet.

Testimony was presented on the gunshot wounds inflicted on Diana. Dr. Julia Martin, the medical examiner, opined that the gunshot wound to the head would have rendered Diana immediately unconscious and dead soon thereafter, but that the wound to her chest would not. Dr. Martin concluded that Diana died as a result of the gunshot wound to her head.

The jury found McGirth guilty of first-degree murder of Diana Miller, attempted first-degree murder of James Miller, robbery with a firearm, and fleeing to elude law enforcement, and the case proceeded to the penalty phase.

The Penalty Phase

During the penalty phase, the State presented victim impact testimony from four witnesses who described Diana Miller as funny, playful, caring, a good friend, and an accommodating person who enjoyed traveling with her husband and friends and playing golf and softball. Their testimony revealed that Diana’s softball team made tributes in her name and dedicated its fall season to her. A memorial service was held for Diana and, after a silent prayer, the team released balloons in the air in her honor. The softball team also placed Diana’s retired team jersey along with her photograph and a medal she won in softball in a shadow box and brought it to softball games. A group of women in her community placed a quarter-page advertisement in a newspaper in memory of Diana, which expressed how much she was missed.

The State also presented evidence from Dr. Martin, the medical examiner, who estimated that anywhere from fifteen to thirty minutes passed between Diana’s chest wound and head wound. She also testified that there was nothing in her examination which would lead her to conclude that Diana lost consciousness as a result of the chest wound before the infliction of the head wound. The medical examiner explained that as a result of her chest wound, Diana would have experienced pain, difficulty in breathing, and anxiety.

The defense presented mitigation testimony from McGirth’s family members and pastor. The evidence showed that McGirth had a difficult time growing up because he did not know his biological father and had poor male role models throughout his life.

At the conclusion of the penalty phase, the jury recommended by a vote of eleven to one that McGirth be sentenced to death for the murder of Diana Miller. After conducting a Spencer hearing, the trial court entered its sentencing order in which it found five aggravators: (1) the murder was cold, calculated, and premeditated (CCP), to which it assigned great weight; (2) the murder was heinous, atrocious, or cruel (HAC), to which it assigned great weight; (3) McGirth had a prior violent felony, based on McGirth’s contemporaneous conviction for the attempted first-degree murder of James Miller, to which it assigned great weight; (4) McGirth engaged in the commission of a robbery at the time of the murder, to which it assigned great weight; and (5) the murder was committed primarily to avoid arrest, to which it assigned moderate weight. As a statutory mitigating circumstance, the trial court found McGirth’s age (eighteen), to which it assigned significant weight.

The trial court found fifteen of the eighteen nonstatutory mitigating factors proposed by McGirth: (1) McGirth had a close bond with his siblings, to which the court assigned very slight weight; (2) McGirth grew up in a financially poor family, to which the court assigned little weight; (3) McGirth grew up in an abusive home, to which the court assigned little weight; (4) McGirth was neglected by his custodial parents, to which the court assigned little weight; (5) McGirth’s substance abuse, to which the court assigned very slight weight; (6) McGirth’s intermittent exposure to positive role models, to which the court assigned some weight; (7) testimony which characterized McGirth as a follower and not a leader, to which the court assigned no weight; (8) McGirth’s diagnosis of conduct disorder, to which the court assigned very little weight; (9) McGirth’s diagnosis of antisocial personality disorder, to which the court assigned very little weight; (10) McGirth’s exposure to people with criminal histories, to which the court assigned some weight; (11) McGirth’s strong religious background, to which the court assigned little weight; (12) McGirth’s good courtroom behavior, to which the court assigned slight weight; (13) McGirth suffered significant family losses, to which the court assigned little weight; (14) McGirth can benefit from a structured environment, to which the court assigned slight weight; and (15) McGirth was deprived of a relationship with his biological father, to which the court assigned some weight. The trial court concluded that the aggravating circumstances in this case outweighed the mitigating circumstances and sentenced McGirth to death.

ISSUES ON APPEAL

On direct appeal, McGirth raises the following eight issues: (1) whether the trial court erred in admitting Williams rule evidence in the guilt phase that had more prejudicial effect than probative value; (2) whether the trial court erred in its response to a jury question concerning the law on principals; (3) whether the trial court erred in admitting excessive and inflammatory victim impact evidence during the penalty phase; (4) whether a prosecu-torial remark during the. penalty phase closing argument warrants a new penalty phase trial; (5) whether the trial court erred in finding the cold, calculated, and premeditated aggravator; (6) whether the trial court erred in finding the heinous, atrocious, or cruel aggravator; (7) whether the trial court erred in finding the avoid arrest aggravator; and (8) whether Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and related cases. In addition to the issues that McGirth raises on direct appeal, this Court must also consider whether there is sufficient evidence to support his convictions and whether the death sentence is proportionate. We begin our discussion of these issues with our mandatory review of the sufficiency of the evidence to justify McGirth’s convictions. We then continue with McGirth’s guilt phase claims and proceed to his penalty phase claims. We conclude our analysis by reviewing the death sentence for proportionality.

Sufficiency of the Evidence

“In appeals where the death penalty has been imposed, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence.” Davis v. State, 2 So.3d 952, 966-67 (Fla.2008) (citing Fla.R.App. P. 9.142(a)(6)), cert. denied, — U.S. —, 129 S.Ct. 2872, 174 L.Ed.2d 585 (2009). Sufficient evidence exists if, “after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Simmons v. State, 934 So.2d 1100, 1111 (Fla.2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). Although McGirth did not expressly challenge the sufficiency of the evidence as to each of his convictions, our complete review of the record demonstrates that the convictions are supported by competent, substantial evidence.

The State presented evidence that McGirth shot Diana in the chest after demanding money from her. Approximately fifteen to thirty minutes later, after briefly stepping outside to assist in removing Sheila from the house, McGirth returned to the home and shot James and then Diana in the backs of their heads. Further evidence was presented that McGirth participated in the armed robbery of Diana and James Miller: McGirth demanded money and access to credit card and banking information; his fingerprints were identified on two paper items from James’s wallet; and $259 in bloody bills was found in his possession. The evidence also established that McGirth fléd to elude the police as he led them on a high-speed vehicular chase in the Miller van and then ran from the police after the van was disabled. Accordingly, competent, substantial evidence exists to support each of McGirth’s convictions.

Guilt Phase Claims

McGirth raises two claims relating to the guilt phase of his trial. First, he contends that evidence of his drug-based relationship with Sheila Miller constituted irrelevant Williams rule evidence. Second, he claims the trial court erred in its response to a jury question concerning the law on principals. As we explain below, neither claim warrants relief.

1. Prior Bad Acts

In his first claim on appeal, McGirth argues that the trial court erred in admitting irrelevant Williams rule evidence. During the cross-examination conducted by Roberts’ defense counsel, and over McGirth’s objections, Sheila testified that her relationship with McGirth began before the criminal episode on July 21, 2006. She testified that their relationship was built around drugs and that the two bought from and sold drugs to one another. Sheila added that the two had a falling out when McGirth pulled a knife on her fiancé some time before, and that the two had not spoken until his visit to the Miller home the afternoon of the crimes. During Roberts’ case-in-chief, Sheila testified that when she and the men were in the van on the afternoon of the crimes, she was told to get on the telephone and attempt to broker a deal for several ounces of cocaine. We reject the claim that this evidence constitutes Williams rule evidence subject to the requirements of section 90.404(2), Florida Statutes (2006). We hold that the trial court did not abuse its discretion in admitting Sheila’s testimony as relevant pursuant to section 90.402, Florida Statutes (2006), to establish the context in which the charged criminal acts occurred.

An appellate court will not disturb a trial court’s determination that evidence is relevant and admissible absent an abuse of discretion. See Victorino v. State, 23 So.3d 87, 98 (Fla.2009). Relevant evidence is generally admissible unless precluded by a specific rule of exclusion. Id. (citing § 90.402, Fla. Stat. (2004)). There are two categories under which evidence of uncharged crimes or bad acts will be admissible — similar fact evidence, otherwise known as Williams rule evidence, and dissimilar fact evidence. Id. (citing Zack v. State, 75B So.2d 9, 16 (Fla.2000)). The requirements and limitations of section 90.404 govern similar fact evidence while the general rule of relevancy set forth in section 90.402 governs dissimilar fact evidence. Id. at 98-99. We have explained the test for dissimilar fact evidence as follows:

[E]videnee of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.”

Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (quoting Charles W. Ehrhardt, Florida Evidence, § 404.17 (1993 ed.)). We find that Sheila Miller’s testimony regarding her drug-based relationship with McGirth was not similar fact evidence, and consequently, McGirth’s claim does not constitute a true Williams rule claim. The evidence at issue — which, as explained below, established the relevant context leading up to the charged crimes — is inextricably intertwined with the defendant’s charged crimes. Consequently, the general rule of relevancy under section 90.402 governs the instant matter.

Dissimilar fact evidence of a defendant’s prior bad acts is admissible to “establish ] the relevant context in which the [charged] criminal acts occurred.” Caruso v. State, 645 So.2d 389, 394 (Fla.1994). The State may present evidence that “paints an accurate picture of the events

surrounding the crimes charged.” Victorino, 23 So.3d at 99 (quoting Griffin, 639 So.2d at 970). The evidence here helped establish how McGirth came to know Sheila, why he arrived at the Miller home the afternoon of the crimes, and why McGirth was greeted by Sheila with an embrace. Additionally, because Sheila testified that “everyone,” including McGirth, knew that her parents had retired and that they provided her with a good life, the relationship between Sheila and McGirth helped explain McGirth’s perception that Sheila’s parents were wealthy. Indeed, when McGirth insisted to Diana during the course of the robbery that she had money because she lived in The Villages, Diana turned to Sheila and asked her what she had told the men. These factors were necessary to adequately describe the events leading up to Diana’s murder. See Griffin, 639 So.2d at 968. Consequently, evidence as to the defendant’s drug-based relationship with the victims’ daughter was relevant and inextricably intertwined with the crimes charged.

We also disagree with McGirth’s contention that the evidence concerning his drug-based relationship with Sheila should have been excluded under section 90.403 because the probative value of the evidence was outweighed by its prejudicial effect. “Once the trial court has weighed the evidence to determine whether its value was more probative than prejudicial, this Court will not overturn its decision absent an abuse of discretion.” Murray v. State, 3 So.3d 1108, 1124 (Fla.), cert. denied, — U.S. —, 130 S.Ct. 396, 175 L.Ed.2d 273 (2009). Relevant evidence is subjected to a balancing test under section 90.403, and “[o]nly when the unfair prejudice substantially outweighs the probative value of the evidence should it be excluded.” Wright v. State, 19 So.3d 277, 296 (Fla.2009) (quoting Sexton v. State, 697 So.2d 833, 837 (Fla.1997)). Such is not the case here. Because the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice, the trial court did not abuse its discretion in admitting evidence concerning the nature of the defendant’s relationship with the victims’ daughter, Sheila. We thus deny relief on this claim.

2. Trial Court’s Response to a Jury Question

McGirth next contends that the trial court erred in its response to a question posed by the guilt phase jury during deliberations. A trial court has discretion in instructing the jury during deliberations, and an appellate court will disturb a trial court’s ruling “only when the judicial action is arbitrary, fanciful, or unreasonable.” Green v. State, 907 So.2d 489, 496 (Fla.2005) (quoting White v. State, 817 So.2d 799, 806 (Fla.2002)); see Perriman v. State, 731 So.2d 1243, 1246 (Fla.1999) (citing Fla. R.Crim. P. 3.410).

During deliberations, the jury asked whether it could have a discussion with the trial judge regarding the jury instruction on principals. The court responded that it could not engage in general discussions with the jury, but would be willing to address any specific questions the jury might have. Nine minutes later, the jury posed the following question relating to the jury instruction on principals: “Is cautious [sic] intent the same as premeditation in that it can occur a few seconds before the crime was committed?” Outside the presence of the jury, the trial judge con-suited the lawyers and observed that the standard jury instruction on principals did not define conscious intent. After rejecting McGirth’s objection to providing the jury with any information beyond what is contained in the written jury instruction, the trial court answered the jury’s question as follows:

Is conscious intent the same as premeditation in that it can occur a few seconds before the crime was committed? Specifically, is conscious intent the same as premeditation?
The answer is no. The law does not fix the exact amount of time that must pass for the formation of conscious intent.

(Emphasis added.) The trial court denied defense counsels subsequent motion for mistrial.

A trial judge is not restricted to the written jury instructions when a jury poses a question during its deliberations, and may clarify a point of law for a confused jury with a brief, clear response. See Perriman, 731 So.2d at 1246-47. In the present case, the question posed to the court demonstrated the jury’s confusion about the meaning of conscious intent as it related to principals, and the trial court was well within its discretion to provide the jury with a response.

McGirth contends that the trial court defined the conscious intent element of the principal jury instruction in the same terms used to define the premeditated intent element of the first-degree murder instruction, thus blurring the distinctions between the two elements. We disagree and find that the trial court did not err in its response to the jury’s question on principals. Here, the trial judge correctly instructed the jury that conscious intent (an element contained in the principals instruction) and premeditation (an element contained in the first-degree premeditated murder instruction) do not share the same meaning. In addressing whether conscious intent, as set forth in the principals instruction, can occur a few seconds before the crime was committed, the judge correctly informed the jury that the law does not fix the exact amount of time that must pass for the formation of conscious intent. Because the trial court did not err in its response to the jury’s question regarding the conscious intent component of the principals jury instruction, there is no basis for relief on this claim.

Penalty Phase Claims

McGirth raises six claims relating to the penalty phase of his trial. First, McGirth challenges a remark the prosecutor made during the penalty phase closing argument. Second, he claims that the trial court erred in admitting excessive and inflammatory victim impact evidence. Third, he argues that the trial court erred in finding the avoid arrest aggravator. Fourth, he asserts that the trial court erred in finding the cold, calculated, and premeditated aggravator. Fifth, he claims that the trial court erred in finding the heinous, atrocious, or cruel aggravator. Lastly, he contends that Florida’s death penalty statute violates Ring and related cases. For reasons set forth below, we conclude that these claims do not warrant relief.

1. Prosecutorial Comments During the Penalty Phase

McGirth claims that a comment by the State during its penalty phase closing argument was improper and so prejudicial that it warrants a new penalty phase trial. We disagree.

During its penalty phase closing argument, the State addressed whether Sheila’s alleged involvement in the crimes — a theory advanced by the defense but which the State argued was not supported by the evidence — could mitigate or lessen the defendant’s culpability. The State argued that irrespective of Sheila’s involvement, lessening McGirth’s culpability would “be like giving the pilots of the two planes that crashed into the World Trade Center a pass .... a pass because it was Osama’s idea.” McGirth’s defense counsel objected to the argument and moved for mistrial.

McGirth argues on appeal that the prosecutor’s remark was improper and prejudicial because it appealed to jurors’ emotions and that the trial court erred in overruling his objections to these comments. However, we have held that “[a]ny error in prose-cutorial comments is harmless if there is no reasonable probability that those comments affected the verdict.” Hitchcock v. State, 755 So.2d 638, 643 (Fla.2000) (citing King v. State, 623 So.2d 486, 487 (Fla.1993)). In order to ensure that the harmless error test has been met, an examination of the record is required. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). This entails not only a “close examination of the permissible evidence on which the jury could have legitimately relied,” but also a careful review of the “impermissible evidence which might have possibly influenced” the jury recommendation. Id. at 1135. In Anderson v. State, 18 So.3d 501 (Fla.2009), we recently explained:

In order for the prosecutor’s comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

Id. at 518 (quoting Spencer v. State, 645 So.2d 377, 383 (Fla.1994)).

After reviewing the record, we conclude that in light of the evidence of aggravation presented against McGirth, there is no reasonable possibility that the isolated reference to the 2001 attack on the World Trade Center affected the jury’s sentencing recommendation. Error, if any, was therefore harmless.

We also conclude that the trial court did not abuse its discretion in denying defense counsel’s motion for mistrial. A motion for mistrial should be granted only where prejudicial error will vitiate the trial’s result, making a mistrial necessary to ensure that the defendant receives a fair trial. See Smith v. State, 998 So.2d 516, 526 (Fla.2008). We find that the prosecutor’s remark in the instant case was made in the context of mitigation and the isolated reference was not so prejudicial as to vitiate the trial’s result. Thus, the trial court did not abuse its discretion in denying McGirth’s request for mistrial.

2. Victim Impact Evidence

McGirth next claims that the excessive and inflammatory nature of the victim impact evidence presented during the penalty phase proceeding deprived him of due process and a fair trial, and relies on general pretrial motions in limine for preservation of his claims of error. We first address the issue of preservation of any alleged error.

Before trial began, the trial court denied the defendant’s motion to limit victim impact evidence, but granted leave to file a motion in limine to address any specific issues that might arise from the deposition testimony of potential victim impact witnesses. The court also reserved ruling on McGirth’s motion requesting a proffer of victim impact testimony for a determination of whether the alleged unfair prejudice of the evidence outweighed its probative value. McGirth, however, did not raise the issue again at trial. Indeed, during the entire presentation of victim impact evidence, defense counsel did not raise any specific objections to any portion of the testimony, the introduction of the memorial advertisement purchased by neighbors and friends in Diana Miller’s honor, or any particular aspect of the photographic evidence.

It is well established that “to be cognizable on appeal, [an argument] must be the specific contention asserted as legal ground for the objection, exception, or motion below.” F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)). Moreover, failure to contemporaneously object to improper victim impact evidence “renders the claim procedurally barred absent fundamental error.” Sexton v. State, 775 So.2d 923, 932 (Fla.2000). In this case, McGirth’s pretrial motions lacked the requisite specificity to preserve a claim on appeal, and he did not obtain a definitive ruling in advance from the trial court on any specific items of victim impact evidence, which would have made a contemporaneous objection on the exclusion of evidence unnecessary. See 90.104(l)(b), Fla. Stat. (2006) (a party need not renew an objection or offer of proof to preserve a claim of error for appeal if the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial). McGirth failed to make a contemporaneous objection on specific grounds during trial. Consequently, his claim challenging the excessive and inflammatory nature of the victim impact evidence was not preserved for our review.

We nevertheless must determine whether fundamental error or a violation of due process occurred in the admission of victim impact evidence in this case. See Wheeler v. State, 4 So.3d 599, 606-07 (Fla.) (recognizing that evidence which places undue focus on victim impact, even if not objected to, can in some cases constitute a due process violation), cert. denied, — U.S. —, 130 S.Ct. 178, 175 L.Ed.2d 112 (2009). “The analysis to determine if admission of victim impact evidence has violated a defendant’s due process rights in the penalty phase of a capital trial parallels the analysis for fundamental error.” Id. at 607. During the penalty phase, error is fundamental if it is “so prejudicial as to taint the jury’s recommended sentence.” Jones v. State, 949 So.2d 1021, 1037 (Fla.2006) (quoting Fennie v. State, 855 So.2d 597, 609 (Fla.2003)).

The State may present victim impact evidence which shows “the victim’s uniqueness as an individual human being and the resultant loss to the community’s members by the victim’s death.” § 921.141(7), Fla. Stat. (2006); see Wheeler, 4 So.3d at 607. However, the admissibility of victim impact evidence is not limitless. Sexton, 775 So.2d at 932. Victim impact witnesses cannot provide characterizations and opinions about the crime. Id. (citing Payne v. Tennessee, 501 U.S. 808, 826-27, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)). Although we recognize that in some cases unobjected-to evidence which places undue focus on victim impact can violate due process, this Court has never drawn a bright line as to the number of permissible witnesses that the State may present. See Wheeler, 4 So.3d at 607-08. We have previously found as admissible the evidence of five victim impact witnesses. Deparvine v. State, 995 So.2d 351, 378 (Fla.2008). We also found no error in the admission of victim impact testimony of twelve witnesses in Farina v. State, 801 So.2d 44, 52 (Fla.2001).

In this case, the trial court appropriately permitted Ann Tauriainen, the victim’s aunt, and Marie Franks, Lori Travis, and Lee Hancock, friends and neighbors of the victim, to testify as witnesses. The testimony of these four witnesses described the uniqueness of Diana Miller as an individual and explained how her death caused a loss to her family members and to the community. We therefore find that the nature and extent of this victim impact testimony neither constituted fundamental error nor violated due process.

We also find no error in the admission of photographs of the victim. As with victim impact testimony, we have never drawn a bright line as to the number of permissible photographs that the State may present. See Wheeler, 4 So.3d at 608. In this case, the State presented five photographs showing the victim in different settings such as with her recreational softball team in The Villages, with friends at the golf course, or by herself posing as the softball team catcher. The State also presented a photograph depicting a balloon release in Diana’s memory, a photograph of a plaque and Diana’s retired softball jersey, and a copy of the quarter-page advertisement purchased in Diana’s memory. We do not find that this evidence was impermissibly prejudicial so as to warrant a new penalty phase proceeding. Therefore, we conclude that the photographic evidence neither constituted fundamental error nor violated due process. Because McGirth has not identified reversible error committed by the trial court in the admission of victim impact evidence, we deny relief on this claim.

3. Aggravating Factors

McGirth challenges the trial court’s findings of the following three aggravating circumstances: (1) the dominant motive for committing murder was to avoid arrest; (2) the murder was committed in a cold, calculated, and premeditated manner; and (3) the murder was especially heinous, atrocious, or cruel. When reviewing claims alleging error in the application of aggravating factors, this Court does not reweigh the evidence. Franklin v. State, 965 So.2d 79, 98 (Fla.2007). Rather, this Court’s role on appeal is to review the record to determine whether the trial court applied the correct rule of law for each aggravator and, if so, whether competent, substantial evidence exists to support its findings. Id. “Competent, substantial evidence is tantamount to legally sufficient evidence.” Blackwood v. State, 946 So.2d 960, 973 (Fla.2006) (quoting State v. Coney, 845 So.2d 120, 132-33 (Fla.2003)). Accordingly, we review each of the aggravators raised on appeal for competent, substantial evidence.

A. Avoid Arrest Aggravator

McGirth argues that the trial court erred in instructing the jury on and in finding the avoid arrest aggravating factor. We conclude that the trial court did not err.

The focus of the avoid arrest aggravator centers on the motivation for the crimes. See Jennings v. State, 718 So.2d 144, 151 (Fla.1998). “[T]o establish the avoid arrest aggravating factor where the victim is not a law enforcement officer, the State must show beyond a reasonable doubt that the sole or dominant motive for the murder was the elimination of a witness.” Reynolds v. State, 934 So.2d 1128, 1156 (Fla.2006) (quoting Bell v. State, 841 So.2d 329, 336 (Fla.2002)). “However, ‘[e]ven without direct evidence of the offender’s thought processes, the arrest avoidance factor can be supported by circumstantial evidence through inference from the facts shown.’ ” Id. at 1157 (quoting Swafford v. State, 533 So.2d 270, 276 n. 6 (Fla.1988)). When evaluating the avoid arrest aggravator, this Court has considered “whether the defendant used gloves, wore a mask, or made any incriminating statements about witness elimination; whether the victims offered resistance; and whether the victims were confined or were in a position to pose a threat to the defendant.” Nelson v. State, 850 So.2d 514, 526 (Fla.2003) (quoting Farina, 801 So.2d at 54).

In this case, McGirth never made an effort to conceal his identity from his victims. McGirth instructed Houston, his co-defendant, to pick up shell casings and wipe objects down to remove any fingerprints from items touched while in the home. Police had to unlock the front door from the inside of the home to allow emergency medical personnel inside. While trying to flee from police in the van, McGirth ordered Houston to shoot Sheila, the victims’ daughter, because she could identify them. The evidence indicates that McGirth probably could have accomplished the robbery of the Miller home without killing Diana or attempting to kill James. Diana posed no resistance to McGirth or his codefendants as she was virtually immobilized after being shot once in the chest. James also did not offer any resistance toward McGirth or the other code-fendants as he had been pinned to the floor. McGirth easily obtained access to the Miller’s van and their property. Once McGirth and his codefendants obtained the victims’ property and secured a getaway, there was no reason to kill Diana and attempt to kill James except to eliminate them both as witnesses. See Looney v. State, 803 So.2d 656, 677-78 (Fla.2001) (finding that once the defendants immobilized the victims, obtained their property, and secured a getaway, there was no reason to kill the victims except to eliminate them as witnesses). Competent, substantial evidence supports the trial court’s finding of the avoid arrest aggravating factor.

B. Cold, Calculated, and Premeditated Aggravator

McGirth next argues that the trial court erred in instructing the jury on and in finding the cold, calculated, and premeditated (CCP) aggravator. He challenges the presence of certain elements of CCP and claims that the trial court’s finding is not supported by competent, substantial evidence. We disagree and conclude that the trial court did not err.

A court must consider the totality of the circumstances when determining whether a murder was committed in a cold, calculated, and premeditated manner. Gill v. State, 14 So.3d 946, 962 (Fla.2009) (citing Hudson v. State, 992 So.2d 96, 116 (Fla.2008), and Lynch v. State, 841 So.2d 362, 372 (Fla.2003)). For a trial court’s finding on CCP to be legally sufficient, the evidence must show that “the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.” Franklin, 965 So.2d at 98 (citing Jackson v. State, 648 So.2d 85, 89 (Fla.1994)). The focus of the. CCP aggra-vator centers on the manner in which the defendant executed the crime. Walker v. State, 957 So.2d 560, 581 (Fla.2007). Legally sufficient evidence exists to support a trial court’s finding on CCP where the defendant procures a weapon in advance, receives no provocation or resistance from the victim, and carries out the killing as a matter of course. See Farina, 801 So.2d at 54. .

In this case, the State presented evidence that McGirth armed himself in advance of his arrival at the entrance to The Villages, a gated, residential neighborhood. He and his codefendants then drove about thirteen minutes before finally arriving at the Miller home. He shot Diana once in the chest, obtained the victims’ property and access to their vehicle, left the house, and returned to shoot both James and Diana in the back of the head. There was no indication that McGirth received provocation or resistance from Diana Miller. McGirth had ample time to reflect upon his actions before deciding to shoot Diana execution-style, and the evidence clearly established that the murder was “cold.” See Lynch, 841 So.2d at 372 (holding that the “cold” element is legally sufficient where the defendant had ample opportunity to calmly reflect upon his actions, following which he decided to shoot his victims execution-style).

Additionally, legally sufficient evidence exists to support a finding of the “calculated” element. McGirth armed himself in advance, killed Diana execution-style, and had time to coldly and calmly decide to kill. Id. It is significant to note here that as many as thirty minutes passed between the time Diana was first shot in the chest and then fatally wounded from a gunshot to the back of her head. Id. (citing Hertz v. State, 803 So.2d 629, 650 (Fla.2001)). Competent, substantial evidence also supports the element of heightened premeditation as it was demonstrated that McGirth had ample opportunity to leave the crime scene and not commit the murder; nevertheless, he returned to the home to shoot Diana Miller in the back of the head. Id. at 373. Lastly, the evidence in this case showed no pretense of legal or moral justification for the killing. Because legally sufficient evidence exists to support a finding of each element of CCP, we conclude that the trial court did not err in finding this aggravator. Accordingly, we deny relief on this claim.

C. Heinous, Atrocious, or Cruel Aggravator

McGirth also argues that the trial court erred in instructing the jury on and in finding the heinous, atrocious, or cruel (HAC) aggravator. He contends that when he first shot Diana in the chest, he did so in response to her resistance rather than for purposes of inflicting suffering and that, consequently, the aggravator is unsupported by the evidence. We conclude that the trial court did not err.

The focus of the HAC aggra-vator centers on the means and manner in which the death is inflicted upon the victim and the victim’s perceptions of the surrounding circumstances. See Victorino, 23 So.3d at 104; Schoenwetter v. State, 931 So.2d 857, 874 (Fla.2006). The aggravator is applicable where the murder is “both conscienceless or pitiless and unnecessarily torturous to the victim.” Victorino, 23 So.3d at 104 (emphasis omitted) (quoting Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992)). The HAC aggravator is “proper only in torturous murders — those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.” Rimmer v. State, 825 So.2d 304, 329 (Fla.2002) (emphasis omitted) (quoting Shere v. State, 579 So.2d 86, 95 (Fla.1991)).

McGirth contends that the fact that there were multiple gunshot wounds inflicted upon Diana and that Diana begged for her life is insufficient to support a HAC finding absent evidence that McGirth intended to cause the victim unnecessary and prolonged suffering. However, as the State correctly notes, the killer’s intention to inflict pain on the victim is not a necessary element of HAC. Ocha v. State, 826 So.2d 956, 963-64 (Fla.2002). The killer need not intend to inflict torture where the victim is killed in a torturous manner because “the very torturous manner of the victim’s death is evidence of a defendant’s indifference.” Victorino, 23 So.3d at 104 (quoting Barnhill v. State, 834 So.2d 836, 849-50 (Fla.2002)); see also Schoenwetter, 981 So.2d at 874 (noting that the focus on the HAC analysis is not on the intent of the killer but rather on the victim’s actual suffering).

The HAC aggravator generally does not apply to execution-style killings unless the State presents additional evidence that the defendant acted to physically or mentally torture the victim. See Victorino, 23 So.3d at 104-05; see also Rimmer, 825 So.2d at 327. However, “fear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel.” Hudson, 992 So.2d at 115 (quoting James v. State, 695 So.2d 1229, 1235 (Fla.1997)). This includes instances “where the victim is acutely aware of his or her impending death.” Id. (citing Gore v. State, 706 So.2d 1328, 1335 (Fla.1997)).

McGirth cites to Rimmer, 825 So.2d 304, to support his contention that the evidence in this case is insufficient to support the trial court’s finding of HAC. In Rimmer, we found the record devoid of any evidence that the defendant engaged in some action to torture the victims or subject them to pain and prolonged suffering. Id. at 328. We concluded that the fact that the defendant forced his victims to lie on the floor with their hands bound behind their backs while he robbed the store they worked in was insufficient to show that the victims knew they would be killed or that they lay in fear of their impending deaths. Id. (citing Ferrell v. State, 686 So.2d 1324, 1330 (Fla.1996)) (“Speculation that the victim may have realized that the defendants intended more than a robbery when forcing the victim to drive to the field is insufficient to support this aggravating factor.”). We held in Rimmer that while the victims experienced fear, it was not the type of fear, pain, and prolonged suffering that sufficiently supports an HAC finding. Id.

The present case is factually distinguishable from Rimmer. Here, McGirth shot Diana once in the chest and ignored her pleas for help. She knew the men had taken her daughter hostage and that they had her husband. When Diana asked for water and mentioned that she was cold, Houston, McGirth’s codefendant, provided her with some water and wrapped her body with a blanket for warmth. McGirth responded to these gestures with a derogatory comment suggesting weakness on Houston’s part. Diana crawled back to her daughter’s room and lay near her husband James on the floor when he was shot in the back of his head. The evidence upon which the trial court relied establishes that Diana knew of her impending death for some time before her murder.

Any suggestion on McGirth’s part that the murder lacked any element of mental or physical torture is belied by this evidence. The medical examiner testified that the first bullet passed through Diana’s sternum and lung. About fifteen to thirty minutes passed from the time Diana was first shot in the chest until the time when she was fatally shot in the back of her head. Diana undoubtedly experienced pain and remained conscious and cognizant of her surrounding circumstances. The evidence showed that Diana’s lung was collapsing and she experienced increasing difficulty in breathing. As her condition deteriorated, she likely experienced anxiety. Once McGirth obtained access to credit card information, jewelry, and the Miller van, he shot James and then Diana in the back of the head. Diana’s murder was both conscienceless or pitiless and unnecessarily torturous, and McGirth exhibited utter indifference to the torturous manner of Diana’s death. We thus conclude that competent, substantial evidence supports the trial court’s finding of the HAC aggravator.

Apprendi and Ring Claims

Finally, McGirth argues that Florida’s capital sentencing scheme, section 921.141, Florida Statutes, violates his federal constitutional rights to due process and a fair jury trial. He also contends that the capital sentencing scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because it does not require the findings of each aggravating circumstance to be made by a unanimous jury. These claims are without merit.

This Court has addressed whether Florida’s capital sentencing scheme violates the federal constitution under Apprendi and Ring and has denied relief. See Gore v. State, 964 So.2d 1257, 1276-77 (Fla.2007). We have also rejected claims that aggrava-tors must be individually found by a unanimous jury. See Zack v. State, 911 So.2d 1190, 1202 (Fla.2005) (citing Hodges v. State, 885 So.2d 338, 359 n. 9 (Fla.2004)). Additionally, this Court has repeatedly rejected Ring claims where the trial court has found the “during the course of a felony” aggravator and the “prior violent felony” aggravator. Robinson v. State, 865 So.2d 1259, 1265 (Fla.2004) (“This Court has held that the aggravators of murder committed ‘during the course of a felony and prior violent felony involve facts that were already submitted to a jury during trial and, hence, are in compliance with Ring.”). Given that McGirth was convicted of the contemporaneous attempted first-degree murder of James and robbery with a firearm, we deny relief on this claim.

PROPORTIONALITY

McGirth does not challenge the proportionality of his death sentence. We nevertheless conduct a proportionality review to guard against “the imposition of ‘unusual’ punishments contrary to article I, section 17 of the Florida Constitution.” Wright, 19 So.3d at 303. In reviewing a death sentence for proportionality, we ensure that the death penalty is “reserved only for those cases where the most aggravating and least mitigating circumstances exist.” Terry v. State, 668 So.2d 954, 965 (Fla.1996). Our review on proportionality is not a comparison between the number of aggravators and mitigators. See Barnes v. State, 29 So.3d 1010, 1028 (Fla.2010), cert. denied, — U.S. —, 131 S.Ct. 234, 178 L.Ed.2d 155 (2010). Instead, we engage in a qualitative review of the totality of the circumstances and compare the present case with other capital cases. Wright, 19 So.3d at 303.

In this case, the jury recommended a sentence of death by a vote of eleven to one and the trial court so sentenced McGirth. We conclude that the five aggravating factors, weighed against the statutory and nonstatutory mitigating factors, amply support the imposition of the death sentence. We have previously upheld the death penalty as proportionate in cases involving similar charges and similar aggravation. For example, in Buzia v. State, 926 So.2d 1203 (Fla.2006), involving a first-degree murder and an attempted first-degree murder, we affirmed the death sentence where the trial court found and assigned great weight to four aggrava-tors — prior violent felony, avoid arrest, HAC, and CCP — and found several non-statutory mitigating factors. Id. at 1216. We have also upheld the death sentence in cases where the defendant’s age constituted a statutory mitigating circumstance. See Muehleman v. State, 3 So.3d 1149, 1166-67 (Fla.2009) (upholding the death sentence for a defendant who was eighteen at the time of the murder where the trial court found five aggravators including avoid arrest, HAC, and CCP). We thus conclude that the death sentence in this case is proportionate.

CONCLUSION

After reviewing the issues raised on appeal and conducting our own independent review of the sufficiency of the evidence and the proportionality of the death sentence, we affirm'McGirth’s convictions for first-degree murder, attempted first-degree murder with a firearm, robbery with a firearm, and fleeing or eluding a law enforcement officer and the sentences imposed for these offenses.

It is so ordered.

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

PARIENTE, J., specially concurs with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

specially concurring.

I agree with the majority decision to affirm McGirth’s convictions and sentence. I write, however, to express my view that (a) evidence that McGirth pulled a knife on Sheila Miller’s fiancé two years before the crime was inadmissible; and (b) the State’s penalty-phase closing argument that analogized the role of McGirth to the pilots of the two planes that crashed into the World Trade Center was improper.

As to the knife incident, this evidence of a prior bad act was elicited by McGirth’s co-defendant during the cross-examination of the victim, Sheila Miller, the daughter of the murder victim Diana Miller, allegedly to show her bias as a witness. I agree that evidence of Sheila and McGirth’s prior drug-based relationship was relevant to explain McGirth’s association with Sheila and whether Sheila was potentially involved in the crime. I disagree, however, that evidence that McGirth pulled a knife on Sheila’s fiancé at some time before the crime was admissible because it is not relevant to or inextricably intertwined with the crime in question and any marginal relevance about the nature of the past relationship and falling out would be outweighed by potential prejudice to McGirth. However, in this case, since the testimony about pulling a knife was elicited only on cross-examination by the co-defendant, the reference was extremely brief, and the State did not highlight this evidence, the error in admitting this evidence was harmless beyond a reasonable doubt as there is no reasonable possibility this brief reference affected the jury’s verdict in this case.

My next concern is with the State’s initial penalty-phase argument that lessening McGirth’s culpability in this case because of any potential involvement of Sheila in the planning of the crime would be “like giving the pilots of the two planes that crashed into the World Trade Center a pass ... a pass because it was Osama’s idea.” The trial court overruled a timely objection. This argument is clearly impermissible.

First, the argument did not address any aggravator. To the extent the State alleged that it was responding to the defendant’s potential argument that Sheila was also involved in this crime as a mitigator, that specific argument had not been advanced by the defendant. In fact, the prosecutor recognized this when he mentioned that he would talk about Sheila “because I expect that you may hear that name come up in a few moments. Her name is not on the list of mitigating circumstances, and you heard no evidence about her during the course of the second portion of the trial.”

Second, even if discussing the role of Sheila’s involvement was appropriate, arguments made referencing the 9-11 terrorists and Osama were completely inappropriate. Rather, the argument was both “highly emotional” and “highly volatile” as defense counsel properly stated at the time of his objection. Prosecutors must confine their arguments to inferences based on record evidence; they are prohibited from exceeding the bounds of permissible advocacy by discussing other notorious cases that could evoke emotional responses. Here, the argument was not based on inferences from the record and expressly referenced the most brutal attack ever committed in this country. Our country’s reaction, of course, was one of nationwide horror and collective outrage.

Although I ultimately agree with the majority that this isolated reference in this case was harmless beyond a reasonable doubt, I once again issue a word of caution regarding closing arguments in death penalty cases:

This type of argument simply should have no place in a prosecutor’s closing arguments — especially in a capital case. Death penalty cases, by the very nature of the crimes involved, have the potential to arouse emotions and passions. As officers of the court, prosecutors must ensure, to the extent possible, a dispassionate and objective jury deliberation process.

Wade v. State, 41 So.3d 857, 880 (Fla.2010) (Pariente, J., specially concurring).

QUINCE, J., concurs.

      . Sheila’s dependence on her parents had often proven to be a source of contention between her parents as her father opposed supporting her. Sheila had battled drug and alcohol abuse since her teenage years and had been convicted of possession of cocaine and for uttering false or worthless checks. She had stolen from her parents and at one point stole her mother's identity to obtain a credit card. Sheila's relationship with her parents deteriorated to the point that her father obtained an injunction against her.

      . Sheila testified that she and McGirth were former friends who had a falling out, and that the two had not spoken until that day.

      . Precision Immobilization Technique.

      . Both Sheila and Houston testified against McGirth and Roberts, who were tried jointly. McGirth and Roberts were both charged with, but acquitted of, the kidnapping with a firearm of Sheila. An undercurrent throughout the case was the extent, if any, of Sheila Miller's involvement in the criminal acts that transpired on July 21, 2006. Roberts, who was twenty years old at the time of the crimes, was convicted of robbery with a firearm and the lesser included offenses of manslaughter and attempted voluntary manslaughter.

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

      . The trial court found McGirth’s IQ of 98 was "not a mitigating factor,” and assigned it no weight. The trial court did not find that letters requesting that mercy be showed to McGirth were a nonstatutory mitigating factor. However, the court stated that even if a request for mercy were a nonstatutory miti-gator, very slight weight would be given. The trial court rejected the proposed nonstatutory mitigator that McGirth acted under the influence and domination of another.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . The standard jury instruction on principals reads:
      If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated' as if he had done all the things the other person or persons did if:
      1. the defendant had a conscious intent that the criminal act be done and
      2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime.
      To be a principal, the defendant does not have to be present when the crime is committed or attempted.
      Fla. Std. Jury Instr. (Crim.) 3.5(a).

      . McGirth also argues that the State’s de-emphasis on the reflection time for premeditation during its guilt phase closing argument further confounded the jury’s understanding of the jury instructions. We disagree and find that the State’s closing argument fell within the confines of proper closing argument. See Breedlove v. State, 413 So.2d 1, 8 (Fla.1982) (holding that counsel may advance all legitimate arguments during closing argument and that logical inferences may be drawn from those arguments).

      . Although we find that the prosecutor's remark does not warrant relief in this case, we nevertheless caution prosecutors not to exceed the proper scope of argument.

      . McGirth also challenges the propriety of the trial judge’s decision to instruct the jury on each of the aggravators challenged on appeal. We have held that where competent, substantial evidence supports the trial judge's decision to do so, it is not error to instruct the jury on the respective aggravator. See Aguirre-Jarquin v. State, 9 So.3d 593, 607 (Fla.2009), cert. denied, — U.S. —, 130 S.Ct. 1505, 176 L.Ed.2d 118 (2010). Further, when evidence on a mitigator or aggravator has been presented to the jury, the court is required to instruct the jury on the factor. Bowden v. State, 588 So.2d 225, 231 (Fla.1991). Because, as explained below, there was competent, substantial evidence presented on each of the aggravators challenged on appeal, the trial court did not err in instructing the jury on each of the aggravators.


source: Caselaw Access Project

author: LABARGA, J. CANADY, C.J., POLSTON, J.,

license: Public Domain

text:
    Jamie Lee TASKER, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-1281.
    Supreme Court of Florida.
    Nov. 10, 2010.

      Nancy A. Daniels, Public Defender, and Glen Phillip Gifford, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Tasker v. State, 12 So.3d 889 (Fla. 1st DCA 2009). The district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007), Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999), and Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The issue presented in this case is whether a claim of scoresheet error, in this case involving imposition of victim injury points in a Criminal Punishment Code sentencing scoresheet, which is raised for the first time after revocation of probation in a motion filed under Florida Rule of Criminal Procedure 3.800(b)(2), is preserved for review on appeal. As we explain below, we conclude that a claim of scoresheet error pertaining to victim injury points that are included on the scoresheet filed in the initial sentencing proceeding in which the defendant is placed on probation may be raised for the first time in a rule 3.800(b)(2) motion during the appeal from revocation of probation, and the issue is thereby preserved for appellate review. The First District held to the contrary and did not reach the merits of Tasker’s claim that sexual contact victim injury points were improperly included on his sentencing scoresheet. Our holding requires us to quash the decision of the First District, and in so doing, we remand to that court the question of whether the victim injury points were improperly imposed.

FACTS AND PROCEDURAL BACKGROUND

Jamie Lee Tasker, age thirty-five at the time of the offenses, was charged by information filed in Suwannee County in October 2004 with one count of lewd and lascivious molestation of a female twelve years of age or older but under the age of sixteen, in violation of section 800.04(5), Florida Statutes (2004). He was also charged with child abuse in violation of section 827.03(1), Florida Statutes (2004), in relation to another child. In December 2004, Tasker pled guilty as charged to both counts.

At the sentencing hearing on January 11, 2005, adjudication was withheld and Tasker was placed on ten years’ sex offender probation for Count I, lewd and lascivious molestation, and a concurrent term of five years’ probation for Count II, child abuse, all to commence after serving six months in the county jail. He was also formally designated a sex offender subject to all statutory requirements. The Criminal Punishment Code (CPC) scoresheet prepared for this initial sentencing hearing included forty victim injury points for sexual contact. Tasker did not object at that time to inclusion of the victim injury points on the initial CPC scoresheet and he did not take a direct appeal.

Tasker subsequently violated his probation on several occasions, and was returned to probation each time with additional conditions. However, at a violation of probation hearing on April 12, 2007, Tasker admitted that he tested positive for cocaine use. The disposition hearing was held May 10, 2007, at which Tasker was found to have violated his probation by testing positive for cocaine use. Based on an updated scoresheet, which included the same victim injury points for sexual contact, Tasker was adjudicated guilty and sentenced on Count I, lewd and lascivious molestation of a child, to 120 months in prison. As to Count II, child abuse, Task-er was adjudicated guilty and sentenced to thirty-six months in prison concurrent with the sentence for Count I. Tasker did not object to the scoresheet during the disposition hearing when he was sentenced to prison.

Tasker then appealed to the First District Court of Appeal. During that appeal, but before the first brief was served, Task-er’s appellate counsel filed a motion to correct sentencing error in the trial court, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In the motion, he alleged as a sentencing error that the victim injury points on his CPC sentencing score-sheet were not supported by the record and were therefore improperly included on the scoresheet. Without holding a hearing on the motion, the trial court issued an order on September 10, 2008, denying the motion on the merits. That ruling was included in a supplemental record, which was then filed in Tasker’s appeal to the First District pursuant to rule 3.800.

The First District, however, did not reach the merits of Tasker’s claim that inclusion of the victim injury points on the scoresheet was error, but ruled instead that the issue was not preserved. See Tasker v. State, 12 So.3d 889, 890 (Fla. 1st DCA 2009). The First District held in pertinent part as follows:

During the pendency of this appeal, appellate counsel filed a motion to correct sentence, pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, challenging the assessment of forty points. The trial court denied the motion.
Under our case authority, appellant has not preserved the issue of the assessment of victim injury points. As we explained in Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997), “an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.” See also Bowman v. State, 974 So.2d 1205 (Fla. 1st DCA 2008). Importantly, section 924.06(2), Florida Statutes (2007), provides that “an appeal of an order revoking probation may review only proceedings after the order of probation.” We acknowledge other districts have held to the contrary. See Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007) (holding that trial court erred in refusing to allow defendant to challenge the inclusion of victim injury and legal constraint points at sentencing following revocation of probation); Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999) (holding defendant could challenge victim injury points after revocation of community control); Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999) (holding that defendant could challenge assessment of victim injury points in appeal of revocation of probation despite the fact that defendant did not raise the issue at the original sentencing hearing or in a prior appeal); see also Routenberg v. State, 802 So.2d 361 (Fla. 2d DCA 2001) (holding that a claim that victim injury points for penetration were incorrectly assessed on scoresheet could be raised in a rule 3.800(a) motion even after violation of probation); and Wright v. State, 707 So.2d 385 (Fla. 2d DCA 1998) (explaining defendant did not waive right to challenge scoresheet points for victim injury for penetration by not raising issue at original sentencing hearing). We certify conflict with Stubbs, Spell, and Bogan.

Id. at 890-91.

In Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007), the first conflict case, the Second District had for consideration a challenge to the accuracy of a CPC score-sheet that was prepared for Stubbs’ first sentencing proceeding, in which he was placed on probation, and was subsequently used to determine his prison sentence after his violation of probation. Stubbs, 951 So.2d at 911. The trial court rejected Stubbs’ claim made in the resentencing proceeding after revocation of probation, but the district court reversed. Id. at 911. Citing a number of its earlier decisions, the Second District held that a defendant may challenge the inclusion of victim injury points in a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal. Id. The Fourth District expressly aligned itself with Stubbs in the case of Bryant v. State, 37 So.3d 269, 271 (Fla. 4th DCA 2009) (holding that a defendant may challenge the inclusion of sentencing points after violation of probation, including in a rule 3.800(b)(2) motion, even when the points were not challenged at the original sentencing or on direct appeal).

In the second conflict case, Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999), the Second District held that a defendant has the right to challenge victim injury points at a resentencing upon revocation of probation even if the points were not challenged at the original sentencing. Id. at 10. In so holding, the district court found Spell’s case indistinguishable from Wright v. State, 707 So.2d 385 (Fla. 2d DCA 1998), in which the Second District previously held that the defendant may object to victim injury points on the scoresheet used at the resentencing after revocation of probation, even if no objection was raised as to the original scoresheet.

In the third conflict case, Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999), the Second District held that the defendant could challenge victim injury points after revocation of his probation even though he failed to object at the original sentencing when he was placed on probation. Id. at 1217. As explained below, we agree with the Second District in Stubbs, Spell and Bogan, and with the Fourth District in Bryant, that a defendant may, after revocation of probation, challenge inclusion of victim injury points in the CPC sentencing scoresheet which is relied upon at the resentencing even if no objection to the scoresheet was raised at the time of the initial sentencing when the defendant was placed on probation. We further hold that where the claim is raised in a rule 3.800(b)(2) motion after revocation of probation, it is thereby preserved for appellate review.

ANALYSIS

In holding that Tasker was barred from appealing the denial of his claim of sentencing error that was raised in a rule 3.800(b)(2) motion after revocation of probation, the First District relied upon its earlier decision in Fitzhugh v. State, 698 So.2d 571 (Fla. 1st DCA 1997), and on section 924.06(2), Florida Statutes (2007). We conclude that neither section 924.06(2), Florida Statutes, nor the principle of law set forth in Fitzhugh bars a defendant from appealing a claim of sentencing error that was raised in a motion filed under rule 3.800(b)(2) after revocation of probation. The district court’s decision in Fitz-hugh will be discussed first.

In Fitzhugh, the First District held that an appeal from resentencing following violation of probation is not the proper time to assert an error in the original score-sheet and that a contemporaneous objection must be made at the time of sentencing. 698 So.2d at 573. However, we find it significant — and a distinguishing factor — that in Fitzhugh, the sentencing error was not raised in any form in the trial court but was raised for the first time in the district court in the probation revocation appeal. Thus, Fitzhugh was decided on the principle of contemporaneous objection. See also Bryant, 37 So.3d at 271 (distinguishing Fitzhugh on the basis that Fitzhugh first raised his claim of score-sheet error on appeal, rather than in the circuit court). Moreover, Fitzhugh was decided before rule 3.800 was amended to specifically allow motions to correct sentencing errors to be filed during an appeal, as Tasker did in this case, without regard to whether a contemporaneous objection to the error was made during sentencing.

Florida Rule of Criminal Procedure 3.800 was amended in 1999 to add subdivision (b)(2), which was intended to resolve the difficulties presented by sentencing errors being raised for the first time on appeal, just as occurred in Fitzhugh. See Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800 & Fla. Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.1999) (hereafter “Amendments”). In determining whether Tasker preserved his claim of sentencing error for review in the appeal from his revocation of probation, we first examine the applicable provisions of rule 3.800, as amended, which provide in pertinent part as follows:

Rule 3.800. Correction, Reduction, and Modification of Sentences
(a) Correction. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal. All orders denying motions under this subdivision shall include a statement that the movant has the right to appeal within 30 days of rendition of the order.
(b) Motion to Correct Sentencing Error
(2) Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party’s first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).

Fla. R.Crim. P. B.800. The amendment was intended to “place correction of alleged errors in the hands of the judicial officer [the trial judge] best able to investigate and to correct any error.” Jackson v. State, 983 So.2d 562, 571 (Fla.2008) (quoting Amendments, 761 So.2d at 1016). Subdivision (b)(2) was therefore added to rule 3.800, allowing a sentencing error to be raised for the first time after the notice of appeal is filed but before the party’s first brief is served. In amending the rule, we explained:

[R]ule 3.800(b) as it is currently written has fallen far short of the goal of providing a “failsafe” method for defendants to seek to have sentencing errors corrected in the trial court and thereby preserve them for appellate review. The plethora of appellate cases addressing the issue of whether unpreserved sentencing error may be presented on appeal demonstrates that despite the availability of the present rule 3.800(b), many sentencing errors have gone unnoticed and uncorrected by trial counsel, the prosecutor, and the trial court. There are multiple reasons why rule 3.800(b) has failed to provide a “failsafe” method to detect, correct and preserve sentencing errors....
... [T]he amended rule is intended to provide one mechanism whereby all sentencing errors may be preserved for appellate review.... “This includes errors in orders of probation, orders of community control, cost and restitution orders, as well as errors within the sentence itself.” The amendment to rule 3.800(a) will make it clear that a rule 3.800(b) motion can be used to correct any type of sentencing error, whether we had formerly called that error erroneous, unlawful, or illegal.

Amendments, 761 So.2d at 1017-19 (emphases added). Moreover, rule 3.800 makes clear that a sentencing scoresheet error may be raised at any time. See Fla. R.Crim. P. 3.800(a) (“A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served.... ”). In its holding in Bryant v. State, that a scoresheet error pertaining to prior offenses that was raised after revocation of probation was preserved for review, the Fourth District observed:

If we were to hold otherwise, the defendant still could raise the alleged sentencing error through postconviction motions. Under rule 3.800, the defendant could file a motion to correct sentencing error, even while an appeal is pending. Brooks v. State, 969 So.2d 238, 241 (Fla.2007). Under rule 3.850, the defendant could file a motion raising a sentencing error within two years after the sentence becomes final. Id. Given the opportunity to file these motions, we see no legal or practical reason why a defendant who fails to raise the challenge at his original sentencing cannot raise the challenge after his violation of probation. In the interests of justice and judicial economy, however, defendants obviously should raise the challenge at the earliest opportunity.

Bryant, 37 So.3d at 271. This Court similarly recognized in Brooks v. State, 969 So.2d 238 (Fla.2007), that rule 3.800(b) was amended “ ‘to provide defendants with a mechanism to correct sentencing errors in the trial court at the earliest opportunity’ and ‘to give defendants a means to preserve these errors for appellate review.’ ” Brooks, 969 So.2d at 241 (quoting Amendments, 761 So.2d at 1016).

In explaining the rationale behind amending rule 3.800(b) to allow sentencing errors to be raised in the trial court after the notice of appeal, we noted that “trial counsel have come to rely upon appellate counsel to detect these errors and raise them on appeal.” Amendments, 761 So.2d at 1017. “[A]n advantage of this amendment is that it will give appellate counsel, with expertise in detecting sentencing errors, the opportunity to identify any sentencing errors and a method to correct these errors and preserve them for appeal.” Id. at 1018. In the present case, appellate counsel recognized a possible sentencing error and filed a motion under rule 3.800(b)(2) during the pendency of the appeal from the sentence imposed after the revocation of probation. This was a proper use of rule 3.800(b)(2) to correct the alleged scoresheet error and, just as the rule intended, the motion preserved the issue of the scoresheet error for appellate review.

We also conclude, contrary to the holding of the First District, that section 924.06(2), Florida Statutes, raises no procedural bar to appellate review of a sentencing error that was raised for the first time after revocation of probation in a rule 3.800(b)(2) motion. Because the question involves interpretation of a statute, it is subject to de novo review. See Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Schools, Inc., 3 So.3d 1220, 1232 (Fla.2009). We begin with the well-recognized principle that “[l]egislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009) (citing Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1, 5 (Fla.2004)). “[LJegislative intent is determined primarily from the text” of the statute. Continental Cas. Co. v. Ryan Inc. Eastern, 974 So.2d 368, 374 (Fla.2008) (citing Maggio v. Fla. Dep’t of Labor & Emp’t Sec., 899 So.2d 1074, 1076-77 (Fla.2005)). Thus, we begin with careful consideration of the text of section 924.06(2), which states:

(2) An appeal of an order granting probation shall proceed in the same manner and have the same effect as an appeal of a judgment of conviction. An appeal of an order revoking probation may review only proceedings after the order of probation. If a judgment of conviction preceded an order of probation, the defendant may appeal from the order or the judgment or both.

§ 924.06(2), Fla. Stat. (2007) (emphasis added).

The First District relied on section 924.06(2) to conclude that a scoresheet error raised for the first time after revocation of probation may not be reviewed in the appeal from the revocation of probation. See Tasker, 12 So.3d at 890. However, the First District’s reading of section 924.06(2) neither accords with the actual text of the statute nor effectuates what we discern to be the legislative intent behind the statute. We recognize that section 924.06(2) limits the issues which may be reviewed on an appeal from a revocation of probation to those “proceedings after the order of probation.” § 924.06(2), Fla. Stat. In determining if the claim made in Task-er’s rule 3.800(b)(2) motion falls within the category of “proceedings after the order of probation,” we note first that sentencing after revocation of probation is a “deferred sentencing proceeding.” Green v. State, 468 So.2d 1139, 1140 (Fla.1985). The deferred sentencing proceeding in this case, and the court’s reliance on the CPC score-sheet prepared for that deferred sentencing proceeding, necessarily occurred “after the order of probation.” Additionally, the rule 3.800(b)(2) proceeding to correct sentencing error, which Tasker initiated in the trial court, also occurred “after the order of probation.” Thus, Tasker’s appeal of the denial of his 3.800(b)(2) motion does not violate the express terms of section 924.06(2).

We are not at liberty to extend or modify the express and unambiguous terms of section 924.06(2) by adding limitations on appellate review that do not appear in the provision. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (citing A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Nor do we conclude that the interpretation given the statute by the First District is necessary to effectuate legislative intent. See, e.g., Fla. Dept. of Children & Family Servs., 14 So.3d at 234 (‘Where the statute’s language is clear or unambiguous, courts need not employ principles of statutory construction to determine and effectuate legislative intent.”). Therefore, based on the clear and unambiguous language of section 924.06(2), we find that the First District’s interpretation of section 924.06(2) as raising a procedural bar to appellate review of Tasker’s claim was incorrect.

Accordingly, based on the foregoing, we hold that a claim of scoresheet error on the initial CPC sentencing scoresheet utilized when a defendant is placed on probation may be raised for the first time after revocation of probation; and if the claim of error is timely raised in a rule 3.800(b)(2) motion during appeal from the revocation of probation, the claim is preserved for review in that appeal. Because Tasker raised his claim of scoresheet error in a properly filed motion under rule 3.800(b)(2), we find his claim was preserved for appellate review.

CONCLUSION

Based on the foregoing, we quash the decision of the First District in Tasker v. State, 12 So.3d 889 (Fla. 1st DCA 2009), and remand for determination of Tasker’s claim that forty sexual contact victim injury points were improperly included on his scoresheet. We approve the decisions of the Second District Court of Appeal in Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007), Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999), and Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999).

It is so ordered.

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

CANADY, C.J., concurring with an opinion.

POLSTON, J., dissenting with an opinion.

CANADY, C.J.,

concurring.

I agree with the majority’s decision that a claim of scoresheet error pertaining to victim injury points that were included in the Criminal Punishment Code (CPC) scoresheet filed in the initial sentencing proceeding in which the defendant was placed on probation — pursuant to a negotiated plea agreement — may be raised for the first time in a timely motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) during the appeal from the sentencing following revocation of probation. I write separately to articulate why, given the procedural posture of this case, Jamie Lee Tasker’s claim is not procedurally barred.

Section 924.06, Florida Statutes (2007), sets forth the circumstances when a defendant may appeal from a criminal proceeding. Section 924.06(2) states that “[a]n appeal of an order revoking probation may review only proceedings after the order of probation.” A challenge to a “proceeding” can only be understood to mean a challenge to the validity of a proceeding or a challenge to a specific determination or determinations made in a proceeding. By limiting a defendant’s right to appeal following an order revoking probation to “proceedings after the order of probation,” the statute prohibits the defendant from challenging determinations that were litigated or could have been litigated in connection with the imposition of probation— such as a conviction that was the basis for the imposition of probation.

In Tasker’s case, the determinations made for purposes of completing the CPC sentencing scoresheet were not at issue until the sentencing following revocation of probation. The propriety of the sexual contact victim injury points were not litigated and could not have been litigated at the time probation was imposed. The limitation in section 924.06(2), Florida Statutes, therefore has no application here.

Tasker received probation as the result of a negotiated plea agreement. Tasker, his defense counsel, and the State Attorney negotiated a plea agreement under which Tasker pleaded guilty to charges of lewd and lascivious molestation of a child twelve years of age or older but under the age of sixteen and child abuse. Under the agreement, Tasker faced up to twelve months of incarceration in the county jail and ten years of sex offender probation. A CPC scoresheet was prepared for this initial sentencing, as required by Florida Rule of Criminal Procedure 3.704(d)(1). The CPC scoresheet included forty victim injury points based on sexual contact and stated that the lowest permissible prison sentence for the offenses was 72.15 months. The trial court, however, accepted the plea agreement and imposed a downward departure sentence. The trial court withheld adjudication and directed that Tasker serve six months in the county jail followed by concurrent terms of probation on the two counts.

Because the trial court imposed jail time and probation rather than sentencing Tasker to prison pursuant to the CPC scoresheet, the determinations made for purposes of completing the CPC score-sheet were not at issue during the initial sentencing proceeding. Given the plea agreement with the State Attorney, which was accepted by the trial court, Tasker had no reason to object to the scoresheet points. Had the trial court rejected the plea agreement, Tasker would have had an opportunity to withdraw his plea and litigate the propriety of the scoresheet calculations at that time. See Goins v. State, 672 So.2d 30, 31 (Fla.1996) (“[W]hen there has been a firm agreement for a specified sentence and the judge determines to impose a greater sentence, the defendant has the right to withdraw the plea. Fla. R.Crim. P. 3.172(g).”). But in this case, the trial court accepted the negotiated sentence, rendering the details of the score-sheet immaterial to the proceeding.

Furthermore, given the disposition pursuant to the plea agreement, Tasker had no legal ability to then challenge on appeal the assessment of points on the CPC scoresheet. Section 924.06(3) states that a “defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue ... shall have no right to a direct appeal.” (Emphasis added.) In Tasker’s case, the points on the scoresheet were not relevant to — much less legally dispositive of — the trial court’s order of incarceration and probation, which was based on the plea agreement. Thus, the inclusion of victim injury points on the CPC scoresheet was not a determination that could have been litigated by the defendant at the time of the initial sentencing.

Given the procedural posture of this case, Tasker did not have a meaningful opportunity to challenge the imposition of the sexual contact victim injury points until the sentencing proceeding following revocation of his probation. After that sentencing proceeding, Tasker properly preserved the issue for appellate review by filing a timely rule 3.800(b)(2) motion in the trial court. Accordingly, Tasker’s appellate claim that the sexual contact victim injury points were improperly included in his CPC scoresheet should have been considered on its merits by the First District Court of Appeal.

I recant the contrary view expressed in my specially concurring opinion in Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007).

POLSTON, J.,

dissenting.

I agree with the First District Court of Appeal that section 924.06(2), Florida Statutes, procedurally bars Tasker from challenging victim injury points that were included on his original scoresheet in 2005. See Tasker v. State, 12 So.3d 889 (Fla. 1st DCA 2009). Section 924.06(2) limits those issues that may be considered on appeal from an order revoking probation to only those “proceedings after the order of probation.” Therefore, Tasker cannot now challenge the victim injury points, which were assessed prior to his order of probation.

Tasker’s victim injury points appeared on his original scoresheet at his initial sentencing, which was the product of a negotiated plea. Tasker did not challenge the victim injury points at his original sentencing or at two subsequent hearings regarding violations of his probation. Id. at 890. Instead, Tasker waited until after his probation was revoked and he was sentenced to prison to challenge his original scoresheet. Id. In my view, Tasker cannot now attempt to utilize Florida Rule of Criminal Procedure 3.800 as a backdoor approach to preserving this issue for appeal. In order to preserve an argument challenging an original sentence under rule 3.800, Tasker was required to make a contemporaneous objection at the time he was sentenced. See Sims v. State, 998 So.2d 494, 504 (Fla.2008) (“In Florida, a specific, contemporaneous objection is necessary to preserve a sentencing error.”); State v. Montague, 682 So.2d 1085, 1088 (Fla.1996) (“[Ojnly sentencing errors ‘apparent on the face of the record do not require a contemporaneous objection in order to be preserved for review.’ ” (quoting Taylor v. State, 601 So.2d 540, 541 (Fla.1992))); Forehand v. State, 537 So.2d 103, 104 (Fla.1989) (“[A] contemporaneous objection is not necessary to preserve the appeal of either an illegal sentence or an unauthorized departure from the sentencing guidelines. Absent a contemporaneous objection, however, sentencing errors must be apparent on the face of the record to be cognizable on appeal.” (citing Dailey v. State, 488 So.2d 532 (Fla.1986); State v. Whitfield, 487 So.2d 1045 (Fla.1986))). Yet Tasker failed to object here, and no error is apparent on the face of the record.

Tasker received probation in lieu of jail time as part of a negotiated plea when, according to the computation of sentence points, Tasker could have been sentenced to up to twenty years in prison with a lowest permissible prison sentence of 72.15 months. That Tasker received only six months in jail followed by probation shows that he clearly benefited from the plea. Now that Tasker has violated the terms of his probation, he must accept the burden of his plea. Tasker should not now be allowed to evade his sentence by challenging victim injury points assessed on his original scoresheet by way of a rule 3.800 motion. Allowing him to do so will only discourage the State from negotiating pleas in the future. State v. Swett, 772 So.2d 48, 52 (Fla. 5th DCA 2000) (“[T]o permit the evasion of negotiated pleas and sentences by utilization of a Rule 3.800 motion in mitigation would discourage the state from entering into plea bargains in the future”).

The majority asserts that the revocation proceeding is a deferred sentencing hearing and thus qualifies as “after the order of probation.” I disagree. A deferred sentencing proceeding is not the same as resentencing which proceeds de novo. Rather, sentencing after revocation of probation involves the original scoresheet calculated at the original sentencing, minus those offenses for which the offender’s probation has been completed, and any “additional offense” that is “pending before the court for sentencing at the time.” Sanders v. State, 35 So.3d 864, 869 (Fla.2010); see also § 948.06(2)(b), Fla. Stat. (“If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.”). No rule provides that points assessed for victim injury can be relitigated at sentencing following a revocation of probation. Indeed, Tasker tacitly admitted to the sexual contact when he pled guilty as part of his negotiated plea. Therefore, I believe Tasker is prohibited from challenging victim injury points on appeal from his revocation of probation here.

Accordingly, I respectfully dissent.

      . Section 921.0021(7)(b)(2), Florida Statutes (2004), provides that if a conviction is for an offense involving sexual contact which does not include sexual penetration, the sexual contact must be scored on the Criminal Punishment Code sentencing scoresheet in accord with the provisions of section 921.0024, Florida Statutes (2004). Section 921.0024(l)(a) provides that forty victim injury points must be imposed for "sexual contact” not involving penetration.

      . We also amended Florida Rule of Appellate Procedure 9.140(e), to provide that a sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal, either “(1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” See Amendments to Fla. Rules of Appellate Procedure, 827 So.2d 888, 904 (Fla.2002) (emphasis added).

      . This provision was first enacted, in similar form, in 1959. See ch. 59-130, § 3, at 234, Laws of Fla.

      . The forty victim injury points complained of were assessed for "sexual contact.” As part of his negotiated plea, Tasker pled guilty to a violation of section 800.04(5) — lewd and lascivious molestation of a person less than sixteen years of age, or "[a] person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age.” § 800.04(5), Fla. Stat. Tasker pled guilty to both counts of the information; and Count I clearly states that Tasker "did then and there unlawfully and intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of L.T., a person 12 years of age or older but less than 16 years of age, contrary to Florida Statute 800.04(5)."

      . I disagree with the concurring opinion, which asserts that the victim injury points assessed on Tasker’s original scoresheet were never relevant until his sentencing after revocation of probation. See Canady, C.J., concurring op., 48 So.3d at 807. Section 921.0024(3), Florida Statutes, provides:
      A single scoresheet shall be prepared for each defendant to determine the permissible range for the sentence that the court may impose.... The scoresheet or score-sheets must cover all the defendant's offenses pending before the court for sentencing. The state attorney shall prepare the scoresheet or scoresheets, which must be presented to the defense counsel for review for accuracy in dll cases unless the judge directs otherwise. The defendant’s score-sheet or scoresheets must be approved and signed by the sentencing judge.

      (Emphasis added); see also Fla. R.Crim. P. 3.704(d)(1), (4). The scoresheet that is presented to the defense for a determination of accuracy is the very same scoresheet utilized by the judge in sentencing the defendant pursuant to the guidelines, which includes consideration of victim injuty points. See Fla. R.Crim. P. 3.704(d)(9).
      Furthermore, a trial judge is not required to accept the terms of a plea negotiation. See,

        e.g., State v. Williams, 667 So.2d 191 (Fla.1996). Before a trial judge can accept the plea he must determine whether the defendant entered into the negotiation voluntarily. See Fla. R.Crim. P. 3.172. In order to make a voluntariness determination, the trial judge is required to
      place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:
      (1) the nature of the charge to which the plea is offered, the maximum possible penalty, and any mandatory minimum penalty provided by law.
      Fla. R.Crim. P. 3.172(c). The minimum and maximum sentence necessarily includes consideration of the defendant’s scoresheet, which includes victim injury points.
      Therefore, regardless of whether the trial judge ultimately rejected the plea or accepted the terms of the agreement and imposed a short jail term and probation, as happened in this case, the victim injury points were at issue during the initial sentencing when the trial judge was making his voluntariness determination — after the scoresheet was presented to the defense for accuracy and when it was approved and signed by the sentencing judge. See § 921.0024(3), Fla. Stat; Fla. R.Crim. P. 3.172(c)(1).
      Accordingly, in my view, the time for objecting to the imposition of victim injury points was then, not during sentencing following revocation of probation.