source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tina Lasonya BROWN, Appellant, v. STATE of Florida, Appellee.
    No. SC12-2159.
    Supreme Court of Florida.
    May 15, 2014.
    Rehearing Denied July 8, 2014.

      Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Tamara Milosevic, Assistant Attorney General, Miami, FL, for Appellee.
   PER CURIAM.

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 reasons that follow, we affirm the conviction and the sentence imposed by the trial court.

FACTS AND BACKGROUND

In March 2010, Tina Brown, Brown’s sixteen-year-old daughter Britnee Miller, Heather Lee, and Audreanna Zimmerman lived in neighboring trailers in an Escam-bia County mobile home park. The four women were initially good friends, but their relationships — particularly between Miller, Brown, and Zimmerman — were volatile and often escalated to violence. Brown had previously accused Zimmerman of slashing her tires. Zimmerman had accused Brown of shattering a window in her car, having her boyfriend arrested, and reporting to the Florida Department of Children and Families that she was providing inadequate care to her children. Lee testified that she had intervened on multiple occasions to stop physical altercations between Miller and Zimmerman. On one occasion, Miller, who had recently discovered that Zimmerman was sexually involved with her boyfriend, attempted to strike Zimmerman. Zimmerman, however, defended herself by attempting to disable Miller with a stun gun. Later that day, Lee informed Brown that Zimmerman had used a stun gun on Brown’s daughter, to which Brown responded that she was “going to get” Zimmerman.

Several days later, on March 24, 2010, Brown invited Zimmerman to her home under the guise of rekindling their friendship. Before Zimmerman arrived, Brown, Miller, Lee, and Miller’s thirteen-year-old friend, were inside the trailer. Brown and Lee were in the kitchen, where Lee instructed Brown on the proper use of a stun gun. Miller then pulled her friend aside and told her, “we’re fixing to kill Audreanna [Zimmerman].” Shortly after 9 p.m., Zimmerman entered the trailer. Brown waited several minutes and then used the stun gun on Zimmerman multiple times. When Zimmerman lost muscular control and fell to the floor, Brown continued to use the stun gun on Zimmerman, who was screaming and crying for help. Eventually, Brown pulled Zimmerman across the trailer into the bathroom. Zimmerman continued to scream and cry for help, so Miller struck Zimmerman in the face and Lee stuffed a sock into Zimmerman’s mouth. Zimmerman was then forcibly escorted outside and forced into the trunk of Brown’s vehicle. Brown, Miller, and Lee then entered the vehicle and drove away.

The women drove to a clearing in the woods about a mile and a half from the trailer park. Brown exited the car and pulled Zimmerman out of the trunk. Zimmerman attempted to flee, but stumbled in the darkness and was caught by Brown and Miller. The two women wrestled Zimmerman to the ground and simultaneously attacked her. Brown used the stun gun again on Zimmerman as Miller beat her with a crowbar. Brown and Miller then switched weapons and continued to torture and beat Zimmerman. Miller eventually dropped the stun gun and repeatedly punched Zimmerman. Brown returned to the car, retrieved a can of gasoline from the trunk, and walked back toward the beaten and prone, but still conscious, Zimmerman. Brown poured gasoline on Zimmerman, retrieved a lighter from her pocket, set Zimmerman on fire, and stood nearby to watch the screaming Zimmerman burn. Lee testified that she was standing beside Miller, who exuberantly jumped up and down and screamed, “Burn, bitch! Burn!” After a few minutes, the three women returned to the car and drove away. During the ride home, Miller said, “Mom, you’ve got to turn around. I left my shoes and the taser.” Brown, however, refused to return to the location of the event.

Shortly thereafter, Terrance Hendrick was outside his home which was located approximately one third of a mile away from the location of the attack. Hendrick heard a faint female voice asking for help, but he could not see anyone in the darkness. Eventually, Hendrick saw Zimmerman walking slowly toward his house. When Zimmerman reached Hendrick’s house, she asked for assistance and sat on the front steps. As he waited on the porch with Zimmerman, Hendrick noticed that she had suffered a significant head injury, did not appear to be wearing clothes, and had a strong odor of gasoline. He testified that her skin was black and he could not identify her race.

At 9:24 p.m., an emergency medical technician (EMT) arrived at the scene. When the EMT approached Zimmerman, he observed her sitting on the porch, rocking back and forth with her arms straight out. Due to the extensive nature of Zimmerman’s burns, the EMT testified that he could not initially identify whether she was wearing clothing. The EMT noticed that Zimmerman’s skin was falling off her body, and he believed that over ninety percent of her body was burned. She had severe head trauma, and her jaw was either broken or severely dislocated. The EMT explained that the extent and severity of the burns prevented him from providing Zimmerman medical assistance. He testified that while he generally placed sterile gauze and oxygen on burns, he did not have enough gauze to cover her entire body. He attempted to stabilize her neck, but her skin was charred to such an extent that he could not touch Zimmerman without her skin rubbing off onto his gloves.

Despite her injuries, Zimmerman was conscious and alert. She identified Brown and Lee as her attackers and told the EMT that she was “drug out of the house, tased, beaten in the head with a crowbar, and then set on fire.” She also provided her address as well as the addresses of her attackers, and asked the EMT to protect her children. The ambulance arrived within a few minutes and transported Zimmerman to the hospital. Inside the ambulance, Zimmerman repeatedly asked if she was going to recover. She told the paramedic that Brown, Miller, and Lee poured gasoline on her and set her on fire. She also stated that she “thought they had made up.” Zimmerman was stabilized at a local hospital and then transferred to the Burn Center at the University of South Alabama Hospital in Mobile, Alabama, where she died sixteen days later.

When Brown, Miller, and Lee returned to Brown’s trailer, Brown and Miller removed their bloodstained clothing and placed it in a garbage bag. Lee removed her shoes, which were also stained with blood, and placed them in the bag. Miller informed her friend, who had remained at the trailer during the attack, that she had injured her hand striking Zimmerman, and that the three women had set Zimmerman on fire. Miller and her friend then used Brown’s car to drive to the hospital to get medical care for Miller. Before returning from the hospital early the next morning, Miller discarded the bag of bloodstained clothing in a dumpster and attempted to remove the bloodstains from the inside of Brown’s car.

With the information provided by Zimmerman, law enforcement officers apprehended Brown and Lee shortly after the attack and Miller was arrested after she returned from the hospital the next day. The three women were, however, released while Zimmerman was in the hospital. During that time, Brown informed her friend Pamela Valley that she, Miller, and Lee had beaten Zimmerman, forced her into a car, driven her to an open field and “lit her on fire and didn’t look back.” A few days later, Brown informed Valley that Zimmerman was still alive and requested Valley to finish her off. Valley declined and later reported the conversation to law enforcement. Brown, Miller, and Lee were re-arrested on April 9, 2010, the date of Zimmerman’s death.

At the scene of the burning, law enforcement officers discovered several pieces of evidence including a pair of white shoes; a stun gun with blood on the handle; paper stained with blood; an orange, gold, and black hairweave; a crowbar; and a pool of blood. Additional blood was discovered on the passenger seat headrest in Brown’s vehicle. During trial, a DNA expert testified that the blood on the headrest matched the known DNA profile of Zimmerman. Another DNA expert testified that the blood on the stun gun matched the known DNA profile of Brown. Finally, the medical examiner testified that the cause of Zimmerman’s death was multiple thermal injuries, and the manner of death was homicide.

On June 21, 2012, a jury convicted Brown of the first-degree murder of Au-dreanna Zimmerman. During the penalty phase, the defense presented the testimony of several family members, including Brown’s two sons, her brother, her aunt, and two of her uncles. The defense also presented the testimony of Dr. Elaine Bailey, a psychologist, and introduced several family photos. The State presented one witness, Dr. John Bingham, a licensed mental health counselor, and also entered a photograph of Zimmerman into evidence.

The testimony presented during the penalty phase established that Brown’s parents, Willie Coleman, Sr., and Lily, were teenagers when they married. Brown was born in North Chicago shortly after her parents were married, and her brother, Willie Coleman, Jr., was born eleven months later. Although many family members described Brown’s parents as hard workers, they were also described as “partiers” who went to clubs at night and on the weekends where they would consume alcohol and use drugs. This lifestyle prevented Brown’s parents from spending a significant amount of time with their children. Often Brown and Willie, Jr., were either left at home alone or taken to the homes of different family members for extended stays. Brown’s uncle testified that Willie, Sr., would bring Brown and her brother to his house on Friday nights and would not return until Sunday evening to retrieve them. As a result, Brown was forced into a parenting role for her brother at a very early age. She would prepare meals for Willie, Jr., dress him, assist him with homework, and walk him to and from school. Willie, Jr., testified that he spent ninety percent of his time with his sister, and that his sister and his aunts, uncles, and grandparents raised him.

Shortly before Brown’s twelfth birthday, Willie, Sr., beat her mother. In response, Brown’s mother moved out, and Brown’s parents divorced shortly thereafter. Brown’s mother was later charged with child abandonment, so Willie, Sr., who frequently used and sold drugs from his home, retained custody of Brown and Willie, Jr. After her mother moved out, Brown’s father began sexually abusing Brown. Brown’s uncle testified that he suspected Brown was being sexually abused by her father because she was visibly uncomfortable around Willie, Sr., and Willie, Sr., interacted with her as if he were her boyfriend and not her father. When Brown attempted to discuss the abuse with her paternal grandmother, the grandmother grew enraged with Brown for accusing her son of sexually abusing his child, kicked Brown out of the house, and told her never to return.

Willie, Sr., stopped sexually abusing Brown when he met his second wife, Melinda. However, the living situation in their household did not improve. In fact, Willie, Jr., testified that after Melinda moved in, the family became “very dysfunctional.” Brown’s uncles testified that on several occasions they attempted to persuade Willie, Sr., to end his relationship with Melinda because they believed she was sexually promiscuous, physically aggressive, a heavy drinker, and a drug user. Willie, Sr., and Melinda would often lock themselves in the bedroom with drugs and alcohol for hours without leaving. On those nights, Brown and Willie, Jr., would wander the streets in an area known for gangs and violence while Willie, Sr., and Melinda used drugs and alcohol. Willie, Jr., testified that Melinda drank every day, and when she drank she became verbally abusive. Further, while Melinda and Brown initially enjoyed each other’s company, their relationship quickly deteriorated. Melinda introduced Brown to drugs and forced Brown to engage in sexual intercourse with men for money. Willie, Jr., testified that their father would physically abuse them when he was high, and that Brown eventually moved out because of this abuse. In addition, when Brown was between the ages of fourteen and twenty, her father ran a gang-related drug operation out of their house. Brown’s uncle testified that Willie, Sr., was the enforcer for the organization. Willie, Sr., was eventually investigated by the FBI, arrested, and served a year in prison for his involvement in the organization.

Brown moved in with her mother for a short period of time, but had trouble adjusting to her mother’s rules and a structured living environment. Her mother eventually ordered Brown out of the house. She moved from there to her aunt’s house. During this transitional period, Brown attended four different schools in four years. She dropped out of high school for a year, but later returned and received her high school diploma. Eventually, Brown moved into a drug house where she met Greg Miller, who is the father of her three children. During this relationship, both Brown and Miller abused drugs and alcohol, and Brown reported incidents of domestic violence. Brown’s first child was born cocaine positive. After her second child was born, Brown quickly became pregnant again. During the third pregnancy, Brown ended her relationship with Miller and entered a substance abuse treatment facility. Her third child, Britnee Miller, was born while Brown was in that facility. As part of her treatment plan, Brown agreed to allow her mother to adopt her two sons.

After she left the treatment facility, Brown was drug free for four years. She spent that time raising Britnee. She also met another man that she married. However, shortly after they married, Brown’s husband was convicted of selling drugs. Brown was then hired as a bartender, which is where she met a third man, who was also a drug dealer. Brown and this boyfriend dated for two years. Although Brown was drug free during the relationship, she reported incidents of domestic violence. When Brown’s boyfriend was arrested for selling drugs, Brown fell into financial disarray. As a result, Brown accrued multiple speeding tickets that she was unable to pay, and her driver’s license was suspended. She was also criminally charged with writing worthless checks. Brown became an exotic dancer to pay the bills, and relapsed to depend on alcohol and cocaine.

Brown’s relapse lasted for approximately nine years. During this time, Brown was broke, homeless, and prostituted herself for money to facilitate her drug addiction. She wrote additional worthless checks and was ordered to participate in a court-ordered treatment program. Brown graduated from the program at age thirty-five, and was hired as an assistant manager at a catering company. She was promoted to manager, and was stable in this job for approximately four years. She started dating a fourth man. Brown’s family members testified that at this time in her life she was doing very well, her relationship with her boyfriend was good, and her two sons visited her often. However, a few months later, Brown discovered that her boyfriend was cheating on her with her brother’s girlfriend and terminated the relationship. The emotional trauma Brown suffered as a result of the breakup was substantial. Brown left her job, wrote more worthless checks, and experienced another relapse. This relapse, however, lasted only about a month.

During the summer of 2009, Brown enrolled in online college classes, moved to Pensacola, Florida, and started working at Waffle House. By Thanksgiving, however, Brown was struggling financially, had relapsed again and quit her job. Brown obtained drugs by engaging in sex for drugs with Heather Lee’s husband. On the day of the attack, Brown told Dr. Bailey she had used “several hundred dollars” worth of cocaine.

Dr. Bailey testified that she interviewed Brown, Brown’s mother, Brown’s aunt, Brown’s two uncles, Brown’s brother, and Brown’s two sons. Dr. Bailey also testified that she reviewed Brown’s medical, legal, and academic records; Brown’s psychological testing; the offense report; the supplemental investigative report; the autopsy report; and the statements of witnesses and codefendants. Based on her evaluation, Dr. Bailey concluded Brown suffered from repeated traumas, addictions, physically and sexually abusive relationships, negative community influences, and exposures to violence both in her childhood and adult life. Dr. Bailey testified that Brown’s parents were neglectful and provided an inadequate and unhealthy foundation, which negatively impacted Brown’s development. Dr. Bailey concluded that the repercussions from the repeated traumas in Brown’s childhood extended for decades into her adolescence and adulthood. However, Dr. Bailey concluded that Brown was logical, and was able to think linearly and rationally. Nothing in Brown’s past demonstrated a propensity for violence, or that she was suffering from bipolar disorder, any mood disorders, or schizophrenia. While Brown did exhibit some psychotic symptoms, Dr. Bailey testified that Brown was not under extreme emotional distress at the time of the murder. Dr. Bailey would not diagnose Brown with any condition other than dependence on crack cocaine, which was in remission due to her incarceration. Finally, Dr. Bailey testified that Brown did not deny her involvement in the murder, and that Brown felt remorseful for her actions.

Dr. Bingham, the State’s expert, testified that he conducted a mental status evaluation of Brown and concluded that she did not exhibit signs of psychosis and possessed an intelligence level in the low-average range. He further testified that while Brown exhibited anger and rage, there was no indication that those feelings inhibited her ability to think clearly or to recognize right from wrong. He concluded that Brown’s actions on the night of the attack demonstrated preplanning, direction, and were goal oriented. Dr. Bing-ham found no evidence that Brown lacked the capacity to conform her conduct to the requirements of the law, or that she exhibited diminished capacity in understanding the criminality of her conduct. He concluded that she was not under extreme duress or experiencing an emotional disturbance at the time of the offense. Finally, Dr. Bingham concluded that while there was substantial trauma in Brown’s life, there was no cause and effect relationship connecting Brown’s past to her actions in murdering Zimmerman.

On June 26, 2012, the jury recommended a death sentence by a unanimous vote. During the Spencer, hearing, the State presented a letter from the mother of the victim. The defense presented several records from the Illinois Department of Children and Family Services and a letter from one of Brown’s friends. Brown then apologized to the victim’s family and stated that Zimmerman “died a horrific death, and I was one of the ones who participated in taking her life. She didn’t deserve it at all.”

On September 28, 2012, the trial court sentenced Brown to death for the murder of Audreanna Zimmerman. In pronouncing Brown’s sentence, the trial court found that the State had proven beyond a reasonable doubt the existence of three statutory aggravating circumstances: (1) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP) (great weight); (2) the murder was especially heinous, atrocious, or cruel (HAC) (great weight); and (3) the murder was committed while Brown was engaged in the commission of a kidnapping (significant weight). See §§ 921.141(5)(d), (h), (i), Fla. Stat. (2010).

The trial court found that one statutory mitigating circumstance, that Brown had no significant history of prior criminal activity, was established and gave it minimal weight. The trial court found twenty-seven nonstatutory mitigating circumstances. Specifically, the court found that Brown: (1) was the child of a teenage mother (minimal weight); (2) was neglected by both parents (some weight); (3) lost her childhood due to parental neglect (some weight); (4) was abandoned by her mother (some weight); (5) had a history of family violence (some weight); (6) was exposed to drugs during her adolescence (some weight); (7) suffered developmental damage due to her parents’ use of and dependence on drugs (some weight); (8) was subjected to sexual violence inflicted by her father; (some weight); (9) was betrayed by a trusted family member (i.e., her grandmother) (some weight); (10) experienced corruptive community influences and exposure to a criminal lifestyle (some weight); (11) experienced chaotic moves and transitions (little weight); (12) was a victim of domestic violence during her adult life (some weight); (13) witnessed a violent homicide and served as a State witness in a murder trial (little weight); (14) lost her family (her parental rights were terminated for her two sons, and she has no relationship with her mother or father) (little weight); (15) suffered repeated trauma throughout her life (little weight); (16) suffered from drug addiction (little weight); (17) suffered from the long term effects of chronic cocaine use on her brain (some weight); (18) was a productive citizen during periods of sobriety (little weight); (19) was living in poverty at the time of the crime (minimal weight); (20) behaved well in jail (little weight); (21) conducted a bible study program (little weight); (22) exhibited good courtroom behavior (little weight); (23) has no possibility of parole (little weight); (24) showed remorse (some weight); (25) received a different sentence than that of her co-defendants (some weight); (26) had no history of prior criminal violence (moderate weight); and (27) was using cocaine on the day of the crime (moderate weight).

The trial court concluded that the aggravating circumstances outweighed the mitigating circumstances and noted that .this case, “particularly because of the heinous, atrocious, [or] cruel nature of the murder of Audreanna Zimmerman, falls into the class of murders for which the death penalty is reserved.” Accordingly, the court imposed upon Brown the sentence of death. This appeal followed.

ANALYSIS

Cold, Calculated, and Premeditated

In reviewing whether a trial court appropriately applied an aggravating circumstance, it is not the role of this Court to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt. Lynch v. State, 841 So.2d 362, 368 (Fla.2003). Rather, this Court’s responsibility on appeal is to review the record to determine whether the trial court applied the correct rule of law for each aggravating circumstance and, if so, whether competent, substantial evidence supports its finding. Id. For a CCP finding to be considered legally sufficient, the evidence must satisfy a four-part test:

(1) [T]he killing must have been 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 must have had a careful plan or prearranged design to commit murder before the fatal incident (calculated); [](3) the defendant must have exhibited heightened premeditation (premeditated); and (4) there must have been no pretense of moral or legal justification.

Id. at 371 (citing Evans v. State, 800 So.2d 182, 192 (Fla.2001)). This aggravating circumstance pertains specifically to the state of mind, intent, and motivation of the defendant, and involves a much higher degree of premeditation than that required to prove first-degree murder. Wright v. State, 19 So.3d 277, 298 (Fla.2009); Deparvine v. State, 995 So.2d 351, 381-82 (Fla.2008). To support a finding of CCP, the evidence must establish beyond a reasonable doubt that the defendant planned or prearranged to commit murder before the crime began. Williams v. State, 37 So.3d 187, 195 (Fla.2010). The aggravating factor can be established by circumstances demonstrating advance procurement of a weapon, lack of resistance or provocation by the victim, and the appearance of a killing carried out as a matter of course. Franklin v. State, 965 So.2d 79, 98 (Fla.2007).

Brown contends that the trial court erred in finding CCP for two reasons. First, while she concedes that the murder was calculated, premeditated, and lacked any pretense of moral or legal justification, Brown contends that the'murder was not “cold,” but was instead a rage-type killing premised on her intense and irrational desire to seek revenge after Zimmerman attempted to harm her daughter with a stun gun. To support the contention, Brown notes that both Dr. Bingham and the trial court concluded that while there was no evidence that she was experiencing an extreme emotional disturbance at the time of the offense, she did demonstrate extreme anger and rage during the criminal episode. Second, Brown contends that she was high on crack cocaine at the time of the crime, and this drug-induced state prevented her from possessing the cold and calm reflection necessary to support the first element of CCP. For the reasons that follow, we conclude that competent, substantial evidence supports the trial court’s application of this aggravating factor.

Extreme Anger and Rage

The evidence presented during trial established that Brown, her daughter Brit-nee Miller, and Zimmerman had a mercurial relationship that frequently involved fights and occasionally led to physical violence. Several days before the murder, Miller, apparently upset with Zimmerman for sleeping with her boyfriend, attempted to attack Zimmerman. In response, Zimmerman attempted to harm Miller with a stun gun. When Brown was informed by Heather Lee of the details of the altercation, Brown responded that she was “going to get” Zimmerman. Brown later told Corey Doyle, an inmate housed with Brown at the Escambia County jail, that she told her daughter, “don’t worry, I’ll take care of it.”

On the day of the murder, Brown lured Zimmerman into her home under false pretenses with the express intent to kill her. Miller’s friend testified that Miller stated several minutes before Zimmerman entered the trailer that they — Lee, Miller, and Brown — were going to kill her. Before Zimmerman arrived, Brown asked Lee to show her the proper method of using a stun gun. When Zimmerman entered the trailer shortly thereafter, Brown proceeded to stun, beat, and kidnap Zimmerman with Miller and Lee’s assistance.

The three women then forced Zimmerman into Brown’s car, which contained a crowbar and a canister of gasoline, and drove to a secluded location. Miller and Brown then attacked Zimmerman with the stun gun and the crowbar. As Zimmerman was lying on the ground writhing in pain and crying for help, Brown walked back to the car, retrieved the canister of gasoline, poured it on Zimmerman, lit her on fire, and stood nearby to watch Zimmerman burn. The three women then returned to the car and drove away. Miller informed Brown that she had left several items at the scene, but Brown refused to deviate from the plan. When the three women returned to Brown’s house, they cleaned themselves and removed their bloodstained clothing. Brown then left her trailer and hid at Lee’s trailer next door. Several days later, when Brown discovered that Zimmerman was still alive, albeit in critical condition in a hospital, she asked a friend to kill her.

While testimony was offered to indicate that Brown was emotionally charged during this criminal episode, overwhelming evidence presented at trial demonstrates that Brown: (1) had the opportunity to coldly and calmly reflect over the course of several days on the manner in which she planned to kill Zimmerman; (2) discussed with her two codefendants her intent and plan to murder Zimmerman; (3) was calm, collected, and not emotionally frenzied, panicked, or experiencing a fit of rage immediately before the murder, but instead asked Lee to demonstrate the proper use of the stun gun so she could execute her plan to murder Zimmerman; and (4) had an abundance of time during the crime to reflect on the gravity and consequences of her actions, but instead decided to adhere to her carefully devised plan to deceive, attack, kidnap, and kill Zimmerman.

Further, Dr. Bingham found no indication that Brown’s anger and rage inhibited her ability to distinguish right from wrong or from thinking and processing information rationally and clearly. He testified that during the entirety of the criminal episode, Brown exhibited preplanning, direction, and goal-orientation. These facts specifically and directly demonstrate that Brown’s decision to murder Zimmerman was the product of cool and calm reflection and was not an act prompted by emotional frenzy, panic, or a fit of rage. See Lynch, 841 So.2d at 368. Furthermore, simply because Brown expressed anger or rage by yelling and screaming during the episode does not negate the careful and deliberate nature of this murder.

Finally, Brown’s reliance on Santos v. State, 591 So.2d 160,163 (Fla.1991), Maulden v. State, 617 So.2d 298, 303 (Fla.1993), and Douglas v. State, 575 So.2d 165, 167 (Fla.1991), is misplaced. In all three cases, this Court struck CCP because the murder was “a crime of irrational, heated passion brought on by a domestic dispute.” Santos, 591 So.2d at 163 (“[T]he fact that the present killing arose from a domestic dispute tends to negate cold, calculated premeditation.”); Maulden, 617 So.2d at 303 (“The murders in the instant case were not the product of a deliberate plan formed through calm and cool reflection. They were ‘mad acts prompted by wild emotion.’ ”) (citations omitted) (quoting Santos, 591 So.2d at 163); Douglas, 575 So.2d at 167 (“The passion evidenced in this case, the relationship between the parties, and the circumstances leading up to the murder negate the trial court’s finding that this murder was committed in a ‘cold, calculated, and premeditated manner without any pretense of moral or legal justification.’”) (footnote omitted). Not only is this case factually distinguishable from Santos, Maulden, and Douglas in that it does not involve a domestic dispute or a comparable level of emotional instability on behalf of the defendant, but this Court has recently held that even if a murder did “arise from a domestic disturbance,” that fact alone does not preclude a finding of CCP because this Court does not recognize a domestic dispute exception in connection with death penalty analysis. Turner v. State, 37 So.3d 212, 224 (Fla.2010). Thus, in stark contrast to the murders in Santos, Douglas, and Maulden, the murder in this case was, as the facts previously discussed demonstrate, “the product of a deliberate plan formed through calm and cool reflection.” Maulden, 617 So.2d at 303.

Cocaine Use on the Day of the Murder

The record demonstrates that Brown had significant problems with drug abuse and addiction throughout her life. Brown grew up in a home where drugs were both used and sold. She began using cocaine at a young age, spent the majority of her life surrounded by drugs and alcohol, and constantly struggled with addiction. Around the time of the murder, Brown had relapsed and was abusing drugs that she obtained in exchange for sex with Heather Lee’s husband. Despite these difficult circumstances, we conclude that Brown’s chronic drug addiction does not preclude a finding of CCP. See Turner, 37 So.3d at 224. In fact, this Court has explained that a chronic drug abuser can still act in accordance with a deliberate plan where the evidence indicates that the person was fully cognizant of his or her actions at the time of the murder. Guar-dado v. State, 965 So.2d 108, 117 (Fla.2007).

Brown told Dr. Bailey that, at some unknown time on the day of the murder, she smoked “several hundred dollars” worth of crack cocaine. However, she later told Dr. Bingham that she smoked less crack on the day of the murder than she had on previous days. Brown neither quantified how much crack she smoked, nor did she convey to Dr. Bingham or Dr. Bailey what time during that day she smoked. As a result, Dr. Bingham could not determine whether Brown was suffering from cocaine-induced paranoia at the time of the crime. Dr. Bingham, however, explained that the “high” stemming from cocaine use usually lasts less than half an hour and is often less intense with users that have a higher tolerance. Further, Brown told Dr. Bingham that when using cocaine, she would sometimes act comically and attempt to amuse the children in the trailer park. On other occasions, she would become hyper, obsessive, and would occasionally worry about being apprehended by the police for her use of cocaine. There is no evidence in the record that indicates Brown was experiencing any of these cocaine-induced symptoms on the night of the murder. Thus, nothing in the record indicates that Brown, who had been addicted to drugs for approximately half of her life, suddenly experienced a temporary drug-induced paranoia which prevented her from functioning consistently with her prior history of non-violent behavior during drug use.

In addition, Brown’s reliance on Penn v. State, 574 So.2d 1079, 1083 (Fla.1991), and White v. State, 616 So.2d 21, 25 (Fla.1993), is misplaced. In Penn, this Court, relying on the fact that the defendant “consumed six or seven pieces of the drug during the night and had been under the drug’s influence up to the time of his arrest,” held that the defendant lacked the cold calculation required to support a finding of CCP. 574 So.2d at 1080, 1083. In White, this Court held that “the evidence of White’s excessive drug use and the trial court’s express finding that White committed this offense ‘while he was high on cocaine’ leads us to find that this aggravating factor was not established beyond a reasonable doubt.” 616 So.2d at 25. In other words, this Court struck CCP in both Penn and White because the defendants’ drug use shortly before or during the course of the murders prevented them from being fully cognizant of their actions. Here the record reflects that despite her drug use on the day of the attack, Brown was calm, collected, and had the requisite mental acuity to reflect on and execute her elaborate plan to murder Zimmerman. Thus, we conclude that Brown was fully cognizant of her actions before, during, and after the crime, and her drug use did not interfere with her ability to plan and commit this murder.

In sum, we conclude that the trial court’s findings in support of the application of CCP were supported by competent, substantial evidence and we affirm the application of this aggravating circumstance.

Proportionality

This Court comprehensively reviews each death sentence to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the death penalty. See Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003); see also Hilton v. State, 117 So.3d 742, 755 (Fla.), cert, denied, — U.S. —, 134 S.Ct. 686, 187 L.Ed.2d 556 (2013). The proportionality analysis does not involve a quantitative comparison between the number of aggravating and mitigating circumstances, but rather entails a qualitative review of the totality of the circumstances and the underlying basis supporting the application of each aggravating and mitigating circumstance. Simpson v. State, 3 So.3d 1135, 1148 (Fla.2009).

In this case, the jury unanimously recommended a sentence of death, and the trial court found this recommendation to be appropriate after weighing the statutory aggravating circumstances against the statutory and nonstatutory mitigating circumstances. The trial court found three statutory aggravating circumstances had been established beyond a reasonable doubt: (1) CCP (great weight); (2) HAC (great weight); and (3) the murder was committed during the course of a kidnapping (significant weight). This Court has consistently recognized that CCP and HAC are two of the weightiest aggravators in Florida’s statutory sentencing scheme. Bradley v. State, 33 So.3d 664, 680 (Fla.2010). As a result, when these two aggravators are present, the mitigating circumstances must be of considerable weight to overcome them. Abdool v. State, 53 So.3d 208, 224 (Fla.2010).

The mitigation in this case, however, pales in comparison to the weighty aggravation. The trial court found one statutory mitigating circumstance, that Brown had no significant history of prior criminal activity, but only gave it minimal weight. Further, while the trial court found twenty-seven nonstatutory mitigating circumstances, only two of those, that Brown had a history of nonviolence and that she was using cocaine on the day of the murder, were given greater than “some” weight. Brown indisputably had a difficult life and tried at times to overcome her circumstances. However, as Dr. Bingham noted, none of the mitigation presented provided an explanation for why Brown, who for nearly forty years had exhibited no signs of violent behavior, orchestrated this sadistic and pitiless crime.

Based on the totality of the circumstances and our prior precedent, we conclude that a sentence of death is proportionate. See, e.g., Abdool, 53 So.3d at 215, 224-25 (upholding death sentence as proportionate where the nineteen-year-old defendant set the victim on fire; the trial court found two statutory aggravating circumstances, HAC and CCP, four statutory mitigating circumstances, and forty-eight nonstatutory mitigating circumstances, affording each of the latter moderate to very little weight); Baker v. State, 71 So.3d 802, 813, 822 (Fla.2011) (upholding death sentence as proportionate where the trial court found three aggravating circumstances — HAC, CCP, and during the course of a home invasion, robbery, and kidnapping — one statutory mitigating circumstance, and five non-statutory mitigating circumstances each of which were given “some” to “little” weight), cert. denied, -U.S.-, 132 S.Ct. 1639, 182 L.Ed.2d 238 (2012).

Finally, Brown relies upon Bell v. State, 841 So.2d 329 (Fla.2002), to contend that her death sentence is disproportionate. In Bell, this Court vacated the death sentence of the seventeen-year-old defendant who murdered a thirty-one-year-old man who had made sexual advances towards the defendant’s girlfriend. 841 So.2d at 331. In addition to the existing substantial mitigation, this Court vacated the sentence primarily because the Court concluded that: (1) the statutory mitigating circumstance that Bell was seventeen years of age was “an extremely significant factor[;]” and (2) Bell’s co-defendant, who was “equally culpable for the murder itself,” received a life sentence. Id. at 338-39.

None of the reasons that supported vacating the sentence in Bell are present here. First, unlike the defendant in Bell, Brown was not a “teenager[ ] attempting to confront a decidedly adult situation.” Id. at 338. Brown was forty years old at the time she murdered Zimmerman. Second, in cases where more than one defendant was involved in the commission of the crime, this Court analyzes the relative culpability of each codefendant. Shere v. Moore, 830 So.2d 56, 60 (Fla.2002). Here, however, neither Miller nor Lee received the death penalty because they were not eligible for that sentence. Miller, who was a minor at the time of the offense, was constitutionally prohibited from receiving the death penalty pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Lee was also ineligible for the death penalty because she pled guilty to second-degree murder. Thus, by virtue of her plea and second-degree murder conviction, the relative culpability of Lee for the murder of Zimmerman has already been determined to be less than that of Brown. Shere, 830 So.2d at 61 (“In order to have that same degree of blame or fault the codefendants must, at a minimum, be convicted of the same degree of the crime.”). However, even if Lee had not pled guilty to second-degree murder, the evidence presented during trial demonstrates that Brown was the ringleader of this criminal episode, and that Lee, the only other adult eligible for the death penalty, did not share equal culpability with Brown in the murder of Zimmerman. Thus, while Miller and Lee received different sentences from Brown, those lesser sentences do not mean that Brown’s sentence of death is disproportionate. See id. at 62-63 (Fla.2002) (noting that this Court has, in numerous cases, considered and rejected the argument that a sentence of death was disproportionate when the codefendant receives a lesser sentence based upon a conviction for second-degree murder).

In this case, Brown executed a deliberate and sadistic plan to torture and murder Audreanna Zimmerman. Brown, who was angry with Zimmerman for attempting to harm her daughter with a stun gun several days earlier, lured Zimmerman to her home under false pretenses. Zimmerman, believing that Brown wanted to rekindle their friendship, entered Brown’s home only to be stunned, beaten, kidnapped, and transported to a secluded location in the woods. Zimmerman tried to escape, but was caught and again stunned and bludgeoned with a crowbar by Brown and Miller. Brown then set Zimmerman, who was still conscious, crying, and screaming for help, on fire and watched her burn. Several minutes later, Zimmerman, with ninety percent of her body burned, and skin falling off her body, managed to stand up and walk a third of a mile to seek assistance. Brown herself, during the Spencer hearing, acknowledged that Zimmerman died a “horrific” death. Accordingly, we conclude that Brown’s sentence is proportionate.

Sufficiency of the Evidence

While Brown does not contest her guilt, this Court has a mandatory obligation to independently review the sufficiency of the evidence in every case in which a sentence of death has been imposed. See Blake v. State, 972 So.2d 839, 850 (Fla.2007); Fla. R.App. P. 9.142(a)(5). In assessing sufficiency, 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. Bradley v. State, 787 So.2d 732, 738 (Fla.2001).

The record provides more than sufficient evidence to support Brown’s conviction for the first-degree murder of Audreanna Zimmerman. Brown lured Zimmerman into her home under false pretenses, and, with the assistance of Miller and Lee, stunned, beat, kidnapped, and transported Zimmerman to a clearing in the woods near Brown’s home where Brown and Miller continued to beat and stun Zimmerman until Brown eventually returned to her car, retrieved a canister of gasoline, poured it on Zimmerman, and set her on fire. Zimmerman then stood up, walked a third of mile to a local residence where she identified Brown, Miller, and Lee as her attackers. Brown confessed her involvement in the murder to multiple witnesses who testified during trial, and Brown herself, during the Spencer hearing, confessed that she participated in Zimmerman’s murder. Thus, we conclude that there was sufficient evidence to support Brown’s conviction.

Ring

Finally, Brown contends that Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We deny relief on this claim for two reasons. First, this Court has repeatedly held that Florida’s capital sentencing scheme does not violate the United States Constitution under Ring. See, e.g., Abdool, 53 So.3d at 228 (“This Court has also rejected [the] argument that this Court should revisit its opinions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002).”). In addition, this Court has previously held that Ring is not applicable in circumstances where the jury unanimously recommends a sentence of death. See Monlyn v. State, 894 So.2d 832, 839 (Fla.2004) (“[B]ecause the jury in Monlyn’s case returned a unanimous recommendation of death, he lacks standing to assert any error regarding lack of jury unanimity.”); see also Window, v. State, 886 So.2d 915, 930 (Fla.2004) (denying the defendant’s Ring claim in part because the jury recommended a sentence of death by a unanimous vote). Therefore, Ring does not apply, and we deny relief on this claim.

Conclusion

Based on the foregoing, we affirm Brown’s conviction and sentence of death.

It is so ordered.

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

      . Lee’s testimony regarding Brown’s state of mind following the altercation was corroborated during trial by Corey Doyle, an inmate housed with Brown at the Escambia County jail. Doyle testified that Brown told her when she heard Zimmerman had used a stun gun on Miller, Brown informed Miller, "don't worry, I'll lake care of it."

      . During trial, Lee disputed this summation of what occurred in the trailer after Brown began to attack Zimmerman. The veracity of Lee’s testimony concerning her involvement in this crime, however, was significantly challenged during trial, particularly because Lee, who claimed that she was a victim and was not involved in Zimmerman’s murder, pled guilty to second-degree murder based on her involvement in Zimmerman’s death.

      . The officer that interviewed Brown after she was arrested on the night of the attack noticed that Brown was missing a large section of hair from the back of her head that matched the hairweave discovered at the scene.

      . While the record reflects that Brown's father held steady employment, Brown’s family members believed that the primary source of Willie, Sr.’s, income came not from his jobs, but from selling drugs.

      . Brown, liowever, told Dr. Bingham that she smoked "not as much” cocaine on the day of the attack as she had in the past.

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

      . The trial court considered but rejected four additional statutory mitigating circumstances: (1) the crime was committed while Brown was experiencing an extreme emotional disturbance: (2) Brown was an accomplice in the crime and her participation was relatively minor; (3) Brown acted under extreme duress; and (4) the capacity of Brown to appreciate the criminality of her conduct or to conform her conduct to the requirements of law was significantly impaired.

      . In finding this mitigating circumstance, the trial court noted that: the three people involved in the murder of Zimmerman are not similarly situated. Despite her involvement in Zimmerman’s murder, Britnee Miller cannot legally be sentenced to death as she was less than 18 years of age when the murder was committed. Heather Lee was convicted, pursuant to a negotiated plea agreement with the State, of second degree murder. Heather Lee cannot legally be sentenced to death. (Citation omitted.)

      . After the defendant in Bell was sentenced, the United States Supreme Court held in Roper v. Simmons, 543 U.S. 551, 578-79, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), that the United States Constitution prohibits the execution of individuals who were under eighteen at the time of their crimes.


text:
    James Daniel TURNER, Appellant, v. STATE of Florida, Appellee.
    No. SC12-2271.
    Supreme Court of Florida.
    May 15, 2014.
    Rehearing Denied July 8, 2014.

      Raheela Ahmed and Maria Christine Perinetti, Assistant Capitol Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Mitchell David Bishop, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

James Daniel Turner appeals an order of the circuit court that denied his motion to vacate a conviction of first-degree murder and sentence of death filed pursuant to Florida Rule of Criminal Procedure 8.851. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

FACTS AND BACKGROUND

On November 29, 2007, a jury convicted James Daniel Turner of the first-degree murder of Renee Howard, the attempted first-degree murder of Stacia Raybon, grand theft of a motor vehicle, home invasion robbery, and aggravated assault on a police officer. Turner v. State, 37 So.3d 212, 217, 219 (Fla.2010). The jury recommended the death penalty by a vote of ten to two for the murder of Howard, and the trial court imposed a sentence of death. Id. at 219-20. In the opinion affirming the convictions and sentences, this Court detailed the facts of the murder:

... Turner had been sentenced to jail in Newberry County, South Carolina, for a violation of probation stemming from a felony battery charge. While incarcerated at that location he was primarily assigned to perform various duties at the local sheriffs office and was given special privileges because he was considered trustworthy.... Despite being scheduled to be released from the facility at the end of 2005, on September 28, 2005, Turner escaped from the New-berry County Jail in a stolen Newberry County Office Sports Utility Vehicle (SUV). The SUV was discovered by local employees in the parking lot of a business located in St. Johns County, Florida the next day. Local law enforcement officials found Turner’s identification card and multiple rocks of crack cocaine in the stolen vehicle.
On September 30, 2005, two hotel guests saw Turner lurking around the Comfort Inn located in St. Augustine. ...
That morning, Renee Howard, her four children ages eighteen, fourteen, two, and ten months, Howard’s eight-month-old granddaughter, and Stacia Raybon occupied room 210 of the motel.... Raybon testified that early that morning ... the defendant passed them, “almost pushing [them] off the sidewalk.” Shortly thereafter, Howard drove her son to work and daughter to school, taking two of the other three children with her.... Howard returned to the motel and Raybon was on the way downstairs to assist Howard in gathering the children when she noticed Turner outside room 210. Howard, Raybon, and the three remaining children returned to the room to prepare to check out of the motel.
The record reflects that while preparing bottles at the rear of the room for the children, Raybon saw a flash of light hit the mirror as the door of the room suddenly opened. She then saw Turner go toward Howard. Turner appeared to strike Howard in the midsection and then turned and proceeded to attack Raybon. Raybon crouched on the floor in the rear of the room and buried her face in her hands. Turner pulled Ray-bon up by the arm and stabbed her in the elbow. Immediately after stabbing Raybon, Turner noticed Howard move back toward the entry door of the room and Turner turned and directed his attention to her for the second time. Turner’s movement afforded Raybon time to grab her purse, rush into the bathroom, and lock herself inside.
While in the bathroom, Raybon heard “loud hitting noises” in the room and the children screaming. Raybon then heard water running in the sink, which was located immediately outside the bathroom door. Turner attempted to force his way into the bathroom, and after he failed multiple times, Raybon asked Turner to release one of the children to her. Turner demanded money, and, after searching her purse, Raybon slid $5 and several credit cards under the bathroom door. Turner slid the $5 back under the door to her and told Raybon to keep it. Turner then brought one of the children to the bathroom door and allowed the child to enter.... After Raybon pleaded for Turner to leave her and the children alone, Turner ordered Raybon to wait ten minutes before exiting the room.... When Raybon finally exited the bathroom, she discovered Howard’s motionless body on the floor.

Id. at 215-17.

In sentencing Turner to death, the trial court det§rmined that the State had proven beyond a reasonable doubt the existence of five statutory aggravating circumstances: (1) Turner previously had been convicted of a felony and was under a sentence of imprisonment (moderate weight); (2) Turner was contemporaneously convicted of a felony involving the use or threat of violence (the attempted murder of Stacia Raybon and the aggravated assault on a police officer) (great weight); (3) the murder was committed while Turner was engaged in the commission of, or an attempt to commit, the crime of burglary or robbery, or both (great weight) (this factor was merged with another aggravating factor — that the murder was committed for pecuniary gain); (4) the murder was especially heinous, atrocious, or cruel (great weight); and (5) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP) (significant weight). Id. at 220.

The court found the existence of two statutory mitigating circumstances: (1) the murder was committed while Turner was under the influence of an extreme mental or emotional disturbance (moderate weight); and (2) the capacity of Turner to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (moderate weight). Id. The trial court also found that the following nonstatutory mitigating circumstances had been established:

(1) Turner’s ability to form loving relationships (some weight); (2) Turner’s family problems and mental suffering (little weight); (3) Turner’s uncles gave him drugs when he was young (some weight); (4) Turner’s cognitive development was impaired due to substance abuse (some weight); (5) Turner’s chronic alcohol and drug problem (moderate weight); (6) at the time of the murder, Turner was under the influence of crack cocaine (some weight); (7) Turner was a hard worker and skilled carpenter (little weight); (8) prior to escaping, Turner was a good worker in South Carolina (slight weight); and (9) Turner’s appropriate courtroom behavior (some weight).

Id.

On direct appeal, Turner presented the following issues: (1) Turner’s retrial violated the double jeopardy clauses of the United States and Florida Constitutions; (2) the trial court erroneously found the existence of the CCP aggravating circumstance; (3) the death sentence is not proportionate; and (4) Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Id. at 220-29. This Court denied relief on all claims and affirmed the convictions and sentences. Id. at 229. The United States Supreme Court denied cer-tiorari review on October 18, 2010. Turner v. Florida, — U.S. —, 131 S.Ct. 426, 178 L.Ed.2d 332 (2010).

Postconviction Motion

On October 12, 2011, Turner filed a motion to vacate his conviction and sentence of death pursuant to Florida Rule of Criminal Procedure 3.851. The motion presented ten claims: (1) trial counsel were ineffective during voir dire for failing to ask questions that would reveal jurors who could not give meaningful consideration to mitigating evidence; (2) trial counsel were ineffective for failing to object to improper comments by the prosecution; (3) trial counsel were ineffective for failing to (a) present nonstatutory mitigation in the form of Turner’s probable future good conduct in prison, and (b) ensure that a reasonably competent mental health evaluation was conducted; (4) the Rule Regulating the Florida Bar that prohibits interviews of jurors is unconstitutional and denied Turner the adequate assistance of counsel in pursuing postconviction relief; (5) the instruction to the jury that its role was merely advisory is unconstitutional pursuant to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); further, to the extent trial counsel failed to present this challenge, they were ineffective; (6) Florida’s death penalty statute is unconstitutional because it fails to prevent the arbitrary imposition of the death penalty and it violates the prohibition against cruel and unusual punishment; further, to the extent trial counsel failed to present this challenge, they were ineffective; (7) Florida’s death penalty statute is unconstitutional as applied pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 435 (2000), and Ring; (8) cumulative error; (9) section 945.10, Florida Statutes (2005), is unconstitutional because it precludes Turner from knowing the identity of his execution team members; and (10) Turner may be incompetent at the time of execution.

The postconviction court held a Huff hearing, during which counsel for Turner advised that an evidentiary hearing was sought only on Claim 3. On March 23, 2012, the postconviction court issued an order that granted an evidentiary hearing on Claim 3, deferred ruling on the cumulative error claim, and summarily denied the remaining claims.

Evidentiary Hearing

During the evidentiary hearing, Turner presented the testimony of trial counsel James Valerino and Valli Sottile, Jeffrey Turner (Turner’s younger brother), Betty McAlister (Turner’s aunt), and Dr. Hyman Eisenstein. The State presented the testimony of Dr. Jeffrey Danziger and Dr. Kimberly Brown.

Valerino and Sottile testified that they prepared and presented the guilt and penalty phases together, with Valerino serving as lead counsel. The attorneys testified that in addition to Drs. Drew Edwards and Stephen Bloomfield, who testified during the penalty phase, and Dr. Harry Krop, who testified during the Spence hearing, they obtained reports of evaluations of Turner by licensed psychologist and clinical neuropsychologist Dr. Susan Young and psychiatrist Dr. Miguel Mandoki. Valerino testified that he and Sottile made a strategic decision not to present Drs. Young and Mandoki as witnesses because the lawyers concluded the testimony of these doctors would have been detrimental to Turner during the penalty phase. Additionally, because of Turner’s exposure to drugs and alcohol at a young age, Sottile approached a psychologist who was experienced in the field of adolescent development and asked if he could assist in Turner’s defense. Sottile testified that when the psychologist advised that he could not assist, she and Valerino continued to seek experts or “anybody else who might be able to provide helpful information.” Finally, an MRI test was performed on Turner; however, because the results were normal, Valerino and Sottile decided not to introduce the MRI results during the penalty phase.

Sottile testified that in preparation for the penalty phase, she spoke with many of the witnesses on the telephone and she spoke with others in person. However, she did not travel to South Carolina to meet with members of Turner’s family in person. Instead, mitigation specialist Dr. William Scott and an investigator were assigned by the lawyers to travel to and conduct an investigation in person in South Carolina. Both Valerino and Sottile testified that many of the family members either were not cooperative, or became uncooperative. Valerino testified that Dr. Scott spoke with Turner’s aunt, Betty McAlister, “on a couple of occasions until it reached a point where, according to Mr. Scott, she would not answer any of his telephone calls.” Valerino testified that he and Sottile were unable to determine why there was a lack of cooperation on behalf of many family members, and Turner’s mother in particular. Sottile explained that they did not present McAlister as a penalty phase witness because she did not want to testify. Further, with regard to Turner’s brother, Jeffrey, Sottile explained that he “was helpful in the sense of trying to give us family names and where they lived. Outside of that, he really did not want to be involved in this case.” Valerino corroborated Sottile’s testimony, stating that while Jeffrey was willing to help bring family members to Florida for the penalty phase, he did not want to be a witness for Turner. The attorneys testified that although Jeffrey attended part of the trial, at one point he left the courtroom and was not seen again. Valerino explained that he presented Dr. Scott during the Spencer hearing in an effort to offer the trial court mitigation “as to the dysfunctional nature of Mr. Turner’s family, the complete lack of cooperation or the limited cooperation we were getting from his family.”

Jeffrey Turner and Betty McAlister testified that when James Turner was growing up, he was impulsive and spent money recklessly as soon as it was received. They also described three separate incidents in which Turner cut his wrists. Jeffrey testified that Turner displayed inappropriate anger during divorces and relationship breakups. Turner also argued with their parents, punched walls and other objects, and engaged in reckless driving; however, Jeffrey testified that this behavior occurred only while Turner was drinking. Jeffrey testified that Turner could not maintain regular employment. He also stated that their mother would beat Turner and another brother with any object that was available, and the beatings would leave welts on his brothers’ bodies.

McAlister testified that Turner did poorly in school, but not because he did not try. Rather, he had a short attention span and appeared to have difficulty concentrating and sitting still. McAlister testified that Turner’s grandmother suffered from mental illness serious enough to require institutionalization on more than one occasion. McAlister also stated that she suffers from bipolar disorder, as do her son and her oldest daughter. McAlister described Turner’s behavior as “sometimes up, sometimes down.” Both McAlister and Jeffrey testified that they were available and willing to testify during Turner’s penalty phase, but no one contacted them to do so.

Clinical psychologist Hyman Eisenstein was retained to evaluate Turner for possible mitigation. Dr. Eisenstein conducted multiple tests on Turner and reviewed Turner’s school records as well as other background material, including the findings of other experts who had previously evaluated Turner. Additionally, Dr. Eisenstein spoke with Dr. Krop, who testified during the Spencer hearing, and conducted interviews with family members— specifically, Jeffrey Turner, Betty McAlis-ter, brother Michael Turner, mother Ruby Turner, sister Hope Turner, and the daughter of Betty McAlister.

According to Dr. Eisenstein, the testing results were indicative of cognitive brain damage and deficits in the left brain hemisphere because Turner’s verbal memory was significantly lower than his visual memory, and his verbal comprehension score was significantly lower than any other score he received on the Wechsler Adult Intelligence Scale. Dr. Eisenstein agreed with the conclusions of penalty phase expert Dr. Bloomfield that Turner suffers from frontal lobe damage, which can affect judgment. According to Dr. Eisenstein, this damage manifested in Turner’s inability to concentrate during school and his academic failure, and it predisposed Turner to use alcohol and drugs. Dr. Eisenstein also concluded that Turner suffers from alcohol and substance dependence, but noted that Turner’s dependence is in remission due to his incarceration.

In addition to dependency, Dr. Eisenstein concluded that Turner suffers from Attention Deficit Hyperactivity Disorder (ADHD), which was evidenced by Turner’s difficulties in school, his high energy level, and his impulsive behavior. He further concluded that Turner suffers from Bipolar Disorder, relying upon Turner’s family history of the disorder, his depression, and his manic-like symptoms. Dr. Eisenstein also explained that many of the symptoms of Borderline Personality Disorder — impulsivity, reckless spending of money, volatile mood swings, self-mutilation, suicidal behavior, and stress-related paranoia — are also exhibited by individuals who suffer from Bipolar Disorder, and that Turner’s behavior supports both of these diagnoses. Finally, Dr. Eisenstein stated that while Turner is not delusional or hallucinating, at times he suffers from an “episodic, psychotic disorder” which can emerge when there is a “confluence” of the circumstances previously discussed.

The expert for the State, psychiatrist Jeffrey Danziger, testified that he interviewed Turner and reviewed documents from the trial and postconviction proceedings, including the testimony of Drs. Edwards, Bloomfield, and Krop, and the report and data of Dr. Eisenstein. He did not speak with any family members, did not review Turner’s school records, and did not conduct any tests. Dr. Danziger reached a diagnosis of Polysubstance Dependence — which included Turner’s use of alcohol, powder cocaine, methamphetamine, and prescription opiates — that is currently in remission due to Turner’s incarceration. Dr. Danziger concluded that Turner suffers from an Adjustment Disorder with Depressed Mood, a diagnosis that does not rise to the level of a major depressive disorder. Dr. Danziger opined that this diagnosis is not surprising because Turner is on death row and concluded that Turner’s mood constitutes a “situational unhappiness due to his current predicament.”

He disagreed with Dr. Eisenstein’s conclusion that Turner suffers from Bipolar Disorder. According to Dr. Danziger, the manic episodes that are a symptom of Bipolar Disorder must be spontaneous, and cannot be due to a medical condition or substances. He concluded that because he was. not aware of Turner exhibiting any manic symptoms during his seven years of incarceration and forced sobriety, Turner’s mania was the result of intoxication and dependence on stimulants. He also disagreed with Dr. Eisenstein’s conclusion that Turner has mental-illness based psychotic features because “[i]t is well-known that if you’re on a binge of methamphetamine or a binge of cocaine, you can develop transient psychotic symptoms.” Where symptoms are substance induced, Dr. Danziger concluded that they are not evidence of a primary mental illness.

Similarly, Dr. Danziger disagreed with Dr. Eisenstein’s diagnosis of Borderline Personality Disorder. Dr. Danziger noted that Turner had been abusing substances from the ages of thirteen to thirty-three. According to Dr. Danziger, all of Turner’s symptoms that support this disorder — suicide attempts, relationship problems, risk-taking, and paranoia — were likely due to the use of substances and, therefore, did not support the diagnosis. As with the Bipolar Disorder diagnosis, Dr. Danziger noted that since Turner has been incarcerated, there have been no suicide attempts, transient paranoid ideas, or admissions to a psychiatric unit. Dr. Danziger did not disagree with the findings of prior experts that Turner has frontal lobe deficits that create issues with regard to emotional control, planning, judgment, and reasoning. Further, Dr. Danziger could not rule out a diagnosis of ADHD, but said that he did not possess data to indicate that the symptoms of poor concentration and impulsivity were present before the age of seven, which is required for such a diagnosis. However, even if Turner suffers from ADHD, Dr. Danziger concluded that it had “very little to do with what took place September 30th, 2005.”

On October 4, 2012, the postconviction court issued an order that denied Claim 3 of Turner’s motion. This appeal follows.

ANALYSIS

Ineffective Assistance of Counsel

This Court has described the standard of review for claims of ineffective assistance of counsel during penalty phase proceedings as follows:

Following the United States Supreme Court’s decision in Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

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

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

“Penalty phase prejudice under the Strickland standard is measured by whether the error of trial counsel undermines this Court’s confidence in the sentence of death when viewed in the context of the penalty phase evidence and the mitigators and aggravators found by the trial court.” Stewart v. State, 37 So.3d 248, 258 (Fla.2010) (quoting Hurst v. State, 18 So.3d 975, 1013 (Fla.2009)).

Hildwin v. State, 84 So.3d 180, 186-87 (Fla.2011).

Both prongs of the Strickland test present mixed questions of law and fact. Derrick v. State, 983 So.2d 443, 456 (Fla.2008). Accordingly, this Court employs a mixed standard of review: It defers to a postconviction court’s factual findings, provided they are supported by competent, substantial evidence, but reviews the legal conclusions of the postconviction court de novo. Id. Finally, this Court has noted:

The deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review. In many instances, the trial court is in a superior position “to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.”

Cox v. State, 966 So.2d 337, 357-58 (Fla.2007) (quoting Stephens v. State, 748 So.2d 1028,1034 (Fla.1999)).

In this case, the Court on direct appeal detailed the penalty phase mitigation offered by trial counsel as follows:

Two of Turner’s stepdaughters testified that he was a good stepfather. The grandmother of his stepchildren corroborated that he was a good stepfather. Turner’s brother testified that the defendant began drinking with his uncles at a very young age and also helped them deal drugs.
The defense presented expert testimony with regard to the effect of crack cocaine use on the brain. An expert testified that Turner entered a drug rehabilitation facility in 1994 and, while undergoing treatment, attempted to commit suicide. During cross-examination, the expert admitted that Turner’s cocaine use influenced his actions on the day of the murder, but did not necessarily cause those actions. He further was of the view that at the time of the murder, assuming Turner had gone at least twelve hours without crack cocaine, he would have been either depressed and subdued or anxious and hypervigilant.
Finally, a psychologist testified that although he did not find that Turner suffered from significant brain damage, he found many cognitive defects. He testified that Turner’s biggest deficits involved decision making, judgment, planning, and impulse control. On cross-examination, the psychologist conceded that Turner clearly understood that the killing of Renee Howard was wrong.
.... At the Spencer hearing, Turner presented two witnesses. A mitigation specialist and a psychotherapist testified that Turner had a history of abandonment by his mother, became substance dependent at a very young age and therefore never had proper cognitive development, and had a low intelligence level. A psychologist expressed the opinion that Turner had frontal lobe impairment, experienced difficulty with performance tests used to measure executive functions, and had an IQ of around 79.

Turner, 37 So.3d at 219 (footnote omitted).

The postconviction court held that trial counsel were not deficient during the penalty phase and further concluded that they acted reasonably and in accordance with prevailing professional standards. We agree. The postconviction record reflects that in addition to presenting the testimony of three doctors and one mitigation expert, trial counsel obtained evaluations from two additional doctors and submitted Turner for an MRI. Counsel made a strategic decision not to present this information during the penalty phase or the Spencer hearing because the MRI did not reflect any abnormalities, and they believed the testimony of Drs. Young and Mandoki would hurt Turner’s defense rather than help him. Thus, trial counsel obtained input from no fewer than five addiction, mental health, and medical professionals (Drs. Bloomfield, Edwards, Krop, Mandoki, and Young) and one mitigation specialist, Dr. Scott, who travelled to South Carolina to meet with Turner’s family, in formulating Turner’s mitigation presentation.

In light of the extensive preparation and investigation performed by trial counsel, we hold that their performance during the penalty phase was in no way deficient, but rather was extensive and thorough. While it can be argued that Dr. Eisenstein’s report is more favorable to Turner than the testimony that was presented during the penalty phase and Spencer hearing, this Court has repeatedly held that a completely reasonable investigation into mental health mitigation is not rendered unreasonable simply because the defendant has now obtained the testimony of a more favorable mental health expert. See Cox, 966 So.2d at 362.

Further, with regard to the alleged failure of trial counsel to provide experts with background information from family members to assist in evaluations of Turner, the postconviction court reviewed the conflicting testimony of trial counsel that the family was uncooperative during the penalty phase, and that of Jeffrey Turner and Betty McAlister, who stated that they were available and willing to testify, and credited that of trial counsel, noting “Ms. Sottile and Mr. Valerino never determined why Defendant’s family members were unwilling to cooperate, but their unwillingness to cooperate was evident through their actions, or lack thereof, toward counsel and Defendant.” (emphasis supplied). This finding of witness credibility is entitled to deference by the Court. Id. at 357-58. Moreover, the record clearly reflects that biological family members were contacted by the defense but, other than the members who testified during the penalty phase, trial counsel were stonewalled in their attempts to obtain mitigation evidence. We conclude that counsels’ performance was not deficient because they affirmatively sought these witnesses—to the point that Betty McAlister refused to accept phone calls from the mitigation specialist—but the family was not cooperative.

With regard to the prejudice prong of Strickland, the postconviction court concluded that the testimony of Dr. Danziger was clearer and more concise than that of Dr. Eisenstein, and Dr. Eisenstein’s diagnoses were undermined by Dr. Danziger’s testimony. The postconviction court found that the available information did not warrant the diagnoses of ADHD, Bipolar Disorder, or Borderline Personality Disorder. We conclude that these findings are supported by competent, substantial evidence. Dr. Danziger presented clear, logical testimony that Turner’s Bipolar- and Borderline Personality-like symptoms were more likely due to Turner’s extensive stimulant abuse than mental illness, and this opinion was supported by the absence of such symptoms during the time that Turner has been incarcerated and in an environment of forced sobriety. Moreover, although Dr. Eisenstein testified that he reviewed Turner’s school records, his report contained no indication that Turner exhibited symptoms of ADHD prior to the age of seven, a requirement for diagnosis of this condition, and none of the data reviewed by Dr. Danziger suggested an onset prior to age seven either.

Had trial counsel presented Dr. Eisenstein as an expert during the penalty phase, the State would have undermined his opinions in the same manner as occurred during the evidentiary hearing. Accordingly, there is no reasonable probability that, had Dr. Eisenstein testified during the penalty phase or the Spencer hearing, the jury would have recommended or the trial court would have imposed a life sentence, and our confidence in the outcome of the penalty phase has not been undermined. Therefore, Turner has not satisfied the second prong of Strickland.

In light of the foregoing, we hold that Turner’s trial counsel were not ineffective and affirm the postconviction court’s denial of relief on this claim.

Death Penalty Challenges

The remaining claims presented by Turner involve challenges to the death penalty in Florida. Each of these challenges is either waived, procedurally barred, meritless, or premature. See, e.g., Jones v. State, 928 So.2d 1178, 1182 n. 5 (Fla.2006) (holding that a Caldwell claim is procedurally barred if it is not raised on direct appeal); Rigterink v. State, 66 So.3d 866, 897 (Fla.2011) (rejecting Caldwell challenge to the standard jury instructions on the merits); Miller v. State, 926 So.2d 1248, 1259-60 (Fla.2006) (rejecting as both procedurally barred and without merit claims that (1) Florida’s capital statute fails to provide a standard for determining that aggravating circumstances “outweigh” mitigating circumstances, fails to define “sufficient aggravating circumstances,” and fails to adequately define the aggravating circumstances; (2) Florida’s capital sentencing procedure lacks the independent reweighing of aggravating and mitigating circumstances required by Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 918 (1976); and (3) the aggravating circumstances have been applied in a vague and inconsistent manner, and juries have received unconstitutionally vague instructions); Kilgore v. State, 55 So.3d 487, 511-12 (Fla.2010) (holding that a challenge to the constitutionality of execution methods is procedurally barred if it is not raised on direct appeal); Wyatt v. State, 71 So.3d 86, 112 (Fla.2011) (rejecting challenge to constitutionality of execution methods as meritless); Darling v. State, 45 So.3d 444, 447-48 (Fla.2010) (rejecting challenge to constitutionality of section 945.10, Florida Statutes (2007), which exempts from public records the identity of an executioner); Israel v. State, 985 So.2d 510, 521 (Fla.2008) (holding that a claim that the defendant may be insane at the time of execution is premature where no death warrant has been signed and the defendant has not been found to be incompetent).

Cumulative Error

Finally, where the individual claims presented by a defendant are held to be procedurally barred or without merit, a claim of cumulative error will fail. Lukehart v. State, 70 So.3d 503, 524 (Fla.2011); see also Israel, 985 So.2d at 520. Because we have rejected each of Turner’s challenges on appeal, he is not entitled to relief based upon a claim of cumulative error.

CONCLUSION

In light of the foregoing, we affirm the order of the trial court denying postconviction relief.

It is so ordered.

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

      . Turner’s first trial ended in a mistrial when a juror suffered a seizure during guilt phase deliberations. Turner, 37 So.3d at 217-18.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . Dr. Brown testified with regard to an issue that is not challenged on appeal. Therefore, her testimony is not included in our analysis.

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

      . Turner was thirty-three years old when he murdered Renee Howard.

      . The record on direct appeal reflects that, in addition to Turner's brother Michael, Turner’s sister and cousin also testified during the penalty phase.

      . In fact, Valerino testified that when the mitigation specialist attempted to speak with Turner’s mother, "she basically answered the door, wouldn’t speak to him, closed the door, and that was it, no cooperation.” During the Spencer hearing, the specialist described the encounter as follows: [T]he mother refused to see me, but I went to the house where she was staying anyway. She appeared out of the kitchen, but quickly went in a back bedroom and shut the door and sent a message that she just didn’t want to talk to me, that she was too nervous to be able to do that.

      . With regard to one claim, Turner merely alleges that "Florida’s death penalty sentencing scheme is unconstitutional as applied in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and corresponding Florida law.” We have previously explained that on appeal, conclusory allegations are insufficient to warrant relief. Heath v. State, 3 So.3d 1017, 1029 n. 8 (Fla.2009) ("Heath has waived his cumulative-error claim because his brief includes no argument whatsoever and instead consists of a one-sentence heading in his brief.”). Based upon our precedent, this completely conclusory claim is waived.


text:
    Clint E. BODIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5731.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    Nathan Robert Prince of Law Office of Adam Ruiz, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Clint Edward Bodie, Appellant, challenges an order denying his motion for post-conviction relief after an evidentiary hearing. He argues, in pertinent part, that the trial court erred in denying relief where his attorney failed to advise him concerning a defect in the charging document, which led to his entry of an open “no contest” plea to a crime for which there was no factual basis. We agree and reverse. As to the remaining claims, we affirm without discussion.

The State charged Appellant with a trafficking offense due to his possession of a mixture containing methamphetamine. However, instead of tracking the language of the applicable statute, section 893.135(l)(f), Florida Statutes (2006), the State inadvertently tracked and cited section 893.135(l)(k), which proscribes trafficking in other distinct substances, including phenethylamines. Both statutes allow for a conviction based on possession, but the methamphetamine statute requires proof that the defendant possessed at least fourteen grams of the controlled substance, while the phenethylamines statute requires possession of only ten grams. Believing that he had been charged with trafficking in methamphetamine, Appellant entered an open plea of no contest. As the factual basis for the charge, the State explained that Appellant and his companions had possessed “in excess of 10 grams of methamphetamine.” Consistently with the charging document, the written judgment provides that Appellant was adjudicated guilty of trafficking in phenethylamines under section 893.135(l)(k).

In his posteonviction motion, Appellant argued that his counsel rendered ineffective assistance in failing to move to dismiss the charge under section 893.135(l)(k) or to otherwise advise him concerning the discrepancy between the charge and the factual basis for the plea. He argued that before, during, and after the plea hearing, he believed the State needed only to prove possession of ten grams of the controlled substance at issue, and he specifically noted the failure of the State to allege the proper weight to sustain a conviction for trafficking in methamphetamine as part of the factual basis for the charge. Appellant contended that, but for counsel’s failure to advise him properly concerning the charging discrepancy, he would not have pled no contest and would have insisted on going to trial. He also claimed prejudice based on his vulnerability to a new charge for trafficking in methamphetamine arising out of the same facts. At the evidentiary hearing, Appellant testified that the allegations in his motion were true, and his attorney conceded that he had not specifically discussed the elements of the charged offense with Appellant.

The circuit court denied Appellant’s claim, ruling that he “pled to and was convicted of trafficking in methamphetamine, the plea was voluntary, there was a factual basis for the plea, and counsel was not ineffective for failing to object or file a motion to dismiss.” Accepting a defense forwarded by the State, the court further ruled that, even if Appellant’s counsel had moved to dismiss due to the citation of the wrong subsection, the State could have easily amended the information, thereby precluding prejudice. The court found that the result of the case would have been the same because Appellant did not want to go to trial.

Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must show both deficient performance by counsel and prejudice. To satisfy the performance prong, “the defendant must specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonably competent performance under prevailing professional norms.” Lynch v. State, 2 So.3d 47, 56-57 (Fla.2008). Generally, the prejudice prong requires the defendant to establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Where a claim of ineffective assistance involves a guilty plea, Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and Grosvenor v. State, 874 So.2d 1176, 1180 (Fla.2004), dictate, “The defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.” This standard is simply a specific application of Strickland’s prejudice prong. See Hill, 474 U.S. at 59,106 S.Ct. 366. The difference is that the court’s focus is on the “outcome of the plea process,” rather than the trial. Id.

Appellant currently stands convicted of trafficking in phenethylamines under section 893.135(l)(k). It is undisputed that Appellant did not commit this offense and did not intend to plead no contest to it. It is also beyond dispute that if Appellant’s counsel had noticed the charging discrepancy and brought the matter to Appellant’s attention, he would not have been convicted of trafficking in phenethylamines pursuant to a plea of no contest. As the trial court found, the State undoubtedly would have amended the information and Appellant would have, instead, pled no contest under an accurate charging document. If those events had transpired, however, the outcome of the plea process would have been different, as Appellant would have been convicted of trafficking in methamphetamine under section 893.135(l)(f).

Because of our reticence to allow a criminal defendant to use the rules of procedure as a technical device to escape justice, see Billiot v. State, 711 So.2d 1277, 1278 (Fla. 1st DCA 1998), we have considered whether the references to phenethylamines and section 893.135(l)(k) in the written judgment are scrivener’s errors. If the trial court is correct that the plea hearing indicates that Appellant was actually convicted of trafficking in methamphetamine despite the charging defect, then its finding that Appellant was not prejudiced by counsel’s failure to advise him concerning the defect is correct. To uphold the denial of Appellant’s claim, we would have to conclude, first, that the information was implicitly amended during the plea colloquy and, second, that the failure of the written judgment to reflect the amendment was a scrivener’s error. Without an amendment to the charging document, the finding that Appellant was actually convicted of trafficking in methamphetamine would violate Appellant’s right to due process, which protects him “from being convicted of a crime not charged in the information or indictment.” Crain v. State, 894 So.2d 59, 69 (Fla.2004); see also Perkins v. Mayo, 92 So.2d 641, 643 (Fla.1957) (“One cannot plead guilty to one offense and be adjudged guilty and sentenced for another.”); Keesee v. State, 204 So.2d 925, 927 (Fla. 4th DCA 1967). The right to due process does not relax simply because the nature, character, and punishment of the crimes are similar. Penny v. State, 140 Fla. 155, 161, 191 So. 190(Fla.l939).

As noted by this Court in Billiot v. State, 711 So.2d 1277, 1278 (Fla. 1st DCA 1998), several direct-appeal cases have concluded that a guilty or nolo contendere plea implicitly amended a charging document by supplying missing elements. In Billiot, this Court held that the defendant’s plea cured a defect in the information, allowing a sentence enhancement for using a mask during a burglary, where the information did not charge that the defendant wore a mask. 711 So.2d at 1277-78. Likewise, in Bums v. State, 300 So.2d 317, 317-18 (Fla. 2d DCA 1974), the State charged defendant with larceny of a calf, but he pled guilty to grand larceny. The court held that the plea constituted “a mutually agreeable amendment to the accusatory writ.” 300 So.2d at 318. The court acknowledged, however, that the outcome may have been different if the defendant had raised this issue within a motion under Florida Rule of Criminal Procedure 3.850. Id.

Although Appellant admitted at the plea hearing that he trafficked in metham-phetamines, there is no indication at the plea hearing or in the postconviction record that he knew the elements of that offense. When stating the factual basis for that count, the prosecutor claimed Appellant possessed “in excess of 10 grams of methamphetamine,” thus mixing the elements of section 893.135(l)(f), which proscribes trafficking in fourteen grams or more of methamphetamine, and section 893.135(l)(k), which proscribes trafficking in ten grams or more of phenethylamines. The plea form stated that Appellant trafficked in methamphetamine, but it did not cite a statute. Thus, the record lacks an indication of a clear intent to admit to the elements of the methamphetamine statute.

Without a clearer indication from the plea colloquy that Appellant intended to admit the specific elements of section 893.135(l)(k), we decline to deem the information implicitly amended. Because the information was not amended, Appellant was not convicted of trafficking in methamphetamine, such that we can conclude that the listing of the offense as trafficking in phenethylamines under section 893.135(l)(f) was a scrivener’s error. Appellant has, therefore, shown that the outcome of the case would have been different, and that he would not have pled no contest to count one as charged, if he had been advised of the charging defect. Accordingly, we reverse and remand for vacation of Appellant’s plea to count one only. In all other respects, the order denying postconviction relief is affirmed.

REVERSED in part; AFFIRMED in part; and REMANDED.

MARSTILLER, RAY, and SWANSON, JJ., concur.

      . The State declined to file an Answer Brief.


author: MARSTILLER, J.

text:
    Joseph A. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2316.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Rehearing Denied Aug. 6, 2014.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Jay Kubica and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Joseph A. Williams, Jr. (“Appellant”), was convicted by a jury of burglary of a dwelling and grand theft. The trial court imposed a 15-year Prison Releasee Reoffender (“PRR”) sentence for the burglary pursuant to section 775.082(9), Florida Statutes, and a concurrent five-year sentence for the grand theft. Appellant argues the PRR sentence is unconstitutional because the trial court, and not the jury, found the facts necessary to establish him as a prison releasee reoffender. He asserts that under Alleyne v. United States, — U.S.—, 138 S.Ct. 2151, 186 L.Ed.2d 314 (2013), any facts that increase the mandatory minimum sentence for an offense must be submitted to the jury and found beyond a reasonable doubt.

Appellant correctly encapsulates the holding in Alleyne, but it does not apply to this case. Alleyne dealt with a sentence imposed under a federal statute providing for a five-year mandatory minimum if the defendant used or carried a firearm while committing a “crime of violence,” and a seven-year mandatory minimum if the defendant “brandished” the firearm while committing such crime. Alleyne, — U.S. at-, 133 S.Ct at 2155-56. Appellant’s case involves no mandatory minimum sentence and no enhancement based on firearm usage or any similar enhancement factor.

Furthermore, Alleyne leaves intact the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. The Florida Supreme Court has held that Apprendi does not require a jury to determine whether a defendant committed the charged offense(s) within three years of being released from prison. Robinson v. State, 793 So.2d 891, 893 (Fla.2001); see § 775.082(9)(a)l., Fla. Stat. (2011).

“The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense.” Alleyne, — U.S. at -, 133 S.Ct. at 2158 (emphasis added). The key fact pertinent to PRR sentencing — whether the defendant committed the charged offense within three years of release from prison — is not an ingredient of the charged offense. Rather, it relates to the fact of a prior conviction. Accordingly, we hold that Alleyne does not require a jury to make the PRR factual determination. See Lopez v. State, 135 So.3d 539 (Fla. 2d DCA 2014).

AFFIRMED.

ROWE and RAY, JJ., concur.