text:
    THE FLORIDA BAR, Complainant, v. Randall Lawrence GILBERT, Respondent.
    No. SC15-2004
    Supreme Court of Florida.
    [March 22, 2018]
    Joshua E. Doyle, Executive Director, Tallahassee, Florida, Adria E. Quintela, Staff Counsel, and Randi Klayman Lazarus, Bar Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    David B. Rothman and Jeanne T. Melendez of Rothman & Associates, P.A., Miami, Florida, for Respondent
   PER CURIAM.

We have for review a referee's report recommending that Respondent, Randall Lawrence Gilbert, be found guilty of professional misconduct and suspended from the practice of law for a period of two years. We have jurisdiction. See art. V, § 15, Fla. Const. The egregious facts, as found by the referee, demonstrate Gilbert's failure to exercise any supervision over Steven Sacks, Gilbert's employee with a known history of wire fraud and embezzlement of more than $7 million. Even after Gilbert was warned by Sacks' probation officer of the risk of financial irresponsibility and his opinion that Sacks should not be working at a law firm given his criminal past, Gilbert did nothing. In fact, shortly after hiring Sacks, when Gilbert became aware that Sacks had embezzled over $20,000 from the law firm's operating account, Gilbert fired and then rehired Sacks, eventually delegating to Sacks all matters regarding the administration of Gilbert's firm's trust account. The details are set forth more fully below, but by the end of 2014 Sacks had embezzled nearly $5 million from the firm's trust account.

Whether Gilbert was aware of or personally involved in the theft is not the critical inquiry. Indeed, this case gives new meaning to the phrase "turning a blind eye." Gilbert, as an attorney and fiduciary, was directly responsible for his firm's trust account and for the supervision of employees. As an attorney, he owed a duty to the public and to his clients to safeguard their money. Instead, he flouted the system by lying to a federal probation officer and allowing a nonattorney to hold himself out as a law school graduate and a certified public accountant (CPA). Sacks was neither and never had been. For the reasons that follow, we approve the referee's factual findings and recommendation as to guilt but reject the referee's recommended disciplinary sanction and, instead, impose the sanction of disbarment.

FACTS

In February 2005, Sacks was referred to Gilbert by a friend/client for a job at Gilbert's law office. Gilbert interviewed Sacks and learned that Sacks was then living in a halfway house, having been recently released from federal prison after being convicted of wire fraud. Sacks claimed in this interview to be a CPA and a disbarred New York attorney. With knowledge of Sacks' criminal history, Gilbert hired Sacks. However, Gilbert did not investigate Sacks' criminal history in any manner, obtain any further information about Sacks' crimes, contact the New York Board of Accountancy to confirm whether Sacks was a CPA, or contact the New York Bar in regard to the circumstances of Sacks' disbarment.

On or about April 8, 2005, Sacks' federal probation officer, Jeffrey Feldman (Officer Feldman), met with Gilbert. During the meeting, Gilbert signed a "PROB 32" form, formally acknowledging the risk of hiring Sacks as well as some aspects of the crimes Sacks had committed. The PROB 32 form indicated that on "December 23, 2002," Sacks was convicted of 11 counts of "wire fraud" and was sentenced to "41 months imprisonment, followed by a total of five (5) years [probation, and ordered to pay] [r]estitution in the amount of $7,906,332.14." Officer Feldman also told Gilbert that he felt it was inappropriate for Sacks to be working at a law firm given Sacks' history of fraud and embezzlement.

The referee found that with respect to Sacks' past, Gilbert was "curiously uncurious." Had Gilbert investigated Sacks further, he would have discovered that Sacks was never an attorney in New York. Additionally, if Gilbert had contacted the New York Board of Accountancy, he would have learned that Sacks was not a CPA. The referee notes Gilbert's "failure to exercise even a modicum of due diligence with respect to Sacks' 'resume,' a resume which came with a number of bright red flags attached to it." Additionally, Gilbert permitted Sacks to identify himself as holding a "J.D.," which was printed on business cards and included in his signature on firm emails.

Five months after Gilbert hired Sacks, Sacks stole and forged Gilbert's signature on one of the firm's operating account checks, writing the check for $20,950 to pay for Sacks' girlfriend's cosmetic surgery. Upon Gilbert's discovery of the theft, Sacks returned the check. Gilbert terminated Sacks' employment, but did not report the incident to Officer Feldman. When he learned Sacks had been terminated, Officer Feldman repeatedly reached out to both Sacks and Gilbert in an attempt to determine why Sacks was no longer employed at the firm. Gilbert refused to tell Officer Feldman why he terminated Sacks. Officer Feldman was surprised by Gilbert's refusal to cooperate, especially since Gilbert was a member of The Florida Bar.

On October 11, 2005, Sacks called Officer Feldman and explained that he and Gilbert had reconciled and that Sacks had returned to working for Gilbert. On October 19, 2005, Officer Feldman visited Gilbert's office and expressed surprise regarding Sacks' rehiring and disappointment for Gilbert's failing to respond to his attempts at communication. When questioned about his lack of communication with Officer Feldman, Gilbert apologized but stated that "he did not discuss employee matters with anyone." Gilbert went on to tell Officer Feldman that Sacks' termination was due to "a misunderstanding." Additionally, Gilbert informed Officer Feldman that Sacks would continue working with the firm in the same capacity as he previously had, as a bookkeeper, but failed to inform Officer Feldman when he delegated more responsibility to Sacks following his return. In fact, Gilbert eventually named Sacks as the Chief Financial Officer of Gilbert's firm.

The referee found that Gilbert refused to be truthful with Officer Feldman regarding Sacks' termination because he realized that Sacks' conduct would have probably violated Sacks' probation. Indeed, Officer Feldman testified that had Gilbert informed him of the crimes committed by Sacks, the crimes would have been reported to the presiding court to initiate revocation of Sacks' probation, resulting in Sacks' return to prison. Ultimately, the referee concluded that "[h]ad Gilbert been honest, the incidents that led to this proceeding would not have occurred."

According to the referee's report, Sacks' thefts likely began at or around the time Sacks' federal probation ended. Gilbert's main focus of his practice before he met Sacks, and continuing thereafter, was construction litigation. The real estate closing side of Gilbert's practice began between 2006 and 2007, but did not exponentially grow until the mortgage foreclosure crisis in 2008. Sacks was the head of Gilbert's team of closers for the law firm and aggressively established relationships in the real estate community. Gilbert allowed Sacks full rein over the real estate closing side of his practice. Gilbert was not aware that Sacks was paying Gilbert's employees thousands of dollars from the firm's trust account in order to perpetuate his scheme of embezzlement. Sacks would transfer the funds that were deposited into the firm's trust account to pay off the remaining mortgages after the closings of the sales of the firm's clients' properties to a shell company, which he created, and then continue to keep the mortgages "alive" by making the monthly payments, so that no one would know of his thefts.

Nothing in the record suggests that Gilbert engaged in any type of meaningful post-closing supervision or follow-up of Sacks' actions. Gilbert testified that he reviewed monthly three-way comparisons prepared by Sacks, which reconciled the bank account and trust account funds. He also reviewed the first and last page of the bank account statements. He testified that this review took no more than two to four minutes per month. There was also testimony presented that every bank statement, with the exception of two, from February 2010 through March 2014 reflect at least one theft by Sacks.

The referee found clear and convincing evidence that Gilbert delegated all matters regarding the administration of the firm's trust account to Sacks, including preparing trust account reconciliations, acting as the firm's contact person and intermediary with the trust account reviews by Old Republic, Gilbert's title insurance underwriter, and dealing with the firm's CPA. Gilbert did not review the information Sacks provided to the CPA. The referee concluded that "[b]undling all of [the] financial responsibilities in the hands of someone convicted of wire fraud, and who [Gilbert] knew had attempted to steal $20,950 from him without serious repercussion, displayed a remarkable lack of proper supervision."

Over time, Sacks' lifestyle improved significantly. Gilbert believed Sacks' girlfriend financed this lifestyle, as she was the beneficiary of a sizable trust. Sacks also told Gilbert that he had some real estate investments.

Sacks' scheme was first discovered on February 27, 2014, when Gilbert received a call from an attorney asking why the attorney's client's mortgage was paid and kept alive for three months after it should have been satisfied. While this event prompted Gilbert to investigate, Gilbert chose not to close the firm's trust account. Between February 27, 2014, and March 11, 2014, when Gilbert did finally close the firm's trust account, Sacks stole an additional $95,000.

Sacks' thefts from Gilbert's trust account first appear in the trust account bank statement for the period February 27, 2010, through March 31, 2010. Sacks created a fake corporation, SQWERTY, to which almost $4 million of the illicit transfers were made. The record shows that over a 49-month period from February 2010, through March 2014, Sacks stole $4,750,708.70 from Gilbert's trust account. Of that amount, $4,542,410.70 benefited Sacks and other third parties to whom he gave stolen trust account funds. The difference, according to the Bar, $208,298.03, benefitted Gilbert's law firm.

Old Republic was the single largest victim of Sacks' thefts, paying out $3,612,374.10 in title insurance claims. Gilbert himself lost approximately $1 million when Sacks failed to pay off the original mortgage on Gilbert's home when he and his wife refinanced it.

Gilbert took numerous steps to ameliorate the damage caused, which included meeting with the bank to close the firm's trust account, hiring a forensic accountant to complete an accounting, reporting the thefts to appropriate law enforcement agencies, restricting Sacks' online access to any aspect of the law firm, suing his bank to get whatever funds might still be left in Sacks' accounts, notifying his malpractice carrier, and self-reporting to The Florida Bar. Gilbert also declined to receive paychecks from the firm for a significant period of time and dedicated the net profit to his firm from closings to reimbursing those who had suffered losses. In all, Gilbert paid off about $1.03 million to individuals suffering losses as a result of Sacks' thefts.

The referee's report found Gilbert guilty of violating multiple Rules Regulating the Florida Bar including: Bar Rules 3-4.3 (Misconduct and Minor Misconduct), 4-1.3 (Diligence), 4-5.3(b) (Responsibilities Regarding Nonlawyer Assistants-Supervisor Responsibility), 4-5.3(c) (Responsibilities Regarding Nonlawyer Assistants-Ultimate Lawyer Responsibility), 4-8.4(c) (Misconduct-Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation), 5-1.1(a) (Trust Accounts-Nature of Money or Property Entrusted to Attorney), 5-1.1(b) (Trust Accounts-Application of Trust Funds or Property to Specific Purpose), 5-1.2(b)(6) (Trust Accounting Records and Procedures-Minimum Trust Accounting Records), 5-1.2(c)(1) (Trust Accounting Records and Procedures-Responsibility of Lawyers for Firm Trust Accounts and Reporting) and (2), 5-1.2(d) (Trust Accounting Records and Procedures-Minimum Trust Accounting Procedures). However, the referee concluded that disbarment was not the appropriate sanction in this case and instead, recommended that Gilbert be suspended for two years and placed on probation for two years after being reinstated, along with paying the costs of The Florida Bar and other conditions.

The Florida Bar filed a petition in this Court challenging the referee's recommended sanction, arguing that disbarment is appropriate. Gilbert filed a cross-petition challenging both the referee's findings as to guilt with respect to Bar Rules 3-4.3, 4-1.3, 4-8.4(c), 5-1.2(b)(6), and 5-1.2(c)(1) and the referee's recommended sanction, arguing that the punishment was excessive and this Court should instead impose a suspension lasting anywhere from six months to one year.

On September 27, 2017, this Court issued an order to show cause directing Gilbert to show cause why he should not be suspended from the practice of law pending the final disposition of this case. Both Gilbert and The Florida Bar filed responses. After considering the responses, this Court suspended Gilbert until the resolution of this case.

ANALYSIS

First, we reject without further discussion Gilbert's arguments that the referee erred in finding him guilty of violating Bar Rules 3-4.3, 4-1.3, 4-8.4(c), 5-1.2(b)(6), and 5-1.2(c)(1).

As for the appropriateness of the recommended sanction, the Bar contends that Gilbert should be disbarred, while Gilbert conversely contends that a suspension from six months to one year would be appropriate. The standard of review for a referee's recommendation as to discipline is as follows:

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

Fla. Bar v. Ratiner , 46 So.3d 35, 39 (Fla. 2010).

The referee's recommended sanction in this case is a two-year suspension. In making his recommendation, the referee found four aggravating factors: a pattern of misconduct; multiple offenses; the vulnerability of the victim; and substantial experience in the practice of law. The most significant of these factors was that the misconduct spanned over four years, during which time Gilbert failed to properly supervise an employee whom he knew to have a criminal past. The referee found eight mitigating factors: absence of a prior disciplinary record; absence of dishonest or selfish motive; a timely good faith effort to make restitution or to rectify the consequences of the misconduct; full and free disclosure to the disciplinary board or a cooperative attitude toward the proceedings; good character or reputation; interim rehabilitation; the imposition of other penalties or sanctions; and remorse.

In relation to Gilbert's failure to supervise Sacks, the referee found Gilbert guilty of violating Bar Rules 4-1.3 (Diligence) ; 4-5.3(b) (Responsibilities Regarding Non-Lawyer Assistants-Supervisory Responsibility) and (c); 5-1.1(a) (Nature of Money or Property Entrusted to Attorney) and (b) (Application of Trust Funds to Specific Purpose); and 5-1.2(a) (Trust Accounting Records and Procedures-Applicability), (b) (Trust Accounting Records and Procedures-Minimum Trust Accounting Records), (c) (Trust Accounting Records and Procedures-Responsibility of Lawyers for Firm Trust Accounts and Reporting), and (d) (Trust Accounting Records and Procedures-Minimum Trust Accounting Procedures). With respect to Bar Rules 4-1.3, 4-5.3(b), and 4-5.3(c), the referee found:

When learning of the problem with the unsatisfied mortgage on February 7, 2014, [Gilbert] failed to act reasonably diligently and promptly by confronting Sacks to explain immediately why the mortgage had not been satisfied as required.... Sacks continued to come to work for six days thereafter yet [Gilbert] did little research of his own trust account records to determine what might have happened....
....
Sacks was a "confidence man," a "con man," to whom [Gilbert] was too willing to delegate, without properly supervising, the financial side of the law firm, especially the real estate closing side of the practice....
....
Clearly [Gilbert] did little more each month than have Sacks lead [his] eyes from one line on one of the documents to the next line on the next document that Sacks wanted [Gilbert] to see, obfuscating the entries Sacks did not want him to see, and [Gilbert's] review was done.
Spending five more minutes each month on any one of the months in question, would have been a much more effective use of [Gilbert's] time.

With respect to Bar Rules 5-1.1(a) and (b), and 5-1.2(a), (b), (c), and (d), the referee found violations of these rules because the documents prepared by Sacks were "monuments to fraud," and accordingly could never comply with the applicable Bar Rules. Indeed, this is a logical conclusion because fraudulent documents could never serve the purpose of these rules-safeguarding client property-as evidenced by this case.

According to the referee's report, "The most serious and damaging aspect of [Gilbert]'s lack of supervision concerns his failure to properly supervise his trust account." We agree. From February 2010 through March 2014, Sacks stole approximately $4.8 million from Gilbert's firm's trust account. There were 190 thefts by Sacks, over four years, averaging over $100,000 per month, which appeared on almost every bank statement which, despite his monthly review, went unnoticed and unquestioned by Gilbert.

Gilbert testified that he spent no more than two to four minutes monthly reviewing the bank statements, the only documents which would have clearly shown the thefts by Sacks. The referee found that Gilbert "allowed Sacks full rein over the real estate closing side of the practice." Instead of dividing financial responsibility and accountability, Gilbert "allowed Sacks to be solely responsible for multiple facets of the law firm's finances," including balancing books, preparing QuickBooks and trust account reconciliations, performing the duties of officer manager, Chief Financial Officer, and comptroller, and acting as the intermediary between the firm's CPA, Old Republic, and Gilbert.

Indeed, Gilbert's lack of supervision extended to Sacks' representations to and interactions with Gilbert's clients. As previously stated, instead of investigating Sacks' claims that he was a CPA and disbarred New York attorney, Gilbert allowed Sacks to display both "J.D." and "CPA" on his business cards with the firm and in his signature line in firm emails. Testimony presented at the disciplinary hearing indicated that these representations misled some of Gilbert's clients into thinking that Sacks was actually an attorney working for Gilbert's firm.

The referee found this lack of supervision to be an aggravating factor. Standard 4.41(c) states, "Disbarment is appropriate when ... a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client." Gilbert's conduct over the four-year period displays a pattern of extreme neglect.

Equally as serious are Gilbert's acts of dishonesty in this case. With respect to Gilbert's dishonesty, the referee found Gilbert guilty of violating Bar Rules 3-4.3 (Misconduct and Minor Misconduct) and 4-8.4(c) (Misconduct-Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation). With respect to these rule violations, the referee stated:

[Gilbert], although the intended victim of theft and forgery, failed to be honest with Probation Officer Feldman when asked why Sacks had been terminated .... [Gilbert] knew that had he answered the probation officer's inquiries honestly Sacks would have been charged with violating supervised release and re-incarcerated.... Instead, [Gilbert] intentionally thwarted the probation officer from fulling his lawful function ....
The argument that [Gilbert] had no legal obligation to be honest with the probation officer might be true for the "average citizen." However, the average citizen has not accepted the responsibility of being in a formal fiduciary relationship concerning the safeguarding of others' property.

The referee found that Gilbert fired Sacks after discovering his initial $20,000 theft from Gilbert's trust account. However, after sending Sacks to therapy, for which Gilbert paid, and determining that Sacks had been "rehabilitated," Gilbert rehired Sacks and proceeded to give him more control over the financial aspects of his firm. Incredibly, Gilbert testified during the disciplinary hearing that he lied to Sacks' probation officer, who attempted multiple times to ascertain the reason for Sacks' firing and rehiring, because he knew if he told the truth Sacks would be reincarcerated. Indeed, the referee found, and Officer Feldman testified that had Gilbert been honest with him regarding the incident, Officer Feldman would have revoked Sacks' probation, and the entire incident could have been avoided.

"This Court does not view violations of rule 4-8.4(c) as minor.... '[B]asic, fundamental dishonesty ... is a serious flaw, which cannot be tolerated.' " Fla. Bar v. Rousso , 117 So.3d 756, 767 (Fla. 2013) (quoting Fla. Bar v. Rotstein , 835 So.2d 241, 246 (Fla. 2002) ). The referee found Gilbert's dishonesty to the probation officer to be an aggravating factor. Standard 6.11(b) of the Florida Standards for Imposing Lawyer Sanctions is applicable and states: "Disbarment is appropriate when a lawyer ... improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding." Standard 5.11(f) is also applicable, and it instructs that "[d]isbarment is appropriate when ... a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice."

While the referee found that Rousso was not controlling, we consider Rousso to provide guidance in this case. In Rousso , a bookkeeper embezzled $4.38 million of the "100s of millions of dollars passed through" the respondents' trust account. Id. at 759. The evidence did not establish that the respondents misappropriated the funds, and the respondents "endeavored to honor every known client liability for trust account funds." Id. at 760. This Court ultimately found that disbarment, and not permanent disbarment, was the appropriate sanction. Id. at 769.

Gilbert's conduct was equally, if not more, egregious than that in Rousso . Gilbert hired and rehired a felon convicted of wire fraud, who had embezzled nearly $8 million. Gilbert never investigated the circumstances of Sacks' prior criminal conviction and never verified Sacks' assertions of his prior experience. He ignored the probation officer's warnings that Sacks should not be trusted in a position of financial responsibility. Then, shortly after his employment, Sacks stole from Gilbert and was rewarded by being reemployed and given more responsibility. Additionally, Gilbert lied to Officer Feldman, intentionally preventing Officer Feldman from, as the referee found, "fulfilling his lawful function with the eventual harm to dozens of individuals and entities and the loss of approximately $4.8 million."

For these same reasons, we also find unpersuasive Gilbert's contention that a suspension ranging from six months to one year is appropriate. Gilbert relies upon The Florida Bar v. Hines , 39 So.3d 1196 (Fla. 2010). However, Hines is not applicable here. Hines involved a one-time misappropriation of $128,802.68 that was immediately caught, and the person affected by the misappropriation was made whole. Id. at 1198. Here, there were more than 190 thefts, which took place over a four-year period, that totaled almost $5 million, and the largest creditor has yet to be made whole.

On the balance, although we do not ignore the mitigation found by the referee, we conclude that it does not outweigh the egregiousness of Gilbert's conduct. Given all of these circumstances, we conclude that the disciplinary sanction of disbarment is warranted and appropriately serves the three-pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the Respondent; and (3) it is severe enough to deter other attorneys from similar misconduct. See Fla. Bar v. Lawless , 640 So.2d 1098, 1100 (Fla. 1994).

CONCLUSION

Accordingly, Randall Lawrence Gilbert is hereby disbarred from the practice of law in the State of Florida. Because Gilbert is currently suspended, the disbarment is effective immediately. Gilbert shall fully comply with Rule Regulating the Florida Bar 3-5.1(g).

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Randall Lawrence Gilbert in the amount of $32,884.03, for which sum let execution issue.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Kenneth TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1458
    Supreme Court of Florida.
    [April 5, 2018]
    Kevin T. Beck of Law Office of Kevin T. Beck, P.A., St. Petersburg, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal by William Taylor from an order denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction over the appeal under article V, section 3(b)(1) of the Florida Constitution. For the reasons explained below, we affirm the postconviction court's denial of relief.

FACTUAL AND PROCEDURAL BACKGROUND

Taylor was found guilty of first-degree murder of Sandra Kushmer, attempted first-degree murder of William Maddox, robbery with a deadly weapon, robbery with a firearm, and armed burglary of a dwelling. See Taylor v. State (Taylor I ), 937 So.2d 590, 596 (Fla. 2006). After the penalty phase, the jury returned a recommendation of death by a vote of twelve to zero. Id. at 597. The trial court found the following aggravating circumstances: "(1) the murder was committed while Taylor was on felony probation; (2) Taylor had previously been convicted of a felony involving a threat of violence to the person; and (3) the murder was committed for pecuniary gain." Id. (citations omitted). Each aggravating circumstance was afforded great weight. Id. The trial court did not find that any statutory mitigators existed, but found thirteen nonstatutory mitigating circumstances. Id. The trial court concluded that the aggravating circumstances outweighed the mitigating circumstances and Taylor was sentenced to death. Id.

On direct appeal, Taylor raised one guilt phase claim and three penalty phase claims. Id. at 597-601. We denied Taylor's claims and upheld his convictions and sentence of death. Id. at 604. Taylor did not seek certiorari review, and his sentence became final upon expiration of the time to file a petition for writ of certiorari. See Fla. R. Crim. P. 3.851(d)(1)(A).

On October 9, 2006, Taylor filed a postconviction motion under Florida Rule of Criminal Procedure 3.851. Taylor v. State (Taylor II ), 87 So.3d 749, 756-57 (Fla. 2012). The postconviction court denied all of Taylor's postconviction claims. Id. at 757. Taylor also filed a petition for writ of habeas corpus. Id. at 753. We affirmed the postconviction court's denial of Taylor's rule 3.851 motion and denied Taylor's petition for a writ of habeas corpus. Id. at 765.

On January 9, 2017, Taylor filed a successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. The postconviction court denied Taylor's motion.

This appeal follows.

ANALYSIS

In this successive postconviction motion, Taylor raises two claims: (1) his death sentence violates the Sixth Amendment in light of Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), and Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) ; and (2) his death sentence violates the Eighth Amendment under Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). These issues present purely legal questions, which we review de novo. E.g. , Mosley v. State , 209 So.3d 1248, 1262 (Fla. 2016).

In Davis v. State , 207 So.3d 142 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017), we held that a jury's unanimous recommendation of death is "precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death" because a "jury unanimously f[inds] all of the necessary facts for the imposition of [a] death sentence[ ] by virtue of its unanimous recommendation[ ]." 207 So.3d at 175. This Court has consistently relied on Davis to deny Hurst relief to defendants who have received unanimous jury recommendations of death. See, e.g. , Smithers v. State , No. SC17-1283, 244 So.3d 152, 2018 WL 1531428 (Fla. Mar. 29, 2018) ; Grim v. State , No. SC17-1071, 244 So.3d 147, 2018 WL 1531121 (Fla. Mar. 29, 2018) ; Bevel v. State , 221 So.3d 1168, 1178 (Fla. 2017) ; Guardado v. Jones , 226 So.3d 213, 215 (Fla. 2017), cert. denied , ---- U.S. ----, 138 S.Ct. 1131, 200 L.Ed.3d 729 (2018) ; Cozzie v. State , 225 So.3d 717, 733 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 1131, 200 L.Ed.3d 729 (2018) ; Morris v. State , 219 So.3d 33, 46 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 452, 199 L.Ed.2d 334 (2017) ; Tundidor v. State , 221 So.3d 587, 607-08 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018) ; Oliver v. State , 214 So.3d 606, 617 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017) ; Truehill v. State , 211 So.3d 930, 956-57 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017). Taylor is among those defendants who received a unanimous jury recommendation of death, and his arguments do not compel departing from our precedent.

Accordingly, because we find that any Hurst error in this case was harmless beyond a reasonable doubt, we affirm the circuit court's order summarily denying Taylor's successive motion for postconviction relief.

Taylor also contends that a unanimous jury recommendation violates the Eighth Amendment pursuant to Caldwell , when a jury is repeatedly told that its role is advisory. Taylor's Caldwell claim is procedurally barred because it was raised and rejected on direct appeal. Taylor I , 937 So.2d at 599 ; e.g. , Dennis v. State , 109 So.3d 680, 692 (Fla. 2012) ("Dennis' claim ... is procedurally barred because it was raised and rejected on direct appeal.").

CONCLUSION

Accordingly, we affirm the postconviction court's denial of Taylor's motion for postconviction relief.

It is so ordered.

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

CANADY, J., concurs in result.


text:
    Willie Seth CRAIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC17-1475
    Supreme Court of Florida.
    [April 5, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Willie Seth Crain, Jr., appeals the postconviction court's denial of his successive motion for postconviction relief. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Crain's motion sought relief based on the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court's opinions in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), and Perry v. State , 210 So.3d 630 (Fla. 2016). For the reasons fully explained below, we affirm the postconviction court's denial of relief.

BACKGROUND

In 1999, a jury convicted Crain of first-degree murder and kidnapping with intent to commit or facilitate the commission of a homicide. Crain v. State , 894 So.2d 59, 62 (Fla. 2004), cert. denied , 546 U.S. 829, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005). On direct appeal, this Court explained the facts underlying Crain's crimes:

Willie Seth Crain, a then fifty-two-year-old Hillsborough County fisherman and crabber, was charged with the September 1998 kidnapping and first-degree murder of seven-year-old Amanda Brown. At the time, Amanda was three feet, ten inches tall and weighed approximately forty-five pounds.
....
[On the night of the crimes,] Crain mentioned that he had a large videotape collection and invited [the victim's mother,] Hartman and Amanda to his trailer to watch a movie. Amanda asked if he had "Titanic," which she stated was her favorite movie. Crain stated that he did have "Titanic" and Amanda pleaded with her mother to allow them to watch the movie. Hartman was initially reluctant because it was a school night, but she finally agreed. Crain drove Hartman and Amanda approximately one mile to his trailer in his white pickup truck.
....
At [one] point in the evening, Hartman asked Crain if he had any medication for pain. Crain offered her Elavil and Valium.... Hartman elected to take five, five-milligram Valium tablets. Crain took one Valium tablet.
Eventually, Hartman decided that it was time to leave. Crain drove Hartman and Amanda back to their residence and accompanied them inside....
According to Hartman, she told Crain, who appeared to be intoxicated at that time, that he could lie down and sober up but she was going to bed. The time was approximately 2:30 a.m. Within five minutes of Hartman going to bed, Crain entered Hartman's bedroom and lay down on the bed with Hartman and Amanda. Hartman testified that she neither invited Crain to lie in her bed nor asked him to leave. Crain was fully clothed and Amanda was wearing a nightgown. Amanda was lying between Hartman and Crain.
Penny Probst, a neighbor of Hartman, testified that at approximately 12 midnight on September 10-11, 1998, she saw a white truck parked immediately behind Hartman's car in Hartman's driveway. In the early morning hours of September 11, Probst observed the truck parked at the side of Hartman's residence with lights on and the engine running. Probst heard the truck leave after about five minutes.
Hartman slept soundly through the night. When she woke in her bed alone the next morning, she discovered that Amanda was missing. Hartman testified her alarm clock read 6:12 a.m. when she awoke. Hartman immediately called Crain on his cell phone. At that time, he was at the Courtney Campbell boat ramp in Hillsborough County loading his boat. He told Hartman he did not know where Amanda was. Hartman then called the police and reported Amanda's disappearance.

Id. at 62-64 (footnotes omitted).

Following the jury's unanimous recommendation for death, the trial court sentenced Crain to death, finding three aggravating factors and assigning each the noted weight: "(1) prior violent felonies (great weight), (2) the murder was committed during the course of a kidnapping (great weight), and (3) the victim was under the age of twelve (great weight)." Id. at 67. The trial court "found no statutory mitigators and eight nonstatutory" mitigating circumstances. Id.

On direct appeal in 2004, this Court affirmed Crain's first-degree murder conviction, finding sufficient evidence "to establish first-degree felony murder based on kidnapping with the intent to inflict bodily harm." Id. at 73. As to Crain's kidnapping conviction, this Court concluded that "competent, substantial evidence [did] not exist to support the jury verdict of kidnapping with intent to commit homicide." Id. at 76. Therefore, this Court "reverse[d] the judgment of guilt of kidnapping and direct[ed] the trial court on remand to enter judgment for false imprisonment, and to resentence Crain accordingly." Id. Crain's sentence of death became final in 2005.

In 2011, this Court explained its holding on direct appeal with respect to Crain's kidnapping conviction:

In contrast to the jury instruction on count I, which related to the murder charge and instructed the jury on alternative theories of kidnapping, on count II, the jury was not instructed on the unpled alternative of kidnapping with intent to inflict body [sic] harm. Thus, on appeal, when examining whether the evidence was legally sufficient to support a separate conviction for kidnapping as charged in count II of the indictment, this Court concluded that competent, substantial evidence did not exist to support the jury verdict of kidnapping with the intent to commit homicide . As to count I, however, we held that there was sufficient evidence to support a felony murder conviction under the alternative theory of kidnapping with the intent to inflict bodily harm .

Crain v. State , 78 So.3d 1025, 1032 n.3 (Fla. 2011) (citations omitted).

ANALYSIS

In this case, Crain argues that, despite this Court consistently holding that Hurst errors are harmless in cases where the jury unanimously recommended death, his case is different because: (1) the kidnapping aggravating factor was invalidated; (2) there was no finding that the murder was heinous, atrocious, or cruel (HAC) or cold, calculated, and premeditated (CCP); (3) the jury was given inaccurate instructions regarding its sentencing responsibility; and (4) the jury was not instructed on mercy. As we explain below, we reject Crain's arguments and conclude that the Hurst error in Crain's case was harmless beyond a reasonable doubt.

On remand from the United States Supreme Court in Hurst v. Florida , this Court held in Hurst :

[A]ll the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury. We reach this holding based on the mandate of Hurst v. Florida and on Florida's constitutional right to jury trial, considered in conjunction with our precedent concerning the requirement of jury unanimity as to the elements of a criminal offense. In capital cases in Florida, these specific findings required to be made by the jury include the existence of each aggravating factor that has been proven beyond a reasonable doubt, then finding that the aggravating factors are sufficient, and the finding that the aggravating factors outweigh the mitigating circumstances. We also hold, based on Florida's requirement for unanimity in jury verdicts, and under the Eighth Amendment to the United States Constitution, that in order for the trial court to impose a sentence of death, the jury's recommended sentence of death must be unanimous.

202 So.3d at 44. Hurst applies retroactively to Crain's sentence of death, which became final in 2005. See Mosley v. State , 209 So.3d 1248, 1283 (Fla. 2016).

This Court also determined that Hurst errors are subject to harmless error review. 202 So.3d at 67. In Davis v. State , 207 So.3d 142 (Fla. 2016), this Court explained that "it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors that outweighed the mitigating circumstances." Id. at 174. In Davis , emphasizing the jury's unanimous recommendation for death, this Court concluded that the Hurst error was harmless beyond a reasonable doubt, explaining:

Even though the jury was not informed that the finding that sufficient aggravating circumstances outweighed the mitigating circumstances must be unanimous, and even though it was instructed that it was not required to recommend death even if the aggravators outweighed the mitigators, the jury did, in fact, unanimously recommend death. From these instructions, we can conclude that the jury unanimously made the requisite factual findings to impose death before it issued the unanimous recommendations.

Id. at 174-75 (citation omitted). Since Davis , this Court has held in several cases that the jury's unanimous recommendation for death rendered the Hurst error harmless beyond a reasonable doubt.

The kidnapping aggravating factor in Crain's case remains valid because kidnapping with the intent to inflict bodily harm underlies Crain's first-degree felony murder conviction. See § 921.141(5)(d), Fla. Stat. (1997) (including "any: ... kidnapping"). Therefore, the jury properly considered this aggravating factor in making its sentencing recommendation. See Davis , 207 So.3d at 175. Thus, the jury's unanimous recommendation for death renders the Hurst error harmless beyond a reasonable doubt.

Finally, we have previously rejected Crain's other claims that the jury's unanimous recommendation for death is unreliable and the Hurst error is, therefore, not harmless beyond a reasonable doubt. See, e.g. , Reynolds v. State , No. SC17-793 (Fla. Apr. 5, 2018) (denying Caldwell claim); Morris v. State , 219 So.3d 33 (Fla.) (no CCP or HAC aggravating factor), cert. denied , --- U.S. ----, 138 S.Ct. 452, 199 L.Ed.2d 334 (2017). Thus, this Court can rely on the jury's unanimous recommendation for death to conclude that the Hurst error in Crain's case was harmless beyond a reasonable doubt.

CONCLUSION

Based on the jury's unanimous recommendation for death, we conclude that the Hurst error in Crain's case is harmless beyond a reasonable doubt. Accordingly, we affirm the postconviction court's order denying his successive motion for postconviction relief.

It is so ordered.

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

CANADY and POLSTON, JJ., concur in result.

      See Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

      See, e.g. , Guardado v. Jones , 226 So.3d 213 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 1131, 200 L.Ed.3d 729 (2018); Middleton v. State , 220 So.3d 1152 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018) ; Jones v. State , 212 So.3d 321 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 175, 199 L.Ed.2d 103 (2017) ; Hall v. State , 212 So.3d 1001 (Fla. 2017) ; Knight v. State , 225 So.3d 661 (Fla. 2017), cert. denied , No. 17-7099, --- U.S. ----, 138 S.Ct. 1285, 200 L.Ed.2d 477, 2018 WL 1369193 (U.S. Mar. 19, 2018) ; Kaczmar v. State , 228 So.3d 1 (Fla. 2017), petition for cert. filed , No. 17-8148 (U.S. Mar. 14, 2018).


author: PER CURIAM. PARIENTE, J., dissenting.

text:
    Enoch D. HALL, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1355
    Supreme Court of Florida.
    [April 12, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order denying a Successive Motion to Vacate Death Sentence pursuant to Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, we have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

FACTS AND BACKGROUND

This Court has previously detailed the underlying facts of this case. Hall v. State (Hall I ), 107 So.3d 262, 267-71 (Fla. 2012). Relevant to the instant proceeding, Hall, an inmate at Tomoka Correctional Institution (TCI), was convicted and sentenced to death for the first-degree murder of Correctional Officer (CO) Donna Fitzgerald. Hall v. State (Hall II ), 212 So.3d 1001, 1009 (Fla. 2017). After a penalty phase, the jury returned a unanimous death sentence. Id. at 1012. Hall appealed, and this Court ultimately affirmed his conviction and sentence. See generally Hall I , 107 So.3d 262. On October 7, 2013, the United States Supreme Court denied certiorari, Hall v. Florida , 571 U.S. 878, 134 S.Ct. 203, 187 L.Ed.2d 137 (2013) ; thus Hall's case became final on that date.

This Court affirmed the denial of Hall's initial motion for postconviction relief and denied his petition for writ of habeas corpus. Hall II , 212 So.3d at 1036. During the pendency of his initial postconviction motion, Hall filed a Successive Motion to Vacate Death Sentence pursuant to Hurst , which was denied by the postconviction court. This appeal from the first successive motion for postconviction relief follows.

ANALYSIS

Hall's Claims for Relief under Hurst v. State

We affirm the postconviction court's denial of relief on this claim for the reasons discussed below. Most importantly, our opinion in Hall II , and our corresponding Hurst harmless error analysis denying relief within that opinion, already addressed the issues that Hall now attempts to present.

CCP Aggravator Stricken

We conclude that this subclaim of Hall's successive postconviction motion fails on the merits. Notably, aside from Wood v. State , 209 So.3d 1217, 1234 (Fla. 2017), which is distinguished below, Hall presents no binding precedent that supports his assertion that the stricken CCP aggravator in his case is sufficient to receive Hurst relief. Moreover, as discussed below, our recent decisions in Middleton v. State , 220 So.3d 1152 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018), and Cozzie v. State , 225 So.3d 717, 729 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 1131, 200 L.E.2d 729 (2018), support the contrary conclusion.

In Wood , we struck both the CCP and avoid arrest aggravating factors, which were two of the three aggravators found by the trial court and to which it assigned "great weight." Id. at 1233. In ultimately determining that the error in Wood was not harmless, we emphasized:

In this case the jury was instructed on both aggravating factors that we have determined were not supported by competent, substantial evidence. This alone would require a finding that the error was not harmless beyond a reasonable doubt. We note that our conclusion in this regard is also consistent with our pre- Hurst precedent in Kaczmar v. State , 104 So.3d 990, 1008 (Fla. 2012), where we held that, upon striking the CCP and felony-murder aggravating factors so that only one valid aggravating factor remained , such error was not harmless beyond a reasonable doubt. Post- Hurst , this conclusion is even more compelling.
... [T]he jury would have had to make these factual determinations that the sole valid aggravating factor -that the capital felony was committed while Wood was engaged, or was an accomplice in the commission of a burglary and or robbery-outweighed the mitigating circumstances established. "[W]e are not so sanguine as to conclude that [Wood's] jury ... would have found [this sole aggravating factor ] sufficient to impose death and that [this sole aggravating factor ] outweighed the mitigation."

Id. at 1234 (alterations in original) (emphasis added) (quoting Hurst , 202 So.3d at 68 ). In determining that the error was harmful, we repeatedly emphasized that our conclusion was influenced by the fact that two of the three aggravators presented were stricken, leaving only one valid aggravating factor for the jury to properly consider. Thus the harmless error analysis in Wood was based on the Court's determination that the remaining sole valid aggravating factor was not sufficient to support the sentence of death.

Wood is distinguishable from Hall's case for numerous reasons. Firstly, even after striking the CCP aggravator, Hall had four valid remaining aggravators, all of which were afforded either "great weight" or "very great weight," as opposed to the one remaining aggravator found in Wood . Secondly, three of the remaining aggravators found in Hall's case (i.e., under sentence of imprisonment, previously convicted of another violent felony, and the victim was a law enforcement officer) were without dispute. Thus as we stated in our harmless error analysis in Hall II ,

Presuming that the jury did its job as instructed by the trial court, we are convinced that it would have still found the aggravators greatly outweighed the mitigators in this case. Indeed, it is inconceivable that a jury would not have found the aggravation in Hall's case unanimously, especially given the fact that three of the aggravators found were automatic ....

212 So.3d at 1035. It is also worth noting that this Court, in conducting its harmless error analysis in Hall II , did not include the invalidated CCP aggravator in its analysis. Id. Instead, we found that the Hurst error, as it related to Hall's case, was harmless, even without the stricken CCP aggravator. Id. Thus we conclude that Wood is distinguishable from Hall's case.

Two other cases recently decided by our Court, Middleton and Cozzie , also lend support to the postconviction court's denial of this subclaim of Hall's successive postconviction motion.

Middleton involved a unanimous jury recommendation of death, where this Court ultimately struck the avoid arrest and CCP aggravators. 220 So.3d at 1172. There, we explained:

"When this Court strikes an aggravating factor on appeal, 'the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence.' " Williams v. State , 967 So.2d 735, 765 (Fla. 2007) (quoting Jennings v. State , 782 So.2d 853, 863 n.9 (Fla. 2001) ); see also Diaz v. State , 860 So.2d 960, 968 (Fla. 2003) ("We find this error harmless, however, after consideration of the two remaining aggravating circumstances and the five mitigating circumstances in this case."). Despite striking the avoid arrest and CCP aggravators, two valid aggravators remain in this unanimous death-recommendation case. The two aggravators which remain are that the murder was especially heinous, atrocious, or cruel (HAC) and that is was committed during the commission of a burglary and for pecuniary gain, which were each given "great weight" by the trial court.

Id. In finding that the error in Middleton was harmless, we noted that there was no statutory mitigation and that "the trial court expressly stated that any of the considered aggravating circumstances found in this case, standing alone, would be sufficient to outweigh the mitigation in total presented." Id. Thus because there was no reasonable possibility that the erroneous aggravators contributed to Middleton's sentence, we ultimately concluded that any errors there were harmless. Id.

Hall's case is similar to Middleton because significant aggravation remained, even without the stricken CCP aggravator, that "far outweighed the mitigation." Hall I , 107 So.3d at 271. Furthermore, three of the remaining aggravators present in Hall are without and beyond dispute. The fourth aggravator that remains, HAC, is one of the weightiest in Florida, see Jackson v. State , 18 So.3d 1016, 1035 (Fla. 2009), and was afforded "very great weight" by the trial court. Thus we conclude, as we have previously in Hall's initial postconviction case, that any error in Hall's case, like the errors in Middleton , was harmless. See Hall II , 212 So.3d at 1035-36 (finding any Hurst error harmless).

Similarly, in Cozzie , we determined that "[e]ven if the avoid arrest aggravator were stricken ... the unanimous death recommendation would still remain, along with the aggravators of CCP, HAC, and in the course of a felony, which are among the weightiest aggravators in our capital sentencing scheme." 225 So.3d at 729. Furthermore, the remaining aggravators in Cozzie were afforded "great weight" by the trial court. Id. Thus we ultimately determined that "any possible error was harmless because there was not a reasonable possibility that [Cozzie] would have received a life sentence without the trial court finding of the [avoid arrest] aggravator." Id. (alterations in original) (quoting Aguirre-Jarquin v. State , 9 So.3d 593, 608 (Fla. 2009) ).

Hall has significant and weighty aggravation beyond the invalidated CCP aggravator. Further, the trial court in both Cozzie and here concluded that the aggravating circumstances "far outweigh[ed]" the mitigating circumstances. Id. at 725 ; see Hall I , 107 So.3d at 271. Thus we conclude that Cozzie is factually similar to Hall's case.

Both Hall and the dissent attempt to conflate nonbinding, dissenting opinions with our binding post- Hurst death penalty precedent. However, as discussed above, our binding precedent dictates our conclusion that Hall's stricken CCP aggravator is harmless beyond a reasonable doubt.

We deny this subclaim of Hall's successive postconviction motion.

Mental Health Mitigation Presentation

We deny this subclaim in the successive postconviction motion because this Court has already heard and addressed the mental health mitigation in Hall's initial postconviction motion. Thus this claim is procedurally barred. In addition, even when considered on the merits, we conclude that this subclaim fails.

In his initial postconviction motion, Hall extensively asserted the claim that trial counsel was ineffective for not presenting mental health mitigation to the jury. Similarly, in our opinion on Hall's initial postconviction motion, we addressed the issue and determined that the trial court's ruling on counsel's strategy was supported by competent, substantial evidence. Hall II , 212 So.3d at 1027-29. Thus we conclude that this subclaim is procedurally barred, as it was raised and denied on Hall's previous postconviction motion. See Hunter v. State , 29 So.3d 256, 267 (Fla. 2008).

Nevertheless, we also conclude that the subclaim should be denied on the merits. Primarily, under Hurst harmless error, this Court must look to the potential effect on the trier-of-fact, not on the potential effect on trial counsel's trial strategy. Hurst , 202 So.3d at 68-69. Additionally, we have previously held that trial counsel is not required to anticipate changes in the law to provide effective legal representation. See Lebron v. State , 135 So.3d 1040, 1054 (Fla. 2014) ("This Court has 'consistently held that trial counsel cannot be held ineffective for failing to anticipate changes in the law.' " (quoting Cherry v. State , 781 So.2d 1040, 1053 (Fla. 2000) ) ). Furthermore, under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), claims of ineffective assistance of counsel are assessed under the law in effect at the time of the trial. Id. at 689, 104 S.Ct. 2052. Thus we conclude that Hall's subclaim also fails on the merits.

Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) .

We deny this subclaim of Hall's successive postconviction motion because it fails on the merits. We have repeatedly rejected Caldwell challenges to the advisory standard jury instructions in the past. See, e.g. , Rigterink v. State , 66 So.3d 866, 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663, 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613, 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34, 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009, 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274, 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646, 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637, 647 (Fla. 1995). Additionally, as discussed in detail in our recent opinion in Reynolds v. State , No. SC17-793, --- So.3d ----, 2018 WL 1633075 (Fla. Apr. 5, 2018) (plurality opinion), we have now expressly rejected these post-Hurst Caldwell claims. See also Franklin v. State , 43 Fla. L. Weekly S86, 236 So.3d 989 (Feb. 15, 2018). Thus we deny relief on this subclaim of Hall's successive postconviction motion.

Hall's Sentence Violates Due Process

We deny this subclaim of Hall's successive postconviction motion because we have already addressed a Hurst harmless error analysis as it pertains to Hall's case in Hall II, 212 So.3d at 1033-36. Thus this subclaim is duplicative.

Furthermore, the authority upon which Hall relies in support of his argument, In re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), is not determinative. The United States Supreme Court, in In re Winship , held that the State must prove all elements of a crime in a juvenile delinquency proceeding beyond a reasonable doubt, just as it would in an adult criminal proceeding, and that the failure to do so would result in a due process violation. 397 U.S. at 367-68, 90 S.Ct. 1068. We conclude that In re Winship is distinguishable from Hall's case, however, because Hall's case does not concern a juvenile delinquency proceeding. Moreover, although Hurst did result in the requirement that all aggravators and mitigators be proven beyond a reasonable doubt, as we previously stated in Hall II , the error in Hall's case was harmless. See 212 So.3d at 1033-36 (discussing how the error was harmless due to Hall's unanimous death sentence). Thus we conclude that Hall's death sentence does not violate due process and thus hold that this subclaim is meritless.

Hall's Death Sentence Violates the Eighth Amendment

We deny this claim of Hall's successive postconviction motion because there was no harmful error in this case. Hall II , 212 So.3d at 1036. In Hurst , we held that unanimity is required under the Eighth Amendment. Similarly, we have determined that defendants whose sentences became final post-Ring and who received unanimous jury recommendations are not entitled to Hurst relief if the error is deemed to be harmless pursuant to Davis v. State , 207 So.3d 142, 173-75 (Fla. 2016). Hall's jury returned a unanimous recommendation, Hall I , 107 So.3d at 270, his sentence became final after Ring , see Hall v. Florida , 571 U.S. 878, 134 S.Ct. 203, 187 L.Ed.2d 137, and the Hurst error was harmless. Therefore, we deny this claim of Hall's successive postconviction motion.

Hall's Indictment

Finally, Hall's argument with regard to his indictment also fails. Hall argues that he was denied his right to a proper indictment because the grand jury indictment in his case did not list the aggravators. However, "this Court has repeatedly rejected the argument that aggravating circumstances must be alleged in the indictment." Pham v. State , 70 So.3d 485, 496 (Fla. 2011) (citing Rogers v. State , 957 So.2d 538, 554 (Fla. 2007) ; Coday v. State , 946 So.2d 988, 1006 (Fla. 2006) ; Ibar v. State , 938 So.2d 451, 473 (Fla. 2006) ; Blackwelder v. State , 851 So.2d 650, 654 (Fla. 2003) ; Kormondy v. State , 845 So.2d 41, 54 (Fla. 2003) ). Nothing in Hurst indicates that our holding impacted this settled point of law; and we have also held prior to Hurst that "neither Apprendi nor Ring requires that aggravating circumstances be charged in the indictment." Rogers , 957 So.2d at 554. Therefore, Hall's indictment claim fails.

CONCLUSION

For the reasons set forth above, we affirm the postconviction court's order denying Hall relief on his successive motion for postconviction relief.

It is so ordered.

LABARGA, C.J., and LEWIS and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

PARIENTE, J., dissenting.

In Hall v. State (Hall II ), 212 So.3d 1001 (Fla. 2017), this Court denied Hall relief under Hurst based on the jury's unanimous recommendation for death. 212 So.3d at 1035. That opinion, which focused solely on the jury's unanimous recommendation for death, did not discuss the effect of the stricken cold, calculated, and premeditated (CCP) aggravator on the Hurst harmless error analysis.

In Hall II , I concurred in result without an opinion, and Justice Quince dissented as to the majority's denial of Hurst relief, explaining that some of the aggravating factors required a factual determination that this Court could not assume the jury made unanimously despite the jury's unanimous recommendation for death. 212 So.3d at 1036-37 (Quince, J., concurring in part and dissenting in part). Concurring in result in Hall II , I did not consider the effect of the stricken CCP aggravator on this Court's Hurst harmless error analysis.

In this case, the per curiam opinion addresses the stricken CCP aggravating factor and finds our opinion in Wood v. State , 209 So.3d 1217 (Fla. 2017), distinguishable. Per curiam op. at 213-14. Although Wood's death sentence was reversed on proportionality grounds, Wood , 209 So.3d at 1221, as I explained on rehearing in Middleton v. State , 42 Fla. L. Weekly S637, 2017 WL 2374697 (Fla. June 1, 2017), this Court's opinion in Wood supports the conclusion that a stricken aggravating factor affects the Hurst harmless error analysis. Id. at S637-38, *1 (Pariente, J., dissenting).

In Wood , this Court stated: "Our inquiry post- Hurst must necessarily be the effect of any error on the jury's findings, rather than whether beyond a reasonable doubt the trial judge would have still imposed death." 209 So.3d at 1233. Applying this statement on rehearing in Middleton , I explained the "serious[ ] flaw[ ]" in the majority's harmless error analysis:

Instead of focusing on the effect of the error on the jury, the majority opinion conducted an erroneous and contradictory harmless error analysis that did not consider the effect of striking two of the four aggravating factors-avoid arrest and CCP-on the jury and instead focused on the effect the improper aggravators had on the trial court.... When the correct harmless error analysis, pursuant to our precedent, is conducted, I conclude that Middleton is entitled to a new penalty phase.
Without even referencing, much less considering, the two stricken aggravators, the majority relied only on the jury's unanimous verdict to determine that the Hurst error in Middleton's case was harmless beyond a reasonable doubt. Regardless of whether the failure to consider the effect of the two stricken aggravators on the jury was an oversight, it is clear that the analysis is incomplete .

Middleton , 42 Fla. L. Weekly at S638, 2017 WL 2374697, at *1 (Pariente, J., dissenting) (citations omitted) (emphasis added). Like in Middleton , in denying Hall Hurst relief in Hall II , this Court did not consider the effect of the stricken CCP aggravating factor. Per curiam op. at 214.

As I also explained in Middleton , a stricken aggravating factor significantly affects the Hurst harmless error analysis:

Indeed, the essence of the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), was refocusing Florida's capital sentencing scheme on the jury .... Id. at 624. As this Court stated in [State v. DiGuilio] DiGuilio v. State , 491 So.2d 1129 (Fla. 1986), "Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact." Id. at 1139. Therefore, in determining whether the Hurst error ... was harmless beyond a reasonable doubt, we must focus on how the stricken aggravating factors could have affected the jury's recommendation for death....
Because the jury ... was instructed on the ... aggravating factors that this Court determined were not supported by competent, substantial evidence, this Court must consider the impact that the inappropriate aggravating factors had on the jury's ultimate verdict in determining whether the Hurst error was harmless beyond a reasonable doubt. Despite the jury's unanimous recommendation for death, this Court has no way of knowing that the jury would have reached the same verdict if it had been instructed on only the ... valid aggravators .... Nor can we assume that the jury would have unanimously found the remaining aggravators sufficient to impose death or unanimously found that the aggravation (without the two stricken aggravating factors) outweighed the mitigation.
In short, it is sheer speculation to assume that even without [the stricken] aggravators, the jury would have still unanimously recommended death. Thus, the Court is in no position to conclude that the unanimous jury recommendation renders the Hurst error harmless beyond a reasonable doubt.

Middleton , 42 Fla. L. Weekly at S638, 2017 WL (Pariente, J., dissenting) (emphasis added) (citations omitted).

Likewise, in Hall's case, this Court has no way of knowing whether the unsupported CCP aggravating factor contributed to the jury's unanimous recommendation for death, or whether it affected the jury's conclusion that the aggravating factors were sufficient to impose death and that the aggravation outweighed the mitigation. See Hurst , 202 So.3d at 44. In fact, the stricken aggravating factor in Hall's case "is among the most serious aggravators set out in the statutory sentencing scheme." Wood , 209 So.3d at 1228 (quoting Deparvine v. State , 995 So.2d 351, 381 (Fla. 2008) ). Thus, I would conclude that because of the stricken CCP aggravating factor in Hall's case, the State cannot establish that the Hurst error is harmless beyond a reasonable doubt and would grant Hall a new penalty phase.

Accordingly, I dissent.

QUINCE, J., concurs.

      As we stated in Hall I ,
      In the trial court's Sentencing Order, the court found five aggravators: (1) previously convicted of a felony and under sentence of imprisonment-great weight; (2) previously convicted of another capital felony or of a felony involving the use or threat of violence to the person-great weight; (3) committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws-great weight; (4) especially heinous, atrocious or cruel [ (HAC) ]-very great weight; (5) cold, calculated, and premeditated [ (CCP) ]-very great weight; (6) the victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties-no weight-merged with aggravator number 3 as listed above. In mitigation, the sentencing court found no statutory mitigators and eight non-statutory mitigating circumstances: (1) Hall was a good son and brother-some weight; (2) Hall's family loves him-little weight; (3) Hall was a good athlete who won awards and medals-little weight; (4) Hall was a victim of sexual abuse-some weight; (5) Hall was productively employed while in prison-some weight; (6) Hall cooperated with law enforcement-some weight; (7) Hall showed remorse-little weight; and (8) Hall displayed appropriate courtroom behavior-little weight. The trial court concluded that the aggravating circumstances far outweighed the mitigation and gave great weight to the jury's unanimous recommendation of death. Thus, the trial court imposed the sentence of death.
      Hall I , 107 So.3d at 270-71.

      We did, however, find that the trial court's finding of the CCP aggravator was not supported by competent, substantial evidence, and thus it was stricken. Hall I , 107 So.3d at 278-79.

      Ultimately, in Wood , we did not order a new penalty phase because we determined that Wood's death sentence was a disproportionate punishment when the aggravators were stricken. 209 So.3d at 1234.

      "(1) [P]reviously convicted of a felony and under sentence of imprisonment-great weight; (2) previously convicted of another capital felony or of a felony involving the use or threat of violence to the person-great weight; (3) committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws-great weight; (4) especially heinous, atrocious or cruel-very great weight; [and] (5) ... the victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties-no weight-merged with aggravator number 3 as listed above." Hall I , 107 So.3d at 270-71.

      The trial court in Middleton found eleven nonstatutory mitigators, all of which were afforded "some weight" or "little weight." 220 So.3d at 1173.

      The trial court found one statutory mitigator and twenty-five nonstatutory mitigators in Cozzie . Ultimately, the trial court, in weighing the aggravation and mitigation in Cozzie , concluded that the aggravators "far outweighed" the mitigators in sentencing Cozzie to death. 225 So.3d at 726.

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

      Despite having already denied Hall Hurst relief, this Court has addressed more than one request for Hurst relief from multiple defendants based on alternative arguments under the Sixth and Eighth Amendments. See Hitchcock v. State , 226 So.3d 216, 217 n.2 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).