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    Gary Michael HILTON, Appellant, v. STATE of Florida, Appellee.
    No. SC11-898.
    Supreme Court of Florida.
    March 21, 2013.
    Rehearing Denied July 2, 2013.

      Nancy Ann Daniels, Public Defender and William Carl McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Cheryl Dunlap disappeared from the Leon Sinks Geological Area in Leon County, Florida, on December 1, 2007. Her body was discovered in the Apalachicola National Forest on December 15, 2007. Gary Hilton, who had been seen in the area during that time, and who was convicted in Georgia for a similar crime, was charged with her kidnapping and murder. After trial, the jury convicted Hilton. After hearing penalty phase evidence, the jury unanimously recommended the death penalty. The court followed the jury’s recommendation and sentenced Hilton to death, finding six aggravating factors, one statutory mitigating factor, and eight non-statutory mitigating factors. This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm Hilton’s convictions and sentence.

FACTS

On February 28, 2008, a Leon County grand jury indicted Gary Michael Hilton for the first-degree murder of Cheryl Dunlap between December 1 and December 15, 2007, kidnapping, grand theft of a motor vehicle, and grand theft of currency. Hilton pleaded not guilty on March 14, 2008. Hilton proceeded to a jury trial commencing on February 2, 2011.

Cheryl Dunlap, 46, was last seen alive on December 1, 2007. That morning, Dunlap called a friend, Kiona Hill, and made arrangements to have dinner with her that evening. That afternoon, Dunlap went to Leon Sinks to read, where she was seen by Michael and Vikki Shirley at approximately 1:30 p.m. The Shirleys described that Dunlap was wearing jeans and a sweater and , carrying a hardback book. Dunlap did not arrive for dinner that evening and was missed at church the following morning by Tanya Land. Land went to Dunlap’s residence and found her dog, but noticed that her car was missing so she called the police. Steven Ganey of the Wakulla County Sheriffs Office took the missing person report on December 3, 2007.

Dunlap’s car, a white Toyota Camry, was found on December 3, 2007, on the side of Crawfordville Highway parked near the woods. The car had deliberate tire punctures in the sidewall that was later identified as a bayonet piercing. On December 1, the car had received a disabled vehicle ticket from Florida Highway Patrol Trooper Brian Speigner. Ganey testified that it appeared that someone had driven into the woods with all four tires intact and punctured the tire after the car had been parked. Dunlap’s purse was recovered in her car, but no money was found.

Dunlap’s Ameris Bank account records revealed that Dunlap cáshed a check with a drive-through teller at 11:17 a.m. on December 1. The records further revealed that three cash withdrawals were made at the ATM at Hancock Bank on West Tennessee Street on December 2, 3, and 4, 2007, totaling $700. In addition, two attempted withdrawals were declined because they exceeded the daily limit. The video from the security camera at the bank showed that the person making the transactions was wearing a blue and white patterned, long-sleeved shirt, glasses, a hat, and a make-shift mask made from tape.

Dunlap’s body was discovered on December 15 by Ronnie Rentz while he was hunting in the Apalachicola National Forest. Dunlap’s body was near a forest road and had been covered with some brush and limbs. Additionally, her head and hands had been removed. Dunlap’s body was identified using a sample of thigh muscle. Dr. Anthony Clarke, an associate medical examiner, performed the autopsy. Dr. Clarke opined that Dunlap’s head and hands had been removed by an instrument with a sharp blade and that the dismemberment occurred postmortem. The cause of death was not able to be determined, but Dr. Clarke opined that it was likely to have been a violent homicide. Additionally, Dr. Clarke noted that there was a significant pre-mortem bruise located on Dunlap’s middle to lower back and that the bruise was not consistent with a normal fall injury. Dr. Clarke estimated that Dunlap’s body could have been in the woods for seven to fifteen days. Dr. Clarke testified that his best estimate was that Dunlap died between December 5 and December 8, 2007.

On January 9, 2008, investigators found what they believed to be the remains of Dunlap’s head and hands in a fire pit at Joe Thomas campsite — approximately seven miles from where her body had been found. The bone fragments were charred. Because of the burn damage, no DNA was recoverable from the fragments. Dr. Anthony Falsetti, a forensic anthropologist, opined that there were two hands represented, that the bones were from an adult, and that the bones were from a person with small hands.

Several witnesses testified that they saw or encountered Gary Michael Hilton during the time period surrounding Dunlap’s disappearance. In late November 2007, George Ferguson encountered Hilton on LL Wallace Road. Hilton asked Ferguson for a jump start because his van, a white Chevrolet Astro, would not crank. Ferguson testified that it did not appear to him that Hilton actually needed the assistance. Ethan Davis provided similar testimony, that sometime in late November 2007, Hilton stopped him and asked for help starting his vehicle. Davis declined. Shawn Matthews also encountered Hilton in late November near his LL Wallace Road camp. Hilton appeared to be familiar with the area and told Matthews about a nearby sinkhole. On December 1, 2007, Celeste Hutchins saw Hilton on Crawfordville Highway, not far from Leon Sinks. Hutchins testified that Hilton was rummaging through a white Camry on the side of the road. On December 10, 2007, Loretta Mayfield spoke to Hilton at a convenience store on Crawfordville Highway. Mayfield testified that Hilton was wearing a blue and white patterned shirt. Hilton was also wearing something on his left side that looked like a large knife holder. Mayfield testified that the shirt she saw Hilton wearing looked like the one in the ATM security video. On December 11, 2007, Stephen Prosser saw Hilton in the Apalachicola National Forest. On December 12, 2007, Michael Travis saw Hilton in the forest near the Bloxham cutoff and then saw him again on December 14. On December 18, 2007, Teresa Johnson saw Hilton in Bristol, Florida, where Hilton told her that she looked like Dunlap and that it was “too bad” about that girl getting murdered.

Sometime between December 18, 2007, and January 1, 2008, Hilton made his way to Georgia where he kidnapped and murdered Meredith Emerson. Hilton took Emerson from Blood Mountain and held her for four days before murdering her. He cooperated with law enforcement in exchange for a life sentence. Hilton was arrested in Georgia after Stephen Shaw saw Hilton walk to the back of a convenience store in the direction of the store’s dumpsters and called law enforcement. Law enforcement officers recovered items Hilton was seen discarding in a dumpster at the convenience store. From the dumpster, law enforcement recovered a U.S. Forestry citation for unauthorized camping, a knife and sheath, Hi-Tec boots, some chain, a padlock, gloves, a jacket, a folding police baton, and a blue backpack. Hilton gave Georgia officials information on where to find his bayonet on a hiking trail on Blood Mountain in North Georgia. Later, Jeff Foggy, an FDLE tool mark expert, matched the bayonet to the puncture marks in Dunlap’s tire. Georgia law enforcement also gathered items from Hilton’s van. Items recovered from the van included clothing, jackets, gloves, camping equipment, duffel bags, two sleeping bags, Hi-Tec boots, a camera, tobacco rolling papers, Hilton’s Georgia driver’s license, tape, paper towels, maps, two BB pistols, a book purchased at a Tallahassee book store, and dog food.

On February 12, 2008, Sergeant David Graham and Detective Dawn Dennis with the Leon County Sheriffs Office executed a search warrant on Hilton while he was in custody in Georgia. Hilton’s DNA was collected and the entire execution of the warrant was recorded. Portions of the recording were played for the jury.

On June 6, 2008, Sergeant Graham and two other officers drove Hilton from Georgia to Florida. Although Hilton was not questioned, he spoke for nearly the entire five-hour drive, which was recorded. The State also played portions of this recording at trial. Hilton stated:

I’m not all bad. I mean, you got to understand, I mean, I’m sure you can see. I mean, I’m a [expletive] genius, man. I’m not a — I’m not all bad. I just, you know, lost my mind for a little bit. Lost a grip on myself, man. What can I tell you? FBI and everybody else is trying to scratch their head, hey, guys don’t get started doing my shit at 61 years old. It just don’t happen, you know. Like there’s a retired FBI (indecipherable) named Cliff Van, Clifford Van Zandt, that keeps getting himself in the news, talking about me. And he said, this guy didn’t just fall off the turnip truck, he said. You know, in other words, he’s been doing this. But like I told you before, you know, when I saw you before, I said, remember, I said I’d give you one for free. Nothing before September, okay? I mean, I’m not joking, okay? I just, I got old and sick and couldn’t make a living and just lost, flat lost my [expletive] mind for a while, man. I couldn’t get a grip on it.

Additionally, Hilton made statements to a fellow inmate at the Leon County Jail that were overheard by Correctional Officer Caleb Wynn. Specifically, Hilton told inmate Summers that he could answer all the State Attorney’s questions if he would give him a life sentence, that he would reveal where the head was located, that his bayonet was used on Dunlap’s tire, that he would explain how he “pulled it off’ on a busy highway, that he spent a few hours or a few days with Dunlap, and that he felt no regret other than getting caught.

The penalty phase began on February 17, 2011, during which the state called Clay Bridges of the Georgia Bureau of Investigation. Agent Bridges testified about Hilton’s prior felony conviction — the murder of Emerson in Georgia to which Hilton pleaded guilty. The State played Hilton’s taped conversation with law enforcement where he described kidnapping Emerson, holding her captive, and stripping her body naked to remove DNA and fiber evidence. He also stated that “you either kill them or you get caught.”

Hilton presented four expert witnesses who testified regarding his psychological condition: Dr. Joseph Wu, a psychiatrist and clinical director of the Brain Imaging Center at the University of California, Irvine; Dr. Charles Golden, a clinical neu-ropsychologist performing neuropsychological testing and examinations; Dr. Abbey Strauss, a psychiatrist with special expertise in psychopharmacology; and Dr. William Morton, a board certified psychiatric pharmacist and professor; and nine lay witnesses. The State then called Dr. Greg Prichard in rebuttal.

On February 21, 2011, the jury recommended unanimously that Gary Hilton be sentenced to death for the murder of Cheryl Dunlap.

The trial court held the Spencer hearing on April 7, 2011. The State presented three victim impact witnesses: (1) Ms. Emma Blount, the victim’s aunt; (2) Laura Walker, the victim’s best friend; and (3) Gloria Tucker, the victim’s cousin. Hilton presented no witnesses.

The trial court found that the State had proven six aggravators beyond a reasonable doubt. Assigning weight to each ag-gravator, the trial court found: (1) the defendant was previously convicted of a violent felony (great weight); (2) the murder was committed in the course of a kidnapping (great weight); (3) the murder was committed to avoid arrest (moderate weight); (4) the murder was committed for pecuniary gain (some weight); (5) the murder was especially heinous, atrocious or cruel (HAC) (great weight); and (6) the murder was cold, calculated, and premeditated (CCP) (great weight).

The court also considered and weighed each mitigating circumstance proposed by Hilton and found one statutory mental mitigating factor — at the time of the murder Hilton was under extreme emotional distress (some weight). Under the catch-all provision, the trial court considered ten mitigating factors, finding that Hilton established eight of them and rejecting two. The court found: (1) Hilton grew up in an abusive household (some weight); (2) Hilton abused drugs, specifically Ritalin (some weight); (3) Hilton was deprived of a relationship with his biological father (moderate weight); (4) Hilton is already serving a life sentence so society is protected (some weight); (5) Hilton served his country in the U.S. military (very little weight); (6) Hilton suffered maternal deprivation and lack of bonding between mother and child (some weight); (7) Hilton was removed from his home and put into foster care when he was a child (some weight); (8) Hilton grew up in a financially poor family (not proven); (9) Hilton suffered a traumatic brain injury as a child (some weight); and (10) Hilton suffers from severe mental defects (not proven).

On April 21, 2011, the trial court followed the jury’s unanimous recommendation and sentenced Hilton to death. The court found beyond a reasonable doubt that the aggravators outweighed the miti-gators.

Collateral Crime Evidence

Hilton argues that his statements to law enforcement during his transport from Georgia to Florida should not have been introduced at trial because they constitute inadmissible Williams rule evidence because the statements were only relevant to show his propensity to commit crime. The State argues that the trial judge did not commit error in admitting the statements because Hilton did not state that he had committed other murders or crimes before he kidnapped Cheryl Dunlap. The State argues further that even if the statements constitute collateral crime evidence, they were still admissible to prove premeditation. Because the statements did not constitute similar fact or collateral crime evidence and were otherwise relevant and admissible to establish premeditation, we find that the statements were properly admitted.

Collateral crime evidence “is inadmissible when the evidence is relevant solely to prove bad character or propensity.” § 90.404(2)(a), Fla. Stat. (2008). We explained in McGirth v. State, 48 So.3d 777, 786-87 (Fla.2010), cert. denied, - U.S. -, 131 S.Ct. 2100, 179 L.Ed.2d 898 (2011), that:

[a]n appellate court will not disturb a trial court’s determination that evidence is relevant and admissible absent an abuse of discretion. Relevant evidence is generally admissible unless precluded by a specific rule of exclusion. 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. 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.; see also McCray v. State, 71 So.3d 848 (Fla.2011) (internal citations omitted) cert. denied, — U.S. -, 132 S.Ct. 1743, 182 L.Ed.2d 536 (2012).

During his transport from Georgia to Florida, Hilton talked practically nonstop for the entire nearly five-hour drive. During this time, Hilton made several statements that were played in front of the jury. At issue here, Hilton stated, “like I told you before, you know, when I saw you before, I said, remember, I said I’d give you one for free. Nothing before September, okay? I mean, I’m not joking, okay?” Hilton also stated repeatedly that he had “lost his mind” for a while. Hilton claims that these statements were evidence of collateral crimes. Hilton’s argument is without merit. The statements played for the jury did not implicate Hilton in a collateral crime, nor did they constitute similar fact evidence. Further, even if the statements constituted Williams rule evidence, they were admissible to demonstrate premeditation and were not introduced solely to demonstrate Hilton’s bad character or propensity. Furthermore, Hilton’s statement to law enforcement was ambiguous and did not directly implicate him in a collateral crime. Hilton’s statement that he began “hunting” in September did not correlate with any known crime at the time of his trial. Nothing in Hilton’s statement implies that Dunlap was not his first victim or implicates Hilton in a collateral crime. We do not find these statements constitute Williams rule evidence. Because Hilton’s statement was relevant to prove premeditation, we find that the trial court did not abuse its discretion in admitting the evidence. See § 90.404(2), Fla. Stat. (2008); see, e.g., Durousseau v. State, 55 So.3d 543 (Fla.2010), cert. denied, — U.S. -, 132 S.Ct. 149, 181 L.Ed.2d 66 (2011).

Dr. Prichard’s Testimony

Hilton argues that the trial court erred in permitting Dr. Gregory Prichard to testify about allegations of Hilton’s past criminal conduct during the penalty phase and that such testimony constituted improper nonstatutory aggravating circumstances. The State argues that Dr. Prich-ard was called as a proper rebuttal witness to dispute Hilton’s claim that he had done nothing wrong prior to this crime and that the change in his character was created by Ritalin. Because Hilton’s expert testimony opened the door for Dr. Prichard’s testimony, we find that the trial court properly admitted the testimony.

In considering the admission of evidence during the penalty phase of a trial, in Hildwin v. State, 531 So.2d 124, 127 (Fla.1988), we noted:

it must be remembered that there is a different standard for judging the admissibility and relevance of evidence in the penalty phase of a capital case, where the focus is substantially directed toward the defendant’s character. See § 921.141(1), Fla. Stat. (1987). In Elledge v. State, 346 So.2d 998, 1001 (Fla.1977), we pointed out that “the purpose of considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case.”
Thus, “evidence that would not be admissible during the guilt phase could properly be considered in the penalty phase.”

Perry v. State, 801 So.2d 78, 89-90 (Fla.2001).

In Perry, we found that the State’s “anticipatory rebuttal” was improper and that nothing in the record supported the State’s assertion that the defendant “opened the door” to be questioned about specific acts of past violence. Id. at 90 (citing Hildwin, 531 So.2d at 128). Here, however, Hilton’s penalty phase defense relied heavily on the assertion that Hilton was a law-abiding citizen prior to his exposure to Ritalin. Dr. Prichard’s testimony was provided in rebuttal to that assertion. We therefore find that the testimony in this case when “[vjiewed in context, ... was offered in rebuttal to the defense, not as a nonstatu-tory aggravator.” Zack v. State, 911 So.2d 1190, 1208 (Fla.2005). Accordingly, we deny relief on this claim.

Witness Sequestration

Hilton argues that the trial court erred in permitting Dr. Prichard to stay in the courtroom, despite the sequestration rule. Because we find that the trial court did not err in excluding Dr. Prichard from the sequestration rule, we deny relief on this claim.

We have previously provided that reason for the rule of witness sequestration is to avoid coloring a witness’s testimony by that heard from other witnesses, but that the rule is not an absolute that must be invoked at the mere request of counsel. See Randolph v. State, 463 So.2d 186,191 (Fla.1984) (citing Spencer v. State, 133 So.2d 729 (Fla.1961)). Section 90.616(2)(c), Florida Statutes (1997), allows an exception when a witness’s presence is shown by the party’s attorney to be essential to the presentation of the party’s cause, and the trial court has wide discretion in making that determination. See Knight v. State, 746 So.2d 423, 430 (Fla.1998).

Here, Dr. Prichard was permitted to stay in the courtroom upon the State’s request. Because the State was late filing its notice of intent to seek the death penalty, Dr. Prichard was prevented from examining Hilton. The State requested that he be excluded from the sequestration rule to give Dr. Prichard a chance to provide meaningful assistance to the State. He testified in rebuttal to the defense expert witnesses and did not serve as a fact witness. During cross-examination, Dr. Prichard stated that he “sat through the entire penalty phase ... and handed notes to Mr. Meggs.” Accordingly, we find that Dr. Prichard’s presence was essential to the presentation of the State’s cause and that the trial court did not abuse its discretion permitting Dr. Prichard to remain in the courtroom.

Aggravators

Hilton argues that the evidence was insufficient to establish the HAC and CCP aggravating circumstances and that the trial court erred in finding these circumstances applied in Hilton’s case. The State argues that the trial court properly relied on the circumstances surrounding a collateral murder. Because we find competent, substantial evidence in the record to support the trial court’s findings, we find no error.

“In reviewing an aggravating factor challenged on appeal, this Court’s task ‘is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance, and, if so, whether competent substantial evidence supports its finding.’ ” Douglas v. State, 878 So.2d 1246, 1260-61 (Fla.2004) (quoting Willacy v. State, 696 So.2d 693, 695 (Fla.1997)); see also Heyne v. State, 88 So.3d 113, 122 (Fla.), cert. denied, — U.S. -, 133 S.Ct. 574, 184 L.Ed.2d 377 (2012). In deciding whether a lower court erred in its finding of an ag-gravator, we do not reweigh the evidence to determine whether an aggravator was proven beyond a reasonable doubt but instead “review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” Franklin v. State, 965 So.2d 79, 98 (Fla.2007) (quoting Willacy, 696 So.2d at 695).

HAC

This Court has explained the meaning of the HAC aggravator as follows:

It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

State v. Dixon, 283 So.2d 1, 9 (Fla.1973); see also Guzman v. State, 721 So.2d 1155, 1159 (Fla.1998) (“The HAC aggravator applies 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.”). This Court has also stated that “[ujnlike the cold, calculated and premeditated aggravator, which pertains specifically to the state of mind, intent and motivation of the defendant, the HAC aggravator focuses on the means and manner in which death is inflicted and the immediate circumstances surrounding the death.” Brown, v. State, 721 So.2d 274, 277 (Fla.1998) (citing Stano v. State, 460 So.2d 890, 893 (Fla.1984)). Furthermore, we have held that “[i]n determining whether the HAC factor was present, the focus should be upon the victim’s perceptions of the circumstances as opposed to those of the perpetrator.” Lynch v. State, 841 So.2d 362, 369 (Fla.2003); see also Heyne, 88 So.3d at 122; McGirth, 48 So.3d at 794. The victim’s mental state may be evaluated in accordance with common-sense inferences from the circumstances. Swafford v. State, 533 So.2d 270, 277 (Fla.1988). “[F]ear, 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.” James v. State, 695 So.2d 1229, 1235 (Fla.1997); see also Swafford, 533 So.2d at 277; Hall v. State, 87 So.3d 667, 671-72 (Fla.2012). Additionally, we have held that the actions of the defendant preceding the actual killing are also relevant. Gore v. State, 706 So.2d 1328, 1335 (Fla.1997).

Here, the record demonstrates competent, substantial evidence that Dunlap was held anywhere from 2 days to a week prior to her murder, and that she was injured enough during that time to leave traces of her blood on several of Hilton’s items. The trial court’s inferences that the victim was likely terrified, suffering from emotional strain, or suffering during the time leading up to her murder are supported by our review of the record. Accordingly, we find that there is competent, substantial evidence contained in the record to support the trial court’s finding of HAC.

CCP

As it relates to the finding of CCP, we have stated:

To establish the CCP aggravator, the State must prove beyond a reasonable doubt that (1) 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); (2) the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); (3) the defendant exhibited heightened premeditation (premeditated); and (4) the murder was committed with no pretext of legal or moral justification.

McWatters, 36 So.3d at 640-41. “The CCP aggravator pertains specifically to the state of mind, intent, and motivation of the defendant.” Wright v. State, 19 So.3d 277, 298 (Fla.2009) (citing Brown v. State, 721 So.2d 274, 277 (Fla.1998)). The trial court’s determination of whether CCP is present in a case is based upon the totality of the circumstances. Hudson v. State, 992 So.2d 96, 115 (Fla.2008). CCP can be proved by circumstantial evidence. Pearce v. State, 880 So.2d 561, 576-77 (Fla.2004). CCP can be indicated by the circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course. Swafford, 533 So.2d at 277. It is the State’s burden to prove beyond a reasonable doubt that the murder was the product of cool and calm reflection and not an act of emotional frenzy or panic, or a fit of rage. Walker v. State, 957 So.2d 560, 581 (Fla.2007). “ ‘[T]he facts supporting CCP must focus on the manner in which the crime was executed, e.g., advance procurement of weapon, lack of provocation, killing carried out as a matter of course.’ ” Id. (quoting Lynch, 841 So.2d at 372). “ ‘Competent substantial evidence is tantamount to legally sufficient evidence, and [this Court] assesses] the record evidence for its sufficiency only, not its weight.’” McCoy v. State, 853 So.2d 396, 407 (Fla. 2003) (quoting Almeida v. State, 748 So.2d 922, 932 (Fla.1999)).

This Court has also found the heightened premeditation required to support CCP where a defendant has a lengthy period of reflection and the opportunity to abandon the plan but, instead, commits the murder. Alston v. State, 723 So.2d 148, 162 (Fla.1998). We explained in Alston that where the defendant had ample opportunity to release the victim but instead, after substantial reflection, “acted out the plan [he] had conceived during the extended period in which [the] events occurred,” heightened premeditation was proven. Id. (quoting Jackson v. State, 704 So.2d 500, 505 (Fla.1997)) (citation omitted); see also Looney v. State, 803 So.2d 656, 679 (Fla.2001).

The trial court’s finding of CCP in this case is supported by competent, substantial evidence. Hilton’s statements to law enforcement demonstrate that he killed as a matter of course. He describes his own actions as “hunting.” Although the manner of killing was not able to be established, the method of disposal of the victim’s body was calculated and carried out after a period of needed reflection. Hilton’s statements on the self-made video and to a fellow inmate describe being with the victim for a long enough time for careful reflection. Accordingly, we And that the trial court did not err in finding this aggravating factor.

Mitigation

Hilton argues that that trial court improperly rejected the lack of capacity mitigating factor and failed to provide reasons why there is substantial, competent evidence in the record to support the rejection of the mitigating circumstance. The State argues that the trial court properly weighed the experts’ testimonies and found the State’s expert’s opinion more credible.

In rejecting this mitigating factor, the trial court stated, “[t]he Court finds that Dr. Prichard’s testimony was more credible and more consistent with the other evidence in the case as to this point. The Court finds that this factor in mitigation was not proven.” A trial court may reject a defendant’s claim that a mitigating circumstance has been proven as long as the record contains competent substantial evidence to support the trial court’s rejection of the mitigation. See Spencer, 645 So.2d at 385. Even expert testimony may be rejected if it cannot be reconciled with the other evidence in the case. See Coday v. State, 946 So.2d 988, 1005 (Fla.2006). Here, the testimony was not uncontrovert-ed and, “[i]t is apparent from the ... trial judge’s sentencing order that he considered the expert testimony presented in support of these factors but found this testimony unpersuasive.” Roberts v. State, 510 So.2d 885, 894 (Fla.1987). Accordingly, we deny relief on this claim.

Ring Claim

Hilton argues that this Court should reexamine its holdings in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Because Hilton was convicted of murder that occurred in connection with a kidnapping and because Hilton had previously been convicted of a prior violent felony, we find his request without merit. We have repeatedly rejected this argument when either aggravating factor is present. See McMillian v. State, 94 So.3d 572 (Fla. 2012), cert. denied, - U.S. -, 133 S.Ct. 1260, 185 L.Ed.2d 203 (2013); Heyne v. State, 88 So.3d 113, 120 n. 2 (Fla.2012); Kopsho v. State, 84 So.3d 204, 220 (Fla.), cert. denied — U.S. -, 133 S.Ct. 190, 184 L.Ed.2d 97 (2012); Hodges v. State, 55 So.3d 515, 540 (Fla.2010), cert. denied, — U.S. -, 132 S.Ct. 164, 181 L.Ed.2d 77 (2011).

Sufficiency

Hilton does not challenge the sufficiency of the evidence to support his convictions. However, this Court independently assesses the sufficiency of the evidence to determine whether it is legally sufficient. See Crain v. State, 894 So.2d 59, 72 (Fla.2004) (“... in capital cases, this Court independently assesses the sufficiency of the evidence to determine if it is legally sufficient.”). Based on our review of the record, we find that there is competent substantial evidence to sustain the convictions in this case.

Viewing the evidence in the light most favorable to the State, there is competent, substantial evidence to support Hilton’s convictions. See Bradley v. State, 787 So.2d 732, 738 (Fla.2001) (“In determining the sufficiency of the evidence, the question is whether, 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.”). Specifically, the evidence presented at trial demonstrated that Cheryl Dunlap disappeared on December 1, 2007, and that on December 15, her decomposing body was found beheaded and with her hands removed. Dunlap had been last seen on December 1, 2007, at Leon Sinks National Park. Her car was located abandoned on Crawford-ville Highway on December 3 with a tire that had been punctured by an item later identified as Hilton’s bayonet. On December 1, witnesses saw a man rummaging through Dunlap’s car and later identified that man as Gary Hilton. Witnesses spoke with Hilton in surrounding areas during the time Dunlap was reported missing. Witnesses identified the clothing Hilton was wearing during that time period. On December 2, 3, and 4, a man matching Hilton’s build and wearing clothing similar to that described by witnesses used Dunlap’s ATM card and PIN at Hancock Bank on Tennessee Street to remove a total of $700 from her bank account. In a self-made video retrieved from a camera found in Hilton’s possession, Hilton is shown on December 3, 2007, talking to himself or his dog, describing hiding unknown items and killing “those b*tches.” Charred human bones, including a skull and hand bones, were found in a fire pit near a campsite where Hilton was seen by Shawn Matthews. In addition, this campsite also contained cigarette butts that contained Hilton’s DNA. Dunlap’s DNA was found on articles recovered from Hilton’s van, including two sleeping bags, Hilton’s duffel bag, some pants and on the Hi-Tec boots Hilton was seen discarding. Hilton was overheard by law enforcement telling a fellow inmate that he would tell them where the head was if they would give him a life sentence. On the drive from Georgia to Florida, Hilton told law enforcement that he had lost his mind, but hadn’t done anything before September. Based on this, we find the evidence sufficient to support the convictions in this case.

Proportionality

Although not raised by Hilton, we have an independent duty to review the proportionality of a death sentence. See McMillian, 94 So.3d at 581 (citing Bolin v. State, 869 So.2d 1196, 1204 (Fla.2004)); Hampton v. State, 103 So.3d 98 (Fla.2012), petition for cert. filed, No. 12-8923 (U.S. Feb. 20, 2013). A review of the evidence demonstrates that the proportionality of Hilton’s sentence of death is proportionate.

Here, the jury’s recommendation was unanimous. The trial court weighed the six aggravators proven by the State against the mitigation proven by Hilton and concluded that “the aggravating circumstances outweigh the mitigating circumstances in this case.” The aggravating circumstances found are supported by competent, substantial evidence and the record “fails to reveal any indication that the trial court abused its discretion in assigning little weight to the mitigation that was established.” Hampton, 103 So.3d at 121. We find that the imposition of the death sentence in this case is proportionate when compared to other death sentences that this Court has upheld. See, e.g., Hildivin v. State, 727 So.2d 193 (Fla.1998) (four aggravators: HAC, prior violent felony, pecuniary gain, and under sentence of imprisonment; two statutory miti-gators; and five nonstatutory mitigators); Johnston v. State, 841 So.2d 349 (Fla.2002) (prior violent felony, kidnapping, pecuniary gain, and HAC versus one statutory miti-gator and twenty-six nonstatutory miti-gators); Suggs v. State, 923 So.2d 419, 440 (Fla.2005) (sentence to death proportionate when the trial court found seven aggravating factors and three mitigating factors, including one statutory mental mitigator and this Court noted that the murder “particularly heinous and premeditated”); Owen v. State, 862 So.2d 687 (Fla.2003) (finding death sentence proportionate for 23 year old defendant, despite the presence of three statutory mitigators, including both mental mitigators and sixteen other mitigators where there was evidence of multiple stab wounds and the presence of multiple aggravators, including HAC, CCP, and a conviction for another murder); Rose v. State, 787 So.2d 786 (Fla.2001) (finding death sentence proportionate despite the presence of eleven nonstat-utory mitigators where trial judge found four aggravators-murder committed while on probation, prior violent felony, murder committed during a kidnapping, and HAC).

Conclusion

For the foregoing reasons, we affirm Hilton’s convictions and sentence of death. It is so ordered.

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

LEWIS, J., concurs in result.

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

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Mark Enrique ROUSSO, Respondent. The Florida Bar, Complainant, v. Leonardo Adrian Roth, Respondent.
    Nos. SC11-15, SC11-16.
    Supreme Court of Florida.
    March 28, 2013.
    Rehearing Denied July 1, 2013.

      John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Daniela Rosette, Bar Counsel, The Florida Bar, Miami, FL, for Complainant.
    Andrew Scott Berman of Young, Ber-man, Karpf & Gonzalez, P.A. and Brian Lee Tannebaum of Tannebaum Weiss, LLP, Miami, FL, for Respondents.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Mark Enrique Rousso and Respondent Leonardo Adrian Roth be found guilty of professional misconduct. The referee recommended sanctions of a twelve-month suspension for Rousso and a fifteen-month suspension for Roth. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact. We approve the referee’s recommendations as to guilt, except we disapprove the referee’s recommendation that Respondents be found not guilty of violating Rule Regulating the Florida Bar 5-l.l(a)(l) (Trust Account Required; Commingling Prohibited). For the reasons discussed herein, we disapprove the referee’s recommended sanctions of suspension and, instead, impose disbarments. We also disapprove the referee’s “equitable adjustment,” which reduced the amount of costs awarded to The Florida Bar.

FACTS

On January 5, 2011, The Florida Bar filed separate complaints against Respondent Mark Enrique Rousso (Case No. SC11-15) and Respondent Leonardo Adrian Roth (Case No. SC11-16). On that same date, the Bar filed a motion for consolidation. The cases were referred to a referee, who granted the motion for consolidation. The referee held hearings and made the following findings and recommendations.

The referee found that “100’s of millions of dollars passed through” the trust account of Respondents’ firm. The parties agreed that by the end of 2008 the measure of trust account imbalance was roughly $4.38 million. Respondents claim that Fernando Horigian, the firm’s non-lawyer bookkeeper (“Bookkeeper”), embezzled the $4.38 million. The referee found that no clear and convincing evidence established that Respondents misappropriated the $4.38 million or received any dii’ect benefit from the disappearance of the funds. Further, the referee reported that when the deficiencies in the account were discovered, “Respondents endeavored to honor every known client liability for trust account funds.”

Roth learned of the trust account deficiencies in April of 2008, but he did not fully comprehend the cause and scope of the problem until several months later. Rousso became aware of the trust account problem in December of 2008. From that point, Respondents took several actions to address the financial shortages, which included: (1) hiring outside counsel; (2) hiring an outside accountant and conducting an informal audit; (3) funding the trust account deficit from many sources; (4) contacting police and cooperating with the ensuing investigation; and (5) explaining the situation by telephone to the Bar via the ethics “hotline.” The Florida Bar asserts that Respondents’ actions were “too little, too late.”

The trust account deficits were covered by the firm’s malpractice insurer, credit lines, Respondents’ personal funds, funds borrowed from family, and money borrowed from a client, Mr. Hattim Kais Yor-di (“Yordi”). Roth solicited Yordi for a personal loan. Yordi traded a portion of his trust account credit for a “promissory note amounting to over $231 thousand.” Although Rousso did not solicit this loan to cover the trust account shortfall, he did benefit by the exchange of the promissory note for the trust account liability. Respondents defaulted on the promissory note. The firm has disbanded and Respondents testified that they are insolvent.

Minimum Standards, Rule 5-1.2. The referee has recommended that this Court find Respondents guilty of violating Rules Regulating the Florida Bar 5-1.2(b) (Minimum Trust Accounting Records) and 5-1.2(c) (Minimum Trust Accounting Procedures), which set forth the required minimum standards for the maintenance of trust accounts. There is clear and convincing evidence that Respondents violated these rules by failing to: (1) examine endorsed checks to ensure against possible forgery; (2) prepare and maintain memo-randa to support the legitimate disbursement of trust funds to Respondents’ interests or business concerns (disbursements occurred at a time when the account could not cover client liabilities); (3) prepare and maintain a separate file or ledger for each client or matter showing individual receipts, disbursements, or transfers and any unexpended balance; and (4) cause a monthly reconciliation of the trust account to be made so that it could be compared to the total of the trust ledger cards or pages, together with specific descriptions of any differences between the two totals and reasons therefore.

The referee noted that Bookkeeper and his family allegedly fled to Argentina. His whereabouts are unknown. Respondents claim that the criminal acts of Bookkeeper could not be anticipated or thwarted. Although Respondents’ argument might hold true for an isolated and recent theft of trust funds, the massive amount of the $4.38 million deficit proves that Bookkeeper had been embezzling for months or even years. The referee found that if Respondents had adhered to the minimum standards required by the Bar rules, they would have been safeguarded against embezzlement. The pattern of theft could have been exposed before damage extended beyond the second month. Clearly, the ultimate responsibility for trust account funds rests with the attorneys. A lawyer’s responsibility for safekeeping of trust account funds cannot be delegated to a non-lawyer employee of the firm. Misappropriation by office staff does not relieve the lawyer from the requirements of the minimum standards regarding a trust account.

Commingling, Rule 5-l.l(a)(l). To cover the deficits in the trust account, Respondents used personal funds, funds borrowed from family, money borrowed from a client, funds from credit lines, and proceeds related to a claim against the firm’s malpractice insurer. These funds were personal to Respondents. Trust accounts are reserved for client funds related to lawyer representation and should not be used as a repository for a lawyer’s own property. See R. Regulating Fla. Bar 5-1.1(a)(1) (Trust Account Required; Commingling Prohibited). Despite this evidence, the referee recommended that Respondents be found not guilty of violating rule 5-1.1. However, the referee found that Respondents’ decision to fund the trust account with personal funds resulted in other acts of misconduct.

Conflict of Interest; Current Clients, Rule 4-1.7. After April 2008, Respondents deposited money other than client funds into the trust account. Also, they decided who received disbursements from the trust account and when funds were disbursed. The referee found that certain trust payees benefitted by Respondents’ “preference for early payment,” while other payees had to wait longer. In addition, there was “galling evidence” that Respondents distributed earned trust money to the firm’s operating account before distributing funds to clients. Thus, Respondents had conflicts of interest in representing their clients. The referee stated that no client should ever have cause to question the order of disbursements from an underfunded trust account. Some clients received trust funds sooner or later. For other clients, Respondents covered client trust account liabilities from non-trust account sources. Further, Yordi’s trust account credit was traded for a promissory note. Despite the conflicts of interest between Respondents and their clients as to how and when clients would receive preference in payment, Respondents continued to represent them.

Respondents could have continued representing these clients if the affected clients had given their informed consent. However, Respondents did not inform the clients that Bookkeeper had embezzled their money. Instead, Respondents decided to quietly cover the losses. Thus, the majority of clients were not advised of the situation and they did not provide their informed consent. As a mitigating factor, the referee found that Respondents sought to pay the trust account clients the amounts that belonged to them or provide them with a promissory note in lieu of the trust account liability.

Conflict of Interest; Prohibited and Other Transactions, Rule 4-1.8. Ordinarily, parties to a business negotiation are adverse and at arm’s length -with each other. Parties to negotiations have no duty to advise on whether the deal is fair to the other, so caveat emptor is the general rule. However, the attorney/client relationship necessitates an exception to the general rule. Roth had asked client Yordi for a loan. Yordi traded a portion of his trust account credit for a promissory note. This created a conflict of interest between Respondents and their client, Yordi. A lawyer, as a negotiating party with a client for a loan, is a lawyer first. Lawyers have advantages. They possess legal skills and training beyond those of their clients. They benefit by the clients’ expectation of loyalty and consequent trust. These advantages create the possibility that lawyers, in business transactions with their clients, will overreach. The Bar rules address these concerns. Lawyers are not to enter into a business transaction with their clients unless the requirements of rule 4-1.8(a) are met. Rule 4-1.8(a) requires that:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Both Respondents benefitted by the loan, yet neither Respondent transmitted in writing to Yordi that: (a) funds from outside sources were needed to cover embezzling from the trust account; (b) the measure of trust account imbalance was unknown (the investigation was still ongoing and Respondents were covering deficits as they emerged); (e) there was a risk that the firm might not survive the calamity and consequently a risk whether Respondents could pay back any loan; (d) Yordi should engage an independent lawyer for legal advice on the transaction; and (e) the loan could not consummate unless the client gave his informed consent.

Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation, Rule 4-8.4(c). The Bar asserts that Respondents engaged in misconduct involving dishonesty, fraud, deceit, or misrepresentation and thereby violated rule 4-8.4(c). With regard to the conduct that created conflicts of interest, the referee found that Respondents breached an affirmative duty to disclose the true conditions and advise their clients to seek informed consent. The referee recommended that this Court find Respondents guilty of violating rule 4-8.4(c). Their breach gave clients the false impression that financial matters were stable, when such matters clearly were not in a proper state. The referee found that Respondents’ conduct was dishonest, fraudulent, deceitful, and a type of misrepresentation, when they continued representing clients, and continued taking clients’ money and depositing it into the trust account, when Respondents knew the account was seriously underfunded. Also, the referee has recommended that Respondents be found guilty of violating rule 4-8.4(c) for taking new money into the trust account to pay older client liabilities while knowing that such action was only a delay tactic. Eventually, an unfunded payout would be due on the new money. The referee has further recommended that the Court find Respondents guilty of violating rule 4-8.4(c) for engaging in business transactions with a client at a time when there was a possibility — a possibility that was realized — that it would be difficult if not impossible to repay the debt owed to Yordi.

Recommendations as to Guilt

The referee recommended that Respondents be found not guilty of violating rule 5-1.1 (Trust account; commingling). The referee recommended that they should be found guilty of violating rules 5-1.2 (Trust accounting records and procedures); 4-1.7 (Conflict of interest; current clients); 4-1.8 (Conflict of interest; prohibited and other transactions); and 4-8.4(c) (Conduct involving dishonesty, fraud, deceit, or misrepresentation).

Determining the Appropriate Sanction

The referee found the enormous amount of the missing trust funds to be an aggravating factor. As the referee noted, but for the portion covered by the firm’s malpractice insurance earner and another portion covered with personal funds deposited by Respondents, the potential injury to clients would have totaled approximately $4.38 million.

In addition, the referee found that Respondents were incorrect in asserting that the entire $4.38 million deficit had been covered. Yordi loaned Respondents over $231,000 (by trading a portion of his trust account credit for a promissory note), which was used to cover the trust account shortage. Thereafter, Respondents defaulted on the loan from Yordi.

The funds from client Yordi present a serious breach of conduct. The referee found that Roth did not know the extent of the loss when he solicited Yordi for the loan. Further, Roth thought the firm would be able to repay the loan.

Respondents brought themselves to financial ruin by trying to correct the harm that Bookkeeper caused. The referee found Respondents’ efforts to cover client trust account liabilities to be a mitigating factor.

Recommended Disciplinary Sanction

The referee recommended that Rousso be suspended from the practice of law for twelve months and Roth be suspended for a period of fifteen months. Because Respondents were suspended pursuant to this Court’s orders imposing emergency suspensions on November 8, 2010, the referee recommended that the suspensions be effective nunc pro tunc, December 8, 2010, which is the effective date of the emergency suspensions. The referee stated that the difference in the recommended suspensions, twelve months for Rousso and fifteen months for Roth, is based on the fact that Roth solicited and procured the loan from Yordi.

As a condition for reinstatement, the referee recommended that Respondents must show evidence of full satisfaction and release of Yordi’s claim, with each Respondent responsible for half of the claim. Further, the referee awarded costs of $39,806.23 to The Florida Bar.

On Review

The Bar filed a petition for review of the report of referee, challenging the referee’s recommendation that Respondents be found not guilty of violating rule 5-1.1, the referee’s recommended sanctions of suspensions instead of permanent disbar-ments, and the referee’s reduction in the amount of costs awarded to the Bar. Respondents filed a cross-petition for review in which they challenge the referee’s recommendations that they be found guilty of violating rule 4-8.4(c).

ANALYSIS

First, The Florida Bar challenges the referee’s recommendation that Respondents should be found not guilty of violating rule 5-1.1 (Trust accounts). In reviewing a referee’s recommendations regarding guilt, the Court has stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005).

Rule 5-l.l(a) addresses commingling and provides:

(a) Nature of Money or Property Entrusted to Attorney.
(1) Trust Account Required; Commingling Prohibited. A lawyer shall hold in trust, separate from the lawyer’s ovm property, funds and property of clients or third persons that are in a lawyer’s possession in connection with a representation. All funds, including advances for fees, costs, and expenses, shall be kept in a separate bank or savings and loan association account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person and clearly labeled and designated as a trust account. A lawyer may maintain funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to pay bank charges relating to the tmst account.

(Emphasis added.) The record clearly demonstrates that Respondents knowingly engaged in commingling, which violates rule 5 — 1.1(a)(1). They placed their personal funds and loans from others into the trust account. By April 2008, Respondents had deposited $245,600 in personal funds to cover the account shortages. Further, on June 20, 2008, Rousso and Roth each deposited checks in the amount of $100,000 into the trust account. In July 2008, Yordi allowed Roth to use $231,223.68 of Yordi’s trust account funds as a personal loan. Roth used Yordi’s funds to address the shortages in the trust account. All of these deposits into the trust account constitute commingling. Despite these facts, which are in the record, the referee stated:

The decision to fund the trust account with personal funds did not offend the basic principles underlying the commingling proscription. The Respondents’ decision was founded on a sense of personal honor to make right the wrong wrought by the bookkeeper.

The referee found that Respondents “sense of personal honor” to correct the theft of funds justified the commingling. Case law, however, does not support the referee’s conclusion. In Florida Bar v. Cox, 718 So.2d 788 (Fla.1998), the respondent was found guilty of violating numerous Bar rules, including rule 5-1.1(a) for commingling. Id. at 791, n. 1. The respondent had received a business loan for $200,000 that he had wired into his trust account. In Florida Bar v. Brownstein, 953 So.2d 502 (Fla.2007), the respondent was found guilty of violating eight Bar rules, including rule 5-1.1(a). The respondent bounced checks on thirty occasions. To cover these checks, Brownstein, like Respondents, transferred other funds into the trust fund. Brownstein deposited funds from his operating account into his trust account. He was found guilty of violating rule 5-l.l(a) for commingling. Id. at 509, 512. Accordingly, because the record here does not support the referee’s recommendation, we disapprove the referee’s recommendation that Respondents be found not guilty of violating rule 5-1.1. We find Respondents guilty of violating rule 5-1.1 for commingling funds.

Second, Respondents contend that the referee violated their due process rights by recommending that they be found guilty of violating rule 4-8.4(c). They cite In re Ruffalo, 390 U.S. 544, 550-51, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), for the proposition that during Bar proceedings, an attorney is entitled to procedural due process, which includes fair notice of a charge so that an opportunity is afforded to him to form an explanation and defense. Respondents admit that the Bar alleged violations of rule 4-8.4(c) in the complaints, but they claim that the asserted violations only applied to the allegations of misappropriation. On this basis, Respondents argue that the referee has recommended that they be found guilty of violating rule 4-8.4(c) for matters that were not pled or argued by the Bar.

Respondents’ due process arguments are misleading. The Bar’s complaints set forth the alleged facts, which were the basis of these disciplinary cases. After presenting those facts, the Bar stated the rules Respondents allegedly violated at the end of the complaints. The complaints included rule 4-8.4(c). Thus, Respondents are incorrect when they claim that the complaints’ allegations regarding violations of rule 4-8.4(c) only applied to misappropriation. The complaints did not limit the consideration of rule 4-8.4(e) solely to possible misappropriation.

The Court has specifically held that “[t]here is no requirement for the Bar to connect every alleged item of misconduct to a specific rule violation.” Fla. Bar v. Committe, 916 So.2d 741, 745 (Fla.2005). Rather, the Bar is required to set forth the particular acts of conduct for which the attorney is sought to be disciplined. Id.; see also R. Regulating Fla. Bar 3-7.6(h)(1)(B) (Pleadings; Complaint; “Content. The complaint shall set forth the particular act or acts of conduct for which the attorney is sought to be disciplined.”). In this case, the Bar’s complaints specifically addressed the conduct it ultimately relied upon to prove that Respondents had violated their professional obligations, and the complaints included allegations that the conduct violated rule 4-8.4(c).

The determinative due process issue is whether Respondents were on notice of the nature and extent of the charges pending against them and had an opportunity to be heard. See Committe, 916 So.2d at 745; Fla. Bar v. Fredericks, 731 So.2d 1249, 1254 (Fla.1999). In Florida Bar v. Nowacki, 697 So.2d 828, 832 (Fla.1997), the Court stated:

We find that the conduct referenced by the referee in his report in this case, though not specifically pled in the Bar’s complaint, was clearly within the scope of the Bar’s accusations and respondent was clearly notified of the nature and extent of the charges pending against her.

(Emphasis added.) Here, the Bar’s complaints clearly notified Respondents of the nature and extent of the charges pending against them (which includes the conduct that the referee has recommended be found as violations of rule 4 — 8.4(c)), and Respondents had the opportunity to defend themselves. Accordingly, the referee did not violate Respondents’ due process rights because the allegations of misconduct and violations of rule 4-8.4(c) were pled in the complaints or were “clearly within the scope of the Bar’s accusations.” Nowacki, 697 So.2d at 832. We approve the referee’s recommendations that Respondents be found guilty of violating rule 4-8.4(c).

Third, the Bar challenges the referee’s recommended disciplinary sanctions of a twelve-month suspension for Rousso and a fifteen-month suspension for Roth. The Bar asserts that the appropriate discipline is permanent disbarment. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also Art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

In Florida Bar v. Riggs, 944 So.2d 167 (Fla.2006), the respondent engaged in various misdeeds, including misconduct regarding client funds, acts involving dishonesty and misrepresentation, and violations of trust account requirements. In part, Riggs failed to properly manage his trust account and he failed to manage the activities of his paralegal. Due to his failure to abide by the trust account rules and manage the trust account, the paralegal allegedly stole a portion of the trust account funds. Riggs, like Respondents, did not properly fulfill his responsibilities as an attorney regarding the trust account. He did not exercise the necessary care and discretion. Both Riggs and Respondents permitted non-attorney employees to handle the trust accounts without proper management by an attorney. Riggs was sanctioned with a three-year suspension.

Similarly, in Florida Bar v. Whigham, 525 So.2d 873, 874-75 (Fla.1988), the respondent was found grossly negligent in managing a trust account. The facts demonstrated that the respondent did not misappropriate the client funds. For failing to properly manage the trust account, the respondent received a three-year suspension. Id. at 875.

In light of Riggs and Whigham, we find that the referee’s recommended suspensions of twelve and fifteen months do not have a reasonable basis in existing case law. We disapprove the referee’s recommended sanctions.

The Bar argues that the appropriate sanctions for Respondents are permanent disbarments. The cases cited by the Bar in support of this argument involve misappropriation by the attorneys. Further, most of those cases resulted in disbarment, not permanent disbarment. See, e.g., Fla. Bar v. Martinez-Genova, 959 So.2d 241, 249 (Fla.2007) (the respondent was disbarred for misappropriating third-party funds and failing to maintain proper trust account procedures); Fla. Bar v. Brownstein, 953 So.2d 502, 512-13 (Fla.2007) (the respondent was disbarred for misappropriating client funds); Fla. Bar v. Graham, 605 So.2d 53, 56 (Fla.1992) (the respondent was disbarred for misappropriation of client funds). In this case, the referee specifically found that there was no clear and convincing evidence that Respondents misappropriated any of the $4.38 million. Further, the referee found that “[t]he bookkeeper alone caused those deficits” and Bookkeeper’s “embezzlement caused the injuries that followed.” Therefore, cases involving misappropriation are not on point.

In addition, the Court has stated that “permanent disbarment is warranted [ ] where the conduct of a respondent indicates that he is beyond redemption.” Fla. Bar v. Carlson, 183 So.2d 541, 542 (Fla.1966). Here, the referee found that “Respondents have extended themselves to financial ruin in an effort to make right the wrong done by the bookkeeper. Accordingly, to the credit of the Respondents, efforts to cover client trust account liabilities counts as a mitigator.” Based on the unique facts in this case, we find that disbarments, rather than permanent dis-barments, are the appropriate sanctions.

Like the respondents in Riggs and Whigham, Respondents failed to properly manage the trust account. As the referee stated, “Respondents cannot abdicate, by delegation to the bookkeeper, the ultimate responsibility for trust account maintenance .... ” Their failure to exercise care and discretion in managing the trust account resulted in a massive theft of client funds—approximately $4.38 million was stolen from the account. If Respondents had adhered to the minimum trust account requirements set forth in the Rules Regulating the Florida Bar, they could have safeguarded their clients from this enormous amount of theft. While recognizing Respondents’ argument that the funds had been stolen by Bookkeeper, the referee concluded that this argument might hold for an isolated and recent conversion of trust funds, but the sheer size of the $4.38 million deficit proves that Bookkeeper had been embezzling for many months, if not years. Respondents had tried to delegate their responsibilities to a non-lawyer employee in the firm, and did not effectively monitor the employee or the trust account. As the referee noted, the ultimate responsibility for the trust account monies rests with Respondents. They are the lawyers. See Fla. Bar v. Watson, 76 So.Sd 915, 923 (Fla.2011) (attorneys are responsible for managing the trust accounts). In Florida Bar v. Ward, 599 So.2d 650 (Fla.1992), the Court stated that lawyers have a “unique fiduciary duty,” individually and as a profession. “Never is an individual’s trust in attorneys more evident, or more at risk, than when he places funds or property into the hands of his attorney.” Id. at 652. Respondents abandoned their professional duty to safeguard their clients’ funds.

Next, once Respondents were aware of the financial shortages in the trust account, it took them an excessive length of time to seriously deal with the issues. Although Roth learned of the trust account deficiencies in April of 2008, Rousso was supposedly unaware of the problem until December of 2008. Yet the record shows that by April 2008, Respondents had deposited $245,600 in personal funds to cover the account shortages and that in June 2008 Respondents each deposited $100,000 checks into the trust account. Further, in July 2008, Roth used the $231,223.68 personal loan from Yordi to shore up the trust account. Respondents were not properly handling Bookkeeper’s theft of $4.38 million. As the record demonstrates, their actions were a tactic to delay the inevitable and, as the referee found, “[eventually, an unfunded payout would be due.”

Further, the actions that Respondents took to manage the drastic shortages in the trust account included additional acts of misconduct. Respondents accepted funds from clients when Respondents knew the account was underfunded. This was a conflict of interest. They did not inform clients of the firm’s financial issues when dealing with them, yet they continued to represent the clients. In addition, they were using this “fresh money” from some clients to satisfy past due client liabilities.

Also, Roth solicited the personal loan from client Yordi, which was a conflict of interest, and Respondents used those personal funds to bolster the trust account, which was commingling. Respondents engaged in additional acts of commingling by repeatedly depositing their personal funds into the trust account.

Respondents also committed violations of rule 4 — 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation) by taking money from clients and depositing it into the trust account, and continuing to represent those clients, without disclosing to the clients that the trust account was seriously underfunded. They also violated rule 4-8.4(c) by engaging in the business transaction with client Yordi at a time when they knew it would be difficult if not impossible to repay the debt to him. The Court does not view violations of rule 4-8.4(c) as minor. The Court has clearly stated that “basic, fundamental dishonesty ... is a serious flaw, which cannot be tolerated.” Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002).

After considering case law and the egregious misconduct present in this case, we conclude that disbarments are the appropriate sanctions.

When discussing the referee’s recommended sanction, Respondents challenge the referee’s recommendation that their readmission be conditioned upon full repayment of the loan from their client, Yor-di. They contend that their business arrangement with Yordi is a civil matter that should not be addressed in this disciplinary case. We disagree. Rule 3-10.1(c)(3) of the Rules of the Supreme Court Relating to Admissions to the Bar requires applicants seeking admission to The Florida Bar to demonstrate that they “conduct financial dealings in a responsible, honest, and trustworthy manner.” In addition, rule 3-11(g) provides that conduct which is disqualifying for admission includes “financial irresponsibility.” Therefore, we approve the referee’s recommendation that Respondents must demonstrate that they have fulfilled their settlement agreement with Yordi before they can be readmitted to membership in The Florida Bar.

Finally, the Bar challenges the referee’s reduction in the amount of costs awarded to the Bar. Before the referee, the Bar sought costs totaling $70,826.23, which were set forth in an itemized statement of costs. After considering Respondents’ objection to the Bar’s request for payment of costs, the referee applied an “equitable adjustment” and awarded reduced costs of $39,806.23 to the Bar. The referee’s equitable adjustment was an abuse of discretion.

Respondents argued that the Bar was “seeking reimbursement for a fixed cost,” which was the hours worked by the Bar’s Staff Auditor. Respondents asserted that because the Staff Auditor is a salaried employee, they should not have to pay for the significant time he had to devote to working on their cases. Respondents are misguided. Staff Auditor costs are specifically taxable under rule 5-1.2(f). Further, as the Bar notes, the audit was time-consuming and costly because Respondents delayed in providing the proper trust account records. The referee had to order them to comply. Also, the records that were provided were doctored and flawed, which Respondents attribute to Bookkeeper’s efforts to conceal his misdeeds; nevertheless, these facts caused the audit and investigation to require additional time and effort. Plainly stated, the cost of the audit is due to Respondents’ own actions — they failed to abide by the Bar rules regarding trust accounts and they failed to properly provide the required information. As the Court stated in Florida Bar v. Lechtner, 666 So.2d 892, 894-95 (Fla.1996), “[t]he choice is between imposing the costs of discipline on those who have violated our Rules of Professional Conduct or on the membership of the Bar who have not. In these situations, it is only fair to tax those costs against the member who has violated the rules.” (Citations omitted.)

Before the referee, Respondents also argued that they were unable to pay the Bar’s costs. This argument is not a basis to reduce an award of costs. In Lechtner, the Court specifically concluded that it is “an abuse of discretion for the referee not to assess costs against [the] guilty respondent” based on the respondent’s inability to pay the Bar’s costs. (Emphasis added.) “[B]ut for [the attorney’s] misconduct, there would have been no complaint and, thus, no costs.” Fla. Bar v. Miele, 605 So.2d 866, 868 (Fla.1992). In the present case, the referee’s determination that the Staff Auditor costs should be reduced as an “equitable adjustment” was an abuse of discretion and contrary to the Court’s case law.

We disapprove the referee’s adjustment of costs and, instead, award the Bar its costs of $70,826.23.

CONCLUSION

Accordingly, we approve the referee’s findings of fact and recommendations as to guilt, except we disapprove the referee’s recommendation that Respondents be found not guilty of violating rule 5-1.1(a)(1). We find Respondents guilty of violating the rule. Also, we disapprove the referee’s “equitable adjustment” in the amount of costs awarded to The Florida Bar. Further, we disapprove the referee’s recommended sanctions of suspension. Respondent Mark Enrique Rousso and Respondent Leonardo Adrian Roth are hereby disbarred. The disbarments are effective nunc pro tunc, December 8, 2010, the effective date of the emergency suspensions. Because Respondents are already suspended, they do not need thirty days to close down their practices to protect the interests of existing clients. Respondents shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Respondents shall accept no new business until Respondents are readmitted to The Florida Bar.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Respondent Mark Enrique Rousso and Respondent Leonardo Adrian Roth in the amount of $70,826.23, with each Respondent being responsible for payment of half of the total costs, for which sum let execution issue.

It is so ordered.

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

      . Disbarments are also supported by Florida Standards for Imposing Lawyer Sanctions 5.11(f) (disbarment is appropriate when a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice); 6.11(b) (disbarment is appropriate when a lawyer improperly withholds material information and causes serious or potentially serious injury to a party); and 7.1 (disbarment is appropriate when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional, with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system).


text:
    Rodney McCUTCHEON, Petitioner, v. STATE of Florida, Respondent. Rodney McCutcheon, Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC12-414, SC12-454.
    Supreme Court of Florida.
    April 25, 2013.
    Rehearing Denied June 27, 2013.

      Rodney McCutcheon, pro se, Okeechobee, FL, for Petitioner.
    No appearance for respondents.
   PER CURIAM.

Rodney McCutcheon, an inmate in state custody, filed pro se petitions for writs of habeas corpus with this Court in these two cases that have now been consolidated for purposes of this opinion. We dismissed the petitions in these cases by way of unpublished orders, determining that the petitions were unauthorized pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004). In disposing of the petitions, we expressly retained jurisdiction to pursue possible sanctions against McCutcheon. See Fla. R.App. P. 9.410(a).

In 1972, McCutcheon was convicted and sentenced to life imprisonment for committing capital sexual battery in Broward County, Florida (case No. F72-23029). In a separate case, he pled to and was adjudicated guilty of the offense of unlawful use of a motor vehicle (case No. F72-17985). McCutcheon was paroled from his prison sentence for a time; however, his parole was revoked in 1990 when he was convicted of trafficking in stolen property in Broward County (case No. F89-22827).

Since his parole was revoked, McCut-cheon has unsuccessfully attempted collateral attacks on his present sentence in the courts below. Since 1992, McCutcheon has filed multiple pro se extraordinary writ petitions and other proceedings with this Court seeking relief from his conviction and sentence. We observe that in none of the petitions McCutcheon filed in this Court has any relief been granted. Because the petitions filed in the instant consolidated cases were dismissed as unauthorized and also were the ninth and tenth pro se proceedings initiated by McCut-cheon in this Court pertaining to his criminal cases, we issued an order directing McCutcheon to show cause why he should not be prohibited from filing any further pro se filings in this Court related to his criminal cases, unless such filings are signed by a member in good standing of The Florida Bar. After considering McCutcheon’s response, we conclude that it fails to show cause why he should not be sanctioned. We further conclude that McCutcheon’s unauthorized petitions are frivolous proceedings brought to this Court by a prisoner. See § 944.279, Fla. Stat. (2012). McCutcheon has compiled a history of pro se filings in this Court that, like the instant habeas corpus petitions, were devoid of merit or inappropriate for review in this Court.

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Rodney McCutcheon that are related to case numbers F72-23029, F72-17985, or F89-22827, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on McCutcheon’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, since we have found McCutcheon’s petitions to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2012), to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where McCutcheon is incarcerated.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

      . See id. at 1245-46 ("[W]e will dismiss as unauthorized, habeas corpus petitions filed by noncapital defendants that seek the kind of collateral postconviction relief available through a motion filed in the sentencing court, and which (1) would be untimely if considered as a motion for postconviction relief under rule 3.850, (2) raise claims that could have been raised at trial or, if properly preserved, on direct appeal of the judgment and sentence, or (3) would be considered a second or successive motion under rule 3.850 that either fails to allege new or different grounds for relief, or alleges new or different grounds for relief that were known or should have been known at the time the first motion was filed.”).

      . McCutcheon v. State, No. SC12-414 (Fla. May 4, 2012), and McCutcheon v. State, SC12-454 (Fla. May 4, 2012) (dismissing petitions in each case and ordering petitioner to show cause why sanctions should not be imposed and why the petitions should not be deemed frivolous for purposes of applying section 944.279(1), Florida Statutes (2011)).

      . See, e.g., McCutcheon v. State, et. seq., 44 So.3d 156, 161-62 (Fla. 4th DCA 2010) (Nos.4D09-2192, 4D09-3770, 4D09-4546, 4D10-304, 4D10-573) (affirming judgments denying postconviction and habeas corpus relief; finding the appeals to be frivolous, malicious, and not brought in good faith; and ordering appellant to show cause why court sanctions should not be imposed).

      . See, e.g., McCutcheon v. State, 75 So.3d 1245 (Fla.2011) (table) (notice to invoke, review denied for lack of jurisdiction); McCutcheon v. State, 75 So.3d 1245 (Fla.2011) (table) (notice to invoke review denied for lack of jurisdiction); McCutcheon v. Beuttenmuller, I Clerk, 73 So.3d 760 (Fla.2011) (table) (manda-I mus petition denied on the merits); McCutcheon v. Tucker, 90 So.3d 272 (Fla.2012) (table) (prohibition petition transferred to the circuit court); McCutcheon v. State, 46 So.3d 566 (Fla.2010) (table) (prohibition petition denied); McCutcheon v. State, 915 So.2d 1196 (Fla.2005) (table) (all writs petition dismissed for lack of jurisdiction); McCutcheon v. State, 829 So.2d 918 (Fla.2002) (table) (habeas corpus petition denied as procedurally barred); McCutcheon v. State, 599 So.2d 1279 (Fla.1992) (table) (petition for review dismissed).

        . See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) ("[I]t is important for courts to first provide notice and an opportunity to respond before preventing that litigant from bringing further attacks on his or her conviction and sentence.”).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing the scarce judicial resources of this Court. See, e.g., James v. Tucker, 75 So.3d 231 (Fla.2011); Johnson v. Bundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Tate v. McNeil, 983 So.2d 502 (Fla.2008).

      . See, e.g., James, 75 So.3d at 232; Johnson, 59 So.3d at 1082; Steele, 14 So.3d at 224.


author: LOGUE, J.

text:
    SUNBEAM TELEVISION CORP., Appellant, v. CLEAR CHANNEL METROPLEX, INC., Clear Channel Broadcasting Licenses, Inc., GFS Corp., Isle of Dreams, LLC, and Lexi Development Co., Inc., Appellees.
    No. 3D12-2138.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 2012.
    Ross & Girten, and Lauri Waldman Ross; Colson Hicks Eidson, and Joseph M. Matthews and Julie B. Kane, for appellant.
    Shubin & Bass, P.A., and Jeffrey S. Bass and David R. Hazouri, for appellee, Isle of Dreams, LLC.
    Tripp Scott, P.A., and Amy J. Galloway and Salvatore H. Fasulo, for appellees, Clear Chanel Metroplex, Inc. and Clear Channel Broadcasting Licenses, Inc.
    Before SHEPHERD, SALTER and LOGUE, JJ.
   On Motion for Stay

LOGUE, J.

Appellant, Sunbeam Television Corporation (“Sunbeam”), asks us to grant a stay pending appeal. In the alternative, Sunbeam asks us to issue a writ of mandamus.

The Florida Rules of Appellate Procedure envision that a motion for a stay on appeal be presented in the first instance to the trial court. See Fla. R.App. P. 9.310(a), (f) (2012). In order to prevail on such a motion, a party must establish: (1) a likelihood of success on the merits, and (2) a likelihood of harm absent the entry of a stay. Campbell v. Chitty, — So.3d(Fla. 1st DCA 2012); Perez v. Perez, 769 So.2d 389, 391 (Fla. 3d DCA 1999). The trial court’s decision is then subject to review by this Court under the highly deferential abuse of discretion standard. Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005). The idea is that the court most familiar with the controversy is in the best posture to determine the appropriateness and conditions of a stay. See City of Sarasota v. AFSCME Council ’79, 563 So.2d 830, 830 (Fla. 1st DCA 1990) (“Generally, the lower tribunal has broad discretion in the matter of a stay.”); see also Pabian v. Pabian, 469 So.2d 189, 191 (Fla. 4th DCA 1985) (“[T]he trial court has considerable latitude in controlling the circumstances under which the proceedings may be stayed pending review.”) (citation and internal quotations omitted).

Sunbeam asks us to rule on its stay request, based on the assertion that the stay request should be treated as denied because the trial court has not ruled on the request. Sunbeam asserts in the alternative that, because the trial court has yet to rule on its stay request, we should issue a writ of mandamus ordering the trial court to do so. We decline either alternative because the record reflects that Sunbeam still has avenues available to it to get this matter before the trial judge. While we note that there have been rare instances in which this Court has considered stay re-1 quests filed with the Court as an initial matter, pursuant to its jurisdiction under Florida Rule of Appellate Procedure 9.810(f) (2012), see, e.g., Perez v. Perez, 769 So.2d 389, 391 & n. 4 (Fla. 3d DCA 1999); Offerman v. Offerman, 643 So.2d 1184, 1184 & n. 1 (Fla. 5th DCA 1994), we decline to exercise that jurisdiction here.

For the reasons set forth above, we deny the appellant’s motion for stay and appellant’s motion for mandamus, without prejudice. In order to allow the appellant to obtain a ruling on its motion for stay pending before the trial court, however, we extend our temporary stay for thirty (30) days from the date of this order, or until the trial court has ruled on the motion for stay, whichever is sooner.

      . For example, the circuit court docket reflects that this case was noticed on October 2, 2012, by Sunbeam’s opposing counsel for a status conference to take place before the trial] judge on October 10, 2012. I


text:
    Maiko A. XAVIER and Gricell B. Perez, Appellants, v. LEVIEV BOYMELGREEN MARQUIS DEVELOPERS, LLC, Appellee.
    No. 3D11-549.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2012.
    Maiko A. Xavier and Gricell B. Perez, in proper persons.
    Akerman Senterfitt, and Dana A. Clayton, Miami, Nancy A. Copperthwaite, Miami, and Stacy J. Harrison, Miami, for ap-pellee.
    Before CORTINAS, ROTHENBERG, and LOGUE, JJ.
   LOGUE, J.

On November 10, 2009, Maiko A. Xavier and Gricell B. Perez (“the Buyers”) commenced a lawsuit against Leviev Boy-melgreen Marquis Developers, LLC (“the Developer”) for the return of a $175,000 deposit relating to a real estate transaction dating back to August 2, 2005. The Buyers’ amended complaint was dismissed with prejudice on the grounds that it was filed outside the four-year statute of limitations. The Buyers appeal the dismissal.

If this case involved a standard cause of action for the violation of the terms of a real estate contract, it would be time-barred. The Buyers allege, however, that the transaction between the parties was far from usual. As a result of the Buyers’ allegations, the statute of limitations defense cannot be conclusively established as a matter of law from the face of the complaint. For this reason, we reverse and remand.

I.

In the amended complaint at issue, the Buyers alleged that they signed a pre-construction agreement to purchase unit 5005 in the Marquis, a condominium being built at 1100 Biscayne Boulevard in Miami, Florida. Attached to the amended complaint is a copy of the thirteen-page, single-spaced sales agreement for unit 5005, which details the parties’ rights and obligations. The sales agreement provides for, among other things, a purchase price of $875,000, an initial deposit of $87,500, and a subsequent deposit of an additional $87,500, cancellation within certain time limits, and return of deposits within thirty days of cancellation.

At this point, this straightforward real estate transaction detoured onto a road less traveled. The Buyers alleged that the sales agreement was canceled on August 2, 2005, the same day that it was signed. The Buyers attached to the amended complaint a signed and dated document entitled “Receipt, Agent Certification, and Cancellation Page,” which may support their claim in this regard.

The Buyers alleged that they canceled the sales agreement based upon the Developer’s oral representation that they could “swap” unit 5005, which had a city view, for a different unit, which had a bay view. In reliance upon “the understanding that a forthcoming written Agreement would be provided to them reflecting the correct bayside-view condominium,” the Buyers left their initial deposit with the Developers, and even made a second deposit, on an unstated date. The Buyers alleged that they inquired on undated occasions regarding “delivery of the corrected written agreement.”

Although several years passed with the Developer holding the deposits and without a new written contract, the Buyers maintain that they had no reason for concern until almost four years later, when the Developers gave formal notice that the closing on unit 5005 would occur on August 17, 2009. Until that notice, the Buyers assert, they had no reason to believe that the Developer intended to enforce the original sales agreement. The Buyers ultimately filed an amended complaint sounding in unjust enrichment, conversion, and fraudulent inducement.

The Developer moved to dismiss the amended complaint on the basis that the applicable statutes of limitations had run. The trial court dismissed the case with prejudice. This appeal followed.

II.

A trial court’s ruling on a motion to dismiss based on the statute of limitations is a question of law reviewed de novo. Saltponds Condo. Ass’n v. Walbridge Aldinger Co., 979 So.2d 1240, 1241 (Fla. 3d DCA 2008). In ruling on a motion to dismiss, all well-pled facts in the complaint are accepted as true; all reasonable inferences from those facts must be found in favor of the plaintiff; and exhibits to the complaint become part of the pleading. Blue Supply Corp. v. Novos Electro Mech, Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008); Thrasher v. First Nat’l Bank of Miami, 288 So.2d 288, 289 (Fla. 3d DCA 1974); Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”).

The statute of limitations for fraud is four years. § 95.11(3)(j), Fla. Stat. (2009). The four years, however, runs “from the time that the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence.” § 95.031(2)(a), Fla. Stat. (2009). In light of the alleged facts, and the principles governing the review of a motion to dismiss, we cannot say as a matter of law that the exercise of reasonable diligence would have caused the Buyers to have discovered the alleged fraud more than four years before November 10, 2009, the date this lawsuit was filed. Such a finding, if any, could only be based on a much more developed factual record than that before us.

The statute of limitations for conversion and unjust enrichment are, similarly, four years. The determination as to when these causes of action accrued and when the statute of limitation expired is also dependent on the development of a more detailed factual record. The date of the alleged conversion of the second deposit, for example, cannot be determined without knowing the date the deposit was made.

Because the face of the complaint does not establish that this action is time-barred, we reverse and remand for proceedings consistent with this opinion.


author: MORGAN, DAVID C., Associate Judge.

text:
    Eddie v. RUTLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5352.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Philip J. Massa of Philip J. Massa, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   MORGAN, DAVID C., Associate Judge.

Appellant, Eddie Rutledge, asks this court to declare sections 893.101 and 893.13, Florida Statutes (2007), facially unconstitutional and to vacate his conviction and sentence for possession of marijuana in excess of twenty grams. Alternatively, he asks this court to remand the cause for resentencing as a non-felon. Further, Rutledge claims the trial court committed fundamental error in denying his motion to suppress the evidence obtained from an alleged illegal stop where the court listened to hearsay testimony of the arresting officer as a substitute for the testimony of the actual informant in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We affirm on both issues raised by Rutledge, and each will be addressed in turn.

Rutledge was charged with carrying a concealed firearm and possession of marijuana in excess of twenty grams. He waived his right to a jury trial on the two charges and subsequently filed a motion to suppress physical evidence and statements stemming from the stop of his vehicle. Without objection, the trial court heard Rutledge’s motion to suppress and the nonjury trial simultaneously.

At the trial, a Palm Beach County Sheriffs deputy testified that on the day of the incident he received specific information from a confidential informant regarding a drug deal that was going to occur in a gas station parking lot between 10:30 and 11:30 p.m. later in the evening. The deputy had not worked with the informant pri- or to this case. The informant told the deputy that the person delivering the drugs could possibly be armed. At about 11:00 p.m., a vehicle matching the description provided by the informant was in the gas station parking lot. The deputy and other law enforcement officers conducted a traffic stop on the vehicle based on the deputy observing that the suspect vehicle had a taillight completely out and its windows had a dark tint.

When the deputy approached the vehicle, he noticed that Rutledge’s shirt was not tucked in, and that there was a bulge near the front center of his waistband. The deputy also smelled the odor of marijuana coming from the car. He and other officers repeatedly asked Rutledge to show his hands, but Rutledge failed to comply with the commands. The deputy then opened the door, grabbed one of Rutledge’s arms, and removed him from the vehicle. As Rutledge was being removed from the car, and without being asked, Rutledge stated that he had a gun. At this point, Rutledge was secured in handcuffs and a loaded handgun was removed from Rutledge’s waistband. A further search revealed that Rutledge had two bags of marijuana in his pants weighing an approximate total of 230 grams. Another loaded firearm was also found in the trunk of Rutledge’s vehicle.

After hearing argument from both defense counsel and the State, the trial court denied Rutledge’s motion to suppress. Specifically, the trial court found that the broken taillight justified the stop. Following this denial, and against counsel’s advice, Rutledge took the stand in his own defense and admitted that he possessed the firearm and marijuana. However, he testified that his firearm was not taken by the officers during the search. He claimed the gun was encased under the seat of his vehicle and accidentally came out of the vehicle when the officers removed him from the car. According to Rutledge, the police did not see the firearm; rather, he alerted them to it.

The trial court found him guilty as charged. He was ultimately sentenced by a different judge to five years in prison on each count, with the sentences to run concurrently. This appeal followed wherein Rutledge raises two issues as noted above.

First, Rutledge argues that the Florida legislature’s elimination of mens rea as an element of chapter 893, Florida Statutes, the Florida Comprehensive Drug Abuse and Control Act, renders the statute unconstitutional on its face. Therefore, Rutledge requests that we vacate his conviction and sentence for possession of marijuana in excess of twenty grams. However, after the filing of Rutledge’s initial brief, this argument was resolved by the Florida Supreme Court’s holding that sections 893.101 and 893.13 of the Florida Comprehensive Drug Abuse Act do not violate due process and thus are constitutional. See State v. Adkins, 96 So.3d 412, 420-23 (Fla.2012).

Rutledge’s alternative claim that “in order to construe the statute as a valid strict liability offense, the state and federal due process clauses require a penalty of less

than one-year incarceration and the removal of the stigmatie felony conviction” is also without merit. We have expressly held that possession of controlled substance in Florida is a general intent crime, not a strict liability crime. See Maestas v. State, 76 So.3d 991, 995-96 (Fla. 4th DCA 2011) (“Section 893.13 offenses are general intent crimes.... ”).

Finally, Rutledge argues that the trial court committed fundamental error in denying his motion to suppress the evidence obtained from the alleged illegal stop. Specifically, Rutledge alleges this fundamental error occurred when, in hearing both the motion to suppress and the facts of the trial, the court allowed hearsay testimony from the arresting officer to substitute for that of an untested confidential informant thereby denying Rutledge’s due process right of confrontation and cross examination in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In making this argument, Rutledge first concedes that the deputy’s stop of Rutledge’s vehicle “meets the standards set forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).” Thus, Rutledge recognizes that the broken taillight on the car he was operating provided the deputy with probable cause to believe Rutledge was committing a traffic infraction, forming an objective basis for the stop. The trial judge also recognized this analysis and specifically relied on it in denying the motion. However, Rutledge insists that the trial court’s denial of the motion to suppress was fundamental error because the trial judge also listened without objection to hearsay testimony from the deputy as to the information given by the informant. Put another way, the proposed fundamental error occurred when the trial judge also listened to, and rejected, an insufficient basis for the stop.

“A fundamental error is error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Tanzi v. State, 94 So.3d 482, 497 (Fla.2012) (citation omitted). The Florida Supreme Court has cautioned that “the doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Ray v. State, 408 So.2d 956, 960 (Fla.1981).

Here, the trial court recognized that the information from the informant was not sufficiently reliable to justify the stop and discarded the information in making its findings. As a result, the unpre-served alleged Crawford violation does not constitute fundamental error where the trial judge did not rely on this hearsay testimony. Moreover, while Rutledge does not appear to claim that the admission of the testimony tainted the nonjury trial itself, “[e]ven where a judge erroneously admits improper evidence, the judge as factfinder is presumed to disregard it.” Guzman v. State, 868 So.2d 498, 511 (Fla.2003). Thus, listening to the deputy’s hearsay testimony without objection as part of simultaneously hearing the motion to suppress and the nonjury trial was not fundamental error.

Affirmed.

STEVENSON and CIKLIN, JJ., concur.