author: PER CURIAM. CANADY, J.,

text:
    Norman Blake McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. SC07-2101.
    Supreme Court of Florida.
    Jan. 7, 2010.
    Rehearing Denied Feb. 15, 2010.

      James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Seventh Judicial Circuit, Dayto-na Beach, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Norman Blake McKenzie appeals his convictions for first-degree murder and his sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm McKenzie’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On October 17, 2006, a grand jury indicted the appellant, Norman Blake McKenzie, on two counts of first-degree murder for the homicides of Randy Wayne Peacock and Charles Frank Johnston. The charges against McKenzie resulted from the October 5, 2006, discovery of the bodies of Peacock and Johnston at a residence located in St. Johns County.

The evidence presented at trial established that on October 5, 2006, two Flagler Hospital employees became concerned when Randy Peacock, a respiratory therapist at the hospital, did not report to work. The two employees drove to the home that Peacock shared with Charles Johnston. Upon their arrival, they noticed that Peacock’s vehicle, a green convertible, was not there. When the employees entered the residence, they found Peacock lying face down on the kitchen floor in a pool of blood. When deputies from the St. Johns County Sheriffs Office (SJSO) arrived, they secured the scene and subsequently located the body of Charles Johnston in a shed that was also located on the property. While processing the crime scene, law enforcement officers located a hatchet inside the shed that appeared to have blood on its blade and handle. A butcher knife was found in the kitchen sink. Deputies observed a gold sport utility vehicle (SUV) in the driveway and determined that it was registered to Norman Blake McKenzie.

The deputies subsequently spoke with a neighbor of the victims. The neighbor stated that on October 4, 2006, he went to the victims’ home to assist Johnston with repairs on his vehicle. When the neighbor first arrived, Johnston was not there but Peacock was present and was speaking with a man whom the neighbor later identified in a photo lineup as McKenzie. The neighbor confirmed that he saw Peacock speaking with McKenzie between 4:30 and 7 p.m., and that he also observed a gold SUV in the driveway. The neighbor departed the victims’ residence before dark.

McKenzie subsequently had an encounter with a Citrus County sheriffs deputy during which Randy Peacock’s wallet was recovered from one of McKenzie’s pockets. Further, Charles Johnston’s wallet was located in a vehicle that McKenzie had recently operated. McKenzie agreed to speak with SJSO deputies on two separate occasions during which he confessed to the murders of Peacock and Johnston.

McKenzie explained that he went to the victims’ residence on October 4, 2006, to borrow money from Johnston because of his drug addiction. When he first arrived, only Peacock and the neighbor were present; however, Johnston returned home around dusk. The neighbor left after briefly speaking with Johnston, and at some point, Peacock went inside the residence. McKenzie then asked Johnston for a hammer and a piece of wood so that he could knock some “dings” out of the door of his SUV. Johnston could not locate a hammer and gave McKenzie a hatchet. While walking into the shed to locate a piece of wood, McKenzie struck Johnston in the head with the blade side of the hatchet. Johnston fell to the floor and McKenzie struck him again. McKenzie then entered the home, approached Peacock, who was cooking in the kitchen, and struck him with the hammer side of the hatchet approximately two times.

McKenzie returned to the shed, and when he observed that Johnston was still alive, he struck Johnston one or more times with the hatchet. McKenzie removed Johnston’s wallet from his pocket, placed the hatchet on top of a bucket inside the shed, and re-entered the residence. McKenzie observed that Peacock was struggling to stand up, so he grabbed a knife and stabbed Peacock multiple times. McKenzie then placed the knife in the sink, took Peacock’s wallet and car keys, and departed in Peacock’s vehicle.

An autopsy conducted on Randy Peacock revealed that the cause of his death was six stab wounds which caused extensive bleeding, with a contributory cause of blunt-force trauma to the head. The stab wounds suffered by Peacock were consistent with the knife found in the kitchen sink and the blunt-force trauma was consistent with the hammer side of the hatchet that was i-ecovered from the shed. An autopsy conducted on Charles Johnston revealed that the cause of his death was extensive head trauma due to the infliction of four “chop” wounds. The trauma to Johnston’s skull was consistent with the blade side of the hatchet that was recovered from the shed.

During a pretrial hearing, McKenzie expressed frustration with his court-appointed counsel because his right to a speedy trial had been waived without first consulting with him. When defense counsel sought a continuance on the basis that more time was needed to prepare for trial, McKenzie objected. McKenzie insisted that he was ready and wanted to proceed as expeditiously as possible. As a result, defense counsel moved to withdraw. The trial court, based upon McKenzie’s assertion that he was ready to proceed, denied the motion and scheduled a trial date.

During a second pretrial hearing, defense counsel again moved for a continuance, asserting that additional time was necessary to prepare for trial and to investigate mitigation. McKenzie again expressed frustration with his court-appointed counsel, stating that they had requested his medical records even though he had specifically advised them that he did not want this action taken. When the trial court recommended that McKenzie listen to his attorneys’ assertion that more time was required to properly prepare for trial, McKenzie responded that he did not need the assistance of counsel. Based upon this statement, the trial court scheduled a Far-etta inquiry.

During the Faretta hearing, when asked by the trial court why he wanted to represent himself, McKenzie replied that he was ready for trial and did not need attorneys to prepare any sort of mitigation on his behalf. McKenzie also expressed the belief that he possessed sufficient intelligence to represent himself. With regard to his desire to proceed to trial as quickly as possible, McKenzie stated that he did not wish to subject his mother, his fiancée, or the victims’ families to an extended trial, and that he thought a protracted trial would be a waste of taxpayer funds.

When the trial court asked McKenzie why he wanted to discharge his court-appointed counsel, McKenzie replied that they insisted upon taking actions with which he disagreed. Defense counsel agreed that McKenzie’s displeasure with them arose from a difference of opinion with regard to trial strategy. After conducting a Faretta inquiry, the trial court concluded that McKenzie was competent to waive counsel and that his waiver was knowing, intelligent, and voluntary. The trial court allowed McKenzie to represent himself but appointed standby counsel with McKenzie’s approval.

During the guilt phase of the trial, McKenzie admitted that he went to the victims’ home on October 4 with the intention of taking their money. McKenzie also admitted that he hit both Johnston and Peacock with the hatchet and stabbed Peacock with a knife. After the State rested its case, McKenzie stated that he would not offer any witness testimony and further declined to testify on his own behalf. On August 21, 2007, the jury found McKenzie guilty of two counts of first-degree murder.

After the verdict was announced, McKenzie advised that he would like to be represented during the penalty phase and the trial court appointed counsel. However, the next day McKenzie recanted his request and stated that the impact of the verdict caused him to be temporarily distracted from his intended course of action which was to expedite the trial proceedings. The trial court conducted a second Faretta inquiry and again concluded that McKenzie was competent to waive counsel. The trial court allowed McKenzie to represent himself but reappointed standby counsel.

During the penalty phase, an SJSO deputy testified that when McKenzie spoke to law enforcement he stated that he went to the victims’ residence with the intent to kill Peacock and Johnston for them money. The State introduced eight prior convictions for the following crimes: burglary while armed with a firearm and with an assault or battery; kidnapping with a firearm; strong-arm robbery; attempted robbery with a firearm; robbery with a firearm (three separate convictions); and carjacking. Finally, victim impact statements written by Charles Johnston’s daughter and Randy Peacock’s sister were read to the jury. After the State rested its case, McKenzie advised that he would not offer any mitigation evidence to the jury. However, following the prosecutor’s closing statement, McKenzie was allowed to place bank records into evidence for the purpose of demonstrating his financial behavior in the months before these crimes. By a vote of ten to two, the jury recommended that a sentence of death be imposed for each murder.

McKenzie advised the trial court that he wished to represent himself during the Spencer hearing and that he did not intend to present any witnesses. In light of the minimal mitigation offered by McKenzie, the trial court ordered the Florida Department of Corrections (DOC) to prepare a presentence investigation report (PSI). During the Spencer hearing, the State did not present any additional evidence but discussed the aggravating circumstances that purportedly had been established and also reviewed potential mitigation factors, such as cooperation with law enforcement, cryptic references to child abuse, and drug addiction. After stating that he would not expound upon any purported reference to child abuse, McKenzie read a statement that he prepared in which he expressed regret for the murders and apologized to the families of the victims.

The trial court subsequently sentenced McKenzie to death for the murders of Randy Peacock and Charles Johnston. In pronouncing McKenzie’s sentences, the trial court determined that the State had proven beyond a reasonable doubt the existence of four statutory aggravating circumstances: (1) McKenzie had previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person, see § 921.141(5)(b), Fla. Stat. (2006) (eight prior convictions and the contemporaneous murder of the other victim) (great weight); (2) the murders were committed while McKenzie was engaged in the commission of a robbery, see § 921.141(5)(d) (significant weight); (3) the murders were committed for pecuniary gain, see § 921.141(5)(f) (merged with robbery aggravator — no additional weight given); and (4) the murders were cold, calculated, and premeditated (CCP), see § 921.141(5)(i) (great weight).

The trial court concluded that McKenzie had failed to prove the existence of the statutory mitigating circumstance that he was under the influence of an extreme emotional or mental disturbance at the time of the murders. Although McKenzie contended that he acted under the influence of cocaine, the trial court found that the admission of McKenzie’s bank statements alone was insufficient to establish this mitigating circumstance. Further, the trial court concluded that the evidence presented during trial overwhelmingly established that McKenzie was in complete control of his faculties at the time he committed the murders.

The trial court found a total of seven nonstatutory mitigating factors: (1) McKenzie suffered from a cocaine addiction (little weight); (2) McKenzie was the victim of child abuse (little weight); (3) McKenzie exhibited good behavior during court proceedings (some weight) (4) McKenzie expressed remorse (some weight); (5) McKenzie cooperated with police (some weight); (6) McKenzie possesses a GED and certificates in architectural design (very little weight); and (7) McKenzie is currently serving a life sentence for armed carjacking, and the minimum mandatory sentence for the murders is life without the possible of parole (little weight).

The trial court concluded pursuant to Muhammad v. State, 782 So.2d 343 (Fla.2001), that it could not afford the jury’s advisory recommendation great weight in light of McKenzie’s minimal presentation of mitigation during the penalty phase. Accordingly, the trial court conducted an independent evaluation and concluded that the aggravating circumstances established far outweighed the mitigating circumstances. Based on this conclusion, the trial court imposed a sentence of death for each murder.

This direct appeal followed.

ANALYSIS

Sufficiency of the Evidence

As a preliminary matter, even if a defendant has not presented a sufficiency challenge, this Court has an independent obligation to review the record to determine whether sufficient evidence exists to support each conviction. See Overton v. State, 801 So.2d 877, 905 (Fla.2001); Fla. R.App. P. 9.142(a)(6). We conclude that abundant record evidence supports the convictions for the murders of Peacock and Johnston. In fact, McKenzie has consistently admitted that he murdered the victims.

Judicial Neutrality

In his first challenge, McKenzie contends that the trial court sua sponte struck a juror for cause and, in doing so, imper-missibly departed from judicial neutrality. McKenzie asserts that the actions of the trial court constituted fundamental error and, further, that there was no basis upon which to strike this juror for cause. We disagree.

During voir dire, when the trial court asked jurors to provide details about themselves, juror Schultz stated that she previously had five children but one of her children was killed earlier that year under criminal circumstances. Juror Schultz also explained that she was married to a retired police officer and that her eldest daughter had previously served as a military police officer for five years. When asked to articulate her feelings with regard to the death penalty, juror Schultz stated that she could vote for either death or life and expressed a belief that she could be fair and impartial to McKenzie even though one of her children had been killed.

During jury selection, when asked if he wished to strike any jurors for cause, McKenzie moved to strike a juror other than juror Schultz and the State did not object. The following dialogue then occurred:

COURT: Okay. Mr. McKenzie, do you have any additional strikes through Mr. Neal?
MCKENZIE: No, ma’am, I don’t.
COURT: ... Does the State have any objection to ... Mr. King, Ms. Schultz, Ms. Lake, Mr. Barry, Ms. Davis, Ms. Green, Mr. Reames, Mr. Sweet, Ms. Brooks, Mr. Parsons, Mr. Neal, Mr. Rhodes?
STATE: Your Honor, we’re concerned about Ms. Schultz, based on her loss of her son as a murder victim, so—
COURT: That’s true.
STATE: — I think we’re going to go—
COURT: I’m going to strike her for cause. Although she indicated that she could be fair, she has a child that was recently murdered, and I’m going to strike her.
STATE: We’re fine then, Your Hon- or.

As noted by the State, McKenzie neither objected to the trial court’s striking of juror Schultz nor did he file a motion to disqualify the trial court based upon this allegedly improper conduct. Therefore, the instant challenge is unpreserved and procedurally barred for appellate consideration. See Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that for an issue to be preserved for appeal, the specific legal argument or ground to be argued must have been presented to the lower court), cert. denied, 547 U.S. 1182, 126 S.Ct. 2359, 165 L.Ed.2d 285 (2006).

Moreover, even if this challenge had been preserved, it is without merit. A plain reading of the dialogue indicates that the trial court did not assume control of the jury selection process and did not strike juror Schultz sua sponte without any input from the parties. The State had affirmatively expressed concern with regard to the status of juror Schultz as the parent of a recently murdered child and the trial court merely interrupted and completed the State’s thought, rather than assuming the role of the prosecutor. Indeed, the State’s response, “We’re fine then,” after the trial court struck juror Schultz indicates that the trial court’s action was consistent with the concerns of the State.

The cases upon which McKenzie relies in support of this claim are materially distinguishable in that they involved situations where the trial judge prompted the prosecution to either present certain evidence or take certain actions. See Evans v. State, 881 So.2d 808, 811 (Fla. 4th DCA 2002) (trial court suggested that the prosecution inquire into the immigration status of the defendant); Lee v. State, 789 So.2d 1105, 1106 (Fla. 4th DCA 2001) (trial court suggested a line of questioning to the prosecution with regard to identifying marks on the defendant’s body); Asbury v. State, 765 So.2d 965, 965 (Fla. 4th DCA 2000) (trial court prompted the prosecution to present certain evidence and sua sponte recalled witnesses to ask them questions); Lyles v. State, 742 So.2d 842, 843 (Fla. 2d DCA 1999) (trial court sua sponte ordered that the defendant be fingerprinted and bifurcated the hearing to permit additional testimony); Sparks v. State, 740 So.2d 33, 36 (Fla. 1st DCA 1999) (trial court suggested impeachment evidence to the prosecution). In the instant case, the trial court did not improperly inject itself into juror selection. It heard the concerns expressed by the State, understood this concern that the State wished to strike juror Schultz for cause, and merely proceeded to the proper ruling before the prosecutor had finished speaking. To the extent that the conduct of the trial court could be viewed as a departure from neutrality, this departure was actually in favor of McKenzie because it evidences an attempt to level the playing field for a pro se defendant in a capital case.

Further, to the extent that McKenzie contends that there was no reason to strike juror Schultz for cause, this assertion is conclusively rebutted by the record. Juror Schultz’s child was murdered during the same year in which McKenzie’s trial occurred. We conclude that a prospective juror whose child was murdered during the same year in which the relevant capital trial is proceeding should not be part of that jury. Moreover, even if the status of juror Schultz as the mother of a murdered child, standing alone, had not been adequate to disqualify her from service on this capital jury, that factor coupled with her additional status as the wife and mother of two former law enforcement officers would clearly “cross the line” and place her beyond service on this jury. Thus, contrary to McKenzie’s assertion, there was abundant cause for the State to move to strike juror Schultz and for the trial court to grant the request. Consequently, we deny this challenge.

Self-Representation

McKenzie next contends that the Faretta and Nelson inquiries conducted by the trial court were defective and, for this reason, the trial court impermissibly permitted McKenzie to represent himself in violation of the Sixth Amendment. McKenzie only raises one specific challenge with regard to the Faretta inquiry— that the trial court did not specifically inquire with regard to McKenzie’s experience with the criminal justice system. According to McKenzie, this omission mandates that he receive a new trial. We disagree.

In Faretta, the United States Supreme Court held that a criminal defendant has a constitutional right to represent him- or herself, provided that the decision to do so is knowing, intelligent, and voluntary. See 422 U.S. at 835, 95 S.Ct. 2525. The Supreme Court did not provide a precise colloquy that a trial court must conduct for a Faretta inquiry to be adequate. However, the High Court did note that a defendant should be made aware of the hazards and disadvantages of self-representation to the extent that the record would demonstrate that the defendant knew what he or she was doing and made the choice with “eyes open.” Id. Moreover, the Supreme Court indicated that neither legal knowledge nor legal skills are required as conditions precedent for a defendant to exercise the right to self-representation:

Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. The trial judge had warned Faret-ta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the “ground rules” of trial procedure. We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself

Id. (emphasis supplied) (footnotes omitted).

In support of his assertion that the Far-etta inquiry was inadequate, McKenzie relies upon two cases from 1986 and 1988 in which we did indicate that to determine whether a waiver of counsel is knowing and intelligent the trial court should inquire into the defendant’s experience in criminal proceedings. See Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988); Johnston v. State, 497 So.2d 863, 868 (Fla.1986). However, in 1997 we clarified that whether a defendant can prepare an effective legal defense is not part of the Faretta inquiry:

[W]e hold that once a court determines that a competent defendant of his or her own free will has “knowingly and intelligently” waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented. See Fla. R.Crim. P. 3.111. The court may not inquire further into whether the defendant “could provide himself with a substantively qualitative defense,” Bowen, 677 So.2d at 864, for it is within the defendant’s rights, if he or she so chooses, to sit mute and mount no defense at all.

State v. Bowen, 698 So.2d 248, 251 (Fla.1997) (footnote omitted); see also Hill v. State, 688 So.2d 901, 905 (Fla.1996) (“[A] defendant does not need to possess the technical legal knoidedge of an attorney before being permitted to proceed pro se.” (emphasis supplied)).

Subsequent to the decision in Bowen, this Court adopted current rule 3.111(d)(3), which provides: “Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.” Fla. R.Crim. P. 3.111(d)(3) (emphasis supplied); see also Amendment to Fla. R.Crim. P. 3.111(d)(S)-(3), 719 So.2d 873, 875 (Fla.1998). This subdivision replaced a provision that previously provided: “No waiver shall be accepted if it appears that the defendant is unable to make an intelligent and understanding choice because of a mental condition, age, education, experience, the nature or complexity of the case, or other factors.” Fla. R.Crim. P. 3.111(d)(3) (1992) (emphasis supplied). Thus, while our decisions in Hardwick and Johnston — and the pre-1998 version of rule 3.111 — may have implied that a trial court should inquire into a defendant’s experience in criminal proceedings to determine whether a waiver of counsel is knowing and intelligent, since 1997, we have held that the ability to prepare a competent legal defense and technical legal knowledge (or lack thereof) are not relevant issues in a self-representation inquiry. Accordingly, we conclude that the Faretla inquiry conducted by the trial court here was sufficient.

The Nelson inquiry conducted by the trial court was also sufficient. In Nelson, the Fourth District articulated a procedure to be followed when a defendant contends that his or her court-appointed attorneys are incompetent:

If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether ... there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973). This Court subsequently approved the procedure articulated in Nelson. See Hardwick, 521 So.2d at 1074.

McKenzie contends that the trial court never adequately addressed his main complaint concerning his counsel which was centered on the waiver of his right to a speedjr trial prematurely and without his consent. However, the trial court advised McKenzie that although the waiver without his consent may have angered him, the conduct, in itself, was not incompetent. McKenzie acknowledged to the trial court that he understood this legal principle. See generally State v. Kruger, 615 So.2d 757, 759 (Fla. 4th DCA) (“The principle is well established that the right to a speedy trial is waived when the defendant or his attorney request a continuance. The acts of an attorney on behalf of a client will be binding on the client even though done without consulting him and even against the client’s wishes.”), review denied, 624 So.2d 266 (Fla.1993).

Aside from this primary complaint, it does not appear that McKenzie believed that he was receiving incompetent representation from his court-appointed counsel. When asked about the competency of his counsel, McKenzie replied:

I don’t think they’re incompetent. I mean, they passed the Bar exam, okay? That in itself is an accomplishment. I don’t think I could pass the Bar exam.... Do I think they’re incompetent? No, I don’t. But do I think that they have my best interest ... at hand? No, I don’t. I think they have their own best interest at hand.

The trial court ultimately determined that a difference of trial strategy, not incompetence, was the reason discharge was sought. Accordingly, we conclude that any further Nelson inquiry, which is necessary only when the asserted reason for the discharge of appointed counsel is incompetence, was not required. See Nelson, 274 So.2d at 258-59. Moreover, McKenzie fails to clearly explain what the trial court should have done — but failed to do — to adequately explore and address bis complaints about his court-appointed counsel. Accordingly, we conclude that this challenge is without merit.

Limitation of Standby Counsel

In his next claim, McKenzie contends that the trial court restricted his access to standby counsel in violation of the Sixth, Eighth, and Fourteenth Amendments. McKenzie references only one portion of the entire trial during which the trial court purportedly limited standby counsel in an improper manner. The record reflects that the following dialogue occurred during a discussion of the penalty-phase jury instructions:

COURT: ... [T]he State’s indicated what they believe they’re going to prove up. You’ve told me what you think you’re going to prove up. And I will read to the jury what I believe has been proven at the close of evidence tomorrow. I’ll make my ultimate decision on what instruction — what mitigators and what aggravators are going to be given. Right now we’re going through them based on, you know, what the evidence is showing.
MCKENZIE: Okay. I just — I have no—
COURT (to standby counsel): He has to ask for your assistance. He’s not entitled to dual representation. He’s not entitled. He’s representing himself. He’s asked to represent himself. And if he has a question for standby counsel, he’ll ask you a question, but—
MCKENZIE: Well, I have this already written down, Your Honor, you know, and I had planned to say these words, and he’s—
COURT: I understand. If you have a question, you ask your standby counsel questions, but—
MCKENZIE: I really have nothing else to add to it.

McKenzie did not object on the basis that the trial court had improperly restricted his access to standby counsel. Therefore, this claim is not preserved for appellate review. See Perez, 919 So.2d at 359. Nonetheless, even if McKenzie had challenged the conduct of the trial court, he has not demonstrated entitlement to relief. In McKaskle v. Wiggins, 465 U.S. 168, 176, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the United States Supreme Court held that the Faretta decision established no “absolute bar” on unsolicited participation by standby counsel. However, the Court concluded that Faretta does not require a trial court to permit dual representation and further recognized that overly intrusive participation by standby counsel can defeat the right to self representation:

[T]he right to speak for oneself entails more than the opportunity to add one’s voice to a cacophony of others....
[T]he objectives underlying the right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel. In proceedings before a jury the defendant may legitimately be concerned that multiple voices “for the defense” will confuse the message the defendant wishes to convey, thus defeating Faretta’s objectives. Accordingly, the Faretta right must impose some limits on the extent of standby counsel’s unsolicited participation.

Id. at 177, 104 S.Ct. 944 (footnote omitted). In the context of proceedings held outside the presence of a jury, the Supreme Court held that “[i]f standby counsel’s participation over the defendant’s objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.” Id. at 178, 104 S.Ct. 944 (some emphasis supplied). The Supreme Court provided two specific instances in which the right to self-representation is not infringed upon even though standby counsel participates without solicitation by the defendant: (1) when standby counsel assists the defendant to overcome procedural or evidentia-ry obstacles toward the completion of a task that the defendant wishes to complete; and (2) when standby counsel assists the defendant to ensure compliance with basic rules of courtroom procedure and protocol. See id. at 183-84, 104 S.Ct. 944.

This Court has previously held that appellate counsel was not ineffective for the failure to challenge on direct appeal the alleged limitations that were placed on standby counsel in a capital case. See State v. Knight, 866 So.2d 1195, 1204 (Fla.2003), cert. denied, 541 U.S. 1066, 124 S.Ct. 2396, 158 L.Ed.2d 969 (2004). In Knight, the trial court advised the defendant that standby counsel was available to answer any questions that he had. See id. at 1204 n. 11. Standby counsel subsequently independently offered the defendant assistance with the jury instructions. See id. When the trial court inquired of the defendant with regard to standby counsel’s offer, the defendant advised that assistance was not necessary. See id. Based upon this assertion, the trial court informed the defendant:

[I]fyou request [standby counsel] assisting you in going over those jury instructions, he indicated to me that he is willing to do so, but without your request, I ask [standby counsel] to remain in his seat away from you so that it does not appear that you are represented by counsel or that he is participating in any way.

Id. at 1205 (emphasis supplied). We denied relief on his ineffectiveness claim there, concluding that the limitations placed on standby counsel by the trial court were based on the defendant’s stated desire that he be allowed to represent himself unimpeded. See id. at 1205-06.

In the instant case, standby counsel attempted to independently participate during a discussion of the penalty-phase jury instructions. This discussion occurred after the trial court completed the second full Faretta inquiry, which the trial court deemed necessary because McKenzie had initially requested the assistance of penalty-phase counsel even though he later withdrew this request. When the trial court asked McKenzie if he would like additional time to speak with his counsel, he replied that counsel had assisted him in every way that they possibly could. When the trial court granted McKenzie’s request to represent himself, the court expressly stated, “I will have your attorneys now act as standby counsel if you have any questions for them.” (Emphasis supplied.)

The record reflects that McKenzie was active and raised his own objections during the discussion of the penalty-phase jury instructions. For example, McKenzie requested that portions of his prior judgments be redacted. He also argued against the CCP aggravating circumstance. McKenzie engaged the trial court in an extensive dialogue with regard to whether a specific mitigating instruction should be read to the jury. When the trial court indicated that the instruction proposed by McKenzie would not be used, McKenzie objected to the ruling.

We conclude that the trial court did not improperly restrict the role of standby counsel here. McKenzie was abundantly clear when he expressed his request to represent himself during the penalty phase. Further, when the trial court granted McKenzie’s request to represent himself, he was advised that standby counsel would be available to him if he had any questions. Therefore, it cannot be assumed that McKenzie expected or even desired standby counsel to independently participate in an unsolicited manner during any portion of the penalty phase. Finally, and perhaps most telling, when the trial court instructed that standby counsel not independently participate in an unsolicited manner, McKenzie was informed that he could ask his standby counsel any questions that he might have. McKenzie neither asked standby counsel any questions nor did he object to the trial court’s censure.

To hold that the trial court committed reversible error here would erode the Far-etta right to self-representation because it would allow standby counsel “to speak instead, of the defendant on ... matters of importance,” regardless of the wishes of a defendant. McKaskle, 465 U.S. at 178, 104 5.Ct. 944. Based upon McKenzie’s repeated desire to represent himself during his capital trial, we reject this claim and hold that the trial court did not improperly restrict the role of standby counsel.

Sentencing Order

McKenzie next asserts that the trial court erred when it drafted one sentencing order to address both murders. According to McKenzie, even though the trial court specifically discussed the individual facts of both murders, these facts were presented in one seamless order which produced a lack of individualized sentencing in the capital context in violation of the federal Eighth Amendment and article I, sections 9, 17, and 22 of the Florida Constitution. We disagree.

This Court has stated:

There is no prescribed form for the order containing the findings of mitigating and aggravating circumstances. The primary purpose of requiring these findings to be in writing is to provide an opportunity for meaningful review by this Court so that it may be determined that the trial judge viewed the issue of life or death within the framework of the rules provided by statute. It must appear that the sentence imposed was the result of reasoned judgment.

Holmes v. State, 374 So.2d 944, 950 (Fla.1979). The trial court specifically found that the State had established four statutory aggravating factors beyond a reasonable doubt and that there was evidence of seven nonstatutory mitigating circumstances. The trial court also found that the evidence presented did not establish the “extreme emotional disturbance” statutory mitigating factor. Due to the minimal mitigation offered by McKenzie, the trial court, in accordance with Muhammad, expressly declined to give the jury’s recommendations great weight and conducted an independent analysis of the aggravating and mitigating factors. The trial court ultimately concluded that the aggravating circumstances “far outweighed the mitigating circumstances.”

It is clear from the sentencing order that the trial court specifically and in detail found sufficient aggravating circumstances to justify the imposition of the death penalty for each murder even though a separate sentencing order for each crime was not prepared. McKenzie has failed to provide decisional authority in which we vacated a death sentence based on the otherwise sound pronouncement of two death sentences in a single sentencing order. The Pangburn and Snelgrove cases relied upon by McKenzie merely hold that a jury is required to make a sentencing recommendation for each count of first-degree murder that it considers, which undisputedly occurred in this case. See Snelgrove v. State, 921 So.2d 560, 570-71 (Fla.2005); Pangburn v. State, 661 So.2d 1182, 1188 (Fla.1995).

The sentencing order here is sufficient to evaluate whether the sentences imposed were the product of reasoned judgment. See Holmes, 374 So.2d at 950. Accordingly, we reject this claim and hold that the order is not defective or erroneous.

Proportionality

McKenzie next asserts that the death sentences imposed by the trial court are disproportionate. When this Court reviews proportionality, the totality of the circumstances should be considered and the matter should be compared with other capital cases. See Nelson v. State, 748 So.2d 237, 246 (Fla.1999). This comparison, however, is not simply between the number of aggravating and mitigating circumstances. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Additionally, the death penalty is reserved only for the most aggravated and least mitigated of first-degree murders. See Kramer v. State, 619 So.2d 274, 278 (Fla.1993).

Here, the jury recommended the death penalty for each of the murders by a vote of ten to two. The trial court found these recommendations appropriate after independently weighing the statutory aggravating circumstances against the nonstatuto-ry mitigating circumstances pursuant to Muhammad. In imposing each death sentence, the trial court found four statutory aggravators: (1) prior violent felony (eight prior convictions and the contemporaneous murder of the other victim); (2) the murders were committed during the commission of a robbery; (3) pecuniary gain; and (4) CCP. See id. at 185-89, 104 S.Ct. 944. The trial court also found seven nonstatu-tory mitigating circumstances, only three of which were afforded “some” weight (as opposed to the other four, which received “little” or “very little” weight). None of the mitigating factors received “great,” or even “significant,” weight.

After reviewing the totality of the circumstances and decisional law, we conclude that the death sentences here are proportionate. This Court has upheld the death penalty as a proportionate sentence where the murder was committed for pecuniary gain, the defendant had been convicted of a prior violent felony, and little mitigation evidence was found. See, e.g., Lawrence v. State, 691 So.2d 1068, 1071 n. 3 (Fla.1997) (death penalty proportionate where defendant murdered the victim during a convenience store robbery; trial court found in aggravation prior violent felony, pecuniary gain, and that the defendant was under a prior sentence of imprisonment; and any existing mitigation was not entitled to substantial weight); Pope v. State, 679 So.2d 710, 712 n. 1 (Fla.1996) (death penalty proportionate where the defendant beat, stabbed, and kicked the victim; trial court found that prior-violent-felony and pecuniary-gain aggravators applied, and two statutory and three nonstat-utory mitigators applied); Heath v. State, 648 So.2d 660, 661, 663 (Fla.1994) (death penalty upheld where victim was shot and stabbed; trial court found in aggravation prior violent felony and that the murder occurred during commission of a robbery, and in mitigation extreme emotional disturbance, good character in prison, and that the codefendant received a life sentence); Melton v. State, 638 So.2d 927, 928-29 (Fla.1994) (death penalty proportionate where defendant murdered the victim during a pawn shop robbery; in aggravation, the trial court found that the defendant had committed two prior violent felonies and that the murder was committed for pecuniary gain, and in mitigation that the defendant behaved well prior to trial and had a difficult family background).

Here, McKenzie not only satisfied the prior-violent-felony aggravating circumstance through the contemporaneous murder of the other victim, but he also had been convicted of eight prior felonies, each of which involved violence. Cf. Ocha v. State, 826 So.2d 956, 966 (Fla.2002) (prior-violent-felony aggravator was “[p]articularly weighty” where the defendant’s prior convictions included two counts of robbery and one count of attempted murder); La-Marca v. State, 785 So.2d 1209, 1216-17 (Fla.2001) (death penalty proportionate where the sole aggravating circumstance— two prior-violent-felony convictions—was significant, and the established mitigation was “insubstantial”).

Moreover, CCP is one of the weightiest aggravators in Florida’s statutory sentencing scheme, see Morton v. State, 995 So.2d 233, 243 (Fla.2008), and the trial court found that aggravating factor to apply here. Cf. Diaz v. State, 860 So.2d 960, 971 (Fla.2003) (death sentence proportionate where trial court found CCP and prior-violent-felony aggravating factors, and multiple statutory mitigating factors); Pagan v. State, 830 So.2d 792, 798, 802 (Fla.2002) (death penalty affirmed where trial court found CCP, prior violent felony, and pecuniary gain in aggravation, and several nonstatutory mitigating factors, including that the defendant suffered from a deprived childhood, a borderline personality disorder, and attention deficit disorder).

In the instant case, McKenzie, a defendant with an extensive violent criminal history, went to the victims’ home with the intent to rob and kill them. While there, he employed a ruse to convince one of the victims to provide him with what was ultimately one of the murder weapons (i.e., a hatchet). While the victims were separated, McKenzie struck each of them with the hatchet multiple times. When McKenzie realized that neither of the victims had died as a result of the blows, instead of taking their wallets and leaving them alive but incapacitated, he chose to continue his attack, first with the hatchet and then with a butcher knife. Our prior precedent, the sheer brutality of these murders, the persistence with which McKenzie sought to complete them, and our full proportionality analysis leads us to conclude that both death sentences are supportable.

Constitutionality

Under his final claim, McKenzie contends that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and asks this Court to reconsider its contrary holdings in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002). McKenzie also asserts that because both the State and the trial court repeatedly emphasized to the jury during trial that the ultimate sentencing decision rested with the court, the role of the jury in the sentencing process was diminished in contravention of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Lastly, McKenzie challenges the constitutionality of his sentences on the basis that the jury did not make specific findings with regard to aggravating and mitigating circumstances and, therefore, it is impossible to determine whether the jux*y was unanimous in its decision as to which aggravating circumstances applied.

As noted by the State, the constitutional challenges raised by McKenzie are unpreserved because they were not presented by McKenzie below. See Perez, 919 So.2d at 359. Further, even if they had been raised, they lack merit. One of the aggravating factors found by the trial court was McKenzie’s prior convictions for eight violent felonies (plus the conviction for the murder of the other victim here), and this is a factor which, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring, does not need to be found by a jury. See Jones v. State, 855 So.2d 611, 619 (Fla.2003). Moreover, this Court has consistently rejected Caldwell challenges to the standard penalty-phase jury instructions. See, e.g., Evans v. State, 975 So.2d 1035, 1053 (Fla.2007); Mansfield v. State, 911 So.2d 1160, 1180 (Fla.2005); Card v. State, 803 So.2d 613, 628 (Fla.2001). Accordingly, we again reject these claims.

CONCLUSION

Based upon the foregoing analysis, we affirm McKenzie’s convictions and sentences.

It is so ordered.

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

CANADY, J., concurs in result only with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

concurring in result only.

I disagree with the majority’s discussion regarding the striking of juror Schultz. On that point, I would simply conclude that McKenzie has failed to show manifest error. See Hernandez v. State, 4 So.3d 642, 659 (Fla.2009) (stating that trial court’s determination as to “whether a challenge for cause is proper ... will not be overturned in the absence of manifest error”). The law does not support the majority’s reliance on a categorical rule of exclusion for prospective jurors based on a juror’s relationship with a murder victim in an unrelated case or a juror’s relationship with a law enforcement officer in an unrelated case. See § 913.03(10), Fla. Stat. (2006).

POLSTON, J., concurs.

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

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

      . The PSI report prepared by the DOC noted that McKenzie's fiancée “would not discuss [McKenzie's] family.... She did state that his parents should be the ones incarcerated and not him. She would not go into any detail.”

      . The trial court further concluded that "[e]ven in the absence of [CCP] ... the remaining aggravating circumstances would far outweigh the mitigating circumstances.”

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Indeed, since the murders occurred within minutes of each other at the same address and were committed for the same purpose (i.e., to rob the victims), it is logical that the aggravating and mitigating factors for each murder — and the facts that support those factors — would be the same.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR-RULES 6-12.3 AND 6-12.4 (BASIC SKILLS COURSE REQUIREMENTS).
    No. SC09-1427.
    Supreme Court of Florida.
    Feb. 4, 2010.
    John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

This matter is before the Court on the petition of The Florida Bar proposing amendments to the Rules Regulating the Florida Bar. See R. Regulating Fla. Bar 1-12.1. We have jurisdiction. See art. V, § 15, Fla. Const.

The Florida Bar requests that the Court amend the basic skills course requirement in both Rules Regulating the Florida Bar 6-12.3, Requirements, and 6-12.4, Deferment and Exemption. Prior to filing its petition with the Court, the Bar published its proposed amendments in the July 1, 2009, edition of The Florida Bar News. No comments were received.

The amendments eliminate the requirement for in-person attendance at the three basic skills courses and allow the Bar to offer basic skills courses in-person, electronically, and on-line. However, the amendments do not change the requirement of in-person attendance for the Practicing with Professionalism course. See R. Regulating Fla. Bar 6 — 12.3(a)(1).

Accordingly, upon consideration of the proposed amendments, we hereby adopt the amendments to the Rules Regulating the Florida Bar as provided in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective 30 days from the date of this opinion.

It is so ordered.

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

APPENDIX

RULE 6-12.3 REQUIREMENT

(a)Course Components. Compliance with BSCR shall include in-person attend -

(1) in-person attendance at a 1-day Practicing with Professionalism program sponsored by the YLD; and
(2) completion of 3 elective, basic, substantive continuing legal education programs sponsored by the YLD.

(b)Time for Completion. [No change]

RULE 6-12.4 DEFERMENT AND EXEMPTION

(a) Deferment of Practicing with Professionalism Requirement. [No Change]

(b) Deferment of Basic Level YLD Courses.

(1) Deferment Eligibility. [No change]
(2) Deferment Expiration. A deferment of the requirements of rule 6-12.3(a)(2) as provided under this rule shall expire at the time the member is no longer eligible for deferment. Upon expiration, a member must:
(A) promptly notify The Florida Bar in writing of the date deferment expired; and
(B) attendcomplete 3 elective, basic, substantive continuing legal education programs sponsored by the YLD within 24 months of deferment expiration.

(c) Exemption. [No change]


author: ALTENBERND, Judge.

text:
    Stephanie RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5992.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2009.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Stephanie Rodriguez appeals her judgments of conviction for trafficking in amphetamines, possession of alprazolam, and possession of drug paraphernalia, which were entered after the denial of her dis-positive motion to suppress. The motion to suppress was based on the theory that an officer, as the agent of a lessee, illegally detained Ms. Rodriguez when he stopped her to issue a trespass warning for a nearby home. Following this illegal detention, Ms. Rodriguez claims she was illegally arrested when she provided a false identity to the officer. Because the evidence was found in a search arising as a result of this arrest, she maintains that the evidence must be suppressed.

The status of a police officer while stopping a person to issue a trespass warning is a surprisingly complex issue. See, e.g., J.M.C. v. State, 962 So.2d 960 (Fla. 4th DCA 2007). As explained later in this opinion, because of the language in section 810.08(1), Florida Statutes (2006), we agree with the case law holding that a police officer conducts such a stop as an agent of the property owner. Accordingly, we conclude that a stop merely to issue a trespass warning is not a Terry stop, but rather a consensual encounter. As a result, a citizen’s refusal to provide accurate identification during such an encounter would not be an arrestable offense. If this were the end of our analysis, we would be required to reverse the trial court and order the evidence suppressed.

We conclude, however, that the police officer actually had a reasonable basis to believe that the lessees had already asked Ms. Rodriguez to leave them home and that she had already committed the offense of trespass outside his presence. Although the officer stopped Ms. Rodriguez to issue a formal trespass warning, this stop is equally justifiable as a Terry stop to investigate the earlier trespass that he had not witnessed. Although the misdemeanor had not occurred in his presence and he could not effect an immediate arrest of Ms. Rodriguez, we conclude that under these circumstances the officer did have authority to conduct a Terry stop pursuant to section 901.151, Florida Statutes (2006), to investigate the offense. When Ms. Rodriguez gave the officer an incorrect name and refused to provide her real name upon his urging, the officer was authorized to arrest her for opposing an officer without violence. Because the relevant evidence was discovered in a search incident to that arrest, we affirm her judgments and convictions.

I. The Facts

On March 18, 2007, a Tampa police officer responded to a call from a couple who wished to have Ms. Rodriguez removed from their residence. The couple explained that they had allowed Ms. Rodriguez to spend the night at their home because she had no place to stay. In the morning, she accused them of stealing from her. An argument ensued and the couple decided to call the police when Ms. Rodriguez would not leave.

When the officer arrived, the couple explained that Ms. Rodriguez had recently left on foot but that they were uncertain where she had gone. The officer checked the neighborhood but did not locate her. He returned to the residence, where the couple claimed that Ms. Rodriguez had actually not left the property but had hidden in a shed in the backyard. While the officer was gone, she had reentered the house and accosted them. The officer checked again in the neighborhood and saw a woman on the sidewalk a few houses down the street who matched her description.

The officer approached Ms. Rodriguez and asked if she was “Stephanie.” She said that she was. At the suppression hearing, the officer explained that he believed she had committed the crime of trespass when she refused to leave the property at the request of the couple, but that he had not stopped her to arrest her; he merely intended to give her a trespass warning. In order to fill out the field report to document this stop and his warning to her, he asked for her full name and social security number. She gave a name and social security number; however, when the officer checked the information in his computer, it did not appear correct. The name Ms. Rodriguez gave was that of a person who lived in the neighborhood and who had recently called the police about an incident involving her baby. The officer asked a few additional questions. Ms. Rodriguez denied having a baby, but she continued to claim the accuracy of the identity she had provided. The officer then determined that the social security number belonged to a man. He told Ms. Rodriguez she was lying and eventually arrested her for obstructing his attempt to give a formal warning. Once he arrested her, she quickly gave her correct name. The officer then discovered an outstanding warrant for her arrest. Thereafter, during a search incident to the arrest, the drugs and paraphernalia were discovered on her person.

Ms. Rodriguez filed a motion to suppress, arguing that the officer illegally detained and arrested her and that the drugs found incident to that unlawful arrest were inadmissible. The trial court denied the motion. Ms. Rodriguez now appeals the judgments and sentences entered after that denial.

II. The Officer’s Authority as the Owner or Lessee’s Agent

The statute governing trespass in a structure or conveyance states that:

(1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

§ 810.08(1). Accordingly, Ms. Rodriguez committed a trespass if she received a warning to leave the premises and refused to do so or entered the house without permission.

Police officers typically issue the statutory warning to trespassers to depart the premises. Property owners and lessees give officers authority to issue such warnings in hopes that trespassers will either (1) comply with the officers’ requests to leave and actually depart the premises or (2) remain on the property, thereby authorizing the officers to arrest for a misdemeanor committed in their presence. Although this warning is often given by a police officer, section 810.08 provides that the owner, lessee, or a person authorized by an owner or lessee may give the warning. Thus, the case law explains that an officer provides a trespass warning, not in an official capacity, but as the property owner’s designee. See 962 So.2d at 963 (Klein, J., concurring specially) (acknowledging that property owners often ask police officers to communicate trespassing warnings); see also In the Interest of B.M., 553 So.2d 714, 715 (Fla. 4th DCA 1989) (finding that a police officer was an “authorized person” under the trespass statute able to order trespassers off property on behalf of property owner).

Had the officer been acting merely as an owner’s or lessee’s designee, we are unconvinced that he would have had the right to conduct a Terry stop or to receive proper identification from the alleged trespasser. See A.F. v. State, 912 So.2d 374, 376 (Fla. 2d DCA 2005) (holding that the State could not prosecute the defendant for giving a false name to an officer because the officer did not have a well-founded suspicion to detain him for suspected trespassing); D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995) (noting that a person does not have to tell officers his or her correct identity unless the person is legally detained). The failure to provide correct information about one’s identity in this context to an owner or lessee is not a crime, and we conclude that it does not constitute opposing an officer without violence.

The facts in this case, however, clearly demonstrate that Ms. Rodriguez refused to leave the home at the couple’s request until the police arrived. Even after the police arrived, the couple, who were lessees, claimed that she remained on the property and reentered the home. Therefore, there is no question that the officer had reasonable suspicion, if not probable cause, to believe that Ms. Rodriguez had trespassed either by refusing to leave the premises after the lessees asked her to leave or by reentering the house without authorization.

III. The Officer’s Authority to Conduct a Terry Stop for a Misdemean- or Occurring Outside His Presence.

This misdemeanor occurred outside the presence of the officer. Although an officer can arrest a person without a warrant for certain types of misdemeanors where the legislature has authorized a warrant-less arrest based on probable cause, this trespass falls within the general rule prohibiting such warrantless arrests. See § 901.15(1); see, e.g., Smith v. State, 778 So.2d 329 (Fla. 2d DCA 2000) (holding that the police unlawfully arrested the defendant for trespassing because he did not commit the crime in the officers’ presence). We conclude that the officer’s inability to effect an immediate, warrantless arrest is not a basis to hold that the officer was prohibited under the Fourth Amendment from conducting an investigatory stop when he had well-founded suspicion that Ms. Rodriguez had committed this misdemeanor.

Section 901.151(2) provides:

(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

On its face, this statute makes no distinction between an investigatory stop for a misdemeanor and one for an offense for which a person can be arrested without a warrant based on probable cause.

In this case, if Ms. Rodriguez had cooperated with the investigation, she would not have been arrested for trespassing at that time. Nevertheless, the State could still have acted upon the investigation to charge her with a misdemeanor and could have obtained an arrest warrant for a subsequent arrest. See § 901.02(2). Nothing in our case law limits investigatory stops to situations in which the officer has a well-founded suspicion of an offense for which the officer could effect an immediate arrest. For example, in State v. Wise, 603 So.2d 61 (Fla. 2d DCA 1992), this court permitted a Terry stop of a vehicle when a BOLO was issued on a citizen’s complaint that a person was trespassing on private property.

We recognize that there is at least dicta in a special concurrence to a Florida case suggesting that a Terry stop for a completed misdemeanor is improper. See State v. Bennett, 620 So.2d 635, 636 (Fla. 4th DCA 1988) (Glickstein, J., concurring) (“[S]tops to investigate suspects of past misdemeanors are not permissible.”). Moreover, there is case law in some other jurisdictions holding, under the facts in those cases, that an investigatory stop for a completed misdemeanor is improper. See, e.g., Gaddis v. Redford Twp., 364 F.3d 763, 771 n. 6 (6th Cir.2004) (observing that police may not stop individuals based on their reasonable suspicion of completed misdemeanors); Blaisdell v. Comm’r of Pub. Safety, 375 N.W.2d 880, 883-84 (Minn.Ct.App.1985) (holding that Terry stops for past misdemeanors are impermissible).

Other jurisdictions have declined to adopt any bright-line rule prohibiting such investigatory stops and permit them at least in cases that involve public safety. See United States v. Hughes, 517 F.3d 1013, 1017 (8th Cir.2008) (holding that a stop for a completed trespass was not justified, even to identify perpetrators of a crime, absent a public safety threat); United States v. Grigg, 498 F.3d 1070, 1080 (9th Cir.2007) (noting that the ongoing risk that an offending party might repeat a completed misdemeanor or that an officer might stem the potential for escalating violence increases the public safety interest associated with a suspected past violation); Bates v. Chesterfield County, Va., 216 F.3d 367, 371 (4th Cir.2000) (finding that a Terry stop was justified after a property owner reported that a juvenile trespassed on his property, acted strange when the owner attempted to speak with him, and then ran into the woods); State v. Amburgy, 122 Ohio App.3d 277, 701 N.E.2d 728, 732 (1997) (holding that the victim’s assertion of trespass was not enough to stop the suspect absent a public safety threat); Hearod v. Bay Area Rapid Transit Dist., 2008 WL 5245886 (N.D.Ca. Dec. 17, 2008) (ruling that where the only exigency was ensuring that someone who had committed a minor nonviolent infraction was issued a citation was not sufficient to justify an intrusion on the plaintiffs Fourth Amendment interest in personal security). Even if we were to adopt a “public safety” limitation on Terry stops for completed misdemeanors, the stop in this case would be warranted.

The U.S. Supreme Court has long avoided bright-line tests in Fourth Amendment analysis, preferring an approach that considers all the circumstances involved in each unique case. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (rejecting a rigid two-pronged test for determining whether law enforcement officials have probable cause based on an informant’s tip in favor of a “totality-of-the-circumstances” approach). The facts in this case demonstrate that even a category such as “completed misdemeanor” can be elusive when events are ongoing. Perhaps there may be other factual circumstances in which it would be unreasonable to conduct a Terry stop to investigate a misdemeanor when the officer has a well-founded suspicion that it has occurred, but we conclude that the officer in this case was authorized to perform this stop. Accordingly, the trial court properly denied the motion to suppress, and we affirm the judgments and sentences on appeal.

Affirmed.

NORTHCUTT and LaROSE, JJ., Concur.

      . See §§ 893.135(1 )(f)(l)(a), ,13(6)(a), .147, Fla. Slat. (2006).

      . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . See § 901.36(1) (stating that "[i]t is unlawful for a person who has been arrested or lawfully detained ... to give a false name, or otherwise falsely identify himself or herself in any way”).

      . In a similar manner, section 810.09(l)(a)(l) prohibits trespassing on property other than a structure or conveyance after notice has been given.

      . For example, an officer can detain a shoplifter who is suspected only of petit theft based on probable cause. See § 812.015(3)(a), Fla. Slat. (2006). Similarly, an officer can arrest a person suspected of domestic violence, simple battery, or criminal mischief based on probable cause. See § 901.15(7), (9).

      . Although Ms. Rodriguez would not have been arrested for trespassing, we note that she would have been arrested on unrelated charges because the officer would have discovered that she had an outstanding warrant for her arrest.


author: LAGOA, J. SCHWARTZ, Senior Judge

text:
    Michael James COREY, Appellant, v. Erica Lynn COREY, Appellee.
    No. 3D08-1461.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.

      Fowler White Burnett and Kathy M. Klock and Greg A. Lewen, for appellant.
    Simon, Schindler & Sandberg and Roger Schindler and Anthony V. Falzon, for ap-pellee.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

In this dissolution action, Michael James Corey, the father, contends that the trial court erred in designating Erica Lynn Corey, the mother, the primary residential parent of their son. Because we conclude that the trial court erred as a matter of law in finding that the father was required to overcome a presumption against rotating custody, we reverse.

I. FACTUAL HISTORY

The parties, who have one son, separated when the mother left the parties’ home in Gainesville and moved with their child to Key Biscayne. The father then moved to Key Biscayne to be near the child and his school. For the two years prior to trial, the parties followed a schedule in which their son spent alternating weeks with each parent. The testimony below unequivocally established that the child was thriving in all respects under this arrangement. In fact, certain health issues from which the child suffered improved in this two-year period.

The record contains detailed testimony concerning the parties’ respective work schedules. The father is employed as an assistant state attorney. The testimony at trial established that he ordinarily picks up the child from the school’s after-care program before 6 p.m. each day. If, for work reasons, the father is unable to arrive at school by that time, he is able to rely upon family and friends to pick up the child. However, there was no testimony that the father was ever late in picking up the child from the after-care program.

The wife is employed as a teacher at the same school the child attends. She leaves work around 4:00 p.m., and is therefore available to pick up the child from aftercare each day.

The father sought weekly rotating custody, or, if the trial court denied rotating custody, that he be designated the primary residential parent. The mother also sought to be designated the primary residential parent. Ultimately, the trial court entered a Final Judgment of Dissolution of Marriage and Other Relief in which it denied the father’s request for rotating custody and awarded primary residential custody of the child to the mother. The trial court then entered a Child Time Sharing and Parental Responsibility Order in which it ordered that the child be with the father on alternating weekends, beginning on Thursday nights. In the weeks during which the child would not be with his father on the weekend, he would be with the father on Thursday night. This order was later amended to provide that if the father cannot pick up the child from school on his designated days with the child, the mother will be entitled to do so.

In reaching its decision, the trial court found that Florida law established a presumption against ordering rotating custody, and that the father was required to establish “exceptional circumstances” in order to justify such an order. The trial court stated:

1. ROTATING CUSTODY
While a Court clearly has the power to order rotating custody (See.61.121, Fla.Stat.) the long prevailing law has been that such an arrangement is presumptively NOT in a child’s best interests. In order to overcome that presumption and make such an award this Court would have to find that exceptional circumstances exist which make such an arrangement in the child’s best interests. See for example Mancuso v. Mancuso, 789 So.2d 1249 (Fla. 4th DCA 2001).
Florida courts have identified several factors that a trial court should consider in determining whether the particular circumstances in a case have overcome the presumption against rotating custody. Langford v. Ortiz, 654 So.2d 1237 (Fla. 2d DCA 1995). With the exception of the fact that both parents live in close proximity to each other the Court finds that the long-standing presumption against rotating custody was not overcome by competent substantial evidence.
While the Husband believes that such an arrangement is fair to him the Court finds that there was a lack of competent substantial evidence that alternating weeks would be fair to the child nor was there competent, substantial evidence that the frequency of the proposed rotation would not have a disruptive effect on the child and that it would likely not inhibit the development of a stable living environment, as the Wife testified it would.
The fact that the rotating arrangement was [sic] been “working” for over a year and that the child has adapted to it is insufficient for the Court to find that it is in his best interests to maintain that arrangement. The mere fact of his adapting does not mean that those circumstances are in his best interests. Ruffridge v. Ruffridge, 687 So.2d 48 (Fla. 1st DCA 1997).
The Court finds that the Husband has failed to prove by competent, substantial evidence the existence of special circumstances to overcome the presumption against rotating custody and his claim for the Court to order rotating custody is DENIED.

After an analysis of the factors set forth in section 61.13(3), Florida Statutes (2007), the trial court determined that the mother should be designated the primary residential parent because she offered greater stability and continuity, and because her work schedule afforded her greater availability to the parties’ son in the afternoon hours.

II. ANALYSIS

On appeal, the father primarily argues that the trial court erred in appfying a legal presumption against rotating custody and in further requiring him to prove “exceptional circumstances” in order to overcome that presumption. We find merit with the father’s position.

A. No Presumption Against Rotating Ctistody

In 1997, the Legislature enacted section 61.121, Florida Statutes, which states as follows: “The court may order rotating custody if the court finds Lhat rotating custody will be in the best interest of the child.” See Ch. 97-242, § 2, at 4437, Laws of Fla. Prior to that, case law established that rotating custody was presumptively disfavored. Ruffridge v. Ruffridge, 687 So.2d 48, 50 (Fla. 1st DCA 1997) (“[T]he Florida courts have recognized that rotating child custody is presumptively not in the best interest of the children.”); Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995) (“Rotating custody ... is presumptively not in the best interest of a child.”); Caraballo v. Hernandez, 623 So.2d 563 (Fla. 4th DCA 1993) (adhering to rule that rotating custody is presumptively not in the best interest of the child); Wilking v. Reiford, 582 So.2d 717, 719 (Fla. 5th DCA 1991) (“Generally, rotating custody is presumptively not in the best interest of children, but there may be special circumstances which justify rotating physical residence.”); Bienvenu v. Bienvenu, 380 So.2d 1164, 1165 (Fla. 3d DCA 1980) (“It is well-settled Florida law that split-custody provisions ... are strongly disfavored and ordinarily may not be sustained.”). Courts relied upon an analysis of several factors, often described as “particular circumstances,” Bienvenu, 380 So.2d at 1165, or “unique circumstances,” Pfeifer v. Pfeifer, 616 So.2d 1190, 1191 (Fla. 4th DCA 1993), in order to determine whether the presumption had been overcome. See Langford, 654 So.2d at 1238 (listing factors that can overcome presumption); Bienvenu, 380 So.2d at 1165 (same).

Subsequent to the Legislature’s enactment of section 61.121, courts continued to apply the presumption against rotating custody. See Cooper v. Gress, 854 So.2d 262, 266 (Fla. 1st DCA 2003) (“[Njothing in this plain statutory language [of section 61.121, Fla. Stat. (1999) ] indicates the Florida Legislature intended to eliminate the longstanding presumption that rotating custody is not in a minor child’s best interest.”); Chapman v. Prevatt, 845 So .2d 976, 982 (Fla. 4th DCA 2003) (“Nothing in section 61.121 detracts from the longstanding presumption frowning upon a rotating custody arrangement.”); Mancuso v. Mancuso, 789 So.2d 1249 (Fla. 4th DCA 2001) (holding that presumption required trial court to consider factors which may overcome the presumption); Hosein v. Hosein, 785 So.2d 703, 704 (Fla. 4th DCA 2001) (same); Mandell v. Mandell, 741 So.2d 617, 618 (Fla. 2d DCA 1999) (“If, by this language, the legislature sought to set aside the presumption against rotating custody, it failed. Nothing in the plain language of the statute suggests that the legislature intended to abolish the presumption.”); cf. Bazan v. Gambone, 924 So.2d 952, 956 (Fla. 3d DCA 2006) (noting that “a joint custody agreement ... is generally disfavored when considering initial custody determinations”).

Based upon the plain language of the statute, however, we cannot reach the same conclusion as our sister courts. See Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008) (“ ‘The starting point for [the] interpretation of a statute is always its language,’ so that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” (quoting Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821, 829-30 (M.D.Fla.2007), aff'd, 540 F.3d 1242 (11th Cir.2008))); Haskins v. City of Ft. Lauderdale, 898 So.2d 1120, 1123 (Fla. 4th DCA 2005) (“A basic canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992))).

In 1997, the Legislature chose to put rotating custody on the same level playing field as other types of custody arrangements^ — all of which are evaluated through the lens of the best interest of the child. This legislative action changed the judicially-created presumption against rotating custody. If the Legislature had intended to continue the long-standing presumption against rotating custody, it would have stated so in the statute. Instead, the Legislature, in enacting section 61.121, expressly stated that the only standard for ordering rotating custody is whether it is in the best interest of the child.

Put another way, after the 1997 Legislative action, no presumption — positive oi' negative—attaches to rotating custody in comparison to other permissible custody arrangements. As such, “[w]here, as here, the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain and obvious meaning.” City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003). Courts that continue to impose a higher burden on a parent seeking rotating custody improperly displace the Legislature’s decision with their own judicial policy preference.

Moreover, it necessarily follows that a parent seeking rotating custody need not establish “exceptional circumstances” to overcome a presumption that no longer exists. The standard is simply the best interest of the child as set forth in section 61.13, Florida Statutes (2007).

B. No Competent, Substantial Evidence

Additionally, we also find that the trial court’s determinations in favor of the mother regarding the factors set forth in subsections 61.13(3)(d) and (m), Florida Statutes (2007), are not supported by competent, substantial evidence.

First, with regard to section 61.13(3)(m), the trial court found that the parties’ work schedules were a “significant factor” in evaluating the custodial arrangement. Specifically, the trial court found that the fact that the father might have to rely on family, neighbors, or even the mother, to pick up the child from the school’s after-school care or extracurricular activities, weighed in favor of designating the mother the primary residential parent. There was no evidence that the father had ever been unable to pick up his son from the after-care program on time. Moreover, the parties’ amendment to the time sharing order provides that if the father cannot pick up the child, the mother will be entitled to pick up the child from school and the father will then pick up the child from her residence.

Second, in addressing section 61.13(3)(d), the trial court found that despite the fact that “the child’s environment has been stable and satisfactory ... there was competent, substantial evidence that living in the same household would be in the child’s best interest and provide the continuity and residential stability which he needs.” Our review of the record reveals that the only evidence on this point upon which the trial court could have relied in reaching this conclusion was the opinion of the mother. The mother’s opinion was not based on any claimed adverse effects the son had suffered while spending alternating weeks with each of his parents, but simply on the fact that she was his mother and she thought it was better, and that she had been a teacher for two years. This conclusory opinion testimony, not based upon any observable facts, did not constitute competent and substantial evidence on the issue of a stable environment for the parties’ son. See § 61.13(3)(d), Fla. Stat. (2007); cf. O’Brien v. Crumley, 695 So.2d 881, 882 (Fla. 5th DCA 1997) (finding no abuse of discretion in the trial court’s ordering rotating custody where “[o]nly the mother opined that the arrangement was unsuitable but she was unable to specify any adverse effects resulting from the arrangement”).

III. CONCLUSION

Because we find that the trial court erred as a matter of law in requiring the father to overcome a presumption against rotating custody, we reverse the Final Judgment of Dissolution, the Child Time Sharing and Parental Responsibility Order, and subsequent amendment to the Time Sharing and Parental Responsibility Order. On remand, the trial court shall make a determination regarding timeshar-ing and parental responsibility based upon the best interest of the child.

Reversed and remanded.

Judges SHEPHERD and LAGOA concur.

SCHWARTZ, Senior Judge

(dissenting).

This appeal by the father from a February 2008 final judgment of dissolution challenges the trial court’s rulings concerning the parties’ then seven-year-old son. For two years prior to the judgment the parties had “rotated custody” of the child with Ethan’s spending alternating weeks with his parents starting at 5:00 p.m. on Sunday evening. Based upon specific findings that the so-called legal presumption against that process had not been overcome, the trial court (a) refused to continue the arrangement and (b) determined that the primary physical responsibility of the child should be with the mother, who is a teacher at the public school the child attends, with liberal visitation to the father, an assistant state attorney, considerably extended beyond the “standard” schedule. Mr. Corey seeks reversal of both rulings. I would affirm on the ground that no error of law or abuse of discretion has been demonstrated.

I.

The appellant’s primary argument with respect to rejection of the preexisting “ro-fating custody” arrangement lies in his claim that the established “presumption” against rotating custody, see, e.g., Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980), and cases cited therein, which was enforced by the trial court, did not survive the enactment in 1997 of section 61.121, Florida Statutes. See Ch. 97-242, § 2, at 4437, Laws of Fla. In accordance with each of our sibling courts which have considered the issue, I disagree. See Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003); Mancuso v. Mancuso, 789 So.2d 1249 (Fla. 4th DCA 2001); Mandell v. Mandell, 741 So.2d 617 (Fla. 2d DCA 1999). See also Hosein v. Hosein, 785 So.2d 703 (Fla. 4th DCA 2001). Furthermore, I find no abuse of discretion in the trial court’s determination, after obviously careful consideration of the pertinent facts that the presumption against rotating custody had not been overcome. Cf. Mancusa, 789 So.2d at 1250; Hosein, 785 So.2d at 704.

II.

With respect to the primary residence issue, the trial court’s decision was, again, based upon an incisive analysis of the factors set out in the then-applicable section 61.13(3). The court found that almost all of them presented no basis for choosing between the parents whom all agree, fortunately and happily for their son, are both loving, competent, and concerned parents. Since, given the rotating custody decision, a choice had to be made, he based his ruling upon the following:

The length of time the child has lived in a stable, satisfactory environment and desirability of maintaining continuity. [61.13(3)(d), Fla. Stat. (2008) ]
Since January, 2006 the parties have shared custody of the child on a rotating schedule which continues through the present date. The Wife testified that she did not agree to this voluntarily and never felt that it was in the child’s best interests. Notwithstanding the arrangement, both parents testified that the child was thriving and “could not be doing better”, that they were able to communicate and admitted that both were good parents. The Mother lived with her parents on Key Biseayne from the date of separation through July of 2007 when she moved into her own home also on Key Biseayne. The Father subsequently moved to Key Biseayne from Southwest Miami-Dade to be physically close the child and remains living there and maintaining an apartment suitable and convenient for himself and the child.
To the extent possible while the parties have been operating under a rotating custody schedule the child’s environment has been stable and satisfactory. However, as discussed above where the Court rejected the Husband’s claim to continue rotating custody, there was competent, substantial evidence that living in the same household would be in the child’s best interest’s (sic) and provide the continuity and residential stability which he needs. The Court finds that greater stability and continuity will result from the Wife being the primary residential parent.

The court also found the following unspecified factor to be relevant under section 61.13(3)(m), Florida Statutes:

The Father is a law school graduate and a member of the Florida Bar. His current employment as an Assistant State Attorney with the Miami-Dade County State Attorney’s Office is an important public position with great responsibility. Likewise the Wife, as a Miami-Dade county school teacher has a position of similar importance and level of responsibility.
The Husband testified that only rarely would he get off work later than 5:30 P.M. so he would be able to pick the child up from after school care at Key Biscayne Elementary School before it ended at 6:00 P.M. However in the event that he was delayed he had neighbors, extended family or even the Wife, to look to for help in picking the child up until the Husband could get there to take him. This is contrasted to the Wife who would never have such problems and would always be able to take the child home on a timely basis and not need to rely on the help of others. Further, the evidence showed that the child is beginning to participate in extracurricular activities on at least 2 day/week which ends at 4:80 P.M., a time which the Husband would rarely or never be available to pick him up, again requiring him to rely on neighbors, family or the Wife.
The Court finds that the availability of the Wife, be it after-school or in the case of an emergency, is a significant factor to consider in evaluating what custodial arrangement is in the child’s best interests. Further, while both parties have a network of extended family members, the Wife’s parent’s live geographically significantly closer than the Kendall-South Dade area where the Husband’s family primarily resides and would therefore be more quickly available if needed or in an emergency.

While it is stating the obvious that decisions in cases like this in general, and indeed in this case in particular, are difircult and wrenching — and while I need not say, as it would be impossible to say, what I would have decided had I been there— under our system, it is the trial court which is entrusted with that responsibility and whose decision must be upheld in the absence of a clear showing that it was mistaken. In the language of these cases, that means that we must find an “abuse of discretion” to reverse the determination in question. In conscience, I cannot so conclude. Cleary v. Cleary, 872 So.2d 299 (Fla. 2d DCA 2004); Artuso v. Dick, 843 So.2d 942 (Fla. 4th DCA 2003); Santiago v. Santiago, 830 So.2d 922 (Fla. 4th DCA 2002); Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998); Sullivan v. Sidlivan, 668 So.2d 329, 329-30 (Fla. 4th DCA 1996); Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994); Jones v. Jones, 633 So.2d 1096, 1099 (Fla. 5th DCA 1994); Ross v. Ross, 321 So.2d 443, 444 (Fla. 3d DCA 1975). As might be appropriate in virtually all of these cases, therefore, in the last analysis I would affirm on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

      . Specifically, with regard to section 61.13(3)(d), Florida Statutes (2007), the trial court found as follows:
      d. The length of time the child has lived in a stable, satisfactory environment and desirability of maintaining continuity.
      Since January, 2006 the parties have shared custody of the child on a rotating schedule which continues through the present date. The Wife testified that she did not agree to this voluntarily and never felt that it was in the child’s best interests. Notwithstanding the arrangement, both parents testified that the child was thriving and "could not be doing better", that they were able to communicate and admitted that both were good parents. The Mother lived with her parents on Key Biscayne from the date of separation through July of 2007 when she moved into her own home also on Key Biscayne. The Father subsequently moved to Key Biscayne from Southwest Miami-Dade to be physically close to the child and remains living there and maintaining an apartment suitable and convenient for himself and the child.
      To the extent possible while the parties have been operating under a rotating custody schedule the child’s environment has been stable and satisfactory. However, as discussed above where the Court rejected the Husband's claim to continue rotating custody, there was competent, substantial evidence that living in the same household would be in the child's best interest’s [sic] and provide the continuity and residential stability which he needs. The Court finds that greater stability and continuity will result from the Wife being the primary residential parent.

      . Considering section 61.13(3)(m), Florida Statutes (2007), the trial court found as follows:
      m. Any other fact considered by the Court to be relevant.
      The Father is a law school graduate and a member of the Florida Bar. His current employment as an Assistant State Attorney with the Miami-Dade County State Attorney's Office is an important public position with great responsibility. Likewise the Wife, as a Miami-Dade county school teacher has a position of similar importance and level of responsibility.
      The Husband testified that only rarely would he get off work later than 5:30 P.M. so he would be able to pick the child up from after school care at Key Biscayne Elementary School before it ended at 6:00 P.M. However in the event that he was delayed he had neighbors, extended family or even the Wife, to look to for help in picking the child up until the Husband could get there to take him. This is contrasted to the Wife who would never have such problems and would always be able to take the child home on a timely basis and not need to rely on the help of others. Further, the evidence showed that the child is beginning to participate in extracurricular activities on at least 2 day/week which ends at 4:30 P.M., a time which the Husband would rarely or never be available to pick him up, again requiring him to rely on neighbors, family or the Wife.
      The Court finds that the availability of the Wife, be it after-school or in the case of an emergency, is a significant factor to consider in evaluating what custodial arrangement is in the child's best interests. Further, while both parties have a network of extended family members, the Wife's parent’s live geographically significantly closer than the Kendall-South Dade area where the Husband's family primarily resides and would therefore be more quickly available if needed or in an emergency.

      . "The trial court determines the initial custody of children in dissolution of marriage proceedings pursuant to the guidelines set forth in section 61.13, which require all matters related to the custody of a minor to be determined in accordance with the best interest of the child.” Wade v. Hirschman, 903 So.2d 928, 933 (Fla.2005).

      . The tone and form of this opinion are quite obviously explained by tire fact that it was initially written as the opinion of the court. Fortunately or unfortunately, neither of the other panel members agreed. (I have had this problem of non-persuasion before. E.g. Proprietors Ins. Co. v. Valsecchi, 435 So.2d 290, 298 n. 1 (Fla. 3d DCA 1983) (dissenting opinion), review denied, 449 So.2d 265 (Fla.1984); Ins. Co. of N. Am. v. Pasakarnis, 425 So.2d 1141, 1142 n. 1 (Fla. 4th DCA 1982) (dissenting opinion), quashed, 451 So.2d 447 (Fla.1984); Maszewski v. Piskadlo, 318 So.2d 226, 228 n. 1 (Fla. 2d DCA 1975) (dissenting opinion).)

      . While we need not consider the broad revision of the statutory family law (including the repeal of section 61.121) which took effect on October 1, 2008, see ch. 2008-61, § 1, et seq., at 789, Laws of Fla., I wonder whether the changes in form and nomenclature, with which it is mostly concerned, significantly affect the previously established substantive law.

      . The trial court ruled:
      1. ROTATING CUSTODY

      While a Court clearly has the power to order rotating custody (Sec. 61.121, Fla. Stat.) the long prevailing law has been that such an arrangement is presumptively NOT in a child’s best interests. In order to overcome that presumption and make such an award this Court would have to find that exceptional circumstances exist which make such an arrangement in the child’s best interests. See for example Mancuso v. Mancuso, 789 So.2d 1249 (Fla. 4th DCA 2001).
      Florida courts have identified several factors that a trial court should consider in determining whether the particular circumstances in a case have overcome the presumption against rotating custody. Langford v. Ortiz, 654 So.2d 1237 (Fla. 2d DCA 1995). With the exception of the fact that both parents live in close proximity to each other the Court finds that the long-standing presumption against rotating custody was not overcome by competent substantial evidence.
      While the Husband believes that such an arrangement is fair to him the Court finds that there was a lack of competent substantial evidence that alternating weeks would be fair to the child nor was there competent, substantial evidence that the frequency of the proposed rotation would not have a disruptive effect on the child and that it would likely not inhibit the development of a stable living environment, as the Wife testified it would.
      The fact that the rotating arrangement was been (sic) '‘working’’ for over a year and that the child has adapted to it is insufficient for the Court to find that it is in his best interests to maintain that arrangement. The mere fact of his adapting does not mean that those circumstances are in his best interests. Ruffridge v. Ruffridge, 687 So.2d 48 (Fla. 1st DCA 1997).
      The Court finds that the Husband has failed to prove by competent, substantial evidence the existence of special circumstances to overcome the presumption against rotating custody and his claim for the Court to order rotating custody is DENIED.

      . As opposed to the “usual” Wednesdays and alternate weekends, the appellant was afforded the following in the child time sharing and parental responsibility order:
      The Husband shall have time sharing on alternate weeks commencing on March 1, 2008. The Husband’s week-end time sharing shall commence at the completion of the after school care program at the child's school on Thursday or, at the Husband's option, immediately after school and end the following Monday morning when he drops the child off at school. The Husband shall also have time sharing with the child on Thursday night of the week in which he does not have weekend time sharing, with the time sharing to commence at the completion of the after school care or, at the Husband's option, immediately after school, on Thursday and end on Friday morning when he drops the child off at school.
      If any weekend provided for in this section includes any day, or falls during any weekend or other time period provided for in Sections 2 through 10 below, the time sharing provisions of that section shall govern.

      The child time sharing and parental responsibility order was amended, as follows:
      If any time during the Father’s visitation with the minor child the Father is unable to pick up the minor child after school then the Mother shall be entitled to pick up the minor child after school, spend the afternoon with the minor child, and the Father shall be entitled to pick up the child during his lime sharing at the Mother’s residence at any time.

      . The Mandell court stated:
      [W]e take this opportunity to address one issue that the parties raised. They ask whether section 61.121, Florida Statutes f 1997), effectively sets aside the long held presumption that rotating custody is not in the best interest of a minor child. See Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980). Section 61.121, as adopted by the legislature in 1997, provides: "The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.”
      If, by this language, the legislature sought to set aside the presumption against rotating custody, it failed. Nothing in the plain language of the statute suggests that the legislature intended to abolish the presumption. Our review of the limited legislative history offers little insight on the issue. We note that House Bill 1421, which enacted this provision, also amended section 61.13, Florida Statutes as follows:
      61.13 Custody and support of children: visitation rights; power of court in making orders.—
      (2)(d) No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent.

        H.B. 1421, 2d Sess. (Fla. 1997).
      The language in this amendment shows that the legislature understood how to set aside a previously established presumption. The absence of such language in section 61.121 leads us to conclude that either the legislature did not intend to set aside the presumption, or, if it did, it failed to appropriately implement its intent.

      . Obviously, the majority opinion is in direct conflict with these decisions.

      . Specifically, the law is to the contrary of the appellant’s claim that the fact that the previous agreed "rotating custody” has resulted in the child’s apparent well-being means that it must be continued virtually as a matter of law. See, e.g., Santiago, 830 So.2d at 923 ("We reject the former husband's argument that the time the child spends with each parent, which can be ascertained from the face of the judgment in this case, is determinative. See § 61.13(3), Fla. Stat. (2001) (listing the numerous factors that trial judges are to consider in making a primary residential parent designation); Undercuffler v. Undercuffler, 798 So.2d 867 (Fla. 4th DCA 2001)"); Young v. Hector, 740 So.2d 1153 (Fla. 3d DCA 1999) (upholding the trial court’s decision as to custody notwithstanding contrary arrangements established by agreement of the parties had been successful).