author: PER CURIAM. LABARGA, C.J.,

text:
    Arthur James MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. SC12-1762.
    Supreme Court of Florida.
    Sept. 24, 2014.
    Rehearing Denied Nov. 25, 2014.

      Nancy Ann Daniels, Public Defender, and William Carl McLain, Assistant Public Defender, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney General, Second Judicial Circuit, Tallahassee, 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. Arthur James Martin (Martin) was convicted in Duval County of first-degree murder in the 2009 death of Javon Daniels (Daniels). For the reasons expressed in this opinion, we affirm Martin’s conviction and his sentence of death. We begin by setting forth the facts of this case and then discuss the issues that Martin raises in this direct appeal. We conclude by addressing both the sufficiency of the evidence on which the jury relied to convict Martin and the proportionality of Martin’s sentence of death.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Two days before the murder, Martin’s friend and codefendant Franklin Batie (Batie) was involved in a shooting where he was grazed on the back of the head and neck. On October 28, 2009, the day of the murder, Batie drove Martin to the Weber 5B Apartments in Jacksonville so that Martin could visit someone. Batie drove his car, a white Ford, to the apartment complex, and he remained in the car while Martin got out of the car and engaged in conversation. In the back seat of the Ford was Batie’s loaded .45 caliber handgun. The gun was equipped with a thirty-round magazine.

While Batie remained in the car and waited for Martin, he noticed a white sport utility vehicle (S1JV) and thought that he recognized the driver of the SUV as the person who shot him days earlier. Batie retrieved his gun from the backseat and mentioned to Martin that he possibly recognized the driver as having tried to shoot him. Martin then took Batie’s gun and went to the driver’s side of the SUV and began firing multiple shots at the driver, nineteen-year-old Daniels. When Daniels tried to escape through the passenger side of the SUV, Martin walked around the front of the SUV to the passenger side and continued firing. Eyewitness Sebastian Lucas testified that upon reaching the passenger side, Martin “shot him [Daniels] back down in the car.” When Martin finished shooting, he walked back to the Ford, and Batie drove Martin home. Daniels died at the scene. Batie drove home to Starke, Florida, where he disposed of his Ford and began driving another vehicle. The murder weapon was never located.

Following the murder, detectives interviewed multiple eyewitnesses who viewed photo spreads of possible suspects and identified Martin as the shooter. Some of the witnesses did not know Martin by his given name but by his nicknames, “Beer Belly” or “Shorty Fat.” Martin was arrested several days after the murder, and a grand jury later indicted him for first-degree murder. Three days after Martin’s arrest, Batie was arrested in Starke. Ba-tie later entered a guilty plea to second-degree murder. After the conclusion of Martin’s trial, Batie was sentenced to ten years’ imprisonment for his role in the murder.

Martin’s case proceeded to a jury trial in 2012. The presentation of evidence during the guilt phase occurred solely during the State’s case-in-chief. The State presented eyewitness testimony in addition to testimony from the medical examiner and law enforcement officers. Multiple eyewitnesses, including codefendant Batie, testified and identified Martin as the person who shot Daniels. One of the eyewitnesses, Tasheana Hart, testified that in the days following the murder, Martin asked her “not to tell” what she saw on the day of the murder and offered her money in exchange for her silence.

The medical examiner, Dr. Valerie Rao, testified that Daniels sustained a total of twelve gunshot wounds. Daniels was shot in his left hand, left arm, right arm, left side, right side, right thigh, and chest. Four of the gunshot wounds produced fatal injuries to Daniels’ lungs, heart, liver, and stomach. Daniels endured significant internal and external bleeding, and a total of 700 cubic centimeters of blood was collected from his chest cavity. The gunshot wounds to each of Daniels’ arms broke the humerus in each arm, and the gunshot wound to his left hand broke two of the bones in his hand. These broken bones incapacitated Daniels and left him incapable of completing his attempted escape from the SUV.

At the conclusion of the State’s case-in-chief, the defense rested without presenting evidence. After the jury deliberated and returned with a guilty verdict, the case proceeded to the penalty phase. During the penalty phase, in its initial case, the State presented two victim impact witnesses. The defense also stipulated to Martin’s conviction for second-degree murder.

In its penalty phase case, the defense presented the testimony of three witnesses: Martin’s mother, sister, and court-appointed mental health expert. Martin’s mother and sister testified about Martin’s personal life, including his childhood, family relationships, overall demeanor, work ethic, and health.

Martin’s mental health expert was Dr. Stephen Bloomfield, a psychologist. Dr. Bloomfield testified that he reviewed background records, visited with Martin in jail, and administered psychological testing. Dr. Bloomfield also interviewed multiple witnesses, including Martin’s mother and sister. Although Dr. Bloomfield testified that he reviewed thousands of pages of records, he was unable to conduct an exhaustive review of Martin’s Miami-Dade Public Schools records because the majority of the records were destroyed by the school district as a matter of course when Martin reached twenty-five years of age.

In order to evaluate Martin’s IQ, in 2011, Dr. Bloomfield administered the Wechsler Adult Intelligence Scale, fourth edition, or the WAIS-IV. He also tried to administer the Wide Range Achievement Test 4 (WRAT-4), but Martin was unable to complete the test. Dr. Bloomfield testified that Martin’s WAIS-IV full-scale IQ score of 54 placed him in the mildly mentally retarded range. However, Dr. Bloomfield was unable to diagnose Martin as mentally retarded because he was unable to determine the onset of mental retardation prior to age 18 nor Martin’s adaptive functioning prior to age 18.

Dr. Bloomfield testified that Martin’s Florida Department of Corrections (DOC) records revealed multiple mental health evaluations and IQ screening tests. According to those records, although Martin never showed signs of significant mental or emotional deficits and never demonstrated that he was incapable of living in the general population, he was deemed “low functioning.” DOC records documented that between 1992 and 2008, Martin took four IQ screening tests, with scores ranging from a low of 58 in 2002 to a high of 94 in 2008.

Dr. Bloomfield concluded that Martin has low cognitive functioning, is functionally illiterate, and suffers from a learning disability because of his inability to read. Dr. Bloomfield observed that Martin’s grades in school were mixed and that Martin had numerous absences and caused frequent disruptions. However, Dr. Bloomfield conceded that Martin’s grades were not necessarily due to a lack of intellectual capability but due to his disruptive behavior and absences from school.

In rebuttal, the State offered the testimony of Miami-Dade Police Department Detective Chris Stroze. Detective Stroze was involved in a 1998 murder investigation that led to Martin’s conviction for second-degree murder. Detective Stroze testified that Martin did not have any problems reading or understanding the waiver form that advised him of his constitutional rights.

At the conclusion of the penalty phase, by a nine-to-three vote, the jury recommended that Martin be sentenced to death. A Spencer hearing followed, where both parties offered additional argument but did not present additional evidence. At the sentencing hearing, the trial court sentenced Martin to death, having found that sufficient aggravating circumstances existed to warrant the death penalty and that the aggravating circumstances outweighed any mitigating circumstances. The trial court found three aggravating circumstances and assigned each one great weight: (1) prior violent felony; (2) the murder was especially heinous, atrocious, or cruel (HAC); and (3) the murder was cold, calculated, and premeditated (CCP). The trial court also found one statutory mitigating circumstance: Martin’s age at the time of the murder (40 years of age), to which it assigned slight weight based on minimal evidence of Martin’s significant emotional immaturity. Additionally, the trial court evaluated fourteen nonstatutory mitigating circumstances proposed by the defense, and it found two other mitigating circumstances that were not proposed by the defense but were supported by the record. The trial court concluded in part: “Despite the existence of mitigating factors and the weight assigned to each by this Court, the nature and quality of those factors pales in comparison to the enormity of the aggravating circumstances in this case.” In this direct appeal, Martin raises four issues that attack the validity of his death sentence.

ISSUES ON APPEAL

Martin raises the following issues in this appeal: (1) whether the trial court made improper findings of fact and gave insufficient consideration in mitigation to Martin’s intellectual functioning; (2) whether the trial court failed to consider, find, and weigh as a mitigating circumstance that Martin had a history of drug and alcohol abuse; (3) whether the trial court erred in finding that the homicide was committed in a cold, calculated, and premeditated manner and was especially heinous, atrocious, or. cruel; and (4) whether Florida’s death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and therefore unconstitutionally imposed. We address each of these issues in turn. We then discuss, as in every direct appeal, the sufficiency of the evidence and the proportionality of Martin’s sentence of death. As we discuss below, we affirm Martin’s conviction and his sentence of death.

Mental Health Mitigation

Martin contends that the trial court made erroneous findings of fact with respect to his IQ score and that as a result, the court did not properly weigh his low cognitive functioning as a mitigating circumstance. Martin also maintains that despite the fact that Dr. Bloomfield was unable to diagnose him as mentally retarded, his IQ score of 54, standing alone, is entitled to additional weight.

In every case, when determining the appropriateness of a sentence of death, “trial courts are required to consider all mitigating evidence presented by the defendant and supported by the record.” Griffin v. State, 820 So.2d 906, 918 (Fla.2002) (citing Walker v. State, 707 So.2d 300, 318 (Fla.1997)). We have explained:

When addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature.

Campbell v. State, 571 So.2d 415, 419 (Fla.1990) (citations and footnotes omitted). Moreover, a “trial court must find as a mitigating circumstance each proposed factor that has been established by the greater weight of the evidence and that is truly mitigating in nature.” Coday v. State, 946 So.2d 988, 1003 (Fla.2006). “The weight assigned to a mitigating circumstance is within the trial court’s discretion” and is reviewed for an abuse of discretion. Harris v. State, 843 So.2d 856, 868 (Fla.2003) (citing Rogers v. State, 783 So.2d 980 (Fla.2001)). This Court will uphold each of the trial court’s findings that are supported by competent, substantial evidence in the record. See Lebron v. State, 982 So.2d 649, 660 (Fla.2008).

Competent, substantial evidence supports the trial court’s finding of Martin’s low cognitive functioning as a nonstat-utory mitigating circumstance. However, Martin argues that the trial court made improper factual findings regarding his IQ and consequently failed to assign his low cognitive functioning the weight to which it was entitled. He contends that footnote six in the trial court’s sentencing order reflects the court’s improper findings and supports his argument. The footnote reads:

6. Dr. Bloomfield found that the Defendant was competent to stand trial, and could not diagnose the Defendant as mentally retarded. Dr. Bloomfield administered the WAIS-R to the Defendant, and he registered with an IQ of 71. However, Dr. Bloomfield’s research revealed that one of the Defendant’s prior IQ tests resulted in [a] score of 94.

The trial court did incorrectly state that Dr. Bloomfield administered the WAIS-R. Dr. Bloomfield administered only the WAIS-IV in 2011.' However, Martin did score a 71 on the WAIS-R as administered in 1992; the test simply was not administered by Dr. Bloomfield. Thus, the trial court’s misstatement constitutes harmless error. See Merck v. State, 975 So.2d 1054, 1066 n. 5 (Fla.2007) (“Factual errors in a sentencing order are subject to harmless error analysis.”); Griffin, 820 So.2d at 914 (concluding that “a full reading of the trial court’s order reveals” a thorough consideration of the nonstatutory mitigating circumstance proposed by the defendant).

The weight assigned by the trial court to Martin’s low cognitive functioning does not reflect an abuse of the court’s discretion. In sum, the trial court evaluated a total of sixteen nonstatutory mitigating circumstances. Only two of them, Martin’s low cognitive functioning and the impact of his parents’ behavior on his childhood, were assigned some weight. Most of the nonstatutory mitigating circumstances were assigned slight weight, and the remainder were assigned very slight weight, no weight, or rejected as not proven. These assignments of weight demonstrate that the trial court recognized the significance of Martin’s low cognitive functioning. The trial court did not abuse its discretion in affording some weight to this nonstatutory mitigating circumstance. See Merck, 975 So.2d at 1065-66 (concluding that Merck’s challenge to the weight assigned to established nonstatutory mitigating circumstances was not “unreasonable or arbitrary given the entirety of the evidence presented.”).

Martin further contends that his IQ score of 54 is itself entitled to additional weight and argues that “evidence supporting a defendant’s mental retardation, even if such evidence does not meet the statutory legal requirement for mental retardation, is entitled to be recognized as carrying additional significance and weight.” Martin contends that just as a defendant’s age may be a bar to execution, his IQ score, as evidence of mental retardation, should serve a similar function. Given the evidence presented, the trial court properly considered Martin’s IQ score of 54 in conjunction with evidence of his low cognitive functioning. Consequently, Martin is not entitled to relief.

History of Drug and Alcohol Abuse as Mitigation

Martin also argues that the trial court failed to consider, find, and weigh as a mitigating circumstance that he had a history of drug and alcohol abuse. Prior to sentencing, Martin proposed a list of fourteen nonstatutory mitigating circumstances. However, the list did not include Martin’s history of substance abuse. The State argues that Martin was obligated to present his history of substance abuse to the court for consideration as a nonstatuto-ry mitigating circumstance. The State is correct, and Martin is not entitled to relief on this claim.

Although the trial court did evaluate two nonstatutory mitigating circumstances that Martin did not propose, this Court has stated that a defendant “must raise a proposed nonstatutory mitigating circumstance before the trial court in order to challenge on appeal the trial court’s decision about that nonstatutory mitigating factor.” Davis v. State, 2 So.3d 952, 962 (Fla.2008) (citing Lucas v. State, 568 So.2d 18, 23-24 (Fla.1990)). We have explained that:

Because nonstatutory mitigating evidence is so individualized, the defense must share the burden and identify for the court the specific nonstatutory mitigating circumstances it is attempting to establish. This is not too much to ask if the court is to perform the meaningful analysis required in considering all the applicable aggravating and mitigating circumstances.

Lucas, 568 So.2d at 24. Because this burden applies to Martin, and he failed to propose his history of drug and alcohol abuse as a nonstatutory mitigating circumstance, he is not entitled to relief.

Trial Court’s Findings of HAC and CCP

Additionally, Martin contends that the trial court erred in finding as aggravating circumstances that the homicide was committed in a cold, calculated, and premeditated manner (CCP) and was especially heinous, atrocious, or cruel (HAC). This Court has previously explained the standard of review that applies to the review of a trial court’s finding of aggravating circumstances:

When reviewing a trial court’s finding of an aggravator, “it is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt — that is the trial court’s job.” Aguirre-Jarquin v. State, 9 So.3d 593, 608 (Fla.2009) (quoting Willacy v. State, 696 So.2d 693, 695 (Fla.1997)), cert. denied, [559 U.S. 942], 130 S.Ct. 1505, 176 L.Ed.2d 118 (2010). Rather, it is this Court’s task on appeal “to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” Id. (quoting Willacy, 696 So.2d at 695).

Williams v. State, 37 So.3d 187, 195 (Fla.2010). We reject both Martin’s claim that the murder of Daniels was not heinous, atrocious, or cruel and his claim that the murder was not cold, calculated, and premeditated; thus, we affirm the trial court’s finding of these aggravating circumstances. We now discuss HAC and CCP in turn.

HAC

Martin argues that the murder of Daniels, which was the result of multiple gunshots, did not rise to the level required of a finding that a murder is especially heinous, atrocious, or cruel. This Court has explained the HAC aggravating circumstance as follows:

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

State v. Dixon, 283 So.2d 1, 9 (Fla.1973) (superseded by statute on other grounds as stated in State v. Dene, 533 So.2d 265, 267 (Fla.1988)). With regard to shooting deaths in particular, this Court has stated that “murder by shooting, when it is ordinary in the sense that it is not set apart from the norm of premeditated murders, is as a matter of law not heinous, atrocious, or cruel.” Lewis v. State, 398 So.2d 432, 438 (Fla.1981).

However, “means and manner in which the death is inflicted upon the victim and the victim’s perceptions of the surrounding circumstances” may warrant a finding of HAC. McGirth v. State, 48 So.3d 777, 794 (Fla.2010). In determining whether a murder is especially heinous, atrocious, or cruel, “the victim’s mental state may be evaluated ... in accordance with a common-sense inference from the circumstances.” Swafford v. State, 533 So.2d 270, 277 (Fla.1988). “[F]ear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel.” Heyne v. State, 88 So.3d 113, 122 (Fla.) (quoting Lynch v. State, 841 So.2d 362, 369 (Fla.2003)), cert. denied, — U.S. -, 133 S.Ct. 574, 184 L.Ed.2d 377 (2012). Moreover, “this Court has ‘affirmed findings of HAC where defensive wounds revealed awareness of impending death.’ ” Williams, 37 So.3d at 200 (quoting Guardado v. State, 965 So.2d 108, 116 (Fla.2007)).

In this case, the trial court explained its finding of HAC as follows:

The evidence showed that the Defendant approached the vehicle Javon Daniels was in and began shooting into the driver’s side. Seven shots were fired at point-blank range. Mr. Daniels attempted to escape the vehicle and the onslaught of bullets by crawling over the passenger seat and out the door. However, the Defendant walked around [the] vehicle, firing one shot into the windshield, and then several more into the passenger’s side, tracking the victim as he tried to escape the hailstorm of bullets and shooting him “back down into the car.” The victim had defensive wounds to his hand and both arms, as his left hand bones and both his humeri were broken by bullets. Mr. Daniels died in the vehicle, with his foot wedged against the gear shift lever, and his body face down across the passenger seat, leaning against the passenger door.

The trial court discussed the multiple gunshot injuries sustained by Daniels, and it noted Dr. Rao’s testimony that Daniels’ death would not have been instantaneous and would have been painful. The trial court also noted that Daniels sustained a defensive wound, suffered substantial internal bleeding, and was awake and alert when he was shot. The trial court then concluded:

This Court is cognizant that gunshot deaths are usually instantaneous and do not typically qualify as being heinous, atrocious, or cruel, unless accompanied by acts of mental or physical torture to the victim. Diaz v. State, 860 So.2d 960, 966 (Fla.2003). However, the evidence established that Mr. Daniels’ death was not easy and instantaneous, but instead Mr. Daniels suffered through an agonizing, slow, and painful death. According to Dr. Rao, the death would have been a slow process of internal bleeding due to the fatal shots to the heart, lungs, and liver. Mr. Daniels endured the assailment of bullets to his back, and attempted to escape through the passenger side of the vehicle. However, Mr. Daniels’ attempt to escape was to no avail, as the Defendant tracked him around the vehicle and continued his attack. Mr. Daniels tried to shield himself from the bullets and sustained defensive wounds, as evidenced by his fractured humeri and hand. Certainly, Mr. Daniels was acutely aware of his impending death, and the Defendant, never ceasing in his attack while Mr. Daniels attempted to escape, was utterly indifferent to his fear and suffering. Based on the totality of the evidence, this Court finds that this aggravating circumstance was proven beyond a reasonable doubt. This aggravating circumstance has been given great weight in determining the appropriate sentence to be imposed.

As observed by the trial court and observed by both parties, cases involving gunshot deaths do not usually satisfy the requirements of HAC. However, the record in this case reveals competent, substantial evidence relating to the means and manner of Daniels’ shooting death and his perceptions of the surrounding circumstances, such that the trial court’s finding of HAC is warranted. See McGirth, 48 So.3d at 777; Swafford, 533 So.2d at 277.

Martin argues that the twelve gunshots that Daniels sustained were the product of random gunfire and were not the result of his intent to torment Daniels. We disagree. Martin’s conduct reflects the utter indifference to Daniels’ suffering that supports a finding of this aggravating circumstance. While firing multiple gunshots, Martin walked from one side of the vehicle to the other and shot Daniels “back down in the car” to prevent his escape from the SUV. The crime scene photos, corroborated by the testimony of multiple eyewitnesses, track Martin’s trail of gunshots from the driver’s side of the SUV around to the passenger side.

Moreover, Daniels was alive and conscious during the attack. Dr. Rao’s testimony to this effect is supported by the crime scene photos that reveal Daniels’ futile attempt to escape. At the time that the shooting began, Daniels was sitting in the driver’s seat of the SUV. However, when his body was discovered, his left leg was caught between the front console and the gear shift, and 'the rest of his body was slumped in the passenger seat. The bloody passenger window found on the ground outside of the SUV and the blood stains dripping down the outside of the passenger door also reflect Daniels’ desperate attempt to save himself. Further, as he tried to shield himself from the hail of gunshots, Daniels sustained a defensive gunshot wound that broke two bones in his left hand. Dr. Rao testified that these broken bones rendered his hand useless as he tried to escape the SUV.

Martin’s conduct and Daniels’ perceptions of the surrounding circumstances reflect the utter indifference and cruelty that justify the trial court’s finding of HAC. We affirm the trial court’s finding of HAC, which is supported by competent substantial evidence.

CCP

Martin challenges the trial court’s finding that the murder of Daniels was cold, calculated, and premeditated. “The CCP aggravator pertains specifically to the state of mind, intent, and motivation of the defendant,” Wright v. State, 19 So.3d 277, 298 (Fla.2009) (citing Brown v. State, 721 So.2d 274, 277 (Fla.1998)), and a finding of CCP is subject to the following four-part test:

(1) the 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); and (2) the defendant must have had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and (3) the defendant must have exhibited heightened premeditation (premeditated); and (4) there must have been no pretense of moral or legal justification.

Lynch, v. State, 841 So.2d 362, 371 (Fla.2003). Martin does not challenge the trial court’s conclusion that there was no pretense of moral or legal justification. However, Martin maintains that the murder was the result of the impulsive actions of “a man who suffers from intellectual deficiencies in the mentally retarded range,” and that -the murder lacked the requisite “reflection, calculation, or preplanning” that is necessary for a finding of CCP. Because competent, substantial evidence supports the trial court’s finding of this aggravating circumstance, we affirm.

In its detailed sentencing order, the trial court concluded the following regarding CCP:

The evidence presented at trial proved beyond a reasonable doubt the existence of this aggravating circumstance. First, the Defendant’s actions were a product of cool and calm reflection, in that no evidence was .presented which indicated his actions were prompted by emotional frenzy, panic, or a fit of rage. Second, the Defendant planned to murder Mr. Daniels when he retrieved the .45 caliber pistol from Mr. Batie’s car. Third, the Defendant exhibited heightened premeditation. The Defendant could have left Mr. Daniels after firing the first round of shots into the driver’s side of the vehicle. Instead, the Defendant tracked Mr. Daniels around the car as he attempted to escape the vehicle, firing once into the windshield, and firing several times into the passenger’s side. The Defendant ultimately fired at least thirteen shots, and did not stop firing until he was sure he completed his objective. Finally, the Defendant had no pretense of moral or legal justification for the murder.
Overall, the totality of the circumstances indicate that the Defendant carried out Mr. Daniels’ murder in a cold, calculated, and premeditated manner. The Defendant was told a rumor that Mr. Daniels was the person who caused Mr. Batie to be grazed by a bullet. The Defendant then armed himself with a .45 caliber pistol with an extended magazine and approached Mr. Daniels. The Defendant’s intent was not just to commit a felony, it was to kill. After the Defendant fired six shots into the driver’s side of the vehicle, he continued to follow Mr. Daniels around the vehicle as Mr. Daniels tried -to escape. The Defendant could have stopped shooting and left Mr. Daniels, but did not. See Lynch, 841 So.2d at 372-73 (upholding the trial court’s finding that the murder was calculated where the defendant had time to reflect between firing the first shot and the final fatal shot). The Defendant was not prompted by frenzy, panic, or rage, and Mr. Daniels did nothing to provoke the Defendant. By all appearances, this murder was carried out as a matter of course. This aggravating circumstance has been given great weight in determining the appropriate sentence to be imposed.

(Footnote omitted).

When evaluating whether a murder was cold, calculated, and premeditated, “the focus ... is the manner of the killing...” Bell v. State, 699 So.2d 674, 678 (Fla.1997) (citing Sweet v. State, 624 So.2d 1138, 1142 (Fla.1993)). Contrary to Martin’s argument, the totality of the circumstances clearly reflects CCP. See Hudson v. State, 992 So.2d 96, 116 (Fla.2008) (citing Wike v. State, 698 So.2d 817, 823 (Fla.1997)). After arming himself with the .45 caliber pistol, Martin approached the driver’s side of the SUV and began firing at Daniels. Panicked by the gunfire that was targeting him, Daniels desperately tried to escape through the passenger side of the vehicle. Undeterred, Martin walked to the front of the SUV, fired another shot, and proceeded to the passenger side where he finished shooting Daniels.

Although this sequence of events evolved rather quickly, Martin’s act of tracking Daniels to prevent Daniels’ escape from the SUV contradicts any suggestion that Martin’s actions were merely impulsive and lacking reflection and calculation. Quite the contrary, instead of retreating after firing into the driver’s side of the SUV, Martin walked several feet to the other side of the SUV to finish what he started. All the while, Daniels desperately tried to escape Martin’s hail of gunfire. Martin’s deliberately ruthless act demonstrates the heightened premeditation that is necessary to support the trial court’s finding of CCP. See Fennie v. State, 648 So.2d 95, 99 (Fla.1994) (“[Defendant’s] actions, therefore, exude the deliberate ruthlessness necessary to raise his premeditation above that generally required for premeditated first-degree murder.”). The trial court’s finding of CCP was based on the application of the correct rule of law and was supported by competent substantial evidence. Consequently, we affirm.

Ring Claim

Further, Martin argues that Florida’s death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and is therefore unconstitutionally imposed. Martin also invites this Court to reconsider its holdings in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002). We conclude that Martin’s Ring claim is without merit, and we decline to reconsider Bottoson and King.

This Court has consistently held that where a defendant has been convicted of a prior violent felony, the requirement in Ring is satisfied. See Merck, 975 So.2d at 1067 (“This Court has held that the requirement that the jury make all of the findings necessary to enhance a defendant’s sentence is satisfied where one of the aggravators is the prior violent felony aggravator.”). In December 2001, Martin pled guilty to second-degree murder with a deadly weapon. Thus, Ring is satisfied. See id.

Moreover, this Court has rejected similar challenges to the constitutionality of Florida’s death penalty statute and invitations to reconsider Bottoson and King. See Peterson v. State, 94 So.3d 514, 538 (Fla.) (“We have consistently rejected claims that Florida’s death penalty statute is unconstitutional. Peterson has not presented any argument that requires us to reconsider this precedent.”) (citations omitted), cert. denied, — U.S. -, 133 S.Ct. 793, 184 L.Ed.2d 586 (2012). Therefore, Martin is not entitled to relief.

Sufficiency of the Evidence

As we are bound to do in every death case, we evaluate the sufficiency of the evidence on which the State relied to convict Martin. Although Martin does not challenge the sufficiency of the evidence on which the State relied to obtain its conviction, this Court must independently evaluate each death case for sufficiency of the evidence relied upon to convict the defendant. See Caylor v. State, 78 So.3d 482, 500 (Fla.2011). “In conducting this review, we view the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So.2d 655, 674 (Fla.2006) (citing Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). In this case, there is sufficient evidence to sustain Martin’s conviction.

The record reveals the following. At Martin’s request, Batie took Martin to the Weber 5B Apartments. While at the apartment complex, Batie mentioned to Martin the possibility that the person in the SUV was the person who shot him (Batie) two days earlier. Martin took Ba-tie’s gun, approached the SUV, and began shooting Daniels. Batie was not the only eyewitness to the murder who implicated Martin; multiple eyewitnesses also identified Martin as the shooter. In sum, six witnesses who identified Martin as the shooter testified at trial. Moreover, Martin attempted to convince eyewitness Hart to remain silent about what she witnessed.

The consistent testimony of multiple eyewitnesses placed Martin at the scene of the crime and identified him as the sole person who shot Daniels. Moreover, Martin made statements after the fact that expressed consciousness of guilt. Thus, there is sufficient evidence to affirm Martin’s conviction for first-degree murder.

Proportionality of Martin’s Death Sentence

“Due to the uniqueness and finality of death, this Court addresses the propriety of all death sentences in a proportionality review.” Hurst v. State, 819 So.2d 689, 700 (Fla.2002). This Court’s proportionality review involves “a comprehensive analysis in order 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 sentence.” Offord v. State, 959 So.2d 187, 191 (Fla.2007) (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003)). “This entails ‘a qualitative review ... of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.’ ” Id. (quoting Urbin v. State, 714 So.2d 411, 417 (Fla.1998)). Thus, in determining whether a death sentence is proportional, this Court does not simply compare the number of aggravating circumstances versus the number of mitigating circumstances. See id. We conclude that Martin’s death sentence is proportional to similar cases where the sentence of death has been imposed.

The trial court found three aggravating circumstances in this case: prior violent felony, HAC, and CCP. Each of these aggravating circumstances is among the weightiest in Florida’s death penalty scheme. This Court has repeatedly identified HAC and CCP as “two of the most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.2d 90, 95 (Fla.1999). “Similarly, the prior violent felony aggravator is considered one of the weightiest aggravators.” Silvia v. State, 60 So.3d 959, 974 (Fla.2011) (citing Sired v. Moore, 825 So.2d 882, 887 (Fla.2002)). In this case, the prior violent felony aggravating circumstance is based on Martin’s conviction of a non-contemporaneous second-degree murder. What is more, Martin had not been released from prison for that murder for a full five months when he murdered Daniels.

We note that although codefendant Ba-tie received a sentence of imprisonment for second-degree murder, Batie’s sentence does not render Martin’s death sentence disproportionate. “This Court has repeatedly stated that, when the defendant is the shooter, the death penalty is not disproportionate even though a codefen-dant received a lesser sentence.” Armstrong v. State, 642 So.2d 730, 739-40 (Fla.1994). See also Mordenti v. State, 630 So.2d 1080 (Fla.1994).

This Court has upheld death sentences with comparable findings of aggravating and mitigating factors. For example, in Lynch, we affirmed the defendant’s death sentences where the trial court found three aggravating circumstances as to each murder. Similar to the present case, in Lynch, the trial court’s finding of one statutory mitigating circumstance and multiple nonstatutory mitigating circumstances did not render either death sentence disproportionate. Lynch, 841 So.2d at 377.

We have also affirmed death sentences with less aggravation than the present case. For example, in Heath v. State, 648 So.2d 660 (Fla.1994), the trial court found two aggravating circumstances: “Heath was previously convicted of second-degree murder; and the murder was committed during the course of an armed robbery.” Id. at 663 (footnote omitted). In addition to two nonstatutory mitigating circumstances, the trial court also found one statutory mitigating circumstance, that Heath was under the influence of extreme mental or emotional disturbance. Id. Similar to the present case, Heath also involved a codefendant that received a sentence of imprisonment. Id. This Court upheld Heath’s death sentence, and it also expressly rejected Heath’s challenge to the disparity between his death sentence and his codefendant’s sentence of imprisonment. Id. See also Hayes v. State, 581 So.2d 121, 123-24 (Fla.1991) (upholding the death penalty where the trial court found two aggravating circumstances, one statutory mitigating circumstance, and nonstat-utory mitigating circumstances including that the defendant “is of low intelligence” and “developmentally learning disabled”). Although the trial court in Martin’s case found the existence of more nonstatutory mitigating circumstances than the trial court in Heath, we conclude that Martin’s sentence is nonetheless proportional to Heath in light of the relatively slight weight given to Martin’s mitigation.

Moreover, we have affirmed death sentences in cases where, unlike Martin’s case, the sole aggravating circumstance was a prior violent felony conviction for second-degree murder. See Ferrell v. State, 680 So.2d 390 (Fla.1996); Duncan v. State, 619 So.2d 279 (Fla.1993). In this case, not only did the trial court find the existence of Martin’s prior violent felony conviction for second-degree murder, the court properly found the existence of HAC and CCP. Thus, the especially weighty aggravating circumstances and the relatively slight mitigating circumstances render Martin’s death sentence proportional to other cases where this Court has upheld a sentence of death.

CONCLUSION

Therefore, having considered all of Martin’s claims, and having satisfied our obligation to determine the sufficiency of the evidence and the proportionality of Martin’s death sentence, we affirm Martin’s conviction and his sentence of death.

It is so ordered.

LEWIS, QUINCE, CANADY, and POLSTON, JJ., concur.

LABARGA, C.J., concurs in part and dissents in part with an opinion in which PARIENTE and PERRY, JJ., concur.

LABARGA, C.J.,

concurring in part and dissenting in part.

Although I concur with the majority in affirming Martin’s conviction and his sentence of death, I write in dissent to the majority’s conclusion that the trial court properly found CCP as an aggravating circumstance. As the majority opinion correctly states, the following four factors must exist in order to find CCP:

(1) the 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); and (2) the defendant must have had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and (3) the defendant must have exhibited heightened premeditation (premeditated); and (4) there must have been no pretense of moral or legal justification.

Lynch v. State, 841 So.2d 362, 371 (Fla.2003). Contrary to the majority view, I do not believe that Martin’s conduct exhibited the heightened premeditation that CCP requires. With respect to a trial court’s finding of heightened premeditation, this Court has stated:

Simple premeditation of the type necessary to support a conviction for first-degree murder is not sufficient to sustain a finding that a killing was committed in a cold, calculated, and premeditated manner. A heightened form of premeditation is required which can be demonstrated by the manner of the killing. To achieve this heightened level of premeditation, the evidence must indicate that a defendant’s actions were accomplished in a calculated manner, i.e., by a careful plan or a prearranged design to kill.

Besaraba v. State, 656 So.2d 441, 444 (Fla.1995) (quoting Holton v. State, 573 So.2d 284, 292 (Fla.1990)).

The evidence in this case is inconsistent with a finding that Martin had “a careful plan or a prearranged design to kill.” Besaraba, 656 So.2d at 444 (quoting Holton, 573 So.2d at 292). Instead of a murder that was carried out as a result of a plan or prearranged design, Daniels’ death was spontaneously triggered by Batie’s observation that Daniels may have been the person who shot him days before. Martin took Batie’s gun, approached Daniels, and began shooting. Thus, the evidence reveals a murder that was abruptly committed while “using [a] hastily obtained weapon[ ] of opportunity.” Mahn v. State, 714 So.2d 391, 398 (Fla.1998).

In light of the trial court’s finding of two particularly weighty aggravating circumstances, HAC and prior violent felony, I conclude that the finding of CCP was harmless error. Nonetheless, as to this Court’s conclusion that the trial court properly found CCP, I dissent.

PARIENTE and PERRY, JJ., concur.

      .Effective July 1, 2013, the term "mentally retarded” has been replaced with the term "intellectually disabled,” and the term "mental retardation” has been replaced with the term "intellectual disability.” See § 921.137, Fla. Stat. (2013).

      . In 1992, Martin scored a 71 on the WAIS-R. In 2002, he scored a 58 on the Beta-2-R. In 2008, he scored a 64 on the Beta 3 and a 94 on the WAIS-I. Dr. Bloomfield observed that the WAIS-IV that he administered to Martin was Martin’s only full-scale IQ test.

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

      . The trial court findings as to the nonstatuto-ry mitigating circumstances proposed by Martin are as follows: (1) Martin is functionally illiterate (slight weight); (2) Martin has a learning disability (slight weight); (3) Martin has low cognitive functioning (some weight); (4) Martin suffered a lifetime of poor health, including asthma, diabetes, and sleep apnea (slight weight); (5) Martin was a loving and caring son (slight weight); (6) Martin was a hard worker (slight weight); (7) Martin was generous (slight weight); (8) Martin was reverent (slight weight); (9) Martin was a loving and caring brother (slight weight); (10) Martin's love of work was often thwarted by his poor physical health (very slight weight); (11) Martin’s childhood was plagued by the excessive alcohol consumption and fighting of his parents (some weight); (12) Martin was respectful to the judge and other officers of the court (very slight weight); (13) sentencing Martin to death is disproportionate and disparate given Batie's sentence to life imprisonment (rejected as not proven); and (14) the jury recommendation was not unanimous (proven, but no weight assigned).

      . The trial court found the following nonstat-utory mitigating circumstances that were not proposed by the defense: (1) Martin had temper issues (slight weight); and (2) when Martin was a child, he was attacked by other children (slight weight).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Inquiry Concerning a Judge, No. 11-550 re Judith W. HAWKINS.
    No. SC12-2495.
    Supreme Court of Florida.
    Oct. 30, 2014.
    Rehearing Denied Nov. 26, 2014.

      Ricardo Morales, III, Chair, Michael Louis Schneider, General Counsel, Tallahassee, FL, and Gregory Robert Miller, Special Counsel, Beggs & Lane, RLLP, Tallahassee, FL, and David Lee McGee, Special Counsel, Beggs & Lane, RLLP, Pensacola, FL, and Lauri Waldman Ross, Counsel to the Hearing Panel, Ross & Girten, Miami, FL, and James A. Ruth, Chair, Hearing Panel, Jacksonville, FL, for Judicial Qualifications Commission, Petitioner.
    Gerald Kogan, Coconut Grove, FL, for Judge Judith W. Hawkins, Respondent.
   PER CURIAM.

In this case we review the determination of the Hearing Panel of the Florida Judicial Qualifications Commission (the Hearing Panel) that Judge Judith W. Hawkins has committed a series of violations of the Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. The Hearing Panel recommended serious sanctions short of removal, but our constitutional responsibility requires this Court to determine the appropriate sanction. See In re Sloop, 946 So.2d 1046, 1049 (Fla.2006). Article V, section 12(c)(1), of the Florida Constitution confers on this Court the authority to “accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission and ... order that the justice or judge be subjected to appropriate discipline, or be removed from office.” We undertake this responsibility with caution and restraint, keeping in mind, however, the utmost importance of maintaining the integrity of the justice system. See In re Henson, 913 So.2d 579, 593 (Fla.2005). “Although this Court gives the findings and recommendations of the JQC great weight, the ultimate power and responsibility in making a determination to discipline a judge rests with this Court.” In re Turner, 76 So.3d 898, 907 (Fla.2011) (quoting In re Colodny, 51 So.3d 430, 431 (Fla.2010)). Thus, in the final analysis, we must impose such sanction as this Court determines is appropriate and required under the specific circumstances of each case including, when necessary, removal from the bench.

We remain mindful that removal is the ultimate sanction in a judicial disciplinary proceeding, but we will impose that sanction when we conclude that the judge’s conduct is fundamentally inconsistent with the responsibilities of judicial office. See In re Shea, 759 So.2d 631, 638 (Fla.2000). For the reasons we explain, based on the violations found by the Hearing Panel which were supported by clear and convincing evidence, we conclude that removal from the bench is the only appropriate sanction in this case.

FACTS AND PROCEDURAL HISTORY

On December 5, 2012, an Investigative Panel of the Florida Judicial Qualifications Commission filed a notice of formal charges against the Honorable Judith W. Hawkins, a county judge in the Second Judicial Circuit, in and for Leon County. A Notice of Amended Formal Charges, adding additional charges arising from Judge Hawkins’ conduct during the investigation, was filed on June 10, 2013.

The amended notice alleged violations of the Code of Judicial Conduct, Canons 1, 2A, 2B, 3A, 3B(2), 3B(4), 3B(7), 3B(8), 3C(1), 4D(1), and 5D(1), and violation of article V, section 13, of the Florida Constitution. Article V, section 13, provides in pertinent part that all judges “shall devote full time to their judicial duties.” The charges comprised five categories: I. use of judicial office to promote a private business, Gaza Road Ministries, in which Judge Hawkins was a speaker and a writer, having written and published a book titled “Old Stories, New Insights” based on biblical stories; II. failure to respect and comply with the law; III. failure to act in a manner promoting public confidence in the judiciary; IV. failure to devote full attention to her judicial office; and V. lack of candor with the Judicial Qualifications Commission (the Commission).

It was alleged in count 1(A) of the Notice of Amended Formal Charges that Judge Hawkins used court resources to operate a private business from which she derived substantial income, in that she operated her Gaza Road Ministries business in large part from her judicial chambers, utilizing official time, office space, utilities, equipment, and the services of her judicial assistant. Count 1(A) also alleged that Judge Hawkins used her position to promote her business by: (1) selling and offering to sell Gaza Road Ministries products in her courtroom to lawyers appearing there; (2) selling and offering to sell those products in the courthouse to persons over whom she had disparate influence and authority; (3) offering to sell the products to attorneys appearing before her in chambers on court business; (4) promoting the sale of the products on a website in which she appeared in photographs wearing her judicial robes; and (5) knowingly using her judicial assistant to produce and promote the sale of Gaza Road Ministries products during working hours.

Count 11(A)(1) alleged that Judge Hawkins maintained an idiosyncratic system of justice in which she would go off the record to avoid having coercive discussions recorded, to prevent the preparation of a full record, and to avoid the recording of inappropriate comments or the sound of magazine pages turning during trial. Count 11(A)(2) alleged that Judge Hawkins took measures to coerce compliance with her system of justice. Count 11(B) alleged that Judge Hawkins failed to comply with sales tax laws. Count 11(C) alleged that she paid her judicial assistant to assist in the operation of the business but failed to report that pay to taxing authorities and to the Judicial Qualifications Commission. Count 11(D) alleged that she violated Florida law by failing to register Gaza Road Ministries under the Florida Fictitious Name Act.

Count 111(A) alleged Judge Hawkins failed to act in a manner that promotes public confidence by presiding over a criminal case in which she instructed the defendant to contact one of three lawyers and tell them Judge Hawkins sent her. Count III(B) alleged that Judge Hawkins was observed openly reading magazines when presiding over jury trials and, when doing so, was inattentive to objections by counsel. Count IV(A) alleged that Judge Hawkins failed to devote full attention to her judicial office by using what she viewed as “free time” in judicial chambers to conduct her for-profit business and to schedule business appointments. Count IV(B) alleged that Judge Hawkins was often absent, resulting in disruption to those who appeared before her.

Count V(A) alleged that Judge Hawkins exhibited a lack of candor and ignored the applicable law in responding to the charges brought by the Commission. Count V(A)(1) alleged that on the morning of her scheduled deposition, Judge Hawkins deleted financial information from her private business computer, which records had been subpoenaed for production at the deposition. Count V(A)(2) alleged that she misled the Commission with regard to efforts to keep her private business separate from her judicial duties and from the duties of her judicial assistant, and that Judge Hawkins worked extensively on her business at her judicial office and encouraged her judicial assistant to do the same. Count V(A)(3) alleged that Judge Hawkins misled the commission investigator and forensic computer expert with regard to the existence of flash drives that were ordered produced by a Commission subpoena and by order of the Hearing Panel chair, Judge Paul L. Backman, and that she refused to turn over flash drives listed in the order. Count V(A)(4) alleged that without any legal basis Judge Hawkins refused to turn over financial data ordered by Judge Backman. Count V(A)(5) alleged that Judge Hawkins misled the Commission with regard to payments made to her judicial assistant. Count V(B) alleged that Judge Hawkins’ responses to the Commission at the “rule 6(b) hearing,” at her deposition, and in response to discovery requests created a pattern of conduct demonstrating refusal to comply with lawful authority, misleading by incompleteness, and lacking the candor expected of a judicial officer.

In response to the original Notice of Formal Charges, Judge Hawkins admitted selling and offering to sell her Gaza Road Ministries book in her courtroom and in the courthouse, but she denied that she sold them to persons over whom she held disparate authority. She also admitted that her Gaza Road Ministries website contained photographs of her wearing a judicial robe, but denied that it was done to promote her private interest. In her response to the charges, Judge Hawkins asserted that she created and edited the Gaza Road Ministries materials on her own time using her own equipment, and that her judicial assistant did not work on the book during working hours at work. Judge Hawkins denied that her participation in Gaza Road Ministries was ever to the detriment of prompt and efficient administration of justice. Finally, she contended that Gaza Road Ministries has enhanced and improved her judicial performance. In response to the Notice of Amended Formal Charges, Judge Hawkins denied knowingly using her judicial assistant to help produce and promote the sale of Gaza Road Ministries products during working hours, and denied that she misled the Commission concerning payments made to her judicial assistant. Judge Hawkins denied using court resources in the operation of her business, and contended that any such use was de minimis. She also denied that involvement with her business has caused her to devote less than full time to her judicial duties.

The facts concerning Judge Hawkins’ background and judicial service were presented during this proceeding. She was first elected to the county court bench in 1996 and has been re-elected ever since. She has served in all divisions of county court, which include traffic, misdemeanor, civil and administrative. She serves with four other county court judges and handles one-fifth of the docket. In 2008, she wrote a self-published book and in the fall of 2010, started Gaza Road Ministries as an additional source of income for charitable works. As the Hearing Panel noted, Judge Hawkins has dedicated her life to public service and has been actively involved in the community and in charitable works.

Prior to the formal charges being filed in this case, the Commission Investigative Panel met with Judge Hawkins pursuant to a notice of investigation to take her unsworn statement regarding the allegations brought against her. On November 16, 2012, Judge Hawkins appeared before the Commission Investigative Panel at the rule 6(b) hearing and told the panel that she was careful in attempting to separate her judicial and business activities. She contended that she never pressured anyone to buy'her book, and sold it only to persons with whom she had a personal relationship or who were personal friends, and that she kept a fairly meticulous list of purchasers. She denied using State resources to operate her business and explained that she paid her judicial assistant separately for work performed by her for Gaza Road Ministries. The Notice of Formal Charges was then filed on December 5, 2012.

In the course of the investigation, the Commission issued a subpoena duces te-cum to Judge Hawkins to produce twenty categories of documents at her deposition that was scheduled for February 19, 2013. The documents related to persons to whom Gaza Road Ministries products were sold, financial records reflecting the income and expenses of the business, records reflecting income, gifts, or loans given by Judge Hawkins to her judicial assistant, and tax schedules and forms. In answer to the subpoena, Judge Hawkins agreed to produce the Gaza Road Ministries e-mails and dedicated laptop, IRS 1099 forms issued to her judicial assistant, and her official calendars. Judge Hawkins responded that she had not deleted any materials on her personal dedicated laptop other than Commission pleadings and work product, and asserted that she had made no loans to her judicial assistant. Judge Hawkins stated that she was unable to respond regarding any gifts, and that income paid to her judicial assistant would be reflected on the 1099 forms.

The deposition of Judge Hawkins was held on February 19, 2013, at which Judge Hawkins refused to produce e-mails relating to Gaza Road Ministries, her dedicated computer, and any federal 1099 forms reflecting payment to her judicial assistant. Significantly, when Judge Hawkins was asked about the requested financial documents related to Gaza Road Ministries, she responded that she had a Quicken software program on her Gaza Road Ministries laptop, but said “I deleted whatever financial information had been put into the Quicken program, and I did that this morning.” She also refused to provide her tax return and tax forms or to answer the question of where the Gaza Road Ministries account was located. At the deposition, she admitted that she received approximately $13,500 in income from the business but refused to provide any records. She also admitted that Gaza Road Ministries was a fictitious name that was not registered as such. When asked if she thought that having her photograph on her business website depicting her wearing her judicial robe was improper, Judge Hawkins stated, “I will not answer that question.”

When asked at her deposition about income or gifts to her judicial assistant, Judge Hawkins responded that the income would be reported on a federal 1099 form, which she refused to produce, and that she had no independent recollection of giving her judicial assistant any gifts, including cash gifts, over $50. However, after the deposition was concluded, and after her judicial assistant was deposed, Judge Hawkins returned to the deposition room and disclosed that for many months she has given her judicial assistant approximately $48 or $49 dollars each month to reimburse her for payments the judicial assistant made into a deferred compensation account.

After the deposition, the Judicial Qualifications Commission obtained an order preventing the further destruction of evidence and an order compelling production of documents that had previously been requested in the “Florida Judicial Qualifications Commission’s Request for Production of Documents to Judge Judith Hawkins.” In addition to the subpoena duces tecum for deposition, the Commission requested her to produce a number of documents and records related to the business. Judge Hawkins responded to the request for production by refusing to produce personal emails related to Gaza Road Ministries and refusing to produce her personal computer, portable hard drives, flash drives, or electronic storage devices containing records of her business. She objected to producing tax returns, 1099 forms, or any financial information, contending that they exceeded the scope of the investigation. She also refused to produce a list of persons to whom her book was sold. The Commission later filed a second motion to compel when Judge Hawkins failed to produce all the documents required to be produced under the first order to compel. The motion alleged that Judge Hawkins would not produce materials evidencing operation of her business, the identity of those to whom she sold her materials in the courthouse, materials showing her scheduling, and records pertaining to her business and her publications which were deleted from her private computer, and certain other records and electronic storage devices that had been connected to her computers. ' Judge Hawkins ultimately produced her computers and other documents for inspection.

As part of the investigation, the Commission retained Marc Yu, a forensic computer examiner who performs digital forensic analysis of computer drives. He was provided four computers to inspect, including the office desktop computer in Judge Hawkins’ office, a personal laptop computer from her office, a personal laptop from her home, and the office desktop computer in her judicial assistant’s office. Yu confirmed that the Quicken log on Judge Hawkins’ personal computer had been opened on February 19, 2013, at 5:17 a.m., and that by 5:20 a.m., the Quicken log had been reduced essentially to nothing, but there was no way he could determine the amount of data that had previously existed on it. He testified he also discovered that 55 separate ESDs, which are electronic storage devices such as USB flash drives or thumb drives, had been plugged into Judge Hawkins’ computers. Yu said that when asked about them, Judge Hawkins responded that she did not have any flash drives, a statement Judge Hawkins denied making.

Based on the deletion of the financial files from her laptop, the Commission entered an order to prohibit any further destruction of evidence and, after a hearing on the second motion to compel, the Hearing Panel Chairman ordered Judge Hawkins to turn over a list of flash drives and other documents. She produced a number of flash drives and an external hard drive, as well as a list of purchasers of her book and Gaza Road Ministries financial records for 2012 and 2013, but not those for 2010 and 2011.

A final hearing was held October 7-9, 2013, before the Hearing Panel comprising the Chairman and five Commissioners. Judge Hawkins was represented by counsel, as she had been throughout the proceedings.

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE HEARING PANEL OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

The Hearing Panel issued its “Findings, Conclusions and Recommendations of the Hearing Panel, Florida Judicial Qualifications Commission” on January 27, 2014. After considering all the evidence presented, the Hearing Panel concluded that Judge Hawkins was guilty of violation of Count 1(A) in that she operated a private, for-profit business, from which she derived substantial income, from her judicial chambers using official time and judicial resources. The Hearing Panel also concluded that she used her judicial position to promote Gaza Road Ministries by selling and offering to sell Gaza Road Ministries products in the courthouse to persons over whom she had disparate influence and authority, including lawyers who appeared before her and various courthouse employees. The Hearing Panel found Judge Hawkins guilty of promoting the sale of Gaza Road Ministries products on a website that included photographs of her in her judicial robes, and guilty of knowingly using her judicial assistant to promote and produce the Gaza Road Ministries products during working hours.

Judge Hawkins was also found guilty of the violations alleged in Count II of the Amended Notice of Formal Charges in failing to comply with Florida tax laws in the sale of her products and failing to register Gaza Road Ministries as a fictitious name. She was found not guilty of the charges that she maintained an idiosyncratic system of justice known as “Hawkins’ law” and that she used coercive measures to effect compliance. The Hearing Panel concluded that “Hawkins’ law” was nothing more than two basic rules— “know your judge” and “don’t annoy your judge.” The Hearing Panel also found Judge Hawkins not guilty of failing to properly report to the appropriate taxing authorities and the Commission the full amount of payments made to her judicial assistant for her assistance in the operation of the business. The Hearing Panel concluded that monies given to her judicial assistant to reimburse her for payments into the judicial assistant’s deferred compensation account were gifts, and taxes were not due from Judge Hawkins on those payments.

The Hearing Panel found Judge Hawkins guilty of violations alleged in Count III that she was openly observed reading magazines, which Judge Hawkins later characterized as legal materials, during court proceedings and covering up her inattentiveness by asking counsel to rephrase the question. Judge Hawkins was found not guilty of the charge that her actions in advising a defendant, who was about to enter a plea, to contact one of three named lawyers and tell them “Judge Hawkins sent you” failed to promote public confidence in the judiciary.

As to Count IV, the Hearing Panel found that Judge Hawkins’ explanation that she and her judicial assistant had a great deal of free time and used that time to operate the business in part from chambers proved that Judge Hawkins failed to devote full time and attention to her judicial office. The Hearing Panel found Judge Hawkins not guilty of the charge that taking time away from her court duties was to the detriment of prompt and efficient administration of justice. She was also found not guilty of taking trips and vacations during her trial weeks and not informing parties or attorneys in a timely fashion, to the detriment of the parties and attorneys.

Finally, as to Count V, the Hearing Panel found Judge Hawkins guilty of exhibiting a lack of candor before the Commission, ignoring the requirements of law, and evading lawful orders of the Hearing Panel by deleting subpoenaed financial records on the morning of her deposition; misleading the Investigative Panel in her appearance before the Panel and her subsequent deposition concerning her efforts to keep her private business separate from her judicial duties; misleading the Commission investigator and its forensic computer expert with regard to flash drives that were ordered produced; refusing to turn over financial data required by the Hearing Panel Chair’s order when requested; and misleading the Investigative Panel with regard to payments made to her judicial assistant, and only admitting to such payments after her deposition. Also as to Count V, the Hearing Panel found Judge Hawkins guilty of providing responses at the 6(b) hearing, her deposition, and in response to discovery that created a pattern of conduct demonstrating a refusal to comply with lawful authority and lacking the candor expected of a judge. She was found guilty of obstructive behavior, untruthful answers, and attempts to repeatedly frustrate and obfuscate discovery, reflecting an intentional disregard for the rules of procedure applicable to this action.

FINDINGS OF FACT

The Hearing Panel found that Judge Hawkins was guilty of the above counts based upon its findings of fact. The Hearing Panel found, as Judge Hawkins stated in her response to the formal charges, that in 2008 she wrote a self-published book and later started her business, Gaza Road Ministries, which facilitated the sale of the book and other writings and which promoted Judge Hawkins as a speaker. The Hearing Panel found that the business was established for mainly charitable purposes. Judge Hawkins explained that she was excited about the publication of her book and talked about it at the courthouse. At the hearing held before the Hearing Panel, two assistant public defenders testified that once in her chambers to discuss a plea, Judge Hawkins was signing copies of her book and showed it to the attorneys, making it clear that the book was for sale. A supervisor in the Clerk’s Office testified that Judge Hawkins came into the Clerk’s Office carrying some books and told others in the office that the books were for sale. A receptionist and administrative assistant in the courthouse testified that Judge Hawkins sat down by her desk and, in the course of the conversation, mentioned that she had written a book. The receptionist was a passing acquaintance of the judge and bought the book because she was interested in the subject.

The Hearing Panel found, as Judge Hawkins acknowledged, that she sold a book to an attorney appearing before her in open court who had asked her about the book and requested a copy. Judge Hawkins accepted $15 for a copy of the book at that time. Another attorney testified that he had a conversation with Judge Hawkins in the courthouse hallway in which she mentioned that she had a book for sale, which the attorney purchased although he was not really interested in the subject. He testified he did not want to offend the judge.

The Commission investigator, A1 Beiner, testified about the Gaza Road Ministries website where Judge Hawkins appeared in photographs wearing her judicial robe and where she mentioned her position as a Leon County judge. The books, study guides, tracts, and souvenirs shown on the website linked to an order page for the business products.

Records subpoenaed from the State computer system reflected that Judge Hawkins’ judicial assistant set up her own not-for-profit corporation to conduct business with Gaza Road Ministries. The record disclosed 205 e-mail communications on the State computer between Judge Hawkins, her judicial assistant, and persons interested in the business’s products and services. Many of the e-mails were copied to the judicial assistant’s corporation. The investigator also obtained a CD of 885 e-mails from the judicial assistant’s business and testified that they showed a significant amount of Gaza Road Ministries business being conducting during court workdays.

The investigator testified that Judge Hawkins refused to make her personal laptop available for inspection and that she admitted that on the morning of her deposition she had deleted the Gaza Road Ministries financial files in the Quicken program from the computer. This testimony was augmented by the testimony of Mark Yu, the forensic computer examiner, who found by examining Judge Hawkins’ personal computer that on February 19, 2013, at 5:17 a.m., Judge Hawkins deleted data from her Quicken program, reducing the data in the program to “nothing,” and that she told him she did not have any flash drives. Further examination of the computers showed that numerous flash drives had been inserted into the computer in the past. The Commission investigator testified that after orders to compel, Judge Hawkins produced a total of nineteen flash drives for inspection.

Portions of Judge Hawkins deposition were read into evidence at the hearing in which she initially refused to make her Gaza Road Ministries e-mails available to the investigator and refused to make her personal laptop available for inspection. In the deposition, she admitted deleting the Quicken files and refused to release any income tax information pertaining to income she received from Gaza Road Ministries. She refused to provide information concerning IRS 1099 forms reporting income to her judicial assistant’s corporation, and refused to tell the Commission’s counsel the location of the bank account for Gaza Road Ministries.

The Commission investigation disclosed, and it is undisputed, that Judge Hawkins did not pay State sales tax on the sale of Gaza Road Ministries products. In 2013, after the proceeding had commenced, she did pay the State Department of Revenue sales tax for the years 2012 and 2013. It is also undisputed that Judge Hawkins failed to register her unincorporated business name under the Florida Fictitious Name Act, section 865.09, Florida Statutes, although she later did so. When asked at her deposition about her failure to register the fictitious name, she responded that she hoped she did not need to but “[i]f I do, oops, I haven’t.”

As to the charge that Judge Hawkins was observed reading magazines in court and not paying attention, the Hearing Panel heard testimony from an Assistant State Attorney who had been assigned to practice in front of Judge Hawkins. She had observed Judge Hawkins reading a magazine during trial. She also observed other attorneys trying cases in front of Judge Hawkins, and testified that often when attorneys made objections, it appeared that Judge Hawkins would continue to read a magazine or other material and would “wave” them along without a ruling. When they asked to be heard, Judge Hawkins would sometimes explain that she was not listening. A misdemeanor division supervisor with the Office of the State Attorney who routinely observed prosecutors practicing in Judge Hawkins’ courtroom also testified that on numerous occasions he observed Judge Hawkins reading a magazine and flipping pages during voir dire and trial testimony. The managing court reporter that reported digitally recorded proceedings in Judge Hawkins’ court testified that in transcribing digital records from Judge Hawkins’ courtroom, the court reporters would often have to report portions as “inaudible due to Judge’s mike being turned away,” and that when advised of this problem, Judge Hawkins explained she did so to avoid the sound of magazine pages being turned. The Hearing Panel found these facts but rejected the assertion that she went off the record in order to defeat appellate review.

As to the charge that Judge Hawkins devoted less than full time to her judicial duties, Judge Hawkins explained that she is often out of the office during court working hours because, if she had no trials or hearings, she would go home. She further explained that when e-mails showed her working on Gaza Road Ministries business during court working hours, she might have been doing so from home, but that if she was needed at court or to sign a warrant, she always made herself available. The Hearing Panel found that this conduct demonstrated that Judge Hawkins believes her time is her own when she is not in court, and constitutes less than full time devotion to judicial duty. However, the Hearing Panel rejected the assertion that Judge Hawkins was often absent during trial weeks, creating disruption or prejudice to the parties.

In its findings of fact, the Hearing Panel noted that in the 6(b) hearing held November 16, 2012, before the Investigative Panel, Judge Hawkins appeared and made a statement not under oath that she was meticulous in trying to separate judicial and business activities and that persons to whom she sold her books in the courthouse were personal friends who, for instance, she would invite “when [she] had a birthday party.” She also told the Investigative Panel that she kept a fairly meticulous list of purchasers. These assertions were shown to be erroneous by evidence at the later evidentiary hearing that persons who were merely courthouse acquaintances had purchased the book at the courthouse, and that the list she ultimately provided — after first refusing to disclose it — included some purchasers by first name only, and Judge Hawkins did not always know their full names.

The Hearing Panel noted an e-mail in evidence that was sent from Judge Hawkins’ Gaza Road Ministries e-mail account to the business e-mail account of her judicial assistant on April 6, 2011, at 2:13 p.m., directing her judicial assistant to “learn about self-publishing” so they could select a publishing company. The e-mail also asked her judicial assistant, “How do you charge me? Must be different from others b/c you get much done during work day.” Investigator Beiner prepared reports analyzing the volume of e-mails relating to Gaza Road Ministries generated by Judge Hawkins and her judicial assistant during work hours, which analysis showed that Judge Hawkins regularly accessed her private e-mail from her State computers, and the Hearing Panel found that she “likely” did a significant amount of work relating to Gaza Road Ministries while occupying a state office.

CONCLUSIONS OF LAW OF THE HEARING PANEL

The Hearing Panel concluded based on the evidence that Judge Hawkins’ actions in operating a private business in significant part from her judicial chambers, linking the sale of her products to her judicial offiee by depicting herself wearing judicial robes on the business website, and using State time and resources to promote her business violated Canons 1, 2B and 5D of the Code of Judicial Conduct. Canon 1 provides that judges personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. Canon 2B provides in pertinent part that a judge shall avoid impropriety and the appearance of impropriety and thus shall not lend the prestige of judicial office to advance private interests. Canon 5D of the Code of Judicial Conduct provides in pertinent part that a judge shall not engage in financial and business dealing that may reasonably be perceived to exploit the judge’s position or involve the judge in frequent transactions or continuing business relationships with lawyers or other persons who are likely to come before the court on which the judge serves.

The Hearing Panel concluded that Judge Hawkins’ conduct violated Canons 1 and 2A of the Code of Judicial Conduct by her failure to pay sales tax on the sale of Gaza Road Ministries products and by her failure to register her business under the Florida Fictitious Name Act. The Hearing Panel concluded these same Canons were also violated by Judge Hawkins’ conduct in repeatedly evading and frustrating discovery, deleting subpoenaed records, misleading the Investigative Panel and the Commission investigator, and refusing to turn over financial data and flash drives when ordered by the Hearing Panel. The Hearing Panel also concluded this conduct demonstrated a lack of candor required of judges.

Based on these findings of fact and conclusions of law, the Hearing Panel found that the case presented a very close call between the sanctions of removal and discipline, and opted to recommend discipline in the form of a reprimand, a three-month suspension without pay, and a $17,000 fine. This decision was based in part on the fact that Judge Hawkins had charitable motives in operating her business and had a lengthy judicial career and exemplary conduct for many years.

After issuance of the Hearing Panel’s order, this Court ordered Judge Hawkins to show cause why the recommended discipline should not be followed, but after further consideration of the record, we issued a second order to show cause why removal is not the appropriate sanction. In response to that order to show cause, Judge Hawkins asserted in part that her obstructive conduct during the investigation was the result of “a moment when my faith instructed me, like many other litigants, to hold fast to my innocence and fight the good fight.” The Judicial Qualifications Commission response countered that intentional misrepresentation, destruction of evidence, and obstruction of justice do not constitute the “good fight.” Thus, we turn to our analysis of the evidence, the findings of the Hearing Panel, and our own determination of the appropriate and necessary sanction in this case.

ANALYSIS

The Court will independently review the Commission’s findings “to determine if they are established by clear and convincing evidence.” Turner, 76 So.3d at 901. This quantum of proof is an intermediate standard, more than “a preponderance of the evidence,” but less than “beyond and to the exclusion of a reasonable doubt.” In re Holloway, 832 So.2d 716, 726 (Fla.2002). This intermediate level of proof involves both a qualitative and quantitative standard. “The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” Id. We have noted the significance of the fact that “the JQC is in a position to evaluate the testimony and evidence first hand.” Turner, 76 So.3d at 901 (quoting In re Graziano, 696 So.2d 744, 753 (Fla.1997)). Moreover, and particularly applicable to this case, where multiple violations are found, “the cumulative weight of the improprieties [may] support removal.” In re Henson, 913 So.2d at 593 (Fla.2005) (bracketed material added).

“This Court has emphasized that the object of disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge’s fitness to serve as an impartial judicial officer.” In re McMillan, 797 So.2d 560, 571 (Fla.2001) (citing In re Kelly, 238 So.2d 565, 569 (Fla.1970)). In making this determination, judges should be held to higher ethical standards than lawyers “by virtue of their position in the judiciary and the impact of their conduct on public confidence in an impartial justice system.” Id. Where “the judge’s conduct is fundamentally inconsistent with the responsibilities of judicial office,” removal may be the only appropriate sanction. See id. (quoting In re Graziano, 696 So.2d at 753).

We have carefully reviewed the entire record of this proceeding and conclude that clear and convincing evidence supports the Hearing Panel’s factual findings and its conclusions that Judge Hawkins violated Canons 1, 2A, and 5D of the Code of Judicial Conduct. Clear and convincing evidence demonstrated that she regularly used court resources, including the services of her judicial assistant, for Gaza Road Ministries business at work and during working hours. Judge Hawkins explained in her February 19, 2013, deposition, which was admitted into evidence at the hearing, that speaking engagement requests relating to Gaza Road Ministries may have come to her at work because that was the only way the requestor had to contact her. When asked if her judicial assistant handled those during working hours, Judge Hawkins responded that she had “no independent recollection” of how her judicial assistant did the work and had no recollection “one way or the other” about telling her judicial assistant not to work on Gaza Road Ministries business in the courthouse.

Judge Hawkins told the investigator that she used her State computer as a repository for her Gaza Road Ministries records and texts because she feared that if that material was only on her laptop, it might get stolen. Testimony by investigator Beiner and forensic examiner Yu established that a significant number of Gaza Road Ministries e-mails were routed through or placed on the work computers of Judge Hawkins and her judicial assistant.

Evidence clearly established that Judge Hawkins showed her book to attorneys in her chambers and made clear it was for sale. She accepted payment from an attorney for one of her books while on the bench. She offered her book to another attorney in the courthouse hallway. Judge Hawkins testified at the hearing that three or four attorneys bought her book, as well as some judicial assistants, some court administration personnel, a judge, two bailiffs, an employee in the probation department, and some court clerks. She did not know all the names of those to whom she sold the book, and defended her noncompliance with the order to compel a complete list of purchasers by saying she was under no obligation to create anything, but just to provide what information she had. This conflicted with her earlier statements to the Investigative Panel that she kept a “fairly meticulous list” of those persons to whom she sold the book.

Pursuant to subpoena, 205 e-mails were found on court computers between Judge Hawkins, her judicial assistant, and persons interested in the Gaza Road Ministries materials or services. An analysis of other Gaza Road Ministries e-mails disclosed that a significant percentage of those e-mails were sent or received during work hours. Judge Hawkins testified that she might have been at home when many of the e-mails were written because if she had no hearings and her calendar was clear, she would usually stay home and not go into the office for part of the day. Based on this evidence, the Commission correctly found that Judge Hawkins thought her time was her own during the workday. Her conduct in this regard showed that Judge Hawkins devoted less than full time to her judicial duties.

Clear and convincing evidence supported the conclusion that Judge Hawkins violated Canon 1 by failing to maintain and enforce high standards of conduct and personally observe those standards by her failure to pay state sales tax on the sale of her business products and failure to register the name of her business under the fictitious name law. Clear and convincing evidence also established that Judge Hawkins’ failings in this regard also violated Canon 2A, requiring respect and compliance with the law. Judge Hawkins acknowledged that she had not paid State sales tax on the sale of her books and had not registered her business under the fictitious name statute, section 865.09, Florida Statutes (2018), which constitutes a second-degree misdemeanor.

The Hearing Panel had before it clear and convincing evidence that Judge Hawkins linked the sale of her business products to her judicial office by her appearance on her website in judicial robes, which lent the prestige of the judicial office to advance private interests. This conduct violated Canon 5D, which prohibits judges from engaging in business dealings that may reasonably be perceived to exploit the judicial position. Judge Hawkins acknowledged that she appeared on her business website in photographs depicting her in her judicial robes.

We also conclude that Judge Hawkins’ conduct during the investigation violated Canons 1 and 2A by her lack of candor required of a judge. Lack of candor is exhibited when a judge gives materially misleading and incomplete statements during a deposition, refuses to answer relevant questions during the investigation, and refuses to turn over relevant documents after being ordered to do so, as Judge Hawkins did in this case. Especially distressing is Judge Hawkins’ conduct in deleting Gaza Road Ministries financial data in the early morning hours of the day of her deposition after that data had been subpoenaed and after Judge Hawkins had originally agreed to produce it. This act alone is clear and convincing proof of Judge Hawkins’ extreme lack of candor in these proceedings. This act alone violated the basic requirement of Canon 1 that a judge “shall personally observe those high standards [of conduct] so that the integrity and independence of the judiciary may be preserved.” This act alone was a serious violation of Canon 2A that a judge “shall respect and comply with the law.” Compliance with the law includes compliance with the rules of procedure that govern this proceeding and with the lawful orders of the Investigative Panel and the Hearing Panel. Noncompliance, obfuscation, and avoidance of those rules and orders are not justified by a judge regardless of whether the judge personally believes the investigation is unwarranted.

At the hearing, Judge Hawkins testified that she was offended that the Commission and the investigator sought to look at her financial records, and said, “Why would you expect me to give you the information to investigate me?” Concerning the Judicial Qualifications Commission’s request for a list of purchasers of her book, she testified, ‘You’re the one who said that I sold the books. Surely you should have gone around and figured out who I sold them to.” Judge Hawkins called the request for production of the documents a fishing expedition, although she ultimately provided the purchaser information in the form that she kept it, which did not always include last names, after motions and orders to compel. The record establishes by clear and convincing evidence that Judge Hawkins sought to frustrate the discovery of materials relevant to the investigation, which were subpoenaed or the subject of a request for production, and which were ordered to be produced pursuant to two motions to compel.

We consider a judge’s deceit or dishonesty to be a very serious factor in determining an appropriate sanction. In the case of In re Ford-Kaus, 730 So.2d 269 (Fla.1999), that judge was removed for violations that included misrepresentations and untruthful statements to a client before becoming a judge, and untruthful statements to the Investigative Panel about the matters in issue. See id. at 273-75. We later referred to our Fordr-Kaus decision in In re Eriksson, 36 So.3d 580 (Fla.2010), where we noted that we had “factored dishonesty into [our] decision to remove [Ford-Kaus] from office.” Id. at 591. Judge Hawkins’ misstatements to the investigating attorney and Investigative Panel, her deletion of subpoenaed financial information from her computer on the morning of her deposition, and her denial that she had flash drives are all forms of deception that can be equated to deceit or dishonesty for purposes of determining if removal is a proper sanction in this case.

In the case of In re Henson, 913 So.2d at 587, we also noted that deception or deceit are important factors bearing on a judge’s fitness because “[t]he judicial system can only function if the public is able to place its trust in judicial officers.” Id. (quoting In re Ford-Kaus, 730 So.2d at 277). Removal is an appropriate discipline where the actions of the judge simply “should erode confidence in the judiciary,” even where it does not appear that the public has lost confidence, and even where the Hearing Panel has recommended a lesser sanction than removal. In re Sloop, 946 So.2d at 1055 (quoting In re LaMotte, 341 So.2d 513, 518 (Fla.1977)). In In re LaMotte, this Court removed the judge based on his use of a state-issued credit card for personal trips, even though the judge testified that he thought the personal charges would be deducted from his salary and he made restitution, and in spite of ample good character testimony. 341 So.2d at 518.

We are fully mindful that the Hearing Panel found that Judge Hawkins has a generally exemplary record as a dedicated public servant who cares about others and who has been efficient and innovative in dispensing justice. We are also aware that Judge Hawkins operated her Gaza Road Ministries business primarily as a charitable enterprise, with good intentions. The Hearing Panel found that these mitigating factors played a large part in the “close call” whether to remove or simply discipline Judge Hawkins. Nevertheless, we have found removal the appropriate sanction in cases where the judge has good character and a strong record, such as the case of In re Henson. There, we stated, “We have previously removed judges despite strong character evidence or an unblemished judicial record when their misconduct was fundamentally inconsistent with the responsibilities of judicial office or struck at the heart of judicial integrity.” 913 So.2d at 593. We explained that “Judge Henson’s trustworthiness, competence, and strong work ethic both as an attorney and judge, cannot overcome the grievous nature of the violations.” Id. at 592-93.

Similarly in this case, we are constrained to conclude that Judge Hawkins’ prior record of service and good intentions cannot overcome the grievous nature of the violations in this case. While sale of her book to employees and lawyers in the courthouse, standing alone, would not justify removal, we cannot ignore the fact that Judge Hawkins employed court resources in the operation of her business for a lengthy period of time and failed to see that such conduct was improper under the Canons of Judicial Conduct. Moreover, even in the response to our final order to show cause, Judge Hawkins maintained a defensive posture concerning her conduct in refusing to answer questions and refusing to provide investigatory materials, even after issuance of an order to compel. In defending her conduct, Judge Hawkins asserted that her faith instructed her to hold fast to her-innocence and “fight the good fight.” We agree with the Commission that obfuscation and frustration of proper discovery, and refusal to answer questions posed by the Investigative Panel, Judicial Qualifications Commission counsel, the Investigator, and the Hearing Panel, do not constitute fighting the “good fight.” The Canons require a judge to personally observe high standards of conduct so that the integrity of the judicial system may be observed. See Canon 1, Code of Judicial Conduct. The Canons also require a judge to comply with the law. See Canon 2A, Code of Judicial Conduct. These Canons were violated by Judge Hawkins’ conduct in this case.

In past cases, this Court has also given favorable consideration to a judge’s acceptance of responsibility for his or her actions, such as occurred in In re Holloway, 832 So.2d at 729, and In re Schwartz, 755 So.2d 110, 113 (Fla.2000). However, in the present case, Judge Hawkins did not show acceptance of responsibility for her actions, or acknowledge their impropriety, until her response to the second order to show cause why removal from office is not the appropriate sanction. Only in her final words in that response did Judge Hawkins state “I apologize to the Investigative Panel of the FJQC for my responses, to all of the people that were affected by my actions, and to all the Justices of this Court.” While this statement extends an apology, albeit a belated one given only when faced with the possibility of removal, it fails to accept responsibility for her actions or acknowledge their impropriety. Further, Judge Hawkins’ apology fails to overcome the grievous nature of her conduct during this proceeding, which was “fundamentally inconsistent with the responsibilities of judicial office” and which “struck at the heart of judicial integrity.” In re Henson, 913 So.2d at 593.

Removal is proper when clear and convincing evidence is presented that the judge has engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.” Art. V, § 12(c)(1), Fla. Const.; see also In re Albritton, 940 So.2d 1083, 1088 (Fla.2006). We must gauge Judge Hawkins’ present fitness to hold office in light of the cumulative nature and seriousness of the violations proven in this case. See, e.g., In re Henson, 913 So.2d at 593. When we do so, we conclude that Judge Hawkins’ conduct is fundamentally inconsistent with the responsibilities of judicial office, demonstrating present unfitness to hold office, and that removal is the only appropriate sanction in this case.

CONCLUSION

For the reasons set forth herein, we find, based on clear and convincing evidence, that Judge Judith W. Hawkins violated Canons 1, 2A, and 5D of the Code of Judicial Conduct, and that those violations cumulatively warrant the most severe sanction that we impose today. Accordingly, we hereby remove Leon County Judge Judith W. Hawkins from the office of county judge, effective when this decision becomes final. It is our hope that this decision will serve as a reminder to judges of their continuing obligation to personally observe the high standards of conduct mandated by the Code of Judicial Conduct, and to conduct themselves in all things in a manner that will demonstrate candor and preserve the integrity and independence of the judiciary.

It is so ordered.

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

QUINCE, J„ recused.

      . Flash drives, also referred to as jump drives or thumb drives, are electronic data storage devices that are plugged into a USB port on a computer and often used to transfer files from one computer to another.

      . Under Rule 6(b), Investigative Panel Rules, Judicial Qualifications Commission Rule, the judge has a right to be present or to be heard during an investigation prior to the Investigative Panel determining that probable cause exists to initiate formal charges. A second rule 6(b) hearing was held prior to issuance of the Notice of Amended Formal Charges.

      . The amount, shown on copies of checks written on the Gaza Road Ministries account to Judge Hawkins’ judicial assistant, was actually $42.49 or $42.50.

      . Judge Hawkins explained that she believed it was extremely important for her judicial assistant to establish this retirement account and thus gave her monthly sums to enable her to do so.

      . The requested documents included e-mails between Judge Hawkins and her judicial assistant on the Leon County Courthouse work computer concerning Gaza Road Ministries; personal e-mails between Judge Hawkins and her judicial assistant concerning the publications and scheduling of non-court travel and private appearances related to the business; portable computer hard drives or flash drives concerned with the business; a record of business-related materials that were deleted from the work computer or the private computer or storage device; tax forms related to the business or the judicial assistant's services to the business; financial records reflecting income, loans, or gifts to the judicial assistant; and a list of persons to whom the business publications were sold.

      . Even though Judge Hawkins denied that she told Yu she did not have any flash drives, the Hearing Panel stated that it found the testimony of Yu and Beiner more credible on this subject.

      . We have explained that lack of candor may be the basis for discipline only where the lack of candor is formally charged, the Commission makes particularized findings on specific points in the record concerning lack of candor, and the lack of candor is knowing and willful. See In re McAllister, 646 So.2d 173, 177 n. 2 (Fla.1994) (citing the three-prong test set forth in In re Davey, 645 So.2d 398, 405 (Fla.1994)). This three-prong test was met in this case.

      . The cases cited by Judge Hawkins in her response to our second order to show cause are inapposite, in that they did not involve a series of violations or a lengthy investigation thwarted by obfuscation and frustration of discovery of relevant investigatory materials ordered produced by the Judicial Qualifications Commission.