source: Caselaw Access Project

author: CANADY, J.

license: Public Domain

text:
    Marcus F. SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-1729.
    Supreme Court of Florida.
    April 22, 2010.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Tenth Judicial Circuit, Bar-tow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, Robert J. Krauss Bureau Chief, and Ronald Napolitano, Assistant Attorneys General, Tampa, FL, for Respondent.
   CANADY, J.

In this case we consider whether sentence points were properly scored on the Criminal Punishment Code (CPC) score-sheet used for sentences imposed upon the revocation of probation. We have for review the decision of the Second District Court of Appeal in Sanders v. State, 16 So.3d 232 (Fla. 2d DCA 2009), in which the Second District certified a question to this Court to be of great public importance. We have jurisdiction. . See art. V, § 3(b)(4), Fla. Const. We have revised the question as follows:

WHEN A DEFENDANT IS TO BE SENTENCED UPON REVOCATION OF PROBATION AND PRIOR TO THAT REVOCATION THE TRIAL COURT’S JURISDICTION OVER ONE OR MORE OF THE ORIGINALLY SENTENCED OFFENSES HAS EXPIRED, MAY THE OFFENSES OVER WHICH THE TRIAL COURT NO LONGER HAS JURISDICTION BE SCORED AS ADDITIONAL OFFENSES?

For the reasons that follow, we answer the rephrased certified question in the negative. Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of “additional offense” set out in section 921.0021, Florida Statutes (1999). Accordingly, we quash the decision under review and remand the case for proceedings consistent with this opinion.

I. BACKGROUND

In January of 2003, Marcus Sanders pleaded no contest to five offenses in three separate cases. The underlying criminal conduct occurred between February and August of 2000. Sanders was sentenced to concurrent three-year prison terms on all of the offenses, to be followed by concurrent terms of probation. He received two-year terms of probation for criminal mischief, attempted burglary, and aggravated assault. Those convictions were all third-degree felonies. Sanders received three-year terms of probation for the second-degree felony offenses of robbery and aggravated battery. Sanders, 16 So.3d at 233.

After Sanders completed the two-year probationary terms but before he had completed his remaining probation on the second-degree felonies, the State alleged that Sanders violated the conditions of his supervision by moving without the consent of his probation officer and by failing to complete a residential drug treatment program. Sanders admitted violating the conditions of his probation. He was not charged with any new substantive offense.

In December of 2006, the trial court revoked Sanders’ probation for all five offenses. The trial court sentenced Sanders to concurrent 108-month prison terms on all five counts, which was a slight downward departure from the lowest permissible sentence of 111.6 months on the CPC scoresheet used by the trial court. Id.

Sanders appealed to the Second District Court of Appeal. He raised two issues. First, Sanders argued that the trial court erred in revoking his probation and sentencing him for the third-degree felony offenses because Sanders had completed his probation for those offenses. The Second District agreed. The Second District explained that pursuant to section 948.06, Florida Statutes (1999), the trial court did not have jurisdiction over the offenses for which Sanders had completed his probation. Accordingly, the Second District reversed the orders revoking Sanders’ probation as to those offenses. Sanders, 16 So.3d at 234.

Second, Sanders contended that his sentences for the second-degree felonies should be reversed because of an error in preparing the scoresheet used at the sentencing following the revocation of probation. He asserted that because he could not be sentenced on the third-degree felonies, those crimes should not have been scored as additional offenses on a recalculated scoresheet. Sanders originally raised this issue before the trial court in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b), which was constructively denied. Sanders, 16 So.3d at 234 n. 1.

The Second District affirmed the trial court’s denial of the motion. The Second District explained that an additional offense is “any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” Id. at 234 (quoting § 921.0021(1), Fla. Stat. (1999)). The Second District acknowledged that while the third-degree felonies were correctly listed as additional offenses when Sanders was originally sentenced in 2003, the offenses did not technically meet the definition of additional offenses in 2006 because the trial court lacked jurisdiction to sentence Sanders on those counts. The Second District rejected Sanders’ claim on appeal, however, because it concluded that the trial court could not employ a recalculated scoresheet when sentencing Sanders following his violation of probation. The Second District determined that “[t]he law is well-settled that following revocation of probation the trial court must use the original scoresheet used at the time the defendant was placed on probation” and that the trial court shall “impose any sentence which it might have originally imposed before placing the probationer on probation.” Id. at 235 (quoting Adekunle v. State, 916 So.2d 950, 952 (Fla. 4th DCA 2005); § 948.06(1), Fla. Stat. (2000)). The Second District then concluded that scoring the third-degree felonies as additional offenses “would be the only possible way to ensure that Sanders faced upon the revocation of his probation the same sentence for the second-degree offenses that he might have originally faced on those counts.” Id.

The Second District affirmed in part and reversed in part with instructions. In addition, the Second District certified the following question as one of great public importance:

WHEN A DEFENDANT IS TO BE RESENTENCED AFTER THE TRIAL COURT REVOKES HIS OR HER PROBATION AND PRIOR TO THAT REVOCATION THE TRIAL COURT’S JURISDICTION OVER ONE OR MORE OF THE ORIGINALLY SENTENCED OFFENSES HAS EXPIRED, SHOULD THESE OFFENSES OVER WHICH THE TRIAL COURT NO LONGER HAS JURISDICTION BE SCORED AS PRIOR RECORD ON A RECALCULATED SCORESHEET OR SHOULD THE TRIAL COURT EMPLOY THE ORIGINAL SCORESHEET ON WHICH THOSE OFFENSES WERE SCORED AS ADDITIONAL OFFENSES?

Id. at 235-36. We accepted jurisdiction.

II. ANALYSIS

The issue before this Court is whether Sanders’ third-degree felony offenses, for which he had completed his prison sentences and probation, should have been scored as additional offenses on the scoresheet used in the 2006 sentencing upon the revocation of his probation. This issue presents a legal question, requiring interpretation of statutes and rules of criminal procedures. Pure questions of law are subject to de novo review. Sims v. State, 998 So.2d 494, 504 (Fla.2008). In the analysis that follows, we begin by explaining why the third-degree felony offenses should not have been scored as additional offenses. We then address whether the erroneous scoring of the third-degree felony offenses was harmful in this case, concluding that the error was harmful.

Florida Rule of Criminal Procedure 3.704(d)(28) provides that “[sentences imposed after revocation of probation or community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense.” All of the offenses at issue in this case were committed in 2000 and were subject to the 1998 CPC. Therefore, rule 3.704(d)(28) required the trial court to use the sentencing scoresheet associated with the 1998 CPC when sentencing Sanders following his violation of probation. Further, pursuant to section 921.0024(3), Florida Statutes (1999), because the offenses were committed under the same version of the sentencing code, the trial court was required to use a single scoresheet, covering all of the defendant’s offenses pending for sentencing. See also Fla. R.Crim. P. 3.704(d)(2) (“One scoresheet must be prepared for all offenses committed under any single version or revision of the guidelines or Criminal Punishment Code pending before the court for sentencing.”).

Section 921.0021, Florida Statutes (1999), defined the scoresheet categories of noncapital, felony offenses committed on or after October 1,1998, as follows:

(1) “Additional offense” means any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.
(4) “Primary offense” means the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing. Only one count of one offense before the court for sentencing shall be classified as the primary offense.
(5) “Prior record” means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense. Convictions by federal, out-of-state, military, or foreign courts, and convictions for violations of county or municipal ordinances that incorporate by reference a penalty under state law, are included in the offender’s prior record....

§ 921.0021, Fla. Stat. (1999). The version of Florida Rule of Criminal Procedure 3.704 in effect both at the time of Sanders’ original sentencing and his sentencing proceeding following the revocation of his probation echoed these definitions.

During the 2006 sentencing proceeding, the trial court scored Sanders’ conviction on the charge of aggravated battery, a second-degree felony, as the primary offense and his third-degree felony convictions as additional offenses. The Second District accurately concluded that the third-degree felonies were not pending before the trial court for sentencing during the 2006 sentencing proceeding because Sanders had completed his probation for those offenses. See § 948.04(2), Fla. Stat. (1999) (“Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed.”); State v. Hall, 641 So.2d 403, 404 (Fla.1994) (same).

Section 921.0021 does not differentiate original sentencing proceedings, sentencing proceedings upon revocation of probation, and resentencing proceedings. It does not include any exceptions to the statutory definitions for sentencing proceedings upon revocation of probation. The statute plainly provides that an offense qualifies as an “additional offense” for purposes of the scoresheet if it “is pending before the court for sentencing at the time” of the sentencing proceeding then being conducted. In this case, the third-degree felonies were not pending for sentencing during the 2006 sentencing proceeding. As a result, they were not properly scored as additional offenses.

The reasons articulated by the Second District for treating the offenses for which the two-year probationary period had previously expired as additional offenses do not justify departing from the plain meaning of “additional offense” as set forth in section 921.0021(1). The Second District determined that case law precluded the use of a recalculated scoresheet when sentencing Sanders following the violation of probation and required the trial court to use the original scoresheet filled in exactly as it was when Sanders was originally sentenced. The Second District relied on the Fourth District Court of Appeal’s statement that “[t]he law is well-settled that following revocation of probation the trial court must use the original scoresheet used at the time the defendant was placed on probation.” Sanders, 16 So.3d at 235 (quoting Adekunle, 916 So.2d at 952). The Second District’s conclusion that an original sentencing scoresheet cannot be revised or recalculated for purposes of sentencing a defendant after a violation of probation is inconsistent with section 921.0024, Florida Statutes (1999), and our holding in Roberts v. State, 644 So.2d 81 (Fla.1994).

Section 921.0024(l)(b) directs that where a defendant is being sentenced as a result of violating probation, “[cjommunity sanction violation points” are to be assessed. Each community sanction violation not involving a new felony offense requires the addition of six sentence points to the defendant’s scoresheet. Each community sanction violation involving a new felony offense requires the addition of twelve sentence points. As a result of these community sanction violation points, the score-sheet prepared for a sentencing upon revocation of probation necessarily will differ from the scoresheet prepared for the original sentencing. Recalculation is not only permitted but required by section 921.0024.

In addition, we have determined that a scoresheet may be recalculated during a sentencing upon revocation of probation to correct an omission from the original scoresheet. In Roberts, some of the defendant’s prior convictions were erroneously omitted from the original scoresheet. This Court concluded that the trial court should have used a revised, recalculated score-sheet during the sentencing.

When Roberts was originally sentenced, he received the benefit of a mistake in his guidelines scoresheet. Now that he has committed a new crime and violated his probation, we see no reason to perpetuate the error. Justice is not served by awarding a defendant something to which he is not entitled. We agree with the rationale of the opinion below in which the court said:

The defendant cites to Graham v. State, 559 So.2d 843 (Fla. 4th DCA 1990)[,] for the proposition that a trial court is without power to consider a new scoresheet, over objection, containing prior convictions completely omitted from the original. The contention then is that the defendant be sentenced under a scoresheet that is simply not based upon the truth. Consequently, we do not agree with Graham because to follow it literally, the defendant receives the benefit of being sentenced under a scoresheet which mistakenly omits prior convictions. Neither the rules nor the substantive law justifies a defendant receiving the largesse of a judicial error. Since only one guidelines scoresheet may be used for each defendant covering all offenses pending before the court at sentencing, Fla. R.Crim. P. 3.701(d)(1); accord Lambert v. State, 545 So.2d 838, 841 (Fla.1989), following the defendant’s argument permits him to escape the punishment meted out by the law.
Furthermore, since the defendant’s violation of probation triggered the resentencing, the defendant is not being sentenced for “precisely the same conduct,” and double jeopardy concerns do not come into play.

Roberts, 644 So.2d at 82-83 (quoting Roberts v. State, 611 So.2d 58 (Fla. 3d DCA 1992)). In short, this Court concluded that a defendant is not entitled to perpetuate an error in scoring. Our holding in Roberts is thus inconsistent with the reasoning employed by the Second District.

Next, the Second District determined that the third-degree felonies should be scored exactly as they were at the original sentencing because section 948.06(1), Florida Statutes, provides that in a sentencing proceeding following a violation of probation, the trial court shall “impose any sentence which it might have originally imposed before placing the probationer on probation.” Sanders, 16 So.3d at 235 (quoting 948.06(1), Fla. Stat. (1999)). The Second District concluded that scoring the third-degree felonies as additional offenses “would be the only possible way to ensure” that Sanders faced the same sentencing possibilities upon the revocation of his probation. Id.

We conclude, however, that this broad reading of the relevant provision of section 948.06(1) cannot be reconciled with the plain import of sections 921.0021(1) and 921.0024(l)(b) or with our reasoning in Roberts. In the context of the related statutory provisions, it is more reasonable to understand the provision of 948.06(1) as stating a rule that parallels the provision of rule 3.704(d)(28) that sentences imposed upon revocation of probation “must be imposed according to the sentencing law applicable at the time of the commission of the original offense.”

Having concluded that the trial court erred in scoring the third-degree felonies as additional offenses, we now consider whether that error was harmless. When a scoresheet error is challenged on direct, appeal, via a motion under Florida Rule of Criminal Procedure 3.800(b) or via a motion under Florida Rule of Criminal Procedure 3.850, the error “is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct seoresheet.” Brooks v. State, 969 So.2d 238, 241 (Fla.2007) (citing State v. Anderson, 905 So.2d 111, 118 (Fla.2005)). Sanders raised the issue of how his third-degree felony convictions should be scored in a rule 3.800(b) motion and argued the point on direct appeal. For the reasons that follow, we conclude that the record does not conclusively show that the trial court would have imposed the same sentence had the third-degree felonies not been scored as additional offenses. Thus, Sanders is entitled to a new sentencing proceeding.

Sanders contends that two of the three third-degree felony convictions should have been scored as prior record when he was sentenced following revocation of his probation. We agree. Section 921.0021(5) defines “prior record” as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” To be scored as prior record the offense must have been committed prior to the commission of the primary offense. The order of the convictions is irrelevant. See Harris v. State, 685 So.2d 1282, 1285 (Fla.1996) (concluding that a conviction for an offense committed after the primary offense but tried before the primary offense “[fell] between the cracks” and could not be scored as prior record); Halfacre v. State, 24 So.3d 795, 796 (Fla. 5th DCA 2009) (holding that prior record should be determined based on the order of the commission of the offenses, not the order of convictions).

Sanders’ conviction for aggravated battery was scored as the primary offense. According to the information, the aggravated battery occurred on or around August 13, 2000. Two of the third-degree felonies were committed before this aggravated battery. Sanders committed the criminal mischief offense on or about February 16, 2000, and the attempted burglary offense on or about May 26, 2000. The final third-degree felony, aggravated assault, was committed contemporaneously with the primary offense.

When a word in a statute is not expressly defined, it is “ ‘appropriate to refer to dictionary definitions ... ’ in order to ascertain the plain and ordinary meaning” of the word. School Bd. of Palm Beach County v. Survivors Charter Schools, Inc., 3 So.3d 1220, 1233 (Fla.2009) (quoting Barco v. School Bd. of Pinellas County, 975 So.2d 1116, 1122 (Fla.2008)). The dictionary definition of “prior” is “[preceding in time, order, or importance; earlier, former, previous, antecedent.” 2 Shorter Oxford English Dictionary 2350 (6th ed.2007). A contemporaneously committed offense does not precede the commission of the primary offense in time and thus, based on the plain meaning of the statute, does not qualify as prior record.

Accordingly, Sanders’ third-degree felony convictions for the offenses of criminal mischief and attempted burglary — offenses committed prior to the primary offense— should have been scored- as prior record when Sanders was sentenced following the revocation of his probation. In contrast, Sanders’ third-degree felony conviction for the offense of aggravated assault, which was committed contemporaneously with the primary offense, should not have been scored as an additional offense or as prior record when he was sentenced following the revocation of his probation.

When the three third-degree felony convictions were scored by the sentencing court as additional offenses, they totaled 37.2 points. Had the criminal mischief and the attempted burglary convictions been scored as prior record and the aggravated assault conviction not scored, they would have totaled 9.8 points. This 27.4-point difference would have reduced Sanders’ total sentence points to 149.4. The resulting lowest permissible prison sentence would be 91.05 months rather than 111.6 months — a difference of nearly two years.

From the record, we cannot rule out the possibility that this change in the lowest permissible sentence could have affected the trial court’s sentencing decision. The trial court gave Sanders a downward departure sentence of nine years of incarceration. At the sentencing hearing, the trial court explained:

Well, I’d like to sentence him to the year in the county in the drug program but he’s let me down too many times. He’s violated his probation. We’ve bent over backwards with him.
This isn’t as bad as it seems, at least in my figuring. That’s why I was figuring the time served. (Inaudible). I’m going to roughly sentence him to the guidelines [sic]. I’m a rounder-offer so this is slightly below. I’m going to sentence him to nine years in the Department of Corrections, which is a hundred and eight months. I think that’s enough to do it.
As I figure that, though, if he’s got nine years and he’s served three, that drops him down to six, and he’s got another four months [of time served]. And if he’s a good prisoner, he gets a— he’ll serve eighty-five percent of that, it’ll be right around, a little less than four years. So, totally, it’s not nearly as bad as it seems.

Given the trial court’s comments, particularly its express reliance on the lowest permissible sentence identified by the scoresheet, the record does not conclusively show that the trial court would have imposed the same sentence had the third-degree felonies not been scored as additional offenses.

III. CONCLUSION

We answer the rephrased certified question in the negative. Where the trial court’s jurisdiction over a criminal offense has expired, the trial court may not score that offense as an additional offense during a sentencing proceeding. Because the trial court’s scoring of the third-degree felonies in this case did not comport with section 921.0021 and because the record does not demonstrate that the error was harmless, we quash the decision of Second District. We remand this case to the Second District with instructions that the Second District remand for sentencing consistent with this opinion.

It is so ordered.

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

      . In addition to the instant case, the Second District certified the same question in Hubard v. State, 17 So.3d 1274 (Fla. 2d DCA 2009). Neither party sought review by this Court in Hubard.


author: PER CURIAM.

text:
    ATTORNEYS’ TITLE INSURANCE FUND, INC., Petitioner, v. M.I. INDUSTRIES USA, INC., et al., Respondents.
    No. SC09-938.
    Supreme Court of Florida.
    April 22, 2010.
    Arthur J. England, Jr. of Greenberg Traurig, P.A., Miami, FL, Robert A. Cohen, and Aaron C. Wong of Cohen Fox, P.A., Miami, FL, for Petitioner.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Fourth District Court of Appeal in M.I. Industries USA Inc. v. Attorneys’ Title Insurance Fund, Inc., 6 So.3d 627 (Fla. 4th DCA 2009). In its decision the district court certified the following question to be of great public importance:

INCIDENT TO AN ACTION AT LAW, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATED: (1) THE DEFENDANT AVILL TRANSFER, DISSIPATE, OR HIDE HIS/HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS; AND (4) A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST?

Id. at 629. After further consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is dismissed.

It is so ordered.

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


author: PARIENTE, J.

text:
    Louis R. MENENDEZ, Jr., et al., Petitioners, v. PROGRESSIVE EXPRESS INSURANCE CO., INC., Respondent.
    No. SC08-789.
    Supreme Court of Florida.
    April 22, 2010.

      Robert C. Tilghman, P.A., Miami, FL, and Nathan E. Eden of Eden and Cates, P.L., Key West, FL, for Petitioners.
    Douglas H. Stein and Stephanie Martinez of Anania, Bandklayder, Baumgar-ten, Torricella and Stein, Miami, FL, for Respondent.
   REVISED OPINION

PARIENTE, J.

This case arose from the failure of Progressive Express Insurance Company (Progressive) to pay personal injury protection (PIP) benefits to its insured, Cathy Menendez, after she was injured in an automobile accident in June 2001. Because Progressive did not pay the benefits, the insured sued for overdue benefits. She was successful in her claim in the trial court, which eventually entered a judgment in her favor. On appeal, the Third District Court of Appeal reversed the judgment on multiple grounds, including the insured’s failure to comply with a statute enacted after the date of the automobile accident (referred to as the statutory presuit provision) that placed additional requirements on an injured person seeking to recover PIP benefits before filing suit. See Progressive Express Ins. Co. v. Menendez, 979 So.2d 324 (Fla. 3d DCA 2008).

In holding that the statutory presuit notice provision could be applied retroactively to the insured’s claim because it was “merely procedural” and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55 (Fla.1995), and Young v. Altenhaus, 472 So.2d 1152 (Fla.1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So.2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437 (Fla. 1st DCA 2004). Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.

FACTS AND PROCEDURAL HISTORY

As set forth in the district court opinion:

On June 14, 2001, Cathy Menendez (“Menendez”) was injured in an automobile accident while traveling to work. Menendez was covered by a policy issued by Progressive affording personal injury protection (“PIP”) benefits with effective dates of April 1, 2001, to October 1, 2001. In addition, Menendez was eligible for workers’ compensation benefits, and her employer paid for nine weeks of her lost income. While most of Menendez’s medical bills were paid through workers’ compensation, Progressive paid a total of $2,131.22 to four different medical care providers.

Menendez, 979 So.2d at 327.

After having settled the claims arising out of the automobile accident with the other motorist, Menendez paid $2,000 from that settlement to satisfy a lien filed by Menendez’s employer. In December 2001, her attorney began to pursue a PIP benefits claim on behalf of Menendez. After a series of letters to and from Progressive, almost a year later on November 26, 2002, Menendez and her husband (hereinafter referred to as the insureds) filed suit against Progressive for overdue benefits.

The litigation in the trial court, which spanned a period of several years, eventually focused not on whether Progressive owed the benefits, but on whether the statutory presuit notice was required. The trial court ultimately concluded that the statute was not applicable to the insureds’ claim. Further, the court ruled that even if the statute applied, presuit notice was not required because “Progressive effectively denied [Petitioners’] claim.” Id. at 327. A partial summary judgment was granted in favor of the insureds and a stipulated final judgment was entered in the full amount due and owing to the insureds.

Progressive appealed the summary judgment ruling to the Third District Court of Appeal. The issues on appeal also revolved around the statutory presuit notice requirement. The Third District found against the insureds on each issue raised. Specifically pertinent to the primary issue in this case, the Third District rejected the insureds’ assertion that the presuit notice requirements of the statute impaired the obligation of contracts in violation of article I, section 10, of the Florida Constitution. Menendez, 979 So.2d at 330-31. Accordingly, the Third District reversed the summary judgment entered in favor of the insureds, leaving as the only issue to be litigated whether Progressive’s letters constituted a denial of the claim, which would obviate the need to comply with the presuit notice provisions. See § 627.736(11)(a), Fla. Stat. (2001).

ANALYSIS

The dispositive issue before this Court is whether section 627.736(11), Florida Statutes (2001), can be applied retroactively to an insurance policy issued prior to the enactment of the statute. In our analysis, we look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred, because “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996); see also Lumbermens Mut. Cas. Co. v. Ceballos, 440 So.2d 612, 613 (Fla. 3d DCA 1983) (holding that a liability policy is governed by the law in effect at the time the policy is issued, not the law in effect at the time a claim arises); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So.2d 1037, 1038 (Fla. 2d DCA 1979) (holding that the date of the accident does not determine the law that is applicable to a dispute).

The crux of the statutory presuit notice provision is the requirement of filing a notice of intent to litigate, originally located in subsection (ll)(a) and now contained in subsection (10)(a). The subsection states:

As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation; provided, however, that, except with regard to a claim or amended claim or judgment for interest only which was not paid or was incorrectly calculated, such notice is not required for an overdue claim that the insurer has denied or reduced, nor is such notice required if the insurer has been provided documentation or information at the insurer’s request pursuant to subsection (6). Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).

§ 627.736(11)(a), Fla. Stat. (2001).

In order to resolve the issue of retroactive application of the statutory presuit notice provision, we first explore the broader statutory scheme of Florida’s Motor Vehicle No-Fault Law. Next, we discuss the standard applicable to determining whether a statute should be applied retroactively. We then apply this standard and hold that the Third District improperly concluded that the statutory presuit notice provision could apply retroactively to the existing policy and claim for benefits in this case.

Florida’s Motor Vehicle No-Fault Law was enacted by the Legislature in 1971. In Allstate Insurance Co. v. Holy Cross Hospital, Inc., 961 So.2d 328, 331-32 (Fla.2007), we explained in detail the history and purpose of the statute:

The No-Fault Law is a comprehensive statutory scheme, the purpose of which is to “provide for medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits.” § 627.731, Fla. Stat. (2006); accord, United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001) (stating that the intent of the No-Fault Law is “to provide a minimum level of insurance benefits without regard to fault”). The No-Fault Law mandates security that can be established by alternative means, one of which is PIP insurance. See § 627.733, Fla. Stat. (2006).
The “Required Personal Injury Protection” provision, or the PIP statute, is codified at section 627.736 and is “an integral part of the no-fault statutory scheme.” Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002). The statute requires motor vehicle insurance policies issued in Florida to provide PIP benefits for bodily injury “arising out of the ownership, maintenance, or use of a motor vehicle.” § 627.736(1), Fla. Stat. (2006); accord Blish v. Atlanta Cas. Co., 736 So.2d 1151, 1153 (Fla.1999). The PIP statute is unique, in that it abolished “a traditional common-law right by limiting the recovery available to car accident victims” and in exchange, required PIP insurance that was recoverable without regard to fault. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1077 (Fla.2006). Although recovery is restricted under this statutory scheme, this Court has held that the PIP statute is a reasonable alternative to common law tort principles in that it provides “swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Id. (quoting Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla.2000)).

This last observation is significant because any impediment to the right of the insured to recover in a “swift and virtually automatic” way has the potential for interfering with the PIP scheme’s goal of being a reasonable alternative to common law tort principles.

Because in this case the statute was enacted after the issuance of the insurance policy, the operative inquiry is whether the statute should apply retroactively. In this regard, the Court applies a two-pronged test. First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles. See Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999).

In this case, we conclude that the Legislature intended for the statutory pre-suit'notice provision to be applied retroactively. However, even where the Legislature has expressly stated that a statute will have retroactive application, this Court will reject such an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995). Therefore, the central focus of this Court’s inquiry is whether retroactive application of the statute “attaches new legal consequences to events completed before its enactment.” Metro. Dade County, 737 So.2d at 499 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). In order to answer this question, we compare section 627.736 as it existed at the time the insureds’ insurance policy was issued with the 2001 amendment.

Before the addition of the statutory pre-suit notice provision, section 627.736 did not require an insured to provide notice to an insurer before filing an action for overdue benefits. PIP benefits became overdue if the insurer failed to pay within thirty days after receiving notice from the insured of the fact of a covered loss and the amount of such loss. § 627.736(4)(b), Fla. Stat. (2000). Any overdue payment was subject to a ten percent simple interest rate per year. § 627.736(4)(c), Fla. Stat. (2000). However, if the insurer had reasonable proof to establish that it was not responsible for the payment, the payment was not overdue. § 627.736(4)(b), Fla. Stat. (2000).

In contrast, the statute as amended in 2001 requires an insured to provide a pre-suit notice of intent to initiate litigation and provides an insurer additional time to pay an overdue claim. § 627.736(1l)(a), (d), Fla. Stat. (2001). Second, the amendment mandates that the payment from the insurer must include interest and penalties not exceeding $250. § 627.736(ll)(d), Fla. Stat. (2001). Third, if the insurer pays within the additional time provided by the statute, the payment precludes the insured from bringing suit for late payment or nonpayment and shields the insurer from a claim for attorneys’ fees. Id. Finally, the amendment tolls the statute of limitations. § 627.736(ll)(e), Fla. Stat. (2001).

The insureds do not dispute the right of the Legislature to impose these additional conditions to recovery of PIP benefits by the enactment of this statute; however, they argue that the changes imposed by the statutory presuit notice provision create various obligations and burdens that are substantive and therefore can only be applied prospectively. The insureds also argue that the statutory presuit notice provision, as a whole, affects the insured’s ability to retain counsel because there is no longer a right to reasonable attorneys’ fees if the insurer subsequently pays the claim within the additional time prescribed by statute.

In agreeing with the insureds that the statute cannot be applied retroactively, we conclude that the most problematic provisions of the statute are those which (1) impose a penalty, (2) implicate attorneys’ fees, (3) grant an insurer additional time to pay benefits, and (4) delay the insured’s right to institute a cause of action. We first note that this Court has generally held that statutes with provisions that impose additional penalties for noncompliance or limitations on the right to recover attorneys’ fees do not apply retroactively. In Laforet, this Court held that section 627.727(10), Florida Statutes, which imposed a penalty on insurers who in bad faith failed to settle uninsured motorist claims, could not be applied retroactively “because it [was], in substance, a penalty.” Laforet, 658 So.2d at 61.

Further, we have previously held that the statutory right to attorneys’ fees is not a procedural right, but rather a substantive right. Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 236 (Fla.2001). For example, in Young v. Altenhaus, 472 So.2d 1152 (Fla.1985), we held that section 768.56, Florida Statutes (1981), which permitted a reasonable attorneys’ fee award to the party that prevailed in a malpractice cause of action, was a substantive statute in light of the prior obligations under the American Rule adopted in Florida, which required each party to pay its own fees unless otherwise directed by statute or an agreement between the parties. Id. at 1153-54. In addition, our district courts have concluded that statutes that limit the ability to seek attorneys’ fees are substantive in nature.

In reviewing a statute that delayed a claimant’s ability to recover attorneys’ fees, the First District held, “[The] amendment to the attorney’s fee statute, which allows the employer/carrier 30 days rather than 14 days within which to provide benefits before being responsible for payment of attorney’s fees, is a substantive change to the statute.” Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437, 438 (Fla. 1st DCA 2004). Subsequently, in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So.2d 66 (Fla. 1st DCA 2006), the First District concluded that a statute was substantive because it “ere-ate[d] an opportunity to avoid the sanction of attorney’s fees by creating a safe period for withdrawal or amendment of meritless allegations and claims” and “[t]he withdrawal or amendment of a claim, allegation or defense could substantively alter a case.” Id. at 71.

Under the holdings of these cases, the 2001 statutory amendment cannot be applied retroactively because it allows an insurer to avoid an award of attorneys’ fees, which constitutes a substantive change to the statute in effect at the time the insureds’ insurance policy was issued. According to the new statutory presuit notice provisions, an insured is precluded from recovering attorneys’ fees if the insurer pays the claim within the additional time period provided by the statute. Similar to the safe harbor provisions at issue in Stol-zer and Walker, which were found to be substantive, the amended statute in this case creates a “safe period” by extending the period of time in which the insurer could pay a claim. Thus, the amendment relieves the insurer of the obligation to pay fees and also constitutes a substantive change to the statute as it existed before the 2001 amendment.

Finally, we conclude that the 2001 amendment that permits a delayed payment from an insurer and postpones an insured’s ability to bring a suit for overdue benefits also presents a substantive change. Under the statute in effect at the time the policy was issued, an insurer was obligated to pay a claim within thirty days after receiving notice of loss. Moreover, an insured had the right to bring suit for an overdue claim once the thirty days had expired. See Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266, 1268 (Fla. 3d DCA 1995) (“Section 627.736(4)(b) unambiguously states that an insurer, who fails to pay out benefits within thirty days of receiving proper notice, will be liable to the insured.”). Yet, pursuant to the 2001 version of section 627.736, an insurer has an additional period of time to meet its obligation under the statute, and an action for a claim of benefits cannot be initiated until the additional time for payment has expired. Thus, the statute substantively alters an insurer’s obligation to pay and an insured’s right to sue under the contract.

In our view, the statute, when viewed as a whole, is a substantive statute. Pursuant to the 2001 version of section 627.736, an insured must now take additional steps beyond filing an application for PIP benefits and beyond complying with section 627.727(4). This includes the preparation and provision of a written notice of intent to litigate, which requires the inclusion of additional information that the insured may not have access to and which may not be sent until the claim is considered overdue under section 627.727(4)(b). An insurer has additional time to meet its obligation under the statute, and an action for a claim of benefits and attorneys’ fees cannot be initiated until the additional time for payment has expired. Thus, the statute allows the insurer additional time to pay the claim and affects the insured’s right to sue and recover attorneys’ fees.

Based on our above analysis, we conclude that the statutory presuit notice provision is not “procedural” and should not be given retroactive application. Consequently, we conclude that the Third District erred in holding that requiring the insureds to comply with the presuit notice requirements of the statute did not “violate the general rule against retrospective operation.” Menendez, 979 So.2d at 331.

CONCLUSION

For the foregoing reasons, we hold that section 627.736(11), Florida Statutes (2001), does not apply retroactively to the insurance policy issued to the insureds, because it is a substantive statute. Accordingly, we quash the decision of the Third District Court of Appeal and remand with directions to reinstate the stipulated final judgment and the final judgment awarding attorneys’ fees. We also instruct the district court to enter an order awarding attorneys’ fees and to remand the issue to the trial court for a determination of the amount of fees for the proceedings at the district court and before this Court.

It is so ordered.

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

LEWIS, J., concurs in result only.

      . The statutory requirements originally contained in section 627.736(11), Florida Statutes (2001), are now located in section 627.736(10), Florida Statutes (2009). Section 627.736(11) was renumbered as subsection (10) by chapter 2007-324, section 20, Laws of Florida, which became effective January 1, 2008. To avoid any confusion, we refer in this opinion to the text of section 627.736(11), as originally enacted in 2001, as the "statutory presuit notice provision.”

      . Menendez’s husband, Louis R. Menendez, Jr., was the named insured on the insurance policy. Cathy Menendez was the second named insured.

      . As to the other issues on appeal, the Third District held: (1) that the trial court erred in granting the partial summary judgment because a material disputed issue of fact existed as to whether Progressive denied the insureds’ claim; (2) that section 627.736(11) applied to all types of PIP benefit claims, including lost supplemental wages claims; and (3) that the insureds waived any argument on appeal that the claim for benefits could have been abated' until the failure to comply with the notice provision was cured because they failed to request abatement or to voluntarily dismiss and refile their complaint. Menendez, 979 So.2d at 328-34. In light of our holding, we do not address these additional claims.

      . Retroactivity will also be rejected where a statute impairs the obligation of contracts in violation of article I, section 10, of the Florida Constitution. Fleeman v. Case, 342 So.2d 815, 818 (Fla.1976). Article I, section 10, of the Florida Constitution states: "No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”

      . Under the 2001 version of the statute, the statute of limitations was tolled for fifteen business days. § 627.736(1 l)(e), Fla. Stat. (2001). The current version of the statute tolls the statute of limitations for thirty business days. § 627.736(10)(e), Fla. Stat. (2009).

      . The 2001 amendment to the statute allowed an additional seven days after receipt of the notice of intent to litigate for the insurer to pay the claim. Under the current version of the statute, an insurer has an additional thirty days to pay a claim after receiving the notice of intent to litigate. § 627.736(10)(d), Fla. Stat. (2009). Both the 2001 and the current version of the statute state that the notice of intent to litigate may not be sent until the claim for benefits is overdue. § 627.736(1 l)(a), Fla. Stat. (2001); § 627.736(10)(a), Fla. Stat. (2009).


text:
    Ronald Wayne CLARK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC07-2318.
    Supreme Court of Florida.
    April 29, 2010.

      Harry P. Brody of H. Brody, P.A., Sarasota, FL, for Appellant.
    Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the postconviction court’s order denying relief.

FACTS AND PROCEDURAL HISTORY

The facts of the underlying case are set out in this Court’s opinion on Clark’s direct appeal and are as follows:

On the afternoon of January 13, 1990 two teenagers walking down a dirt road in rural Duval County found a crowbar, some broken false teeth, a bloody shirt, and some blank checks, with the name Ronald Willis printed on them, that also had blood on them. One of the boys returned home and told his mother what they had found, and she called the sheriffs office. Also on the 13th Willis’ mother called his ex-wife to see if she knew of Willis’ whereabouts. The ex-wife did not, and she and her sister began driving around looking for him. They found Willis’ truck at a motel, parked near it, and started calling his name. A small child was in the truck, and a man identifying himself as the child’s father removed the child and pointed out Ronald Clark and John Hatch as the people who had been driving the truck. The ex-wife took the keys and locked the truck while her sister went to telephone the police. Clark approached the ex-wife, grabbed her, and tried to take the keys. When she kicked him, he ran away. The sister ran after Clark and noticed that he was wearing Willis’ cowboy boots. Clark and Hatch ran off before the police arrived. They had been identified, however, and the police arrested Hatch in Nassau County on January 20, 1990.
Hatch described the events of January 12 to 13 as follows. When he arrived home after work on January 12, Clark was at his house. They decided to hitchhike to Jacksonville to shoot pool. Along the way they shot at signs and beer bottles with a pistol Hatch had stolen from a house he had been remodeling. Willis stopped to give them a ride, and, during the ride, Clark whispered to Hatch that he was going to steal the truck. When Hatch asked Willis to stop the truck, both he and Clark got out of the truck, and Clark, who had the stolen pistol, shot Willis seven or eight times. Clark shoved Willis’ body to the center of the seat, Hatch got in the passenger’s seat, and Clark drove to a more secluded area. Clark pulled Willis’ body from the truck, during which Willis’ shirt came off. Clark then took Willis’ wallet and boots and pushed his body into a ditch. Clark and Hatch went to a restaurant and to Hatch’s ex-wife’s apartment complex, but later returned to where they had left the body. Taking the body with them, they went to Clark’s father’s house and got a rope and several cinder blocks. They then drove to the Nassau County Sound Bridge, tied the blocks to the body, and dumped it into the water. After driving around some more, they went to an acquaintance’s house to buy drugs. The acquaintance went with them to the motel where Willis’ ex-wife and her sister found the truck. Hatch and Clark left the state, eventually winding up in South Carolina. Hatch returned to Nassau County, where he was arrested. South Carolina authorities arrested Clark on February 7, 1990 and returned him to Florida.
The state indicted Clark for first-degree murder and armed robbery and tried him on those charges in January 1991. Hatch, in exchange for a twenty-five-year sentence, testified against Clark. Clark testified on his own behalf that Hatch killed Willis. The jury convicted Clark of armed robbery and felony murder. During the penalty phase, Clark refused to allow his attorney to present any mitigating evidence. The jury recommended that Clark be sentenced to death. On February 20 both sides argued their views on sentencing with defense counsel arguing that Clark should be sentenced to life imprisonment rather than death. The court disagreed, however, and sentenced Clark to death two days later.

Clark v. State, 613 So.2d 412, 412-13 (Fla.1992). The jury voted eleven to one to recommend death. The trial judge sentenced Clark to death after finding no mitigating and three aggravating circumstances. This Court affirmed Clark’s conviction and sentence. Id. at 412. Additionally, the Court found Clark’s challenge to his mitigation waiver without merit after finding that Clark had knowingly and intelligently waived his right to present mitigation. Id. at 414 (“The record shows that Clark understood the consequences of his decision and that he voluntarily and knowingly waived the presentation of mitigating evidence. Therefore, we hold this issue to be without merit.”).

Clark first filed a motion to vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.850 on November 16, 1994. Clark filed supplemental and amended motions, ending with his Second Amended Motion to Vacate Judgment of Conviction and Sentence and Supplement to Amended Motion filed January 31, 2006.

Prior to Clark’s conviction in Duval County, he was tried and convicted in Nassau County for the murder of Charles Carter. Clark v. State, 609 So.2d 513 (Fla.1992). Judge Henry Davis, then a criminal defense attorney, represented Clark in both cases. In the Nassau County case, the evidence presented demonstrated that Clark led a troubled childhood. Id. at 515-16. Clark’s parents were described as alcoholics, and his father was a drug dealer. Clark witnessed physical abuse between his parents. Clark began drinking at age twelve, and although the amount consumed on the day of the murder could not be determined, it was excessive. The record also showed Clark had ingested a controlled substance. After psychological evaluation, Clark was determined competent to stand trial. Clark admitted during an evaluation in 1986 that he enjoyed hurting people and derived pleasure from watching blood spatter. The trial judge considered and rejected the following mitigation: (1) lack of significant prior criminal history, (2) extreme mental or emotional disturbance, (3) that the victim was a participant or consented to the act, (4) that the defendant was a minor participant, (5) that he acted under extreme duress or substantial domination, (6) that he had diminished capacity, and (7) Clark’s age at time of crime. Additionally, the trial judge stated:

There is no doubt from the record herein that the Defendant led a hard and difficult life. His early childhood experiences of being abused by his mother’s lesbian lover or having to witness physical abuse and violence between his parents was unfortunate. However, there is nothing in his background that would serve to mitigate the murder herein.

Based on this, defense counsel Davis determined the mitigating evidence “cut both ways” and, along with Clark, decided not to present mitigation at the Duval County trial. Clark asserts that the mitigation presented in the Nassau County case was virtually identical to what would have been presented in the Duval County case.

ISSUES

Clark appeals the denial of postconviction relief to this Court raising three issues. He contends (1) trial counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter; (2) trial counsel was ineffective for failing to present mitigation at the penalty phase of his trial or, alternatively, for failing to convince Clark that he needed to present mitigation; and (8) there is newly discovered evidence that Hatch confessed to being the shooter in the Duval County murder, which Clark claims entitles him to a new trial. For the reasons expressed below, we affirm the posteonviction court’s denial of Clark’s 8.851 motion.

ANALYSIS

Ineffective Assistance of Counsel

As it relates to ineffective assistance of counsel, Clark first alleges counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. Next, Clark alleges that counsel was ineffective for failing to present evidence in support of mitigation. We find both these arguments without merit.

Generally, this Court’s standard of review following a denial of a postcon-viction claim where the trial court has conducted an evidentiary hearing affords deference to the trial court’s factual findings. “[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.’ ” McLin v. State, 827 So.2d 948, 954 n. 4 (Fla.2002) (quoting Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997)). However, the circuit court’s legal conclusions are reviewed de novo. See Sochor v. State, 883 So.2d 766, 772 (Fla.2004).

Relating to Clark’s first claim, following the United States Supreme Court’s decision in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied: (1) the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards; and (2) the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986).

As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995). For the second prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. 2052.

Additionally, there is a strong presumption that trial counsel’s performance was not ineffective. See id. at 690, 104 S.Ct. 2052. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. See id. at 689, 104 S.Ct. 2052; see also Rivera v. Dugger, 629 So.2d 105, 107 (Fla.1993). The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”

With respect to the investigation and presentation of mitigation evidence, the United States Supreme Court observed in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), that “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case.” Wiggins, 539 U.S. at 533, 123 S.Ct. 2527. Rather, in deciding whether trial counsel exercised reasonable professional judgment with regard to the investigation and presentation of mitigation evidence, a reviewing court must focus on whether the investigation resulting in counsel’s decision not to introduce certain mitigation evidence was itself reasonable. Id. at 523, 123 S.Ct. 2527; Strickland, 466 U.S. at 690-91 104 S.Ct. 2052. When making this assessment, “a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527, 123 S.Ct. 2527.

Regarding the waiver of the right to present mitigating evidence, “[w]e have upheld the right of similarly situated defendants to refuse to participate in the sentencing proceeding.” Clark, 613 So.2d at 413 (citing Durocher v. State, 604 So.2d 810 (Fla.1992); Pettit v. State, 591 So.2d 618 (Fla.1992); Anderson v. State, 574 So.2d 87 (Fla.1991); Hamblen v. State, 527 So.2d 800 (Fla.1988)). Such waiver must be “knowingly, voluntarily, and intelligently made.” Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993) (citing Henry v. State, 613 So.2d 429 (Fla.1992)).

In its September 2007 order denying relief, the postconviction court found:

Initially this Court notes that the Defendant, having raised this claim on direct appeal, is procedurally barred from raising it again in a motion for post-conviction relief. Moreover, the record supports that the trial court adequately inquired into the Defendant’s decision to waive mitigation.
At the evidentiary hearing, trial counsel Davis, specifically addressed the Defendant’s ineffective assistance of counsel claims. Davis testified that it was his trial strategy not to present mitigation evidence from the Nassau County case in the Duval County case because the mitigation evidence “cut both ways.” One example of mitigation evidence cutting both ways, was that the Defendant would kill animals for the sport of it, and Davis could tell from the reaction of the Nassau County jurors that the testimony was having the opposite effect of its intended purpose. He also explained that because the Nassau County case was stronger than the Duval County case, neither he nor the Defendant thought it would be beneficial to present the mitigation evidence in the weaker case when it did not work in a stronger case. Davis testified that had the Defendant wanted to present mitigation evidence, he would have presented it to the jury.

As it relates to the claim that counsel was ineffective during the guilt phase, the postconviction court found:

To the extent the Defendant claims that Davis should have contacted or presented witnesses, the Defendant’s claim is denied pursuant to Nelson v. State, 875 So.2d 579, 583-84 (Fla.2004), as the Defendant’s claim in facially insufficient. To the extent the Defendant claims an investigator should have been hired, this claim must also be denied.... Davis testified that he hired an investigator to help him find witnesses....

The postconviction court also found that Clark did not establish that Davis was deficient for failing to present evidence to demonstrate that Hatch was the shooter because “Davis testified that had there been a basis to show that Hatch was the shooter, [he] would have developed that evidence.”

Finally, regarding Clark’s claims that Davis was ineffective for failing to present evidence of Clark’s intoxication and his long-standing substance abuse and for failing to call experts to cast doubt on the physical evidence in the case, the postcon-viction court found that Clark failed to prove these claims.

Clark alleges that counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. At the evidentiary hearing, Clark presented no evidence to support this claim. Trial counsel cannot be ineffective for failing to present evidence that did not exist at the time of trial. See, e.g., Pooler v. State, 980 So.2d 460, 465 (Fla.2008); Bell v. State, 965 So.2d 48, 64 (Fla.2007).

Although Clark alleges that “the record is replete with evidence that Mr. Hatch was the shooter and leader,” the record does not support his allegation. As stated in this Court’s opinion on direct appeal, “the record contains competent, substantial evidence to support [Clark’s] conviction.” Clark, 613 So.2d at 413. We made this finding even after noting that Clark testified at trial that Hatch was the shooter. Id. Thus, Clark’s claim was correctly denied by the postconviction court.

Next, Clark alleges that counsel was ineffective for failing to present mitigation. Clark raised this as claim 7 in his first amended 3.850 motion filed November 1, 1995. In its June 18, 1996, order on Clark’s motion to vacate judgments of conviction and sentence, the post-conviction court found this claim to be without merit and undeserving of a hearing. In this order, the postconvietion court granted an evidentiary hearing on four claims. On June 20, 2003, Clark filed a supplement to the first amended motion to vacate, raising one claim, and on January 31, 2006, filed a second amended motion, raising twenty-one claims. Of these claims, the postconviction court granted an evidentiary hearing on claims 1, 2, and 3, which it stated mirrored the claims for which the court had previously awarded an evidentiary hearing.

Clark alleges that his counsel was ineffective for failing to present mitigation at the penalty phase of his trial or, alternatively, for failing to convince Clark that he needed to present mitigation. We previously found that Clark made a knowing, intelligent waiver of his right to present mitigation. Clark, 613 So.2d at 414. Because this claim was raised on direct appeal and found to be without merit, it is procedurally barred from being raised in postconviction proceedings. See Torres-Arboleda v. Dugger, 636 So.2d 1321, 1323 (Fla.1994) (“Proceedings under rule 3.850 are not to be used as a second appeal; nor is it appropriate to use a different argument to relitigate the same issue.”). Thus, in order to find counsel was deficient for failing to present mitigation, this Court must either find that counsel failed to investigate mitigation or was deficient in some other way prior to advising Clark.

In Koon v. Dugger, 619 So.2d 246 (Fla.1993), this Court outlined the procedure that must be followed when a defendant waives the presentation of mitigating evidence:

[C]ounsel must inform the court on the record of the defendant’s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.

Id. at 250; see also Anderson v. State, 822 So.2d 1261, 1268 (Fla.2002) (quoting Koon, 619 So.2d at 250)). “Although a defendant may waive mitigation, he cannot do so blindly; counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision.” State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002). As discussed in Clark, 613 So.2d at 413-14, this Court found that the trial court followed proper procedure and that Clark properly waived his right to present mitigation. In the Duval County trial, both Clark and' his counsel were aware of the precarious nature of his mitigation. Clark does not allege that counsel failed to investigate possible mitigation or failed to discover mitigation that should have been presented at trial.

In Lewis, this Court made it clear that a defendant cannot make a knowing, intelligent waiver where counsel has not had adequate time to prepare mitigation. 838 So.2d at 1113-14. In the present case, counsel not only had time to adequately investigate and prepare mitigation evidence, but had presented the same to another jury in Clark’s Nassau County trial. This Court has previously stated that the holding in Lewis is in line with the United States Supreme Court’s decision in Wiggins: (“[0]ur principal concern in deciding whether [trial counsel] exercised ‘reasonable professional judgment[t],’ is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.”). State v. Larzelere, 979 So.2d 195, 204 (Fla.2008) (quoting Wiggins, 539 U.S. at 522-23, 123 S.Ct. 2527).

In Larzelere, we agreed with the post-conviction court’s ruling that “Larzelere’s waiver could not have been made knowingly and intelligently because her counsel was unable to adequately advise her regarding potential mitigation,” and that counsel’s performance was deficient because counsel did not sufficiently investigate possible mitigation. 979 So.2d at 203; see also State v. Pearce, 994 So.2d 1094, 1102-03 (Fla.2008) (finding competent substantial evidence to support the trial court’s finding that counsel did not spend sufficient time to prepare for mitigation prior to Pearce’s waiver).

In Spann v. State, 985 So.2d 1059 (Fla.2008), we found Spann’s argument that his waiver was involuntary because of his ongoing depression to be without merit. Id. at 1072. We found that Spann failed to demonstrate he was depressed at the time he waived his rights to present mitigation where the “only evidence indicating a diagnosis and treatment for depression was Spann’s transfer form from Martin County Jail to Florida State Prison.” Id. Further, we noted that while the form indicated Spann was on medication for depression, the diagnosis and treatment occurred after Spann’s trial and at the hearing where Spann waived his rights, he indicated he was not on medication. Id. We also found that counsel was not ineffective where counsel investigated possible mitigation and discussed it with Spann before he entered his waiver. Id.

Also dissimilar is our analysis in Gill v. State, 14 So.3d 946 (Fla.2009), where the Court considered whether a mentally ill person can enter a knowing, intelligent guilty plea and waive mitigation. In Gill, the defendant pleaded guilty and waived sentencing by a jury and the presentation of mitigation. Id. at 954. Gill objected when standby counsel attempted to present additional mitigation. Id. at 955. The court considered the mitigation available in the records, including Gill’s history of mental illness, before sentencing him to death. Id. at 955-58. Ultimately, we affirmed Gill’s conviction and sentence. Id. at 967. Despite the clear mental mitigation present in the record, Gill was found competent to enter a knowing, intelligent, and voluntary guilty plea. It can be presumed that his waiver of mitigation was also valid.

Additionally, this is not a case where the trial court did not consider mitigation evidence present in the record. The record establishes that trial counsel presented the mitigating evidence at the Spencer hearing and that the trial court considered the reports from mental health experts in the record.

Even if we allowed Clark to pierce his waiver, he cannot show counsel was deficient. Davis testified that the mitigating evidence collected “cut both ways.” He further testified that both he and Clark agreed it would not be beneficial to present such evidence in the “weaker” case. Because counsel did not fail to investigate mitigation, and because Clark was found competent, Davis cannot be found deficient for his strategy.

Finally, Clark has failed to establish prejudice. The exact same mitigation was presented in the Nassau County trial, which led to the imposition of the death penalty. Although that conviction was overturned by this Court on direct appeal, this Court did not find that the trial court improperly rejected all the mitigation presented. Instead, we overturned the sentence because we found several of the ag-gravators unsupported by the record. Clark, 609 So.2d at 514-15.

Newly Discovered Evidence

Clark raised this claim at the evidentiary hearing below, to which the State objected both procedurally and on the merits. In its order denying relief, the postconviction court found Clark’s claim “untimely in that the Defendant failed to raise this newly discovered evidence claim within one year of learning of its existence.” The court noted that Clark waited two years to raise the claim. Further, the postconviction court found that Clark “failed to establish that this evidence would have been admissible at [his] trial” and that “Thompson’s testimony was not of such nature that it would probably produce an acquittal for the Defendant on retrial, especially in light of Thompson’s credibility issues.”

With respect to a trial court’s ruling on a newly discovered evidence claim following an evidentiary hearing, as long as the court’s findings are supported by competent, substantial evidence, a reviewing court will not “substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of witnesses as well as the weight to be given to the evidence by the trial court,” Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (quoting Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)), but the court’s application of law to facts is subject to de novo review. Preston v. State, 970 So.2d 789, 798 (Fla.2007).

This Court has held that two requirements must be met in order for a conviction to be set aside on the basis of newly discovered evidence: (1) to be considered newly discovered, the asserted evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of due diligence; and (2) the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. Jones v. State, 709 So.2d 512, 521 (Fla.1998). To reach the latter conclusion, the trial court is required to consider all newly discovered evidence that would be admissible at trial and then evaluate the weight of both the newly discovered evidence and the evidence that was introduced at trial. Id.

Clark alleges newly discovered evidence that Hatch confessed to being the shooter in the Duval County murder for which Clark was convicted. Because Clark failed to raise this claim within one year of discovering it and, in fact, failed to raise this claim in his pleadings at all, this claim is denied as procedurally barred.

Clark did not raise this allegation in any of his numerous pleadings below. Instead, this claim was raised at the evidentiary hearing over the State’s objection. The court noted it would address Clark’s motion to “conform the pleadings to the evidence” in its order.

Claims of newly discovered evidence must be raised within one year of the time of discovery. Fla. R.Crim. P. 3.851(d)(2)(A); Glock v. Moore, 776 So.2d 243, 251 (Fla.2001). Here, Clark acknowledges that he became aware of Thompson’s information in 2005. Therefore, this claim, “filed” in 2007, was not filed timely.

Finally, even if the Court accepts Clark’s claim as timely filed, Clark cannot establish that the evidence, if presented at a new trial, would probably produce an acquittal. Thompson testified that Hatch admitted he shot someone after a drug deal gone bad, that Hatch had testified against Clark to save his own life, that the victim owed one of them money and had pulled a gun on them, and that Hatch had thrown the victim’s body in the canal. Thompson did not testify regarding the name of the victim, the time of the murder, or any other information that would clearly exonerate Clark in the murder. The information alleged to have been provided by Hatch to Thompson does not create sufficient doubt that Hatch was the shooter instead of Clark.

The record indicates that the evidence presented against Clark at trial was summarized by the trial judge as follows:

On January 12, 1990, Ronald Wayne Clark and John David Hatch were hitchhiking from Yulee to Jacksonville, Florida to drink beer and shoot pool. At that time, Ronald Willis, who also lived in Yulee, was driving his pickup truck to Jacksonville.
The victim, Ronald Willis saw [Clark] and [Hatch] hitchhiking, thought he recognized them and pulled over. Upon pulling nearer, [Willis] realized he did not recognize or know [Clark] and [Hatch], but agreed to give them a ride.
[Willis] then gave [Clark] and [Hatch] a ride to Jacksonville. During this ride, [Clark] told [Hatch] that he was going to take [Willis’s] truck. The two men asked to be let off. [Willis] pulled his truck over to let them out. [Clark] pulled out a pistol and shot [Willis] seven to eight times in the head....
[Clark] then stole [Willis’s] truck, dumped [Willis’s body off of Byrd Road and took off, along with [Hatch], in [Wil-ks’s] truck.
[Clark] decided later that night that [Willis’s] body would have to be moved someplace where it would not be found soon or ever. He decided that [Willis’s] body should be dumped in a river.
[Clark] and [Hatch] went back to Byrd Road and put [Willis’s] body in the pickup truck. They took the victim’s body to [Clark’s] father’s house where [Clark] got two cinder blocks and some rope. [Clark], accompanied by [Hatch], then took [Willis’s] body to the Nassau Sound River, where he tied the cinder blocks to the victim’s body. [Clark] then dumped [Willis’s] body into the Nassau Sound River. The victim’s body has never been recovered and probably never will be recovered.

At trial, Clark himself testified that Hatch was the shooter and that he was merely an accomplice to the crimes. He also testified that Willis was a friend of his father and that he had no reason to shoot Willis. However, Thompson’s description of the crime is not consistent with Clark’s own version. Clark did not mention a drug deal or money. Further, Thompson’s testimony that Hatch said they dumped the body immediately after shooting Willis is not consistent with the evidence presented at trial. Finally, Thompson is serving multiple sentences and would probably not serve as a credible witness at a new trial. Accordingly, the postconviction court properly denied Clark’s claim of newly discovered evidence.

CONCLUSION

Having reviewed all of Clark’s claims and finding them either to be barred or meritless, we affirm the postconviction court’s order.

It is so ordered.

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

      . The trial judge found: (1) Clark was previously convicted of another capital felony, (2) the murder was committed during the commission of a robbery, and (3) the murder was committed for pecuniary gain. The trial judge considered and rejected the following mitigating factors: (1) prior criminal history, (2) extreme mental or emotional disturbance, (3) the victim was a participant in the conduct or consented to the act, (4) Clark was a minor participant, (5) Clark was under extreme duress or under substantial domination, (6) diminished capacity, and (7) Clark’s age at the time of the murder.

      . On direct appeal, Clark argued that the trial court erred in allowing him to waive mitigation, that the trial court erred by finding murder in the course of a felony and pecuniary gain as separate aggravators, that the trial court failed to consider the mitigating evidence available in the record properly, and that his death sentence was disproportionate.

      . The issues raised in Clark’s first amended motion were: Clark could not prepare an adequate 3.850 motion until he received public records — summarily denied; Clark was being denied right to effective assistance of counsel because the Office of Capital Collateral Representative (CCR) lacked adequate funding — summarily denied; the rule prohibiting the interviewing of jurors was unconstitutional — summarily denied; State actions denied Clark effective legal representation— summarily denied; Clark was innocent of first-degree murder and was denied adversarial testing — insufficiently pleaded; the State withheld evidence or presented misleading evidence or both — evidentiary hearing granted; Clark's counsel was ineffective at the sentencing phase (mitigation claim)— summarily denied; ineffective assistance of counsel at the guilt phase — evidentiary hearing granted; ineffective assistance of counsel during voir dire — evidentiary hearing granted; ineffective assistance of counsel for failing to obtain a competent mental health expert — summarily denied; newly discovered evidence showed that Clark’s conviction and sentence were unreliable (Clark did not specify what evidence was newly discovered) — insufficiently pleaded for failure to state facts to support relief sought and without merit; Clark was denied a reliable competency hearing — procedurally barred; Clark was incompetent to stand trial — procedurally barred; no adequate inquiry was made into whether Clark's waiver of mitigation was voluntary and intelligent — summarily denied; Clark’s sentence was unreliable because it rests upon Hatch's perjured testimony — evidentiary hearing granted; sentencing instructions to the jury unconstitutionally diluted its sense of responsibility — summarily denied; jury instructions were unconstitutionally burden shifting — procedurally barred; Clark’s sentence relied on an unconstitutional automatic ag-gravator — procedurally barred; jury instructions on the prior capital felony aggravator were constitutionally inadequate — procedurally barred; jury instructions on the pecuniary gain aggravator were constitutionally inadequate — procedurally barred; Florida’s capital-sentencing statute was unconstitutional — summarily denied; Clark was incompetent to waive any constitutional rights — procedurally barred; inflammatory and improper prosecutorial argument — insufficiently pleaded; jury misconduct — summarily denied; it was error to allow the jury to hear testimony about Clark's prior felonies — summarily denied; Clark was incompetent during pen-dency of the appeal and the record is incomplete — summarily denied; Clark's trial was materially unreliable — insufficiently pleaded; Clark was innocent of murder and the death penalty — insufficiently pleaded; cumulative error — insufficiently pleaded.
      In his second amended motion filed January 31, 2006, Clark raised twenty-one grounds for relief.

      . It is unclear how or why the postconviction court granted an evidentiary hearing on this issue after Clark filed his second amended 3.851 motion. It appears that the court intended to grant the hearing on the same issues as it had granted a hearing on in the June 1996 Order.

      . It appears the postconviction court confused Clark’s guilt phase and penalty phase ineffective assistance of counsel claims. Clark’s second claim in his second amended motion is that trial counsel was ineffective for failing to investigate and present mitigation. This was claim 7 in his first amended motion which was denied in the June 1996 Order. Claim 8 of Clark's first amended motion was that counsel was deficient during the guilt phase of his trial. The State did not oppose an evidentiary hearing, claiming an "inability to know the extent of the preparation performed by [Clark's] trial counsel.” This claim was thus both summarily denied without an evidentiary hearing in 1996 and denied after an evidentiary hearing in 2007. We treat this claim as having been denied after an eviden-tiary hearing.

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

      . Michael Thompson, an inmate at Union Correctional Institution, testified that he met Clark in the Death Row library and that, while looking over Clark’s paperwork, he recognized the name John Hatch as an inmate with whom he had served time at another prison. Thompson testified that Hatch told him that he’d had to testify against Clark to save his own life and that he, Hatch, was the actual shooter.

      . The motion was not addressed nor were the pleadings amended.