author: PER CURIAM.

text:
    William A. GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. SC11-842.
    Supreme Court of Florida.
    June 27, 2013.
    As Corrected Sept. 12, 2013.

      Richard R. Kuritz, Jacksonville, PL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Barbara C. Davis and Mitchell D. Bishop, Assistant Attorneys General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

William A. Gregory appeals his convictions and death sentences for the August 2007 first-degree murders of Skyler Dawn Meekins and Daniel Arthur Dyer. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm Gregory’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

The Guilt Phase

William A. Gregory, who was twenty-four years old when the murders were committed, was for a time involved in a romantic relationship with Skyler Dawn Meekins, who was seventeen at the time she was murdered. Skyler and Gregory had a child together, although their romantic relationship ended in June 2007. Skyler and Gregory both continued, however, to participate in raising their child.

Around the time their relationship ended, Gregory was in jail and would often call Skyler’s house. On several occasions, he spoke with Skyler’s brother, and the two would discuss Skyler’s whereabouts and activities. During one call, Gregory said he was “stressing about Skyler” and asked for information regarding any other men who might be calling for Skyler. Gregory stated that he knew Skyler was “trying to ... get with dudes” and indicated that he would have to “kind of try to get over Skyler or something.”

During another call, Gregory asked Skyler’s brother to check Skyler’s e-mail account and online profile for other men with whom she might be communicating. Gregory told Skyler’s brother that he had previously accessed Skyler’s e-mail account and “erased ... all the dudes she had on there.” Gregory also directed Skyler’s brother to delete a message Skyler had posted on her online profile about being newly single. According to an individual who was incarcerated with Gregory during the period in which these calls were made, Gregory was jealous of Skyler, did not like the people she was spending time with, and stated that if he ever caught Skyler “cheating” on him, “he was going to blow her ... head off.”

Skyler began dating a new boyfriend, Daniel • Arthur Dyer, on July 4, 2007. Gregory was aware of Skyler’s new relationship with Daniel, but Gregory would continue to call for Skyler and, after his release from jail, would visit Skyler’s house several times per week. According to Skyler’s brother, Gregory would call and stop by to see Skyler “[a]t least three times a week ... [ujsually not invited.” Gregory and Skyler did, however, agree to go shopping together for their child’s birthday party, and, while he was still in jail, Gregory would discuss the child on the phone calls he placed.

On August 20, the day before the murders, Gregory, who was out of jail and on probation, spent the day with his brother and a few friends. While at one friend’s house, he test-fired a pistol that someone was trying to sell, possibly leaving gunshot residue on his hands, and while riding around with his brother and another friend, he used marijuana and crack cocaine and took pills. Sometime that afternoon, Gregory called Daniel’s cell phone, asking to speak to Skyler, who spent the day with Daniel and Daniel’s friend at Daniel’s house.

Starting at 10:19 p.m. that night, Gregory began making a number of outgoing phone calls, including several to Skyler’s house. At 10:26 p.m., an incoming call was made from Skyler’s house to Gregory’s house number, and there were then six additional outgoing calls from Gregory to Skyler’s house after the incoming call to Gregory went unanswered. At 11:31 and 11:32 p.m., Gregory- called the number for a taxicab company that was no longer in business.

Gregory’s brother recalled seeing Gregory in their shared bedroom at approximately 8:00 or 3:30 a.m. in the early morning hours of August 21. Gregory was wet and mumbling about being down by the beach. Gregory later told his brother that he passed out at the beach and awoke with a wave washing up on him, that his shoes and wallet “got all soaked,” and that he then dove in the pool at a nearby condominium complex because he was “all ... sandy.”

At 4:17 a.m., Gregory called 911 to report himself for a probation violation as a result of his earlier drug use. A law enforcement officer informed Gregory that Gregory would have to take the matter up with his probation officer. Gregory’s brother and a friend said that they had used drugs with Gregory in the past and had never known him to self-report a probation violation.

Around 6 a.m. that morning, Skyler’s grandparents, who had been sleeping in the home during the murders, awoke to find Skyler and her boyfriend Daniel dead in Skyler’s bed. Skyler and Daniel had each suffered heavy head trauma caused by the firing of a shotgun at close range while they slept. Skyler’s father, who lived next door, called the authorities, and sheriffs deputies were dispatched to the home. On arrival, the deputies observed Skyler’s and Daniel’s bodies in a back bedroom, along with a shotgun and two shotgun shells lying on the floor in front of the bed. Skyler’s grandfather kept a shotgun and rifles, along with ammunition, in a house closet, which was usually left unlocked.

Gregory had previously lived with Skyler in that house, and the guns were kept in the same location during that time. A firearms analyst concluded that an individual would have to have been familiar with the particular shotgun used as the murder weapon in this case in order to load it because it was not a popular shotgun and was “quite different” in how it would be loaded. Gregory’s fingerprints were found on this shotgun.

After police had arrived at the home, Skyler’s brother called and left a message for Gregory at 7:26 a.m., stating, “You better run.” Gregory placed a 911 call at 8:24 a.m. to report this message to law enforcement and was taken by law enforcement to the Flagler County Sheriffs Office as a result of calling in the threat. Gregory was then arrested for a violation of probation based on his earlier admissions of using a controlled substance.

While at the sheriffs office, Gregory was tested for gunshot residue. The results were negative, although Gregory apparently thought that he had tested positive based on test-firing a pistol the prior day. Gregory subsequently placed a call to a friend from jail, telling her not to incriminate herself because the calls were recorded, and then explaining that law enforcement had taken magnet samples on his skin and reminding her that he “was popping off that pistol in the backyard” the previous day.

In subsequent phone calls, Gregory spoke to his mother and brother about the answers they were giving to law enforcement regarding his whereabouts at the time of the murders. In particular, Gregory questioned his mother about why she told investigators that she did not see him on the morning of August 21, and told her, “nobody’s helping me out.”

On August 25, Gregory was moved to a different housing facility. During this time, he was in the same cell block as an inmate who had been certified as a paralegal, and Gregory discussed his situation with this inmate. Gregory believed he had tested positive for gunshot residue and seemed very surprised about this because he said that was one of the reasons he had jumped in a pool after the incident. Gregory told the inmate that he used a shotgun instead of a pistol, thinking there would be less gunshot residue, and figured he must have tested positive because of firing the pistol the day before the murders.

According to this inmate, Gregory knew Daniel and Skyler were together in Skyler’s house on August 21 because Gregory “said he was outside the house, like watching the house.” Gregory told the inmate that he “just couldn’t stand to see” Skyler with her new boyfriend and that the “worst part about it all was watching [Skyler] die.” Gregory also stated to the inmate that he was “frustrated because he couldn’t talk to his family on the phone because he knew that it was being recorded” and stated that his family members “were going to be his alibi.”

Gregory later spoke to a different inmate about his case. Gregory told this individual that it was “a joke” that the State was concerned about Gregory having walked to Skyler’s house on the night of the murders because it was “impossible for that to have happened.” Gregory stated that he had a ride that night and that he “did what he had to do.”

Gregory was subsequently indicted and tried for the murders of Skyler and Daniel. The jury found Gregory guilty of two counts of first-degree murder, one count of burglary, and one count of possession of a firearm by a convicted felon.

The Penalty Phase

During the penalty phase of Gregory’s trial, the State presented testimony from Gregory’s probation officer that Gregory was on felony probation at the time of the murders. Gregory called his sister and mother to testify. Gregory’s sister testified about Gregory’s history of drug use, lack of a relationship with his father, and his witnessing an incident during which she was raped when he was eight years old. Gregory’s mother testified about two head injuries Gregory suffered as a child and about the effect her abusive relationships with men and the rape incident involving Gregory’s sister had on Gregory.

By a vote of seven to five, the jury recommended that Gregory be sentenced to death for the murders of Skyler Dawn Meekins and Daniel Arthur Dyer. A Spencer hearing was held thereafter, where the State presented victim impact testimony and Gregory’s sister briefly testified on his behalf.

In sentencing Gregory to death for both murders, the trial court found the following aggravating circumstances as to both victims: (1) the murders were committed by a person previously convicted of a felony who was on felony probation (moderate weight); (2) Gregory was previously convicted of a prior violent felony (very substantial weight); (B) the murders were committed during the course of a burglary (moderate weight); and (4) the murders were committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification (CCP) (great weight). The trial court found one statutory mitigating circumstance — the murders were committed while Gregory was under the influence of extreme mental or emotional disturbance (slight weight)— and six nonstatutory mitigating circumstances. Finding that the aggravating circumstances far outweighed the mitigating circumstances, the trial court sentenced Gregory to death for both murders.

ANALYSIS

Gregory raises five issues on appeal, three of which are related to evidentiary rulings made by the trial judge during the guilt phase. In addition to the issues raised by Gregory, this Court must consider whether the evidence was sufficient to support Gregory’s convictions and whether the death sentences are proportionate. We now address each issue.

Disqualification of the Trial Judge

The first issue Gregory raises is the trial court’s denial of his motion to disqualify the judge as legally insufficient. “A motion to disqualify is governed substantively by section 38.10, Florida Statutes ... and procedurally by Florida Rule of Judicial Administration 2.330.” Gore v. State, 964 So.2d 1257, 1268 (Fla.2007). The moving party must file an affidavit in good faith “stating fear that he or she will not receive a fair trial ... on account of the prejudice of the judge,” as well as “the facts and the reasons for the belief that any such bias or prejudice exists.” § 38.10, Fla Stat. (2011). “The judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud. Admin. 2.330(f).

“Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Rodriguez v. State, 919 So.2d 1252, 1274 (Fla.2005). “A motion to disqualify a judge ‘must be well-founded and contain facts germane to the judge’s undue bias, prejudice, or sympathy.’ ” Wright v. State, 857 So.2d 861, 873 (Fla.2003) (quoting Jackson v. State, 599 So.2d 103, 107 (Fla.1992)). “A mere ‘subjective fear[ ]’ of bias will not be legally sufficient; rather, the fear must be objectively reasonable.” Arbelaez v. State, 898 So.2d 25, 41 (Fla.2005) (quoting Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986)).

“If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.” Fla. R. Jud. Admin. 2.330(f). However, “[i]f any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.” Id.

Whether the motion is legally sufficient is a question of law, and the standard of review of a trial judge’s determination of a motion to disqualify is de novo. Stein v. State, 995 So.2d 329, 334 (Fla.2008). Gregory argues that his motion to disqualify was legally sufficient because several of the trial judge’s comments displayed a bias against him and furthered his belief that he would not receive a fair trial. We conclude that Gregory’s argument is without merit.

The alleged grounds for disqualification arose during a pretrial hearing regarding the admissibility of certain pieces of evidence the State intended to introduce at trial. Gregory argued that a statement he made eight months before the murders about killing “both of them” if his girlfriend ever cheated on him was too remote to be relevant. In response to this argument, the trial judge stated:

My reaction here is that this is not remote at all, that it’s — while there is some time delay — and if he is, in fact, the one who committed the murder, it is quite prophetic in terms of what’s going to happen. So, you know, we’re not talking about ten years or five years or three years. We’re talking about just months before the breakup and then the alleged murder happened later on.
Now, whether they can prove that he did this or not, that’s another matter, but it seems to me they are entitled to the benefit of trying to prove all the elements of the crime when one is premeditation, and this goes to that issue. So I’m going to ... allow it.

(Emphasis supplied.)

Gregory argues that the trial judge’s use of the word “prophetic” to describe the statement indicates that the judge had already determined that Gregory was guilty. We conclude that this argument is unavailing because Gregory focuses on one word out of context without including the trial judge’s actual statement. See generally Mansfield v. State, 911 So.2d 1160, 1170-71 (Fla.2005) (reading the trial judge’s statement in the context of the timing of a plea offer); Moore v. State, 820 So.2d 199, 206-07 (Fla.2002) (viewing the trial court’s ruling in the context of the order entered by the trial judge); Foster v. State, 778 So.2d 906, 917 (Fla.2000) (concluding, after a review of all the cited comments and the record as a whole, that the trial judge had not prejudged the case). When read as a whole, it is clear that the judge used the word “prophetic” in relation to the State’s argument that Gregory’s statement was relevant to the issue of premeditation. Indeed, the judge’s actual statement was that “if he [Gregory] is, in fact, the one who committed the murder, it is quite prophetic in terms of what’s going to happen.” (Emphasis supplied.)

In addition to the “prophetic” comment, Gregory’s disqualification motion also alleged that the trial judge demonstrated bias against him during a part of the same pretrial hearing concerning the admissibility of recorded telephone calls between Gregory and Skyler. Gregory alleged in his motion that the trial judge stated that hearing the victim’s voice would be “refreshing” because she “has now been silenced,” and that this constituted a legally sufficient basis for disqualification.

As it relates to this. comment, we begin by noting that Gregory’s disqualification motion and accompanying affidavit misstated the judge’s remarks. At no point during the relevant part of the hearing did the judge use the word “refreshing.” Instead, the trial judge stated that he found it “quite interesting” that the jury would be able to hear the victim’s voice. The judge did not make any reference to Gregory being the one who “silenced” the victim, nor did he comment on Gregory’s guilt or innocence.

Although trial counsel apparently did not intentionally misrepresent the judge’s comment but instead misheard the remarks, a motion made on a trial judge’s statement in open court that does not accurately represent what has actually been said cannot comply with the requirement that an affidavit be made “in good faith.” See § 38.10, Fla Stat. (2011). Further, for the motion to be legally sufficient, a mov-ant cannot simply pluck one word from a full sentence made by the trial judge and omit the remainder of the statement.

To the extent Gregory claims that the trial judge’s remarks may have produced an improper emotional response to prospective jurors, this argument is unavailing because the remarks were not made to the jury. Gregory appears to argue that the publication of these comments in the press created a public prejudice against him, and as support, he attached a newspaper article to his disqualification motion. However, Gregory raises no challenge to jury selection or composition or to pretrial publicity, and he provides no factual basis beyond the comments and news report attached to the motion itself to substantiate these claims.

Accordingly, because Gregory has not alleged any facts that “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial,” Rodriguez, 919 So.2d at 1274, we conclude that the trial court did not err as a matter of law in denying Gregory’s motion to disqualify.

Evidentiary Rulings

Gregory next raises three distinct challenges to evidentiary rulings made during the guilt phase of the trial. We address each claim in turn.

Admissibility of Statement Made by Gregory

First, Gregory contends that the trial court improperly admitted a statement made by Gregory eight months before the murder to a former co-worker that, if Gregory ever caught his girlfriend cheating on him, he would kill them both. The State contends that Gregory’s statement shows premeditation and intent to kill. We conclude that Gregory’s statement was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice, and the trial court therefore did not err in admitting this statement.

“This Court reviews evidentiary rulings for abuse of discretion. A judge’s discretion is limited by the rules of evidence and by the principles of stare deci-sis.” Johnson v. State, 969 So.2d 938, 949 (Fla.2007) (citation omitted). “Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2011). “All relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2011).

Relevant evidence “is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2011). “The trial court is obligated to exclude evidence in which unfair prejudice outweighs the probative value in order to avoid the danger that a jury will convict a defendant based upon reasons other than evidence establishing his guilt.” McDuffie v. State, 970 So.2d 312, 327 (Fla.2007).

The issue before the Court is whether the eight-month delay between Gregory’s statement and the murders lessens the statement’s relevance to the point that it should have been excluded from evidence in this case. A review of Florida case law indicates that there is no bright-line rule regarding the point at which a prior statement is so remote as to become irrelevant. However, this Court has previously upheld as relevant to the issue of premeditation a defendant’s statement, made five months before the murder, that he intended to loll the victim. See LaMarca v. State, 785 So.2d 1209, 1215 (Fla.2001).

Gregory relies on a Nevada Supreme Court case stating that “events remote in time from the charged incident have less relevance in proving later intent.” Walker v. State, 116 Nev. 442, 997 P.2d 808, 806-07 (2000). Although that observation is generally accurate, the statements in the Nevada case were made six and ten years prior to the murder. Therefore, Walker is not helpful authority for Gregory, whose statement was made less than a year before the murders in this case. As to Gregory’s additional suggestion that his prior statement did not indicate an intent to kill because the threat was not taken seriously, that argument goes to the weight of the evidence, not its admissibility.

Even relevant evidence, though, must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat. Gregory contends that the prejudice of implying from his statement an intent to kill is unduly prejudicial. However, this Court has previously upheld the admissibility of other relevant threatening statements similar to the one in this case. See Floyd v. State, 18 So.3d 482, 448 (Fla.2009); Dennis v. State, 817 So.2d 741, 762 (Fla.2002); Pittman v. State, 646 So.2d 167, 170-71 (Fla.1994).

Because Gregory’s prior statement provides evidence of his motive and intent in murdering his former girlfriend and her new boyfriend, and because the statement was not so remote in time as to have minimal probative value, we conclude that the trial court did not abuse its discretion in applying the applicable case law to the facts of this case to conclude that Gregory’s statement was admissible.

Admissibility of Testimony from Tyrone Graves

Gregory next argues that the trial court should have excluded testimony from Tyrone Graves, an individual who said he met and spoke with Gregory while the two were in jail at the same time, because Graves did not provide an in-court identification of Gregory. The State contends that the information Graves provided, including a physical description of Gregory and Gregory’s independently verified phone number, was sufficient to identify Gregory and establish the relevance of the testimony. We agree and conclude that there was no basis for excluding this testimony.

The sole issue Gregory raises with respect to this claim is Graves’s failure to identify Gregory in court when asked whether he saw Gregory in the courtroom. However, aside from objecting on general relevancy grounds, Gregory provides no basis to support his claim that Graves’s testimony about comments attributed to Gregory should have been excluded.

A review of the record shows that, even if an in-court identification was necessary under these circumstances, Graves provided a precise identification of Gregory as the person who uttered the remarks about which Graves testified. During his testimony, Graves offered a physical description of Gregory, which Gregory does not challenge. Further, Graves had previously given Gregory’s phone number, which Gregory provided to Graves during their time in jail together, to law enforcement, who independently verified its accuracy. Graves had also previously called the phone number and testified that he recognized the voice as the inmate he knew as Gregory.

In short, Gregory does not allege any facts, other than Graves’s failure to make an in-court identification, to indicate that the statements to which Graves testified were not made by Gregory and that this testimony was therefore not relevant. In addition, even if there is any question regarding whether Graves correctly identified Gregory as the one who made the statements, that issue goes to the weight of the testimony, not its admissibility.

Accordingly, this testimony was relevant and the trial court did not err in admitting the testimony.

Double Hearsay

In his third and final challenge to the evidentiary rulings made at trial, Gregory argues that testimony regarding a statement he allegedly made to Daniel Dyer, one of the victims, should have been excluded as inadmissible hearsay evidence. The State counters that the testimony was admissible based on an exception to the hearsay rule or, alternatively, that a proper non-hearsay use existed. The statement at issue, in which Gregory told Daniel either, “I want to personally thank you for ruining my life,” or “I personally want to thank you for ruining my family,” was presented at trial by two State witnesses, who testified that Daniel told them about a conversation during which Gregory made the statement. Accordingly, this is an issue involving two levels of hearsay — the original statement made from Gregory to Daniel, and Daniel’s discussion of that statement to the two witnesses, who then relayed it at trial.

We conclude that error, if any, in the admission of this testimony was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). In determining whether an error was harmful, the focus is on the effect that the error has upon the trier-of-fact. Williams v. State, 863 So.2d 1189, 1190 (Fla.2003). In other words, “[t]he question is whether there is a reasonable possibility that the error affected the verdict.” Id. (quoting DiGuilio, 491 So.2d at 1139). “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id. (quoting DiGuilio, 491 So.2d at 1139). Critically, the test is not whether there is other evidence, or even overwhelming evidence, of guilt. See DiGuilio, 491 So.2d at 1139 (“The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.”).

We conclude that there is no reasonable possibility that any error in the admission of this testimony affected either the verdict of guilt or the imposition of the death penalty in this case. Unlike Gregory’s other statements, including his statement made months before the murder that if he ever found his girlfriend cheating on him, he would “kill both of them,” and his numerous statements made to Skyler’s brother showing an obsession about Skyler and any new relationship she might have, as well as Gregory’s constant phone calls and visits, Gregory’s alleged statement to the victim was not a threat of harm and at most is simply additional evidence that Gregory knew that the victim was dating his former girlfriend. We conclude that under these circumstances, there is therefore no reasonable possibility that any error regarding this testimony affected the verdict in this case.

CCP

The fifth and final issue Gregory raises on appeal is the trial court’s finding of the CCP aggravator. “The standard of review this Court applies to a claim regarding the sufficiency of the evidence to support an aggravating circumstance is that of competent, substantial evidence.” Guardado v. State, 965 So.2d 108, 115 (Fla.2007). “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)). 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.

To establish the CCP aggravator,

the evidence must show: (1) “the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold);” (2) “the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated);” (3) “the defendant exhibited heightened premeditation (premeditated);” (4) “the defendant had no pretense of moral or legal justification.”

Williams v. State, 37 So.3d 187, 195 (Fla.2010) (quoting Franklin v. State, 965 So.2d 79, 98 (Fla.2007)). “ ‘CCP involves a much higher degree of premeditation’ than is required to prove first-degree murder.” Deparvine v. State, 995 So.2d 351, 381-82 (Fla.2008) (quoting Foster v. State, 778 So.2d 906, 921 (Fla.2000)). “Premeditation can be established by examining the circumstances of the killing and the conduct of the accused.” Williams, 37 So.3d at 195 (quoting Franklin, 965 So.2d at 98). “The CCP aggravator can ‘be indicated by circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course.’ ” Franklin, 965 So.2d at 98 (quoting Swafford v. State, 533 So.2d 270, 277 (Fla.1988)). “Further, ‘the evidence must prove beyond a reasonable doubt that the defendant planned or prearranged to commit murder before the crime began.’ ” Williams, 37 So.3d at 195 (quoting Thompson v. State, 565 So.2d 1311, 1318 (Fla.1990)).

In finding that CCP had been proven beyond a reasonable doubt, the trial court stated in relevant part:

In this case Mr. Gregory, on separate occasions, months before the murders ... said he would blow her head off and he would kill both she and any new boyfriend she might have if Skyler Dawn Meekins cheated on him. Consistent with this plan, Mr. Gregory became aware of Ms. Meekins’ new love interest, Daniel Arthur Dyer. Having been unsuccessful at winning her back, he put his plan in action....
Once at the residence he entered the house surreptitiously, located a 12-guage [sic] shotgun in a closet, located the shotgun shells on a shelf in the closet and loaded just two shells into the shotgun which was a weapon that was described as a difficult weapon to load. Mr. Gregory, at this point fully armed with a loaded weapon, passed by the separate rooms of Skyler Meekins’ grandmother and grandfather and went to the sleeping room which Skyler Mee-kins occupied where she and Daniel Dyer were cuddling while sleeping. It has been clearly established, without refutation, that he placed the loaded weapon at point blank range and aimed at the heads of the respective victims where he killed each of them in execution style with devastating shots to the heads of both victims in an act that was totally consistent with his earlier announced plan.

Gregory argues that there was not competent, substantial evidence to support the trial court’s finding of this aggravator. We disagree.

This Court has previously explained, in describing the “cold,” “calculated,” and “premeditated” elements of CCP, that

execution-style killing is by its very nature a “cold” crime. As to the “calculated” element of CCP, this Court has held that where a defendant arms himself in advance, kills execution-style, and has time to coldly and calmly decide to kill, the element of calculated is supported. This Court has “previously found the heightened premeditation required to sustain this aggravator where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder.”

Pearce v. State, 880 So.2d 561, 576 (Fla.2004) (citations omitted) (quoting Alston v. State, 723 So.2d 148, 162 (Fla.1998)).

Gregory contends that the murders in this case were not the product of cool and calm reflection because he did not bring a weapon to the home. He also asserts that the evidence is devoid of any premeditated plan to kill and instead suggests that the murders were committed in a heat of passion after discovering the victims in bed together. These arguments are unavailing.

Although Gregory argues that the killings were committed in the heat of passion, inconsistent with the “cold” and “calculated” elements of CCP, the uncontested evidence presented at trial demonstrated that the victims were shot and killed execution-style from point blank range while sleeping and defenseless in the middle of the night. As the Court stated in Pearce and has affirmed on numerous occasions, an execution-style killing is by nature a “cold” killing and can support a finding of “calculated” as well. See, e.g., Wright v. State, 19 So.3d 277, 299 (Fla.2009) (“By their very nature, execution-style killings satisfy the cold element of CCP.”); Lynch v. State, 841 So.2d 362, 372-73 (Fla.2003) (explaining that execution-style killings provide support for the “calculated” element of CCP). Further, we reject Gregory’s argument that because he did not bring a weapon to the home, he necessarily must not have had a heightened premeditated plan to kill. Having previously lived in the house, Gregory knew where the weapons were located, and this Court has never required as a prerequisite for finding CCP that the defendant bring a weapon to the crime scene. See Buzia v. State, 926 So.2d 1203, 1215-16 (Fla.2006).

On the night of the crime, fully aware of Skyler’s new relationship with Daniel and having been unsuccessful at winning her back, Gregory traveled to Skyler’s house, obtained and loaded the specific murder weapon, and walked past other residents sleeping in the home in order to enter Skyler’s bedroom. Testimony presented at trial indicates that Gregory knew Skyler and Daniel were together that day and that he was outside watching the house before he entered. Competent, substantial evidence therefore supports the trial court’s finding that Gregory had a heightened premeditated plan, which was cold, calculated, and lacking in any moral or legal justification.

Accordingly, we conclude that the trial court did not err in finding the CCP ag-gravator with respect to the murders of Skyler Meekins and Daniel Dyer.

Sufficiency of the Evidence

Although Gregory does not raise the issue, this Court has a mandatory obligation to review the sufficiency of the evidence in every ease in which a sentence of death has been imposed, even when not challenged. See Jones v. State, 963 So.2d 180, 184 (Fla.2007); Fla. R.App. P. 9.142(a)(5) (“On direct appeal in death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”). “In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Simmons v. State, 934 So.2d 1100, 1111 (Fla.2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla.2001)).

We conclude that the record in this case contains sufficient evidence to support Gregory’s convictions for the first-degree murders of Skyler Meekins and Daniel Dyer. The State presented evidence that Gregory made statements in the months prior to the homicides in which he threatened to kill Skyler and anyone with whom she “cheated” on him, as well as testimony that Gregory knew Skyler had begun seeing Daniel. In addition, the State demonstrated through the litany of recorded phone calls it published to the jury how jealous and obsessive Gregory was about Skyler leaving him, and the State presented testimony that Gregory knew Daniel and Skyler were together on the night of the murders.

Gregory’s fingerprints were found on the murder weapon. He self-reported a probation violation, which was unusual for him and seemingly done in an attempt to create an alibi, and he attempted to remove traces of gunshot residue and DNA by going swimming after the crime. The State also showed through inconsistent statements, recorded phone calls, and the testimony of a jailhouse witness that Gregory tried to influence his family’s statements to law enforcement about his whereabouts on the night of the crime. He also admitted the murders to other inmates after the crime.

Based on a review of the evidence presented in this case, a “rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Simmons, 934 So.2d at 1111. Thus, we conclude that there was sufficient evidence to support Gregory’s convictions.

Proportionality

This Court also reviews a death sentence for proportionality “regardless of whether the issue is raised on appeal.” England v. State, 940 So.2d 389, 407 (Fla.2006); see also Fla. R.App. P. 9.142(a)(5). “The death penalty is ‘reserved only for those cases where the most aggravating and least mitigating circumstances exist.’ ” Silvia v. State, 60 So.3d 959, 973 (Fla.2011) (quoting Terry v. State, 668 So.2d 954, 965 (Fla.1996)). “Therefore, in deciding whether death is a proportionate penalty, the Court makes 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.’ ” Id. (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003)). Accordingly, the Court “considers] the totality of the circumstances of the case and compare[s] the case to other capital cases.” Offord v. State, 959 So.2d 187, 191 (Fla.2007). “This analysis ‘is not a comparison between the number of aggravating and mitigating circumstances.’ ” Silvia, 60 So.3d at 973 (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)). “Rather, this entails ‘a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.’ ” Id. (quoting Urbin v. State, 714 So.2d 411, 416 (Fla.1998)). “In reviewing the sentence for proportionality, this Court will accept the jury’s recommendation and the weight assigned by the trial judge to the aggravating and mitigating factors.” Id.

In this case, the trial court found four aggravating circumstances as applied to both murders: (1) Gregory was on felony probation (assigned moderate weight); (2) Gregory was previously convicted of a pri- or violent felony (assigned very substantial weight); (3) the murders were committed during the course of a burglary (assigned moderate weight); and (4) Gregory committed the murders in a CCP manner (assigned great weight). The trial court found one statutory mitigating factor — extreme mental or emotional disturbance— and six nonstatutory mitigating circumstances.

We conclude that the death sentences in this case are proportionate. The aggravating circumstances in this case and the small weight assigned to mitigation are similar to Carter v. State, 980 So.2d 473, 477-78 (Fla.2008), which is a case that, like this case, involved the shooting deaths of the defendant’s former girlfriend and her new boyfriend. In Carter, the Court upheld the death sentences as proportionate in light of CCP, the prior violent felony aggravator for contemporaneous murders, and the additional aggravator of commission in the course of a burglary. Id. at 485-86. Further, the death sentences in this case are proportionate in relation to other cases with similar aggravating and mitigating circumstances. See Deparvine, 995 So.2d at 381-83 (upholding death sentence as proportionate in light of four aggravators (contemporaneous murder convictions, CCP, under sentence of imprisonment, and pecuniary gain) and little weight assigned to mitigating circumstances); Winkles v. State, 894 So.2d 842, 847-48 (Fla.2005) (upholding death sentences as proportionate in light of four aggravators (prior violent felony, CCP, avoiding arrest, and commission during a kidnapping) and four nonstatutory miti-gators); Dennis v. State, 817 So.2d 741, 767 (Fla.2002) (upholding death sentences as proportionate, in case involving the murders of the defendant’s ex-girlfriend and her new boyfriend, in light of four aggravators (prior violent felony for contemporaneous murders; CCP; commission during the course of a burglary; and heinous, atrocious, or cruel), the extreme emotional disturbance statutory mitigator, and no significant weight assigned to mitigation).

Gregory nevertheless asserts that this case is identical to Farinas v. State, 569 So.2d 425, 431 (Fla.1990), where the Court reversed the trial court’s finding of CCP and held that the death sentence was disproportionate. However, this argument is unavailing for several reasons. First, although the statutory mitigating circumstance of extreme mental or emotional disturbance was applicable in Farinas, as it is in this case, part of the Court’s reasoning for finding the death penalty disproportionate in Fannas was its striking of the CCP aggravator. See id. In this case, we have upheld the finding of CCP.

Second, this case involves two of the most serious aggravators set forth in the statutory sentencing scheme — CCP and prior violent felony. See Silvia, 60 So.3d at 974. The prior violent felony in this case is the contemporaneous murder, and the trial court assigned this factor very substantial weight.

Third, although Gregory points to the murder in Farinas being the result of a heated domestic confrontation, Farinas, 569 So.2d at 431, this Court has repeatedly emphasized since Farinas that there is no special proportionality exception for domestic disputes. See Silvia, 60 So.3d at 974; Carter, 980 So.2d at 485; Lynch v. State, 841 So.2d 362, 377 (Fla.2003). Further, there was no heated domestic confrontation in this case, but instead the execution-style killings of two sleeping victims.

Accordingly, we conclude that Gregory’s death sentences are proportionate.

CONCLUSION

After a thorough review of all the issues raised by Gregory, and after an independent review of the sufficiency of the evidence and the proportionality of the sentences, we affirm Gregory’s convictions for first-degree murder, burglary, and possession of a firearm by a convicted felon, and we also affirm the sentences of death.

It is so ordered.

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

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

      . The trial court used the contemporaneous murders to support the prior violent felony aggravator.

      . The nonstatutory mitigating circumstances were: (1) Gregory had a longstanding drug problem (slight weight); (2) Gregory grew up without his father and was raised by his mother (slight weight); (3) in his childhood, Gregory was forced to witness sexual abuse (slight weight); (4) Gregory had a dysfunctional childhood (slight weight); (5) Gregory was impaired at the time of the crime due to the ingestion of drugs, alcohol, or both; and (6) Gregory was employed and was a good worker (slight weight).

      . Gregory argues on appeal that (1) the trial court erred in denying his motion to disqualify the judge based on statements the judge made during a pretrial hearing; (2) the trial court erred in admitting into evidence threatening statements directed toward the victims made eight months before the murders by Gregory to a co-worker; (3) the trial court erred in admitting testimony from a witness who could not identify Gregory in court; (4) the trial court erred in admitting testimony about a statement Gregory made to one of the victims; and (5) the trial court erred in instructing the jury on and in finding CCP.

      . Apparently, the misstatement was not intentional, but the motion for disqualification was filed before counsel had obtained a copy of the actual transcript.


source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    Pedro GIL, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-1983.
    Supreme Court of Florida.
    July 11, 2013.

      Carlos J. Martinez, Public Defender; Daniel Tibbitt and Melissa C. Del Valle, Assistant Public Defenders, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General; Richard L. Polin, Bureau Chief, Criminal Appeals, Heidi Milan Caballero and Nicholas A. Merlin, Assistant Attorneys General, Miami, FL, for Respondent.
   LEWIS, J.

Petitioner Pedro Gil seeks review of the decision of the Third District Court of Appeal in State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011), on the basis that it expressly and directly conflicts with the decisions of other district courts of appeal on a question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

FACTS AND BACKGROUND INFORMATION

On October 6, 2009, Pedro Gil was stopped in Miami-Dade County for speeding. Gil informed the officer that his driver’s license was suspended, and a records search revealed that Gil was a habitual traffic offender. Gil was then arrested. For purposes of this case, the arrest report listed the following charges: driving with a suspended license (DWLS), in violation of section 322.34(2), Florida Statutes (2009), and unlawful driving as a habitual traffic offender (HTO), in violation of section 322.34(5), Florida Statutes (2009). Section 322.34 is titled “Driving while license suspended, revoked, canceled, or disqualified” and provides:

(1) Except as provided in subsection (2), any person whose driver’s license or driving privilege has been canceled, suspended, or revoked, except a “habitual traffic offender” as defined in s. 322.264, who drives a vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked is guilty of a moving violation, punishable as provided in chapter 318.
(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.
(5) Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.

§ 322.34, Fla. Stat. (2009).

On October 27, 2009, Gil pled nolo con-tendere to the misdemeanor DWLS charge in a county court and was adjudged guilty of this charge. Gil was sentenced to six months’ probation and two hundred hours of community service, plus the payment of $358. On the same day, the State Attorney for the Eleventh Judicial Circuit filed an information that charged Gil with a violation of the felony HTO statute. Gil subsequently filed a motion to dismiss the information on the basis that it violated Florida’s double jeopardy statute, section 775.021(4), Florida Statutes (2009), which provides:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

In support of the claim, Gil relied upon Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006), in which the Fifth District held that dual convictions under the DWLS statute and the HTO statute violate the “degree variants” principle of double jeopardy under section 775.021(4)(b)(2), Florida Statutes. Id. at 931.

In response to Gil’s motion, the State asserted that the cases relied upon by the Fifth District in Duff had been overruled by this Court in Valdes v. State, 3 So.3d 1067 (Fla.2009). In Valdes, this Court held that “[t]he Legislature intends to disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.” Id. at 1076 (quoting State v. Paul, 934 So.2d 1167, 1176 (Fla.2006) (Cantero, J., specially concurring)). According to the State, the crimes of unlawful driving as a habitual traffic offender under section 322.34(5) and driving with a suspended license under section 322.34(2) do not satisfy the second exception delineated in section 775.021(4)(b)(2) because they are located in separate statutory provisions, neither offense is an aggravated form of the other, and the offenses are not degree variants of the same offense.

The circuit court granted Gil’s motion to dismiss the felony information in an order which provided:

[WJhile persuasive, the case of Valdes v. State, 3 So.3d 1067 (Fla.2009) does not necessitate the denial of the Defense’s Motion at issue in this case. The Court’s plain language reading of the two statutes at issue, Fla. Stat. § 322.34(5) and Fla. Stat. § 322.34(2), lead this Court to find that prosecution of the Defendant for both of these charges would violate Fla. Stat. § 775.021(4)(b).

On appeal, the Third District reversed the dismissal of the information. Gil, 68 So.3d at 1003. While acknowledging that the HTO provision, codified in section 322.34(5), appears to be a degree variant of the DWLS provision, codified in section 322.34(2), the Third District nonetheless stated:

Subsection (5) is not a degree variant of subsection (2) because: subsection (2) punishes for driving with a canceled or revoked license, whereas subsection (5) only punishes for driving with a revoked license; subsection (2) requires that the driver have knowledge that his license was canceled, suspended, or revoked, whereas subsection (5) does not require knowledge; and subsection (2) provides for different penalties based on the number of convictions the driver has for violating section 322.34 (sixty days incarceration for a first conviction, 364 days incarceration for a second conviction, and five years incarceration for a third or subsequent conviction), whereas a violation under subsection (5) is punishable up to five years incarceration regardless of the number of times the driver has been convicted for this offense. Additionally, subsection (2) specifically excludes habitual traffic offenders under subsection (5) from its application: “Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264- [the habitual traffic offender statute].... ” § 322.34(2), Fla. Stat. (2009) (emphasis added).
Subsection (5) is also not a degree variant of subsection (2) because a violation of subsection (2) is not a “moving violation,” whereas a violation of subsection (5) is a “moving violation,” see § 322.34(1); and the cancellation, suspension, or revocation of a driver’s license under subsection (2) is based on the number of “points ” a driver has accumulated pursuant to the point system provided in section 322.27 over a certain period of time, whereas subsection (5) is based on the number of convictions for the offenses listed in sections 322.264(1) and (2) over a five-year period.

Id. at 1001-02. The Third District ultimately held that “[b]eeause suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5), subsection (5) cannot be a degree variant of subsection (2), and therefore convictions for violating subsection (2) and subsection (5) do not constitute double jeopardy.” Id. at 1003.

This Court granted review of Gil based upon express and direct conflict with the decisions in Dees v. State, 54 So.3d 644 (Fla. 1st DCA 2011), Duff, 942 So.2d at 926, and Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002). In these cases, the First, Fourth, and Fifth District Courts of Appeal held that dual convictions under sections 322.34(2) and 322.34(5) are prohibited. The Dees and Franklin decisions do not discuss double jeopardy with regard to these statutory subsections, but instead hold that dual convictions are prohibited because subsection (2), by it express terms, does not apply to habitual traffic offenders. Franklin, 816 So.2d at 1204 (“[B]y definition, Franklin cannot be convicted of a violation of s. 322.34(2), which expressly does not apply to persons whose licenses have been revoked pursuant to s. 322.264, i. e., habitual offenders.”); Dees, 54 So.3d at 644 (citing Franklin).

ANALYSIS

We conclude that the decision below must be quashed. Gil cannot be prosecuted under sections 322.34(2) and 322.34(5) for two reasons. First, the plain language of section 322.34 reflects that the crimes delineated in subsections (2) and (5) are mutually exclusive. Second, subsections (2) and (5) constitute variant offenses and, therefore, dual prosecutions of Gil under these provisions would violate the Double Jeopardy Clauses of both the United States and Florida Constitutions.

Mutual Exclusivity

As previously discussed, Gil entered a plea of nolo contendere to the DWLS charge, codified at section 322.34(2), Florida Statutes. This statutory subsection expressly provides that it does not apply to habitual traffic offenders:

(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264 [i.e., habitual traffic offenders], who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(Emphasis supplied.) Based on this unambiguous language, we hold that once a person is adjudged guilty for a violation of subsection (2), a subsequent charge under subsection (5) is unauthorized because a habitual traffic offender cannot violate subsection (2). Accordingly, once Gil pled nolo contendere to, and was adjudged guilty of, a violation of subsection (2), the State was foreclosed from thereafter prosecuting him for a violation of subsection (5).

Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.” U.'S. Const, amend. V. Similarly, the Florida Constitution provides that “[n]o person shall ... be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. The scope of the Double Jeopardy Clause is the same under both the United States and Florida Constitutions. Trotter v. State, 825 So.2d 362, 365 (Fla.2002). The United States Supreme Court has held that the Double Jeopardy Clause operates as a restraint on the judiciary from imposing multiple sentences for a single offense where it has not been authorized by the legislative branch:

The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress.

Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The United States Supreme Court has further explained that because the substantive power to define criminal offenses and determine punishments is a legislative prerogative, “the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); see also Valdes, 3 So.3d at 1075 (quoting Johnson).

The Florida statute that governs double jeopardy is modeled after the test articulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Section 775.021, Florida Statutes (2009), provides:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

The statute expresses the legislative intent that defendants be charged with every offense that arises out of one criminal episode unless an exception applies.

Neither party disputes that subsections 322.34(2) and 322.34(5) each contains an element that the other does not. The DWLS provision requires that the driver know his or her license is suspended, cancelled, or revoked, whereas the HTO provision, subsection (5), contains no knowledge component. The HTO provision requires that the driver be designated a habitual traffic offender, while subsection (2) does not. Accordingly, dual prosecutions for these offenses are not barred under the “same elements” test articulated in subsection 775.021(4)(a).

However, double jeopardy may still attach if subsections 322.34(2) and 322.34(5) satisfy one of the exceptions provided under subsection 775.021(4)(b). As previously discussed, the DWLS and HTO provisions do not require identical elements of proof. Further, driving with a suspended license is not a lesser included offense of unlawful driving as a habitual traffic offender. Instead, the dispositive issue is whether the DWLS offense and the HTO offense are “degrees of the same offense” under subsection (4)(b)(2).

The standard by which Florida courts evaluate whether two statutory offenses are variants of each other — thereby falling under the exception provided in subsection (4)(b)(2) — has evolved over time. In Sir-mons v. State, 634 So.2d 153 (Fla.1994), this Court held that dual prosecutions were prohibited by subsection (4)(b)(2) because the two crimes at issue — robbery with a weapon and grand theft of an automobile — were degree variants of the “core offense” of theft. Id. at 154. In 2001, this Court recognized the continued viability of the “core offense” construction, but adopted an approach requiring courts to determine the “primary evil” a statute is intended to punish to evaluate whether certain crimes are variant offenses for purposes of double jeopardy. Gordon v. State, 780 So.2d 17, 23-24 (Fla.2001); see also State v. Florida, 894 So.2d 941, 949 (Fla.2005) (“The primary evil of aggravated battery is an intentional, nonconsensual touching or striking, whereas the primary evil of attempted second-degree murder is the potential of the defendant’s act to cause death. The evil of battery omits lethal potential, and the evil of attempted second-degree murder omits victim contact. Thus, the two crimes are not merely degree variants of the same core offense, and therefore do not come within the exception ... in section 775.021(4)(b)(2).”).

In 2009, however, the Court concluded that the “primary evil” test was contrary to legislative intent because it strayed from the plain meaning of the double jeopardy statute. Valdes v. State, 3 So.3d 1067, 1075 (Fla.2009). In receding from the “primary evil” test, the Court in Valdes explained:

By applying the “primary evil” gloss to the second statutory exception, we have added words that were not written by the Legislature in enacting the double jeopardy exceptions of section 775.021(4) and specifically subsection (4)(b)(2). Rather, this exception simply states that there is a prohibition against multiple punishments for offenses which are “degrees of the same offense.” There is no mention of “core offense” and certainly no mention of “primary evil.” Further, there is no rule of construction that would compel this Court to require such an analysis based on constitutional considerations.

Id. at 1075. In its place, the Court adopted an approach that tracked the language of the statute. The Court first concluded that the exception was intended to apply narrowly based upon its stated application to crimes that are degrees of the same offense as provided by statute. Id. at 1076. The Court then held that the exception, by its express language, prohibits separate punishments only when a criminal statute provides for variations in degree of the same offense, such that a defendant would be punished for a violation of two or more degrees of a single offense. Id. The Court also concluded that the term “degree” in section 775.021(4)(b)(2) has a plain meaning — “a level based on the seriousness of an offense.” Id. (quoting Black’s Law Dictionary 456 (8th ed. 2004)). At the same time, the Court noted that it is not necessary for the Legislature to use the word “degree” when it defines a crime for the degree variant exception to apply. Id. We explained that other statutory designations can evince a degree relationship, such as when a crime has aggravated forms of the basic offense. Id.

Based upon this standard, the Court in Valdes held that dual convictions for discharging a firearm from a vehicle within 1000 feet of a person, in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle, in violation of section 790.19, Florida Statutes (2003), did not violate double jeopardy. Id. at 1068. According to the Court, these crimes did not qualify as degree variants “because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense.” Id. at 1077.

Applying the test articulated in Valdes, we conclude that sections 322.34(2) and 322.34(5) qualify as variant offenses under section 775.021(4)(b)(2), Florida Statutes, and double jeopardy precludes the prosecution of Gil under the HTO provision in light of his prior conviction under the DWLS provision based on the same facts. First, unlike Valdes, the two offenses at issue here are located in the same statute, which governs operating a motor vehicle without a valid license. § 322.34, Fla. Stat.

Second, in contrast to the holding in Valdes, we conclude that driving with a suspended license under subsection (2) and unlawful driving as a habitual traffic offender under subsection (5) constitute different degrees of the same offense. Under the Florida Statutes, suspension of a driver’s license is based upon a point system or the commission of certain offenses. Section 322.27, Florida Statutes (2012), which governs driver’s license suspension, provides:

(1) Notwithstanding any provisions to the contrary in chapter 120, the department may suspend the license or identification card of any person without preliminary hearing upon a showing of its records or other sufficient evidence that the licensee or cardholder:
(a) Has committed an offense for which mandatory revocation of license is required upon conviction....;
(b) Has been convicted of a violation of any traffic law which resulted in a crash that caused the death or personal injury of another or property damage in excess of $500;
(f) Has committed a second or subsequent violation of s. 316.172(1) [failing to stop for a school bus] within a 5-year period of any previous violation.
(3) There is established a point system for evaluation of convictions of violations of motor vehicle laws or ordinances, and violations of applicable provisions of s. 403.413(6)(b) [dumping of litter] when such violations involve the use of motor vehicles, for the determination of the continuing qualification of any person to operate a motor vehicle....
(a) When a licensee accumulates 12 points within a 12-month period, the period of suspension shall be for not more than 30 days.
(b) When a licensee accumulates 18 points, including points upon which suspension action is taken under paragraph (a), within an 18-month period, the suspension shall be for a period of not more than 3 months.
(c) When a licensee accumulates 24 points, including points upon which suspension action is taken under paragraphs (a) and (b), within a 36-month period, the suspension shall be for a period of not more than 1 year.
(d) The point system shall have as its basic element a graduated scale of points assigning relative values to convictions of the following violations:
1. Reckless driving, willful and wanton — 4 points.
2. Leaving the scene of a crash resulting in property damage of more than $50 — 6 points.
3. Unlawful speed resulting in a crash — 6 points.
4. Passing a stopped school bus — 4 points.
5. Unlawful speed:
a. Not in excess of 15 miles per hour of lawful or posted speed — 3 points.
b. In excess of 15 miles per hour of lawful or posted speed — 4 points.
6. A violation of a traffic control signal device as provided in s. 316.074(1) or s. 316.075(l)(c)l. — 4 points_
7. All other moving violations (including parking on a highway outside the limits of a municipality) — 3 points....
8. Any moving violation covered above, excluding unlawful speed, resulting in a crash — 4 points.
9. Any conviction under s. 403.413(6)(b) — 3 points.
10. Any conviction under s. 316.0775(2) [possession of traffic signal preemption device] — 4 points.[]
(5) The department shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person is not eligible to be relicensed for a minimum of 5 years from the date of revocation, except as provided for in s. 322.271.

A review of the habitual traffic offender statute demonstrates that a number of the offenses detailed in section 322.27 serve as predicates for qualifying a person as a habitual traffic offender. Further, the DWLS provision in section 322.34(2) constitutes a predicate offense as well:

A “habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period:
(1) Three or more convictions of any one or more of the following offenses arising out of separate acts:
(a) Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle;
(b) Any violation of s. 316.193 [driving under the influence], former s. 316.1931, or former s. 860.01;
(c) Any felony in the commission of which a motor vehicle is used;
(d) Driving a motor vehicle while his or her license is suspended or revoked;
(e) Failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury of another; or
(f) Driving a commercial motor vehicle while his or her privilege is disqualified.
(2) Fifteen convictions for moving traffic offenses for which points may be assessed as set forth in s. 322.27, including those offenses in subsection (1).

§ 322.264, Fla. Stat. (2012) (emphasis supplied). Thus, upon three convictions of driving with a suspended or revoked license within a five-year period, a driver not only qualifies as a habitual traffic offender under section 322.264, but revocation of his or her license is mandatory. § 322.27(5), Fla. Stat. (“The department shall revoke the license of any person designated a habitual offender....” (emphasis supplied)). Moreover, while a certain number of points assessed against a driver within twelve, eighteen, or twenty-four months can lead to license suspension under section 322.27(3), fifteen convictions under the same point system within a five-year period leads to mandatory license revocation as a habitual traffic offender. §§ 322.264(2), 322.27(5), Fla. Stat. Therefore, the statement by the Third District in the decision below that “suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5)” is not correct. Gil, 68 So.3d at 1003 (emphasis supplied).

The Florida Legislature has chosen to penalize habitual traffic offenders — drivers who have been convicted of specified offenses multiple times within a five-year period — more severely by revoking their licenses for a mandatory term of five years rather than using a sliding scale of punishment like that employed in section 322.27(3) for drivers who are not habitual traffic offenders. Thus, when a habitual traffic offender drives with a revoked license in violation of section 322.34(5), we conclude that it is a higher degree offense than when a person who is not a habitual traffic offender drives with a cancelled, suspended, or revoked license in violation of section 322.34(2). The penalties for the two offenses support this conclusion. For a first or second conviction under the DWLS provision, the offense constitutes only a misdemeanor. § 322.34(2)(a)-(b), Fla. Stat. Only upon a third conviction does the DWLS provision share the same level of severity as the HTO provision — a third-degree felony. § 322.34(2)(c), (5) Fla. Stat.

Our conclusion that unlawful driving as a habitual traffic offender is a more serious offense than driving with a cancelled, suspended, or revoked license is supported by the legislative history of the interplay between these two offenses. Prior to 1997, under certain circumstances the HTO provision carried a less severe penalty than the DWLS provision. See § 322.34, Fla. Stat. (1995). In an earlier version of the statute, a third or subsequent violation of the DWLS provision was prosecuted as a third-degree felony, but a first violation of the HTO provision was prosecuted as only a first-degree misdemeanor. This created an illogical result, which was recognized in State v. Harvey, 693 So.2d 1009 (Fla. 4th DCA 1997).

In Harvey, the defendant, who was a habitual traffic offender, was charged under the earlier DWLS provision with felony driving while license suspended or revoked. Id. at 1010. The trial court dismissed the felony information, but allowed the State ten days to charge the defendant with a misdemeanor under the HTO provision. Id. The Fourth District affirmed the dismissal on the basis that the DWLS provision of section 322.34 did not apply to habitual traffic offenders. Id. at 1009-10. The State challenged the outcome — that the defendant would only face a misdemeanor charge under the HTO provision instead of a felony charge — but the district court stated that it could not change the law:

Although it may seem inconsistent that once declared a habitual traffic offender, the offender can be charged on a first conviction only with a first degree misdemeanor, whereas if the offender had not been declared such, a felony charge could be brought, the punishment scheme is not absurd, considering the lengthy license revocation which accompanies the habitual traffic offender designation.
The state’s arguments are more appropriately addressed to the Legislature which may wish to revisit this statute and change the penalties. As it is written, it is unambiguous, and the court can only enforce it as written.

Id. at 1011 (emphasis supplied).

Notwithstanding the suggestion of the Fourth District, prior to Harvey the Florida Legislature was already considering the incongruity between the HTO and the DWLS provisions. A Senate Staff Analysis and Economic Impact Statement dated March 7, 1997, discussed a proposed amendment to section 322.34 that was eventually adopted by the Florida Legislature:

The bill further amends [section 322.34] to provide that any person whose license has been revoked for being a Habitual Traffic Offender pursuant to s. 322.264 and who knowingly drives with a revoked license is guilty of a third degree felony. This eliminates the inconsistency in current law that allows someone with three or more convictions in a five year period for driving on a suspended, canceled, or revoked license to get more lenient treatment than another person with the same number of convictions over a seven year period.

Fla. S. Comm, on Transp., CS/SB 1002 (1997) Staff Analysis 5 (Mar. 7, 1997) (emphasis supplied). Shortly after the decision in Harvey was issued, the Florida Legislature revised section 322.34(5) to make any violation of the HTO provision a third-degree felony. Ch. 97-300, § 40, at 5414, Laws of Fla. The Legislature’s decision in 1997 to make unlawful driving as a habitual traffic offender always a felony offense demonstrates that this crime is of a more serious degree than driving with a cancelled, suspended, or revoked license.

Based upon the overlap and interaction (both current and prior) between the HTO and the DWLS provisions — the two offenses are located in the same statute; three convictions under subsection (2) within a five-year period qualifies a driver as a habitual traffic offender; the decision of the Florida Legislature to amend section 322.34 so that a violation of the HTO provision is always a felony, whereas a violation of the DWLS provision may be a misdemeanor or a felony depending on the number of prior convictions received by the driver — we conclude that subsections (2) and (5) of section 322.34 constitute degrees of the same offense, as that phrase was most recently construed in Valdes.

In this case, Gil was adjudged guilty of and sentenced for a violation of section 322.34(2). The State cannot now charge him under subsection (5) because to do so would violate the principles of double jeopardy under the degree variant exception of section 775.021(4)(b)(2). Accordingly, we conclude that the trial court properly granted the motion to dismiss the felony information.

CONCLUSION

In light of the foregoing, we hold that dual prosecutions under subsections (2) and (5) of section 322.34 are both statutorily and constitutionally prohibited. The decision of the Third District in Gil is quashed, and the decisions in Dees, Duff, and Franklin are approved to the extent they are consistent with our holding today.

It is so ordered.

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

POLSTON, C.J., and CANADY, J., concur in result.

      . Section 322.27(5), Florida Statutes (2012), states: "The [Department of Highway Safety and Motor Vehicles] shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person is not eligible to be relicensed for a minimum of 5 years from the date of revocation, except as provided for in s. 322.271.”

      . The State relies upon Staten v. State, 519 So.2d 622 (Fla. 1988), for the proposition that mutually exclusive statutes do not implicate principles of double jeopardy. However, Staten does not control our decision today. In Staten, the Court held that an individual cannot be convicted as both a principal and an accessory after the fact based on the same criminal act because the crimes are mutually exclusive. Id. at 623, 625. In reaching this conclusion, the Court only cursorily stated that "double jeopardy is not implicated here ” and referenced three decisions without elaboration or analysis. Id. at 625 (emphasis supplied). The Court then explained that whether dual convictions under the principal and accessory offenses are permissible would be based “solely on [a] construction of the crime of being an accessory after the fact.” Id. (emphasis supplied). The Court did not explain why principles of double jeopardy were not implicated, and it certainly did not broadly hold that dual convictions under mutually exclusive statutes can never implicate double jeopardy. Further, Staten did not involve the unique procedural posture presented by this case, i.e., Gil, a habitual traffic offender, was charged with and pled guilty to an offense that was inapplicable to him, and he was only later charged under the correct statute.

      . The test articulated in Blockburger, sometimes referred to as the "same elements” test, provides "[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” 284 U.S. at 304, 52 S.Ct. 180 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).

      . The Court provided as an example the arson statute, which identifies two degrees of arson. 3 So.3d at 1076; see also § 806.01, Fla. Stat. (2012).

      . A driver's license may also be suspended for non-traffic violations. See, e.g., § 322.245, Fla. Stat. (2012) (failure to pay child support).

      . Further, if a third conviction under the DWLS provision occurs within a five-year period, the driver will be designated as a habitual traffic offender, which entails a mandatory five-year license revocation under section 322.27(5). See 322.264(l)(d), Fla. Stat.

      . The Fourth District issued its decision in Harvey on April 9, 1997.