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    Hector G. SANCHEZ-TORRES, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1760.
    Supreme Court of Florida.
    July 3, 2013.
    Rehearing Denied Oct. 3, 2013.

      Rick A. Sichta, Jacksonville, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

Hector Gabriel Sanchez-Torres, who was nineteen years old at the time of the crime, appeals his convictions for first-degree murder and armed robbery and the sentence of death imposed for the murder of nineteen-year-old Erick Joel Colon. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm Sanchez-Torres’s convictions and sentence of death.

FACTS AND PROCEDURAL HISTORY

Sanchez-Torres pled guilty to first-degree murder and armed robbery. After he subsequently waived a penalty-phase jury, the State presented the following evidence regarding the crimes in this case during penalty-phase proceedings in front of the trial judge.

On the evening of September 9, 2008, Erick Joel Colon had been at a friend’s house playing board games and left at 11 p.m. to walk home. He had his cell phone with him at the time, as well as a wallet with cash in it.

Colon’s body was discovered lying on the sidewalk close to his home in the early morning hours of September 10, at 1:30 a.m. The area was very dark. When Colon’s body was discovered, his wallet and cell phone were missing.

Colon had been shot once in the head, but had no other injuries. The medical examiner testified that the characteristics of the gunshot wound indicated that the muzzle of the gun was in direct contact with, and pressed hard against, the skin. The entrance wound was just below the left eye, and the exit wound was on the right back side of the head.

On September 30, 2008, Colon’s mother testified that she received a phone call from her son’s number. When she answered, a young Hispanic woman was on the other end. Colon’s mother began crying and told the caller that the cell phone belonged to her murdered son. The caller hung up.

Sanchez-Torres’s younger sister, who was fifteen years old at the time of the crime, testified during the penalty phase that she had discovered the cell phone and recognized that it was not one of her brother’s cell phones. She found a contact listing for “mom” and called it. A woman answered. She was crying and explained that the cell phone belonged to her murdered son. Sanchez-Torres’s sister then hung up and called her mother, who told her to turn off the phone and wait for her to come home. Sanchez-Torres’s sister also called Marked Thomas, the codefen-dant in this case and Sanchez-Torres’s good friend and roommate, who told her to turn off the phone and pull out the battery, which she did. She gave the phone to Thomas, and her mother got it from him.

Detective Sharman with the Clay County Sheriffs Office spoke with Sanchez-Torres’s mother, Maria Torres, on October 1, 2008. Torres stated that she had found the phone and that her daughter had used the phone to call someone who said the phone belonged to her son. Torres stated that she had taken the phone from her daughter and had thrown it in the trash. At some point later, Torres told law enforcement that she had given the cell phone to someone who had destroyed it. The Clay County Sheriffs Office was then able to locate pieces of the phone.

On October 2, Detective Sharman visited Sanchez-Torres in the Duval County Jail to question him about the phone. Sanchez-Torres stated that Thomas had bought the phone from an acquaintance known as “D.” When informed that the phone belonged to a murder victim, Sanchez-Torres denied having anything to do with the murder. The Clay County Sheriff’s Office was able to identify and locate “D,” who denied ever selling or giving Sanchez-Torres or Thomas a phone.

Detective West, also with the Clay County Sheriffs Office, testified that he spoke with Torres on March 5, 2009, when he interviewed her at her home. When he met with her, he informed her that he had drafted an arrest warrant for her for tampering with the cell phone and showed her an unsigned arrest warrant. Torres testified that the next day, she told Sanchez-Torres about what happened, and he told her to contact the detectives and tell them to come see him.

After Detective West received a phone call from Torres, in which she stated that Sanchez-Torres wanted to speak to him, Detective West proceeded to the Duval County Jail to interview Sanchez-Torres. During the initial part of the interview, Sanchez-Torres stated that Thomas had shot the victim and drew a diagram of the scene and the body to describe what happened. Detective West left the room, and Sanchez-Torres wrote out a three-page handwritten statement, in which he stated that he, and not Thomas, had shot the victim. Detective West returned to the room and took Sanchez-Torres to a different location in order to conduct a videotaped interview. Sanchez-Torres then told Detective West again that Thomas was the shooter.

The State also presented evidence regarding Sanchez-Torres’s prior violent felony, which was a murder that took place in Duval County on July 20 or 21, 2008, less than two months before the murder in this case. Sanchez-Torres had confessed to shooting the victim in the Duval County murder, stating that he shot the victim because the victim had repeatedly threatened to kill his then-pregnant girlfriend. Sanchez-Torres was tried and found guilty of first-degree murder in the Duval County case and was sentenced to life in prison in December 2009.

Finally, the State presented a victim impact statement from the victim’s mother. Presentation of defense witnesses was postponed until after the completion of codefendant Thomas’s trial, at which the same judge presided. Pursuant to his guilty plea in this ease, Sanchez-Torres was required to testify during Thomas’s trial.

The penalty-phase proceedings then continued in Sanchez-Torres’s case. Sanchez-Torres presented mitigation evidence in the form of testimony from numerous witnesses consisting of his family, friends, friends of the family, former teachers and coaches, and supervisors and fellow employees at the dog track where he worked. They universally described Sanchez-Torres as a respectful, polite, good, kind, loving, caring, and giving person, who was also a “clown” and a “goofball.” Specifically, they described him as family-oriented; bright and intelligent; someone who was always quick to help in any way, including helping people financially, assisting others with moving, volunteering, providing transportation to others, and being there if someone needed to talk; someone who got along with others and made friends everywhere he went; and someone who loved animals. Several individuals testified that Sanchez-Torres believes in God and attended church on a regular basis as part of the youth group. Witnesses also testified that Sanchez-Torres was a civic-minded individual who volunteered often at Hispanic heritage events.

Growing up, Sanchez-Torres played baseball. He was a very good baseball player and made the all-star team. He got along well with the other players and the coaches and was a team player. One of Sanchez-Torres’s dreams was to play professional baseball.

A former high school teacher testified that Sanchez-Torres would meet her early in the morning so that he could study or do homework in her room in the mornings while she got ready for the day. He was a good student, and his grades improved while he was in her class. He tried out for the baseball team, but was “crushed” when he did not make the team.

When Sanchez-Torres was fifteen years old, his parents got divorced based on problems caused by his father’s gambling and drug and alcohol abuse problems, which his parents had kept from him. His mother testified that Sanchez-Torres was angry about the divorce. After the divorce, Sanchez-Torres’s father moved to Connecticut. Sanchez-Torres then moved to Connecticut to be with his father, but only stayed for a short period of time upon discovering his father’s gambling and drug abuse problems and after being disappointed that his father did not spend time with him. Sanchez-Torres then moved back to Jacksonville to live with his mother and younger sister.

Shortly thereafter, when Sanchez-Torres was sixteen years old, his father died as a result of problems caused by the alcohol and drug abuse. Sanchez-Torres’s mother testified that Sanchez-Torres was “devastated” by his father’s death. One of Sanchez-Torres’s aunts testified that Sanchez-Torres’s father’s death was “very hard for him.” Sanchez-Torres did not pass the FCAT and therefore was unable to graduate from high school, which was stressful to him.

Sanchez-Torres started working at the dog track when he was in high school and was still employed there the day of the murders. His fellow employees and his supervisors at the dog track universally described him as a good employee who took his work seriously and was quickly promoted because he was respectful, professional, and had no issues with attendance. He came in on his days off if someone called in sick and supervised eight other employees. He was known as a reliable employee and someone people could count on. He also frequently gave other employees rides to work.

Sanchez-Torres’s girlfriend became pregnant, and his mother testified that Sanchez-Torres was very happy and excited about being a father. However, Sanchez-Torres’s high school teacher testified that he had “mixed feelings” because being a parent was also a lot of responsibility. His girlfriend gave birth shortly before the murder in this case.

Several individuals testified that Sanchez-Torres would give or lend them money. He worked overtime at the dog track because he was trying to help his mother with the rent, as well as make payments on his new car that he had bought. He also felt that because he was going to be a father, he needed to make more money. About a month before the murder in this case, Sanchez-Torres moved out of his mother’s apartment into an apartment downstairs with the codefendant, Thomas.

Sanchez-Torres also presented testimony from his former counsel in this case, who had represented him for a short period of time. She testified that Sanchez-Torres was a “model client” who was always pleasant, personable, and cooperative. She suggested that Sanchez-Torres take a polygraph test, and Sanchez-Torres submitted to a polygraph examination without hesitation.

Sanchez-Torres also presented testimony from the polygrapher who conducted his polygraph examination. The polygra-pher asked Sanchez-Torres whether he had shot the victim, to which Sanchez-Torres answered that he did not. Sanchez-Torres passed the polygraph test with a score that was “very, very good.”

Finally, Sanchez-Torres read a statement in which he apologized to the victim’s family, stating that he could not “apologize enough” and that he was taking responsibility, but denied that he killed the victim, stating that it was not supposed to “go down the way it did.”

Following the penalty-phase proceedings, the trial court found the following aggravating circumstances: (1) Sanchez-Torres had been convicted of a prior violent felony; and (2) the murder was committed during the course of a robbery (merged with pecuniary gain). The trial court gave both aggravators great weight. The trial court found that the cold, calculated, and premeditated aggravator was not established beyond a reasonable doubt because “it is not unreasonable to infer that evidence presented during the sentencing proceedings could suggest that the fatal gunshot was the result of an accidental discharge of the gun.”

The trial court then addressed the proposed statutory mitigating circumstance of age. However, the trial court stated that it “decline[d] to assign significant weight to this mitigator.” The trial court found the statutory mitigator that Sanchez-Torres was an accomplice and that his participation was relatively minor did not apply, because “whether or not [Sanchez-Torres] was the person who fired the fatal shot that killed Eric Joel Colon, his participation was not minor” and, further, the court “was presented with competent evidence that [Sanchez-Torres] may have in fact been the individual who pulled the trigger.”

The trial court found twenty-two non-statutory mitigators: (1) Sanchez-Torres can have a positive impact on his family and friends, who continue to love and support him (slight weight); (2) Sanchez-Torres was a peaceful child and enjoyed spending time with his family (slight weight); (3) Sanchez-Torres was a good athlete and a baseball player (slight weight); (4) Sanchez-Torres’s father had a gambling problem and was addicted to drugs and alcohol (slight weight); (5) Sanchez-Torres’s parents were divorced when he was twelve years old (slight weight); (6) Sanchez-Torres moved away from his mother and sister when he was fifteen to live with his father in Connecticut (slight weight); (7) Sanchez-Torres lived in a bad neighborhood while in Connecticut and received little supervision from his father (slight weight); (8) Sanchez-Torres’s father died from complications of alcohol and drug abuse and Sanchez-Torres was very emotional at his father’s funeral (slight weight); (9) Sanchez-Torres was a good brother to his siblings (little weight); (10) Sanchez-Torres was outgoing and was considered to be the “clown” of his family (some weight); (11) Sanchez-Torres was kind and respectful to his family, friends, and coworkers (some weight); (12) Sanchez-Torres had difficulty in school (slight weight); (13) Sanchez-Torres was a reliable employee, with a consistent work record from a young age (the trial court found this mitigator but failed to specify the weight given); (14) Sanchez-Torres did charitable deeds, volunteered for several organizations, and was helpful to others (slight weight); (15) Sanchez-Torres loves his child and desires to be a supportive father during imprisonment (slight weight); (16) Sanchez-Torres loves animals (slight weight); (17) Sanchez-Torres took responsibility for his crimes by confessing to police (little weight); (18) Sanchez-Torres has expressed remorse for his conduct (slight weight); (19) Sanchez-Torres has been a good inmate while incarcerated and is capable of adapting well to long-term incarceration (slight weight); (20) Sanchez-Torres exhibited appropriate conduct throughout the proceedings and was polite, cooperative, and respectful to his attorneys and legal staff during his criminal cases (slight weight); (21) Sanchez-Torres believes in God and joined a church on his own (slight weight); and (22) society can be protected by life sentences without parole (some weight).

After considering and weighing the aggravating and mitigating circumstances, the trial court determined that the aggravating circumstancés outweighed the mitigating circumstances and sentenced Sanchez^-Torres to death.

ANALYSIS

On appeal, Sanchez-Torres raises three claims: (1) his plea of guilty to first-degree murder and armed robbery was not knowingly, intelligently, and voluntarily entered; (2) the trial court erred in not considering polygraph results as mitigating evidence; and (3) the trial court should have given great weight to the mitigator of Sanchez-Torres’s age. In addition to the issues raised by Sanchez-Torres, this Court must consider whether the death sentence is proportional. We address each issue in turn.

I. The Guilty Plea

In his first claim, Sanchez-Torres contends that his guilty plea was not knowing, intelligent, and voluntary, because of an incomplete understanding of the charges and consequences of his plea. When a defendant has pleaded guilty to a charge of first-degree murder, this Court’s mandatory review of the sufficiency of the evidence “shifts to the knowing, intelligent, and voluntary nature of that plea.” Russ v. State, 73 So.3d 178, 199 (Fla.2011) (quoting Barnes v. State, 29 So.3d 1010, 1020 (Fla.2010)).

“Due process requires a court accepting a guilty plea to carefully inquire into the defendant’s understanding of the plea, so that the record contains an affirmative showing that the plea was intelligent and voluntary.” Koenig v. State, 597 So.2d 256, 258 (Fla.1992). “Because a guilty, or no contest, plea has serious consequences for the accused, the taking of a plea ‘demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.’ ” Id. (quoting Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). “A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, “with sufficient awareness of the relevant circumstances and likely consequences.’ ” Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).

Florida Rule of Criminal Procedure 3.172 governs the taking of pleas in criminal cases and “provides basic procedures designed to ensure that a defendant’s rights are fully protected when he enters a plea to a criminal charge.” Koenig, 597 So.2d at 258. Rule 3.172(c) requires the trial court to determine the voluntariness of the plea based on a court inquiry to determine, in relevant part, that the defendant understands the following:

(1) the nature of the charge and the mandatory minimum and maximum penalties provided by law; (2) that he or she has a right to an attorney and that one will be appointed if necessary; (3) that the defendant has the right to plead not guilty and to be tried by a jury with assistance of counsel, to compel attendance of witnesses, to confront and cross-examine witnesses, and the right not to be compelled to incriminate himself or herself; (4) that a plea will give up the right to appeal all matters relating to the judgment unless expressly reserved; (5) that there will be no trial; (6) that the trial judge may examine the defendant under oath about the offense and that the answers may be later used against the defendant; (7) the terms of any plea agreement; and (8) that a plea may subject the defendant to deportation if he or she is not a United States citizen.

Gill v. State, 14 So.3d 946, 960-61 (Fla.2009).

This Court “scrutinize^ the plea to ensure that the defendant was made aware of the consequences of his plea, was apprised of the constitutional rights he was waiving, and pled guilty voluntarily.” Altersberger v. State, 103 So.3d 122, 128 (Fla.2012) (quoting Winkles v. State, 894 So.2d 842, 847 (Fla.2005)). “In reviewing a claim of an involuntary and unintelligent plea, courts look to the totality of the circumstances.” State v. Perry, 786 So.2d 554, 557 (Fla.2001), receded from on other grounds by Major v. State, 814 So.2d 424 (Fla.2002).

We note at the outset that after the plea was entered, the trial court actually offered to set aside the guilty plea at the beginning of the penalty-phase proceedings a few days after the entry of the plea, stating that there were jurors standing by for the guilt phase of the trial. Sanchez-Torres stated that he did not wish to do so, and there is no indication in this record of a motion to withdraw the plea or a hearing on a request to withdraw the plea at any time during the trial court proceedings. Therefore, the voluntariness of the plea is determined solely based on the record before us.

The primary basis of Sanchez-Torres’s claim that his guilty plea was not knowing, intelligent, and voluntary is that he was unaware of the nature and elements of the charges to which he was pleading guilty. Specifically, he asserts that he believed that he was guilty of premeditated first-degree murder for failing to report the shooting to the police. He also asserts that the record is not clear whether he was entering a plea to premeditated murder, felony-murder, or both.

The United States Supreme Court has explained that

[a] plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense.

Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (emphasis added) (citation omitted). Henderson was a case that was decided after state postconvietion proceedings where an evidentiary hearing was held as to what the lawyer conveyed to the defendant and during which the evidence established that neither the lawyer nor the trial court explained the element of intent to cause death with respect to the defendant’s plea to second-degree murder. Id. at 689, 96 S.Ct. 2258.

Sanchez-Torres contends that he is entitled to relief on direct appeal because the record does not contain an affirmative representation that the nature of the charges and elements were ever explained to him. Further, he argues that the trial court failed to require that the defense attorneys affirm that they explained the elements of the charges prior to the plea. However, neither ground forms the basis for per se reversal under Henderson. See id. at 647, 96 S.Ct. 2253 (“Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (emphasis added)). The United States Supreme Court has also explained that it has

never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. Where a defendant is represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.

Bradshaw, 545 U.S. at 183, 125 S.Ct. 2398 (citation omitted). However, the Bradshaw Court did not set forth an affirmative requirement that the trial court must always inquire of defense counsel as to whether the nature and elements of the crime were explained in order for the plea to be valid.

In this case, the indictment charged first-degree murder both on the basis of premeditated first-degree murder and felony murder with armed robbery as the underlying felony, and a jury would have been permitted to return a general verdict for first-degree murder without specifying the theory under which it found Sanchez-Torres guilty. See Miller v. State, 42 So.3d 204, 227 (Fla.2010). At a minimum, it is clear from the plea colloquy that Sanchez-Torres understood that by planning and participating in the armed robbery, he was guilty of first-degree felony murder. The failure of the trial judge to set forth the elements of both first-degree premeditated murder and felony murder based on armed robbery, or the failure of defense counsel to expressly represent on the record that the elements of both had been explained to Sanchez-Torres, without more, does not entitle Sanchez-Torres to relief on direct appeal with respect to the alleged involuntariness of the plea. See Bradshaw, 545 U.S. at 183-86, 125 S.Ct. 2398 (“Stumpf argues, in essence, that his choice to plead guilty to the aggravated murder charge was so inconsistent with his denial of having shot the victim that he could only have pleaded guilty out of ignorance of the charge’s specific intent requirement. But Stumpf s asserted inconsistency is illusory.... Ohio law considers aiders and abettors equally in violation of the aggravated murder statute.... While Stumpf s mitigation case was premised on the argument that Stumpf had not shot [the victim], that was fully consistent with his plea of guilty to aggravated murder.”).

Further, at the beginning of the plea colloquy, the defense lawyer began by explaining that Sanchez-Torres intended to plead guilty because it was in his best interests and in order to take responsibility for his actions:

DEFENSE ATTORNEY: Your Honor, [Sanchez-Torres] is before the Court. I have met with [Sanchez-Torres] numerous times and discussed all of his options with him numerous times, and this morning we are going to enter a plea of guilty with the understanding that there’s no agreement with the State to waive death. We have reached that decision. We’ve discussed various options. We’ve discussed the fact that he was not the shooter, and — and we believe that we could present evidence of that.
Despite the fact that he was not the shooter, ... [Sanchez-Torres] understands that he is just as responsible for Mr. Colon’s death, and he believes that this is in his best interest and he is ready and willing to take responsibility for his — for his actions. And, you know, he — he tried to resolve both of his cases by entering pleas with the State’s agreement to waive death, and that was refused. Anyway, this is his decision and mine, and he’s had time to discuss it with me, with his mother, and this is what he wants to do.

(Emphasis added.)

After a thorough review of the plea colloquy and the record in this case, we conclude that the record currently before this Court does not demonstrate that Sanchez-Torres had “such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.” Henderson, 426 U.S. at 645 n. 13, 96 S.Ct. 2253. Sanehez-Torres’s assertion that his trial counsel “failed to inform and discuss with [him] the true nature of the charges and elements against him” is a claim of ineffective assistance of counsel more appropriately brought in postconviction proceedings. As explained by the Eleventh Circuit Court of Appeals in a habeas corpus case relied upon by Sanchez-Torres, “[d]ue process does not require that the defendant, in pleading guilty, be informed of each element of the crime in question at the plea hearing. The defendant may receive detailed information about the elements of the offense beforehand. Most commonly, his attorney provides such information.” Gaddy v. Linahan, 780 F.2d 935, 944 (11th Cir.1986) (citation omitted).

Sanchez-Torres also contends that he entered the plea with the misunderstanding that the trial court could impose the death penalty only if it found that he had shot the victim. We conclude that the record currently before this Court fails to demonstrate that Sanchez-Torres did not understand that death was a possible penalty, regardless of whether the trial court found that he was the shooter during penalty-phase proceedings.

During the plea colloquy, there is no question that the issue of whether Sanchez-Torres was the shooter, and his denial that he was the shooter, came up on several occasions. Sanchez-Torres points to a statement made by the trial court that he contends implied that the trial court could impose the death penalty only if it found that he was the shooter:

THE COURT: And you fully understand that — that based upon the evidence that will be presented to me, I can still determine that you were the shooter, and I can still impose the death penalty?
SANCHEZ-TORRES: Yes, sir.

Standing alone, this statement could have created confusion, but we must consider the totality of the plea colloquy. The plea colloquy as a whole does not support the claim that Sanchez-Torres failed to understand that he could be sentenced to death even though he was not found to be the shooter.

First, his lawyer began the plea colloquy by stating that the defense had sought an agreement with the State to waive seeking the death penalty but that the State would not agree. Second, it was explained to Sanchez-Torres that the charge to which he was pleading guilty was punishable either by life in prison or by death. Third, Sanchez-Torres confirmed that no specific promises had been made to him as to the penalty. Fourth, the trial court explained in no uncertain terms that Sanchez-Torres’s prior violent felony (the July 2008 Duval County murder) was an “aggravation that the state attorney can use, and it’s probably the strongest aggravation they could bring out against somebody for the imposition of the death penalty” and that the State would be “using that against [him] in this case.”

If in postconviction, it turns out that Sanchez-Torres’s lawyer misunderstood that Sanchez-Torres could be subject to the death penalty only if he was found to be the shooter or gave Sanchez-Torres any misadvice or incomplete information, the implications of that misadvice can be addressed at that time. However, on this record, there is absolutely no indication that there was any misadvice of counsel with respect to the possible penalties or that the potential of the death penalty was not thoroughly explained. Further, to the extent that Sanchez-Torres relies on his defense counsel’s alleged misunderstanding of the law regarding Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), as demonstrative of Sanchez-Torres’s lack of understanding that he could be sentenced to death even if the trial court did not find he was the shooter, granting relief on this basis on this record would also require speculation.

Finally, Sanchez-Torres contends that he was unaware that he would be forced to give a sworn statement and testify for the State in his codefendant’s trial. However, during the plea colloquy, the trial court specifically advised Sanchez-Torres that he was waiving his right to remain silent. This stands in stark contrast to Koenig, 597 So.2d at 258, in which this Court held that a plea was not knowing, intelligent, and voluntary where “the brief colloquy between the trial court and Koenig failed even to mention any of the[ ] rights [enumerated in Florida Rule of Criminal Procedure 3.172(c), including the right to avoid compelled self-incrimination]. Although the judge did ask Koenig if he understood that he was waiving ‘certain rights,’ he never explained what those rights were.” Id.

Although Sanehez-Torres asserts that “defense counsel did not explain to [him] that he would lose his Fifth Amendment right to remain silent after his guilty plea, and that he could be subject to deposition and forced to testify against co-defendant’s case,” this is in actuality an ineffective assistance of counsel claim more appropriately brought during postconviction proceedings where evidentiary development can take place, if warranted.

We conclude that Sanchez-Torres’s plea was knowing, intelligent, and voluntary. Accordingly, we deny this claim.

II. Polygraph Results

In this claim, Sanehez-Torres contends that the trial court reversibly erred in failing to consider polygraph results as mitigating evidence in the penalty phase. Specifically, Sanehez-Torres argues that the polygraph results provided strong evidence that he was not the triggerman and, therefore, were relevant to the issue of relative culpability. The trial court did not consider the polygraph results as a mitigating circumstance, relying on our precedent in Perry v. State, 395 So.2d 170 (Fla.1980), and Christopher v. State, 407 So.2d 198 (Fla.1981).

We decline in this case to revisit our precedent since any possible error in the trial court not considering the polygraph results was harmless beyond a reasonable doubt. The trial court expressly did not base its rulings as to mitigation or its sentence of death on a finding that Sanchez-Torres was the triggerman. The trial court found in its sentencing order that Sanehez-Torres was “instrumental in both the planning and robbery of’ the victim and that the “evidence, in the Court’s view, justifies a conclusion that [Sanchez-Torres] was not a relatively minor participant in this crime.” The trial court expressly stated that it was “not making a finding that [Sanehez-Torres], in fact, was the person who shot [the victim]. Nor has this Court relied upon the inference that [Sanehez-Torres] may have been the trig-german as an aggravating factor justifying the death penalty.” (Emphasis added.)

We conclude that there is no reasonable possibility that any error in excluding the polygraph results that Sanehez-Torres was not the shooter affected the sentence. See Barnes v. State, 29 So.3d 1010, 1027 (Fla.2010) (stating that “[a]n error is harmless beyond a reasonable doubt when, after considering all the permissible evidence, a court concludes that there is no reasonable possibility that the error contributed to the jury’s recommendation of death” (quoting Rodgers v. State, 948 So.2d 655, 665 (Fla.2006))).

Accordingly, we deny this claim.

III. Age Mitigator

In this claim, Sanehez-Torres argues that the trial court erred in failing to give great weight to the statutory miti-gator of age because the trial court ignored evidence that Sanchez-Torres’s crime was related to his age, mental and emotional immaturity, and the resultant inability to cope with the stresses of life. Sanehez-Torres was nineteen years old at the time of the murder.

“[W]here the defendant is not a minor, ... ‘no per se rule exists which pinpoints a particular age as an automatic factor in mitigation.’ The existence and weight to be given to this mitigator depends on the evidence presented at trial and the sentencing hearing.” Nelson v. State, 850 So.2d 514, 528-29 (Fla.2003) (citation omitted) (quoting Shellito v. State, 701 So.2d 837, 843 (Fla.1997)). “[T]he fact that a defendant is youthful, without more, is not significant. Therefore, if a defendant’s age is to be accorded any significant weight as a mitigating factor, it must be linked with some other characteristic of the defendant or the crime such as immaturity.” Mahn v. State, 714 So.2d 391, 400 (Fla.1998) (citations and internal quotation marks omitted); see also Lebron v. State, 982 So.2d 649, 660 (Fla.2008) (“In Florida, numerical age alone may not be mitigating if not linked to some other material characteristic (e.g., immaturity).”)

The trial court’s sentencing order stated that it “decline[d] to assign significant weight to this mitigator,” but did not state whether it was finding the age statutory mitigator, and did not indicate what weight it gave to the mitigator if found. Sanchez-Torres argues that the trial court erred in failing to give great weight to this mitigator. “This Court reviews a trial court’s assignment of weight to mitigation under an abuse of discretion standard.” Bevel v. State, 983 So.2d 505, 521 (Fla.2008).

We conclude that there was no abuse of discretion in failing to afford the age miti-gator significant weight. After a complete review of the extensive number of mitigation witnesses and evidence presented, we conclude that Sanchez-Torres ignores the overwhelming amount of evidence supporting the trial court’s finding that

the defense presented numerous witnesses who testified as to instances of [Sanchez-Torres’s] conduct that, unlike the general conduct of many teenagers, demonstrate maturity and responsibility. [Sanchez-Torres] was seemingly self-sufficient, had consistently held a full-time job, paid for his own apartment and car, and provided financial assistance to his mother and little sister.

The evidence and testimony relied upon by Sanchez-Torres did not require the trial court to assign great weight to the age mitigator. As the trial court found, “[n]o compelling evidence was presented that [Sanchez-Torres’s] age is linked with some other characteristic of [Sanchez-Torres] or the crime, such as significant emotional immaturity or mental problems.”

Sanchez-Torres relies on Mahn, 714 So.2d at 400, to support his contention that the trial court abused its discretion in declining to assign significant weight to the mitigator in this case. In Mahn, this Court observed as follows:

[T]he record shows that Mahn was far from a normal nineteen-year old boy at the time of the killings. Rather, Mahn had an extensive, ongoing, and unrebut-ted history of drug and alcohol abuse, coupled with lifelong mental and emotional instability. Mahn’s unrefuted, long-term substance abuse, chronic mental and emotional instability, and extreme passivity in the face of unremitting physical and mental abuse provided the essential link between his youthful age and immaturity which should have been considered a mitigating factor in this case.

714 So.2d at 400 (emphasis added) (footnote omitted). The record in this case contains no comparable — or even similar— evidence to that presented in Mahn. In contrast, the totality of the record in this case painted a picture of a responsible and reliable young man who had faced difficulties in his life, but had nevertheless consistently held and excelled at the same job for years, provided financial assistance to others, and shouldered numerous responsibilities.

Accordingly, we deny the claim that the trial court erred in not giving significant weight to this mitigator.

IV. Proportionality

Although Sanchez-Torres does not raise proportionality as an issue, “this Court conducts a review of each death sentence for proportionality, regardless of whether the issue is raised on appeal.” Carter v. State, 980 So.2d 473, 485 (Fla. 2008). “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 “eonsider[s] 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, after Sanchez-Torres waived a jury for the penalty phase, the trial court sentenced him to death. The trial court found the following aggravating circumstances: (1) prior violent felony (great weight); and (2) commission during the course of a robbery (merged with pecuniary gain) (great weight). The prior violent felony was based on a murder to which Sanchez-Torres confessed, which took place less than two months before the murder in this case.

As discussed above, it is not clear whether the trial court found any statutory mitigation. The trial court found numerous nonstatutory mitigators, such as that Sanchez-Torres was a peaceful child who enjoyed spending time with his family; that he was a reliable employee; that he was a good brother; that he was outgoing, kind, and respectful; that his parents had divorced when he was a teenager; that his father had died from complications of alcohol and drug use and he was emotional at the funeral; that he took responsibility for his crimes by confessing and has expressed remorse; and that he believed in God and joined a church on his own. No mental health mitigation was presented or found.

This case is similar to Hayward v. State, 24 So.3d 17, 46 (Fla.2009), in which this Court upheld the death penalty as proportional in a case involving the same two aggravators and similar nonstatutory mitigation. In Hayward, the victim was a newspaper delivery man who was robbed and shot while filling up a newsstand at a convenience store in the early morning hours. Id. at 23. Two aggravators were found by the trial court: “(1) prior violent felony (based on three prior violent felonies including second-degree murder) which was given great weight; and (2) that the murder was committed while Hayward was engaged in a robbery, which was merged with the pecuniary gain aggravator and given great weight.” Id. at 46. These two aggravators were weighed against eight nonstatutory mitigating factors that were given very little to some weight, including that the defendant grew up without a father, was loved by his family, had academic problems, obtained a GED in prison, and had financial stress at the time of the crime. Id.

Accordingly, we conclude that Sanchez-Torres’s death sentence is proportional.

CONCLUSION

Based on the foregoing, we affirm Sanchez-Torres’s convictions and sentence of death.

It is so ordered.

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

      . Codefendant Marked Thomas was only seventeen years old at the time of the murder. He was convicted of first-degree murder and armed robbery by a jury, which made a specific finding that Thomas "did not actually possess or discharge a firearm during the commission of the offense.”

      . Sanchez-Torres has since obtained his GED while incarcerated.

      . Torres testified that she and Sanchez-Torres's father divorced when Sanchez-Torres was fifteen years old, not twelve years old.

      . The holdings of the U.S. Supreme Court in Enmund and Tison have been summarized by this Court as follows:
      The United States Supreme Court and this Court have consistently held that a sentence of death must be proportional to the defendant’s culpability. Thus, in Enmund the Court indicated that in the felony murder context a sentence of death was not permissible if the defendant only aids and abets a felony during the course of which a murder is committed by another and defendant himself did not kill, attempt to kill, or intend that a killing take place or that lethal force be used. Later, in Tison the Court said a sentence of death in the felony murder context can be proportional if the defendant is a major participant in the felony and the defendant's state of mind amounts to a reckless indifference to human life.

        Stephens v. State, 787 So.2d 747, 759 (Fla.2001).

      . This Court conducts a relative culpability proportionality analysis in cases involving more than one defendant. See Shere v. Moore, 830 So.2d 56, 60 (Fla.2002) ("[I]n cases where more than one defendant was involved in the commission of the crime, this Court performs an additional analysis of relative culpability. Underlying our relative culpability analysis is the principle that equally culpable co-defendants should be treated alike in capital sentencing and receive equal punishment.''). However, that analysis is inapplicable here because codefendant Thomas was seventeen at the time of the crime and therefore ineligible for the death penalty.


author: PER CURIAM.

text:
    Cecil Shyron KING, Appellant, v. STATE of Florida, Appellee.
    No. SC11-2258.
    Supreme Court of Florida.
    July 3, 2013.
    Rehearing Denied Oct. 3, 2013.

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

Cecil Shyron King, who was forty years old at the time of the crime, appeals his conviction and sentence of death for the December 2009 first-degree murder of eighty-two-year-old Renie Telzer-Bain. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const: For the reasons set forth below, we affirm King’s conviction and sentence of death.

FACTS AND PROCEDURAL HISTORY

The Guilt Phase

Renie Telzer-Bain’s family last saw her alive on Monday, December 28, 2009, at 5:30 p.m., when her daughter-in-law, Lyza Telzer, along with Lyza’s son and Lyza’s son’s friend, visited her. Lyza and Renie were very close, spoke multiple times .per day, and saw each other five times per week. Lyza made a point of seeing Renie very often because of Renie’s age and because Renie lived by herself. Renie liked to stay up late watching television and to sleep in until 10 or 11 a.m.

The next day, Tuesday, December 29, Lyza began trying to reach Renie around 4 p.m. As the day progressed and she had not been able to reach Renie, Lyza became concerned. She called Renie’s neighbor to ask if he would keep an eye out for Renie. The neighbor had noticed that Renie’s garage door was open at 10:30 a.m. that morning and that her car was missing. He believed at the time that Renie had inadvertently left the garage door open, and either he or his wife closed it.

Lyza went to Renie’s house around 7 p.m., along with Renie’s neighbor. The garage door was closed, and when Lyza opened the garage, Renie’s car, a 2001 Cadillac, was missing. The door from the house to the garage was locked, which was unusual because Renie only locked that door at night. The neighbor pried open the door, and they entered the house. Upon entering the house, Lyza believed a burglary occurred — the house was ransacked, and Renie was an extremely neat, meticulous person who always kept her house in order. Lyza and the neighbor then discovered Renie’s body in the bedroom on the floor.

The sliding glass door was opened about an inch, and the frame was damaged. The pole that normally kept the door from being opened was not in the door. Numerous items were missing from the house, including a flat screen television, silverware, jewelry, wallets, clothing, purses, cosmetic bags, a tool chest, and weekly and monthly planners with Renie’s handwriting in them. Subsequent investigation by law enforcement revealed no fingerprints of value in the house.

Investigators found a container of cantaloupe on the kitchen table. On the top of the container was a piece of fruit that appeared to have a bite mark, which was swabbed for DNA. Lyza testified that Re-nie often kept cantaloupe or fruit in containers in the fridge. The DNA swab from the fruit revealed a partial male DNA profile (with eleven of thirteen loci being identifiable).

Shoe prints were discovered on the exterior garage door, where it appeared that someone had tried to kick the door in. Additional shoe prints were found near the entry where the yard was fenced in. The size of the prints indicated a large-sized shoe.

Dr. Rao, a medical examiner, testified that the cause of death was blunt head trauma. The victim had been struck at least seventeen times with the head and claw of a hammer, sustaining injuries on the back of her head, to the front of her neck, on the. back of her neck, on her upper back, on the back of her right hand, on her right leg, and on her left knee. Three of the blows were to the head, which would have been fatal and rendered the victim unconscious. The wounds on the victim’s right hand and left arm were defensive wounds, sustained as the victim was trying to ward off blows.

The missing Cadillac was found the day after Renie’s body was discovered, located within a few blocks of King’s apartment. Fingerprints found inside the car matched those of Rashad Montford, King’s cousin. Police subsequently interviewed Montford, who explained that he borrowed the car from King. According to Montford, he went to King’s apartment in late December 2009, and King offered to let him borrow a newer model Cadillac, which was parked around the corner. King did not explain where he had gotten the car, and Montford did not ask. Montford borrowed the car twice that day. While he was borrowing the car, Montford called King at one point to tell him that he was going to be out with the car for a little while longer. Police corroborated this call using phone records. King instructed Montford to leave the vehicle a few blocks away from where King lived when he returned it.

While he was speaking with police, Montford offered to wear a recording device and visit King to get him to talk about the vehicle, with the aim of clearing Mont-ford’s name. Montford visited King twice while wearing the recording device, but King did not admit that he had given Montford the car. King instructed Mont-ford to “say you don’t know” when questioned by police about the vehicle. King’s fingerprints were not found inside the Cadillac.

James Roman testified that he was the owner of a residential lawn service company that had serviced Renie’s yard for four or five years. King worked for Roman from July until October 2009. Roman and King cut Renie’s yard together eight or ten times. Roman always went with King to cut Renie’s yard. King did not have a vehicle, so Roman would sometimes give him a ride. Roman made it a point not to go inside his clients’ residences, and Roman testified that King never went inside Renie’s house. Roman does not believe that King ever met Renie. Renie never came outside to give them food or drinks, and she paid Roman by leaving a check under the door mat.

Roman was out of town at the time of the murder. While out of town, he received a phone call from King, who mentioned that something had happened to one of the clients for whom Roman worked. King usually only called Roman to speak about work.

On January 8, 2010, King pawned a gold bracelet, identified as belonging to Renie, for $300. The bracelet did not have any unique identifiers, such as charms or initials. The lead detective testified that it would be a good item to pawn if King was trying to stay under the radar.

During the investigation, police checked the phone records for King’s cell phone. On the morning of the murder, he made a phone call at 5:24 a.m. The phone call was routed using a tower that was near the bus station downtown, three miles away from his residence. Normally a phone call bounces off the cell tower that is closest to the person making the call. If King was home at the time of the phone call, there was a high likelihood that the phone call would have routed through a different tower. No other calls were made until 10:10 a.m., and that phone call routed through a tower that was closer to King’s residence. Police went to the bus station and determined that there was a bus route that left the station and stopped directly across from the entrance to Renie’s subdivision. On the day of the murder, there was a bus leaving the bus station on that route at 5:25 a.m. The bus driver confirmed that the bus ran on schedule on that particular day, but stated that he would be unable to identify King because it was rush hour.

Police executed a warrant on King and searched his residence on February 1, 2010. Numerous items belonging to Renie were found in his residence. The items included a pillow case sham that matched a sham seen at Renie’s residence, day planners with Renie’s handwriting inside, items of clothing with the tags still on them, silverware, a chess set, purses, watches, rings, pearls, necklaces, and other jewelry. Police also found a hammer on top of King’s microwave; however, the hammer did not have any blood on it. Large-sized shoes were recovered from King’s house, but none of the shoes matched the tread found in the shoe prints at the crime scene.

Police interviewed King twice, but he did not admit guilt. During the first interview, King stated that he bought the pawned bracelet for $50 from a guy known as “Budha,” who hung out in his neighborhood. King was going to give the bracelet to his girlfriend, but he needed cash to catch up on bills. King denied having a Cadillac or lending the keys to anyone. He stated that he had worked with Roman on mowing Renie’s yard, but he did not really speak to her and had never been inside her house.

When questioned about the items found in his apartment, King stated that he found them in a vacant apartment near his apartment, took them home, and put them in his closet. He did not know to whom the items belonged. King stated that he looked in the vacant apartment because his apartment had been broken into and burglars were known to stash items in the nearby vacant apartment complexes. He stated that he found his stolen property in the vacant apartment as well. He had filed a police report on December 3, 2009, regarding a burglary of his home.

Police took a sample of King’s DNA. The DNA on the melon at Renie’s home was found to match that of King. The DNA on the fruit would match only 1 in 440 trillion Caucasians, 1 in 770 trillion African-Americans, and 1 in 280 trillion southeastern Hispanics.

After the DNA on the melon in Renie’s house was identified as matching King’s DNA, the police questioned him a second time on February 5, 2010. King again stated that he had never been inside Re-nie’s house and never took money from her; she always paid Roman for the lawn care services. He then subsequently stated upon further questioning that he had previously been inside Renie’s living room when he had stepped inside her house to speak to her, which was contrary to his earlier statements. When King was shown a picture of the fruit from the crime scene, he stated that Renie had previously given fruit to him and Roman. When asked why his DNA was found on the fruit, King stated that the victim served them fruit when they were previously at her house.

The jury convicted King of first-degree murder (both premeditated and felony murder), burglary, grand theft of an automobile, dealing in stolen property, and false verification of ownership on a pawn broker transaction form.

The Penalty Phase

During the penalty phase, the State presented victim impact testimony from Re-nie’s family and friends. King presented mitigation testimony from family members and friends, who testified that he was an articulate, intelligent, and caring individual. His parents divorced when he was young, after which he and his mother moved to Orlando. He was very close with his mother, who died of breast cancer. King took care of his mother in her final days, and her death impacted him greatly. He cared for his grandmother when she had Alzheimer’s disease, including bathing her, clothing her, and feeding her. When his aunt broke her hip in 2009, he visited and consoled her. King has a three-year-old son, with whom he is very close and has a good relationship. King went to church when he lived with his mother in Orlando and considered seminary at one point. According to one family member, King would have made a good minister. His family members would visit him if he was sentenced to life in prison.

The jury recommended death by a vote of eight to four. Subsequently, the trial court held a Spencer hearing, at which King presented two witnesses. The first witness was his former girlfriend, who testified that he was a nice, articulate, funny, and smart individual; that he had a very good relationship with his mom prior to her death; and that it was very hard for him when she passed away. The second witness was a correctional officer who testified that in the year that King had been on his block in prison, the officer did not have any trouble with King.

The trial court followed the jury’s recommendation and sentenced King to death. The trial court found the following aggravating circumstances: (1) the capital felony was committed while the defendant was engaged in the commission of a burglary and for the purpose of pecuniary gain (merged); and (2) the capital felony was especially heinous, atrocious, or cruel (HAC). The trial court gave both aggravating circumstances great weight. The trial court found no statutory mitigating factors, but found numerous nonstatutory mitigating factors. The trial court found that two mitigating factors were not established: (1) the incident at issue was situational; and (2) the defendant had a lack or deficiency of positive role models.

ANALYSIS

On appeal, . King raises five claims, all of which are related only to the penalty phase: (1) the trial court erred in instructing the jury on and in finding HAC; (2) his sentence of death is disproportionate; (3) the trial court erred in allowing the prosecutor to make improper closing arguments about an avoid-arrest aggravator not submitted to the jury or found by the trial court; (4) the trial court erred in prohibiting defense counsel from making the proper argument that King had no history of violent crime; and (5) his death sentence is unconstitutional in violation of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In addition to the issues raised by King, this Court must consider whether the evidence was sufficient to support the conviction for first-degree murder. We address each issue in turn.

I. HAC

In his first claim on appeal, King contends that the trial court erred in finding HAC. “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, arid, if so, whether competent substantial evidence supports its finding.” Id. (quoting Willacy, 696 So.2d at 695).

This Court has explained the HAC aggravator as follows:

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

Hernandez v. State, 4 So.3d 642, 668-69 (Fla.2009) (quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973)). Further, “the HAC aggravator focuses on the means and manner in which death is inflicted and the immediate circumstances surrounding the death.” Id. at 669 (quoting Brown v. State, 721 So.2d 274, 277 (Fla.1998)).

“This Court has consistently upheld HAC in beating deaths.” Douglas v. State, 878 So.2d 1246, 1261 (Fla.2004) (quoting Lawrence v. State, 698 So.2d 1219, 1222 (Fla.1997)); see, e.g., Dennis v. State, 817 So.2d 741, 766 (Fla.2002) (upholding HAC where both victims suffered skull fractures and were conscious for at least part of the attack, as evidenced by defensive wounds to their hands and forearms); Bogle v. State, 655 So.2d 1103, 1109 (Fla.1995) (upholding HAC where the victim was struck seven times on the head, the victim was alive during the infliction of most of the wounds, and the last blows caused death). However, in order to support a finding of this aggravator, “the evidence must show that the victim was conscious and aware of impending death.” Douglas, 878 So.2d at 1261.

The existence of defensive wounds is relevant to the HAC analysis. This Court has “affirmed findings of HAC where defensive wounds revealed awareness of impending death.” Guardado, 965 So.2d at 116 (upholding HAC where the victim was beaten, stabbed repeatedly, and her throat was slashed, because the evidence of defensive wounds to the victim’s right hand indicated that the victim was conscious enough during the attack to try to grab the assailant’s weapon”); Boyd v. State, 910 So.2d 167, 191 (Fla.2005) (upholding HAC in stabbing death because the medical examiner testified that the victim could not have sustained the defensive wounds if she was unconscious and, therefore, “[w]hile the exact order of wounds could not be established, there was competent, substantial evidence to support the trial court’s finding that [the victim] was alive and conscious for some of the attack, and was struggling with her attacker”); Dennis, 817 So.2d at 766 (upholding HAC in two brutal beating deaths because the evidence supported the finding that both victims were conscious for at least part of the attack because they had defensive wounds to them hands and forearms; there was also evidence that one victim got to his feet and struggled after the defendant left the room); Roberts v. State, 510 So.2d 885, 894 (Fla.1987) (upholding HAC where the victim was killed as a result of numerous blows to the back of the head and the evidence of severe injury to the victim’s hands “support[ed] the conclusion that after the initial blow from behind, [the victim] attempted to fend off further blows”); Heiney v. State, 447 So.2d 210, 216 (Fla.1984) (upholding HAC where there were seven hammer blows inflicted on the victim’s head and “[t]he medical examiner testified that the injuiies to the victim’s hands were probably defense wounds caused by the victim’s holding his hands up to try to protect himself’).

The trial court found in pertinent part based on the circumstances of the crime and the testimony of the medical examiner as follows:

Ms. Telzer-Bain’s perception of her circumstances no doubt involved extreme fear, tremendous pain, and impending doom. 82-year-old Renie Tel-zer-Bain was surprised in her home by a 6' 5", 200 pound intruder whom she very well may have recognized. It is unclear if Ms. Telzer-Bain was asleep in the bedroom where she was found or was awake when the Defendant entered her home. What is clear is that she never had a chance. Most of Ms. Tel-zer-Bain’s injuries were to her back— back of her head, back of her neck, and her right back. Other than her leg/ knee, the only injury to the front of Ms. Telzer-Bain was an injury to the front of her neck. The Defendant caused these injuries by taking a hammer and using the round, flat head to strike Ms. Telzer-Bain and using the claw portion of the hammer to rip and tear Ms. Tel-zer-Bain’s skin, fat, and tissue. 17 to 20 times the Defendant struck this defenseless woman with such force that her skull was pressed into her brain and her rib was broken. Ms. Telzer-Bain, unwilling to just give up her life, tried to protect herself as is evidenced by the defensive injuries she sustained on her hand and arm.
Dr. Rao testified Ms. Telzer-Bain was alive when she received all of these injuries and the injuries she sustained would have caused tremendous pain. While Dr. Rao testified the injuries to the head would have caused Ms. Telzer-Bain to have lost consciousness very quickly, and the fact that there were defensive injuries suggests the head injuries were not the first sustained.

We conclude that the trial court’s finding of HAC is supported by competent, substantial evidence.

The defensive wounds to the victim’s hand and arm clearly demonstrate that the victim was conscious and aware of her impending death and attempting to fend off the attack. King nevertheless contends that this case is unlike other cases in which we have upheld HAC, because those cases involved a greater number of defensive wounds than are present in this case. However, this Court has never required a minimum number of defensive wounds in order to sustain a finding of HAC.

Cases such as Williams v. State, 37 So.3d 187 (Fla.2010), and Zakrzewski v. State, 717 So.2d 488 (Fla.1998), where this Court struck the HAC aggravator, are distinguishable because in both of those cases, there was no evidence that the victim was conscious and aware of her impending death. See Williams, 37 So.3d at 200 (striking HAC where any of the five blows to the head could have resulted in unconsciousness or death, the entire attack could have taken place in seconds, and the evidence did not establish the existence of any defensive wounds); Zakrzewski, 717 So.2d at 493 (striking HAC for one of the victims where “[mjedical testimony was offered during the trial which established that [the victim in question] may have been rendered unconscious upon receiving the first blow from the crowbar, and as a result, she was unaware of her impending death”); see also Simmons v. State, 419 So.2d 316, 317, 319 (Fla.1982) (striking HAC where “[d]eath was probably instantaneous or nearly so; an expert testified that either of the two blows could have caused instantaneous death by itself’). .

In contrast, the attack in this case was particularly vicious in that the seventeen to twenty blows were inflicted on this elderly victim with both the head and claw of the hammer, and the blows were forceful enough to tear holes in the back of the victim’s neck, fracture her ribs, and ultimately cause depressed skull fractures. Dr. Rao, the medical examiner, could not determine how long the attack took, but it was certainly not seconds based on the significant number of blows inflicted. Although Dr. Rao also could not testify to the sequence of the blows, Dr. Rao testified that the wounds on the victim’s right hand and left arm were defensive wounds, sustained as the victim was trying to ward off blows.

Accordingly, we conclude that the trial court’s finding of HAC is supported by competent, substantial evidence, and we reject King’s argument to the contrary.

II. Proportionality

King next contends that his death sentence is disproportionate, regardless of whether this Court strikes the HAC aggravator. “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 jury recommended death by a vote of eight to four. The trial court found the following aggravating circumstances: (1) the capital felony was committed while the defendant was engaged in the commission of a felony (burglary) and for the purpose of pecuniary gain (merged); and (2) the murder was HAC. The trial court gave both aggravating factors great weight. The trial court found no statutory mitigating factors, but found numerous nonstatutory mitigating factors.

The facts of this case are remarkably similar to Beasley v. State, 774 So.2d 649 (Fla.2000). In Beasley, the defendant was staying at the victim’s house for a few days while performing some pressure washing and painting at apartments the victim managed so that the victim could drive the defendant to and from work. Id. at 653. When the victim’s daughter had not heard from her for two days, she traveled to her mother’s home to make sure she was all right. Id. The victim had been bludgeoned to death, likely with a hammer, sustaining fifteen to seventeen blows to the head, as well as defensive injuries to both hands, her left forearm, her upper arm and upper chest area, and to the top of her left shoulder. Id. at 654-55, 660. Her car was missing, as well as $900 in cash. Id. at 654, 656. The trial court found the same two aggravating factors as in this case: HAC and’committed during the course of a felony (robbery), which was merged with pecuniary gain. Id. at 674. The trial court gave little weight to the commission during the course of a robbery aggravator and very great weight to the HAC aggravator. Id. at 674 n. 15. Also as in this case, the trial court did not find any statutory mitigating factors, but found numerous nonstatutory mitigators. Id. The nonstatutory mitigation found in Beasley included that the defendant was a good son, maintained contact with his children and grandchildren, participated in church, and had mental or neurological damage resulting from alcohol and drug abuse. Id. We reject King’s argument that there are significant distinctions-such as the number of defensive wounds — between this case and Beasley that would lead us to conclude that this case is disproportionate.

Accordingly, we conclude that King’s death sentence is proportionate.

III. Prosecutor’s Closing Argument

In this claim, King contends that the trial court erred in allowing the prosecutor to make certain comments during the penalty-phase closing argument. Specifically, King asserts that the prosecutor improperly argued that the homicide was committed to eliminate the victim as a witness to the burglary because the State never sought the aggravating circumstance of committed to avoid arrest. Defense counsel did not object to any of the comments.

“Attorneys are permitted wide latitude in closing argument, but that latitude does not extend to allowing improper argument.” Silvia, 60 So.3d at 977. “[T]he proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” Gonzalez v. State, 990 So.2d 1017, 1028-29 (Fla.2008) (quoting Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985)). “Counsel must contemporaneously object to improper comments to preserve a claim for appellate review. Unobjected-to comments are grounds for reversal only if they rise to the level of fundamental error.” Merck v. State, 975 So.2d 1054, 1061 (Fla.2007).

A review of the context surrounding the comments in this case reveals that the prosecutor’s statements were not only “fair comments] on the evidence adduced at trial,” Wade v. State, 41 So.3d 857, 868 (Fla.2010), but were used to argue that the committed during the course of a burglary aggravator should be accorded significant weight. Even assuming that the comments were improper, they clearly did not rise to the level of fundamental error-that is, error that “reaches down into the validity of the trial itself to the extent that a ... jury recommendation of death could not have been obtained without the assistance of the alleged error.” Poole v. State, 997 So.2d 382, 390 (Fla.2008) (quoting Card v. State, 803 So.2d 613, 622 (Fla.2001)).

Accordingly, we deny this claim.

IY. Defense Counsel’s Closing Argument

In his .next claim, King argues that the trial court erred in precluding defense counsel from arguing to the jury that the aggravation the State used as grounds for the death penalty did not include evidence that King had a long history of violent crimes. The State objected to the defense’s argument on the basis that there was no evidence presented that the defendant did not have a history of violence.

“In closing argument, counsel is permitted to review the evidence and fairly discuss and comment upon properly admitted testimony and logical inferences from that evidence.” Conahan v. State, 844 So.2d 629, 640 (Fla.2003). However, this Court has “long held that argument on matters outside the evidence is improper.” Bigham v. State, 995 So.2d 207, 214 (Fla.2008). “A trial court has discretion in controlling opening and closing statements, and its decisions will not be overturned absent an abuse of discretion.” Merck, 975 So.2d at 1061.

King contends that the argument that defense counsel sought to make was relevant to show nonstatutory mitigation of no previous crimes of violence, which was in fact found by the trial court. We reject King’s contention because the trial court’s finding of this mitigating factor was based on evidence not presented to the jury, specifically a Presentence Investigation (PSI) Report.

King also contends that defense counsel was merely arguing the lack of a prior violent felony aggravator. However, no such aggravator was sought by the State, and the jury was not instructed on the prior violent felony aggravator. Further, there was no evidence presented to the jury on King’s criminal history whatsoever. Accordingly, the prior violent felony aggravator was not germane to the jury’s consideration, and it was within the trial court’s discretion to preclude defense counsel from arguing it. Cf. Bigham, 995 So.2d at 214-15 (holding that the trial court did not abuse its discretion in precluding the defendant from arguing that the State failed to prove two counts of sexual battery and kidnapping it had already dismissed via judgment of acquittal because “after the trial court’s dismissal of those charges, the counts of sexual battery and kidnapping were no longer germane to the jury’s consideration and were properly restricted from closing argument by the trial judge”).

Moreover, we note that King did have an extensive criminal history of seven felony convictions. However, because King did not assert as a mitigating circumstance that he had no significant criminal history, the State was precluded from presenting evidence of King’s criminal history to the jury. See Walton v. State, 547 So.2d 622, 625 (Fla.1989).

King relies on Conahan, 844 So.2d at 640, in which the prosecutor “remarked upon the lack of certain mitigating factors” and the trial court overruled an objection to the comment. This Court held that the prosecuting attorney’s comment was not improper:

The record reflects that in light of Conahan’s presentation of mitigating evidence, the prosecutor commented in his closing argument that there was no evidence presented regarding other possible mitigators. He pointed out that Co-nahan did not show that he suffered from prior child abuse or drug abuse, or had a history of mental difficulties and mistreatment. In making such a remark, the prosecutor was commenting upon the lack of certain mitigating evidence. His comment did not implicate the defendant’s right to remain silent; rather, it concerned the dearth of mitigating evidence.

Id. However, in Conahan, unlike in this case, the defense presented evidence on mitigating factors. Accordingly, the prosecution was permitted to comment on that evidence and what the evidence did — and did not — demonstrate. Here, in contrast, there was no evidence presented to the jury regarding King’s criminal history or the prior violent felony aggravator.

Accordingly, we conclude that the trial court did not abuse its discretion in precluding the defense from arguing a lack of violent criminal history during its penalty-phase closing argument. However, even if the trial court did err, any such error would be harmless beyond a reasonable doubt. In light of the aggravation and mitigation presented in this case, there is no reasonable possibility that any error would have contributed to the sentence imposed. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

V. Ring v. Arizona

In his final claim, King contends that Florida’s death penalty statute is unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). He acknowledges this Court’s precedent to the contrary and requests that this Court reconsider that precedent. In any event, Ring does not apply to this case because the jury unanimously convicted King of burglary during the guilt phase of the trial and one of the aggravating circumstances found by the trial court in this case was that the murder occurred during the commission of a burglary. See Baker v. State, 71 So.3d 802, 824 (Fla.2011) (“Ring is not implicated when the trial court has found as an aggravating circumstance that the crime was committed in the course of a felony.... Baker was convicted of both home invasion robbery and kidnapping by a unanimous jury during the guilt phase of his trial. Accordingly, Ring is not implicated.”), cert. denied, — U.S.-, 132 S.Ct. 1639, 182 L.Ed.2d 238 (2012).

Accordingly, we deny relief on this claim.

VI. Sufficiency of the Evidence

Finally, we review the sufficiency of the evidence to support the first-degree murder conviction in this case. Although King does not challenge the sufficiency of the evidence, this Court has a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed. 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)). Evidence is insufficient “in a circumstantial evidence case if the [S]tate fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Orme v. State, 677 So.2d 258, 262 (Fla.1996) (quoting State v. Law, 559 So.2d 187, 188-89 (Fla.1989)).

The record contains sufficient evidence to support King’s conviction for the first-degree murder of Renie Telzer-Bain. The victim was found murdered in her home. Her car was missing, and numerous items were missing from her house. King was previously employed by a lawn service company that maintained Renie’s lawn. The owner of the lawn service company, Roman, testified that he and King always worked together on the victim’s lawn and that King had never been inside Renie’s house. He testified that Renie never gave food or drinks to him or King. Roman also testified that King called him while he was on vacation and asked if he had heard about the murder, and King usually only called Roman about work matters.

Renie’s Cadillac was discovered in close proximity to King’s apartment. King’s cousin testified that King let him borrow the vehicle. King pawned Renie’s bracelet, and police discovered numerous items belonging to Renie in King’s apartment. When questioned, King stated that he knew Renie because he mowed her lawn, but that he had never been inside her house. He claimed that he bought the bracelet from an individual known as “Bu-dha” and that he found the items identified as Renie’s in a vacant apartment near his home.

DNA on a piece of melon on Renie’s dining room table was determined to match King’s DNA. Although the DNA on the melon yielded only a partial profile (11 of 13 loci), the DNA profile has an occurrence in the population of 1 in 440 trillion Caucasians, 1 in 770 trillion African-Americans, and 1 in 280 trillion southeastern Hispanics.

When questioned by police a second time, King changed his story, stating that he had been inside the victim’s house and that his DNA was on the fruit because Renie had served fruit to him and Roman when they were previously at her house. However, Roman testified that King last worked for him at the lawn service company at the end of October, and Renie was murdered and the fruit recovered from the table at the end of December — two months later.

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 (quoting Bradley, 787 So.2d at 738). The evidence was such that the “jury can exclude every reasonable hypothesis except that of guilt.” Orme, 677 So.2d at 262. Thus, there was sufficient evidence to support King’s conviction for first-degree murder.

CONCLUSION

Based on the foregoing, we affirm King’s convictions and sentence of death.

It is so ordered.

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

      . The television missing from Renie’s residence was never located. Police also did not find the car keys for the Cadillac.

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

      . The trial court found the following nonstat-utory mitigating circumstances: (1) the defendant is a good inmate (slight weight); (2) the defendant has the potential for rehabilitation and would positively contribute to the prison population (slight weight); (3) the defendant has a lack of violent history (little weight); (4) the defendant is a good parent and loves his son, and his son loves him (moderate weight); (5) the defendant loves children in general, and they love him (moderate weight); (6) the defendant is the only biological child of his mother and father (little weight); (7) the defendant’s parents divorced when he was a young child, which negatively affected his relationship with his father (little weight); (8) the defendant was on track and football teams in high school (slight weight); (9) the defendant graduated from high school and attended community college (little weight); (10) the defendant was close with his mother and took his mother's death very hard (some weight); (11) the defendant went to church with his mother- and even considered becoming a minister (slight weight); (12) the defendant cared for his family members when they were ill (moderate weight); (13) the defendant loves his sister and she loves him (little weight); (14) the defendant was employed throughout his life (no weight); (15) the defendant has family members who write him letters and visit him and would continue to do so if he was sentenced to life in prison (slight weight); and (16) if the defendant were sentenced to death, it would adversely affect his family (some weight).


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

text:
    Brian R. MINNICH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1142.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Crystal McBee Frusciante, Jupiter, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges a 2006 conviction and sentence. Because of the unique procedural posture of this case, we grant the petition.

Petitioner was charged with aggravated assault with a deadly weapon and attempted first-degree murder. After a jury trial, petitioner was convicted of the aggravated assault count as charged and attempted second-degree murder as a lesser included offense. Petitioner’s appeal to this court was affirmed. See Minnich v. State, 993 So.2d 520 (Fla. 1st DCA 2008) (table). Petitioner timely filed a petition for certiorari review in the United States Supreme Court, but that petition was denied. See Minnich v. Florida, 556 U.S. 1224, 129 S.Ct. 2162, 173 L.Ed.2d 1160 (2009). Petitioner’s conviction was not final until the U.S. Supreme Court denied his petition on May 11, 2009. See Bundy v. State, 538 So.2d 445, 447 (Fla.1989) (stating that the defendant’s “conviction and sentence became final when the United States Supreme Court denied his petition for writ of certiorari....”).

While the petition for writ of certiorari was pending in the U.S. Supreme Court, this court issued its opinion in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). In Montgomery, the defendant was charged with first-degree murder, and the trial court instructed the jury on second-degree murder and manslaughter by act as lesser-included offenses. Although the instruction the trial court gave was the standard instruction at the time, we found it to be erroneous because it stated that an element of manslaughter by act was that the defendant “intentionally caused [the victim’s] death.” We viewed this language as requiring the jury to find that the defendant intended to kill the victim in order to convict him of manslaughter by act. We held that the addition of the intent-to-kill element in the jury instruction for manslaughter by act was fundamental error because the jury’s finding that the defendant did not intend to kill the victim, as evidenced by the second-degree murder verdict, precluded it from returning a verdict for manslaughter under the instructions given. The Florida Supreme Court has approved this court’s decision in State v. Montgomery, 39 So.3d 252 (Fla.2010).

This court has applied the holding in Montgomery to find that a trial court commits fundamental error by giving the jury instruction with the intent-to-kill element for attempted manslaughter by act where the defendant is found guilty of the lesser included offense of attempted second-degree murder. See Rushing v. State, 133 So.3d 943 (Fla. 1st DCA 2010); Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009). Petitioner asserts that in his case, the trial court gave the same jury instruction which was found to be fundamental error in Montgome'ry. This court has held that in cases which were pending when Montgomery was decided, appellate counsel was ineffective for failing to ask for supplemental briefing on the jury instruction issue. See, e.g., Asberry v. State, 32 So.3d 718 (Fla. 1st DCA 2010). Here, because petitioner’s conviction was not yet final when this court issued the opinion in Montgomery, the holding in that case applied to petitioner’s case. Under such circumstances, a motion to recall mandate in his direct appeal would have been appropriate, however, petitioner was unable to file such a motion because this court was no longer in the same term in which the mandate was issued. Williams v. State, 947 So.2d 694 (Fla. 4th DCA 2007). The writ of habeas corpus can be used to provide relief after the expiration of term of court in very limited circumstances. See Raulerson v. State, 724 So.2d 641 (Fla. 4th DCA 1999). Accordingly, we find that petitioner is entitled to relief by petition for writ of habeas corpus.

We note that the Fourth District Court has found that fundamental error does not occur when the intent-to-kill element is included in the jury instruction for attempted manslaughter. See Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010). Both Williams and this court’s decision in Rushing are pending in the Florida Supreme Court. Accordingly, we certify conflict with Williams, as well as the following questions of great public importance:

(1) Does the standard jury instruction on attempted manslaughter constitute fundamental error?
(2) Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So.3d 252 (Fla.2010)?

We grant the petition, reverse the conviction and remand for a new trial.

KAHN and WETHERELL, JJ., Concur; BENTON, C.J., dissents with opinion.

BENTON, C.J.,

Dissenting.

I would transfer the habeas petition to the circuit court.


text:
    Fitzroy ELLIS, Petitioner, v. DEPARTMENT OF CORRECTIONS and Michael D. Crews, Secretary, Florida Department of Corrections, Respondents.
    No. 1D13-4803.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Rehearing Denied Dec. 6, 2013.
    Fitzroy Ellis, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of prohibition, as amended and supplemented, and all pending motions are DENIED.

LEWIS, C.J., ROWE and MAKAR, JJ., concur.


author: BLACK, Judge.

text:
    Darrick L. McFADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6172.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.
    Rehearing Denied Dec. 16, 2013.

      Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

Darrick L. McFadden appeals the trial court’s order denying the State’s motion filed pursuant to section 921.186, Florida Statutes (2010), to reduce or suspend his sentence for providing substantial assistance. We affirm the trial court’s order without comment. In so affirming, however, we certify conflict with the First District’s opinion in Cooper v. State, 106 So.3d 32, 32 (Fla. 1st DCA 2013), which holds “that orders denying motions filed pursuant to section 921.186, Florida Statutes, are not appealable.”

McFadden argues on appeal that the trial court erred because it based the denial upon the consideration of improper factors. Though we agree with the First District that the decision to reduce or suspend a defendant’s sentence falls squarely within the discretion of the trial court, see Cooper, 106 So.3d at 32, we nonetheless hold that we have jurisdiction to review a trial court’s order denying a motion filed pursuant to section 921.186 where the defendant alleges, as McFadden has here, that the trial court misapplied the statute. See United States v. Manella, 86 F.3d 201, 203 (11th Cir.1996) (holding that although the lower court’s decision to grant or deny the government’s motion to reduce the defendant’s sentence for providing substantial assistance “is a discretionary one from which an appeal generally will not lie,” the appellate court’s exercise of jurisdiction to review the order is proper where the defendant has alleged a misapplication of the law).

To the extent that Cooper holds that an order denying a motion filed pursuant to section 921.186 is never appealable, we certify conflict.

Affirmed; conflict certified.

DAVIS, C.J., and ALTENBERND, J., Concur.