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    Ronald KNIGHT, Appellant, v. STATE of Florida, Appellee. Ronald Knight, Petitioner, v. Julie L. Jones, Etc., Respondent.
    No. SC13-820
    No. SC14-567
    Supreme Court of Florida.
    [December 15, 2016]

      Neal Andre Dupree, Capital Collateral Regional Counsel—Southern Region, WilliamMcKinley Hennis, III, Litigation Director, Capital Collateral Regional Counsel—Southern Region, and Nicole M. Noel, Assistant Capital Collateral Regional Counsel—Southern Region, Fort Lauder-dale, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee/Respondent
   PER CURIAM.

Ronald Knight appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 8(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the postconviction court’s denial of relief and, deny habeas relief.

FACTS

After a nonjury trial, Knight was convicted of first-degree murder in the 1993 shooting death of Richard Kunkel. Knight v. State, 770 So.2d 663, 664 (Fla. 2000). He was also convicted of armed robbery, burglary of a dwelling, and grand theft of an automobile in connection with the crime. Id. “Knight was sentenced to death for the first-degree murder conviction, life imprisonment for' the armed robbery conviction, fifteen years for the burglary of a dwelling conviction, and five years for the grand theft conviction.” Id. During the guilt phase, Knight represented himself, with attorney Jose Sosa acting as standby counsel. Id, For the penalty phase, Knight was represented by Sosa. Id. On direct appeal, we described the facts as follows:

The evidence presented during the guilt phase indicated that Knight and two accomplices, Timothy Peirson (Peirson) and Dain Brennault (Bren-nault), [n.2] agreed that they would go to a gay bar, lure a man away from the bar, and beat and rob him. The three found Richard Kunkel (Kunkel) and invited him to go to a party with them. Kunkel was driving his own car and followed Knight and the others to Miami Subs. After stopping to eat, the three convinced Kunkel to leave his car parked there and ride to the party with them. Knight then drove to a secluded area where they stopped twice and got out of the car to urinate.
[N.2] Peirson received three years in prison and Brennault received five years’ probation. The evidence revealed neither of them knew Knight planned to kill Richard Kunkel.
Before they got back into the car after their second stop, Knight pointed a gun at Kunkel and told him to turn around and take off his jeans. As Kunkel was complying, Knight fired one shot striking Kunkel in the back. Kunkel fell to the ground and began crying for help. Knight then ordered Brennault and Peirson to search Kunkél’s pockets. Peirson complied, but Brennault refused. Knight and Peirson then dragged Kunkel’s body out of the road. They left Kunkel to die beside a canal where his body was later discovered. Knight threatened to kill Peirson and Brennault if they told anyone about the murder.
Later that night, the three men went back to Miami Subs where they had left Kunkel’s car. Knight then stole Kunkel’s car and took it for a joy ride to see how fast it would go. Some time later that evening, the three men broke into Kunk-el’s house and stole various items, [n.3]
[N.3] Knight took Kunkel’s' keys and wallet from him after he shot him. He got Kunkel’s address from his driver’s license.
When Peirson and Brennault were first questioned about the incident by the police, they denied any knowledge of the murder; however, both men later confessed. Knight bragged about the murder to Christopher Holt. Peirson, Brennault, and Holt all testified against Knight during the guilt phase of the trial.
During the penalty phase, the State presented evidence that Knight had previously been convicted of another murder occurring under very similar circumstances. The other aggravating factors presented and relied upon by the trial judge were that the murder occurred while Knight was engaged in the commission of a robbery, the murder was committed for pecuniary gain, and the murder was cold, calculated, and premeditated. The trial court merged the “committed during a robbery” and “for pecuniary gain” aggravators. Knight presented some mitigation, the most significant of which was expert witnesses who testified that Knight suffered from a paranoid disorder that was exacerbated by his unstable childhood. The court gave this mitigating factor considerable weight. Knight also presented mitigating evidence that he had the support and love of his mother, brother, and sisters and that the death penalty would be disparate treatment because his cofelons received much lighter sentences. The court gave these factors little weight.

Id. at 664-65. On appeal, Knight argued that the court erred in (1) allowing Knight to represent himself; (2) failing to renew its offer of court-appointed counsel at every critical stage of the proceeding; and (3) considering Knight’s prior murder conviction as an aggravating factor in sentencing him to death because the other murder occurred after Kunkel’s murder. Id. at 665. We found all of Knight’s arguments to be without merit and affirmed his convictions and sentences. Id.

PROCEDURAL HISTORY

Knight was originally charged—in circuit court case number 1994-CF-4855 (“the 1994 case”)—with second-degree murder in relation to Kunkel’s death. In that case, Shirley DeLuna served as the prosecutor, and Jose Sosa represented Knight. However, on January 3, 1995, the State entered a nolle prosequi, dismissing the case. On December 8,1995, subsequent to the dismissal of the 1994 case, Knight was convicted of the first-degree murder in another case for the death of Brendan Meehan under unrelated circumstances (“the Meehan case”). Andrew Slater prosecuted the Meehan case and also represented the State in the instant postconviction proceedings. On May 8, 1997, Knight was re-indicted in circuit court case number 1997-CF-5175 (the instant case), for Kunkel’s murder—the same crime as in the 1994 case, except this time he was charged with first-degree murder. The 1994 case and the instant case will be collectively referred to as “the Kunkel cases.”

On October 31, 1997, Knight discharged Ann Perry, his court-appointed guilt phase counsel in this case, and kept Sosa as penalty phase counsel. Id. at 666. On January 8, 1998, Knight also discharged Sosa, but Sosa was reappointed as standby counsel for the guilt phase on or around February 18, 1998. Knight’s nonjury trial in the instant case was held from March 11,1998, through March 16,1998. On April 15,1998, the first day of Knight’s nonjury penalty phase hearing, Sosa was reappointed as penalty phase counsel, per Knight’s request. After the trial court sentenced Knight to death, and we affirmed on direct appeal, Knight petitioned the United States Supreme Court for certiorari review, which that Court denied on April 30, 2001. Knight v. Florida, 532 U.S. 1011, 121 S.Ct. 1743, 149 L.Ed.2d 666 (2001).

On or about September 27, 2001, Knight filed an unverified shell motion for post-conviction relief, which was stricken but later reinstated following a determination that the verification had been notarized on September 10, 2001. Throughout the post-conviction proceedings, Knight was either pro se or represented by his current counsel, Capital Collateral Regional Counsel— Southern Region (CCRC-South), which resulted in numerous pro se amendments and supplements to Knight’s postconviction motion—all of which were adopted by counsel. These filings present the following twenty-one claims for relief: (1) 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); (2) Knight’s guilt phase jury waiver was not knowing, intelligent, and voluntary; (3) Knight’s waiver of guilt phase counsel was not knowing, intelligent, and voluntary; (4) Knight’s penalty phase jury waiver was not knowing, intelligent, and voluntary; (5) Knight is “innocent of first-degree murder”; (6) penalty phase counsel was ineffective for failing to present available mitigation evidence; (7) Knight 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); (8) Knight is “innocent of the death penalty”; (9) Knight’s right to confront witnesses under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), was violated; (10) Florida’s capital sentencing procedures are unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (11) Knight was unconstitutionally denied access to public records under Ghapter 119, Florida Statutes; (12) Knight’s sentence is unconstitutional because it has been applied dis-criminately against those accused of killing Caucasians; (13) Florida’s capital sentencing structure fails to prevent arbitrary and capricious imposition; (14) Florida’s lethal injection procedures are unconstitutional; (15) Knight is “insane to be executed”; (16) cumulative error; (17) Knight’s conviction violates double jeopardy and speedy trial based on entry of a nolle prosequi in Knight’s 1994 case; (18) counsel was ineffective for failing to file a motion to discharge the instant case; (19) newly discovered evidence that Knight’s sentence constitutes cruel and unusual punishment; (20) the State violated Richardson v. State, 246 So.2d 771 (Fla. 1971); and (21) counsel was ineffective for failing to ensure that Knight had access to a complete record on appeal. The postconviction court granted an evidentiary hearing on all of Knight’s claims, except claims 14, 19, and 20. The evidentiary hearing was held on May 1-3, June 21, and August 1-2, 2012. On February 6, 2013, the postconviction court denied all of Knight’s claims.

During the postconviction proceedings, the parties also engaged in records litigation, during which it was discovered that the records from the Meehan and Kunkel cases were comingled. Certain documents had been destroyed pursuant to the appropriate timetables for record retention. Efforts were also made to track down retired or deceased court reporters to obtain notes from which transcripts of certain proceedings could be recreated. However, some documents were never recovered. Knight now appeals the denial of his postconviction motion.

ANALYSIS

Knight raises the following issues on appeal: (1) penalty phase counsel was ineffective for failing to adequately investigate and present mitigation evidence; (2) guilt and penalty phase counsel were ineffective for failing to move for a discharge of the instant case based on the 1994 case against Knight, in which the State entered a nolle prosequi; (3) guilt and penalty phase counsel were ineffective for failing to raise the issue of the State’s Richardson violation before being discharged; (4) the reappointment of CCRC-South over Knight’s objection deprived Knight of his right to self-representation; (5) Knight’s waiver of guilt phase counsel and of both guilt and penalty phase juries was not knowing, intelligent, and voluntary; and (6) Florida’s lethal injection procedures are unconstitutional.

Knight also petitions for a writ of habeas corpus based on ineffective assistance of appellate counsel for failing to raise the following three claims: (1) Knight’s waiver of a guilt phase jury was not knowing, intelligent, and voluntary; (2) Knight’s waiver of a penalty phase jury was not knowing, intelligent, and voluntary; and (3) that the record on appeal was incomplete. First, we summarily reject Knight’s claim that Florida’s lethal injection procedures are unconstitutional, as we have previously rejected such claims in numerous cases. Each of Knight’s remaining claims will be addressed separately below.

I. Ineffective Assistance of Trial Counsel

Knight raises three claims of ineffective assistance of trial counsel. To prevail, he must demonstrate both prongs of the Strickland test—deficient performance and prejudice—as to each claim. Orme v. State, No. SC13-819, — S.3d -, -, 2015 WL 8469221, at *4 (Fla. Dec. 10, 2015). Counsel has performed de-ficiently when his or her acts or omissions fall outside the range of reasonably competent attorney performance when viewed under prevailing professional standards. Id. As to prejudice, counsel’s deficiency must have so affected the fairness and reliability of the proceedings that our confidence in the outcome of Knight’s case is undermined. Id. In reviewing the denial of Knight’s motion, we defer to the postcon-viction court’s factual findings where supported by competent, substantial evidence, but review the court’s legal conclusions de novo. See Clark v. State, 35 So.3d 880, 886 (Fla. 2010) (“[A]s long as the trial court’s findings are supported by competent substantial evidence, this Court will not ‘substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.’ ” (quoting McLin v. State, 827 So.2d 948, 954 n.4 (Fla. 2002))). Moreover, we are highly deferential to the postcon-viction court on issues of credibility. Archer v. State, 934 So.2d 1187, 1196 (Fla. 2006); Bell v. State, 965 So.2d 48, 63 (Fla. 2007) (“Questions of credibility are left to the determination of the circuit court, and provided there is competent, substantial evidence to support those credibility assessments, we will defer to that court’s decision.”).

A. Failure as to Mitigation

Knight claims that penalty phase counsel was ineffective for failing to adequately investigate and present mitigation evidence. He also argues that had more mitigation evidence been presented, such as that which he offered at the evidentiary hearing, it would have provided third-party confirmation of his penalty phase expert’s testimony.

Knight presented the following witnesses at the evidentiary hearing in support of this particular claim: Dr. Abby Strauss, a psychiatrist who testified at Knight’s penalty phase and-also reviewed new mitigation information from postcon-viction counsel in connection with the instant proceedings; Dr. Philip Harvey, a neuropsychologist hired by Knight as a postconviction expert; Dr. Jonathan Lip-man, a neuropharmacologist hired by Knight for postconviction proceedings; Timothy Pearson, Knight’s codefendant in the instant ease; Zebedee Fennell, who was a staff member at the Eckerd Youth Academy, where Knight spent some time during his youth; and Theresa Fowler (formerly, Theresa Scott), Knight’s sister who also testified at the penalty phase. The testimony from Knight’s lay witnesses essentially described his substance, abuse history and childhood experiences.

The postconviction court first found that Dr. Strauss was the only doctor to provide a clinical diagnosis at the evidentiary hearing, that Drs. Harvey and Lipman made no diagnosis of Knight, and that the additional information Dr. Strauss received merely solidified but did not change his penalty phase opinion. These findings are supported by competent, substantial evidence. First, there is record evidence that neither Dr. Harvey nor Dr. Lipman made a diagnosis of Knight. Further, because Dr. Lipman was not licensed to perform psychological tests in Florida and testified that all of his testing was completed purely for research purposes, we defer to the court’s finding that Dr. Lipman’s testimony was not credible. See Bell, 965 So.2d at 63; Archer, 934 So.2d at 1196. Lastly, Dr. Strauss himself testified that his opinion did not change based on the information provided in postconviction. Although he acknowledged that the new mitigation information he received confirmed and increased the strength or credibility of his penalty phase testimony, such confirmation was not necessary, nor has Knight shown how such confirmation would have made a difference—especially given the trial court’s findings as to the statutory mental health mitigators. Postconviction counsel’s ability to find additional experts who, it argues, provide more favorable testimony does not make penalty phase counsel’s performance deficient. See Dufour v. State, 905 So.2d 42, 58 (Fla. 2005) (“Simply presenting the testimony of experts during the evidentiary hearing that are inconsistent with the mental health opinion of an expert retained by trial counsel does not rise to the level of prejudice necessary to warrant relief.”). We find no deficient performance as to these mitigation witnesses.

As to Pearson, the postconviction court found that he did not testify at Knight’s penalty phase “based on the advice of counsel as he was the co-defendant and his case was pending at the time.” Accordingly, the court found no deficient performance because Knight’s counsel could not be “faulted for failing to call a witness who would not testify.” After reviewing the record, we find that Pearson’s testimony wavered significantly as to his ability to testify at Knight’s penalty phase. However, he did state at times that he refused to testify, was unavailable to testify, and was advised by his attorney not to testify as he was facing his own charges in connection with Kunkel’s murder. As such, the post-conviction court’s finding as to Pearson’s unavailability is supported by competent, substantial evidence. We also agree with the court’s finding of no deficiency for not calling this unavailable or unwilling witness.

The^ postconviction court gave “little to no weight” to Fennell’s testimony—which the court found was solely related to the conditions at Eckerd Youth Academy at a time when Knight may or may not have been there—because although Fennell recalled a “Ronald Knight” at the facility, Fennell remembered Knight being African-American, not Caucasian, and Fennell was unable to recognize Knight as the “Ronald Knight” he recalled. This finding is supported by sufficient evidence. There was some confusion as to Fennell’s position at the Eckerd Youth Academy during the time periods when Knight would have been there. Also, Fennell’s memory of a “Ronald Knight” and non-identification of Knight at trial does not add much weight to Fennell’s testimony. Due to its limited value, Fennell’s testimony does not result in deficient performance by Knight’s counsel.

Lastly, the postconviction court cited inconsistencies between Fowler’s penalty phase and postconviction testimony and found that although Fowler explained the contradictions by stating that she had been able to “reflect on the past” and was now seeing things more clearly than when she originally testified, counsel cannot be deemed ineffective for failing to present mitigation that only became available after a family member had time to reflect on her original testimony. The postconviction court’s assessment as to Fowler’s credibility is supported by competent, substantial evidence, and we agree with its legal conclusion. Counsel cannot be deemed deficient because a witness was able to remember more on postconviction than during her original testimony at trial.

In determining this issue, we do not inquire whether mitigation could have been better presented, but whether the defendant has demonstrated both deficient performance and prejudice. Brown v. State, 846 So.2d 1114, 1121 (Fla. 2003). As Knight has not demonstrated deficient performance as to any aspect of this ineffectiveness claim, he is not entitled to relief. A discussion of prejudice is unnecessary. Orme, — So.3d at -, 2015 WL 8469221, at *4 (“Because both prongs must be demonstrated, once a defendant has failed to meet one prong, a discussion of the other is unnecessary.”).

B. Failure to Move for Discharge

Knight argues that his penalty phase counsel, Jose Sosa, was ineffective for failing to move to discharge the instant case or for failing to notify guilt phase counsel Ann Perry of the need to do so, based on Sosa’s knowledge of the 1994 case. Knight argues that Perry was ineffective for failing to investigate the 1994 case—once she became aware of it—to determine if a motion for discharge was appropriate. However, Knight is not entitled to relief.

Knight argues two bases on which a motion for discharge could have been properly filed: (1) a double jeopardy violation and (2) a violation of speedy trial. As to double jeopardy, Knight argues that the jury in the 1994 case was sworn in the assembly room and that according to Florida Rule of Criminal Procedure 3.191(c), “[t]he trial is considered to have commenced when the trial jury panel for that specific trial is sworn for voir dire examination.” Thus, Knight argues that double jeopardy attached because the 1994 trial began when the jury was sworn in the assembly room. However, Knight’s argument conflates the concept of when trial commences for speedy trial versus for double jeopardy purposes.

Florida Rule of Criminal Procedure 3.191(c) describes when trial commences for speedy trial purposes and thus, cannot serve as the basis for a double jeopardy violation. Double jeopardy attaches “when the jury is impaneled and sworn.” Turner v. State, 37 So.3d 212, 220 (Fla. 2010); see also State v. Gaines, 770 So.2d 1221, 1225 (Fla. 2000). This principle does not refer to a venire panel being sworn in to prepare for voir dire, but to the jury of record, which has been selected to hear the ease, being sworn in to prepare to hear testimony. See Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (stating this principle and explaining that the Supreme Court “has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’” (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971)).

Here, the postconviction court considered a transcript of the January 3, 1995, hearing at which the nolle prosequi was entered; testimony from the court reporter who prepared it; testimony from former prosecutor Shirley DeLuna, who had entered the nolle prosequi; and Knight’s testimony and found that the jury had not been sworn in Knight’s 1994 case. The court found DeLuna’s and the court reporter’s testimony credible and that there was no unrecorded or un-transcribed portion of the transcript to indicate that a jury was sworn, a witness was called, or a motion for discharge was made, Because a jury was not sworn, the court found that jeopardy did not attach and the State was permitted to file charges in the instant case.

After reviewing the record, we find that the postconviction court’s factual findings are supported by competent, substantial evidence. Clark, 35 So.3d at 886. Thus, there was no basis for Knight’s counsel to file a motion to dismiss, and counsel cannot be deemed ineffective for failing to file a baseless motion. See, e.g., Lebron v. State, 135 So.3d 1040, 1054 (Fla. 2014); Johnston v. State, 63 So.3d 730, 740 (Fla. 2011). We deny Knight’s claim of ineffective assistance of counsel for failing to file a motion to dismiss on double jeopardy grounds.

There also can be no deficient performance as to speedy trial because the speedy trial rule was not violated in Knight’s 1994 case. Florida Rule of Criminal Procedure 3.191(j)(2) states that if trial “does not commence within the periods of time established by this rule,” a court shall grant any pending motion for discharge unless “the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel.” In this case, the failure to commence trial can be attributed to Knight in two ways: (1) defense counsel filing for or stipulating to at least one continuance in the 1994 case prior to the speedy trial time expiring and (2) witness intimidation by Knight. causing the entry of the nolle prosequi.

First, the postconviction court found that on August 26, 1994, the parties stipulated to a continuance and that 'on October 28, 1994, the parties requested a continuance that was attributed to the Defendant. These findings are supported by competent, substantial record evidence. The docket entry for August 26, 1994, reads in pertinent part, “Upon stipulation of counsel, and with leave of the court, case continued and reset.” The transcript also confirms this finding as to that hearing. As to the October 28, 1994, continuance, the postconviction court relied on a transcript from that hearing in which the trial court stated the defense had requested a continuance to which the State had no objection and defense counsel agreed that the sixty-day continuance would be attributable to defense counsel and his client. Although—as Knight points out—the docket entry for that hearing reads in part, “State moves for a continuance. Motion granted without objection by the defense,” the postconviction court obviously resolved this inconsistency in favor of relying on the transcript. The transcript is further supported by testimony from Shirley DeLuna, prosecutor in the 1994 case, and Andrew Slater, prosecutor in the Mee-han case who initiated the process of refiling charges against Knight for the Kunkel murder. As such, the postconviction court’s finding of defense continuances being on August 26, 1994, and October 28, 1994, are supported by competent, substantial evidence. Clark, 35 So.3d at 886.

“[W]hen a defendant requests a continuance prior to the expiration of the applicable speedy trial time peiiod for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate from the same criminal episode.” Stewart v. State, 491 So.2d 271, 272 (Fla. 1986); see also State v. Kelley, 322 So.2d 681, 583 (Fla. 1st DCA 1975) (“A waiver of a defendant’s right to a speedy trial results where his attorney and the State’s attorney agree upon or stipulate to a continuance of the trial, or when his attorney consents to or acquiesces in a delay sought by the State.”). Such is the case even where the defendant’s attorney seeks the continuance over the defendants objection or without his consent. McKenzie v. State, 29 So.3d 272, 282 (Fla. 2010).

The speedy trial rule provided 175 days to bring Knight to trial on a felony charge. Fla. R. Crim. P. 3.191(a). Because the arrest record in the 1994 case was filed on May 12, both the August 26 and October 28 continuances occurred before speedy trial had expired. Because either a requested or stipulated continuance waives a defendant’s speedy trial rights, any motion for discharge—whether filed by Knight’s counsel or by Knight himself, since he was pro se for some of the guilt phase of his trial—would have been denied, and counsel cannot be deemed ineffective for failing to file a baseless motion for discharge. See, e.g., Lebron, 135 So.3d at 1054; Johnston, 63 So.3d at 740.

As to the second reason for the failure to commence trial being attributable to Knight, the postconviction' court found that the entry of the nolle prosequi in 1994 was caused by the unavailability of witnesses in the case due to witness intimidation by Knight. The court’s finding is supported by competent, substantial record evidence, where DeLuna, Slater, and Knight’s accomplice, Brennalt, all testified to the effects of Knight’s witness intimidation. Because of Knight’s improper involvement, there was no basis to discharge the case, and counsel cannot be deemed ineffective for failing to file a baseless motion for discharge. See, e.g., Lebron, 135 So.3d at 1054; Johnston, 63 So.3d at 740. Accordingly, we find that Knight is not entitled to relief on his claim of ineffective assistance for failing to file a motion to discharge.

C. Failure to Address the State’s Richardson Violation

As his final ineffectiveness claim, Knight argues that the State violated the discovery requirements of Richardson and Florida Rule of Criminal Procedure 3.220(b)(1)(B) and (J) by failing to provide him with the records and transcripts from his 1994 case, certain statements and depositions of his accomplice, Brennalt, and the report of the Medical Examiner’s investigator, Wayne J. Arbaczawski. Knight.argues that trial counsel were ineffective for failing to raise this issue at the time of their respective discharges. Knight also asserts that he raised the issue several times during his pro se representation and, as such, the trial court erred in not conducting a Richardson hearing.

“Whereas the main question on direct appeal is whether the trial court erred, the main question. in a Strickland claim is whether trial counsel was ineffective.” Bruno v. State, 807 So.2d 55, 63 (Fla. 2001) (footnote omitted). Here, Knight asserts trial court error and ineffective assistance of trial counsel. As the postconviction court found, Knight’s claim of trial court error should have been raised on direct appeal and is therefore procedurally barred. State v. Coney, 845 So.2d 120, 137 (Fla. 2003) (“To the extent Coney’s claims on this point are claims of trial .court error, such claims generally are not cognizable in a rule 3.850 motion.”); Bruno, 807 So.2d at 63 (“A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal.”) (footnote omitted).

As to Knight’s ineffectiveness claim, even if we were to assume deficient performance, Knight has not shown that he was prejudiced by his trial counsel failing to raise this issue. Knight argues that if he had received the Brennalt documents and the investigator’s report from the State prior to trial, he could have used them to impeach Brennalt’s testimony arid the State’s theory of the crime: that Knight was the shooter and instigator of the killing. As to the Brennalt documents, Knight points to various inconsistencies in Bren-nalt’s trial testimony, statements, and depositions and describes the materiality of the documents as follows: “[A]t the evi-dentiary hearing below Darn Brennalt testified that he had consistently told the same story, ‘the absolute truth’ in all his statements. However the reality is that his testimony at trial contradicted his numerous pre-trial statements, interviews, and depositions.”- This comment fails to recognize, however, that at trial, Knight was able to use several of Brennalt’s statements and depositions to impeach Brennalt as to his truthfulness. Knight has not demonstrated that any of the documents in question would have had any additional impeachment value.

Knight represents that in the investigator’s report, Arbaczawski opines that the shooting did not occur at the location where the body was found. For this premise, he cites the following statement from the report: “My initial impression of this scene was that the deceased was dumped from a vehicle, bleeding on the roadway, and rolled down the canal embankment.” Knight argues that had he been provided the report, he would have used this information as further support for his theory of the case. However, Knight’s theory of the case was that someone else committed the crime. Using the report to substantiate a theory in which the murder occurs at a different location still does not eliminate Knight as the shooter—regardless of the location of the actual murder. Therefore, Knight was not prejudiced by counsel’s failure to raise the Richardson issue, especially where he represented himself after his counsel were discharged.

As an aside, Knight also argues that he was denied due process when he was repeatedly denied access to public records under Chapter 119 and Florida Rule of Criminal Procedure 3.852. However, Knight makes no arguments for deficiency or prejudice as to this issue. Such speculative, conclusory allegations are insufficient to warrant postconviction relief. Johnston v. State, 70 So.3d 472, 477 (Fla. 2011) (“Mere speculation that counsel’s error affected the outcome of the proceeding is insufficient.”); see, e.g., Rhodes v. State, 986 So.2d 501, 513-14 (Fla. 2008) (upholding summary denial of ineffective assistance of counsel claim absent factual allegations of both a deficiency in performance and prejudice); Carroll v. State, 815 So.2d 601, 609 n.8 (Fla. 2002) (finding defendant’s public records claim insufficiently pled where claim was raised as a concluso-ry assertion within another, separate issue). We find that Knight is not entitled to relief as to these claims.

II. Reappointment of CCRC-South

Knight argues that the reappointment over his objection of CCRC-South during postconviction proceedings deprived him of his right to self-representation. “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.” Lambrix v. State, 124 So.3d 890, 899 (Fla. 2013). As this Court has explained:

[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 proceedings, 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 postconviction 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, 565 U.S. 1263, 132 S.Ct. 1743, 182 L.Ed.2d 536 (2012).

Id. at 899-900. This Court reviews a lower court’s handling of a request for self-representation for an abuse of discretion. Aguirre-Jarquin v. State, 9 So.3d 593, 602 (Fla. 2009).

Knight’s situation is like that of the defendant in Lambrix. There, the defendant argued that the postconviction court erred in denying his request to represent himself. 124 So.3d at 898. The defendant had filed a pro se motion in 2009 to discharge his counsel. Id. At a hearing on the motion, the defendant “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.’” Id. The postconviction court denied the motion, “finding that CCRC was rendering competent representation and that there was no basis to discharge counsel.” Id. Later that year, the defendant filed another pro se motion, “seeking the right to waive postconviction counsel and represent himself.” Id. at 899. When asked during the hearing “whether he understood that if he waived postconviction counsel, it was not guaranteed that postconviction counsel would be reappointed later, Lambrix asserted that he understood,” but added that he would likely be reasserting his right to postconviction representation upon the signing of his death warrant in the future. Id.

In reviewing the defendant’s claim on appeal from the denial of his postcon-viction motion, we concluded that the postconviction court did not abuse its discretion in denying Lambrix’s right to represent himself. Id. We explained our rationale as follows:

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. 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.

Id. at 900 (citation omitted). As such, we affirmed the postconviction court’s denial of the defendant’s motion to proceed pro se. Id.

Knight’s case presents an even stronger argument than that of Lambrix for denying relief as to this issue. First, the post-conviction court here allowed Knight to proceed pro se several times throughout the postconviction proceedings; whereas, the defendant in Lambrix was not permitted to represent himself at any point during postconviction. Id. at 898-99. Also, the court gave Knight a choice: to continue with CCRC-South or to represent himself; conversly, it does not appear that the post-conviction court in Lambrix provided an alternative and instead simply denied the defendant’s motion to discharge counsel. Id. at 898, 899. Even providing Knight with such a choice did not violate his right to self-representation. Weaver v. State, 894 So.2d 178, 188 (Fla. 2004) (finding that where a “trial court decides that court-appointed counsel is providing adequate representation, the court does not violate an indigent defendant’s Sixth Amendment rights if it requires him to keep the original court-appointed lawyer or represent himself.”):

Lastly, “[b]efore the trial court can make a decision whether to permit the defendant to proceed pro se, the defendant’s request for self-representation must be unequivocal.” Tennis v. State, 997 So.2d 375, 378 (Fla. 2008); Aguirre-Jarquin, 9 So.3d at 602 (“It is well settled that the accused has the right to self-representation. However, it is also settled that the defendant must unequivocally elect to represent himself.”) (citation omitted). At the time of CCRC-South’s reappointment, it appears Knight was instead asserting a desire to discharge CCRC-South and have new counsel appointed—not to represent himself. In fact, Knight specifically stated that he did not want to represent himself.

Thus, it appears Knight’s claim is that the postconviction court erred in reappointing CCRC-South instead of appointing substitute counsel. As noted by the State, however, Knight was not entitled to counsel of his choice. See Capehart v. State, 583 So.2d 1009, 1014 (Fla. 1991) (“Without establishing adequate grounds, a criminal defendant does not have a constitutional right to obtain different court-appointed counsel.”). Upon inquiring into the quality of representation Knight was receiving and finding no grounds to discharge CCRC-South, the postconviction court properly presented Knight with the options available to him: to keep CCRC-South or proceed pro se. See, e.g., Koon v. State, 513 So.2d 1253, 1255 (Fla. 1987) (finding “no basis for- Koon’s argument that he should have been furnished new counsel” because an indigent defendant “does not have a right to have a particular lawyer represent him” and although a defendant has a constitutional-right to waive counsel, “Koon expressly declared that he had no desire to represent himself”). We find the postconviction court’s reappointment of CCRC-South was not an abuse of discretion.

III. Waiver of Counsel and Guilt and Penalty Phase Juries

Knight argues that his waivers of guilt phase counsel and both guilt and penalty phase juries were not knowing, intelligent, and voluntary. However, as the postconviction court noted in its order, this Court addressed Knight’s waiver of guilt phase counsel on direct appeal, finding that the trial court did not err in allowing Knight to waive counsel and represent himself. Knight, 770 So.2d at 668. Accordingly, Knight’s claim as to his waiver of guilt phase counsel is procedurally barred, and we affirm the postconviction court’s denial of this claim. See Muhammad v. State, 603 So.2d 488, 489 (Fla. 1992) (finding claims procedurally barred because already raised and rejected on direct appeal). Knight’s claim regarding his waivers of guilt and penalty phase juries is also procedurally barred, as it should have been raised on direct appeal. Id. at 489 (finding claims procedurally barred because “the issue could have or should have been raised on direct appeal.”). Thus, Knight is not entitled to relief on this claim.

IY. Habeas Claims

As with postconviction claims, we also use the Strickland standard to determine ineffective assistance of appellate counsel. Walls v. State, 926 So.2d 1156, 1175 (Fla. 2006). Appellate counsel’s deficiency must be related to an error affecting the outcome of the case, not harmless error, and must have so affected the appellate process that confidence in the correctness of the result is undermined. Orme, — So.3d at -, 2015 WL 8469221, at *4. Furthermore, appellate counsel cannot be deemed ineffective for failing to raise a meritless issue. Wyatt v. State, 71 So.3d 86, 112-13 (Fla. 2011).

A. Waivers of Guilt and Penalty Phase Juries

Knight argues that appellate counsel was ineffective for failing to raise the claim that Knight’s waivers of guilt and'penalty phase juries were not knowing, intelligent,- and voluntary. A waiver of the right to a. jury trial must be knowing, intelligent, and voluntary. See State v. Upton, 658 So.2d 86, 87 (Fla. 1995); Lamadline v. State, 303 So.2d 17, 20 (Fla. 1974) (holding that “record must affirmatively show that the defendant voluntarily and intelligently waived the right to have a sentencing jury”).

In this case, Knight first mentioned the possibility of wanting a nonjury trial on January 8, 1998, but the issue was not discussed at that time. In a letter to the trial court dated February 10, 1998, Knight again expressed his desire to have a nonjury trial and requested a hearing on the issue. At a February 18,1998, pretrial hearing, the trial judge mentioned the letter, explained that waiver is a serious issue, and gave Knight some time to discuss the jury waiver option with standby counsel, Jose Sosa. Sosa explained that he had discussed the issue with Knight before the hearing and Knight had already decided on the waiver. After discussing the issue with Sosa again, Knight told the court he had had enough time to talk with Sosa and confirmed his desire for a nonjury trial. Two days later, the court reconfirmed with Knight his desire for a nonjury trial and asked Sosa to memorialize Knight’s wishes in writing. Knight executed a written waiver of his right to a trial by jury. After the guilt phase, the judge read the verdict and again inquired of Knight regarding his desire to waive his right to a jury, clarifying that Knight wanted to waive his rights as to both the guilt and penalty phases of trial.

This Court has found jury trial waivers to be knowing, intelligent, and voluntary in cases similar to the instant case. See, e.g., Guzman v. State, 721 So.2d 1155, 1158 & n.1 (Fla. 1998) (finding defendant’s waiver of guilt and penalty phase juries to be knowing, voluntary, and intelligent where waiver was defendant’s idea, contrary to defense counsel’s advice, both trial court and defense counsel questioned defendant in open court, and defendant signed a written waiver); Mines v. State, 390 So.2d 332, 335-36 (Fla. 1980) (denying relief as to guilt and penalty phase jury waivers where defendant initiated request for nonjury trial, trial judge immediately directed defendant to confer with his counsel privately concerning waiver, trial court subsequently made “a full inquiry of the appellant in open court,” a written waiver was executed by defendant, and court inquired of defendant again concerning penalty phase waiver prior to sentencing despite written waiver including penalty phase). Although the defendants in Mines and Guzman were represented by counsel throughout their trials, Knight was able to receive advice at the guilt phase because Sosa was Knight’s standby counsel, and Knight was represented by Sosa at the penalty phase.

Further, Knight’s testimony at the evi-dentiary hearing indicates that Knight was using his past criminal trial experience to make intelligent decisions about whether to waive his right to a jury trial. In addition, the postconviction court found most of Knight’s testimony on this issue not credible, and such finding is supported by competent, substantial evidence. Clark, 35 So.3d at 886; McLin, 827 So.2d at 954 n.4. In light of Mines and Guzman, Knight’s prior experience with a criminal trial, and his adamancy for waiving his right to a trial by jury, we find that Knight’s waivers of guilt and penalty phase juries were knowing, voluntary, and intelligent.

Had appellate counsel, on direct appeal, sought this Court’s review of Knight’s waivers of guilt and penalty phase juries, this Court would have found them to be knowing, intelligent, and voluntary. Because this issue would have been found meritless, counsel cannot be deemed ineffective for failing to raise it. Wyatt, 71 So.3d at 112-13; see also Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000) (“If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla. 1994))). We find that Knight has not demonstrated ineffective assistance of appellate counsel as to this issue.

B. Incomplete Record on Appeal

Knight argues that appellate counsel was ineffective for failing to ensure a complete record on appeal, which Knight avers should have included the records from his 1994 case and certain statements and depositions of his accomplice Bren-nalt—which Knight states he could have used for impeachment purposes. Knight also states in one sentence in his petition that transcripts of all hearings related to the waiver of counsel and the waiver of the jury at both phases of trial should have been included as well. We first summarily reject Knight’s claim as to the transcripts as insufficiently pled. He has not set forth which transcripts were not included, nor how their inclusion would have assisted him. See Rodriguez v. State, 919 So.2d 1252, 1287 (Fla. 2005) (“Rodriguez has not sufficiently pled this claim as he has not explained what issues he was unable to raise as a result of any missing or inaccurate record. Thus, Rodriguez is not entitled to relief on this claim.”). Our conclusion is further supported by our ability on direct appeal to have conducted a meaningful review of the waiver of counsel issue and by our ability to review the jury waiver issue in this habeas proceeding.

Knight’s claim also fails concerning the records from his 1994 case. Knight’s only argument as to the inclusion of the 1994 case records was as follows: “[Sjpecific prejudice exists because it is apparent that neither the parties on direct appeal nor this Court could rely on the accuracy of a record where a complete set of transcripts from the 1994 nolle prosse and transcripts of the later waivers after indictment for [first-degree] murder were simply not present in the record on appeal.” Such a conclusory allegation of prejudice does not warrant habeas relief. Bradley v. State, 33 So.3d 664, 685 (Fla. 2010); see, e.g., Freeman v. State, 761 So.2d 1055, 1073 (Fla. 2000) (“Even if the Court were to assume that failure to include this portion of the record fell measurably below the standard of competent counsel, Freeman has not demonstrated that the failure prejudiced him. Accordingly, this claim is without merit.”).

Lastly, Knight argues that he needed Brennalt’s statements and depositions “for impeachment purposes.” However, his ha-beas pleadings do not set forth any more specific arguments of prejudice than that and therefore do not entitle him to habeas relief. Bradley, 33 So.3d at 685. As explained above, if Knight’s purpose for these documents was impeachment as to truthfulness, such purpose was not thwarted given that Knight was able to impeach Brennalt using the statements and depositions he had. Accordingly, Knight has failed to demonstrate prejudice as to the Brennalt documents and neither deficiency nor prejudice as to the 1994 case documents or hearing transcripts in his current case. We therefore deny Knight’s claim of ineffective assistance of appellate counsel as to this claim.

CONCLUSION

For the above reasons, we affirm the postconviction court’s denial of relief and deny habeas relief.

It is so ordered.

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

      . The parties have stipulated that rale 3.850 governs this case.

        . Knight hás also filed a supplemental brief seeking relief under the United States Supreme Court’s decision in Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). However, Knight waived his penalty phase jury and, thus, is not entitled to relief. Brant v. State, 197 So.3d 1051, 1076 (Fla. 2016); Mullens v. State, 197 So.3d 16, 39 (Fla. 2016), petition for cert. filed, No. 16-6773 (Nov. 4, 2016). As such, we reject Knight's Hurst claim without further discussion.

      . Knight had previously discharged his court-appointed guilt phase counsel, Ann Perry, on October 31, 1997. Knight, 770 So.2d at 666-68.

      . The record indicates the correct spelling of the accomplices’ last names to be "Pearson” and "Brennalt.” We will refer to them accordingly.

      . Deparvine v. State, 146 So.3d 1071, 1104-05 (Fla. 2014); Henry v. State, 134 So.3d 938, 946-49 (Fla.), cert. denied, — U.S. -, 134 S.Ct. 1536, 188 L.Ed.2d 466 (2014); Howell v. State, 133 So.3d 511 (Fla.), cert. denied, — U.S. -, 134 S.Ct. 1376, 188 L.Ed.2d 372 (2014); Muhammad v. State, 132 So.3d 176, 189-97 (Fla. 2013), cert. denied, — U.S. -, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014); Kimbrough v. State, 125 So.3d 752 (Fla.), cert. denied, — U.S. -, 134 S.Ct. 632, 187 L.Ed.2d 412 (2013); Valle v. State, 70 So.3d 530, 541 (Fla.), cert. denied, 564 U.S. 1067, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011); Smith v. State, 998 So.2d 516, 529 (Fla. 2008), cert. denied, 556 U.S. 1191, 129 S.Ct. 2006, 173 L.Ed.2d 1101 (2009); Lightbourne v. McCollum, 969 So.2d 326, 353 (Fla. 2007), cert. denied, 553 U.S. 1059, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008).

      . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Sosa represented Knight in the original 1994 case. Sosa died years before the eviden-tiary hearing in 2012 and therefore did not testify at the hearing.

      . Knight argues that counsel was ineffective for not filing a motion for discharge based on the alleged double jeopardy violation. However, motions for discharge are discussed in Florida Rule of Criminal Procedure 3.191, which concerns only speedy trial violations and does not mention double jeopardy. It appears the proper motion would be a motion to dismiss under rule 3.190(c)(2).

      . Knight argues that the postconviction court previously found, in a hearing ón June 3, 2011, that speedy trial had not expired. However,-this argument fails for several reasons. First, a finding that speedy trial has not expired is not a finding that it has been waived. Second, in its December 13, 2011, order the court made clear that it was not addressing at that hearing the speedy trial issue in relation to Knight’s motion for discharge claims and would instead address the issue as part of the evidentiary hearing on Knight’s postconviction motion. Even if the court's statement during the hearing could be considered a ruling on the merits, at the point when the court made the finding, the court had not yet been presented with the October 28, 1994, transcript—due to the lost and commingled files—and therefore had no knowledge of the continuance. Lastly, in his July 14, 2011,.Mo-tion for Clarification, Knight himself states that no motion for discharge with respect to the double jeopardy/speedy trial issue was argued at the June 3, 2011, hearing.

      . In addition, this inconsistency is of no effect here since the parties also agreed to a continuance on August 26, 1994, which we find supports the finding of waiver on its own.

      . Fla. R. Crim. P. 3.191(j)(2) (stating that court shall grant motion for discharge unless "the failure to hold trial is attributable to the accused”).

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).


source: Caselaw Access Project

author:
QUINCE, J.
      PARIENTE, J., CANADY, J.,

license: Public Domain

text:
    Eileen HERNANDEZ, M.D., et al., Petitioners, v. Lualhati CRESPO, et al., Respondents.
    No. SC15-67
    Supreme Court of Florida.
    [December 22, 2016]

      Dinah Stein and Mark Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida; and Thomas Earle Dukes, III, and Ruth C. Osborne of McEwan, Martinez & Dukes, P.A., Orlando, Florida, for Petitioners
    Bryan Scott Gowdy and Jessie Leigh Harrell of Creed & Gowdy, P.A., Jacksonville, Florida, for Respondents
   QUINCE, J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Crespo v. Hernandez, 151 So.3d 495 (Fla. 5th DCA 2014). The district court certified that its decision is in direct conflict with the decision of the Second District Court of Appeal in Santiago v. Baker, 135 So.3d 569 (Fla. 2d DCA 2014). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The issue presented is whether the medical malpractice arbitration agreement between Mrs. Crespo and Petitioners is void as against public policy because it excludes required provisions of the Medical Malpractice Act (MMA). We find that, as in Franks v. Bowers, the agreement in question is void and violates public policy because it includes statutory terms only favorable to the Petitioners, thereby “contravening] legislative intent in a way that is clearly injurious to the public good.” 116 So.3d 1240, 1247 (Fla. 2013). Therefore, we exercise our jurisdiction to grant the petition for review, and, in accordance with Bowers, we approve, the decision below and disapprove the Second District’s decision in Santiago. We decline to address whether Mr. Crespo’s claims against Petitioners stand alone regardless of the viability of the medical malpractice agreement between Petitioners and Mrs. Cres-po.

I.STATEMENT OF THE CASE AND FACTS

On August 17, 2011, Mrs. Crespo was 39 weeks pregnant and having contractions. She was turned away from her doctor’s 'appointment because she was a few minutes late, and her appointment was rescheduled for August 21. On August 20, 2011, Mrs. Crespo delivered her stillborn son, Joseph Crespo. On December 19, 2012, Mr, and Mrs. Crespo furnished Petitioners, Dr. Eileen Hernandez and Women’s Care Florida, a notice to initiate litigation regarding the treatment which caused Joseph’s stillbirth. On March 11, 2013, Petitioners denied the Crespos’ claim. On May 23, 2013, Mr. and Mrs. Crespo filed their complaint against Petitioners.

On May 31, 2013, Petitioners filed a motion to stay proceedings and compel binding arbitration pursuant to the agreement between Mrs. Crespo and Women’s Care Florida. This undated arbitration agreement provides in pertinent part:

BY SIGNING THIS AGREEMENT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOU ARE AGREEING TO ARBITRATE AUU CLAIMS ARISING OUT OF OR RELATED TO YOUR MEDICAL CARE AND TREATMENT .
1. AGREEMENT TO ARBITRATE CLAIMS REGARDING FUTURE CARE & TREATMENT. The patient agrees that any controversy, including without limitation, claims for medical malpractice, personal injury, loss of con- ' sortium, or wrongful death, arising out of or in any way relating to the diagnosis, treatment, or care of the patient by the undersigned provider of medical services, including any partners, agents, or employees of the provider of medical services, shall be submitted to binding arbitration.
2. AGREEMENT TO ARBITRATE CLAIMS REGARDING PAST CARE AND TREATMENT. The patient further agrees that any controversy, including without limitation, claims for medical malpractice, personal injury, loss of consortium, or wrongful death, arising out of or in any way relating to the past diagnosis, treatment, or care of the patient by a provider of medical services, or the provider’s agents or employees, shall be submitted to binding arbitration.
3. WAIVER OF RIGHT TO JURY TRIAL. Both parties to this Agreement, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of binding arbitration.
4. ALL CLAIMS MUST BE ARBITRATED BY ALL CLAIMANTS. All claims based upon the same occurrence, incident, or care shall be arbitrated in one proceeding. It is the intention of the parties that this Agreement bind all parties whose claims may arise out of or relate to treatment or services provided by the provider of medical services, including the patient, the patient’s estate, any spouse or heirs of the patient, any biological or adoptive parent of the patient and any children of the patient, whether born or unborn, at the time of the occurrence giving rise to the claim. In the case of any pregnant mother, the term “patient” herein shall mean both the mother and the mother’s expected child or children. By signing this Agreement, the parties consent to the participation in this arbitration of any person or entity that would otherwise be a proper additional party in a court action.
5.ARBITRATION PROCEDURES. The parties agree and recognize that the provisions of Florida Statutes, Chapter 766, governing medical malpractice claims shall apply to the parties and/or elaimant(s) in all respects except that at the conclusion of the pre-suit screening period and provided there is no mutual agreement to arbitrate under Florida Statutes, 766.106 or 766.207, the parties and/or claimant(s) shall resolve any claim through arbitration pursuant to this Agreement. Accordingly, any demand for arbitration shall not be made until the conclusion of the pre-suit screening period under Florida Statutes, Chapter 766. Within (20) twenty days after a party to this Agreement has given written notice to the other of a demand for arbitration of said dispute or controversy, the parties to the dispute or controversy shall each have an absolute and unfettered right to appoint an arbitrator of its choice and shall give notice of such appointment to the other. Within a reasonable time after such notices have been given the two arbitrators so selected shall select a neutral arbitrator and give notice of the selection thereof to the parties. The arbitrators shall hold a hearing within a reasonable time from the date of notice of selection of the neutral arbitrator. The parties agree that the arbitration proceedings are private, not public, and the privacy of the parties and of the arbitration proceedings shall be preserved.
6. NICA. Nothing in this Agreement shall be construed as a waiver of any law related to Florida’s Birth Related Neurological Injury Compensation Plan (Florida Statutes 766.301-766.316, hereinafter the “Plan”). If a request to submit a claim to the Plan is made by a party to this Agreement, all arbitration proceedings shall be stayed until it is determined whether the claim filed with the Plan is compensable. In accordance with the Plan, claims for “birth-related neurological injury[,”] as defined by the Plan, shall be the exclusive remedy except that a civil action shall not be foreclosed and shall be submitted to binding arbitration in accordance with this Agreement where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety or property, provided that such suit is filed prior to and in lieu of payment of an award under the Plan and provided that such suit shall be filed before the award of the Division of Administrative Hearings becomes conclusive and binding.
7. ARBITRATION EXPENSES. Expenses of the arbitration shall be shared equally by the parties to this Agreement.
8. APPLICABLE LAW. Except as herein provided, the arbitration shall be conducted and governed by the provisions of the Florida Arbitration Code, Florida Statutes, Section 682.01 et seq. ... In conducting the arbitration under Florida Statutes, Section 682.01 et seq., all substantive provisions of Florida law governing medical malpractice claims and damages related thereto, including but not limited to, Florida’s Wrongful Death Act, the standard of care for medical providers, caps on damages under Florida Statutes 766.118, the applicable statute of limitations and repose as well as and [sic] the application of collateral sources and setoffs shall be applied....
9. EFFECT OF REFUSAL TO PROCEED WITH ARBITRATION. In the event that any party to this Agreement refuses to go forward with arbitration, the party compelling arbitration reserves the right to proceed with arbitration, the appointment of an arbitrator, and hearings to resolve the dispute, despite the refusal to participate or the absence of the opposing party. Submission of any dispute under this agreement to arbitration may only be avoided by a valid court order, indicating that the dispute is beyond the scope of this arbitration Agreement or contains an illegal aspect precluding the resolution of the dispute by arbitration. Any party to this agreement who refuses to go forward with arbitration hereby acknowledges that the arbitrator will go forward with the arbitration hearing and render a binding decision without the participation of the party opposing arbitration or despite that party’s absence at the arbitration hearing.
BY SIGNING THIS AGREEMENT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOU ARE AGREEING TO ARBITRATE ALL CLAIMS ARISING OUT OF OR RELATED TO YOUR MEDICAL CARE AND TREATMENT
10. SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and shall not be affected by the invalidity of any other provision.
11. ACKNOWLEDGEMENTS BY PATIENT. The patient, by signing this agreement, also acknowledges that he or she has been informed that:
a. NO DURESS. The Agreement may not be submitted to a patient for approval when the patient’s condition prevents the patient from making a rational decision whether or not to agree;
b. AGREEMENT BASED UPON OWN FREE WILL. The decision whether or not to sign the agreement is solely a matter for the patient’s determination without any influence by the physician or hospital;
c. BINDING ARBITRATION AND EFFECT ON RIGHT OF APPEAL. Binding arbitration means that the parties give up their right to go to court to assert or defend a claim covered by this Agreement. The resolution of claims covered by this Agreement will be determined by a panel of arbitrators and not a judge or jury. Each party is entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitration decisions are as enforceable as any court order. The decision of an arbitration panel is final and there will generally be no right to appeal an adverse decision.
d. READ AGREEMENT, VIEWED VIDEO, AND UNDERSTOOD. I have read and understand the above Agreement and I have carefully viewed a video program that was presented to me that explained this Agreement to my satisfaction. I understand that I have the right to have my questions about arbitration or this Agreement answered and I do not have any unanswered questions. I execute this Agreement of my own free will and not under any duress....

Mrs. Crespo signed the agreement, but Mr. Crespo did not. The agreement was also signed by Robert Yelverton, M.D., Chief Medical Officer, on behalf of Women’s Care Florida and as an agent of its physicians, partners, and employees.

On August 29, 2013, Mr. and Mrs. Cres-po requested binding arbitration pursuant to section 766.207, Florida Statutes, which Petitioners rejected, arguing that they were enforcing the signed agreement.

II. CERTIFIED CONFLICT CASE

•The facts in Santiago, 135 So.3d at 570, the certified conflict decision, are as follows:

Leydiana Santiago and Armando Oca-sio, the parents and natural guardians of the child, Z.O.S., sued Dr. Marisa Baker and Women’s Care Florida, LLC, d/b/a Lifetime Obstetrics and Gynecology (collectively, Lifetime), for medical malpractice. Tragically, Z.O.S. suffers from severe birth defects allegedly caused by a drug that Ms. Santiago resumed taking to treat a chronic disease. According to the complaint, upon becoming a new patient at Lifetime, Ms. Santiago informed the medical staff that she and her husband were planning' to have a second child. Later, an over-the-counter pregnancy test taken by Ms. Santiago yielded a positive result. On two visits several days later, however, Lifetime advised her that the pregnancy was nonviable; Lifetime recommended a dilation and curettage, which Ms. Santiago declined. Thereafter, Ms. Santiago resumed taking the drug, allegedly believing that spontaneous passage of the fetus would occur. She also alleged that she was unaware of the possible adverse effects the drug might have on a fetus.

The trial court granted Lifetime’s motion to compel arbitration based on the arbitration agreement Ms. Santiago executed prior to the birth. Id. The plaintiffs in Santiago did not request voluntary statutory arbitration. Id. The agreement provided that the parties were to share the arbitration expenses equally. Id. at 571. The Second District held that the arbitration agreement was not void as against public policy because the parties never invoked the statutory arbitration scheme and found that nothing in the MMA prohibited the parties from arbitrating their claims by private agreement outside of the statutory scheme. Id. at 571 (quoting Bowers, 116 So.3d at 1248).

III. THE AGREEMENT IS VOID AS AGAINST PUBLIC POLICY

This Court reviews the decision of the district court on this issue de novo. DFC Homes of Fla. v. Lawrence, 8 So.3d 1281, 1282-83 (Fla. 4th DCA 2009) (“An order granting or denying a motion to compel arbitration is reviewed de novo.”). Parties may contract freely around a statute, but “a contractual provision that contravenes legislative intent in a way that is clearly injurious to the public good violates public policy and. is thus unenforceable.” Bowers, 116 So.3d at 1247. In order to determine whether the agreement at issue violates public policy, we must first determine the intent of the Legislature in passing the MMA.

This Court has previously accepted the Legislature’s statement of findings relating to the purpose of the MMA:

[T]he Legislature set out its factual findings in the preamble of chapter 88-1, which initially enacted the [Medical Malpractice Recommendations of the Academic Task Force for Review of the Insurance and Tort Systems], In fact, the preamble in chapter 88-1 states in part:
[I]t is the sense of the Legislature that if the present crisis is not abated, many persons who are subject to civil actions will be unable to purchase liability insurance, and many injured persons will therefore be unable to recover damages for either their economic losses or their noneconomic losses. ...
Ch. 88-1. This preamble clearly states the Legislature’s conclusion that the current medical malpractice insurance crisis constitutes an “overpowering public necessity.” Moreover, the Legislature made a specific factual finding that “[mjedical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased unavailability of malpractice insurance for some physicians.” § 766.201(l)(a).
The Legislature’s factual and policy findings are supported by the Task Force’s findings in its report.

Id. (quoting Univ. of Miami v. Echarte, 618 So.2d 189, 196 (Fla. 1993)). To achieve the explicit purpose of remedying the medical malpractice insurance crisis, the Legislature specifically created the MMA statutory scheme.

While we have, subsequent to Bowers, questioned the existence of a continuing medical malpractice crisis in holding caps on damages in medical malpractice unconstitutional, see Estate of McCall v. United States, 134 So.3d 894, 914 (Fla. 2014) (plurality opinion); id. at 916-17 (Pariente, J., concurring in result), the issue in this case is not whether the arbitration provision of the medical malpractice statute is unconstitutional, but whether the unilateral alteration of the arbitration provision is contrary to the public policy expressed in the MMA. The MMA statutory scheme includes, among others, the following provisions: defendant’s concession of liability; neutral arbitrators including an administrative law judge; defendant’s assumption of arbitration costs and attorney’s fees; defendant’s responsibility for payment of interest ón damages; joint and several liability of defendants; and the right to appeal.

Parties may freely contract around state law where the provisions of such contracts are not void as against public policy because they contravene a statute or legislative intent. See id.; Green v. Life & Health of Am., 704 So.2d 1386, 1390 (Fla. 1998). Contractual provisions which contravene a statute or legislative intent are injurious to the public good, violate public policy, and are' therefore unenforceable. See Bowers, 116 So.3d at 1247; McKenzie Check Advance of Fla., LLC v. Betts, 112 So.3d 1176, 1183 (Fla. 2013); Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333, 334 (Fla. 4th DCA 2005); see generally Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1971). Because we hold the freedom to contract in high regard, we carefully weigh the right to freely contract against the legislative intent and the public policy it seeks to enact. See Bituminous Cas. Corp. v. Williams, 154 Fla. 191, 17 So.2d 98, 101-02 (1944).

We find that arbitration agreements which purport to incorporate the statutory scheme but have terms clearly favorable to one party, like the agreement between Mrs. Crespo and Petitioners, contravene the “ ‘substantial incentives for both claimants and defendants to submit their cases to binding arbitration’ ” which “[t]he arbitration provisions were enacted to provide.” Chester v. Doig, 842 So.2d 106, 107 (Fla. 2003) (quoting § 766.201(2)(b), Fla. Stat. (1997)). The MMA statutory scheme was enacted with the explicit goal of “reducing attorney’s fees, litigation costs, and delay” caused by terms favorable to one party like those in the agreement in this case. § 766.201(2)(b), Fla. Stat. (1988).

The agreement between the parties tracks the statute in that it provides for patients to give up the right to a jury trial but severely limits the benefits provided in exchange for giving up that right. The agreement at issue incorporates the statutory provisions with a section recognizing that “Florida Statutes, Chapter 766, governing medical malpractice claims shall apply to the parties” in all aspects except that if there is no mutual agreement to arbitrate under sections 766.106 or 766.207 at the conclusion of the pre-suit screening period, the parties will resolve any claim through the terms of the agreement. Otherwise, the agreement between Mrs. Cres-po and Petitioners only resembles the statute in that it provides for three arbitrators. The agreement also provides a method through which Petitioners can avoid arbitration under the statutory provisions altogether.

The agreement requires that the parties appoint arbitrators of their choosing within twenty days of a demand for arbitration, which favors Petitioners more than the balanced MMA statutory provision calling for independent arbitrators. The agreement does not specify whether this provision applies to demands for arbitration under Florida Statutes. Therefore, patients subject to this agreement but seeking arbitration under the statutes would have to secure the “mutual agreement to arbitrate under Florida Statutes, 766.106 or 766.207” within this twenty-day window in order to escape the unfavorable terms. This arrangement leaves the power to force arbitration under the agreement in the hands of Petitioners, who can simply withhold consent to arbitrate under the Florida Statute's for the twenty-day period after a demand for arbitration under the MMA scheme is made. The agreement also provides that if a party refuses to proceed with arbitration under the agreement, “the arbitrator will go forward with the arbitration hearing and render a binding decision” without the refusing party. In essence, if Mrs. Crespo had demanded arbitration under Florida Statutes, Petitioners could have withheld consent for twenty days after her demand and selected arbitrators who could render a decision Mrs. Crespo could not appeal under the terms of the agreement.

The agreement at issue diverges from the statutory provisions for terms more favorable to Petitioners, contravening legislative intent, in six major places: (1) the agreement does not concede Petitioners’ liability; (2) the agreement does not guarantee independent arbitrators or that one arbitrator be an administrative law judge as required by statute; (3) the agreement shares costs equally between the parties rather than having Petitioners assume most of the costs of arbitration as in the statutory scheme; (4) the agreement does not provide for Petitioners’ payment of interest on damages; (5) the agreement does not require joint and several liability of defendants as the MMA does; and (6) the agreement dispenses -with the right to appeal provided by the statute.

As in the instant case, the agreement at issue in Santiago also provides for both parties to share costs equally. 135 So.3d at 571. The district court in Santiago couched its approval of the agreement in its own interpretation of Bowers, finding that the cost-sharing provision was an agreement outside the MMA scheme and that the agreement never invoked the statute. Santiago, 135 So.3d at 571 (citing Bowers, 116 So.3d at 1248) (“The supreme court held that any agreement that seeks to enjoy the benefits of the arbitration provision under the statutory scheme must necessarily adopt all of its provisions”). While the district court was correct that “nothing in Bowers ‘impede[s] the general enforceability of agreements to arbitrate,”’ an agreement is void as against public policy where any of its provisions explicitly contradict those in the MMA. Id. (quoting Bowers, 116 So.3d at 1251). In Bowers, we defended the freedom to contract around the MMA. We did not defend the freedom to ignore its balance of statutory incentives, which were designed to entice claimants and defendants to enter into arbitration.

We find that arbitration agreements which change the cost, award, and fairness incentives of the MMA statutory provisions contravene the.Legislature’s intent and are therefore void as against public policy. If the Legislature had intended for parties to pick and choose which of the MMA’s provisions to include in their arbitration agreements, the MMA statutory scheme would be meaningless. Parties could avoid those statutory provisions less favorable to them as Petitioners did in this case and as defendants did in Santiago, thereby disrupting the balance of incentives the Legislature carefully crafted to encourage arbitration. '

V. CONCLUSION

Based on the foregoing, we find the agreement between Mrs. Crespo and Petitioners void as against public policy, approve the district court below, disapprove the Second District’s decision in Santiago, and remand to the Fifth District Court of Appeal for further proceedings consistent with this opinion.

It is so ordered.

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

PARIENTE, J., concurs with an opinion.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

PARIENTE, J.,

concurring.

I write to respond to Justice Canady’s dissent criticizing what he perceives to be inconsistencies between the approach to whether there is a current medical malpractice crisis in the majority’s opinion in this case and our opinion in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), as well as my concurring in result opinion in McCall. The majority opinion in .this case is based on this Court’s reasoning in Franks v. Bowers, 116 So.3d 1240 (Fla. 2013), which held a similar arbitration agreement void as against public policy. Just like in this case, Justice Cana-dy dissented in both McCall and Bowers.

Unlike McCall, this case does not involve an attempt to declare the entire medical malpractice statute unconstitutional; nor does it involve an attack on statutory caps on noneconomic damages. In those contexts, whether a medical malpractice crisis existed or currently exists would be a very relevant consideration.

Rather, at issue in this case is the same type of arbitration agreement that this Court held void as against public policy in Bowers, 116 So.3d 1240. As I explained in my concurrence in Bowers:

It is therefore clear from a full review of the Medical Malpractice Statute that the legislative quid pro quo for patients in exchange for both a substantial limitation on noneconomic damages to a maximum of $260,000 per incident and the right to a jury trial was that a defendant would be required to admit liability. This elearly expressed public policy in the statute, however, has been expressly contravened by the Financial Agreement in this case, which eviscerates statutory rights without providing the injured patient with any of the added benefits or incentives provided for by the Legislature. Further, by requiring arbitration without in turn requiring the counterbalance of the defendant admitting liability, the Financial Agreement undermines the public policy set forth in the statute of reducing attorney’s fees, litigation costs, and delay.

Id. at 1254 (Pariente, J., concurring). The existence or non-existence of a medical malpractice crisis, therefore, does not affect whether an arbitration agreement is void as against public policy. Instead, as the majority concludes in this case, and we held in Bowers, the arbitration agreement at issue is invalid as against public policy because it “change[s] the cost, award, and fairness incentives of the MMA statutory provisions,” which “the Legislature specifically created.” Majority op. at 27, 24-26.

For all these reasons, I concur with the majority opinion.

CANADY, J.,

dissenting.

Because I adhere to my dissenting view in Franks v. Bowers, 116 So.3d 1240 (Fla. 2013), I would quash the decision on review and approve the result reached by the Second District in Santiago v. Baker, 135 So.3d 569 (Fla. 2d DCA 2014), on the conflict issue.

As I explained in Bowers:

Nothing in the [Medical Malpractice Act] can be read to support the conclusion that the purpose of the statute is thwarted by voluntary pre-dispute agreements ... designed to limit the cost of litigation and the amount of paid claims. Instead, such voluntary agreements are designed to cure the same mischief that the statute seeks to address.

Bowers, 116 So.3d at 1255 (Canady, J., dissenting). It is no less true now than when Bowers was decided that “the public policy” animating the Court’s decision “is an unprecedented judicial policy that contravenes” not only “the declared objective of the Legislature set forth in section 766.201” but also “the public policy embodied in the Florida Arbitration Code.” Id. at 1256.

Bowers involved “an astonishing irony” because it employed a “line of judicial reasoning that condemns as invalid a voluntary agreement designed to limit the expense of medical malpractice litigation and grounds that condemnation on the purpose of a statute expressly designed to limit the expense of medical malpractice litigation.” Id. Here, the irony is joined with blatant self-contradiction. The foundation of the legislative public policy articulated in Bowers—the case on which the majority (incorrectly) hangs its hat—was the existence of a medical malpractice crisis. See id. at 1247 (majority opinion) (“[W]e have clarified the stated policy and intent of the Act—to address the ‘overpowering public necessity’ created by the medical malpractice insurance crisis.”). But since Bowers was decided, that policy has been (incorrectly) rejected by a majority of the Court. See Estate of McCall v. United States, 134 So.3d 894, 914 (Fla. 2014) (plurality opinion) (stating that “even if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided”); id. at 921 (Pariente, J., concurring in result) (stating that “[t]here is no evidence of a continuing medical malpractice crisis”). In condemning the arbitration agreement based on the reasoning of Bowers, the majority relies on a crisis that the majority has said is nonexistent.

POLSTON, J., concurs.

      .§ 766.207(2), Fla. Stat. (1999) ("Upon the completion of the presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel"); § 766.106(3)(b), Fla. Stat. (2003) ("At or before the end of the 90 days, the prospective defendant ... shall provide the claimant with a response: 1. Rejecting the claim; 2. Making a settlement offer; or 3. Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages."). See also Bowers, 116 So.3d at 1248 (“[T]he agreement dispenses with the inherent concession of liability provided by section 766.207.”); Echarte, 618 So.2d at 194 ("The claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability. The claimant  also saves the costs of attorney and expert witness fees which would be required to prove liability.”); St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961, 970 (Fla. 2000) ("[T]he most significant incentive for defendants to concede liability and submit the issue of damages to arbitration is the $250,000 cap on noneconomic damages.”).

      . § 766.207(4)-(5), Fla. Stat. (1996).

      . § 766.207(7)(f)-(g), Fla. Stat. (2003).

      . § 766.207(7)(e), Fla. Stat.

      . § 766,207(7)(h), Fla. Stat.

      . § 766.212(1), Fla. Stat, (1988).

      . § 766.207, Fla. Stat. See also Bowers, 116 So.3d at 1248; Phillipe, 769 So.2d at 970.

      . § 766.207(4)—(5), Fla. Stat

      . § 766. 207(7)(f)-(g), Fla. Stat.

      . § 766.207(7)(e), Fla. Stat.

      . § 766.207(7)(h), Fla. Stat.

      . § 766.212(1), Fla. Stat.

      . See McCall, 134 So.3d at 916 (Pariente, J., concurring in result).

      . This was the issue in McCall, in which this Court concluded that the statutory cap on wrongful death noneconomic damages under "section 766.118 violates the Equal Protection Clause of the Florida Constitution under the rational basis test.” 134 So.3d at 905. This is also the issue of another case pending before this Court based on the Fourth District having held the caps on noneconomic damages to be unconstitutional. N. Broward Hosp. Dist. v. Kalitan, 174 So.3d 403 (Fla. 4th DCA 2015) (pending case No. SC15-1858), The Second District Court of Appeal recently agreed with "the Fourth District’s conclusion that the statutory cap on noneconomic damages is unconstitutional” in Port Charlotte HMA, LLC v. Suarez, No. 2D15-3434, 210 So.3d 187, 2016 WL 6246703 (Fla. 2d DCA Oct. 26, 2016).