source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manuel Antonio RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. SC18-1042
    Supreme Court of Florida.
    December 13, 2018
    Neal Andre Dupree, Capital Collateral Regional Counsel, Marie-Louise Samuels Parmer, Special Assistant Capital Collateral Regional Counsel, and Marta Jaszczolt, Staff Attorney, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Rachel Kamoutsas, Assistant Attorney General, Miami, Florida, for Appellee
   PER CURIAM.

We have for review Manuel Antonio Rodriguez's appeal of the postconviction court's order denying Rodriguez's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Rodriguez's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Rodriguez responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), and Rodriguez v. State , 237 So.3d 918 (Fla. 2018), petition for cert. filed , No. 18-6505 (U.S. July 2, 2018), should not be dispositive in this case.

After reviewing Rodriguez's response to the order to show cause, as well as the State's arguments in reply, we conclude that our prior denial of Rodriguez's postconviction appeal raising similar claims is a procedural bar to the claim at issue in this appeal, which in any event, does not entitle him to Hurst relief. See Foster v. State , No. SC18-860, 258 So.3d 1248, 2018 WL 6379348 (Fla. Dec. 6, 2018) ; Rodriguez , 237 So.3d at 919 ; Hitchcock , 226 So.3d at 217. We previously affirmed the postconviction court's denial of Rodriguez's claims for Hurst relief pursuant to Hitchcock . See Rodriguez , 237 So.3d at 919. In this case, relying on Hurst and the Legislature's amendments to Florida's capital sentencing scheme in response to Hurst pursuant to chapter 2017-1, Laws of Florida, Rodriguez contends that the elements of "capital murder" have existed since before Hurst and denying him relief amounts to a due process violation because he has not been found "guilty" of "capital murder." However, chapter 2017-1 codified the Hurst requirements, and, as we have previously explained, Rodriguez's three sentences of death were imposed following a jury's unanimous recommendations for death and became final in 2000. See Rodriguez , 237 So.3d at 919. Therefore, because Rodriguez is not entitled to relief under Hurst or the legislation implementing the rights recognized in Hurst , we affirm the denial of Rodriguez's motion. See Rodriguez , 237 So.3d 919 ; Hitchcock , 226 So.3d at 217.

The Court having carefully considered all arguments raised by Rodriguez, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.


author: LAWSON, J.

text:
    Laverne BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. SC18-323
    Supreme Court of Florida.
    December 20, 2018
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau Chief, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   LAWSON, J.

We review the Fifth District Court of Appeal's decision in Brown v. State , 233 So.3d 1262 (Fla. 5th DCA 2017). In Brown , the Fifth District expressly declared valid section 775.082(10), Florida Statutes (2015), which requires that a qualifying offender whose sentencing scoresheet totals 22 points or fewer be sentenced to a nonstate prison sanction unless the trial court makes written findings that a nonstate prison sanction could present a danger to the public. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As explained below, because subsection (10) requires the court, not the jury, to find the fact of dangerousness to the public that is necessary to increase the statutory maximum nonstate prison sanction, we hold that subsection (10) violates the Sixth Amendment to the United States Constitution and quash the Fifth District's decision.

BACKGROUND

Subsection (10) provides as follows:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

§ 775.082(10), Fla. Stat.

But for subsection (10), the penalty for a third-degree felony would be "a term of imprisonment not exceeding 5 years" pursuant to section 775.082(3)(e), Florida Statutes (2015). However, as this Court has previously explained, with the 2009 addition of subsection (10), the Florida Legislature "reinstated" the "practice of upward departure sentences" by "requir[ing] a written finding regarding danger to the public" for offenders who would otherwise be entitled to a nonstate prison sanction pursuant to subsection (10). Bryant v. State , 148 So.3d 1251, 1258 (Fla. 2014). In other words, subsection (10) marks a change from the Criminal Punishment Code (CPC) that the Legislature adopted in 1998, in that the CPC "does not contemplate upward departure sentences, because generally the statutory maximum sentence is the highest possible sentence for any crime." Id.

In the decision on review, the Fifth District expressly declared subsection (10) valid in the context of rejecting Laverne Brown's argument that "her state prison sentence violates the Sixth Amendment, as interpreted by Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, because the jury did not find that she presents a danger to the public under section 775.082(10)." Brown , 233 So.3d at 1262. Brown's jury found her guilty of petit theft for stealing a DVD player from a store, which was a third-degree felony based upon Brown's prior convictions. See id. Although Brown's scoresheet totaled 16.4 points, the trial court found that imposing a nonstate prison sanction presented a danger to the public and imposed an upward departure sentence of three years' incarceration in state prison. Id. at 1263. To avoid the constitutional problem of imposing an upward departure sentence based upon judicial factfinding (as opposed to facts reflected in the jury verdict or admitted by the defendant), the Fifth District adopted the Fourth District's prior classification of subsection (10) as providing for "mandatory mitigation " of the maximum penalty of up to 5 years' imprisonment that, but for subsection (10), would apply to Brown's third-degree felony conviction pursuant to subsection (3)(e). Id. at 1263-64 (citing Porter v. State , 110 So.3d 962, 963 (Fla. 4th DCA 2013) ); see also id. at 1265-66 ("[S]ection 775.082(10) is a mitigation statute, and not one that unconstitutionally allows an increase in the statutory maximum based upon judicial fact-finding.").

Because Brown has since served her sentence and been released from custody, we limit our review to the jurisdictional issue of the Fifth District's express declaration of subsection (10)'s validity and do not reach the parties' arguments regarding harmless error and remedy. Cf. State v. Matthews , 891 So.2d 479, 483-84 (Fla. 2004) (retaining discretionary jurisdiction to address certified conflict concerning a sentencing issue, even though the defendant had been released from prison, explaining "[t]he mootness doctrine does not destroy [this Court's] jurisdiction because the question ... is one of great public importance and is likely to recur" and further "elect[ing] to proceed because the problem ... is capable of repetition yet evading review").

ANALYSIS

In Apprendi , the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). In Blakely v. Washington , 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court defined the "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."

We agree with Brown that subsection (10) unambiguously sets the statutory maximum penalty, for Apprendi purposes as defined by Blakely , as "a nonstate prison sanction," § 775.082(10), Fla. Stat., for her and similarly situated offenders. This is because, absent a factual finding of "dangerousness to the public"-a finding not reflected in the jury's verdict on the theft charge-the statute plainly states that "the court must sentence the offender to a nonstate prison sanction," id. (emphasis added), given the crime charged and Brown's criminal history as reflected on her criminal punishment code scoresheet. Although it would have been possible for the Legislature to have written this statute as a "mitigation statute," giving the court discretion to impose up to five years unless the defendant proved non-dangerousness, the Legislature did not do so. We read statutes as they are written. See Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) ("[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (1931) ).

Accordingly, we hold that subsection (10) violates the Sixth Amendment in light of Apprendi and Blakely based on its plain language requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction. Cf. Booker v. State , 244 So.3d 1151, 1164 (Fla. 1st DCA 2018) (holding that "the second sentence of subsection (10) is unconstitutional under the Sixth Amendment as applied to [the defendant]" because "the trial judge's factual findings-and thereby [the defendant's] enhanced sentence-were neither based on a jury finding that he poses a 'danger to the public' nor limited to only the fact that [the defendant] had prior convictions"); cf. also Plott v. State , 148 So.3d 90, 95 (Fla. 2014) ("hold[ing] that upward departure sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely patently fail to comport with constitutional limitations, and consequently, the sentences are illegal under rule 3.800(a)").

CONCLUSION

Because subsection (10) violates the Sixth Amendment by requiring the court rather than the jury to make the finding of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction to a state prison sentence, we quash the Fifth District's express declaration of subsection (10)'s validity in Brown and disapprove the Fourth District's decision in Porter rejecting a similar Sixth Amendment challenge to subsection (10). In order for a court to impose any sentence above a nonstate prison sanction when section 775.082(10) applies, a jury must make the dangerousness finding.

It is so ordered.

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

      The statute's constitutionality is a question of law we review de novo. See Caribbean Conservation Corp., Inc. v. Fla. Fish & Wildlife Conservation Comm'n , 838 So.2d 492, 500 (Fla. 2003). Although the 2015 version of the statute is at issue in this case, the language of subsection (10) has not changed since its addition in 2009. In addition, we note that the remedy to be addressed in a future case relates to the remand instructions to be given by the appellate court if it finds that a sentencing court has improperly imposed a prison sentence without a jury finding of dangerousness. In other words, whether the appellate court remand should instruct that a non-state prison sanction be imposed or afford the State an opportunity to present the dangerousness issue to a jury.


text:
    Steven Richard TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. SC18-520
    Supreme Court of Florida.
    December 20, 2018
    Michael P. Reiter, Ocala, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

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

FACTS AND BACKGROUND

Steven Richard Taylor was convicted of first-degree murder, burglary of a dwelling, and sexual battery and was sentenced, among other sentences, to death. Taylor v. State (Taylor I ), 630 So.2d 1038, 1039 (Fla. 1993). In affirming his convictions and sentences on direct appeal, we set forth the pertinent facts pertaining to Taylor's case:

The record reflects that on September 15, 1990, at about 11:30 p.m., the victim, fifty-nine-year-old Alice Vest, returned to her mobile home in Jacksonville after spending the evening with a friend. Earlier that evening, the appellant, Steven Richard Taylor, and two friends were out driving and listening to the radio. Around midnight, the driver of the car dropped off Taylor and his friend, who was later to become his accomplice, near the victim's neighborhood.
Sometime in the early morning hours of September 16, a Ford Ranchero was stolen from a residence near the place where Taylor had been dropped off. At about 4:30 a.m., after the vehicle had been stolen, a passing motorist noticed the Ford Ranchero parked in a driveway next door to the mobile home where the victim lived. Later that morning, the Ford Ranchero was found abandoned behind a used car dealership only a few blocks from where Taylor lived at the time.
On the same morning, neighbors discovered the victim's battered body in the bedroom of her mobile home. The medical examiner testified that the victim had been stabbed approximately twenty times, strangled, and sexually assaulted. The medical examiner further testified that most of the stab wounds were made with a knife found at the scene of the crime, while the remaining stab wounds were made with a pair of scissors that were also found at the scene. The medical examiner stated that the victim was alive while she was being stabbed, that she was strangled with an electrical cord, and that the strangulation had occurred after the victim was stabbed.
The medical examiner also testified that the victim's lower jaw had multiple fractures and that she had received several blows to her head. The examiner testified that the fractures of the victim's jaw could have resulted from being struck with a broken bottle found on the bed next to the victim, and that contusions to the victim's head were consistent with being struck by a metal bar and candlestick also found at the scene. Finally, the medical examiner testified that the victim's breasts were bruised, and that the bruises resulted from "impacting, sucking, or squeezing" while she was alive. In the medical examiner's opinion, the victim was alive at most ten minutes from the first stabbing to the strangulation. On cross-examination, the examiner stated that he did not know whether the victim was conscious during all or any part of the attack.
The testimony at trial also revealed that the phone line to the mobile home had been cut, that the home had been burglarized, and that various pieces of jewelry were missing.
In December of 1990, Taylor moved out of the duplex he had been sharing with a friend. In January, 1991, while Taylor's former roommate was removing a fence behind the duplex, he discovered a small plastic bag buried in the ground near the fence. The bag contained the pieces of jewelry taken from the victim's home during the attack and burglary. The roommate turned the jewelry over to the police and gave a statement. Later that month, Taylor visited the duplex with some friends. The former roommate testified that, at some point during the visit, Taylor went into the backyard and stared at the place where the fence had stood. During the following month, Taylor again returned to the duplex with friends. One of the accompanying friends testified that Taylor went into the backyard and returned a few minutes later with dirty hands. In response to the friend's inquiry as to what he was doing, Taylor allegedly responded that he had left some things there and that they were gone.
On February 14, 1991, the Duval County sheriff's office executed a search warrant on Taylor which authorized the officers to take blood, saliva, and hair samples from Taylor. Taylor was taken to the nurses' station at the county jail so that the samples could be taken, but not before Taylor invoked his right to counsel. Later that day, after the samples were taken, Taylor asked the investigating officer how long it would take to get the results back. Instead of directly responding to the question, the investigating officer asked Taylor why he wanted to know. Taylor responded that he was just wondering when they would be back out to pick him up. Taylor did not have long to wait. Two days later, on February 16, Taylor was arrested, and, on March 3, a grand jury returned a two-count indictment against Taylor for first-degree murder and burglary. The indictment was amended on September 12, 1991, to add a third count for sexual battery.
At trial, the State presented the testimony of Timothy Cowart, who had shared a cell with Taylor in the Duval County jail. Cowart testified that, in a jailhouse conversation with Taylor in early April, Taylor stated that he had been involved in a burglary and that it was a messy job; that the lady surprised him inside the trailer; and that he stabbed her and choked her and then strangled her with a cord to make sure she was dead. Cowart also testified that Taylor said the State could place him, but not his accomplice, at the scene of the crime, and that the State could convict him with the evidence it had. Taylor allegedly asked Cowart to hide a gun and handcuff key in the bathroom at the hospital; Taylor would then feign an illness, get taken to the hospital, and have a chance to escape.
A Florida Department of Law Enforcement lab analyst, who was an expert in serology, testified that semen found on a bed covering and on a vaginal swab taken from the victim could not be tested. However, the analyst testified that semen found in the victim's blouse matched Taylor's DNA profile.
In the guilt phase, Taylor presented only one witness, an agent of the Federal Bureau of Investigation. The agent testified that certain hairs found on the victim's body and clothing matched the pubic hairs of Taylor's accomplice. On cross-examination, the agent conceded that it is possible to commit a sexual battery and not leave any fibers or hair. Taylor then rested his case and the jury found him guilty as charged.
At the penalty phase proceeding, the State rested without presenting any additional evidence. Taylor presented the testimony of five witnesses. First, Taylor called Charles Miles, who lived next door to Taylor during Taylor's adolescence. Miles stated that Taylor frequently played with Miles' son and that Taylor was always very polite and respectful. Miles testified that on one occasion he and Taylor sat in Miles' garage and talked at length about religion. Taylor's next witness was Lloyd King, his uncle. King testified that Taylor had always been a polite person. The third witness, Judy Rogers, was a friend of the family who testified that she thought Taylor had a learning disability. Taylor's next witness was another uncle, Don King, who testified that, during fifth and sixth grades, Taylor experienced difficulty in reading and that his reading comprehension was poor. King also stated that Taylor was a very passive person. As his last witness, Taylor called his adoptive mother, Lenette Taylor, who testified that Taylor had experienced difficulty concentrating in school and that she had tried unsuccessfully to get him into special education classes. She testified that Taylor's I.Q. had been tested and found to be around 68 to 70, which, according to her, is in the mildly retarded range. On cross-examination, she acknowledged that, in 1979, when he was nine years old, Taylor had tested in a normal intellectual range. The record further reflects that, although defense counsel had Taylor examined by two mental health experts, counsel found it to be in Taylor's best interest not to present the experts' testimony at trial. As an additional mitigating factor, Taylor offered evidence that he was only twenty years old at the time of the murder.
The jury recommended the death sentence by a vote of ten to two. In sentencing Taylor to death, the trial judge found the following aggravating factors: (1) the murder was committed during the course of a burglary and/or sexual battery; (2) the murder was committed for financial gain; and (3) the murder was committed in an especially heinous, atrocious, or cruel manner. As the sole nonstatutory mitigating factor, the trial judge found that Taylor was mildly retarded. The trial judge sentenced Taylor to death for the first-degree murder, to fifteen years' imprisonment for the burglary, and to twenty-seven years' imprisonment for the sexual battery.

Id. at 1039-41. On October 3, 1994, the United States Supreme Court denied Taylor's petition for writ of certiorari. Taylor v. Florida , 513 U.S. 832, 115 S.Ct. 107, 130 L.Ed.2d 54 (1994). Thus, Taylor's conviction and sentence of death became final on that date.

We affirmed the denial of Taylor's initial motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and denied his petition for writ of habeas corpus. Taylor v. State (Taylor II ), 62 So.3d 1101, 1106 (Fla. 2011). After the release of Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), Taylor filed his first successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851, and we affirmed the postconviction court's denial of relief. Taylor v. State (Taylor III ), 234 So.3d 649, 650 (Fla. 2018).

Taylor then filed this second successive motion for postconviction relief pursuant to rule 3.851, alleging newly discovered evidence in the form of an exculpatory affidavit of a witness and new DNA evidence. Without conducting a case management conference, the postconviction court denied Taylor's motion. This appeal follows.

ANALYSIS

Taylor raises two claims in his appeal to this Court. First, Taylor asserts that the postconviction court's failure to hold a case management hearing, known as a Huff hearing, violated his due process rights. Second, Taylor contends that, on the merits, the postconviction court erred in summarily denying his second successive postconviction motion. All of these claims are addressed individually below.

I.

In his first claim, Taylor contends that the postconviction court violated his due process rights by failing to hold a case management conference, pursuant to Huff , before ruling on his second successive motion for postconviction relief. In accordance with our extensive precedent on the failure to hold Huff hearings for successive motions for postconviction relief, we conclude that any error here was harmless.

In Huff , we stated:

Because of the severity of punishment at issue in a death penalty postconviction case, we have determined that henceforth the judge must allow the attorneys the opportunity to appear before the court and be heard on an initial 3.850 motion. This does not mean that the judge must conduct an evidentiary hearing in all death penalty postconviction cases. Instead, the hearing before the judge is for the purpose of determining whether an evidentiary hearing is required and to hear legal argument relating to the motion.

622 So.2d at 983. This Huff hearing requirement was later expanded to include rule 3.851 motions. See Fla. R. Crim. P. 3.851(f)(5)(B).

Nevertheless, in Groover v. State , 703 So.2d 1035 (Fla. 1997), we elaborated that our holding in Huff was limited to initial death penalty postconviction motions. Id. at 1038. We noted that although Huff hearings are preferred in order to allow the parties to present their legal arguments, one was not required in Groover's case because his successive postconviction motion was without merit. Id. "[E]ven if a Huff hearing had been required in [ Groover ], the court's failure to do so would be harmless as no evidentiary hearing was required and relief was not warranted on the motion." Id. Moreover, we have repeatedly upheld our holding in Groover with regard to Huff hearings on legally insufficient or meritless successive postconviction motions. See Marek v. State , 14 So.3d 985, 999 (Fla. 2009) (holding that the failure to hold a Huff hearing on Marek's fourth successive postconviction motion that was legally insufficient on its face and without merit was harmless and stating that "[t]he failure to hold a hearing on a successive postconviction motion that is legally insufficient on its face is harmless error" (citing Davis v. State , 736 So.2d 1156, 1159 n.1 (Fla. 1999) ; Groover , 703 So.2d at 1038 ) ); Davis , 736 So.2d at 1159 n.1 ("In view of the fact that the instant motion is successive and legally insufficient on its face, we find this error harmless." (citing Groover , 703 So.2d at 1038 ) ); see also Mordenti v. State , 711 So.2d 30, 32 (Fla. 1998) (holding a failure to hold a Huff hearing on Groover's fourth successive postconviction motion was harmless error whereas the same lack of Huff hearing on Mordenti's first motion for postconviction relief was not). Therefore, we have repeatedly emphasized that the failure to hold a Huff hearing on legally insufficient or meritless successive postconviction motions is harmless error.

Here, the postconviction motion at issue is Taylor's second successive postconviction motion. Moreover, as discussed at length below, the postconviction court below properly found that Taylor's successive postconviction motion was without merit. Therefore, although Huff hearings are preferred on all postconviction motions, we conclude that the failure to hold a case management hearing in the instant proceeding was harmless. See, e.g. , Groover , 703 So.2d at 1038. Thus, this claim of Taylor's successive motion for postconviction relief fails.

II.

Taylor next asserts that the postconviction court erred in summarily denying his newly discovered evidence claims. Taylor presents two items of newly discovered evidence, both of which the postconviction court deemed to be meritless: (1) an affidavit from James Dixon, and (2) new DNA evidence. Each piece of newly discovered evidence is addressed individually below.

A. Standard of Review

We originally enunciated the standard of review governing claims of newly discovered evidence in Jones v. State , 709 So.2d 512 (Fla. 1998). In sum,

[t]o obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or 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 diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones , 709 So.2d at 521. Newly discovered evidence satisfies the second prong of the Jones test if it "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Jones , 709 So.2d at 526 (quoting Jones v. State , 678 So.2d 309, 315 (Fla. 1996) ). If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence. See Jones v. State , 591 So.2d 911, 915 (Fla. 1991).
In determining whether the evidence compels a new trial, the trial court must "consider all newly discovered evidence which would be admissible" and must "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Id. at 916. This determination includes
whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.
Jones , 709 So.2d at 521 (citations omitted).

Preston v. State , 970 So.2d 789, 797-98 (Fla. 2007) (alterations in original). Furthermore, "[t]he summary denial of a newly discovered evidence claim will be upheld if the motion is legally insufficient or its allegations are conclusively refuted by the record." Taylor v. State , 3 So.3d 986, 999 (Fla. 2009) (citing McLin v. State , 827 So.2d 948, 954 (Fla. 2002) ). "To support a summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion." Anderson v. State , 627 So.2d 1170, 1171 (Fla. 1993). Where no evidentiary hearing is held, this Court has delineated that it must accept the defendant's factual allegations, "to the extent they are not refuted by the record." Foster v. State , 810 So.2d 910, 914 (Fla. 2002) (quoting Peede v. State , 748 So.2d 253, 257 (Fla. 1999) ). However, we have nonetheless stated that "there may be cases where, from the face of the affidavit, it can be determined that the affidavit is 'inherently incredible,' " which may ultimately warrant summary denial. McLin , 827 So.2d at 955 (quoting Robinson v. State , 736 So.2d 93, 93 (Fla. 4th DCA 1999) ). Moreover, we have also indicated that "there may be cases where the newly discovered evidence is 'obviously immaterial' to the verdict," which might also warrant summary denial. Id. at 956 (quoting Robinson , 736 So.2d at 93 ).

In addition, this Court has emphasized the need for a cumulative analysis when determining the validity of a newly discovered evidence claim:

Based on the standard set forth in Jones [ ], the postconviction court must consider the effect of the newly discovered evidence, in addition to all of the admissible evidence that could be introduced at a new trial. Swafford v. State , 125 So.3d 760, 775-76 (Fla. 2013). In determining the impact of the newly discovered evidence, the court must conduct a cumulative analysis of all the evidence so that there is a "total picture" of the case and "all the circumstances of the case." Id. at 776 (quoting Lightbourne v. State , 742 So.2d 238, 247 (Fla. 1999) ).... As this Court held in Lightbourne , and more recently in Swafford , a postconviction court must even consider testimony that was previously excluded as procedurally barred or presented in another postconviction proceeding in determining if there is a probability of an acquittal. Swafford , 125 So.3d at 775-76 ; Lightbourne , 742 So.2d at 247 ; see also Roberts v. State , 840 So.2d 962, 972 (Fla. 2002) (holding that upon remand, if the trial court determined that the testimony in a newly discovered evidence claim was reliable, the trial court was required to review that new evidence, as well as claims under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that were previously rejected in a prior postconviction motion, because the evidence was equally accessible to the defense and there was no reasonable probability that the result of the trial would have been different had the evidence been disclosed).

Hildwin v. State , 141 So.3d 1178, 1184 (Fla. 2014).

B. Newly Discovered Affidavit Evidence

Taylor first asserts that an allegedly exculpatory affidavit by Dixon constitutes newly discovered evidence that warrants relief. Dixon's affidavit, in full, states:

I, James Dixon worked for Walter Holton in the early 90's doing odd jobs. Holton sold large amounts of cocaine with a Cuban Friend from Miami, who drove a Porsche. Both men were dangerous if you crossed them and were known to put contract hits out on people who crossed them. I was questioned by Police about a sailboat necklace that was possibly connected to a homicide. I got the sailboat necklace from Angela Smith, who was the girlfriend of Walter Holton at the time. She told me that she got it from his Cuban friend, who told her to "never get rid of it". [sic] I did not tell the police where I got the necklace from, because I was afraid of Walter Holton and his Cuban friend. My DNA was collected by the police and I was cleared of any involvement with the homicide case.

Taylor supplements the information contained within Dixon's sworn affidavit with a number of additional facts he claims to have obtained from Dixon himself. The postconviction court below summarized these additional facts to the following:

Defendant claims Dixon knows Mr. Holton murdered Ms. Vest because Dixon allegedly said "Mr. Holton admitted he murdered Ms. Vest because she threatened him after one of her friends had a drug-related conflict with Mr. Holton." Defendant maintains Dixon's alleged conclusion that Holton, not Defendant, murdered Ms. Vest is supported by Dixon's alleged statements that (1) Angela Smith lied to police when she provided an alibi for Holton when Dixon "was selling cocaine for Mr. Holton that night and knew Holton was not with Ms. Smith"; (2) he knows Holton's [Ford Ranchero] was damaged after hitting a mailbox "belonging to a house they robbed"; and (3) he gave the sailboat necklace to someone "who later pawned it." According to Defendant, Dixon said he came forward at this time because Holton, who had "put a hit out" on Dixon, has died.

(Citation omitted.)

In denying this claim of Taylor's successive postconviction motion, the postconviction court noted that Dixon's affidavit relies on inferences stacked upon inferences in order to establish the likelihood of acquittal on retrial. Additionally, the postconviction court noted that there is no definitive statement within the affidavit that anyone other than Taylor murdered Ms. Vest. Finally, the postconviction court found that Taylor's assertion that Dixon murdered Ms. Vest or was present during the murder of Ms. Vest did not constitute newly discovered evidence because this evidence was available at trial and defense counsel could have found it through due diligence prior to trial.

The first prong of the Jones test requires that the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and the defendant or defense counsel could not have known of it by the use of diligence. Jones , 709 So.2d at 521. We agree with the postconviction court that evidence indicating Dixon was a possible suspect in the murder of Ms. Vest was available to the defense before trial, based on Dixon's own assertion that his DNA was taken during the police investigation and he was excluded as a possible suspect. However, with regard to Holton's possible involvement in the murder, we conclude that this evidence was previously unavailable to Taylor, based on Dixon's previous unwillingness to testify.

The second prong of the Jones test requires that the newly discovered evidence be of such a nature that it would probably produce an acquittal on retrial. Id. In assessing this prong, we consider "whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence ... whether the evidence is cumulative to other evidence in the case ... the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence." Id. For the reasons discussed below, we conclude that Taylor's claim fails on the second prong of the Jones analysis because Dixon's affidavit would probably not produce an acquittal on retrial.

First, the postconviction court was correct in determining that Dixon's affidavit would not produce an acquittal for Taylor on retrial because the information within the affidavit, even if true, presents a theory of the case-namely, that another individual, not Taylor, murdered Ms. Vest-that is cumulative to that already presented by the defense at trial. Specifically, Taylor's entire defense at trial was that his codefendant, Murray, committed the murder, based upon the testimony of FBI Special Agent Joseph A. Dizinno, an expert in hair and fiber analysis, which linked hairs found on the victim and at the scene of the crime to Murray, but not Taylor. Because Agent Dizinno could not match any of the hairs found on the victim or at the scene of the crime to Taylor, the defense argued that he was not the perpetrator. As evidenced by the guilty convictions on each of the charged crimes, the theory of an alternative murderer was rejected by the jury. Thus, attempting to present up to three additional suspects (i.e., Walter Holton, the "Cuban friend," or Angela Smith) would have been cumulative and would probably not produce an acquittal on retrial.

Second, the postconviction court was correct in finding that the Dixon affidavit would not produce an acquittal on retrial based on the fact that the evidence in the trial record clearly and directly refutes the claims made by Dixon in his affidavit with regard to who the true perpetrator was, thus indicating the inherent unreliability of the information contained within the affidavit. See Foster , 810 So.2d at 914 (holding that the Court must accept the defendant's factual allegations "to the extent they are not refuted by the record " (emphasis added) (citing Peede , 748 So.2d at 257 ) ). Specifically, the information Dixon now presents is directly refuted by the following portions of the trial record: (1) testimony from Dr. James M. Pollock, Jr. matching semen recovered from a blouse found at the scene of the crime to Taylor's DNA profile; (2) testimony from Johnny Allen Taylor and Jason Leister indicating that Taylor, on two different occasions, went into the backyard of his old residence looking for items in the area where Ms. Vest's jewelry was found; (3) evidence and testimony from Detective T. C. O'Steen that the sailboat necklace, along with multiple other pieces of jewelry identified as belonging to the victim, was found buried in the backyard of Taylor's old residence; and (4) testimony from Detective John Robert Bogers and Timothy Dale Cowart about inculpatory statements made by Taylor. Each of these items will be individually addressed in more detail below.

1. Semen Match

Dr. Pollock, an expert in forensic serology and DNA analysis, testified at trial that he received a number of items for testing in connection with this case: (1) a stain from a bedspread; (2) a stain from a blouse; (3) a blood sample from Ms. Vest; (4) a vaginal swab from Ms. Vest; and (5) a liquid blood sample from Taylor. Dr. Pollock explained that the DNA samples from the bedspread and Ms. Vest's vaginal swab were too degraded to perform proper DNA analyses. Dr. Pollock was, however, able to perform DNA testing on the stain from the blouse recovered at the scene of the crime. Through this testing, Dr. Pollock found that the DNA recovered from the blouse stain matched the DNA profile from Taylor's blood sample. In so finding, Dr. Pollock testified that the probability of selecting an unrelated individual from the overall gene population having the same DNA profile was one in six million, which he further narrowed down to a probability of one in twenty-three million, when looking only at the Caucasian database.

We conclude that Dr. Pollock's testimony matching DNA recovered from a stained blouse found at the crime scene to that of Taylor's DNA profile directly refutes Taylor's current claim that Dixon's affidavit is so exculpatory that it would produce an acquittal on retrial. Contrary to what Taylor now attempts to assert, none of the information contained within Dixon's affidavit refutes or explains the scientific DNA evidence linking Taylor to the place where Ms. Vest was murdered. Therefore, we conclude that the likelihood that Dixon's affidavit would produce an acquittal on retrial, in light of the DNA evidence linking Taylor to the crime scene, is very slim.

2. The Sailboat Necklace

Taylor's roommate during the time that Ms. Vest was murdered, Johnny Taylor, testified that he and Taylor lived together in September of 1990, and that Taylor moved out sometime before Christmas of 1990. Johnny Taylor further testified that in January 1991, after Taylor moved out, he and his brother renovated the fencing in the backyard of their split duplex. Approximately a week after redoing the fence, Johnny Taylor testified that his dogs dug up a sandwich bag containing jewelry from an area of the backyard bordering the duplex. At trial, Johnny Taylor testified that the sandwich bag contained two necklaces, a coin, and an earring. Johnny Taylor turned these items over to Detective O'Steen and gave a sworn statement. Johnny Taylor testified that, approximately two days after he gave his sworn statement, Taylor came over with two other individuals. While the others sat at the kitchen table drinking beers, Taylor went into the backyard for a minute or two and then returned to the table, where he explained that he was looking at the new fence. Taylor and the two other individuals left shortly thereafter.

Next, Jason Leister testified that, around February 1991, he went to Johnny Taylor's house with Taylor and another individual. While there, Leister testified that Taylor went out to the backyard and returned with dirty hands that he proceeded to wash. Leister testified that, when asked what he was doing, Taylor responded "that he left some things over there and they were gone."

Finally, Detective O'Steen testified that, in February 1991, he visited Johnny Taylor's duplex, where he recovered a gold coin, a sailboat pendant, a gold earring, and two gold chains. Detective O'Steen identified each of the five pieces of jewelry admitted into evidence as those he recovered from Johnny Taylor. In addition, Detective O'Steen testified that he obtained all five pieces of jewelry from Johnny Taylor and his brother.

We conclude that the information within the Dixon affidavit concerning the ship pendant is directly contradicted by the testimony presented at trial. Specifically, Detective O'Steen's testimony that he recovered the sailboat pendant directly from Johnny Taylor and his brother contradicts Dixon's statement that he had possession of the sailboat necklace, which he obtained from Angela Smith and later gave to another individual to pawn. See Foster , 810 So.2d at 914 (holding that the Court must accept the defendant's factual allegations "to the extent they are not refuted by the record " (emphasis added) (citing Peede , 748 So.2d at 257 ) ). The trial record directly refutes Dixon's affidavit, thus indicating its inherent incredibility. Therefore, we conclude that the postconviction court was correct in summarily denying this newly discovered evidence claim because "the motion, files, and records ... conclusively show that [Taylor] is entitled to no relief" on their face. Fla. R. Crim. P. 3.851(f)(5)(B). Furthermore, the statements contained within the affidavit would not produce an acquittal on retrial.

3. Taylor's Inculpatory Statements

Detective John Robert Bogers testified at trial that in the course of taking Taylor's blood, saliva, and hair samples pursuant to a search warrant, Taylor asked how long it would take for the results of the samples to come back. When Detective Bogers asked why, Taylor "stated he was just wondering when we would be back out to pick him up."

Timothy Dale Cowart, Taylor's cellmate in jail, testified that Taylor made statements to him about the case. Specifically, Taylor told Cowart that he and a partner were committing a burglary and "[t]hat it was a messy job, that the lady surprised him inside the trailer, and he stabbed her and then choked her and then had to strangle her with a cord to make sure she was dead." Cowart testified that Taylor stated that the State had taken hair and body samples and had done a rape test on him that could put him at the crime scene, but not his partner. Further, Taylor stated that his tissue and hair alone could convict him, and that the State also had recovered property removed from the home that could place him at the scene. Cowart also indicated that Taylor had asked him to obtain a gun and a handcuff key and place it in a hospital bathroom so that Taylor could escape.

We conclude that the Dixon affidavit would not produce an acquittal on retrial because it does not present any information disputing or explaining the statements made by Taylor as to the murder. Instead, Taylor's statements to Detective Bogers and Cowart link him to the crimes for which he was convicted, and Dixon's suggestion that another individual might have committed the murder does not eradicate these statements. Moreover, when considered alongside evidence presented at trial matching Taylor's DNA profile to the DNA recovered from a stained blouse found at the scene and the evidence and testimony presented with regard to the recovery of the sailboat pendant, Dixon's affidavit has little to no effect on the probability of acquittal on retrial.

For the reasons discussed above, we conclude that Dixon's affidavit fails the Jones test when considered alongside the evidence and testimony in the trial record, because the information it contains is refuted by the record and thus would not produce an acquittal on retrial. Therefore, we hold that the postconviction court did not err in summarily denying this claim of Taylor's successive motion for postconviction relief.

C. Newly Discovered DNA Evidence

Taylor next asserts that two pieces of newly discovered DNA evidence entitle him to relief: (1) disagreement between the procedures used by Dr. Pollock in matching Taylor's DNA to semen found on the victim's blouse and the opinion of Shirley Zeigler, another DNA analyst, on more appropriate testing procedures, and (2) new developments in Taylor's codefendant's case challenging the DNA testing of hair fibers found at the crime scene. As discussed below, we hold that neither of the two alleged pieces of newly discovered evidence constitute newly discovered evidence that would entitle Taylor to relief.

First, with regard to the alleged disagreement between Dr. Pollock and Zeigler as to the appropriate DNA testing procedures to be used, we conclude that the postconviction court was correct in summarily denying this claim, finding that it is not newly discovered evidence, because the claim was previously raised-and denied by this Court-in Taylor's initial postconviction motion. Taylor II , 62 So.3d at 1111, 1115-17. Additionally, even if this evidence were newly discovered, we conclude that it would not produce an acquittal on retrial because, as we stated in Taylor II , "although Zeigler testified during postconviction proceedings that there were differences between her report and that of Dr. Pollock, she did not disagree with Dr. Pollock's ultimate findings ." Id. at 1112 (emphasis added). Therefore, Zeigler's testimony, if introduced on retrial, would not controvert Dr. Pollock's ultimate finding matching Taylor's DNA to the semen found on the victim's blouse and thus would not produce an acquittal on retrial. Therefore, we hold that the postconviction court did not err in denying this portion of Taylor's newly discovered DNA evidence claim.

Second, with regard to the hair samples that were matched to Murray, we again conclude that the postconviction court was correct in summarily denying this claim because it is neither newly discovered nor would it produce an acquittal on retrial. In essence, Taylor argues that Murray's challenge to the hair fibers found at the crime scene entitles him to relief because it indicates that he was not the perpetrator. This claim is meritless. As an initial matter, the hair fibers are not newly discovered, as they were presented at Taylor's initial trial in 1991. Furthermore, as explained above, the defense presented Agent Dizinno's testimony matching Murray's hair sample, not Taylor's, to the hair fibers recovered at the scene, in order to present a theory of the case that someone other than Taylor murdered Ms. Vest. Although Murray now challenges the testing procedures used in matching his hair to those recovered from the scene, this has no bearing on Taylor's guilt or innocence. Taylor is linked to the crime scene through a DNA match of semen recovered from a blouse in Ms. Vest's trailer. Presenting further evidence that the hair recovered from the scene does not match Taylor's would not produce an acquittal on retrial. Instead, this evidence would be cumulative evidence attempting to show that someone other than Taylor committed the murder, a proposition that was already presented to-and rejected by-the jury at trial. Thus, the "new" evidence relating to hair fibers from the crime scene would not produce an acquittal on retrial. Therefore, we conclude that the postconviction court did not err in summarily denying this claim of Taylor's successive postconviction motion.

D. Cumulative Analysis

Although not explicitly conducted by the postconviction court below, this Court has emphasized the need to conduct a cumulative analysis in newly discovered evidence claims. Hildwin , 141 So.3d at 1184. For this cumulative analysis, we have explained the need to consider all of the evidence of the case, including testimony that was previously excluded as procedurally barred or presented in another postconviction proceeding in determining the probability of acquittal on retrial. Id. Accordingly, below we conduct a cumulative analysis in order to comprehensively assess the probability of acquittal on retrial.

When examining the newly discovered evidence presented, in addition to the evidence previously presented at trial and in prior postconviction claims, such as Zeigler's disagreement with Dr. Pollock's DNA testing procedures, we conclude that the postconviction court was correct in denying Taylor's successive postconviction motion because none of the new or previously presented evidence would likely produce an acquittal on retrial. The newly discovered evidence and claims Taylor raised in his prior postconviction motion do not refute the evidence linking him to the murder of Ms. Vest.

Namely, if Zeigler were presented to testify on retrial, her testimony would reflect that she ultimately agreed with Dr. Pollock's conclusion that the semen found on Ms. Vest's blouse was a direct match to Taylor's DNA profile. This direct evidence linking Taylor to the scene of the crime would not be refuted by the presentation of Zeigler as an additional witness and thus would not produce an acquittal on retrial.

Similarly, as discussed at length above, neither the presentation of Dixon as an additional witness to testify as to Holton's alleged involvement in Ms. Vest's murder nor the presentation of additional evidence on the hair samples from Murray's case would refute the evidence in the record matching Taylor's DNA profile to the semen recovered at the crime scene. Additionally, this new evidence would not undercut the fact that Ms. Vest's jewelry was found at Taylor's old residence and multiple witnesses testified that he returned to the residence seemingly in an attempt to recover the jewelry. Ultimately, even with the presentation of the newly discovered evidence and testimony from Taylor's prior postconviction claims, the evidence in the record against Taylor is abundant and essentially unrefuted. Therefore, we conclude that, even in conducting a cumulative analysis, the evidence in question would not produce an acquittal on retrial. See id.

CONCLUSION

For the reasons discussed above, we affirm the postconviction court's denial of Taylor's second successive motion for postconviction relief.

It is so ordered.

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

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

I concur in result regarding the newly discovered evidence claims. As to the Hurst claim, I write separately to emphasize how Steven Taylor's case demonstrates precisely why this Court's cut-off for Hurst retroactivity results in unconstitutional arbitrariness. Taylor's conviction became final in 1994. Taylor v. State , 630 So.2d 1038 (Fla. 1993) (direct appeal), cert. denied , 513 U.S. 832, 115 S.Ct. 107, 130 L.Ed.2d 54 (1994). On the other hand, because Gerald Murray, Taylor's accomplice who was convicted for the same 1990 murder as Taylor, received three retrials, his conviction did not become final until 2009. Murray v. State , 3 So.3d 1108, 1113 & n.2 (Fla.), cert. denied , 558 U.S. 949, 130 S.Ct. 396, 175 L.Ed.2d 273 (2009). And, even though both defendants received nonunanimous recommendations for death-Taylor received a ten to two jury recommendation for death and Murray received an eleven to one jury recommendation-Murray will receive a new penalty phase because of the procedural history of his case, but Taylor will not. See Taylor v. State , 234 So.3d 649 (Fla. 2018).

Therefore, Taylor's case is a clear example of the unconstitutional arbitrariness caused by the bright line this Court created for Hurst retroactivity-that Hurst does not apply retroactively to sentences of death that became final before Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In my concurring in part and dissenting in part opinion in Asay V , I explained:

I conclude that Hurst should apply to all defendants who were sentenced to death under Florida's prior, unconstitutional capital sentencing scheme. The majority's conclusion results in an unintended arbitrariness as to who receives relief depending on when the defendant was sentenced or, in some cases, resentenced. For example, many defendants whose crimes were committed before 2002 will receive the benefit of Hurst because they were previously granted a resentencing on other grounds and their newest death sentence was not final when Ring was decided. To avoid such arbitrariness and to ensure uniformity and fundamental fairness in Florida's capital sentencing, our opinion in Hurst should be applied retroactively to all death sentences.

210 So.3d at 36 (Pariente, J., concurring in part and dissenting in part) (footnote omitted). Indeed, I have continuously expressed this view, including in this Court's recent opinion denying Taylor Hurst relief under Hitchcock . Taylor , 234 So.3d at 650 (Pariente, J., concurring in result).

Taylor's case is the textbook example of the "unintended arbitrariness" I pointed out in Asay V, 210 So.3d at 36 (Pariente, J., concurring in part and dissenting in part). Taylor and Murray were both convicted of first-degree murder and sentenced to death after nonunanimous jury recommendations for death for the murder of Alice Vest in September 1990. Murray , 3 So.3d at 1113 & n.2 ; Taylor , 630 So.2d at 1039. Yet, only one will receive a new penalty phase. Clearly, the Court's line-drawing for the retroactivity of Hurst creates unconstitutional results for defendants like Taylor.

      Huff v. State , 622 So.2d 982 (Fla. 1993).

      In addition, with regard to successive postconviction motions under rule 3.851(f)(5)(B), "[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion may be denied without an evidentiary hearing." Fla. R. Crim. P. 3.851(f)(5)(B).

      Johnny Allen Taylor is unrelated to the defendant in this case. Johnny Taylor's connection to the defendant is that he and the defendant lived together at the time of the murder. In the interest of clarity, Johnny Taylor will be referred to as such, and the defendant will be referred to as Taylor.

      Linda Engler, a longtime friend of Ms. Vest who saw her multiple times a week, testified at trial that Ms. Vest regularly wore a gold coin on a chain, that Ms. Vest was wearing gold earrings the day before she was murdered, and that Ms. Vest often wore a "ship pendant." Further, Engler identified photographs depicting the gold coin, ship pendant, gold earring, and gold chains as those belonging to Ms. Vest. In addition, Engler identified items of evidence as the gold coin, the ship pendant, the earring, and two gold chains that she had previously identified as belonging to Ms. Vest.

      Johnny Taylor identified the same items of evidence previously described by Engler to be those belonging to Ms. Vest as being the items he found contained within the sandwich bag in his backyard. Specifically, the items of evidence Johnny Taylor identified were a coin, an earring, a ship pendant, and two gold chains.

      Cowart testified to having at least five felony convictions in other states and "[f]our or five maybe six" misdemeanor convictions in Florida involving dishonesty. Cowart further indicated that, in exchange for his sworn statement in Taylor's case, he received a sixty-day sentence and probation on the petit theft case he was in jail for at the time of Taylor's alleged statements.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      Murray v. State , 838 So.2d 1073 (Fla. 2002) (reversing Murray's convictions and vacating sentences on direct appeal after first retrial); Murray v. State , 692 So.2d 157 (Fla. 1997) (reversing Murray's convictions and vacating sentences on direct appeal after original trial).

      Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State (Asay V ), 210 So. 3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017).


author: CANADY, C.J.

text:
    TRIAL PRACTICES, INC., Petitioner, v. HAHN LOESER & PARKS, LLP, etc., Respondent.
    No. SC17-2058
    Supreme Court of Florida.
    December 28, 2018
    G. Donovan Conwell, Jr., of Conwell Business Law, LLLP, Tampa, Florida; Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, Florida; and John F. Romano of Romano Law Group, Lake Worth, Florida, for Petitioner
    Edmond E. Koester and Matthew B. Devisse of Coleman, Yovanovich & Koester, P.A., Naples, Florida, for Respondent
   CANADY, C.J.

This case involves a dispute over the recoverable amount of prevailing party fees and costs. The issue presented is whether the pre-2014 version of Rule Regulating the Florida Bar 4-3.4(b), which addresses witness payments and the prohibition against offering inducements to witnesses, prevents the prevailing party in this case from taxing as costs certain payments made to fact witnesses for their "assistance with case and discovery preparation." This Court has for review Trial Practices, Inc. v. Hahn Loeser & Parks, LLP , 228 So.3d 1184, 1191 (Fla. 2d DCA 2017), in which the Second District Court of Appeal concluded that the witness payments were permitted under rule 4-3.4(b) and were thus recoverable. The Second District then certified the following as a question of great public importance:

DOES RULE 4-3.4(B) OF THE RULES REGULATING THE FLORIDA BAR PERMIT A PARTY TO PAY A FACT WITNESS FOR THE WITNESS'S ASSISTANCE WITH CASE AND DISCOVERY PREPARATION?

Id. This Court has jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Based on our analysis of the issue presented by this case and consistent with the text of the rule, we rephrase the certified question as follows:

Does the pre-2014 version of rule 4-3.4(b) of the Rules Regulating the Florida Bar permit a party to pay a fact witness for the witness's assistance with case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings?

We answer the rephrased question in the negative and remand for further proceedings consistent with this opinion. Before explaining our decision, we review the language of the rule as well as the facts and procedural history of the case.

I. RULE 4-3.4(b)

Rule 4-3.4 is generally titled "Fairness to Opposing Party and Counsel." At all relevant times in this case, including when the case went to trial in 2011, rule 4-3.4(b) provided as follows:

A lawyer shall not:
....
(b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings ....

In 2014, this version of rule 4-3.4(b) was amended to its current form. Unless otherwise indicated, all references to rule 4-3.4(b) are to the pre-2014 version.

II. BACKGROUND

The relevant events began in August 2005 when Petitioner, Trial Practices, Inc. ("TPI"), entered into an agreement with Jack J. Antaramian to provide litigation consulting services to Antaramian concerning a multi-million-dollar dispute with his business partner, David E. Nassif, about commercial real estate holdings (the "Nassif suit"). The consulting agreement provided that TPI would receive 5% of Antaramian's "gross recovery" in the Nassif suit. After the Nassif suit ended in a mistrial, Antaramian and Nassif resolved their dispute by entering into a complex settlement agreement involving various entities. The principal architects and drafters of the settlement agreement were Antaramian's longtime tax and business attorneys with the Boston-based firm Burns & Levinson LLP.

In the wake of the settlement agreement, TPI claimed the 5% fee based on the value of certain transferred property and the settlement of related litigation involving Antaramian and Nassif. Antaramian denied owing TPI the 5% fee, asserting that the settlement agreement with Nassif was a "walk away" agreement with no "gross recovery" to either side. In June 2006, TPI sued Antaramian for breach of the consulting agreement. Extensive discovery ensued regarding Antaramian's finances and his dealings with Nassif.

At trial in 2011, TPI presented several expert witnesses who testified that the settlement agreement in the Nassif suit resulted in a gross recovery to Antaramian of up to $100 million based on certain economic benefits including cancellation of indebtedness. Antaramian presented his own expert witness as well as ten fact witnesses, seven of whom testified in some manner to the issue of "gross recovery." Those seven witnesses-all licensed professionals involved in the Nassif suit and the resulting settlement agreement-included: (1) two of Antaramian's attorneys in the Nassif suit; (2) one of Nassif's attorneys in the Nassif suit; (3) three lawyers from Burns & Levinson LLP; and (4) Antaramian's longtime accountant who prepared Antaramian's federal income tax returns. The gist of their testimony was that the settlement agreement was designed to provide no recovery to either Antaramian or Nassif, and that there was no tax fraud or cancellation of debt income.

In April 2011, the jury returned a verdict squarely in favor of Antaramian. Antaramian then moved for attorney's fees and costs under a broad fee-shifting provision in the consulting agreement. Antaramian sought approximately $2.5 million, of which $715,467.61 related to what Antaramian's controller described as "Various Fees, Costs and Expenses" and included approximately $236,000 for amounts paid or owed to the seven fact witnesses' professional firms. Approximately 75% of the $236,000 amount was for payments to Burns & Levinson, three of whose attorneys were deposed by TPI and later testified at trial. In 2013, TPI requested detailed billings, which Antaramian provided. As it relates to the seven fact witnesses, the billings reflect time spent on various items, including the following: traveling to and testifying at depositions and trial; reviewing documents and conferencing in advance of deposition and trial testimony; reviewing other correspondence and documents relating to TPI's lawsuit, including in response to TPI's requests for voluminous discovery; and assisting with things such as responding to interrogatories.

An evidentiary hearing was held, and TPI argued against any fee award in part on the ground that Antaramian had secretly paid the fact witnesses at their professional billing rates for their testimony and other services. TPI cited section 92.142(1), Florida Statutes (2013), for the proposition that fact witnesses may only be paid a statutory rate of $5 for each day of "actual attendance." TPI also cited two disciplinary opinions from this Court-namely, Florida Bar v. Wohl , 842 So.2d 811 (Fla. 2003), and Florida Bar v. Jackson , 490 So.2d 935 (Fla. 1986) -for the proposition that it is unlawful and sanctionable conduct to pay a fact witness more than the statutory amount.

The trial court-noting that TPI had "aggressively litigated" the case, and not sharing TPI's level of concern regarding the general nature of the witness compensation-awarded Antaramian approximately $2 million in attorney's fees and costs, of which $317,873.64 represented the allowable portion of the $715,467.61 in "Various Fees, Costs and Expenses" sought by Antaramian. But it is unclear how much of the $236,000 in witness payments was included in the trial court's cost award. Regarding the amounts charged by the fact witnesses for their time spent testifying at trial or deposition, the trial court appears to have awarded Antaramian $5 per day, relying on Moakley v. Smallwood , 826 So.2d 221 (Fla. 2002), for the proposition that an attorney called to testify as a fact witness is only entitled to be paid $5 per day under section 92.142(1). As to the remaining amounts charged-for the witnesses' non-testimony time-the trial court appears to have awarded Antaramian some or all of those amounts on the ground that the witnesses were acting as "consulting experts" who "assisted in both case and discovery preparation."

On appeal, the Second District recognized the uncertainty regarding the cost award, noting that the amounts paid for the witnesses' non-testimony time "were apparently part of a $317,873.64 cost award." Trial Practices , 228 So.3d at 1187 (emphasis added). Nevertheless, the Second District "agree[d] with the trial court's analysis of section 92.142 as well as the trial court's conclusion that Antaramian was entitled to recover (as costs) the fees paid to witnesses for their assistance with case and discovery preparation." Id. at 1190.

The Second District began by examining rule 4-3.4(b), noting that the relevant language in effect at the time of trial permitted a lawyer to pay a witness "reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings." Id. at 1189 (quoting R. Regulating Fla. Bar 4-3.4(b) ). The Second District also noted the 2014 amendments to the rule but dismissed their relevance. Id. at 1189-90. In the Second District's view, "both versions of the rule acknowledge the value of a witness's time," and "neither version of the rule makes [the payments at issue] unethical or illegal." Id. at 1190. Indeed, according to the Second District, payments to a witness for "time spent preparing for, attending, or testifying at the proceedings ... have long been permitted as long as the payment is not conditioned on the content of the testimony." Id. (citing ABA Formal Op. 96-402 (1996), Propriety of Payments to Occurrence Witnesses). And the Second District concluded that the rule language permitting such payments "is broad enough to encompass" payments for "assistance with case and discovery preparation." Id. at 1191.

The Second District also addressed section 92.142, concluding that "the statute and the rule" address "entirely different and compensable items" and thus do not conflict. Id. at 1190. According to the Second District, the statute governs "payments to witnesses for their attendance and thus presumably their actual testimony at trial," but the rule covers "witnesses' expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for , attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses' testimony." Id. And the district court rejected TPI's argument that payments exceeding "$5 per day constituted illegal conduct that negated [Antaramian's] right to recover prevailing party attorneys' fees and costs." Id.

After rejecting TPI's arguments, the Second District certified the above-referenced question. Id. at 1191. TPI then sought to invoke this Court's discretionary jurisdiction both on the basis of the certified question and on the ground that the Second District's decision expressly and directly conflicts with this Court's decision in the Bar discipline case of Wohl . See art. V, § 3(b)(3)-(4), Fla. Const. This Court accepted jurisdiction solely on the basis of the certified question. See Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, Etc. , No. SC17-2058, 2018 WL 2069376 (Fla. Apr. 3, 2018) (order accepting jurisdiction).

III. ANALYSIS

We are asked to determine whether rule 4-3.4(b) of the Rules Regulating the Florida Bar permits a party to make certain payments to fact witnesses. This issue presents a pure question of law that is subject to de novo review. See Rykiel v. Rykiel , 838 So.2d 508, 510 (Fla. 2003). We exercise our discretion and decline to address any other issues-including section 92.142, Florida Statutes -because they are outside the scope of the rephrased certified question. See Paulucci v. Gen. Dynamics Corp. , 842 So.2d 797, 803 n.6 (Fla. 2003).

Under the plain language of rule 4-3.4(b), payments to witnesses are proper-and outside the scope of the prohibition on the "offer [of] an inducement to a witness"-if they fall within one of the following three categories: [1] "reasonable expenses incurred by the witness in attending or testifying at proceedings"; [2] "a reasonable, noncontingent fee for professional services of an expert witness"; or [3] "reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings." R. Regulating Fla. Bar 4-3.4(b). This Court has described these categories as "clearly delineated exceptions" from the general prohibition of inducements to witnesses. Wohl , 842 So.2d at 815.

As it relates to fact witnesses, rule 4-3.4(b) reflects a balancing between two competing concepts. On the one hand, there is the obvious concern about purchasing testimony and offering inducements to color testimony. See id. at 816 ("[T]empting a witness to color testimony is an evil that should be avoided."). That concern is noted in the comments to the rule which state: "Fair competition in the adversary system is secured by prohibitions against ... improperly influencing witnesses ... and the like." R. Regulating Fla. Bar 4-3.4 cmt. On the other hand, the rule's third exception recognizes the value of a witness's time and provides an incentive for witnesses to carry out their duty to assist in "the truth-seeking function of the trial process." Allstate Ins. Co. v. Boecher , 733 So.2d 993, 998 (Fla. 1999). The sole inquiry here is whether that third exception-which permits reasonably compensating a fact witness for "preparing for, attending, or testifying at proceedings"-permits reasonably compensating a fact witness for what the district court referred to as "assistance with case and discovery preparation." Trial Practices , 228 So.3d at 1190.

We agree with TPI that the question as certified by the Second District is overly "broad and undefined." Indeed, permitting payments for any type of "assistance with case and discovery preparation" would not only be inconsistent with the rule's plain language but could open the door to purchasing testimony under the pretext of such "assistance" and compromise the integrity of the fact-finding process-the very thing rule 4-3.4(b) is designed to prevent. We thus decline to broadly conclude that "assistance with case and discovery preparation" is subsumed within "preparing for, attending, or testifying at proceedings." However, we also recognize-as this case demonstrates-that there is room for overlap between the two categories. We therefore also decline to adopt a view that effectively treats the two categories as mutually exclusive.

We think the more appropriate inquiry is whether the witness's "assistance with case and discovery preparation" is directly related to the witness "preparing for, attending, or testifying at proceedings." Although less than perfectly precise, viewing the payments through that narrower lens is consistent with the language of the rule and avoids prejudicing parties in highly complex cases such as this where they are dependent upon professionals. Indeed, not only was Antaramian required to defend himself, including against accusations of tax fraud, but it appears the professionals upon whom he was dependent also had to defend themselves against accusations of wrongdoing. One of Antaramian's former trial attorneys testified at the fee hearing regarding the "very adversarial" nature of the litigation, the "[t]ons of documents," and TPI's "theory of the case ... that everybody on Mr. Antaramian's side of the transaction was a crook, was actually a thief and a liar." That testimony was consistent with that of others, including Antaramian's longtime accountant as well as the Burns & Levinson attorney who was the principal architect of the settlement agreement. That Burns & Levinson attorney also testified regarding "a host of complicating factors" in the case.

It would be unfair and prejudicial to conclude that, beginning the moment TPI filed suit, Antaramian's longtime professionals who had the necessary knowledge for him to begin to defend the suit, who were involved in the transaction that was the very subject of the suit, and whose own actions and character were seemingly in question, could not be reasonably compensated for any "assistance" regarding complex matters about which they would later be called to testify. We conclude that the rule does not require such a result. But we reiterate that a fact witness's "assistance" must be directly related to the witness "preparing for, attending, or testifying at proceedings."

In reaching our conclusion, we recognize that the specifics of our holding are necessarily limited due to the uncertainties regarding the trial court's cost award-namely, what payments were included in that unitemized award. Indeed, our discussion may very well prove academic. After all, a review of the invoices reveals many line items that on their face are not even properly categorized as "assistance with case and discovery preparation" and instead fall squarely within "preparing for, attending, or testifying at proceedings" and are unequivocally permitted by the rule. Indeed, those line items either expressly reference the witness's preparation for deposition or trial, or they reference items such as the witness reviewing documents, participating in conferences with Antaramian's lawyers, or attending to other matters that are related to the witness's deposition or trial testimony. See ABA Formal Op. 96-402 (1996), Propriety of Payments to Occurrence Witnesses (concluding that, subject to the law of the respective jurisdiction and provided that certain other requirements are met, Model Rule 3.4 of the Model Rules of Professional Conduct permits reasonably compensating a fact witness for "time spent in pretrial interviews" and "time spent in reviewing and researching records that are germane to his or her testimony" ); see also Florida Bar Staff Opinion 20542 (Dec. 11, 1997) (interpreting Rule Regulating the Florida Bar 4-3.4(b) as permitting two fact-witness lawyers to request reasonable compensation for "time spent by the firm in reviewing the files concerning the [subject matter of the lawyers' testimony]").

As to the remaining line items that can more properly be categorized as "assistance with case and discovery preparation," we conclude that, to the extent they were included in the cost award and to the extent they can be said to have been performed in the professional's capacity as a "fact witness," they were permissible only if directly related to the witness "preparing for, attending, or testifying at proceedings." For example, items such as reviewing correspondence and assisting with filling out interrogatories related to matters within the witness's knowledge of the case could reasonably fall within the rule. So too could items such as time spent executing affidavits. On the other hand, certain items would appear to go beyond the scope of the rule. For example, TPI asserts that one fact witness was compensated for time spent reviewing certain motions, including motions for sanctions and in limine. We agree with TPI that those items are not covered by the rule's third exception.

Although we conclude that "preparing for, attending, or testifying at proceedings" can reasonably be interpreted to include certain "assistance with case and discovery preparation," we also reiterate the importance of rule 4-3.4(b) and the prohibition against improperly influencing witnesses. Our disciplinary cases have repeatedly noted-both in the context of rule 4-3.4(b) and otherwise-the importance of avoiding even the appearance of improper influence. See Wohl , 842 So.2d at 816 ("We condemn the practice of compensating fact witnesses in violation of rule 4-3.4(b) in no uncertain terms."); Florida Bar v. Cillo , 606 So.2d 1161, 1162 (Fla. 1992) (concluding that it was not a violation of the then rules for an attorney "to induce [the witness] to tell the truth" about a meritless Bar complaint filed by the witness, but inviting rule development to address concerns regarding the effect of witness payments on "the credibility and fact-finding function of the disciplinary process"); Jackson , 490 So.2d at 936 ("Attorneys have a solemn responsibility to assure that not even the taint of impropriety exists as to the procurement of testimony before courts of justice."). Although we do not find these disciplinary cases to be on point, we emphasize the narrow nature of the issue we address here.

IV. CONCLUSION

We thus rephrase the Second District's certified question and hold that rule 4-3.4(b) of the Rules Regulating the Florida Bar permits a party to pay a fact witness for the witness's assistance with case and discovery preparation that is directly related to the witness preparing for, attending, or testifying at proceedings. Because it is unclear which witness payments were included in the trial court's cost award, we quash the Second District's decision on this issue and remand with instructions that the case be further remanded to the trial court for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. LEWIS, J., concurs in result.

      The 2014 amendments retained the language in the rule permitting "reasonable compensation" to witnesses under certain circumstances but removed the "reimburse" and "loss of compensation" language. In re Amendments to Rules Regulating the Fla. Bar (Biennial Report) , 140 So.3d 541, 566-67 (Fla. 2014). The rule now provides as follows:
      A lawyer must not
      ....
      (b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to a witness for the time spent preparing for, attending, or testifying at proceedings ....

      Antaramian's lead counsel in the Nassif suit was a partner in the law firm of Hahn Loeser & Parks, LLP. That law firm is the Respondent in this case, as substitute party for Antaramian, who died in 2015.

      The trial court later entered final judgment in favor of Antaramian, and the Second District per curiam affirmed. See Trial Practices, Inc. v. Antaramian , 97 So.3d 228 (Fla. 2d DCA 2012) (table). The final judgment and Antaramian's status as prevailing party are not properly at issue before this Court.

      Model Rule 3.4(b) provides that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law."