text:
    John Loveman REESE, Appellant, v. STATE of Florida, Appellee.
    No. SC07-1309.
    Supreme Court of Florida.
    March 26, 2009.
    Rehearing Denied July 2, 2009.

      Frank J. Tassone, Jr., Jacksonville, FL, for Appellant.
    Bill McCollum, Attorney General, Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

In this case, John Loveman Reese appeals a circuit court order denying, after evidentiary hearing, his postconviction motion to vacate his judgment of conviction of first-degree murder and sentence of death for the murder of Charlene Austin. See Fla. R.Crim. P. 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Having considered the issues raised in the briefs and having heard oral argument in this case, we affirm.

I. BACKGROUND

Reese was convicted of first-degree murder, sexual battery with great force, and burglary with assault. We previously summarized the facts of the 1992 murder as follows:

The evidence presented at trial reveals that Reese dated Jackie Grier on and off for seven years; the victim had been Grier’s best friend for approximately two and a half years. Reese was extremely possessive and disliked Austin because of the amount of time Grier spent with her. Grier and Austin had begun making trips to Georgia where, unknown to Reese, both had met new boyfriends. They returned from the last of these trips on Monday, January 27, 1992. On Wednesday of the same week, Grier was concerned because she could not reach Austin by phone, and she and a neighbor went to Austin’s house and entered through the unlocked back door. They found Austin lying face down in the bedroom, covered with a sheet. She had been strangled with an electrical extension cord that was doubled and wrapped around her neck twice with the ends pulled through the loop.
Reese was questioned by police after his palm print was found on Austin’s waterbed. He confessed to breaking into her home around noon on Tuesday, January 28. He said he waited for her to return home because he wanted to talk to her about Grier, but when he saw Austin coming home from work around four o’clock he got scared and hid in a closet. Reese said that after Austin went to sleep on the sofa, he came out of the closet but panicked when she started to move. He grabbed her around the neck from behind and di’agged her into the bedroom. He raped her, then strangled her with the extension cord. He was arrested after his confession.

Reese v. State, 694 So.2d 678, 680 (Fla.1997). The jury recommended and the trial court imposed a death sentence. Id.

On appeal, we affirmed Reese’s conviction. Id. at 685. Finding the trial court’s sentencing order inadequate, however, we remanded for entry of an order that complied with Campbell v. State, 571 So.2d 415, 419-20 (Fla.1990). Reese, 694 So.2d at 684. In Reese v. State, 728 So.2d 727 (Fla.1999), we again remanded the sentencing order. Then, in Reese v. State, 768 So.2d 1057, 1060 (Fla.2000), cert. denied, 532 U.S. 910, 121 S.Ct. 1239, 149 L.Ed.2d 147 (2001), we reviewed the revised sentencing order and summarized the trial court’s findings as follows:

The court found three aggravators: (1) the homicide was committed during a burglary and sexual battery; (2) the homicide was heinous, atrocious, or cruel (HAC); and (3) the homicide was committed in a cold, calculated, and premeditated manner (CCP). The court found no statutory mitigators. The court found seven nonstatutory mitigators: (1) good jail record (minimal weight); (2) positive character traits (minimal weight); (3) defendant’s support of Jackie Grier and her children (very little weight); (4) his possessive relationship with Jackie Grier (minimal weight); (5) emotional immaturity (little weight); (6) possible use of drugs and alcohol around the time of the murder (little weight); and (7) lack of a significant criminal record (very slight weight). The court rejected the following nonstatutory miti-gators: (1) defendant’s adaptability to prison life; (2) childhood trauma other than the death of his mother; (3) emotional or mental impairment at the time of the murder; and (4) use of crack cocaine at the time of the murder.

Id. at 1058. We rejected Reese’s claims that the trial court erred in evaluating the mitigating circumstances, finding the CCP aggravator, and determining that his death sentence was proportionate, and we affirmed the sentence of death. Id. at 1058-59.

Appellant subsequently filed an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.851, raising numerous claims. The circuit court granted an evidentiary hearing on two claims of ineffective assistance of counsel, and the primary focus of the hearing was the adequacy of the presentation of mental health mitigation in the penalty phase. Following the hearing, the trial court entered orders denying relief on all of appellant’s postconviction claims. Appellant then filed a timely appeal in this Court.

II. THE ISSUES ON APPEAL

In this appeal, appellant contends that (1) trial counsel was constitutionally ineffective for failing to adequately investigate and present mental health mitigation evidence; (2) the rules that prohibit jury interviews are unconstitutional; (3) lethal injection constitutes cruel and unusual punishment; (4) trial counsel was ineffective for failing to object to unconstitutional penalty-phase jury instructions; (5) cumulative error deprived appellant of a fair trial; (6) appellant’s death sentence violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (7) appellant is ineligible for the death penalty under Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

III. ANALYSIS

A. MENTAL HEALTH MITIGATION

In his first claim, appellant contends that trial counsel was ineffective for failing to present certain mental health mitigation evidence in the penalty phase.. Appellant argues that counsel failed to present evidence that appellant was under the influence of an extreme mental or emotional disturbance at the time of the crime — a statutory mitigator. See § 921.141(6)(b), Fla. Stat. (1991). This claim rests largely on the assertion that counsel did not request that his mental health expert conduct neuropsychological testing — testing which would have shown that appellant had frontal lobe impairment.

In Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established a two-pronged standard for determining whether counsel provided legally ineffective assistance. A defendant must point to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. The defendant also must establish prejudice by “showfing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id.; see Gaskin v. State, 737 So.2d 509, 516 n. 14 (Fla.1999) (“Prejudice, in the context of penalty phase errors, is shown where, absent the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different or the deficiencies substantially impair confidence in the outcome of the proceedings.”).

First, to the extent that appellant argues that counsel did not present any evidence of appellant’s mental or emotional distress at the time of the crime, the record'plainly refutes the claim. Trial counsel had appellant examined by Dr. Harry Krop, who interviewed appellant and others, reviewed relevant records, including trial-related material, and conducted psychological testing. He testified at length during the penalty phase, outlining appellant’s biography and explaining all the factors affecting his psychological profile. During his testimony, trial counsel asked him specifically to address appellant’s mental and emotionál state,at the time of the murder. Although Dr. Krop stated that appellant knew right from wrong, Krop concluded that “when you look at all factors combined, that [have] accumulated, hurt, frustration feelings, he felt desperate to stay in the relationship, coupled with some fear and anxiety that were occurring at the time of the incident, plus the effects of cocaine and alcohol ... his mental state was seriously impaired at the time of the offense.”

Second, appellant has not demonstrated that counsel was ineffective in failing to request that Dr. Krop conduct neuropsy-chological testing. Appellant’s trial counsel testified at the evidentiary hearing that he was not aware of any reason to request additional testing. Had such testing been recommended, counsel stated that he would have had the doctor conduct the tests. Dr. Krop had interviewed appellant and others, reviewed related records, and conducted psychological testing on appellant in preparation for the penalty phase. He testified at the evidentiary hearing that he did not conduct any neuropsychological testing at that time, finding such testing unwarranted. There was no indication of possible brain damage. Krop further testified, however, that in hindsight he should have conducted such tests. In connection with the postconviction proceedings, Krop did conduct neuropsychological testing of appellant. Krop testified at the evidentia-ry hearing that the results indicated appellant had frontal lobe impairment, which affects impulse control and problem solving.

As we previously explained in affirming denial of a nearly identical ineffective assistance claim, “[t]his Court has established that defense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.” Darling v. State, 966 So.2d 366, 377 (Fla.2007). Here, as in Darling, trial counsel relied on his mental health expert, who at the time of trial was well known as a death penalty mitigation expert. Further, trial counsel was also experienced with death cases, and he testified at the evidentiary hearing that his own interactions with appellant were normal and he did not have reason to suggest that any other testing be performed. That in hindsight the mental health expert believes he should have done the testing does not alter our analysis. See id. (“Even if the evaluation by Dr. Hercov, which found no indication of brain damage to warrant a neuropsychological workup, was somehow incomplete or deficient in the opinion of others, trial counsel would not be rendered ineffective for relying on Dr. Hercov’s qualified expert evaluation.”). Accordingly, trial counsel cannot be deemed ineffective for failing to request a neuropsychological evaluation.

Even if appellant had met the first prong of Strickland, he has not established prejudice. As noted above, Krop testified that his new neuropsychological testing indicated that appellant had frontal lobe impairment, which affects impulse control and judgment. He said that he could not diagnose appellant with brain damage. Further, Krop said that this new finding would have had little effect on his penalty-phase testimony. Based on this neuropsy-chological factor, Krop said that he would have opined that this impairment made appellant’s “serious emotional disturbance” at the time of the crime “more extreme.” Appellant presented another expert at the evidentiary hearing, Dr. Miller, who interviewed appellant and reviewed Krop’s testing results. He agreed that those test results indicated frontal lobe impairment. Accordingly, at best, the evidence shows that appellant had a frontal lobe impairment affecting his impulse control that constituted an additional factor to be considered in relation to his emotional or mental disturbance at the time of the crime. However, even this conclusion was disputed in the postconviction proceedings by Dr. Tannahill Glen, the State’s expert, who independently tested appellant. She testified at the evidentiary hearing that although appellant had a personality disorder not otherwise specified (NOS), the neuropsychological tests did not indicate that appellant had a frontal lobe impairment. Further, the State’s radiologist testified that appellant’s MRI was normal.

Our review of the record indicates that extensive testimony regarding appellant’s psychological profile and the factors affecting his mental and emotional state were presented in the penalty phase. The testimony and conclusions provided by appellant’s expert witness at the postconviction evidentiary hearing were largely cumulative of that testimony. Coupled with this fact and in light of the facts of this crime, the new determination that appellant has frontal lobe impairment that affects his impulse control is not a significant addition to Dr. Krop’s testimony at the penalty phase cited above. As the trial court stated in the sentencing order, appellant waited approximately eight hours for Charlene Austin to return to her home. When she arrived, he hid and waited again until she fell asleep. Then, when she was most vulnerable, he emerged to first rape her and then strangle her to death “with an electrical extension cord that was doubled and wrapped around her neck twice with the ends pulled through the loop.” Reese v. State, 694 So.2d at 680. Accordingly, the penalty-phase testimony combined with the trial testimony demonstrate that despite any deficits appellant may have affecting his impulse control, he was capable of planning and carrying out this murder in a controlled manner. Thus, although appellant presented evidence of frontal lobe dysfunction that was not presented at the penalty phase, this evidence is insufficient to undermine our confidence in the outcome.

B. OTHER ISSUES

In his remaining issues, appellant raises a number of constitutional challenges that we have previously rejected.

Appellant claims that Florida Rule of Criminal Procedure 3.575 and Rule Regulating the Florida Bar 4 — 3.5(d)(4), which prohibit attorneys from interviewing jurors, violate his constitutional right to equal protection. This contention fails for two reasons. First, the claim is proeedurally barred because it should have been raised on direct appeal. See Israel v. State, 985 So.2d 510 (Fla.2008); Rose v. State, 774 So.2d 629, 637 n. 12 (Fla.2000). Second, we have previously concluded that these rules do not violate a defendant’s constitutional rights. See Barnhill v. State, 971 So.2d 106, 117 (Fla.2007) (citing cases).

Similarly, we have repeatedly rejected the claim that Florida’s lethal injection procedure violates the constitutional prohibition against cruel and unusual punishment. See Tompkins v. State, 994 So.2d 1072, 1081 (Fla.2008), petition for cert. filed, (U.S. Feb. 11, 2009) (No. OS-8614); Power v. State, 992 So.2d 218, 221 (Fla.2008); Sexton v. State, 997 So.2d 1073, 1089 (Fla.2008); Schwab v. State, 969 So.2d 318, 325 (Fla.), cert. denied, — U.S. -, 128 S.Ct. 2486, 171 L.Ed.2d 777 (2008); Lightbourne v. McCollum, 969 So.2d 326, 329-30 (Fla.2007), cert. denied, — U.S. -, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008). Further, with regard to appellant’s contention that Baze v. Rees, — U.S. —, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), requires a different result, we recently explained in Ventura v. State, 2 So.3d 194, 200 (Fla.2009), that “Florida’s current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court.” See also Henyard v. State, 992 So.2d 120, 130 (Fla.) (“We have previously concluded in Lightbourne and Schiuab that the Florida protocols do not violate any of the possible standards, and that holding cannot conflict with the narrow holding in Baze.”), cert. denied; — U.S. -, 129 S.Ct. 28, 171 L.Ed.2d 930 (2008).

Appellant also contends that the standard jury instructions given in the penalty phase violate his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments because they diminish the jury’s responsibility in sentencing, shift to him the burden to prove life was an appropriate sentence, and are based on unconstitutionally vague aggravators. Additionally, appellant claims that trial counsel provided ineffective assistance by failing to object and thus preserve this issue. As the State points out, we have “repeatedly held the standard jury instructions fully advise the jury of the importance of its role, correctly state the law, and do not denigrate the role of the jury.” Barnhill, 971 So.2d at 117 (citing cases). In addition, because appellant’s constitutional challenges fail, he has not demonstrated trial counsel error for failing to object to valid instructions, and his ineffective assistance claim fails as well. See id. at 117 n. 4.

Appellant argues that cumulative error at trial, including multiple instances of ineffective assistance of counsel, denied him his right to a fair trial. Where, as here, the individual claims of alleged error lack merit, however, the claim of cumulative error necessarily fails. See Parker v. State, 904 So.2d 370, 380 (Fla.2005); Johnson v. Singletary, 695 So.2d 263, 267 (Fla.1996).

We next reject appellant’s argument that Florida’s death penalty scheme and thus his sentence violate Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), for two reasons. First, we have previously held that Ring does not apply retroactively to convictions and sentences of death that were final before Ring issued. Johnson v. State, 904 So.2d 400, 407 (Fla.2005). Second, a “defendant is not entitled to relief under Ring where the aggravating circumstance that the murder was committed during the course of a felony was found and the jury unanimously found the defendant guilty of that contemporaneous felony.” Zack v. State, 911 So.2d 1190, 1202 (Fla.2005). Here, the trial court’s finding of the contemporaneous felony aggravator is based on the jury’s finding appellant guilty of the contemporaneous crimes of burglary and sexual battery.

Finally, appellant argues that he is ineligible for the death penalty under the holding of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), that it is unconstitutional to execute defendants who were under age eighteen at the time of their crimes, and the holding of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that it is unconstitutional to execute a person who is mentally retarded. We disagree. First, appellant was twenty-seven when he murdered Charlene Austin, and “Roper only prohibits the execution of those defendants whose chronological age is below eighteen.” Hill v. State, 921 So.2d 579, 584 (Fla.), cert. denied, 546 U.S. 1219, 126 S.Ct. 1441, 164 L.Ed.2d 141 (2006). Second, testimony at the postconviction hearing indicating that appellant was under a severe emotional disturbance or, as he calls it, a “temporary mental illness,” at the time of the crime is not entitled to the same consideration as mental retardation. See Lawrence v. State, 969 So.2d 294, 300 n. 9 (Fla.2007); see also Connor v. State, 979 So.2d 852, 867 (Fla.2007).

IV. CONCLUSION

In light of the foregoing discussion, we affirm the circuit court’s denial of Reese’s motion for postconviction relief.

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

QUINCE, C.J., recused.

PERRY, J., did not participate.

      . Appellant did not appeal the circuit court’s denial of the following claims: (1) the records provisions in section 119.19, Florida Statutes (2002), and Florida Rule of Criminal Procedure 3.852, both facially and as applied, violated his federal and state constitutional right to due process, equal protection, and access to the courts; (2) he was deprived of an adversarial testing because the State failed to disclose evidence and trial counsel failed to obtain a pathology expert; (3) he was deprived of a fair trial due to prosecutorial misconduct; (4) lie was denied an adequate mental health evaluation under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (5) he was denied due process when the trial court engaged in ex parte communications with jurors; (6) the sentencing order does not reflect an independent weighing; and (7) he was denied due process on appeal because of an insufficient trial record.

      . Although evidence regarding appellant’s emotional disturbance at the time of the crime was presented, the trial court found it did not support finding a nonstatutory mitigating circumstance in light of the facts of the crime. On appeal, we rejected Reese’s contention that the trial court erred in rejecting as mitigating his "traumatic childhood, possessive relationship with Jackie Grier, mental impairment at the time of the crime, and amenability to prison life,” Reese, 768 So.2d at 1058-59, finding the record "support[ed] the trial court’s conclusion that the mitigators either had not been established or were entitled to minimal, little, veiy little, or vety slight weight.” Id. at 1059.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Milford Wade BYRD, Appellant, v. STATE of Florida, Appellee.
    No. SC06-539.
    Supreme Court of Florida.
    April 2, 2009.
    Rehearing Denied July 9, 2009.

      Neal Dupree, Capital Collateral Regional Counsel, Fort Lauderdale, FL, and Martin J. McClain, Special Assistant CCR Counsel, Wilton Manors, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying Milford Byrd’s successive motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons given below, we affirm the circuit court’s order denying relief.

I. BACKGROUND

Byrd was convicted of first-degree murder and sentenced to death for the 1981 murder of his wife, Debra Byrd. Byrd v. State, 481 So.2d 468, 469 (Fla.1985). We have previously set out the pertinent facts of the murder and trial more fully. See id. at 469-71. We briefly summarize them to provide context for the issues raised here. Byrd, who managed a motel in Tampa, confessed to police that when his wife refused to give him a divorce, he hired two of his motel’s residents — Ronald Sullivan and James Endress — to kill her. On the evening of October 12, 1981, however, all three men participated in the murder, in which Debra Byrd was shot and then strangled to death in the motel office. All three men were charged with first-degree murder. Byrd and Endress were tried separately, and Sullivan testified for the State at both trials. In exchange for his truthful testimony at Byrd’s trial, Sullivan negotiated a plea agreement under which he pleaded guilty to second-degree murder and received a term of probation. Byrd, 481 So.2d at 473. In addition, the State dismissed unrelated charges of grand theft and armed robbery. Id. Byrd was found guilty, and the trial court imposed a death sentence, finding three aggravating factors and one mitigating factor. Id. at 471.

We affirmed Byrd’s conviction and sentence of death in his direct appeal. Id. at 473. We also affirmed the denial of his subsequent motion for postconviction relief, Byrd v. State, 597 So.2d 252, 253 (Fla.1992), and denied his later-filed petition for a writ of habeas corpus. Byrd v. Singletary, 655 So.2d 67, 69 (Fla.1995).

In 2002, Byrd filed a successive motion for postconviction relief, which he amended several times. Byrd alleged that newly discovered evidence established that he was denied a fair trial and sentencing. After holding an evidentiary hearing, the circuit court addressed and denied relief on all of Byrd’s claims.

II. ISSUES

Byrd raises three claims on appeal: (1) he was deprived of due process when the State maintained inconsistent positions regarding Sullivan’s credibility in different proceedings; (2) newly discovered evidence demonstrates that he was deprived of due process when the State either presented false or misleading evidence, or withheld material exculpatory evidence, and he received ineffective assistance of counsel; and (3) the trial court failed independently to weigh the sentencing factors in sentencing him to death.

III. ANALYSIS

For Byrd’s successive motion for postconviction relief to be reviewed on the merits, his claims must meet the requirements of rule 3.851(d). That is, each claim must be based on either (1) facts that were unknown to him or his attorney and “could not have been ascertained by the exercise of due diligence,” or (2) a “fundamental constitutional right” that was not previously established, and which “has been held to apply retroactively.” Fla. R.Crim. P. 3.851(d)(2). Claims of newly discovered evidence must be brought within a year of the date the evidence was or could have been discovered through due diligence. See Glock v. Moore, 776 So.2d 243, 251 (Fla.2001); see also Jimenez v. State, 997 So.2d 1056, 1064 (Fla.2008). With these requirements in mind, we address each of these claims in turn.

A. Inconsistent Positions

On appeal, Byrd argues for the first time that the State violated his constitutional right to due process under Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), by maintaining inconsistent positions regarding whether codefendant Sullivan was a credible witness at Byrd’s trial and at Sullivan’s own subsequent violation of probation hearing. In Stumpf, the defendant claimed that his right to due process was violated when the State pursued different theories in separate proceedings against him and his code-fendant with regard to who actually shot the victim. Stumpf 545 U.S. at 180-81, 125 S.Ct. 2398. The Court held that any inconsistency regarding the identity of the shooter was “immaterial” to Stumpf s conviction and, with regard to Stumpf s sentence, refused to address “whether the prosecutor’s actions amounted to a due process violation.” Id. at 187, 125 S.Ct. 2398. Clearly, Stumpf did not articulate a new rule of law, and this successive post-conviction claim is therefore barred. See id. at 190, 125 S.Ct. 2398 (Thomas, J., concurring) (“This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.”).

Further, Byrd’s claim is meritless. Sullivan testified at Byrd’s trial pursuant to a plea deal, implicating himself, Byrd, and codefendant Endress in the murder of Byrd’s wife. Less than a year after Byrd’s trial, however, Sullivan was found to have violated his probation, and the circuit court sentenced him to life for the murder of Byrd’s wife. At the probation violation hearing, Sullivan testified that he did not sell drugs to an undercover officer. On cross-examination, Sullivan agreed that during his direct testimony at Byrd’s trial, he had admitted telling a lie to police when he was first arrested regarding the murder. At trial, however, the prosecutor had pointed out this particular incident to the jury, noting that Sullivan lied on that occasion because he was afraid of the consequences of a murder charge and there was no plea agreement in place. The prosecutor argued that this incident should not otherwise undermine Sullivan’s credibility because once the plea deal was made, Sullivan implicated himself as well as Byrd in the murder. At Sullivan’s violation of probation hearing, the same prosecutor argued that the incident showed that Sullivan would lie to protect himself and was lying at the probation hearing to avoid imposition of a life sentence for the murder. Not only do these facts provide no basis for Byrd’s due-process claim, but the State consistently argued at both proceedings that Sullivan would lie to protect himself.

B. Claims Based on Newly Discovered Evidence

Byrd claims that newly discovered evidence demonstrates that the State deprived him of a fair trial by presenting false or misleading evidence at trial and by suppressing exculpatory or other evidence, and that trial counsel provided ineffective assistance. We review the trial court’s application of the law to the facts of the case de novo. See Preston v. State, 970 So.2d 789, 798 (Fla.2007). Moreover, for a defendant to obtain relief on a claim of newly discovered evidence, the evidence must be of such a nature that it would probably produce an acquittal on retrial. See Jones v. State, 591 So.2d 911, 915 (Fla.1991).

Because Byrd argues that the newly discovered evidence demonstrates that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and that trial counsel provided constitutionally ineffective assistance, we briefly explain the standards applicable to such claims before we begin our review. First, to establish a Brady claim, the defendant must show that he was prejudiced when the State willfully or inadvertently suppressed material, favorable evidence. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). To prove prejudice, the defendant must demonstrate “a reasonable probability that had the suppressed evidence been disclosed, the jury would have reached a different verdict. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Rhodes v. State, 986 So.2d 501, 508 (Fla.2008) (quoting Green v. State, 975 So.2d 1090, 1102 (Fla.2008)); see Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (“[T]he question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995))). A Giglio violation is demonstrated when the prosecutor knowingly presented or failed to correct false testimony that was material to the case. Guzman v. State, 868 So.2d 498, 505 (Fla.2003). The evidence is material “if there is any reasonable likelihood” that it “could have affected” the jury’s verdict. Id. at 506 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Thus, the “State, as the beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt.” Id. Finally, to establish that counsel provided constitutionally ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant first must identify specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. The defendant also must establish prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id.

1. False Testimony Claim

Appellant first claims that the State failed to correct testimony at trial regarding when Sullivan first offered to provide information against Byrd. We agree with the circuit court that the claim is barred. In fact, Byrd admits that he raised 'this claim under Brady and Giglia in his prior postconviction motion and that this Court affirmed the denial of relief. Further, the claim is based on a December 1981 police report that the circuit court found, in ruling on Byrd’s prior postconviction motion, was provided to Byrd’s trial counsel. Finally, because he previously raised a claim of ineffective assistance of counsel regarding use of the document, any such claim here is barred as well.

2. Undisclosed Uncharged Crimes

As previously stated, Sullivan’s negotiated plea deal included the dismissal of a robbery and a grand theft charge. Appellant next contends that the State violated Brady and Giglio by not disclosing that the State dismissed other charges as a part of the plea deal and by presenting false testimony about the terms of the negotiated plea at trial. This contention is largely based on a reference to “burgla-rys [sic]” in the police report mentioned above that was disclosed to Byrd’s trial counsel. To avoid the procedural bar, Byrd argues that testimony by his other codefendant at Byrd’s evidentiary hearing constitutes newly discovered evidence.

Codefendant James Endress did not testify at Byrd’s trial, but he did testify at the evidentiary hearing on Byrd’s successive postconviction motion. At the hearing, Endress’s testimony was consistent with Sullivan’s trial testimony and Byrd’s voluntary confession (which was admitted at Byrd’s trial) that Byrd hired him and Sullivan to commit the murder. Endress also testified in a manner consistent with Sullivan’s trial testimony, that all three men actually participated in the murder. En-dress stated, however, that Sullivan lied at Endress’s trial when he testified that En-dress fired the gun. According to En-dress, it was Sullivan who fired the shots.

Responding to questions by Byrd’s post-conviction counsel about his knowledge of Sullivan’s plea deal, Endress testified in sum that he thought Sullivan was a suspect in some robberies and that someone told Endress that there were about thirteen robberies. Endress testified, however, that he had no knowledge of whether Sullivan committed any robberies. Finally, Endress testified that he did not know much about Sullivan’s plea deal, but “as far as [he] knew,” if there were robbery charges, they were dropped because Sullivan received probation.

We affirm the denial of this claim. First, while Endress’s testimony was new because he previously had not testified, it does not constitute newly discovered evidence. Endress did not know anything about Sullivan’s plea deal; his testimony was mere conjecture. Accordingly, En-dress’s testimony, combined with the prosecutors’ testimony in both the 1989 post-conviction proceedings and in the more recent proceedings that there were no undisclosed elements of the negotiated plea, fully supports the circuit court’s determination that Byrd produced no evidence, newly discovered or otherwise, and that he did not establish either his Brady or Gig-lio claim.

Because Byrd failed to present any newly discovered evidence of the existence of thirteen undisclosed robbery charges, Byrd’s attendant claim that he could have used such evidence in his defense at trial is baseless. Endress denied knowledge of any robberies that Sullivan committed and denied committing any himself. In addition, to the extent that this claim is based on the previously disclosed December 1981 police report and the armed robbery charge that was dismissed as part of Sullivan’s plea deal, the claim is barred. We have reviewed all of Byrd’s claims based on Endress’s testimony and find that none meet the requirements of newly discovered evidence. Even if we assumed that Byrd met the first prongs of the newly discovered evidence, Giglio, and Brady tests, he could not meet them prejudice requirements.

3. Ineffective Assistance of Counsel

Byrd next argues that his ineffective assistance of counsel claims from his prior motion for postconviction relief must be reconsidered (1) because of the alleged newly discovered exculpatory evidence discussed above, and (2) because his trial counsel was disbarred in 2002. First, as explained above, appellant has not presented any newly discovered exculpatory or impeaching evidence. Second, the fact of counsel’s disbarment some twenty years after the trial in this case does not call into question any of the prior postconviction proceedings on Byrd’s ineffective assistance of counsel claims. Cf. Hitchcock v. State, 991 So.2d 337, 351-52 (Fla.2008) (rejecting defendant’s Brady and Giglio claim that State failed to disclose deficiencies of its hair analyst where two years after trial, analyst’s supervisors gave her poor performance evaluation regarding evidence security procedures). Accordingly, we affirm the circuit court’s denial of this claim.

C. Sentencing Order

In his final issue, Byrd alleges that the trial court failed to independently weigh the aggravating and mitigating circumstances and argues that due process requires that he be resentenced. The evidence showed that the trial judge alone made the findings and wrote the sentencing order. The court’s draft was sent to both parties, and the prosecutor responded by pointing out a scrivener’s error that the court corrected. This claim does not meet either of the requirements of rule 3.851(d). Accordingly, we affirm the denial of relief.

IV. CONCLUSION

Having reviewed all of Byrd’s claims and finding them either to be barred or merit-less, we affirm the circuit court’s order.

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

QUINCE, C.J., recused.

PERRY, J., did not participate.

      . In light of the date of these proceedings, neither does Byrd's claim satisfy the newly discovered evidence basis for raising claims in a successive motion. See Fla. R.Crim. P. 3.851(d)(2)(A).

      . We note that in his direct appeal, Byrd argued that the State failed to fully disclose to the jury all of the terms of the plea deal by not eliciting testimony about the armed robbeiy charge that was dismissed. We found no error because defense counsel was cognizant of all the terms of the plea agreement and "could have elicited that portion of the agreement on cross examination.” Byrd, 481 So.2d at 473.


text:
    THE FLORIDA BAR, Complainant, v. Peter David TICKTIN, Respondent.
    No. SC07-369.
    Supreme Court of Florida.
    May 21, 2009.
    Rehearing Denied July 9, 2009.

      John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Michael David Soifer, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
    Kevin P. Tynan of Richardson and Tyn-an, PLC, Tamarac, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Peter David Ticktin, a member of The Florida Bar, be found guilty of professional misconduct and admonished. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact, his recommendations as to guilt, and his findings in aggravation and mitigation, with the exception of the finding in mitigation of imposition of other penalties or sanctions. However, we disapprove the recommended discipline of admonishment. Instead, we impose a ninety-one-day suspension.

BACKGROUND

The Bar filed a two-count complaint against Ticktin seeking lawyer discipline. The Bar alleged that Ticktin violated a number of former Rules Regulating the Florida Bar, as they existed in 2002, through his representations and business dealings that constituted conflicts of interests. In addition, the Bar alleged that Ticktin breached lawyer-client confidentiality. A referee was appointed. The referee conducted a disciplinary hearing and subsequently submitted a report recommending that Ticktin be found guilty of violating the following four rules in Count I: rules 4-1.7(a) (Representing Adverse Interests); 4-1.7(b) (Duty to Avoid Limitation on Independent Professional Judgment); 4-1.7(c) (Explanation to Clients); and 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client). The referee also recommends that Ticktin be found not guilty of violating the following two rules as alleged in Count II: rules 4-1.6(a) (Consent Required to Reveal Information); and 4-1.8(b) (Using Information to Disadvantage of Client). The referee recommends that Ticktin be admonished and that costs be awarded to the Bar.

The Bar petitioned for review challenging the referee’s recommendations of not guilty as to Count II and the recommended sanction of admonishment. Tick-tin cross-petitioned challenging the referee’s recommendation of guilt regarding Count I. The referee’s findings of fact and recommendations as to guilt, which we find are supported by the record, are as follows.

COUNT I

Beginning in 2001, and at all pertinent times afterward, Ticktin represented Paul Johnson in connection with various personal and business matters. Ticktin’s legal representation of Johnson included numerous matters related to three corporations for which Johnson was the founder, held executive authority over until January 2002, and had a continuing ownership interest: (1) Link Express Delivery Solutions, Inc. (LEDS); (2) Silver State Vending Corporation (Silver State) d/b/a Pony Express; and (3) Link Worldwide Logistics (LWL). Johnson and Richard Bee were the only directors of LWL when it acquired a majority of the shares of stock of Silver State. But, Johnson made all the decisions for both LWL and Silver State, and was Bee’s boss.

In the fall of 2001, the Securities and Exchange Commission (SEC) brought a civil action against Johnson concerning LEDS. Ticktin represented Johnson in connection with the civil action until he withdrew in April 2002. Sometime before January 5, 2002, Johnson learned that criminal charges in connection with LEDS were going to be filed against him. Tick-tin dealt with the Assistant U.S. Attorney on Johnson’s behalf concerning the imminent criminal charges and advised Johnson concerning his grand jury appearance. Ticktin recommended a criminal attorney to Johnson, but he did not appear in the criminal case. Johnson was ultimately arrested and convicted of defrauding investors out of $20 million.

In anticipation of his arrest, on or about January 5, 2002, Johnson met with Ticktin to discuss who would replace Johnson as chief executive officer (CEO) of Silver State. The referee believed Ticktin’s testimony that he was tricked by Johnson into suggesting himself as a suitable replacement. But both Ticktin and the law partner with whom Ticktin discussed the matter viewed it as an opportunity. On January 7, 2002, Johnson, Ticktin, Bee, and Ticktin’s law partner met at Ticktin’s law office where the following announcements was made concerning Silver State: (1) Ticktin would immediately replace Johnson as Chairman and CEO; (2) Tick-tin’s law partner would assume the role of chief financial officer (CFO); and (3) Tick-tin’s law firm would remain as corporate counsel. Bee understood that, after that meeting, Ticktin would be his new boss at Silver State.

Ticktin failed to prepare a written document for Johnson or Silver State fully disclosing and transmitting the terms of the transaction or the terms by which Ticktin acquired an interest in Silver State, as required by former rule 4-1.8(a)(1). The referee found that a written press release purportedly prepared and issued by Johnson did not satisfy the requirements of the rule. The press release stated that Ticktin accepted the position of Chairman and CEO, Ticktin’s law partner accepted appointment as CFO, and Johnson was to remain as a primary consultant. The press release was not prepared by Ticktin and did not fully disclose the terms of the transaction or contain the oral waiver of conflict and confidentiality Ticktin claims he obtained from Johnson, which the referee found was an essential term of the transaction.

Ticktin testified that the oral waiver of conflict and confidentiality obtained from Johnson at the January meeting only pertained to Silver State. Ticktin admitted that he did not have a waiver from Johnson pertaining to LWL or a waiver from Silver State, pertaining to Johnson, as required by former rule 4-1.7(a). There is no evidence to show that Johnson understood the meaning or extent of any oral waiver claimed by Ticktin. In April 2002, when Ticktin presented a written waiver, Johnson refused to sign it.

The referee found Ticktin’s testimony was not credible that he had not taken over as CEO of Silver State in January 2002. On February 26, 2002, Ticktin mailed a letter to shareholders and potential investors that stated he had assumed his role as CEO and Chairman of Silver State approximately eight weeks earlier. The referee found that when Ticktin made it known that he had no intention of being “Johnson’s ‘puppet,’ ” his interests became adverse to Johnson’s interests. The adverse positions between Ticktin and Johnson “became stark” by April 2002, when Ticktin decided he needed Johnson completely out of the business if it was to succeed.

At that time, Johnson held an assignment for 14.5 million shares of LWL stock, which made him the majority shareholder. Furthermore, LWL was the majority shareholder in Silver State. Bee was the only active trustee for LWL after Johnson’s arrest. Bee testified that prior to Johnson’s ai’rest, the certificates for 14.5 million shares in LWL had been issued, but they had not been delivered to Johnson. Ticktin and Bee saw Johnson’s failure to take delivery of the shares in LWL as their mutual opportunity to completely oust Johnson from that corporation. Tick-tin visited Johnson in jail on multiple occasions during April 2002 in order to obtain Johnson’s signature on certain agreements. An initial proposed agreement would have provided Johnson with 2.5 million shares of Silver State stock in exchange for his 14.5 million shares in LWL. And that agreement also would have secured Johnson’s written waiver as to any existing conflicts of interest that Ticktin wanted and needed. Johnson refused to sign the agreement.

In that same period, Bee approached Ticktin for advice regarding what to do about Johnson’s stock shares in LWL. Ticktin informed Bee that such advice would be a conflict of interest because he had no waiver of conflict from Johnson concerning LWL. Ticktin suggested that Bee seek the advice of other counsel regarding Johnson’s LWTL shares. After consulting with another lawyei', Bee informed Ticktin that he was advised that Johnson’s LWL shares could be cancelled. And Bee testified that even though it was his decision to cancel Johnson’s LWL shares, prior to doing so he discussed it with Ticktin. Ticktin told Bee to do whatever Bee thought was necessary. Bee cancelled Johnson’s LWL shares.

After Bee cancelled Johnson’s LWL shares, Ticktin’s law firm prepared a letter, which Bee signed. That letter provided Johnson with another opportunity to sign a written waiver of conflict and another agreement prepared by Ticktin that offered Johnson 1.7 million shares Silver State stock. Again, Johnson refused to sign the agreement or the written waiver of conflict.

The referee found that Ticktin was involved in conflicts of interest when he simultaneously represented LWL, Silver State, and Johnson. Ticktin admitted that he did not have the consent of LWL, Silver State, or Johnson for matters related to LWL. The referee found there was evidence clearly showing that Silver State and LWL were inextricably linked. Tick-tin was Bee’s boss at Silver State, Bee had assumed executive authority at LWL, and Ticktin’s law firm provided legal counsel to Bee on issues pertaining to LWL. Ticktin had access to confidential information for all of the parties involved and owed each party a duty of loyalty and confidentiality. The referee found that Ticktin was clearly working with Bee against Johnson’s interests when Ticktin was Johnson’s lawyer. Ticktin was representing the interests of Johnson and LWL contemporaneously with his efforts and the efforts of his law firm to resolve potential claims that were being made against Silver State and LWL by former LEDS shareholders. In taking steps to resolve those claims, Ticktin’s actions were in conflict with Johnson’s ownership interest in LWL.

The referee further found that Ticktin’s self-interest and the interests of Silver State substantially limited his independent judgment in representing LWL and Johnson, contrary to the requirements of former rule 4-1.7(b). As Johnson’s attorney, Ticktin had a duty to seek all appropriate legal means to protect Johnson’s interests. Ticktin did not provide Johnson with the requisite counsel regarding his interest in LWL. Instead, Ticktin tried to get Johnson to sign the agreement to relinquish his shares, and when that failed, he did nothing to prevent Bee’s actions to extinguish Johnson’s ownership interest in LWL, which necessarily worked to extinguish Johnson’s involvement in Silver State. Thus, the referee concluded that Ticktin could not reasonably believe that his representation of Johnson was not adversely affected by the actions in which he and his law firm participated. In addition, Ticktin did not perform the requisite consultation and obtain the necessary consents from his clients when he represented multiple parties in the action to extinguish Johnson’s ownership interest in LWL and Silver State, as required by rule 4-1.7(c).

Based on these findings, the referee recommends that Ticktin should be found guilty of violating the following rules in Count I: rule 4-1.7(a) (a lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client); rule 4 — 1.7(b) (a lawyer shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest); rule 4-1.7(c) (when representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved); and rule 4-1.8(a) (a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possesso-ry, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer’s fee or expenses, without written consent).

COUNT II

After Johnson was arrested on federal charges, Ticktin testified, in early March 2002, before a federal magistrate judge at a bond hearing. At that hearing Ticktin testified that, among other things, he did not believe Johnson was a flight risk. His opinion was based on the fact that Johnson had returned to Florida knowing that he was going to be arrested. However, in April 2002, Johnson told Ticktin that he learned that if convicted, he would not be placed in a minimum security facility, but a medium or maximum security prison. Ticktin testified before the referee that he could see fear in Johnson’s eyes and, thus, his opinion changed about whether Johnson was a flight risk. Because Ticktin learned that a federal district court judge was going to review the materials from the bail hearing the next day, Ticktin sent a letter to the Assistant U.S. Attorney, withdrawing his testimony before the federal magistrate judge. Ticktin’s letter indicated that he believed his testimony at the time it was given, but later had reason to change his mind.

The referee found that Ticktin neither revealed any of his communications with Johnson nor indicated which portion of his previous testimony he no longer believed. The referee concluded that because Ticktin changed his opinion, had he not withdrawn his testimony, he would have violated rule 4-3.3(a)(4), providing that if a lawyer “has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures.” The referee reasoned that because rule 4-1.6(c)(5) provided that an attorney “may reveal such information to the extent the lawyer reasonably believes necessary ... to comply with the Rules of Professional Conduct,” Ticktin took the appropriate steps, under the rules governing professional conduct, to withdraw his testimony.

Based on these findings, the referee recommends that Ticktin be found not guilty of the two rule violations charged in Count II: rule 4-1.6(a) (a lawyer shall not reveal information relating to representation of a client); and rule 4-1.8(b) (a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation).

SANCTION

The referee found one aggravating factor, substantial experience in the practice of law. He also found six mitigating factors: (1) absence of a prior disciplinary record; (2) absence of dishonest motive; (3) full and free disclosure to the disciplinary board or a cooperative attitude toward its proceedings; (4) good character and reputation; (5) imposition of other penalties or sanctions; and (6) remorse. Based on his findings and Florida Standard for Imposing Lawyer Sanctions 4.34, the referee recommends that the Court discipline Ticktin by admonishment.

DISCUSSION

Based on the parties’ challenges, we address five issues here: (1) whether the referee’s findings of fact are sufficient to support the recommendations of guilt as to Count I; (2) whether the referee’s findings of fact are sufficient to support the recommendations that respondent is not guilty as to Count II; (3) whether the referee’s decision not to find additional aggravating factors is clearly erroneous or without support in the record; (4) whether the referee’s findings in mitigation are clearly erroneous or without support in the record; and (5) whether the referee’s recommended sanction is reasonably supported by the Florida Standards for Imposing Lawyer Sanctions and existing case law.

ANALYSIS

First, we find no merit to Tick-tin’s challenge to the referee’s recommendations of guilt as to Count I. A referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005). Ticktin does not expressly challenge the referee’s extensive findings of fact or argue that those findings do not support the recommendations of guilt. Rather, regarding the rule 4-1.7 violations, Ticktin argues that he owed a duty to LWL not to help Johnson as well as a duty to Johnson not to help LWL. Ticktin maintains he did the only thing he could do under the circumstances and, thus, he contends that he backed away from any conflict as soon as it arose. Ticktin further offers undeveloped arguments that the referee made numerous errors regarding his recommendation of guilt as to the charges of violating rule 4-1.7. We find no merit in Ticktin’s argument. The referee’s findings of fact and this record support the conclusion that Ticktin immersed himself in a conflict-laden situation and acted in clear violation of rules 4 — 1.7(a)—(c).

Regarding rule 4 — 1.8(a), Ticktin argues that the writing requirement of the rule should not be strictly interpreted to require that the writing be prepared by the attorney and urges us to find that the press release prepared by Johnson was sufficient in this case. We agree with the Bar that rule 4-1.8(a) contemplates that the attorney will prepare the written document disclosing the terms of the transaction by requiring that the terms must be “fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client.” The Bar also is correct that even if the writing could be prepared by the client, the referee found that the press release prepared by Johnson did not “fully disclose the terms of the transaction,” i.e., it did not state that Johnson was waiving any conflict of interest. These findings are sufficient to support the recommendation that Ticktin be found guilty of violating rule 4-1.8(a). We therefore approve the referee’s recommendation that Ticktin be found guilty of the rule violations alleged in Count I.

Next, we examine whether the referee’s findings of fact are sufficient to support his recommendation that Ticktin be found not guilty of the rule violations alleged in Count II. See Shoureas, 913 So.2d at 557-58. The Bar urges us to disapprove this recommendation.

The Bar argues that when Ticktin withdrew the testimony that he gave before the federal magistrate judge, he revealed confidential information related to Johnson’s “innocuous statement” pertaining to his eventual prison placement if convicted. The referee found that Ticktin did not reveal any details about his conversation with Johnson or why his opinion had changed to the Assistant U.S. Attorney. Accordingly, the findings are sufficient to support a recommendation that Ticktin was not guilty of violating former rule 4-1.6(a) (Consent Required to Reveal Information). The Bar further argues that Ticktin used the “information” he learned from his conversation with Johnson to Johnson’s disadvantage regarding a potential pretrial bond in 2002. The referee found that Ticktin did not use information acquired during his representation of Johnson in a way that disadvantaged Johnson’s chance to obtain a pretrial bond, even though Ticktin clearly changed his mind about whether Johnson was a flight risk. Thus, the referee’s findings support his recommendation of not guilty for any violations of former 4 — 1.8(b) (Using Information to Disadvantage of Client). We therefore approve the referee’s recommendation that Ticktin be found not guilty of the rule violations alleged in Count II.

Next, the Bar maintains that the referee should have found the aggravating factors of selfish motive, multiple offenses, a pattern of misconduct, and vulnerability of the victim. A referee’s findings in aggravation carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. See Fla. Bar v. Arcia, 848 So.2d 296, 299 (Fla.2003); see also Fla. Bar v. Morse, 784 So.2d 414, 415-16 (Fla.2001); Fla. Bar v. Bustamante, 662 So.2d 687, 687 (Fla.1995); Fla. Bar v. Hecker, 475 So.2d 1240, 1242 (Fla.1985).

We disagree with the Bar’s argument. Merely because there is some evidence pertaining to an aggravating factor does not mean that that evidence rises to the level necessary to support a finding of that aggravator. In weighing the evidence, the referee determined that only one aggravating factor, Ticktin’s substantial experience in the practice of law, applied.

As to selfish motive, even though the referee found that there was an element of self-interest, he concluded that the finding was not sufficient to find this ag-gravator. The record supports the referee’s conclusion that Ticktin’s actions pertaining to the cancellation of Johnson’s LWL shares primarily benefitted the investors that Johnson defrauded. Therefore, the referee’s decision not to find selfish motive as an aggravating factor is not clearly erroneous.

As to multiple offenses, Ticktin violated four rules within a single count in the complaint. Further, he is not guilty of the Count II violations. Thus, it is not clear error that the referee decided not to find multiple offenses as an aggravating factor.

As to a pattern of misconduct, the referee found Ticktin’s misconduct here to be aberrational. His misconduct relates to a single, continuing series of closely related events over a short period of time. The referee’s decision that a pattern of misconduct should not apply as an aggravating factor is not clearly erroneous.

Finally, in rejecting vulnerability of the victim as an aggravating factor, the referee found that Johnson was a “very sophisticated client who was the CEO of publicly traded corporations” who received a twenty-year sentence in a federal prison for defrauding investors of $20 million. Vulnerability of a victim is established when findings support that a respondent exercised undue advantage over a client who was not reasonably in a position to protect himself or herself. The Bar argues that Johnson was a vulnerable victim of Ticktin merely because he was incarcerated during the pertinent period. In rejecting this aggravator, the referee properly considered the totality of the circumstances. The fact that Johnson was incarcerated does not require a finding of vulnerability of the victim. Accordingly, we approve the referee’s finding of a single aggravating factor.

The Bar also challenges the following findings in mitigation: absence of a dishonest motive; full and free disclosure to the disciplinary board or cooperative attitude toward the disciplinary process; remorse; and imposition of other penalties or sanctions. “A referee’s findings as to mitigation ... carry a presumption of correctness and will not be disturbed unless clearly erroneous or without support in the record.” Fla. Bar v. Valentine-Miller, 974 So.2d 333, 336 (Fla.2008); see also Arcia, 848 So.2d at 299 (Fla.2003); Morse, 784 So.2d at 415-16 (Fla.2001).

The referee’s evaluation of the credibility of several witnesses, documen-taiy evidence, and the Bar’s concession before the referee that Ticktin had “no dishonest intent” supports the finding of absence of a dishonest motive as a mitigating factor. Next, without argument or other support, the Bar asserts that full and free disclosure to the disciplinary board or cooperative attitude toward the disciplinary process should not be found in mitigation. Because the Bar fails to show how this finding in mitigation is clearly erroneous or lacking in evidentiary support, we approve this mitigating factor.

Next, the fact that the referee assigned little weight to the finding of remorse as a mitigating factor does not warrant its exclusion as a presumptively correct finding. The referee found that Ticktin was remorseful about not memorializing his business agreement and alleged waiver of conflict of interests in writing. Therefore, this finding in mitigation by the referee is also approved. However, the referee’s finding of imposition of other penalties or sanction as a mitigating factor, based on the fact that Ticktin (1) continues to fulfill his financial obligations even though he was forced to declare bankruptcy after he lost millions of dollars from his personal wealth, and (2) has experienced profound personal and professional embarrassment from being involved in the present disciplinary process, is clearly erroneous. We have consistently determined that application of this mitigating factor requires the imposition of a formal sanction or penalty.

The referee does not provide any case law in support of his conclusion that the personal economic losses that Tiektin suffered should be considered the imposition of other penalties or sanctions under standard 9.32(k). While it is evident that the referee found Ticktin’s eventual financial circumstances and embarrassment to be sympathetic factors in this case, there is no authority for a finding of imposition of other penalties or sanctions as mitigation. Under the circumstances of this case, we see no reason to recognize Ticktin’s substantial personal economic losses and his embarrassment, all of which resulted from Ticktin’s serious professional misconduct, as other mitigating factors not enumerated in the standards. Accordingly, we disapprove the referee’s finding of imposition of other penalties or sanctions as clearly erroneous.

Finally, we consider the referee’s recommended sanction. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Before the referee, the Bar sought a sixty-day suspension. Finding a suspension too harsh, the referee recommends an admonishment, pursuant to standard 4.34. The Bar challenges this recommendation urging us to impose at least a sixty-day suspension. We agree with the Bar that a suspension is warranted. An admonishment is not supported by the case law and the standards. Rule Regulating the Florida Bar 3 — 5.1(b) states that minor misconduct is the only type of misconduct for which an admonishment is appropriate. The rule states, in pertinent part, that a lawyer’s misconduct shall not be regarded as minor misconduct if “the misconduct resulted in or is likely to result in actual prejudice (loss of money, legal rights, or valuable property rights) to a client or other person.” R. Regulating Fla. Bar 3-5.1(b)(1)(B). Ticktin’s misconduct caused actual prejudice to Johnson.

Johnson had a protectable interest in his LWL stock shares when Tiektin stood by while Bee cancelled the stock certificates, which Tiektin perceived would benefit Silver State. Tiektin later accepted and supported the cancellation. Tiektin failed to take appropriate legal steps to protect Johnson’s ownership interests in LWL. Ticktin’s misconduct either caused or led to Johnson’s loss of valuable property ownership interests in LWL. Thus, Ticktin’s misconduct was not minor pursuant to rule 3 — 5.1(b). The Bar relies on standard 4.32, which provides that “[sjuspension is appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.” Ticktin was cognizant that his representations constituted conflicts of interest, but did little or nothing to eliminate them. He did not adequately disclose the possible effect of the existing conflicts of interest to his clients. Regarding client injury, Ticktin caused injury or potential injury to Johnson when he did nothing to stop the cancellation of Johnson’s LWL stock certificates, which Ticktin perceived would benefit Silver State. The actual injury (or potential injury) Ticktin caused is that he, as Johnson’s lawyer, actively worked against Johnson’s ownership interests, even while Johnson was in jail and remained his client.

We find that Ticktin’s misdeeds are egregious and constitute serious violations of the rules governing every Florida lawyer’s professional conduct. Ticktin’s misconduct warrants a ninety-one-day suspension. A rehabilitative suspension is consistent with the discipline this Court has imposed for similar misconduct. In Florida Bar v. Sofo, 673 So.2d 1 (Fla.1996), the respondent represented two corporations, in which he owned stock, with conflicting interests regarding a contract between those corporations without consent. The respondent used information that he obtained during the course of representing one corporation to its detriment and to the other corporation’s benefit. The Court imposed a ninety-one-day suspension.

Ticktin’s blatant disregard for the rules governing conflicts of interest reflects his poor professional judgment. Ticktin’s misconduct is unbecoming of a member of The Florida Bar, and such misconduct will not be taken lightly by this Court. Therefore, we impose a ninety-one-day suspension to emphasize to the Bar and the public that misconduct like Ticktin’s will result in severe disciplinary consequences.

Accordingly, Peter David Ticktin is hereby suspended from the practice of law for ninety-one days. The suspension will be effective thirty days from the filing of this opinion so that Ticktin can close out his practice and protect the interests of existing clients. If Ticktin notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Ticktin shall accept no new business from the date this opinion is filed until he is reinstated. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Peter David Ticktin in the amount of $5,346.42, for which sum let execution issue.

It is so ordered.

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

PERRY, J., did not participate.

      . The referee reports that at the time Ticktin became Johnson's corporate lawyer, LEDS had already been dissolved, but Ticktin represented Johnson in litigation matters related to LEDS. Only after LEDS dissolved did Johnson launch Link Worldwide Logistics (LWL).

      . It was not until April 24, 2002, that the federal trial court granted Ticktin leave to withdraw as counsel of record in the civil action.

      . Ticktin personally invested millions of dollars into the business, giving him another basis for self-interest.

      . The referee recommends this mitigation based on the fact that Ticktin lost millions of dollars and was forced into bankruptcy, yet he has continually met his financial obligations. Also the referee considered the personal and professional embarrassment Ticktin endured afterward to be a mitigating factor.

      . The referee assigned little weight to this mitigating factor, because “[Ticktin] regrets only his failure to properly put the terms of his arrangement with Mr. Johnson in writing.”

      . Standard 4.34 describes the circumstances under which admonishment is the presumptively appropriate discipline for an attorney’s failure to avoid a conflict of interest.

      . Rule 4-1.7(a) (Representing Adverse Interests) (2002) provided:
      A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client; and (2) each client consents after consultation.
      Rule 4-1.7(b) (Duty to Avoid Limitation on Independent Professional Judgment) (2002) provided:
      A lawyer shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.
      Rule 4-1.7(c) (Explanation to Clients) (2002) provided: "When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”

      . Rule 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client) (2002) provided:
      A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer's fee or expenses, unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) the client consents in writing thereto,

      . Rule 4-1.6(a) (Consent Required to Reveal Information) (2002) provided: "A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client consents after disclosure to the client.”

      . Rule 4-1.8(b) (Using Information to Disadvantage of Client) (2002) provided: "A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by rule 4-1.6.”

      . See Fla. Bar v. Orta, 689 So.2d 270, 273 (Fla.1997) (multiple offenses applied because respondent was found guilty in three separate counts that involved dishonesty, which occurred while he was suspended); Fla. Bar v. Adler, 589 So.2d 899, 900 (Fla.1991) (multiple offenses applied because the referee found that respondent committed multiple trust fund violations).

        .See Fla. Bar v. Germain, 957 So.2d 613, 622 (Fla.2007) (stating previous discipline for the same kind of misconduct establishes a pattern of misconduct); Fla. Bar v. Walkden, 950 So.2d 407, 410 (Fla.2007) (stating there is a pattern of misconduct for continuing to engage in acts constituting the practice of law while suspended).

      . See Fla. Bar v. Barrett, 897 So.2d 1269, 1277 (Fla.2005) (vulnerability of a victim supported where one of the victims retained respondent’s law firm only because she was angry that somebody else had tried to take advantage of her during a time in which she was clearly preoccupied with her son's critical injuries); Fla. Bar v. Karten, 829 So.2d 883, 890 (Fla.2002) (finding evidentiary support for vulnerability of a victim as an aggravating factor where the respondent, without authorization, took possession of and sold four vehicles belonging to his client while his client was detained in a federal prison located outside of Florida).

      . The referee alternatively offers these findings as other mitigating factors not listed in standard 9.32(k).

      . See, e.g., Fla. Bar v. De la Torre, 994 So.2d 1032, 1037 (Fla.2008) (recognizing imposition of other penalties or sanctions as a mitigating factor because respondent was subject to specified conditions of probation in a related criminal case); Fla. Bar v. Hagendorf, 921 So.2d 611, 612 (Fla.2006) (recognizing respondent’s suspension for sixty days by the Supreme Court of Nevada, prior to disciplinary proceedings in Florida, as a mitigating factor).

      . Standard 4.34 provides; "Admonishment is appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer's own interests, or whether the representation will adversely affect another client, and causes little or no injury or potential injury to a client.”

      . There is nothing in the record to support the referee's finding that Johnson was not injured or potentially injured by Ticktin's con-filet because Johnsons' shares in LWL already had been forfeited to the federal government.


author: LABARGA, J.

text:
    Robert J. PLEUS, Jr., Petitioner, v. Charles J. CRIST, Jr., Governor, Respondent.
    No. SC09-565.
    Supreme Court of Florida.
    July 2, 2009.

      Talbot C. D’Alemberte of D’Alemberte and Palmer, Tallahassee, FL, for Petitioner.
    Jason Gonzalez, Gerald B. Curington, Erik M. Figlio, and Carly A. Hermanson, Executive Office of the Governor, Tallahassee, FL, for Respondent.
    Siobhan Helene Shea, Chair, Appellate Practice Section, The Florida Bar, Tallahassee, FL, on behalf of Appellate Practice Section, The Florida Bar; Keersten Hes-kin Martinez of Fisher, Rushmer, Werren-rath, Dickson, Talley and Dunlap, P.A., Orlando, FL, and Joyce C. Fuller of J.C. Fuller, P.A., Winter Park, FL, on behalf of The Central Florida Association of Women Lawyers; and Charles E. “Chuck” Hobbs, II, Tallahassee, FL, on behalf of The Florida State Conference of Branches of the NAACP, as Amici Curiae.
   LABARGA, J.

Petitioner Robert J. Pleus, Jr., a retired judge of the Fifth District Court of Appeal, filed a petition for writ of mandamus in this Court seeking an order compelling Governor Crist to fill the vacancy created in the Fifth District Court of Appeal by the Petitioner’s mandatory resignation. The issue raised by the petition concerns the extent of the Governor’s authority in making judicial appointments under the Florida Constitution. Specifically, we are called upon to decide whether the Governor must fill the vacancy created by Petitioner’s resignation with a judicial appointment from the list of nominees certified to him on November 6, 2008, and do so within sixty days of receiving that list. Having reviewed the parties’ pleadings, as well as the briefs filed by Amici Curiae,' and in consideration of the oral arguments, we conclude that the Florida Constitution mandates that the Governor appoint a judicial nominee within sixty days of the certification of nominees by the Judicial Nominating Commission for the Fifth Appellate District. We also conclude that, within this process, the Governor is not provided the authority under the constitution to reject the certified list and request that a new list be certified.

I. Background

The facts are not in dispute. Petitioner tendered his resignation as judge of the Fifth District Court of Appeal to the Governor on September 2, 2008, to become effective on January 5, 2009. Having accepted the Petitioner’s letter of resignation, the Governor requested that the Judicial Nominating Commission for the Fifth Appellate District (hereinafter “JNC”) provide him with a list of qualified applicants. A total of twenty-six applicants sought the appointment. The JNC reviewed the applications and conducted interviews. On November 6, 2008, the JNC certified to the Governor a list of six nominees for appointment to the Fifth District Court of Appeal.

In a letter dated December 1, 2008, the Governor advised the JNC Chair that he was rejecting the certified list of nominees. In the interest of diversity in the courts, the Governor requested that the JNC reconvene to consider the applications of three African-Americans who had applied to fill the vacancy. The JNC met to consider the Governor’s request, and resubmitted the original list of nominees to the Governor. The Governor has not filled the vacancy to date.

II. History and Intent of Article V, Section 11(c), Florida Constitution

Article V, section 11(c), governs the time periods applicable to judicial nominating commissions in nominating judicial applicants to fill vacancies and to the governor in making judicial appointments. That provision of the constitution expressly requires the following: “The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor.”

In the past, we have discussed at length the origin and purpose of article V, section 11, of the Florida Constitution, explaining the restraints the constitutional provision places on the Governor’s appointment power:

In the deliberations of the Florida Constitutional Revision Commission, it was proposed that judicial nominating commissions be created to screen applicants for judicial appointments within their respective jurisdictions and to nominate the three best qualified persons to the Governor for his appointment. The commissions tuere to be an arm of the executive appointive power to supplant, at least in part, the Governor’s so-called “patronage committee” composed of political supporters, to insure that politics would not be the only criteria in the selection of judges, and to increase generally the efficiency of the judicial appointive process.
... [T]he judicial nominating commissions [of the Revised Article V of the Florida Constitution, effective January 1, 1973] are elevated to constitutional stature and permanence. The process of non-partisan selection has been strengthened even further because nominations made by the judicial nominating commissions have now been made binding upon the Governor, as he is under a constitutional mandate to appoint “one of not fewer than three persons nominated, by the appropriate judicial nominating commission. Moreover, the Governor must make the appointment within sixty days after the nominations have been certified, to him. Fla. Const., art. V (Rev.), § 11(a), F.S.A. However, this same provision confers upon the Governor the express power to make the final and ultimate selection by appointment.
... The pyrpose of the judicial nominating commission is to take the judiciary out of the field of political patronage and provide a method of checking the qualifications of persons seeking the office of judge. When the commission has completed its investigation and reached a conclusion, the persons meeting the qualifications are nominated. In this respect the commissioners act in an advisory capacity to aid the Governor in the conscientious exercise of his executive appointive power.
This appointive power is diluted by the Constitution to the extent that a nomination must be made by the appropriate commission, unrestrained by the influence of the Governor. To allow the Governor to guide the deliberations of the commissions by imposing rules of procedure could destroy its constitutional independence. This does not preclude him from making recommendations concerning rules.
Seeking to remove some of the discretion of the Governor’s office in the appointment of judicial officers is an apparent goal of the people which can best be attained by providing discretion to their commissions to promulgate rules of procedure for their hearings and findings, independent of any of the three standard recognized divisions of state government. While the function of the commissions is inherently executive in nature, the mandate for the commissions comes from the people and the Constitution, not from the Legislature, the Governor, or the Courts.

In re Advisory Opinion to the Governor, 276 So.2d 25, 28-30 (Fla.1973) (emphasis added) (citation omitted).

Similarly, in Spector v. Glisson, 305 So.2d 777 (Fla.1974), we restated the objective that underlies displacing sole executive prerogative from the judicial appointment process:

The nominating commission process in § 11 of Art. V is really a restraint upon the Governor — not a new process for removing from the people their traditional right to elect their judges as provided in the basic, preceding § 10 of Art. V. One of the principal purposes behind the provision for a nominating commission in the appointive process was — not to replace the elective process — but to pla,ce the restraint upon the “pork barrel” procedure of purely political appointments without an overriding consideration of qualification and ability. It was sometimes facetiously said in former years that the best qualification to become a judge was to be a friend of the Governor! The purpose of such nominating commission, then, was to eliminate that kind of selection which some people referred to as “picking a judge merely because he was a friend or political supporter of the Governor” thereby providing this desirable restraint upon such appointment and assuring a “merit selection” of judicial officers.

Id. at 783 (emphasis added).

III. Discussion

“The interpretation of the Florida Constitution is a question of law” for the Court. Jackson-Shaw Co. v. Jacksonville Aviation Authority, 8 So.3d 1076, 1084-85 (2008). In interpreting the constitution, our analysis is straightforward. We begin with an examination of the explicit language of article V, section 11(c). “If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written.” Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 511 (Fla.2008) (quoting Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986)). “Our goal in construing a constitutional provision is to ascertain and effectuate the intent of the framers and voters.” Id. at 510. As we have previously explained:

The fundamental object to be sought in construing a constitutional provision is to ascertain the intent of the framers and the provision must be construed or interpreted in such manner as to fulfill the intent of the people, never to defeat it. Such a provision must never be construed in such manner as to make it possible for the will of the people to be frustrated or denied.

Ford v. Browning, 992 So.2d 132, 136 (quoting Crist v. Fla. Ass’n of Crim. Defense Lawyers, 978 So.2d 134, 140 (Fla.2008)). We remain mindful that in construing a constitutional provision, we are not at liberty to add words that were not placed there originally or to ignore words that were expressly placed there at the time of adoption of the provision. See Lawnwood, 990 So.2d at 512.

With these principles in mind, we turn to the language of article V, section 11(c), of the Florida Constitution:

(c) The nominations [for judicial office] shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor.

Art. V, § 11(c), Fla. Const, (emphasis added). The plain language of article V, section 11(c), mandates that the Governor, upon receipt of the certified list of nominees from a judicial nominating commission, make an appointment from that list within sixty days to fill the judicial vacancy. Significantly, in addition to the mandatory language that is expressly stated in the provision, we note the absence of any language granting the Governor authority to reject the JNC’s certified list of nominees or to extend the time in which the appointment for judicial office must be made. Cases such as In re Advisory Opinion to the Governor and Spector provide ample historical support for this interpretation.

Petitioner Pleus has sought mandamus relief in this Court. To be entitled to mandamus relief, “the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.” Huffman v. State, 813 So.2d 10, 11 (Fla.2000). Based upon our foregoing analysis, we hold that article V, section 11(c), imposes a clear and indisputable legal duty upon the Governor in his exercise of appointing judicial nominees to act within sixty days of receiving the certified list of nominees. Petitioner, as a citizen and taxpayer, has a clear legal right to request that the Governor carry out that duty. See Chiles v. Phelps, 714 So.2d 453, 456 (Fla.1998). In so holding, we reject the proposition that the Governor’s failure to act within the mandated time frame obviates that duty. To hold otherwise would render the constitutional provision nugatory.

We also reject the argument that mandamus does not lie because the appointment process is an executive function that is inherently discretionary. By allowing this mandamus proceeding, we do not direct the Governor’s discretionary decision as to the actual appointment to fill the judicial vacancy. Rather, we simply recognize and enforce the mandate contained in article V, section 11, which requires the Governor to adhere to his duty to make an appointment within the mandated time frame from the certified list of nominees. We recognize that, in fulfilling this constitutional duty, the Governor has discretion in his selection of a nominee from the list.

Finally, we reject the argument that an action for declaratory judgment in the circuit court is an adequate legal remedy under the facts and circumstances of this case, thus requiring denial of mandamus in this Court. As the Court stated in In re Advisory Opinion to the Governor (Judicial Vacancies), 600 So.2d at 462, “[vjacaneies in [judicial] office are to be avoided whenever possible. We are confident that the framers of article V intended that the nominating and appointment process would be conducted in such a way as to avoid or at least minimize the time that vacancies exist.” In this case, the passage of almost six months since the petitioner’s resignation became effective warrants our decision, now, in this mandamus proceeding in order to effectuate the intent of the framers to avoid or minimize further delay in filling this judicial vacancy. Moreover, while we applaud the Governor’s interest in achieving diversity in the judiciary — an interest we believe to be genuine and well-intentioned — the constitution does not grant the Governor the discretion to refuse or postpone making an appointment to fill the vacancy on the Fifth District Court of Appeal.

CONCLUSION

We conclude that the Governor is bound by the Florida Constitution to appoint a nominee from the JNC’s certified list, within sixty days of that certification. There is no exception to that mandate. Therefore, we hold that under the undisputed facts and specific circumstances present in this case, the Governor lacks authority under the constitution to seek a new list of nominees from the JNC and has a mandatory duty to fill the vacancy created by Petitioner’s retirement with an appointment from the list certified to him on November 6, 2008. Because we believe the Governor will fully comply with the dictates of this opinion, we grant the petition but withhold issuance of the writ.

It is so ordered.

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

      . Article V, section 8, of the Florida Constitution provides, in pertinent part, that "[n]o justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served." Petitioner has served on the Fifth District Court of Appeal as a senior judge since his retirement.

      . This case does not involve any claim that the process for the selection of the nominees was tainted by impropriety or illegality. Our decision in this case should not be understood to suggest that no remedy would be available to address such a tainted process.

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . Amicus briefs were filed, with leave of Court, by the Appellate Practice Section of The Florida Bar, the Central Florida Association for Women Lawyers, and the Florida State Conference of Branches of the National Association for the Advancement of Colored People.

      . It should be noted that the Legislature has also addressed the interest of diversity in the judicial nominating process in section 43.291(4), Florida Statutes (2008). That section provides that the Governor, in appointing members of each judicial nominating commission, "shall seek to ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as geographic distribution, of the population within the territorial jurisdiction of the court for which nominations will be considered." § 43.291(4), Fla. Stat. (2008).