source: Caselaw Access Project

author: PER CURIAM.

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text:
    Cary Michael LAMBRIX, Appellant, v. STATE of Florida, Appellee. Cary Michael Lambrix, Petitioner, v. State of Florida, Respondent. Cary Michael Lambrix, Appellant, v. State of Florida, Appellee.
    Nos. SC10-1845, SC11-1845, SC12-6.
    Supreme Court of Florida.
    June 27, 2013.
    Rehearing Denied Oct. 17, 2013.

      William M. Hennis III, Litigation Director, Capital Collateral Regional Counsel-South, and Craig J. Trocino and Neal Andre Dupree, Assistant Capital Collateral Regional Counsels, Ft. Lauderdale, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

We have consolidated all of Cary Michael Lambrix’s pending cases before this Court for the purposes of this opinion. The current proceedings involve the summary denial of Lambrix’s fourth successive motion for postconviction relief (SC10-1845) and the summary denial of his fifth successive motion for postconviction relief (SC12-6), both filed on the basis of newly discovered evidence. In addition, Lambrix filed a separate petition for a writ of prohibition, challenging the postconviction court’s denial of his motion to disqualify the judge (SC11-1845).

We conclude that both Lambrix’s fourth and fifth successive motions for postconviction relief are completely devoid of merit, as is his separate petition for a writ of prohibition. Further, as to Lambrix’s specific claim that the postconviction court abused its discretion in not allowing him to proceed without a lawyer, Lambrix’s pattern of conduct in postconviction proceedings alone demonstrates why Lambrix’s request for self-representation was properly denied.

FACTS AND PROCEDURAL HISTORY

As we recognized when reviewing the denial of relief as to Lambrix’s third successive postconviction motion, “[t]his death case, which has been in the judicial system for a substantial period of time, has a lengthy procedural history.” Lambrix v. State, 39 So.3d 260, 262 (Fla.2010). With these most recent filings, we observe that the lengthy procedural history is in part due to the continued attempts by Lambrix to file pleadings both with the postconviction court and with this Court that do not establish any viable claim pertaining to his guilt or the validity of the death penalty imposed, and his failure to provide any facts that would undermine confidence in the outcome of either the guilt or penalty phase of his trial.

Cary Michael Lambrix was convicted of two counts of first-degree murder and was sentenced to death for the 1983 murders of Clarence Moore and Aleisha Bryant, and we affirmed Lambrix’s convictions and sentences of death in 1986. Lambrix v. State, 494 So.2d 1143, 1148 (Fla.1986). In our latest opinion denying Lambrix post-conviction relief, we detailed Lambrix’s extensive history of successive postconviction motions, all of which have been rejected as lacking in merit. See Lambrix, 39 So.3d at 264-65. In addition, up to the present, Lambrix has filed numerous extraordinary writ petitions, both through counsel and pro se, which this Court has either denied or dismissed. See, e.g., Lambrix v. State, No. SC10-1517, 2011 WL 2440379 (Fla. June 16, 2011) (unpublished order denying petition for writ of mandamus or prohibition); Lambrix v. State, 944 So.2d 345 (Fla.2006) (dismissing petition for writ of mandamus); Lambrix v. State, 900 So.2d 553 (Fla.2005) (dismissing petition for writ of mandamus); Lambrix v. State, 766 So.2d 221 (Fla.2000) (dismissing petition for writ of mandamus as moot); Lambrix v. State, 727 So.2d 907 (Fla.1998) (denying petition for writ of prohibition); Lambrix v. Reese, 705 So.2d 902 (Fla.1998) (denying petition for writ of mandamus).

Not only has Lambrix initiated numerous successive postconviction proceedings and petitions for extraordinary relief in this Court, but he has also filed successive petitions for a writ of habeas corpus in the federal courts. In 2010, the Eleventh Circuit Court of Appeals held that Lambrix failed to make a prima facie showing for filing his second federal habeas petition because he failed to show that the underlying factual predicate for any of the twelve claims presented in that proceeding could not have been discovered earlier through due diligence. In re Lambrix, 624 F.3d 1355, 1368 (11th Cir.2010).

Turning to the current proceedings, Lambrix has three cases currently pending before this Court. In case number SC10-1845, Lambrix’s appeal from the denial of his fourth successive motion for postcon-viction relief asserts that he is entitled to relief because two hairs on the murder weapon, which was wrapped in a shirt, are consistent with a key State witness, who helped him dispose of the bodies and the weapon. In case number SC12-6, the appeal of the denial of his fifth successive motion for postconviction relief that was also filed on the basis of newly discovered evidence, Lambrix contends that he recently discovered the whereabouts of his ex-wife, who could testify in greater detail regarding an injury that Lambrix suffered while he was in the army’s basic training, and that the effect of this injury should have been discussed in greater detail during his penalty phase. Finally, in case number SCI1-1845, Lambrix filed a separate petition for a writ of prohibition, challenging the postconviction court’s denial of his motion to disqualify the judge — a claim that is also raised on appeal from the denial of his fourth and fifth successive motions for postconviction relief in both case number SC10-1845 and case number SC12-6. We address each proceeding separately below, concluding that all of these proceedings are utterly without merit.

ANALYSIS

SC10-1845: Fourth Successive Postconviction Proceeding

In the appeal of the posteonvietion court’s denial of his fourth successive motion for postconviction relief, case number SC10-1845, Lambrix asserts that his private investigator discovered new records belonging to the Florida Department of Law Enforcement (FDLE) and that information within these records appears to demonstrate that there were two hairs found on the murder weapon that may match Frances Smith — a key State witness who was at the general location when the murders occurred and who helped to bury the bodies and hide the murder weapon (a tire iron). According to Lambrix, if the only biological materials found on the tire iron belong to Smith, this supports his theory raised in prior postconviction proceedings that Smith was involved in a sexual affair with State Attorney Investigator Bob Daniels and helped to fabricate the murder weapon. Specifically, Lambrix raises the following claims: (1) he should be entitled to DNA testing of these hairs; (2) he is entitled to relief based on the newly discovered lab notes from the FDLE and evidence pertaining to the hairs and the shirt that were found with the murder weapon; and (3) the State committed a Brady/Giglio violation when it failed to provide a complete set of FDLE lab notes and records to Lambrix. Lambrix also asserts that he was denied the opportunity to proceed pro se during the postconviction proceedings before the postconviction court, despite the fact that the court found him to be competent; that the judge erred in denying his motion to disqualify; and that section 119.19, Florida Statutes (2012), and Florida Rule of Criminal Procedure 8.852 are unconstitutional.

As to the substance of the allegations, Lambrix attempts to resurrect his allegations from prior postconviction proceedings that there was a conspiracy against him because the State’s main witness, Frances Smith, allegedly had a one-time sexual encounter with the State’s investigator at some point. Lambrix now claims that the two conspired to fabricate evidence for trial. However, he fails to recognize that this Court already rejected his allegation that an affair occurred and concluded that, even if it had occurred, no prejudice was established because, based on the testimony presented at prior post-conviction proceedings, the alleged incident occurred during Lambrix’s second trial and Smith’s testimony at the second trial was substantially similar to testimony that she had previously given. Lambrix, 39 So.3d at 269-70. In addition, this Court further detailed the significant evidence against Lambrix, including his own testimony during an evidentiary hearing where even Lambrix acknowledged that he was present and had “struck one of the victims using a tire iron, although he denied that he intended to kill either victim.”' Id. at 273.

In the first claim we address on appeal, Lambrix seeks DNA testing on the hairs pursuant to Florida Rule of Criminal Procedure 3.853. The postcon-viction court denied this request, finding that Lambrix’s allegations were facially or legally insufficient because “he has failed to demonstrate how testing the hair[s] would exonerate him or mitigate his sentence,” particularly since Lambrix asserted he acted in self-defense and his theory of the hairs did not disprove any theory in this case. We review this ruling de novo. See Van Poyck v. State, 961 So.2d 220, 224 (Fla.2007).

In reviewing the postconviction court’s denial of the request in light of Lambrix’s allegations, we affirm the denial of relief. As this Court has recognized, “[i]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or -will mitigate the defendant’s sentence.” Scott v. State, 46 So.3d 529, 533 (Fla.2009) (quoting Robinson v. State, 865 So.2d 1259, 1265 (Fla.2004)). Lambrix has completely failed to explain how finding Smith’s hair on the murder weapon would help exonerate him or even cast Smith’s testimony into doubt. Smith was at the murder scene after the murders occurred. According to her trial testimony, Lambrix was carrying the tire iron when he returned to the trailer alone and admitted to Smith that he killed both Bryant and Moore. Smith then helped to dispose of the bodies and the weapon. Thus, it would not be unexpected that her hairs could also be on the weapon, as she was present at the scene and helped to hide the weapon. As this Court has previously held, a trial court does not err in denying a motion for DNA testing where the defendant cannot show that there is a reasonable probability that the absence or presence of DNA at a crime scene would exonerate him or lessen his sentence. Scott, 46 So.3d at 533. Accordingly, we deny this claim.

In his second claim, Lambrix asserts that the postconviction court erred in denying his newly discovered evidence claim regarding the FDLE notes and evidence pertaining to the hairs and the shirt that were found with the murder weapon. We disagree because this evidence does not meet the test for newly discovered evidence.

To set aside a conviction based on newly discovered evidence, the defendant must show the following: (1) the asserted facts “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence”; and (2) the newly discovered evidence “must be of such nature that it would probably produce an acquittal on retrial.” Wyatt v. State, 78 So.3d 512, 523 (Fla.2011) (quoting Jones v. State, 709 So.2d 512, 521 (Fla.1998)). In reviewing the record and Lam-brix’s allegations, we conclude that Lam-brix has failed to show that this evidence would probably produce an acquittal or would mitigate his sentence. Lambrix’s identity was never genuinely disputed in this case since Lambrix admitted that he was present at the murder scene and asserted that he merely acted in self-defense. As the postconviction court aptly recognized, establishing that the hairs came from someone else does not disprove any theory in this case “because it is impossible to establish when or how the hairs may have become attached to the murder weapon or the t-shirt it was wrapped in.” Lam-brix is therefore not entitled to relief on this claim.

In his third claim, Lambrix contends that the State violated Brady and Giglio by failing to disclose certain FDLE documents pertaining to these hairs. The postconviction court denied relief. We affirm the denial because Lambrix has completely failed to allege how any of the three Brady prongs have been met, including how the documents could constitute favorable evidence in any manner. Likewise, he has also failed to allege how the facts he points to would constitute a Giglio violation. Because Lambrix’s claims as to both a Brady violation and a Giglio violation rely entirely on speculation and conjecture, we deny relief.

We now address in turn the two other issues raised in Lambrix’s appeal of the denial of his fourth successive motion for postconviction relief. Initially, Lambrix challenges the denial of his motion to disqualify the postconviction judge, alleging that a staff attorney who worked for the Twentieth Judicial Circuit Court represented Lambrix at some time in the past. Because of the nature of these allegations, we remanded the case for an evidentiary hearing, which was held.

We reject Lambrix’s argument that the postconviction court was obligated to accept the truth of the allegations, as we already determined that the trial judge in this case was a successor judge. In reviewing an order denying a successive motion to disqualify, this Court evaluates “whether the record clearly refutes the successor judge’s decision to deny the motion.” Kokal v. State, 901 So.2d 766, 774 (Fla.2005) (quoting Pinfield v. State, 710 So.2d 201, 202 (Fla. 5th DCA1998)).

The allegations against the postconviction judge arose out of the claim that one of the staff attorneys working, for the Twentieth Judicial Circuit Court had previously assisted Lambrix on his case. At the evidentiary hearing, however, Lambrix failed to present any evidence that the staff attorney in question ever assisted Lambrix in challenging his criminal convictions. At the most, the evidence established that the staff attorney may have attempted to solicit general legal work outside of her employment with the Twentieth Judicial Circuit Court and may have answered a general inquiry about how an inmate could obtain cholesterol medication in the prison system.

After listening to the testimony and evaluating the credibility of the witnesses, the postconviction court stated as follows:

The significant concerns raised by the Defendant’s allegations regarding the Staff Attorney are refuted or unsupported by the evidence and testimony presented at the evidentiary hearing. Although third parties alleged to have been indirectly working on the Defendant’s behalf, namely Hickey and Pa-velchak, suggest that the Staff Attorney provided legal advice for which she was paid, these allegations were refuted by the testimony of the Staff Attorney.
A persistent theme throughout the Defendant’s motion is the allegation that the Staff Attorney identified during the May 2010 case management conference previously worked for or served as an Assistant State Attorney. The only evidence offered on this issue was the un-controverted testimony of the Staff Attorney unequivocally stating that she never worked for the State Attorney’s Office. Accordingly, this alleged definitive fact extensively relied upon by Defendant in support of his motion is unfounded.
Even though the Defendant alleges in his motion that the Staff Attorney had conducted certain investigations into his case, the testimony of Pavelchak suggests, at most, only an inquiry into a limited issue unrelated to the Defendant’s criminal case, namely an issue that the Defendant was having with the DOC regarding the administration of his cholesterol medication. Notably, Defense Exhibit 2 reflects only that which appears to be a cursory response to a procedural question as to how to compel the DOC to provide an unidentified inmate with medication. Pavelchak testified that she sent a $20.00 money order to the Staff Attorney, but, even though the Defendant represents in his motion that he can produce copies of money receipts, no such money receipts were presented nor offered into evidence.
The Staff Attorney testified that she did not recognize the e-mails reflected in Defense Exhibits 1 or 2 and never received a money order from Pavelchak. The Staff Attorney further affirmatively testified that she had never worked for the Defendant, had never taken any legal work on behalf of the Defendant, and had never been contacted by anyone asking her to work on the Defendant’s case.

The court then found that the claim regarding the staff attorney for the Twentieth Judicial Circuit Court was unsupported.

We affirm the postconviction court’s denial of the motion, as the record does not clearly refute the successor judge’s decision to deny the motion. See Kokal, 901 So.2d at 774. Moreover, even if the e-mails are taken as accurate, the emails themselves do not establish that the staff attorney was working on or had ever worked on Lambrix’s criminal case. Therefore, these e-mails would not mandate that a judge working at the same circuit court would need to disqualify herself from the case. Thus, Lambrix is not entitled to relief on this claim.

In the last issue on appeal pertaining to the fourth successive postconviction motion, Lambrix claims that the postconviction court erred in denying his request to represent himself. We disagree and affirm that denial as well. Lambrix initially filed a pro se motion to have his counsel discharged in 2009, well over a decade after his initial postconviction motion was denied. A hearing was held on July 31, 2009, where Lambrix presented detailed complaints to Judge Thomas Corbin, alleging that his CCRC-appointed counsel was ineffective during the investigation relating to the newly discovered FDLE lab documents and failed to file certain claims in a timely manner after discovering them. At the time, Lambrix asserted that he was seeking the appointment of alternative counsel and had “no intention of waiving the statutory right to postconviction counsel before the proceedings in the lower court.” Judge Corbin denied the motion in open court, finding that CCRC was rendering competent representation and that there was no basis to discharge counsel. On September 1, 2009, Lambrix filed a pro se motion to disqualify Judge Cor-bin, which was denied, and on October 7, 2009,. the Chief Judge of the Twentieth Judicial Circuit removed Judge Corbin and reassigned the case to Judge Christine Greider, who is the current postconviction judge presiding.

In September 2009, Lambrix filed a civil complaint under 42 U.S.C. § 1983 against numerous individuals, including CCRC, the Clerk of the Florida Supreme Court, and then-Chief Justice Quince. In this pleading, he alleged in part that his counsel was involved in a conspiracy against him in an effort to obstruct his constitutional rights. Defense counsel filed a motion to withdraw from representing Lambrix in ongoing postconviction proceedings, stating that based on Lambrix’s pro se civil complaint, he had a conflict of interest. Lambrix filed a pro se motion, seeking the right to waive postconviction counsel and represent himself. The court held a hearing, with Lambrix appearing telephonically. During the hearing, Lambrix stated that he wanted to represent himself, that he understood the consequences, and that he had no mental or physical disabilities that would hinder him from representing himself. When he was asked whether he understood that if he waived postconviction counsel, it was not guaranteed that post-conviction counsel would be reappointed later, Lambrix asserted that he understood this and discussed opinions from this Court in detail regarding his right to represent himself. He stated as follows:

I just want, I think that needs to be clear, because in the event that a death warrant is signed in the future on me, or in the event that circumstances that I’m not aware of today develop to the point that I can no longer adequately pursue these postconviction claims, then they [sic] will be my intent to assert my right to post-conviction representation.

(Emphasis added.) At the time of that hearing, Lambrix did not appear to have competency issues.

The postconviction court subsequently denied Lambrix’s request to discharge counsel and proceed without legal representation. We conclude that the postconviction court did not abuse its discretion in denying Lambrix’s right to represent himself.

Lambrix possesses no constitutional right to proceed unrepresented at this stage of the postconviction proceedings. While a defendant has a constitutional right to self-representation and self-determination at trial, these rights do not continue to the same degree after the conviction. As the United States Supreme Court clarified in Martinez v. Court of Appeal of California, 528 U.S. 152, 154, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), a convicted defendant does not have a federal constitutional right of self-representation on an initial appeal of right. In other words, a defendant’s federal constitutional right to self-representation ends when he or she has been convicted. Likewise, after the conviction is affirmed on direct appeal, a defendant’s right to self-determination must be balanced with this Court’s obligations to ensure reliability, fairness, and uniformity in the imposition of the death penalty. See generally Muhammad v. State, 782 So.2d 343, 364 (Fla.2001).

We emphasize that a defendant continues to have a right to self-determination during postconviction pro-ceedings, and this Court will not force counsel on a defendant who does not seek to challenge his or her convictions after the convictions have been affirmed, so long as the defendant is competent to make that decision and the waiver is knowing and voluntary. James v. State, 974 So.2d 365, 367 (Fla.2008); Durocher v. Singletary, 623 So.2d 482, 484-85 (Fla.1993). Any right of self-determination and self-representation during postconviction proceedings, however, does not outweigh this Court’s solemn duty to ensure that the death penalty is imposed in a fair, consistent, and reliable manner, and to guarantee this Court’s administrative responsibility to minimize delays in the postconviction process. See Gordon v. State, 75 So.3d 200, 203 (Fla.2011) (holding that based on these policy considerations, death-sentenced appellants may not appear pro se when appealing the denial of relief in post-conviction proceedings). In addition, a defendant does not have the right to disrupt the judicial system, frustrate the administration of justice, or prevent his or her case from being litigated. See, e.g., McCray v. State, 71 So.3d 848, 868 (Fla.2011) (“[T]he trial court has the power to terminate a defendant’s self-representation if he continues to abuse the court system.”), cert. denied, — U.S. -, 132 S.Ct. 1743, 182 L.Ed.2d 536 (2012).

At this point, Lambrix appears to have exhausted all permissible legal remedies in his case. Specifically, counsel has filed (or adopted) five successive motions for post-conviction relief, as well as numerous motions for habeas relief — both at the state and federal level — and numerous original writs. Permitting Lambrix to waive counsel now, especially when he specifically stated that he would like the opportunity for counsel if a death warrant is signed in the future, would only create delays at the point when a death warrant is signed, as counsel would then need to be appointed and to have an opportunity to become familiar with the case. Further, the only purpose in allowing Lambrix to proceed pro se at this time would be to give him further ability to continue to file pleadings that to date have consistently lacked merit. At least with counsel to represent him, there will be the requirement that counsel has a good faith belief that the allegations are not completely devoid of merit. See generally R. Reg. Fla. Bar 4-3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”). Thus, any right to self-representation Lambrix may have does not outweigh the risk of substantial interference with the administration of the death penalty presented in this case.

Accordingly, for all these reasons, we affirm the denial of Lambrix’s motion to proceed pro se and conclude that the post-conviction court did not err in denying Lambrix’s fourth successive motion for postconviction relief in full.

SC12-6: Fifth Successive Postconviction Proceeding

As to Lambrix’s fifth successive motion for postconviction relief, which the post-conviction court summarily denied, we likewise affirm this denial of relief. This successive motion addresses additional mitigation that Lambrix asserts he was unable to present during the penalty phase of his trial. Specifically, Lambrix argues that he is entitled to relief because he recently was able to locate his ex-wife, who allegedly made herself deliberately unavailable until now, and she has prepared an affidavit discussing the injury that Lambrix suffered during the army’s basic training, which caused him debilitating pain and led him to self-medicate by turning to alcohol and illicit drugs. In addition, Lambrix presented a decision by the Board of Veterans’ Appeals and -a report by privately retained defense expert Dr. Thomas M. Hyde.

Lambrix argues that this “newly discovered evidence” establishes that he is “an honorably discharged military veteran who has suffered a substantial physical injury and resulting disability while serving his country in the United States Army.” He believes that if the jury had' heard the information about his injury and how the effects of the chronic pain from that injury led him to substance abuse, it would have compelled the jury to recommend a life sentence, thereby rendering his death sentence disproportionate. In support, Lam-brix relies on Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), contending that this case stands' for the premise that the failure to allow a jury to hear evidence of a physical disability sustained during military service renders the sentence constitutionally unreliable.

We conclude that Lambrix is not entitled to relief. As this is a successive post-conviction motion filed more than one year after the convictions and sentences became final, in order for this newly discovered evidence claim to be reviewed on the merits, Lambrix must show that the new evidence was not known to himself or his attorney and “could not have been ascertained by the exercise of due diligence.” See Fla. R.Crim. P. 3.851(d)(2)(A). “To'be considered timely filed as newly discovered evidence, the successive rule 3.851 motion was required to have been filed within one year of the date • upon which the claim became discoverable through due diligence.” Jimenez v. State, 997 So.2d 1056, 1064 (Fla.2008).

In this case, in both his fifth successive postconviction motion before the postcon-viction court and in his briefing before this Court, Lambrix acknowledges that he and his trial counsel knew of Lambrix’s injury. Yet, he asserts that he was unable to raise the claim until now because his “trial counsel simply did not have available the evidence that would have established this substantial mitigation.” Lambrix recognizes in this successive motion that he knew about the underlying facts of- this claim all along and that “Lambrix himself could have provided testimony concerning the extent of his military injury and the resulting disability, including a description of how the chronic physical pain from the injury resulted in a substantial escalation in self-medication and chronic substance abuse.” However, he contends that “he was prevented from [testifying] by actions of the trial court and trial counsel.” Lam-brix acknowledges that he actually raised this issue previously, both in state and federal postconviction challenges, but that his claim has been denied.

Specifically, in prior litigation, Lambrix asserted that during the guilt phase of his first trial, his counsel told the trial judge to inform Lambrix that if Lambrix chose to testify in his own defense during the guilt phase, his counsel would withdraw and the court would not appoint new counsel for Lambrix. Thus, Lambrix- contends that he was denied his fundamental right to testify. The Eleventh Circuit rejected this claim, stating as follows:

Lambrix argues that he was denied the fundamental right to testify on his own behalf because his counsel and the judge coerced him into choosing between his right to testify and his right to counsel. The evidence which Lambrix presents on this issue relates only to events which occurred during his first trial. Even if we concluded that Lambrix was denied his right to testify during his first trial, the appropriate remedy would be to grant a new trial. Therefore, because Lambrix has already received a second trial, this issue is moot.

Lambrix v. Singletary, 72 F.3d 1500, 1508 (11th Cir.1996) (citations omitted). The Eleventh Circuit noted that there was no evidence at all regarding any person who prevented Lambrix from testifying during the second trial, which occurred two months after his first trial ended in a hung jury. Id. Moreover, to the extent that Lambrix’s counsel advised Lambrix against testifying in the first trial, this advice pertained only to Lambrix’s testimony concerning the guilt phase (at the first trial only), where Lambrix sought to tell the jury his version of how the victims died.

In other words, the claim that Lambrix was prevented from testifying at trial has been litigated and denied. Even if Lam-brix believed that he could not testify during the penalty phase at his second trial, this does not explain why he failed to present this claim in his initial postconviction motion. Lambrix clearly had the necessary knowledge pertaining to this claim, but failed to raise it at all, until his current attempt to resurrect this procedurally barred claim by pointing to a new witness he contends that he did not discover until now. In addition, he presents a decision by the Board of Veterans’ Appeals and an expert who could testify regarding his injury. Since Lambrix and his counsel knew of the injury at trial, they could have at any time hired the expert now retained to support Lambrix’s assertion.

In sum, this claim is clearly time-barred. Lambrix is attempting to raise the claim now, asserting that he has just found a new witness who would have helped present additional testimony on this claim. In addition, he attempts to argue it in conjunction with other claims that he previously argued, including that he was prohibited from testifying at trial and his prior claim that his counsel was ineffective in not presenting evidence pertaining to his addiction and alcoholism. As this Court has repeatedly held, a defendant may not raise claims of ineffective assistance of counsel on a piecemeal basis by filing successive motions. See, e.g., Jones v. State, 591 So.2d 911, 913 (Fla.1991).

Further, the claim is completely lacking in merit as a newly discovered evidence claim because there is no probability that if this evidence had been introduced, it would have resulted in a life sentence. As the postconviction court observed:

Of the specific evidence Defendant mentions, none would result in acquittal or a lesser sentence. Even had the additional details relating to Defendant’s injury been presented at trial, and even had Ms. Martin testified, such information would have no reasonable likelihood of changing the outcome of the trial. That Defendant suffered a back injury during basic training and chose to abuse drugs and alcohol in self medication for his pain would not change the outcome, as there was sufficient evidence that Defendant committed the two murders for the jury to find Defendant guilty and to recommend the death penalty, and such additional mitigating evidence would not have outweighed the aggravating factors. The Florida Supreme Court found that “We do not believe the introduction of the proffered testimony concerning Lambrix’s alcoholism would probably have resulted in life imprisonment rather than a sentence of death.” Lambrix v. State, 534 So.2d 1151, 1154 (Fla.1998[1988]). The Eleventh Circuit also found trial counsel’s strategy of downplaying Defendant’s substance abuse in order to focus on good character was reasonable. Lambrix v. Singletary, 72 F.3d 1500, 1504 (11th Cir.1996). Defendant presented evidence regarding his substance abuse during trial and during postconviction proceedings, and was not found to be sufficiently mitigating so as to outweigh the aggravating circumstances. Evidence regarding the background of Defendant’s drug and alcohol abuse, that they resulted from, or were exacerbated by, the back injury during his uncompleted basic training, would not ... increase the weight of that mitigation so as to outweigh the aggravating factors. Such information, if introduced at a new trial, would not be likely to result in a lesser sentence. Defendant has failed to meet either requirement for a claim that his conviction and sentence should be set aside because of newly discovered evidence. As the information is not newly discovered evidence, the current motion is untimely. Further, since this information was already presented, although not with the thoroughness Defendant now wishes, this motion is successive and procedurally barred. Aldridge v. State, 503 So.2d 1257, 1258 (Fla.1987); Buenoano v. State, 708 So.2d 941, 951 n. 8 (Fla.1998); Grossman v. State, 29 So.3d 1034, 1042 (Fla.2010); Jennings v. State, 782 So.2d 853, 860 (Fla.2001).

While Lambrix attempts to rely on Porter, 558 U.S. at 33-36,130 S.Ct. 447 this case is not remotely similar to that case, in which Porter’s counsel failed to discover or present evidence that Porter endured significant child abuse on a weekly basis, enlisted in the army to escape the abuse, and was involved in two major “horrifying” engagements during the Korean War, where he was both wounded and decorated for his active participation. Porter’s combat service unfortunately left him a traumatized, changed man. Id. In contrast, in this case, during basic training, Lambrix fell down a flight of stairs and was honorably discharged. Accordingly, we affirm the denial of relief.

SC11-1845: Petition for Writ of Prohibition

As to the petition for a writ of prohibition, case number SC11-1845, challenging the denial of his motion to disqualify, Lam-brix’s motion was based on the same allegations we previously discussed regarding the Twentieth Judicial Circuit Court’s staff attorney, as well as on rulings that Judge Greider made in the course of presiding over this case and on the fact that Judge Greider was a long-time assistant state attorney. To the extent that Lambrix asserts that Judge Greider erred in denying the motion to disqualify based on the claim that the staff attorney was involved with Lambrix’s prior legal cases, this claim has already been addressed and rejected in our discussion of case number SC10-1845 and, for the reasons addressed in that part of our analysis, this claim is without merit.

In addition, Lambrix asserts that Judge Greider ruled in an adverse manner with regard to his motion to discharge counsel and represent himself and that she improperly denied his motion for DNA testing. As this Court has repeatedly held, “[t]he fact that a judge has previously made adverse rulings is not an adequate ground for recusal.” Mansfield v. State, 911 So.2d 1160, 1171 (Fla.2005) (quoting Jackson v. State, 599 So.2d 103, 107 (Fla.1992)). Finally, Lambrix asserts as a basis for disqualification that Judge Greider previously worked as an assistant state attorney. This Court has expressly rejected the claim, however, that a judge’s “former employment as a prosecutor [i]s legally sufficient for disqualification.” Arbelaez v. State, 775 So.2d 909, 916 (Fla.2000). Thus, we deny the petition for a writ of prohibition.

CONCLUSION

Based on the above analysis, we affirm the summary denial of Lambrix’s fourth successive motion for postconviction relief (SC10-1845), affirm the summary denial of his fifth successive motion for postconviction relief (SC12-6), and deny the petition for a writ of prohibition challenging the postconviction court’s denial of his motion to disqualify (SC11-1845).

It is so ordered.

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

QUINCE, J., is recused.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . As this Court has consistently upheld the constitutionality of section 119.19 and rule 3.852, we deny Lambrix’s constitutional challenge to section 119.19 and rule 3.852 without further discussion. See, e.g., Wyatt v. State, 71 So.3d 86, 111 (Fla.2011) (denying claim that these provisions unconstitutionally restrict a defendant’s right to public-records access because they impermissibly mandate that his demand for public records not be "overly broad or unduly burdensome” and that he make his own search for records).

      . Upon initial review of these allegations, this Court relinquished jurisdiction, stating as follows:
      In his motion, among other claims, [Lam-brix] alleged that on May 27, 2010, Lambrix learned that the staff attorney who was personally participating in the case, had previously been hired by Lambrix to conduct certain investigations in Lambrix's case and that she had received monetary payment in exchange for information and legal advice that she gave to him. CCRC subsequently adopted the motion. The judge denied this motion as being untimely, and that even if the court had treated it as a new motion to disqualify, it would be legally insufficient.
      The allegations in the motion, if true, raise significant concerns. Therefore, upon review of the assertions contained in the motion to disqualify, the Court has determined that it should relinquish jurisdiction in this case for further consideration. Pursuant to Florida Rule of Judicial Administration 2.330(g), "a successor judge may rule on the truth of the facts alleged in support of the motion.”
      Accordingly, we hereby temporarily relinquish jurisdiction to the lower tribunal for thirty days for the‘narrow purpose of addressing the motion to disqualify.

        Lambrix v. State, No. SC10-1845, Order at 1 (Fla. Sup.Ct. order filed Jan. 4, 2012). Justice Canady dissented from this order and would have denied the motion as untimely.

      . Although Lambrix did not appear to have any competency issues at the time of the hearing, he appears to have since been consumed by thoughts of wide-reaching conspiracy and has filed many more pro se pleadings to this effect. In case number SC 10-1845 alone, Lambrix has filed the following pro se pleadings: (1) pro se motion to stay proceedings pending this Court’s disposition of pending petition for writ of mandamus/prohibition: (2) pro se renewed motion to unequivocally waive postconviction representation as a means of discharging incompetent collateral counsel acting under substantial conflict of interest; and (3) pro se motion to compel court to monitor performance of counsel in capital case in which appellant previously asserted and unequivocally waived collateral representation under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). His counsel now alleges that competency may be an issue in this case and requested the Court to remand for competency proceedings, if Lambrix is permitted to waive counsel.

      . Lambrix also contends that the postconviction court erred in denying his motion to disqualify the judge, asserting the same issue pertaining to the staff attorney, which we already addressed above. As this claim is meritless, we hold that Lambrix is not entitled to relief for the reasons we have already detailed.


text:
    James Phillip BARNES, Appellant, v. STATE of Florida, Appellee.
    No. SC12-875.
    Supreme Court of Florida.
    June 27, 2013.
    As Revised on Denial of Rehearing Oct. 17, 2013.

      Ali Andrew Shakoor, Capital Collateral Regional Counsel-Middle Region, and Richard E. Kiley and James Viggiano, Assistant Capital Collateral Counsels, Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnel-ley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

James Phillip Barnes, a prisoner under sentence of death, appeals the order of the circuit court denying his initial motion to vacate his conviction for first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction under article V, section 3(b)(1), Florida Constitution. For the reasons expressed below, we affirm the circuit court’s denial of postconviction relief.

BACKGROUND AND FACTS

Barnes was convicted of the 1988 first-degree murder of Patsy Miller in Melbourne, Florida. He was not arrested for that murder and other related charges until some years later when, while in prison for another murder, he confessed to the Miller murder. He subsequently waived counsel and, with standby counsel, entered a guilty plea to all the charges. After Barnes waived mitigation and waived a penalty phase jury, the trial court appointed court counsel to investigate and present mitigation. After the penalty phase, Barnes was sentenced to death and to terms of imprisonment for the related charges of burglary of a dwelling with an assault or battery, two counts of sexual battery by use or threat of a deadly weapon, and arson of a dwelling. This Court affirmed his convictions and sentence in Barnes v. State, 29 So.3d 1010 (Fla.), cert. denied, — U.S.-, 131 S.Ct. 234, 178 L.Ed.2d 155 (2010).

The facts of the murder, based upon Barnes’ written and tape-recorded statements and upon the forensic evidence at the penalty phase, show that on the night of April 20, 1988, Barnes went to Miller’s condominium unit in Melbourne, Florida. Once there, he took off his clothes and entered ■ the apartment after removing a window screen. Barnes admitted that he went there with the intent to both rape and kill Miller. Once inside, Barnes armed himself with a knife and, after secretly watching Miller go about her normal activities for a short period of time, confronted her and forced her at knife-point to the bedroom where he sexually battered her. He then bound her hands behind her back with shoelaces, tied her feet together, and sexually battered.her again. .Barnes admitted that he tried to strangle her with a terrycloth belt but was not successful, so he bludgeoned her in the back of her head with a hammer that he found in her bedroom.

After taking a bank card from Miller’s wallet and collecting everything he touched, Barnes then set fire to the bed where Miller’s body lay. Shortly after 11 p.m., firefighters responded and found Miller’s burned body face down on the bed with her hands bound behind her back. The medical examiner testified that the cause of death was blunt-force trauma from multiple blows to Miller’s head. Signs of attempted strangulation, including a fractured hyoid bone, were also discovered in the autopsy. The medical examiner determined that Miller’s body was set ablaze after she died.

After Barnes confessed, an indictment was issued charging him with first-degree murder, burglary of a dwelling with an assault or battery, two counts of sexual battery by use or threat of a deadly weapon, and arson of a dwelling. Barnes immediately sought to waive counsel and a Faretta hearing was held. He then represented himself throughout the proceedings with standby counsel available at all times. Immediately after the first of many Faretta hearings, Barnes entered an open plea of guilty and waived a sentencing jury. The trial court ordered a pre-sentence investigation (PSI) report and also ordered that Barnes’ school records be obtained. In addition, the court appointed Dr. William Riebsame, a board-certified forensic psychologist, to provide a psychological evaluation of Barnes.

After presentation of aggravating circumstances at the penalty-phase Spencer hearing, Barnes refused to present any evidence of mitigation and announced that he would rely only on the fact that he came forward and took responsibility for the murder. Over Barnes’ objection, the court appointed special mitigation counsel to investigate and present any mitigation at a second Spencer hearing. After mitigation was presented, the sentencing order was entered on December 13, 2007, finding that the six aggravating factors outweighed the one statutory mitigator and nine nonstatutory mitigators. The court imposed a death sentence for the murder, separate life sentences for each of the burglary with battery and sexual battery counts, and a thirty-year sentence for the arson.

Barnes raised two issues on direct appeal: (1) whether the trial court violated Barnes’ Sixth Amendment right to represent himself when it appointed special court counsel to develop penalty-phase mitigation; and (2) whether the trial court reversibly erred in considering the PSI report over Barnes’ objection that it contravened his constitutional right to confront witnesses against him. We held that the trial court did not violate Barnes’ right of self-representation by appointing special court counsel to investigate and present mitigation, which was a proper procedure under Muhammad v. State, 782 So.2d 343, 364 (Fla.2001) (holding that where a defendant waives mitigation, the trial court has discretion to appoint counsel to present mitigation). Barms, 29 So.3d at 1023. We also held that Barnes’ claims concerning the PSI were procedurally barred and without merit. Id. at 1026.

Barnes filed his initial motion for post-conviction relief on September 21, 2011, raising two claims, both of which were summarily denied: (1) whether his standby counsel or the trial court sua sponte should have ordered a competency hearing before allowing him to plead guilty, and (2) whether he may be insane at the time of execution. After a Huff hearing, the circuit court summarily denied Barnes’ claims. In its order entered on January 23, 2012, the circuit court set forth the facts of the case and then concluded in pertinent part as follows:

b.The Defendant represented himself pro se throughout the guilt and penalty phases in this case in which he was charged with Ms. Miller’s murder. The Honorable Judge Lisa Davidson presided over the guilt and penalty phases in this case. Judge Davidson appointed the Office of the Public Defender as standby counsel. Assistant Public Defender Phyllis Riewe'served as standby counsel for the Defendant during the guilt phase and Assistant Public Defender Randy Moore served as standby counsel for the Defendant during the penalty phase.
c. On May 2, 2006, the Defendant entered an “open” plea of guilty to the charged crimes of first-degree premeditated murder (Count I)....
d. On May 2, 2006, the Defendant waived his right to a jury recommendation and requested that the Court proceed to sentencing without the benefit of the jury’s recommendation as to the imposition of life or death on Count I— First Degree Premeditated Murder. Judge Davidson found that the Defendant knowingly, freely, and voluntarily chose to forego a jury for the penalty phase. The Defendant explained that he was making a strategic decision to have a judge alone determine his sentence. (See Exhibit “A,” pgs. 45, 53).
e. The Defendant represented himself pro se at the sentencing hearing and specifically chose not to present mitigating evidence or argument at the penalty phase, other than the fact thát he came forward and took responsibility....
g. On May 11, 2006, Judge Davidson ordered that a comprehensive pre-sen-tence investigation (PSI) be conducted, and on February 7, 2007, Judge Davidson appointed attorney Sam Baxter Bardwell as special mitigation counsel to investigate and present any other mitigation evidence because the Defendant refused to present any mitigating evidence on his behalf other than that evidence already placed on the record....
h. On November 16, 2007, the Court held a hearing at which Mr. Bardwell presented alleged mitigating evidence to the Court....
1. On January 12, 2012, the case management conference was held before the undersigned judge. The purpose of a case management conference was to hear argument on purely legal claims not based on disputed facts and to schedule an evidentiary hearing on claims requiring a factual determination. Fla. R.Crim. P. 3.851(f)(5)(A). The Court concludes as a matter of law that the claims in the subject motion for postconviction relief do not require an evidentiary hearing, and should be summarily denied.

The order further recited that the trial judge conducted an extensive Faretta hearing before allowing Barnes to appear pro se and enter his plea. In that hearing Barnes disclosed that he had thirteen years of school, including one year of college, was a certified law clerk through the Department of Corrections, and had worked in the prison law library. The circuit court noted that the trial judge found Barnes to be “extremely competent,” that he understood what was happening, that he understood the advantages and disadvantages of self-representation, and that he was waiving future claims of ineffective assistance of counsel. The postconviction order emphasized that the trial judge found Barnes to be “alert, competent, and intelligent,” “very definite” in his speech, and “extremely alert,” and that on direct appeal, this Court found the plea was knowing, intelligent, and voluntary. See Barnes, 29 So.3d at 1020-22.

As to Barnes’ claim that the trial court erred by not sua sponte ordering a competency hearing after being told by Barnes that he had been “Baker Acted” sometime in 1990 and had at some point been diagnosed with borderline personality disorder, the circuit court held that the claim was procedurally barred because it could and should have been raised on direct appeal. To the extent Barnes was raising a substantive claim of violation of due process for being convicted and sentenced while incompetent, the circuit court denied relief, citing Nelson v. State, 43 So.3d 20, 33 (Fla.2010), for the holding that to assert such a claim Barnes was required to show “clear and convincing evidence to create a real, substantial and legitimate doubt” as to competency. The circuit court then concluded that the facts alleged by Barnes failed to create any real, substantial or legitimate doubt as to his competency. The circuit court also noted that neither the trial court nor the counsel who were present had any doubt about Barnes’ competency. The order concluded:

The “reasonable grounds” proffered in the Rule 3.851 motion are refuted by the record. In the subject case, there were no indications of Defendant’s incompetence, distinguishable factually from the cases cited by the Defendant in his postconviction motion. The record shows that that Defendant was not only competent, but also intelligent. There was no reason for a competency evaluation.

As to the claim that standby counsel was ineffective for failing to seek a competency determination, the circuit court denied relief, holding that a defendant who represents himself has the entire responsibility for his own defense even if he has standby counsel. Finally, the circuit court denied relief on Barnes’ claim that he may be incompetent at the time of execution because such a claim is not ripe for review until a death warrant is signed. This appeal ensued in which Barnes contends that the circuit court erred in denying his initial postconviction motion without an eviden-tiary hearing.

ANALYSIS

Standard of Review

“A defendant is normally entitled to an evidentiary hearing on a postconviction motion ‘unless (1) the motion, files, and records in the case conclusively show that the movant is entitled to no relief, or (2) the motion or particular claim is legally insufficient.’ ” Valentine v. State, 98 So.3d 44, 54 (Fla.2012) (quoting Franqui v. State, 59 So.3d 82, 95 (Fla.2011)). An evidentia-ry hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires factual determination. See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000). “[T]o the extent there is any question as to whether a rule 3.851 movant has made a facially sufficient claim requiring a factual determination, the Court will presume that an evidentiary hearing is required.” Walker v. State, 88 So.3d 128, 135 (Fla.2012). However, merely conclusory allegations are not sufficient — the defendant bears the burden of “establishing a ‘prima facie ease based on a legally valid claim.’ ” Valentine, 98 So.3d at 54 (quoting Franqui, 59 So.3d at 96).

“To uphold the trial court’s summary denial of claims raised in an initial postconviction motion, the record must conclusively demonstrate that the defendant is not entitled to relief.” Everett v. State, 54 So.3d 464, 485 (Fla.2010). When reviewing the circuit court’s summary denial of an initial rule 3.851 motion, we will accept the movant’s factual allegations as true and will affirm the ruling only if the filings show that the movant has failed to state a facially sufficient claim, there is no issue of material fact to be determined, the claim should have been brought on direct appeal, or the claim is positively refuted by the record. See Walker, 88 So.3d at 135. Finally, “[b]ecause a court’s decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review.” Seibert v. State, 64 So.3d 67, 75 (Fla.2010) (citing State v. Coney, 845 So.2d 120, 137 (Fla.2003) (holding that pure questions of law that are discernable from the record are subject to de novo review)). With these principles in mind, we turn first to Barnes’ claim that the trial court, sua sponte, was required to order a competency evaluation before allowing Barnes to plead guilty.

Discussion

Barnes first contends that the trial court, sua sponte, should have ordered a competency evaluation after Barnes advised the court at his first Faretta hearing that he had been “Baker Acted” once in 1990 for three days for observation and at some point had been diagnosed with borderline personality disorder. Even though he is clearly competent, Barnes asks this Court to vacate his conviction and sentence.and allow.him the opportunity to withdraw his plea because no formal determination of competency was made at the time of trial.

This Court has many times held that postconviction proceedings are not to be used as a second appeal, and that claims that were or could have been raised on direct appeal are proeedurally barred in postconviction. See, e.g., Willacy v. State, 967 So.2d 131, 141 (Fla.2007) (holding that postconviction proceedings cannot be used as a second appeal and claims that could have been brought on direct appeal are proeedurally barred); see also Nelson, 43 So.3d at 33 (holding that a claim that the trial court erred in not holding a competency hearing despite information suggesting incompetency is proeedurally barred if not raised on direct appeal); Carroll v. State, 815 So.2d 601, 610 (Fla.2002) (holding that claim of inadequate competency determination should have been raised on direct appeal and is proeedurally barred in postconviction proceeding); Patton v. State, 784 So.2d 380, 393 (Fla.2000) (holding that claim of inadequate competency hearing is proeedurally barred because it should have been raised on direct appeal). Thus, Barnes’ claim that the trial court erred in not sua sponte ordering a competency determination is proeedurally barred, as the postconviction court concluded.

Even if not barred, this claim has no merit because it is conclusively refuted by the record. A reading of the hearing transcript relied on by Barnes as evidence that the trial court should have ordered a competency determination shows that nothing Barnes said or did in that hearing would provide a reasonable ground for the court to believe he was incompetent to proceed. Florida Rule of Criminal Procedure 3.210 provides in pertinent part as follows:

(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter, its order setting a time for a hearing to determine the defendant’s mental condition....

“A defendant is incompetent to proceed ... if the defendant does not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her or him.” §' 916.12(1), Fla. Stat. (2006). “As this Court succinctly stated in State v. Tait, 387 So.2d 338, 340 (Fla.1980), the issue is “whether any information coming before the court before or during [trial] provided reasonable ground to believe that the defendant’s mental condition was such that he was incompetent.’ This Court will uphold the trial court’s decision as to whether such a hearing is necessary absent an abuse of discretion.” Rodgers v. State, 3 So.3d 1127, 1132 (Fla.2009) (quoting Lawrence v. State, 846 So.2d 440, 447 (Fla.2003), and citing Hunter v. State, 660 So.2d 244, 248 (Fla.1995)).

In the present case, the trial court record supports the trial judge’s conclusion that Barnes was intelligent, understood court procedure, and was completely capable of representing himself. As the post-conviction court noted, Barnes advised the trial court at his Faretta hearing that he had one year of college and that he had prior experience, education, and knowledge of the court system. Barnes stated that he had taken several criminal justice courses and was a certified law clerk at the Department of Corrections. Barnes advised the trial court that he had worked in the prison law library for twenty years and had watched a criminal trial. .He stated that he had never been treated for any mental illness, although he had been diagnosed as having a personality disorder. The fact that he was observed for three days at a state hospital and then released does not provide a reasonable ground for the trial judge to believe Barnes was incompetent. Similarly, the fact that Barnes told the trial court that he had once been diagnosed with a personality disorder does not obligate the trial court to order a competency evaluation. “[N]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present, inability to assist counsel or understand the charges.” Card v. Singletary, 981 F.2d 481, 487-88 (11th Cir.1992) (quoting U.S. ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.1984)). Moreover, we noted in Nelson that the fact of a prior suicide attempt and the administration of a powerful antipsychotic drug did not necessarily create a reasonable doubt of defendant’s competency or render the defendant incompetent to proceed. See Nelson, 43 So.3d at 29.

The record reflects that throughout the trial proceedings, Barnes filed and argued numerous motions before the court. He lodged objections to evidence and comported himself well in court. The transcript of the May 2, 2006, Faretta/plea hearing shows that Barnes appeared alert and knowledgeable. Throughout the hearing, Barnes made clear that he understood the consequences of his decision to represent himself and to plead guilty, that he knew the possible sentence was death, and that he understood an attorney is trained to assist in such proceedings. Nothing in the record of the May 2, 2006, hearing, or thereafter, would reasonably have caused the court to doubt that Barnes was competent. In fact, the trial court stated at the Faretta hearing:

THE COURT: All right. Mr. Barnes, at this time then I’m going to find that you are competent. In fact, you appear to be extremely competent. Your demeanor, the way you’ve addressed the [cjourt, the way you — I mean, not only what you’ve said but your presentation convinces me that you are. competent, you understand what is happening here today, that you have knowingly, freely and voluntarily exercised your decision to represent yourself, that you are waiving the right to counsel for no other reason other than the fact that you want to represent yourself and that you — you know, this is a knowing and intelligent waiver and that you have the capacity to make that knowing and intelligent waiver and that you understand the advantages and disadvantages of representing yourself.
BY THE COURT: Okay. Mr. Barnes, because I’m finding you intelligent and knowingly making this request, that you have the ability to make this request because you are intelligent and competent to make this request later down the line if you — for whatever reason your strategy, whatever that strategy may be does not work out, you’re not going to be able to say well, you know, I was representing myself_And do you understand that?
A [BARNES]. I understand. I’m ready to enter a plea right now on all cases.

The trial court clearly believed, based on the colloquy that occurred and on Barnes’ conduct and statements, that Barnes was competent even though no formal competency evaluation or • determination was made. Nothing in the trial proceedings provided a reasonable ground for the trial court to doubt Barnes’ competency to proceed such that a competency evaluation should have been ordered. The trial court’s conclusions were similar to this Court’s conclusion in Rodgers, where we rejected the claim that a competency hearing should have been ordered, stating:

Rodgers’ statements to the court showed that he understood the consequences of his decisions and that Rodgers weighed his options of a life sentence or a death sentence in a rational and careful manner. The defendant clearly showed the capacity to appreciate the proceedings and the nature of possible penalties; he showed that he understood the adversary nature of the legal process;. he manifested appropriate courtroom behavior; and he was able to testify in a relevant manner.

Rodgers, 3 So.3d at 1132-33.

In support of his argument that the trial court should have sua sponte ordered a competency evaluation, Barnes also cites a colloquy which occurred in the May 2, 2006, hearing when he advised the trial judge that he was waiving presentation of mitigation. The trial judge responded that he was required by law to consider mitigation and would appoint court counsel to investigate and present mitigation on Barnes’ behalf despite his objection, and the following colloquy occurred:

Q [THE COURT] As much as you don’t want an attorney to represent you, I need to know any mitigating factors that would help me make this decision.
A [BARNES] Okay. I believe that it would harm me greatly if you were going to appoint an attorney for the Spencer hearing. I wish to waive counsel and represent myself in the final phase. It’s part of my strategy.
As far as offering mitigating circumstances, I believe that I have something in mind.
Q [THE COURT].... I’m going to appoint an attorney. Okay? I need to follow the statute. The statute says I must consider any mitigating circumstances. That — that attorney doesn’t— is not being appointed for you. It’s being appointed for the Court.
A [BARNES] That’s - ... I don’t know how to put into words how you bifurcate that. I just don’t understand how you can say the Court’s appointing an attorney for the Court. I mean, the State Attorney is the State’s Attorney. I mean, that’s his job to do that.
If you’re trying to appoint somebody to protect me or defend me, I don’t need that. And I don’t want it.

Barnes now contends that this exchange proves he was unaware of the State Attorney’s proper role and that he erroneously believed it was the prosecutor’s job to present mitigation. Barnes argues that this is evidence of his incompetence because it showed his lack of understanding of the adversarial process. Even if, as Barnes contends, the colloquy refers to the prosecutor presenting mitigation, Barnes would not have been wrong. The prosecutor has an obligation to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” Muhammad, 782 So.2d at 364 n. 11 (quoting Florida Rule of Professional Conduct 4 — 3.8(c)). We also made clear in Muhammad that in a capital sentencing case where the defendant waives mitigation, “the trial court' could require the State to place in the record all evidence in its possession of a mitigating nature such as school records, military records, and medical records.” Id. at 363-64 (footnote omitted). However, Barnes’ statement to the court could also be interpreted as simply reiterating his strong objection to any mitigation being presented. Thus, Barnes’ statements in this colloquy do not provide a reasonable ground for the trial court to believe that Barnes was incompetent to proceed.

Barnes also makes a substantive due process claim that he was allowed to enter a plea to a capital offense while incompetent. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits states from trying and convicting mentally incompetent defendants. See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); James v. Singletary, 957 F.2d 1562, 1569-70 (11th Cir.1992). We have held that such a claim is generally procedurally barred where the defendant failed to raise it on direct appeal. See Nelson, 43 So.3d at 33; Carroll, 815 So.2d at 610. However, such a claim has been allowed in postconviction under limited circumstances where the facts are compelling that the defendant was tried and convicted while incompetent. See, e.g., Jones v. State, 478 So.2d 346, 347 (Fla.1985) (postconviction claim allowed and hearing granted where affidavits and expert opinions supported claim that Jones suffered from organic brain damage and was incompetent). In rejecting a claim that the defendant was tried while incompetent in Bush v. Wainwright, 505 So.2d 409 (Fla.1987), we distinguished the circumstances in Jones where there was a long psychiatric history indicating Jones’ incompetency. See id. at 410-11. We held in Bush that the report of newly appointed experts that Bush had a learning disability, a passive and dependent personality, and possible “diffuse organic brain damage” did not sufficiently raise a valid question as to Bush’s competency to stand trial.

In this case, the facts asserted by Barnes in his motion do not raise a valid question as to his competency to stand trial, and our review of the trial court record discloses no basis on which to conclude otherwise. We explained in Nelson:

“[A] petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.” James v. Singletary, 957 F.2d 1562, 1571 (11th Cir.1992). “A defendant is considered competent to stand trial if ‘he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and [if] he has a rational as well as factual understanding of the proceedings against him.’ ” Id. at 1574 (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). “In order to make out his substantive incompetency claim, petitioner need not ... allege any error on the part of any state actor.” James, 957 F.2d at 1572. “[A] petitioner is entitled to an evidentiary hearing on a substantive incompetency claim if he or she ‘presents dear and convincing evidence to create a real, substantial and legitimate doubt ’ as to his or her competency.” Id. at 1573 (quoting Fallada v. Dugger, 819 F.2d 1564, 1568 n. 1 (11th Cir.1987)).

Nelson, 43 So.3d at 33 (emphasis added). In denying an evidentiary hearing on this claim, the postconviction court concluded that Barnes failed to allege or identify clear and convincing evidence necessary to support a substantive claim of incompetency, stating:

Defendant cannot make the requisite showing of incompetence for a substantive claim of incompetency as shown by the record and cited in the preceding paragraphs of this Order. The Defendant consulted with standby counsel and talked with court counsel. No counsel, prosecutor, or judge had any doubt the Defendant was not competent as shown by the record. Judge Davidson found the Defendant “extremely competent” to represent himself after learning from the Defendant that he had been Baker Acted in 1990, had been diagnosed with borderline personality disorder, and hearing Defendant’s comments regarding mitigation evidence. Judge Davidson had the opportunity to observe the Defendant on several occasions and numerous Faretta inquiries were conducted throughout the case because the Defendant continued to reject offers of counsel.... In the subject case, there were no indications of Defendant’s incompetence, distinguishable factually from the cases cited by the Defendant in his postconviction motion. The record shows that the Defendant was not only competent, but also intelligent. There was no reason for a competency evaluation.

We agree. As discussed earlier, nothing alleged in Barnes’ motion or cited by Barnes from the record of the May 2, 2006, hearing or elsewhere in the trial record would provide any evidence, not to mention clear and convincing evidence, creating a real, substantial, and legitimate doubt that Barnes was convicted and sentenced while incompetent to proceed. Thus, for these reasons the circuit court correctly denied Barnes’ substantive due process claim without a hearing.

Barnes further contends that because “death is different,” and because he was once diagnosed as having a personality disorder, a competency determination is essential to ensure that his constitutional rights are protected and to protect the integrity of the process. However, this is neither supported by case law nor by the Florida Statutes. Section 916.12(1), Florida Statutes (2006), provides that a defendant is incompetent to proceed if he does not have the present ability to consult with his attorney with a reasonable degree of rational understanding or if the defendant has no rational as well as factual understanding of the proceedings against him. Rule 3.210 implements this statutory requirement and places the burden on counsel and the court to seek a competency determination, but only if they have “a reasonable ground to believe that the defendant is not mentally competent to proceed.” See Fla. R.Crim. P. 3.210(b). Thus, there is no blanket requirement that all capital defendants who may have once been diagnosed as having a mental disorder be evaluated for competency, even those who appear pro se.

As an additional aspect of Barnes’ first issue on appeal, he contends that standby counsel was deficient in failing to move the trial court for a competency determination. Barnes contends that as soon as standby counsel became aware during the May 2, 2006, hearing that Barnes was suffering from personality disorder and had been “Baker Acted” in the past, she should have requested a competency determination. The postconviction court denied the claim, concluding that standby counsel had no obligation to request a competency hearing on Barnes’ behalf because Barnes acted pro se and a “defendant who represents himself has the entire responsibility for his own defense even if he has standby counsel and cannot later claim that the quality of his defense was a denial of effective assistance of counsel,” citing Behr v. Bell, 665 So.2d 1055, 1056-57 (Fla.1996). The trial court also concluded that even if standby counsel had such an obligation, nothing in the record, including the transcript of the May 2, 2006, Faretta/plea hearing, provided a reasonable ground for standby counsel to doubt Barnes’ competency.

We held in Behr that “[a] defendant who represents himself has the entire responsibility for his own defense, even if he has standby counsel. Such a defendant cannot thereafter complain that the quality of his defense was a denial of ‘effective assistance of counsel.’ ” Id. at 1056-57 (quoting Faretta, 422 U.S. at 833 n. 46, 95 S.Ct. 2525). At the May 2, 2006, Faretta hearing, the following colloquy took-place:

Q [COURT] Do you understand that at every stage of these proceedings I’m going to have standby counsel for you. You will still represent yourself. But that standby counsel will be there solely to assist you in representing yourself. But you are going to be the person to represent yourself if you decide that you still want me to allow you to represent yourself. Do you understand that?
A [BARNES] Standby counsel is solely at your discretion. And I understand that and that at any time I feel that I need to ask them [a] question they’d be there for me.

Thus, Barnes was advised that as a pro se defendant, even with standby counsel, he was responsible for his own representation. Barnes’ argument now misapprehends the role of standby counsel when a defendant is exercising his or her constitutional right of self-representation. The United States Supreme Court in Faretta held that a state may, over the pro se defendant’s objection, appoint “standby counsel” to “aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525 (emphasis added).

Standby counsel in the instant case had no obligation to either request a competency determination for Barnes or suggest that the trial court order one. Standby counsel was designated at the outset of the Faretta /plea hearing with the understanding that Barnes could consult standby counsel if he wished to do so. Barnes did not elect to consult with standby counsel and insisted he was fully capable of representing himself. In any event, we agree with the circuit court that regardless of whether standby counsel had any legal responsibility or authority in this case to request a competency determination, nothing in the record or the motion submitted by Barnes presents a reasonable ground for standby counsel to doubt Barnes’ competency to proceed. Thus, summary denial of this claim was proper.

Finally, Barnes claims that his death sentence violates the Eighth Amendment prohibition against cruel and unusual punishment because he may be incompetent at the time of execution. He concedes that this claim is not ripe for review and is being raised for federal preservation purposes only. Florida Rule of Criminal Procedure 3.811, titled “Insanity at Time of Execution: Capital Cases,” provides that “[a] person under sentence of death shall not be executed while insane to be executed.” Fla. R.Crim. P. 8.811(a). This rule essentially implements the mandate of the United States Supreme Court’s plurality decision in Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane. In order for insanity to bar execution, the prisoner must lack the capacity to understand the nature of the death penalty and why it is being imposed. See § 922.07(3), Florida Statutes (2012); Johnston v. State, 27 So.3d 11, 26 n. 8 (Fla.), cert. denied, — U.S.-, 131 S.Ct. 459, 178 L.Ed.2d 292 (2010); see also Ford, 477 U.S. at 421-22, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment) (“A number of States have more rigorous standards, but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.” (footnote omitted)).

As Barnes concedes, this claim is not ripe for review. We have repeatedly held that this claim may not be asserted until a death warrant has been issued. See, e.g., Johnson v. State, 104 So.3d 1010, 1029 (Fla.2012) (“Considering that no death warrant has been signed in this case, the postconviction court’s summary denial of Johnson’s claim was proper.”); Butler v. State, 100 So.3d 638, 672 (Fla.2012) (“[A] claim of incompetency to be executed cannot be asserted until a death warrant has been issued.”) (quoting Green v. State, 975 So.2d 1090, 1115-16 (Fla.2008)), cert. denied, — U.S. -, 133 S.Ct. 1726, 185 L.Ed.2d 789 (2013); Phillips v. State, 894 So.2d 28, 36 (Fla.2004) (“[T]his claim cannot be raised until an execution is imminent.”); Jones v. State, 845 So.2d 55, 74 (Fla.2003) (rejecting claim that defendant may be incompetent at the time of execution where a death warrant had not yet been signed, noting that the claim was raised to preserve the issue for federal review). Because a death warrant has not been issued in this case, the claim was properly denied.

CONCLUSION

For the reasons set forth above, we conclude that the circuit court did not err in summarily denying Barnes’ motion for postconviction relief from his conviction and sentence of death for the first-degree murder of Patsy Miller. Accordingly, we affirm the circuit court’s summary denial of Barnes’ claims.

It is so ordered.

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

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The trial court found the following aggrava-tors: (1) the murder was committed by one under sentence of imprisonment or on community control or felony probation (great weight); (2) Barnes was previously convicted of another capital felony or felony involving use or threat of violence (murder of his wife in 1997) (great weight); (3) the murder was committed while Barnes was engaged in commission of a sexual battery and burglary (great weight); (4) the murder was committed for the purpose of avoiding or preventing a lawful arrest (great weight); (5) the murder was especially heinous, atrocious, or cruel (great weight); and (6) the murder was cold, calculated and premeditated (great weight). See Barnes, 29 So.3d at 1015 n. 3.

      . The trial court found one statutory miti-gator, that Barnes was under the influence of extreme mental or emotional disturbance, and accorded it slight weight. Barnes, 29 So.3d at 1014 n. 4. The nonstatutory miti-gators were: (1) Barnes came forward and revealed his involvement in the unsolved crime (little weight); (2) he took responsibility for his acts (little weight); (3) he was under the influence of a mental or emotional disturbance (duplicating the statutory mitigator) (little weight); (4) he has experienced prolonged drug use (little weight); (5) he did not have the benefit of a loving relationship with his mother (little weight); (6) he did not have the benefit of a loving relationship with his father (little weight); (7) he was sexually abused as a child (slight weight); (8) he has taken steps to improve himself (little weight); and (9) he is a functional and capable person and has demonstrated by his action and participation in this case that he has sufficient intelligence and capabilities to contribute to society (little weight). Id. at 1014 n. 5.

      . After postconviction counsel moved for a competency evaluation of Barnes, the circuit court appointed Howard Bernstein, Ph.D., and Jeffrey Danziger, M.D., to perform the evaluations. Their reports were filed in November 2011 and each concluded that although Barnes suffers from a personality disorder, he is competent to proceed. The parties stipulated to the competency evaluation reports and the circuit court found Barnes competent to proceed without objection.

      . Huff v. State, 495 So.2d 145 (Fla.1986).

      . The "Baker Act," sections 394.451-394.4789, Florida Statutes, also known as the "Florida Mental Health Act," provides for civil commitment for mental health care or treatment.

      . This type of substantive due process claim is distinguished from a "Pate" claim, which arises when the trial court fails to order a competency determination despite information raising a bona fide doubt as to petitioner’s competency. See James v. Singletary, 957 F.2d 1562, 1572 n. 15 (11th Cir.1992). A "Pate " claim "can and must be raised on direct appeal.” Nelson, 43 So.3d at 33 (quoting James, 957 F.2d at 1572).

      . Barnes contends that he was entitled to an evidentiary hearing to present the testimony of standby counsel Phyllis Riewe. However, he advised the postconviction judge that he had never deposed Riewe. He did not include any allegations in the motion or attach any affidavits or depositions concerning how Riewe viewed her role as standby counsel or how she interpreted Barnes' statements to the postconviction court which Barnes now contends demonstrated his incompetence. At the January 12, 2012, Huff hearing, Barnes’ post-conviction counsel argued only that he needed to present Riewe’s testimony “to totally explore this issue of competency.”

      . The advisory given to Barnes was similar to that approved in Amendment to Florida Rule of Criminal Procedure 3.111(d)(2)-(3), 719 So.2d 873 (Fla.1998), in which this Court approved a model Faretta colloquy. In cases where standby counsel is being appointed, the model colloquy recommends that the trial judge advise the defendant: "I will appoint standby counsel to assist you. However, you will still be responsible for the organization and-content of presenting your case. You still have the entire responsibility for your own defense. Do you understand that?” Id. at 878.


text:
    SEDRA FAMILY LIMITED PARTNERSHIP, A Florida Limited Partnership, Spectracare, Inc., a Florida Corporation, MCJ Realty, LLC, a Florida Limited Liability Company, MCJ Management, LLC, a Florida Limited Liability Company, Magda Sedra, individually, Michael Sedra, individually, and Spectracare Medical Center, LLC, Appellants, v. 4750, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D12-331.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2012.
    Jeffrey M. Weissman of Weissman & Dervishi, P.A., Fort Lauderdale, for appellants.
    James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale, for appel-lee.
   PER CURIAM.

We affirm the denial of a motion to vacate the foreclosure sale of appellants’ property. While they claim that their redemption rights were thwarted by the ap-pellee’s failure to credit post-judgment rentals to the amount due or to require the payment of the amount of attorney’s fees, we disagree. The right of redemption is controlled by section 45.0315, Florida Statutes, which is exclusive:

At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelérate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.

(emphasis supplied). Regardless of any demands by appellee for attorney’s fees or other amounts, appellants could have redeemed by paying the amount of the final judgment. Parsons v. Whitaker Plumbing of Boca Raton, Inc., 751 So.2d 655, 656 (Fla. 4th DCA 1999). They failed to do so.

As to denial of the tenant’s post-judgment motion to intervene, the trial court did not abuse its discretion in denying intervention. “ ‘[T]he general rule— universally — is that intervention may not be allowed after final judgment,’ save ‘in the interests of justice’.... ” Harris v. Bristol Lakes Homeowners Ass’n, 126 So.3d 1075, 1076 (Fla. 4th DCA 2012) (quoting Havanatur, S.A. v. 747 Travel Agency, Inc., 463 So.2d 404, 405 (Fla. 3d DCA 1985) and Dickinson v. Segal, 219 So.2d 435, 436-37 (Fla.1969)). Lessees can “only redeem the property under or through [the mortgagor’s] rights,” and have “no independent right to redemption.” Burns v. Bankamerica Nat’l Trust Co., 719 So.2d 999, 1001 (Fla. 5th DCA 1998) (citing Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690 (1930)). Because it was not a party to the original proceedings, the tenant still has a possessory interest which has not been foreclosed in the property. See Commercial Laundries, Inc. v. Golf Course Towers Assocs., 568 So.2d 501, 503 (Fla. 3d DCA 1990). Therefore, the interests of justice do not compel the granting of its post-judgment request to intervene.

Affirmed.

MAY, C.J., WARNER and POLEN, JJ., concur.


text:
    Alvaro QUIROGA, Appellant, v. FIRST BAPTIST CHURCH AT WESTON and Guideone Insurance, Appellees.
    No. 1D12-2976.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2013.

      Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Raul De La Hería, Miami; Brian C. Dowling and Brian D. Tadros of the Workers’ Compensation Trial Group, P.A., Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that accepts the opinion of one medical doctor over another and thereby denies benefits to Claimant. Notably, Claimant does not challenge the issue of whether the record evidence supports the denial of benefits. Rather, Claimant raises a very specific legal argument, positing that, although he never made a request for the JCC to appoint an expert medical advisor (EMA) as provided for in section 440.13(9)(c), Florida Statutes (2008), the JCC committed fundamental error by not appointing, sua sponte, an EMA to resolve the disagreement in medical opinions. Claimant further argues that a JCC has no “jurisdiction” to resolve medical disagreements unless an EMA is first appointed. Upon receipt of Claimant’s initial brief, this Court entered an order advising the parties that this appeal was being considered for summary affirmance under Florida Rule of Appellate Procedure 9.315(a). Accordingly, the parties were directed to refrain from further briefing and that we would decide the matter before us on a summary basis.

Although Claimant’s arguments are not frivolous — in the sense that Claimant advances one possible interpretation of the statute at issue — they are completely unavailing because this court has already squarely addressed the issues presented in this appeal. Without equivocation, this court has held that a JCC’s failure to order an EMA evaluation is not fundamental error. Although a JCC is required to appoint an EMA where there is a disagreement in medical opinions, a party who does not timely seek the appointment of an EMA below will not “be heard on appeal to complain of the failure to designate an [EMA].” See Arvida River Hills Country Club v. Van Slyke, 728 So.2d 1213, 1214 (Fla. 1st DCA 1999)(“The JCC’s failure to order an evaluation by an [EMA] is not fundamental error.”); see also Palm Springs Gen. Hosp v. Cabrera, 698 So.2d 1352, 1355 n. 3 (Fla. 1st DCA 1997)(“We do not suggest that failure to order [an EMA] constitutes fundamental error, or that a party that does not seek evaluation below will be heard on appeal to complain of the failure to designate an [EMA].”).

To the extent that Claimant argues that a JCC does not have “jurisdiction” to resolve medical disputes (presumably Claimant refers to subject-matter jurisdiction), Claimant presents no meaningful argument or legal authority to support this novel proposition. Contrary to Claimant’s argument in this regard, this Court has consistently held that it is the JCC’s role and duty to resolve disputes in medical testimony. See, e.g., White v. Bass Pro Outdoor World, LP, 16 So.3d 992, 994 (Fla. 1st DCA 2009) (“In a workers’ compensation proceeding, the JCC is the finder of fact, who like the juries of this state, is given broad fact-finding powers. A fact-finder may accept or reject an expert’s testimony or give it the weight deserved considering the knowledge, skill, experience, training, or education of the witness ....”). And lest it be overlooked, this Court’s case law relating to timeliness of EMA requests as discussed above is predicated on a conclusion that, unless a timely request is made, it is the JCC’s role to resolve such medical disputes. Further, section 440.25(4)(3), Florida Statutes (2008), requires a JCC to draft compensation orders containing his or her ultimate findings of fact, and, even where an EMA is appointed, a JCC may still be called upon to make findings of fact to resolve divergent medical opinions. See Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1163-64 (Fla. 1st DCA 2008) (holding where EMA does not offer definitive or conclusive opinion, JCC is not bound by such opinion and may use EMA opinion as source of assistance to resolve disputed medical issue). One need not pause long to think what Claimant’s “jurisdictional” position would be had the JCC found in his favor (and for good reason). The need for predictable and orderly proceedings (removing incentives for a party to wait until after the outcome of the case is decided before insisting on the appointment of an EMA) is the very reason why this Court has consistently held that an EMA must be requested timely by the party seeking such relief on appeal. See Van Slyke, 728 So.2d at 1214. Because Claimant fails to raise a preliminary basis for reversal of the order on appeal or the overturning of well-established precedent of this Court, and further, because the arguments relied upon for reversal were not preserved for appellate review, summary affirmance is appropriate.

AFFIRMED.

BENTON, C.J., DAVIS, and ROBERTS, JJ., concur.


text:
    Billy EVERETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-227.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Rehearing Denied April 24, 2013.

      Robert Augustus Harper, III, and J. Andrew Atkinson, of Broad and Cassel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Billy Everett, challenges his conviction and sentence for failing to report within forty-eight hours after changing his permanent or temporary residence. Appellant argues, and we agree, that the erroneous admission of collateral crime evidence during his trial created fundamental error.

At trial, the jury heard testimony that Appellant’s registered address for the time period in question was listed as Spring Street. The State’s witnesses testified that Appellant moved from the Spring Street residence to a residence on Baker Street. However, none of the witnesses could provide exact dates for any of these events. Appellant testified that he did not move into the Baker Street residence; he testified that he only stayed there for a few days. During cross-examination, the prosecutor elicited testimony from Appellant that he failed to comply with the forty-eight hour registration requirement when he initially moved to the Spring Street residence. The prosecutor repeatedly mentioned Appellant’s previous failure to comply with the registration requirement during his closing arguments. The prosecutor even urged the jury to consider the previous violation when it evaluated Appellant’s credibility.

“The admission of improper collateral crime evidence is presumed harmful error because of the danger that a jury will take the bad character or propensity to commit the crime as evidence of guilt of the crime charged.” Fike v. State, 4 So.3d 734, 739 (Fla. 5th DCA 2009) (quoting Mims v. State, 872 So.2d 453, 456 (Fla. 2d DCA 2004)). Because Appellant failed to object to any of the collateral crime testimony, he must show that the error was not only harmful, but fundamental. Id. Fundamental error is error that undermines the confidence in the trial outcome and goes to the very foundation of the case. Id. In this case, fundamental error occurred because the prosecutor repeatedly mentioned the collateral crime evidence in his closing arguments. The admission of the collateral crime evidence was fundamental error as it undermines confidence in the verdict. We therefore REVERSE Appellant’s conviction and REMAND for a new trial.

PADOVANO, ROWE, and RAY, JJ., concur.