Citations:

Tompkins v. State, 483 So.2d 115 (Fla.App.2 1986) (Sexual Battery).
Tompkins v. State, 502 So.2d 415 (Fla. 1986) (Direct Appeal).
Tompkins v. Dugger, 549 So.2d 1370 (Fla. 1989) (PCR).
Tompkins v. State, 872 So.2d 23 (Fla. 2003) (PCR).
Tompkins v. State, 894 So.2d 857 (Fla. 2005) (Successive PCR).

Final / Special Meal:

He ate a last meal of fried chicken and banana split ice cream, using only the single spoon the state allows.

Final Words:

When asked whether he had a final statement, Tompkins said, "I am good."

Florida Department of Corrections

DC Number: 099350
Name: TOMPKINS, WAYNE
Race: WHITE
Sex: MALE
Hair Color: BROWN
Eye Color: BROWN
Height: 5' 10''
Weight: 182 lbs.
Birth Date: 03/12/1957
Current Release Date: DEATH SENTENCE

05/13/1984 KIDNAP;COMM.OR FAC.FELONY 11/29/1984 PASCO 8401131 8Y 0M 0D
05/13/1984 SEX BAT/ WPN. OR FORCE 11/29/1984 PASCO 8401131 8Y 0M 0D
04/07/1984 ROBB. GUN/DEADLY WPN 01/14/1985 PASCO 8401137 9Y 0M 0D
04/07/1984 KIDNAP;COMM.OR FAC.FELONY 01/14/1985 PASCO 8401137 9Y 0M 0D
04/07/1984 SEX BAT/COERCES BY THREAT 01/14/1985 PASCO 8401137 9Y 0M 0D
03/24/1983 1ST DG MUR/PREMED. OR ATT. 09/19/1985 HILLSBOROUGH 8410538 DEATH SENTENCE

Wayne Tompkins

Florida Commission on Capital Cases

DC#    099350
DOB:   03/12/57

Thirteenth Judicial Circuit, Hillsborough County, Case #84-10538
Sentencing Judge: The Honorable Harry Lee Coe III
Trial Attorney: Daniel M. Hernandez
Direct Appeal: Robert F. Moeller
Collateral Appeals: Martin McClain and Todd Scher – CCRC-S

Date of Offense:  03/24/83

Date of Sentence:  09/19/85

Circumstances of Offense:

Approximately two years prior to the offense, the defendant had lived with the sixteen- year- old victim’s mother, and her other children. The relationship between the defendant and the victim’s mother, his girlfriend, was characterized as a difficult relationship.

On the day of the offense, the victim’s mother and the defendant were at the defendant’s mother’s house assisting her in packing to move.  The defendant went home several times during the day to obtain newspapers to use in packing. The defendant returned later in the day, after going home, and reported that the victim had “run away.”

The victim’s friend, who went to the victim’s residence that day, stated she observed the defendant on top of the victim. She claimed the victim was struggling and screaming for help, and the subject was fondling her and pulling at her bathrobe.  The friend, however, did not report the incident to the police until the investigation was underway.

The defendant admitted to his cellmate, in 1985, that he forcefully attempted to have sexual intercourse with the victim, who resisted his advances and fought him.

The defendant claimed that due to the victim’s resistance, he strangled her and then buried her under their residence. Medical testimony indicated that the cause of death was asphyxiation by strangulation.

On June 5, 1984, the decomposed body was found buried underneath the residence.

Additional Information:

The subject was arrested and convicted of two additional felony offenses and sentenced prior to the capital offense. 

On May 13, 1984, the subject robbed a convenience store clerk at knifepoint and sexually assaulted her.

On April 7, 1984, the subject went into a convenience store and robbed the female clerk, abducted her at knifepoint and sexually assaulted her. 

Trial Summary:

05/30/84 Tompkins was arrested in Pasco County on other charges.

09/14/84 Tompkins was arrested on the murder charge after being transferred to the Hillsborough County Jail.

10/31/84 Court appointed Cass Michael Castillo as private counsel to represent Tompkins.

01/08/85 Court granted Motion to Withdraw filed by attorney Cass Michael Castillo who accepted position with State Attorney.

04/22/85 Court granted Motion to Withdraw filed by attorney James V. Dominguez for personal reasons.

09/19/85 Tompkins was found guilty by the trial jury. The jury, by a vote of 12-0, recommended the death penalty.

09/19/85 The defendant was sentenced on Count I: Murder in the First Degree – Death

Appellate Summary:

Florida Supreme Court – Direct Appeal FSC #67,974 (502 So.2d 415)

United States Supreme Court – Petition for Writ of Certiorari USSC #86-6921 (483 U.S. 1033)

Florida Supreme Court – Petition for Writ of Habeas Corpus FSC #74,098 (549 So.2d 1370)

State Circuit Court – 3.850 Motion CC #84-10538A (05/22/89 Motion denied)

Florida Supreme Court – Appeal of 3.850 Denial FSC #74,235 (594 So.2d 1370)

United States Supreme Court – Petition for Writ of Certiorari USSC #89-6166 (493 U.S. 1093)

United States District Court (Middle District) – Petition for Writ of Habeas Corpus USDC #89-1638-Civ-T-21B
12/11/89 Petition filed.
04/17/98 USDC denied petition.
United States Court of Appeals (11th Circuit) – Appeal of Habeas Denial USCA #98-3367 (193 F. 3d 1327)

United States Supreme Court – Petition for Writ of Certiorari USSC #99-10113 (531 U.S. 861)

State Circuit Court – 3.850 Motion CC #84-10538A

Florida Supreme Court, Appeal of 3.850 Denial FSC# 01-1619 (872 So.2d 230 (2003))

Florida Supreme Court – 3.853 Motion Appeal FSC# 03-1902 (894 So. 2d 857)

Florida Supreme Court – Petition for Writ of Habeas Corpus FSC# 04-519 (895 So. 2d 1068)

Florida Supreme Court – 3.850 Motion Appeal FSC# 06-277 (980 So.2d 451)

United States Supreme Court – Petition for Writ of Certiorari SSC# 07-7171 (128 S.Ct. 895 (2008))

Florida Supreme Court – 3.851 Motion Appeal FSC# 08-992 (994 So.2d 1072)

Florida Supreme Court – 3.851 Motion Appeal FSC# 08-1979 (994 So.2d 1072)

Florida Supreme Court – All Writs Petition FSC# 08-2000 (994 So.2d 1072)

United States District Court (Middle District) – Habeas Petition USDC# 08-2212

United State Supreme Court – Certiorari Petition USSC# 08-8614 (Pending)

Clemency 03/23/88 Hearing held before the Executive Clemency Board. (Denied)

Execution scheduled for Wednesday, February 11, 2009, at 6:00 p.m.

Factors Contributing to the Delay in Imposition of Sentence: The delay in execution of sentence may be attributed to the amount of time that it took to process the defendant’s federal Habeas petition, which was filed in 1989 and subsequently denied in 1998.

Case History:

Tompkins filed his Direct Appeal on 12/02/85. The Florida Supreme Court affirmed his conviction and sentence on 12/30/86. Tompkins challenged his conviction on four claims, the inappropriate admission of his confession to his cellmate, who was allegedly acting as a state agent, the Court violated the defendant’s right to cross-examine certain witnesses, the trial court erred in allowing the State to illicit certain testimony from the victim’s mother on redirect examination, and the argument that death qualified juries are unconstitutional. Tompkins additionally claimed that the trial court made six errors during the penalty phase. The Florida Supreme Court found no reversible errors and subsequently affirmed the conviction and sentence. Tompkins filed a Petition for Writ of Certiorari, which was denied on 06/26/87.

Tompkins simultaneously filed a Petition for Habeas Corpus in the Florida Supreme Court and a 3.850 Motion in State Circuit Court on 05/01/89. The trial court denied the motion on 05/22/89. Tompkins then filed an appeal of the Trial Court’s denial of the 3.850 motion to the Florida Supreme Court. In his 3.850 Motion, one of the nineteen claims that Tompkins raised was ineffective assistance of counsel. This argument encompassed five claims. The trial court found and the Supreme Court agreed that the trial attorney was deficient in investigating and presenting evidence of mitigation in the penalty phase. The trial court held that the mitigating evidence overlooked by the trial counsel would not have changed the outcome of the trial. On 09/14/89, the Florida Supreme Court denied the Habeas Petition and affirmed the Trial Court’s 3.850 denial. Certiorari in the United States Supreme Court was denied on 02/20/90.

Tompkins filed a Petition for Habeas Corpus in The United State’s District Court on 12/11/89. This appeal remained pending in this court until 04/17/98 when the District Court denied the petition. Tompkins appealed this denial to the United States Court of Appeals on 09/30/98. The Court of Appeals affirmed the District Court’s denial on 10/29/99, and denied the motion for rehearing on 12/10/99. A Mandate was issued on 01/25/00. Tompkins filed a Petition for Writ of Certiorari on 06/12/00 that was denied on 10/02/00.

Governor Jeb Bush signed a Death Warrant on 03/22/01.

Tompkins filed a 3.850 Motion in circuit court on 04/16/01. The court held a Huff hearing on 04/17/01. An Evidentiary hearing was held on 04/18/01.On 04/19/01 the court granted a Stay of Execution, and on 04/25/01 the court entered an Order granting, in part, and denying, in part, Tompkins motion and granting a new penalty phase.

Tompkins filed a 3.850 Appeal with the Florida Supreme Court on 07/27/02. On 10/09/03, the Florida Supreme Court affirmed the portion denying the 3.850 motion and reversed the portion granting a new penalty phase.

Tompkins filed 3.850 and 3.853 (DNA) motions in the circuit court on 02/05/03. Both motions were dismissed 08/22/03.

Tompkins filed a 3.853 (DNA) Appeal in the Florida Supreme Court on 10/24/04. On 01/20/05, the Florida Supreme Court affirmed the denial of Tompkins 3.853 Appeal and granted 60 days to re-file a successive motion.

Tompkins filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 03/26/04. He raised claims based on Wiggins v. Smith, Crawford v. Washington and Ring v. Arizona. The petition was denied on 12/21/04.

On 03/18/05, Tompkins filed a 3.850 Motion in the Circuit Court. The motion was denied on 10/05/05.

On 02/10/06, Tompkins filed a 3.850 Motion Appeal in the Florida Supreme Court. On 05/10/07, the FSC affirmed the denial of the motion. Tompkins’ Motion for Rehearing was denied 07/16/07. The Florida Supreme Court issued a mandate in this case on 08/02/07.

On 08/29/07, Tompkins filed a 3.851 Motion in the Circuit Court and an amended motion on 12/21/07. This motion was denied on 03/18/08. On 04/02/08, Tompkins filed a Motion for Rehearing in the Circuit Court; this motion was denied on 04/08/08.

On 10/15/07, Tompkins filed a petition for Writ of Certiorari in the United States Supreme Court. This petition was denied on 01/07/08.

On 05/29/08, Tompkins filed a 3.851 Appeal in the Florida Supreme Court. On 10/06/08, the Florida Supreme Court granted a stay of execution. On 11/07/08, the Florida Supreme Court affirmed the disposition of the lower court and entered a mandate in this case. On 11/13/08, the stay of execution was lifted.

On 10/15/08, Tompkins filed a 3.851 Motion in the State Circuit Court. This motion was denied on 10/21/08.

On 10/22/08, Tompkins filed a 3.851 Appeal in the Florida Supreme Court. On 11/07/08, the Florida Supreme Court affirmed the disposition of the lower court and entered a mandate in this case.

On 10/24/08, Tompkins filed a Petition to Invoke the Court’s All Writs Jurisdiction. On 11/07/08, the Florida Supreme Court denied this petition.

On 11/04/08, Tompkins filed a Habeas Petition in the United States District Court, Middle District. On 11/05/08, the Florida Department of Corrections filed a motion to dismiss this petition. On 11/07/08, the United States District Court dismissed this petition and on 11/10/08 entered an Amended Order dismissing this petition. On 11/19/08, Topkins filed a Motion to Alter or Amend, which was denied on 11/25/08.

On 02/09/09, Tompkins filed an All Writs Petition and an Application for Stay of Execution. On 02/11/09, the Florida Supreme Court denied the All Writs Petition and Application for Stay of Execution in a joint order combining these motions and the 3.853 Appeal.

On 02/10/09, Tompkins filed a 3.853 Appeal in the Florida Supreme Court. On 02/11/09, the Florida Supreme Court denied the 3.853 Appeal in a joint order combining this appeal with the All Writs Petition and the Stay of Execution.

On 02/11/09, Tompkins filed a Petition for Writ of Certiorari in the United States Supreme Court and an Application for Stay of Execution. These motions are currently pending.

Tompkins Executed for Teen's Murder

By Baird Helgelson - Pasco County Tribune

February 12, 2009

STARKE - It took Wayne Tompkins about five minutes to fatally strangle his girlfriend's 15-year-old daughter. Twenty five years later, it took nine minutes for the death row inmate to die by lethal injection at the Florida State Prison in Starke.

Family members of the victim, Lisa Lea DeCarr, struggled to reconcile how a man who killed so brutally could die with such seeming serenity. "I have hated him for so many years," DeCarr's sister, Michelle Hayes, said at a news conference after witnessing Wednesday's execution. "I would have done it myself so many times."

Among the 25 witnesses to the execution was DeCarr's mother, Barbara Wallace, along with other relatives of the victim, law enforcement personnel and news reporters. Hayes started to say some of her family felt Tompkins' death seemed too humane, but she stopped: "I don't want to disrespect him in front of his family."

DeCarr disappeared March 24, 1983. Tompkins told his girlfriend her daughter ran away and he doubted she would ever return. Police found what they determined were the girl's skeletal remains about a year after her disappearance, buried in a shallow grave under the Southeast Seminole Heights house where she lived with her mother and Tompkins. Also recovered from the grave were a pink bathrobe, a diamond ring and a pair of gold-cross earrings.

While behind bars on unrelated rape charges, Tompkins told a jailhouse informant he strangled the girl with her bathrobe sash when she fought off his sexual advances. Medical experts think she could have been dead within five minutes.

From outward appearances, Tompkins, now 51, died with no such rage or terror. A brown curtain opened at 6:23 p.m., about 15 minutes later than planned. Witnesses saw Tompkins splayed out on a gurney with a white sheet pulled up to his chin. His tattooed left arm hung out, strapped to the gurney. He was hooked to IVs that would deliver three drugs. The first one would render him unconscious. The next one brings paralysis and stops all breathing. The final drug causes cardiac arrest. He lay perfectly still, except to adjust his chin a couple times. He looked up into a microphone that would broadcast his final statement. He could not see the witnesses and made no effort to look their way. They shifted in their seats and clasped their hands. Men in black-and-gray suits nervously tapped their shiny shoes on the white linoleum floor. An old wall-unit air conditioner strained overhead.

Execution team warden, Tim Cannon, asked Tompkins whether he had a final statement. "I am good," he said. At 6:26 p.m., Tompkins' breathing calmed. The mouth movements stopped. His eyes closed.

DeCarr's mother, Tompkins' former girlfriend, sat perfectly still, wearing a pink top.

Three minutes later, Cannon checked to make sure Tompkins was unconscious before ordering the release of the final two drugs. Cannon shook Tompkins and tapped his eyelids twice. Nothing. A couple minutes later, a man with a stethoscope emerged to check Tompkins' pulse. He checked again. He said something to Cannon, and left through the same curtain entrance. Cannon pronounced the execution complete at 6:32 p.m.

Outside the prison, in a roped-off area near where a white hearse was parked, about 40 death penalty opponents gathered to protest the execution. Tompkins had been "calm and businesslike" throughout the day, Gretl Plessinger, a Department of Corrections spokeswoman said.

Tompkins spent three hours with his mother, Gladys Staley of Brooksville. For two of those hours, they were not allowed physical contact. She was not allowed to witness the execution. Tompkins, who described his religion as Native American, also met with the prison chaplain since he had no preferred spiritual adviser. He ate a last meal of fried chicken and banana split ice cream, using only the single spoon the state allows. About 4 p.m., the staff gave him a shot of diazepam to calm his nerves.

The Tompkins family narrative is footnoted with members who died early and violently. Tompkins' father, Thurman, was fatally shot in the early 1980s while pumping gas at the Kentucky service station where he worked, Staley said. In 2003, a St. Lucie County deputy accidentally shot and killed Tompkins' youngest brother, Nathan, during a traffic stop. "It seems like ... I don't even know what is happening with my family," Staley said the night before the execution.

Charlie Crist was the third governor to sign a death warrant for Tompkins, after Jeb Bush in 2001 and Bob Martinez in 1989. Tompkins was granted a stay on appeal each time.

Tompkins' attorneys had asked the Florida Supreme Court to delay the execution, saying more time was needed to complete testing on DNA evidence found on and near the girl's body. The court said hours before his death it would not entertain any motions for rehearing. Tompkins died about 140 miles from the home where the murder occurred.

A few months after DeCarr's disappearance, he and the girl's mother moved out of the house they rented at 1225 E. Osborne Ave. In December 1983, Nathaniel and Minnie Horn bought the house for $25,000.

Six months later, police knocked at the door. The officers told the Horns they thought a body was buried under the porch. "We told them to do what they had to do," said Minnie Horn, who still lives in the house. "We didn't know nothing about it."

Until a reporter called this week, Horn never heard the name Wayne Tompkins or Lisa DeCarr. Horn still thinks about the body under the porch. Informed of Tompkins' pending execution, Horn said: "I got no joy, but I am not going to cry about it. He had no business doing what he was doing."

Appeals exhausted, man is executed

By Ron Word - Sarasota Herald Tribune

February 12, 2009

JACKSONVILLE - A man convicted in the 1983 murder of his girlfriend's teenage daughter was executed Wednesday after the courts refused to reconsider his claims of innocence. Wayne Tompkins, 51, was pronounced dead at 6:32 p.m. at Florida State Prison. He had been condemned for the murder of 15-year-old Lisa DeCarr, who disappeared from the Tampa home she shared with Tompkins and her mother on March 24, 1983.

"I'm good," Tompkins replied when officials asked if he had any last words.

At the start of the execution, Tompkins breathed deeply and closed his eyes and then opened them again. The victim's mother, Barbara Wallace, and three of her daughters and her son witnessed the execution, as did Tompkins' attorney, Neal Dupree. Wallace and others thought DeCarr had run away, but her body was found a year later under the home's porch. She had been strangled with the belt of the pink bathrobe she had been wearing.

Tompkins, who had been arrested in early 1984 after he robbed and sexually assaulted two convenience store clerks in separate attacks, was charged with her murder. A cellmate testified that Tompkins confessed, saying he had strangled the girl after she kicked him in the groin while rebuffing his advances. That cellmate, Kenneth Turco, now says a prosecutor told him to lie to the jury. The state Supreme Court has ruled Turco's recantation a harmless error that would not have affected the outcome of the trial.

Attorneys Martin McClain and Neal Dupree filed an appeal with the U.S. Supreme Court and an application for a stay of execution Wednesday morning, but it was denied. The appeal raised many of the same issues already turned down by Florida courts, including whether Gov. Charlie Crist had the right to schedule the execution because he let four years pass before setting a new execution date. Tompkins also had appealed the Turco action.

Tompkins had a final visit with his mother, Gladys Staley of Brooksville, on Wednesday morning and ordered a final meal of fried chicken and banana split ice cream, said Gretl Plessinger, a spokeswoman for the Florida Department of Corrections. Across a highway outside the prison, about 40 death penalty opponents gathered for a prayer vigil.

The Florida Supreme Court, in a one-page order, denied all of Tompkins' appeals Wednesday morning. His attorneys had asked the court to delay the execution, saying more time was needed to complete testing on DNA evidence found on and near the girl's body. The court said it would not entertain any motions for rehearing.

Also turning down Tompkins was the trial court in Tampa, which denied his motion to vacate his judgment and sentence and his motion for a stay of execution. Crist was the third Florida governor who has sought to execute Tompkins. He did not have to sign a death warrant because the state moved to a non-expiring death warrant, so the final warrant signed by Gov. Jeb Bush was still in effect. Gov. Bob Martinez signed two in 1989 and Bush signed a third in 2001. Courts stopped each one.

The Innocence Project of Florida had filed a motion Wednesday to preserve the evidence in Tompkin's case, arguing that more DNA testing is needed to "banish all doubt." It asked that a robe, sash and samples of the victim's bones be preserved for additional DNA testing. On Tuesday, the Innocence Project had asked the governor to delay the execution so more testing could be done.

Tompkins was the 67th inmate executed by Florida since it resumed the death penalty in 1979.

ProDeathPenalty.com

The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on March 24, 1983. In June 1984, Lisa's skeletal remains were found in a shallow grave under the house along with her pink bathrobe and jewelry. Based upon a ligature (apparently the sash of her bathrobe) that was found tied tightly around her neck bones, the medical examiner determined that Lisa had been strangled to death. In September 1984, Wayne Tompkins, the victim's mother's boyfriend, was charged with the murder.

At trial, the state's three key witnesses testified as follows. Barbara DeCarr, the victim's mother, testified that she left the house on the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins at his mother's house a few blocks away. Some time that morning, she sent Tompkins back to her house to get some newspapers for packing. When Tompkins returned, he told Barbara that Lisa was watching television in her robe. Tompkins then left his mother's house again, and Barbara did not see or speak to him again until approximately 3 o'clock that afternoon. At that time, Tompkins told Barbara that Lisa had run away. He said the last time he saw Lisa, she was going to the store and was wearing jeans and a blouse.

Barbara returned to the Osborne Street house where she found Lisa's pocketbook and robe missing but not the clothes described by Tompkins. Barbara then called the police. The state's next witness, Kathy Stevens, a close friend of the victim, testified that she had gone to Lisa DeCarr's house at approximately 9 a.m. on the morning of March 24, 1983. After hearing a loud crash, Stevens opened the front door and saw Lisa on the couch struggling and hitting Tompkins who was on top of her attempting to remove her clothing. Lisa asked her to call the police. At that point, Stevens left the house but did not call the police. When Stevens returned later to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins had made sexual advances towards Lisa on two prior occasions.

Kenneth Turco, the final key state's witness, testified that Tompkins confided details of the murder to him while they were cellmates in June 1985. Turco testified that Tompkins told him that Lisa was on the sofa when he returned to the house to get some newspapers for packing. When Tompkins tried to force himself on her, Lisa kicked him in the groin. Tompkins then strangled her and buried her under the house along with her pocketbook and some clothing (jeans and a top) to make it appear as if she had run away.

Wayne Tompkins - Innocence

Oranous.com

SUMMARY OF WAYNE TOMPKINS CASE

In March of 1983, Wayne Tompkins was living in Tampa with Barbara DeCarr and her three children, including 15-year-old Lisa. On the morning of March 24, 1983, between 8:30 and 9:00, Barbara went to Wayne’s mother’s house to help her move. When she left home, Lisa was there wearing a pink bathrobe. Meanwhile, Wayne dropped off Barbara’s son at school and arrived at his mother’s to help. At some point, Barbara sent him back to their house to get newspapers. When he returned he reported Lisa was on the couch watching TV. Later at 3:00 pm., Wayne reported that Lisa had run away. Barbara went home, could not find Lisa, and contacted the police. Barbara questioned Wayne about his last sighting of Lisa, and he said the last time he saw her she was going out the back door wearing blue jeans and a maroon-colored blouse. About a month later wiht Lisa still missing, Barbara and her family moved.

In June of 1984, Barbara employed the services of a psychic to help find Lisa who was still missing. The psychic directed a search of the residence occupied in March of 1983 be conducted. Under the house, a shallow grave was found. The body recovered was identified as Lisa’s through dental records.

At trial, the State relied on the testimony of Kathy Stevens. Kathy had been a classmate of Lisa’s at the time she disappeared. According to Kathy’s testimony at trial, she had a arrived at Lisa’s house at around 6:00 am., on March 24, 1983. The two had made plans to run away. At that time, Lisa announced she had changed her mind. Kathy left, but forgot her purse. Around 9:00 am., Kathy returned to get her purse. When she arrived, Kathy heard a loud crash, so she opened the front door. She saw Lisa and Wayne struggling on the couch. Wayne was on top of Lisa trying to get her clothes off. Lisa asked Kathy to call the police, and Wayne told Kathy to get out. Kathy also noticed another man sitting in a chair in the living room watching. She left and did not call the police. She claimed to have told Lisa’s boyfriend who did not seem upset. So she went to school and never told anybody else. A couple weeks later, she had a conversation with Barbara and told her that Lisa had left for New York. She testified that this was a lie but that she believed at the time that Lisa may have run away. Until the body was discovered, Kathy believed that Lisa had run away.

The State also relied upon the testimony of a jailhouse informant, Kenneth Turco. After a previous jailhouse informant committed suicide, Turco came forward and claimed that Wayne had confessed to strangling Lisa and burying her body under the house.

On the basis of this evidence, Mr. Tompkins was convicted of having murdered Lisa DeCarr on March 24, 1983, between the hours of 8:30 am. and 5:00 pm. At the penalty phase, evidence of two prior sexual assaults was introduced in aggravation (although it should be noted that the victim of one of the priors reported in her statement that Mr. Tompkins could not go through with it, dropped her off a block away from where she requested, and gave her change so she could call the police). A death sentence resulted.

However, Mr. Tompkins’ jury did not hear significant exculpatory evidence. First, the day that Lisa was reported missing the police interviewed Wendy Chancey, another schoolmate of Lisa’s. Wendy reported seeing Lisa getting in a car at 3:00 pm on March 24, 1983, at the intersection of 12th St. and Osbourne. She also reported that Lisa was wearing jeans and a maroon blouse.

Second, school records indicated that in April "students said the child called from N.Y. is pregnant."

Third, a police report dated April 26, 1983, indicated Barbara had reported that her son had spoken to Kathy Sample (Kathy Stevens had testified that she was never known as Kathy Sample) who reported that Lisa had called her. Barbara then called Kathy Sample who reported Lisa had called saying she was in New York and pregnant.

Fourth, a police report dated June 22, 1983, noted that Barbara had called indicating a neighbor had allegedly seen Lisa getting into a green car in the area of 15th and Osbourne.

Fifth, a police report dated September 2, 1983, reported that Lisa had been sighted some six months after the day she was first reported missing.

Sixth, at Mr. Tompkins’ trial the prosecutor told the jury that Kathy Stevens had no reason to lie. However, a undisclosed memo to the file prepared by that prosecutor revealed that he had two conversations with her before she told him that she had witnessed a struggle between Mr. Tompkins and Lisa. On March 7, 1985, Kathy indicated that the day before her disappearance Lisa had told Kathy she was going to run away. At that time, Kathy said she had no further contact with Lisa and her subsequent statement to Barbara reporting a phone call from Lisa was false. On March 12, 1985, Kathy changed her story and reported seeing the struggle between Mr. Tompkins and Lisa. After this change in her story, the prosecutor "arranged a visit" between Kathy and her boyfiend who was then in jail and who she had not been able to get in to see.

Seventh, the jury did not know that Kenneth Turco would be allowed to withdraw a guilty plea to an escape charge within two weeks after his testimony. At trial, Turco told the jury that he had pled guilty to an escape and expected to serve a lot of time. Two weeks after Mr. Tompkins received the death penalty, however, the prosecutor in Mr. Tompkins’ case replaced the prosecutor in Turco’s case, and went to court and agreed to allow Turco to withdraw his guilty plea to the escape. The prosecutor then dropped escape charge against Turco completely.

Tompkins v. State, 483 So.2d 115 (Fla.App.2 1986) (Sexual Battery).

Defendant was convicted in the Circuit Court, Pasco County, W. Lowell Bray, Jr., J., on his guilty pleas, of armed robbery, kidnapping, and sexual battery and was sentenced to 20 years on each charge, each sentence to run concurrently, and defendant appealed. The District Court of Appeal, Hall, J., held that: (1) fact that it was recommendation or alternate recommendation of Department of Corrections, Parole and Probation that sentencing court exceed guidelines sentence was invalid reason to depart from recommended guidelines sentences; (2) factors that crime was committed in such a way as to extend over period of time and to keep victim in fear and terror for a longer period than was necessary constituted factors which were elements of crime of kidnapping and, thus, were invalid reasons to justify departure sentences; and (3) victim's psychological trauma was not valid basis for departure sentences. Reversed and remanded for resentencing.

Tompkins v. State, 502 So.2d 415 (Fla. 1986) (Direct Appeal).

Defendant was convicted in Circuit Court, Hillsborough County, Harry Lee Coe, III, J., of first-degree murder and sentence of death was imposed. Defendant appealed and the Supreme Court, Barkett, J., held that: (1) admission of defendant's confession through cellmate's testimony was proper; (2) defendant's Sixth Amendment right to confront witnesses was not violated by court's limitation of defendant's cross-examination; (3) State was properly allowed to pursue rebuttal line of questioning where defendant had opened door to line of questioning on cross-examination; (4) certified copies of defendant's prior convictions were sufficient to establish aggravating circumstance; (5) finding of aggravating circumstances was supported by testimony; (6) finding that murder was especially heinous, atrocious, or cruel was supported by testimony; and (7) court gave adequate consideration to evidence of nonstatutory mitigating circumstances. Affirmed.

BARKETT, Justice.

Wayne Tompkins appeals his conviction for first-degree murder and the sentence of death imposed by the trial judge in accordance with the jury's recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm both the conviction and sentence.

The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on March 24, 1983. In June 1984, the victim's skeletal remains were found in a shallow grave under the house along with her pink bathrobe and jewelry. Based upon a ligature (apparently the sash of her bathrobe) that was found tied tightly around her neck bones, the medical examiner determined that Lisa had been strangled to death. In September 1984, Wayne Tompkins, the victim's mother's boyfriend, was charged with the murder.

At trial, the state's three key witnesses testified as follows. Barbara DeCarr, the victim's mother, testified that she left the house on the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins at his mother's house a few blocks away. Some time that morning, she sent Tompkins back to her house to get some newspapers for packing. When Tompkins returned, he told Barbara that Lisa was watching television in her robe. Tompkins then left his mother's house again, and Barbara did not see or speak to him again until approximately 3 o'clock that afternoon.*418 At that time, Tompkins told Barbara that Lisa had run away. He said the last time he saw Lisa, she was going to the store and was wearing jeans and a blouse. Barbara returned to the Osborne Street house where she found Lisa's pocketbook and robe missing but not the clothes described by Tompkins. Barbara then called the police.

The state's next witness, Kathy Stevens, a close friend of the victim, testified that she had gone to Lisa DeCarr's house at approximately 9 a.m. on the morning of March 24, 1983. After hearing a loud crash, Stevens opened the front door and saw Lisa on the couch struggling and hitting Tompkins who was on top of her attempting to remove her clothing. Lisa asked her to call the police. At that point, Stevens left the house but did not call the police. When Stevens returned later to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins had made sexual advances towards Lisa on two prior occasions.

Kenneth Turco, the final key state's witness, testified that Tompkins confided details of the murder to him while they were cellmates in June 1985. Turco testified that Tompkins told him that Lisa was on the sofa when he returned to the house to get some newspapers for packing. When Tompkins tried to force himself on her, Lisa kicked him in the groin. Tompkins then strangled her and buried her under the house along with her pocketbook and some clothing (jeans and a top) to make it appear as if she had run away.

After the state rested its case, the trial court denied Tompkins' motion for acquittal, finding that the evidence was sufficient to prove premeditation and that the state had established a prima facie case. The defense rested after the close of the state's case without presenting any additional evidence. The jury found Tompkins guilty as charged.

At the penalty phase, the state presented evidence from three witnesses to show that Tompkins had been convicted of kidnapping and rape stemming from two separate incidents in Pasco County which occurred after Lisa DeCarr's disappearance. The defense presented testimony from three witnesses regarding Tompkins' good work record, shy and nonviolent personality, and honesty.

The trial judge, finding three aggravating circumstances (previous conviction of felonies involving the use or threat of violence to the person; FN1 murder committed while the defendant was engaged in an attempt to commit sexual battery; FN2 murder was especially heinous, atrocious, or cruel) FN3 and one statutory mitigating circumstance (defendant's age at the time of the crime),FN4 followed the jury's recommendation and sentenced Tompkins to death. FN1. § 921.141(5)(b), Fla.Stat. (1985). FN2. § 921.141(5)(d), Fla.Stat. (1985). FN3. § 921.141(5)(h), Fla.Stat. (1985). FN4. § 921.141(6)(g), Fla.Stat. (1985).

Appellant challenges his conviction on four grounds. First, appellant argues that the admission of his confession through Turco's testimony was error because the state had not proven the corpus delicti of the crime by independent evidence.FN5 State v. Allen, 335 So.2d 823 (Fla.1976). We find no merit in this contention. We first note that appellantnever objected to the introduction of the confession at trial. However, assuming arguendo that appellant's motion for judgment of acquittal at the close of the state's case preserved the issue, we find no trial court error. The medical examiner's testimony that, within a reasonable degree of medical certainty, death was caused by strangulation, coupled with the location of the victim's*419 remains in a grave underneath the victim's residence, is more than sufficient to meet the “substantial evidence” standard required under Allen. See id. at 824.

FN5. Appellant notes that Tompkins' confession may have been obtained by Turco acting as a state agent, in violation of the privilege against self-incrimination or right to counsel under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), but concedes that this issue was not preserved for review on direct appeal.

Appellant next argues that the trial court violated his sixth amendment right to confront witnesses by limiting his cross-examination of state's witnesses Barbara DeCarr and Detective K.E. Burke. Appellant contends that curtailment of his right to cross-examine these witnesses prevented him from establishing his defense, i.e., that Lisa DeCarr did in fact run away and met her death sometime after March 24, 1983. We find no violation of appellant's sixth amendment rights. Although wide latitude is permitted on cross-examination in a criminal trial, its scope and limitation lies within the sound discretion of the trial court and is not subject to review except for a clear abuse of discretion. Sireci v. State, 399 So.2d 964, 969-70 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). The trial court found that each of the questions to which the state objected was irrelevant or called for hearsay testimony. After careful review of the record, we find no abuse of discretion.

In his third point, appellant argues that the trial court erred in permitting the state to elicit certain testimony from Barbara DeCarr on redirect examination. The record reveals that on cross-examination of DeCarr, defense counsel asked DeCarr to confirm that Lisa had never complained to her mother about Tompkins making any type of sexual advances. DeCarr replied, “She never.” On redirect, the prosecutor asked whether Lisa had voiced any complaint to DeCarr about Tompkins in February 1983. Finding that defense counsel had opened the door to this line of questioning, the trial court permitted DeCarr to testify that Lisa had begged her not to go back with Tompkins. Appellant contends that the defense did not open the door because his question on cross-examination was limited to complaints about sexual advances. We cannot agree. Generally, testimony is admissible on redirect which tends to qualify, explain, or limit cross-examination testimony. Tampa Electric Co. v. Charles, 69 Fla. 27, 67 So. 572 (1915); Hinton v. State, 347 So.2d 1079, 1080 (Fla. 3d DCA), cert. denied, 354 So.2d 981 (Fla.1977).

Moreover, defense counsel's question on cross-examination could have led the jury to infer that Lisa had never complained to her mother about Tompkins. We find that the state was properly allowed to pursue this line of questioning to rebut such an inference. Cf. McCrae v. State, 395 So.2d 1145, 1151-52 (Fla.1980) (state properly entitled to transcend normal bounds of cross-examination in order to negate delusive innuendos of defense counsel), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981).

Appellant next argues that death-qualified juries are unconstitutional. This argument has been rejected by this Court, Kennedy v. Wainwright, 483 So.2d 424 (Fla.), cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986), and by the United States Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

We turn now to appellant's six claims of error in the penalty phase of the proceeding. First, appellant argues that the trial court erred in allowing two police officers to testify as to details of previous crimes he had committed. Appellant acknowledges that details of prior felonies involving the use or threat of violence to the person are properly admitted in the penalty phase of a capital trial and that hearsay testimony is admissible provided the defendant has a fair opportunity to rebut it. § 921.141(1), Fla.Stat. (1985); Perri v. State, 441 So.2d 606, 608 (Fla.1983). He contends, however, that he had no opportunity to rebut or confront the officers' testimony in this case, and that his death sentence must therefore be reversed. We disagree.

We note, first of all, that appellant did not argue at trial, as he does here, that he was denied the opportunity to confront witnesses testifying against him. The record shows that Detective Gell identified Tompkins as the person he had arrested for a kidnapping and rape in Pasco County. When defense counsel objected to “any hearsay testimony” regarding the prior offenses, the trial court sustained the objection, in part, and limited the officer to saying that the victim of that crime was a white female convenience store clerk and that she had identified Tompkins in a lineup. The trial court stated that it would permit the lineup testimony because the officer was present at the lineup. The trial court similarly limited the other officer's testimony to the statement that Tompkins had pleaded guilty to another kidnapping and rape of a convenience store clerk.

Although appellant did not argue a constitutional error at trial, we recognize that the admission of hearsay in criminal proceedings may constitute a violation of the accused's sixth amendment right to confront witnesses testifying against him. See Engle v. State, 438 So.2d 803 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 753 (1984). We also recognize that the right of confrontation protected by cross-examination is a right that has been applied to the sentencing process. Engle, 438 So.2d at 813 (citing Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967)).

However, even if we assume that the victims of the prior offenses were unavailable for appellant to confront, the officers' testimony was clearly harmless under the facts of this case. The state introduced certified copies of appellant's prior convictions, establishing two separate instances of kidnapping and sexual battery. The certified copies disclosed that appellant had pleaded guilty to the kidnap and rape charges in one case and had entered a plea of no contest to the charges filed in the other incident. This evidence alone is sufficient to establish the aggravating circumstance under section 921.141(5)(b), Florida Statutes (1985) (prior convictions for felonies involving use or threat of violence to the person). We find no prejudice to Tompkins resulting from the officers' testimony.

Appellant next asserts that the trial court's finding of an aggravating circumstance under section 921.141(5)(b) was improperly based on hearsay evidence, and that the trial judge gave this aggravating circumstance undue weight. We have already found that the certified copies of judgment and sentence established this aggravating circumstance beyond a reasonable doubt. We also find meritless appellant's claim of error as to the weight given this aggravating circumstance. Once the trial court has found which, if any, aggravating circumstances apply, it must then decide the weight to be given particular mitigating circumstances, if any, and whether they offset the established aggravating circumstances. Herring v. State, 446 So.2d 1049, 1057 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984). The trial court properly found this aggravating circumstance and we find no indication that this factor was improperly doubled or otherwise given undue weight.

In his third point, appellant contends that the trial court erroneously found the aggravating circumstance that this murder was committed during an attempted rape. Appellant argues that the trial court's use of the word “rape” rather than “sexual battery” invalidates its finding of this aggravating circumstance. This argument is meritless. Adams v. State, 412 So.2d 850, 856 (Fla.) (act itself, rather than its nomenclature, constitutes the aggravating circumstance), cert. denied, 459 U.S. 382, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982).

Appellant also contends that if we discount his confession to Turco the evidence is insufficient to establish an attempted sexual battery. Having already concluded that the confession was properly admitted, this argument must be rejected. Moreover, appellant's confession that the victim was strangled after she refused his sexual advances is consistent with the testimony of Kathy Stevens that appellant was attempting to remove the victim's clothes as she struggled to fight him off. We find the evidence sufficient to establish this aggravating circumstance.

Appellant's next point is that the trial court incorrectly found that the murder was especially heinous, atrocious, or cruel. We have already determined that there was sufficient evidence upon which to conclude that the victim's death was caused by strangulation. We have previously held that it is permissible to infer that strangulation, when perpetrated upon a conscious victim, involves foreknowledge of death, extreme anxiety and fear, and that this method of killing is one to which the factor of heinousness is applicable. Johnson v. State, 465 So.2d 499, 507 (Fla.), cert. denied, 474 U.S. 865, 106 S.Ct. 186, 88 L.Ed.2d 155 (1985); Adams, 412 So.2d at 857; Alvord v. State, 322 So.2d 533, 541 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). The medical examiner testified that death by strangulation is not instantaneous.

Furthermore, there is sufficient competent evidence in the record to support a finding that the victim was not only conscious but struggling and fighting to get away when appellant strangled her. Death under these circumstances is heinous, atrocious, and cruel. See Adams, 412 So.2d at 857; Smith v. State, 407 So.2d 894, 903 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). The trial court did not err in finding this aggravating circumstance.

Appellant next contends that the trial court did not give adequate consideration to the evidence of nonstatutory mitigating circumstances. With respect to nonstatutory mitigating circumstances, the trial court stated that it found “NONE, notwithstanding testimony to the effect that the defendant was a good family member and good employee.” We conclude that the judge did consider the evidence but found that it did not rise to a sufficient level to be weighed as a mitigating circumstance. See Woods v. State, 490 So.2d 24 (Fla.1986).

Appellant's final claim of error is that the trial judge did not make a reasoned independent judgment of whether or not the death penalty should be imposed. Appellant bases this argument on the trial judge's written order stating that the jury's death recommendation is “entitled to great weight.” We reject this claim. The trial court expressly stated: “After considering only the evidence before the jury, the court finds that the aforesaid statutory aggravating circumstances clearly outweigh the statutory mitigating circumstance.” There is nothing in the court's order or elsewhere in the record to suggest that the trial court imposed the death penalty because it felt compelled to do so by the jury's recommendation. Cf. Ross v. State, 386 So.2d 1191 (Fla.1980) (remand for resentencing required where trial court expressly stated it found no compelling reason to override jury's recommendation).

Finding no reversible error in either the guilt or penalty phases of appellant's trial, we affirm both the conviction and sentence imposed. It is so ordered. McDONALD, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.

Tompkins v. Dugger, 549 So.2d 1370 (Fla. 1989) (PCR).

Prisoner under sentence of death and active death warrant petitioned for writ of habeas corpus, appealed the denial by Circuit Court, Hillsborough County, Harry Lee Coe, III, J., of motion for postconviction relief, and requested stay of execution. The Supreme Court, Barkett, J., held that: (1) trial and appellate counsel did not provide ineffective assistance; (2) trial court did not rely on false, misleading or inflammatory evidence; (3) rule allowing Governor to shorten two-year filing deadline did not operate to deny equal protection and access to courts; and (4) state did not withhold material exculpatory evidence. Affirmed; habeas corpus petition denied; stay of execution vacated.

BARKETT, Justice.

Wayne Tompkins, a prisoner under sentence of death and active death warrant, petitions for a writ of habeas corpus, appeals the trial court's denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, and requests a stay of execution. Our jurisdiction is mandatory.FN1 On June 2, 1989, this Court granted Tompkins' motion for stay pending further order. We now vacate the stay and deny relief. FN1. Art. V, § 3(b)(1) & (9), Fla. Const.

Tompkins was convicted of the strangulation murder of fifteen-year-old Lisa Lea DeCarr, whose skeletal remains were discovered in a grave located beneath her Tampa home in June 1984. Following the jury's recommendation, the trial judge imposed the death sentence. The Court affirmed the conviction and sentence in Tompkins v. State, 502 So.2d 415 (Fla.1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987).

In his habeas petition, Tompkins raises nine grounds for relief. We deny Claims 1, 2, 4, 6, 8, and 9 because trial counsel failed to object at trial.FN2 Thus, we must reject Tompkins' claim of ineffective assistance of appellate counsel. Appellate counsel could not have been ineffective for failing to raise claims on direct appeal which were not properly preserved. Suarez v. Dugger, 527 So.2d 190, 193 (Fla.1988). We also reject Claim 3 that Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), compels a reversal of the trial court's finding that the murder was “especially, heinous, atrocious, or cruel.” FN3

FN2. In these claims, Tompkins argues that: the penalty phase jury instructions impermissibly shifted to the defendant the burden of proving by the introduction of mitigating evidence that death was inappropriate; the trial court and prosecutor improperly asserted that sympathy towards the defendant was an improper consideration in the jury's sentencing recommendation; the prosecutor made an improper “golden rule” argument to the penalty phase jury; argument and testimony was admitted in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); the death sentence impermissibly rested upon an automatic aggravating factor because the sentencer was entitled to automatically return a death sentence as a result of his conviction for felony murder; and the jury was misled as to its proper role for reasons expressed in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). FN3. § 921.141(5)(h), Fla.Stat. (1987).

Likewise, Tompkins is not entitled to relief upon the asserted basis in Claim 7 that appellate counsel failed to object to inflammatory photographs of the victim's skeletal remains. The record shows that trial counsel objected to the introduction of this evidence. The decision of the trial judge to admit this evidence was within the parameters of his discretion. Therefore, Tompkins cannot demonstrate that he was *1372 prejudiced by appellate counsel's failure to raise this claim on direct appeal.

In Claim 5, Tompkins argues that he was denied his sixth amendment right to counsel in that he was precluded from presenting a defense. This preclusion occurred when the trial court sustained objections to hearsay testimony offered to show that the victim was alive subsequent to the time Tompkins was alleged to have killed her. We find no error in the trial court's evidentiary ruling on this question and therefore deny relief.

In his rule 3.850 motion, Tompkins raises nineteen claims. After an evidentiary hearing on May 19 and 20, 1989, the trial court denied relief. We affirm.

First, Tompkins argues that Florida Rule of Criminal Procedure 3.851 effectively operates to deny equal protection and access to the courts by empowering the Governor to shorten the two-year filing deadline granted by rule 3.850. This Court has previously rejected this argument in Cave v. State, 529 So.2d 293, 298-99 (Fla.1988).

We reject as meritless Claims 3, 10, and 19 in which Tompkins contends that his court-appointed trial counsel, Cass Castillo, withdrew to accept a position with the prosecutor's office, thus rendering proceedings fundamentally unfair; that the state knowingly used false and misleading testimony; and that improper influences on the jury affected its ability to render an impartial verdict.

The remaining claims assert that the state withheld material exculpatory evidence in violation of Brady v. Maryland FN4 and that trial counsel provided ineffective assistance. As to the Brady violation, Tompkins claims that the state should have provided defense counsel with jail records showing that Tompkins was given Sinequan while in jail; school records indicating that Lisa had been seen by schoolmates after she allegedly was killed; and information suggesting that Tompkins' cell mate, who had testified that Tompkins confessed, was a state agent. FN4. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The record clearly reflects that counsel knew that Lisa reportedly was seen after the time established for her murder. Counsel attempted to introduce this very evidence through the hearsay testimony of Lisa's mother. We also agree that counsel's lack of knowledge that Tompkins asked for medication while in custody had no prejudicial effect on the outcome of the trial. Finally, we find no evidence in the record to support any theory that Tompkins' cell mate was a state agent. Accordingly, we affirm the trial court on the Brady issue.

Tompkins' ineffective assistance of counsel argument encompasses five claims. First, he argues that counsel should have introduced testimony of the witness who claimed to have seen Lisa after the murder. The evidence, however, reflects that counsel's investigator interviewed this witness. At the time of the interview, the witness had absolutely no recollection of ever having reported seeing Lisa. Moreover, this witness was “drying out” from drugs and had great difficulty with her memory. It is clear that a strategic decision was made not to call this witness and to try instead to present this testimony, to the extent permitted by the trial judge, through the hearsay testimony of Lisa's mother.

In addition, Tompkins contends that trial counsel was ineffective for failing adequately to argue that the prosecution violated his sixth amendment rights when the authorities secured his confession through cell mate Turco. As noted above, the record is devoid of any evidence of the existence of an agency relationship between Turco and the state. Tompkins also argues that trial counsel failed to adequately impeach the in-court identification made by Kathy Stevens and to object to a violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).FN5 The trial court found, and we agree, that *1373 trial counsel was not ineffective as to any of these claims.

FN5. This Court has previously ruled that Caldwell is not applicable in Florida. Combs v. State, 525 So.2d 853 (Fla.1988).

In the second part of the ineffectiveness claim, Tompkins asserts that counsel failed to investigate and present evidence of mitigation in the penalty phase. The trial court found, and we again agree, that counsel was deficient in this regard. However, the trial court also found that the mitigating evidence overlooked by counsel would not have changed the outcome, and therefore did not demonstrate prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

The trial judge, when imposing the death penalty, found three aggravating circumstances: previous conviction of a violent felony; FN6 murder committed during an attempt to commit a sexual battery; FN7 and that the murder was especially heinous, atrocious, or cruel.FN8 The previous felony convictions consisted of two prior rapes at knife point. Tompkins alleges that there were extenuating circumstances which would mitigate this aggravating factor. He further submits that additional mitigating evidence existed and should have been presented at trial. This mitigation included an abused childhood and an addiction to drugs and alcohol. The trial court found that this evidence would not have affected the penalty in light of the crime and the nature of the aggravating circumstances. We affirm the trial court's finding that the second prong of the Strickland test has not been satisfied. Id. FN6. § 921.141(5)(b), Fla.Stat. (1985). FN7. § 921.141(5)(d), Fla.Stat. (1985). FN8. § 921.141(5)(h), Fla.Stat. (1985).

Finally, in his rule 3.850 motion, Tompkins has reasserted numerous claims advanced in his petition for habeas corpus.FN9 We likewise affirm the trial judge's denial of these claims. FN9. These include Claims 2, 12, 14, and 16.

Accordingly, we deny the petition for writ of habeas corpus, affirm the trial court's denial of Tompkins' motion for postconviction relief, and vacate the stay of execution. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, GRIMES and KOGAN, JJ., concur.

Tompkins v. State, 872 So.2d 23 (Fla. 2003) (PCR).

After conviction for capital murder was affirmed on direct appeal, 502 So.2d 415, denial of postconviction relief was affirmed, 549 So.2d 1370, and denial of federal habeas corpus relief was affirmed, 193 F.3d 1327, defendant filed successive motion for postconviction relief. The Circuit Court, Hillsborough County, Daniel L. Perry, J., denied motion in part, but granted defendant new penalty hearing. Defendant appealed and State cross-appealed. The Supreme Court held that: (1) State's failure to disclose police reports, prosecutor's questions list, detective's lead questions, and documents of investigation of missing person did not constitute Brady violation; (2) defendant was not entitled to postconviction DNA testing; (3) denial of motion to compel public records was not abuse of discretion; and (4) trial court's ex parte request to State to prepare sentencing order did not entitle him to new sentencing hearing. Affirmed in part; reversed in part. Anstead, C.J., concurred in part and dissented in part, with opinion.

PER CURIAM.

Wayne Tompkins, a prisoner under sentence of death and an active death warrant, appeals an order of the circuit court denying in part his successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The State cross-appeals the circuit court's order granting Tompkins a new penalty phase based on evidence that the trial court directed the State to prepare the sentencing order in an ex parte communication after the trial court imposed the death penalty.FN1 We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the portion of the trial court's order denying Tompkins' motion for postconviction relief and reverse the portion of the trial court's order granting a new penalty phase.

FN1. Tompkins filed this successive motion after a death warrant was signed and the warrant was stayed by the trial court after the trial court vacated the death sentence and granted Tompkins a new penalty phase.

FACTS AND PROCEDURAL HISTORY

In 1985, Tompkins was convicted of the first-degree murder of Lisa Decarr and *234 sentenced to death on the recommendation of a unanimous jury. See Tompkins v. State, 502 So.2d 415 (Fla.1986). This Court's opinion on direct appeal sets forth the following facts:

The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on March 24, 1983. In June 1984, the victim's skeletal remains were found in a shallow grave under the house along with her pink bathrobe and jewelry. Based upon a ligature (apparently the sash of her bathrobe) that was found tied tightly around her neck bones, the medical examiner determined that Lisa had been strangled to death. In September 1984, Wayne Tompkins, the victim's mother's boyfriend, was charged with the murder.

At trial, the state's three key witnesses testified as follows. Barbara DeCarr, the victim's mother, testified that she left the house on the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins at his mother's house a few blocks away. Some time that morning, she sent Tompkins back to her house to get some newspapers for packing. When Tompkins returned, he told Barbara that Lisa was watching television in her robe. Tompkins then left his mother's house again, and Barbara did not see or speak to him again until approximately 3 o'clock that afternoon. At that time, Tompkins told Barbara that Lisa had run away. He said the last time he saw Lisa, she was going to the store and was wearing jeans and a blouse. Barbara returned to the Osborne Street house where she found Lisa's pocketbook and robe missing but not the clothes described by Tompkins. Barbara then called the police.

The state's next witness, Kathy Stevens, a close friend of the victim, testified that she had gone to Lisa DeCarr's house at approximately 9 a.m. on the morning of March 24, 1983. After hearing a loud crash, Stevens opened the front door and saw Lisa on the couch struggling and hitting Tompkins who was on top of her attempting to remove her clothing. Lisa asked her to call the police. At that point, Stevens left the house but did not call the police. When Stevens returned later to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins had made sexual advances towards Lisa on two prior occasions.

Kenneth Turco, the final key state's witness, testified that Tompkins confided details of the murder to him while they were cellmates in June 1985. Turco testified that Tompkins told him that Lisa was on the sofa when he returned to the house to get some newspapers for packing. When Tompkins tried to force himself on her, Lisa kicked him in the groin. Tompkins then strangled her and buried her under the house along with her pocketbook and some clothing (jeans and a top) to make it appear as if she had run away. Id. at 417-18.

The jury recommended death by a vote of twelve to zero. After finding three aggravating circumstances FN2 and one mitigating*235 circumstance, FN3 the trial court imposed a sentence of death.

FN2. The aggravating circumstances found by the trial court were: (1) the previous conviction of felonies involving the use or threat of violence to the person; (2) that the murder was committed while the defendant was engaged in an attempt to commit sexual battery; and (3) that the murder was especially heinous, atrocious, or cruel (“HAC”). FN3. The one mitigating circumstance the trial court found was that Tompkins was twenty-six at the time of the murder.

Tompkins raised ten issues on appeal, four related to the guilt phase FN4 and six related to the penalty phase.FN5 See id. at 419. This Court found no reversible error and affirmed both the conviction and death sentence. See id. at 421.

FN4. With respect to the guilt phase, Tompkins argued: (1) the trial court erred in admitting his confession through Turco's testimony; (2) the trial court erred in limiting his cross-examination of State's witnesses Barbara DeCarr and Detective Burke; (3) the trial court erred in permitting the State to elicit certain testimony from Barbara DeCarr on redirect examination; and (4) death-qualified juries are unconstitutional.

FN5. As to the penalty phase, Tompkins argued: (1) the trial court erred in allowing two police officers to testify as to details of previous crimes he had committed; (2) the trial court erred in finding the aggravating circumstance of previous conviction of felonies involving the use or threat of violence; (3) the trial court erred in finding the aggravating circumstance that the murder was committed during an attempted sexual battery; (4) the trial court erred in finding HAC; (5) the trial court did not give adequate consideration to the evidence of nonstatutory mitigating circumstances; and (6) the trial judge did not make a reasoned independent judgment of whether or not the death penalty should be imposed by giving undue weight to the jury's recommendation of death.

Tompkins' first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 included nineteen claims. See Tompkins v. Dugger, 549 So.2d 1370, 1372 (Fla.1989).FN6 After an evidentiary *236 hearing at which Tompkins presented evidence primarily related to his Brady and ineffective assistance of counsel claims, the trial court denied relief. See id. This Court affirmed the trial court's denial of relief on appeal. See id. With respect to Tompkins' Brady claims, we stated:

FN6. These claims were: (1) Florida Rule of Criminal Procedure 3.851 denies equal protection and access to the courts by empowering the Governor to shorten the two-year filing deadline of rule 3.850; (2) the trial court erred in excluding hearsay testimony offered to show that the victim was alive after the time of the alleged murder; (3) the proceedings were rendered fundamentally unfair when Tompkins' court-appointed counsel withdrew to accept a position with the prosecutor's office; (4) Tompkins' right to counsel was violated when a jailhouse informant (Turco) was placed in his cell to elicit inculpatory statements; (5) the conviction and sentence resulted from an unreliable in-court identification; (6) the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), including (a) jail records showing Tompkins was given Sinequan, (b) information suggesting that Turco was a State agent, and (c) records indicating that the victim had been seen by schoolmates after she was allegedly killed; (7) Tompkins' trial counsel was ineffective during the guilt phase by (a) failing to adequately investigate and prepare the issue regarding who was the last person to see the victim alive, (b) failing to present evidence that informant Turco had access to police reports that Tompkins had in his cell, (c) failing to object to hearsay testimony by the medical examiner as to the victim's identity, (d) failing to ensure compliance with the witness sequestration rule, and (e) failing to litigate the issues raised in claims 2, 3, 4 and 5; (8) Tompkins' trial counsel was ineffective for failing to provide for an adequate evaluation by a mental health expert; (9) Tompkins' counsel was ineffective during the penalty phase for (a) failing to adequately investigate and prepare mitigation evidence, (b) failing to limit damage caused by the introduction of prior sexual batteries, and (c) failing to challenge jury instructions and failing to object to other errors related to claims 11 and 16; (10) the State knowingly used false and misleading testimony of Detective Burke and the medical examiner; (11) the State made an improper “golden rule” argument; (12) the trial court's finding of HAC was in violation of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); (13) there was an impermissible burden shift; (14) the jury was improperly instructed that sympathy toward the defendant was an improper consideration; (15) the trial court considered an unconstitutional aggravating circumstance; (16) the death sentence was founded upon impermissible “victim impact” evidence; (17) there was a violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (18) the death sentence was based on misinformation; and (19) there were improper jury influences.

Tompkins claims that the state should have provided defense counsel with jail records showing that Tompkins was given Sinequan while in jail; school records indicating that Lisa had been seen by schoolmates after she allegedly was killed; and information suggesting that Tompkins' cell mate, who had testified that Tompkins confessed, was a state agent.

The record clearly reflects that counsel knew that Lisa reportedly was seen after the time established for her murder. Counsel attempted to introduce this very evidence through the hearsay testimony of Lisa's mother. We also agree that counsel's lack of knowledge that Tompkins asked for medication while in custody had no prejudicial effect on the outcome of the trial. Finally, we find no evidence in the record to support any theory that Tompkins' cell mate was a state agent. Accordingly, we affirm the trial court on the Brady issue. Id.

As to Tompkins' claims of ineffective assistance of trial counsel, this Court concluded that counsel was not ineffective during the guilt phase but was deficient in failing to investigate and present evidence of mitigation in the penalty phase. See id. at 1373. However, we agreed with the trial court that this mitigating evidence would not “have affected the penalty in light of the crime and the nature of the aggravating circumstances.” Id.

Tompkins also filed a petition for a writ of habeas corpus in this Court, raising nine claims. See id. at 1371.FN7 We denied relief on all of Tompkins' claims. See id.

FN7. These claims were: (1) the penalty phase jury instruction impermissibly shifted the burden to the defendant to show that the death penalty was inappropriate; (2) the jury was improperly instructed that sympathy toward the defendant was an improper consideration; (3) Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), required reversal of the trial court's finding of HAC; (4) the State made an improper “golden rule” argument; (5) Tompkins' right to counsel was denied when the trial court erred in excluding hearsay testimony offered to show that the victim was alive after the time of the alleged murder; (6) there was a violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); (7) appellate counsel was ineffective for failing to object to photographs of the victim's skeletal remains; (8) the death sentence impermissibly rested on the automatic aggravator of a prior felony conviction; and (9) there was a violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

Subsequently, Tompkins filed a petition for a writ of habeas corpus in the federal district court. See Tompkins v. Moore, 193 F.3d 1327, 1329 (11th Cir.1999). The federal district court denied relief and Tompkins appealed to the Eleventh Circuit Court of Appeals. See id. The Eleventh Circuit affirmed without discussing several of the issues addressed by the district court.FN8

FN8. These issues were: (1) whether Tompkins was denied the right to present a defense and confront witnesses; (2) whether the state withheld exculpatory evidence in violation of Brady; (3) whether appellate counsel was ineffective; (4) whether Tompkins' conviction and sentence resulted from an unreliable in-court identification; (5) whether the judge and jury were misinformed; (6) whether there was improper argument and a jury instruction error during the penalty phase; and (7) whether the district court erred in failing to order the grand jury proceedings transcribed. See Tompkins, 193 F.3d at 1331 n. 1.

The Eleventh Circuit also rejected Tompkins' argument that trial counsel was ineffective during the guilt phase for failing to introduce several pieces of evidence, including witness Wendy Chancey's testimony that she had seen Lisa alive after the date the murder was alleged to have occurred. See id. at 1334-35 & n. 3. With respect to Tompkins' claims of counsel's ineffectiveness during the penalty phase, the Eleventh Circuit concluded that the “weight of [the] aggravating circumstances overwhelm[ed] the mitigating circumstance evidence that was and could have been presented.” Id. at 1339. Lastly, the Eleventh Circuit addressed Tompkins' argument that the State knowingly presented false testimony of Stevens, Turco, and the medical examiner in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).FN9 The Eleventh Circuit rejected the claims as to Stevens and Turco outright, agreeing with the district court that Tompkins' “contentions are palpably without merit.” Id. at 1342 n. 14.

FN9. Under Giglio, a prosecutor has a duty to correct testimony he or she knows to be false. See 405 U.S. at 153-54, 92 S.Ct. 763. In order to establish a Giglio violation, a defendant must show that (1) the testimony was false; (2) the prosecutor knew of the false testimony; and (3) the testimony was material. See Routly v. State, 590 So.2d 397, 400 (Fla.1991).

With respect to Tompkins' Giglio claim regarding the medical examiner's testimony that dental records identified the skeleton as that of Lisa DeCarr, the Eleventh Circuit held that even if this had been false testimony and the State knew it was false, Tompkins' claim would still fail to meet the materiality element of the Giglio test. See id. at 1341. The Eleventh Circuit noted that there was “overwhelming” evidence that the skeletal remains belonged to Lisa and found Tompkins' argument that “ ‘there was very little evidence of the identity of the deceased’ ... preposterous.” Id. at 1341-42.

On March 22, 2001, Governor Bush signed Tompkins' third death warrant, FN10 which resulted in Tompkins filing a second postconviction motion in state court. After a Huff hearing,FN11 the trial court concluded that an evidentiary hearing was required only on Tompkins' claim that the sentencing judge, Harry Lee Coe, erred in failing to (1) independently weigh the aggravating and mitigating circumstances, and (2) disclose that the State had prepared the sentencing order. After hearing several witnesses presented by Tompkins and argument from both Tompkins and the State, the trial court found that these errors entitled Tompkins to a new penalty phase.

FN10. Two death warrants signed in 1989 by Governor Martinez were stayed because Tompkins' initial postconviction motions were still being litigated. FN11. Huff v. State, 622 So.2d 982 (Fla.1993).

The day after the evidentiary hearing, the trial court granted Tompkins' motion for a stay of execution. In a subsequent order on Tompkins' postconviction motion, the trial court provided written findings supporting the denial of all of Tompkins' other claims and the granting of the new penalty phase. The trial court also denied Tompkins' motions for DNA testing and to compel the disclosure of public records.

Tompkins now appeals, raising four issues: (1) whether the trial court erred in denying his Brady claims without an evidentiary hearing; (2) whether the trial court erred in denying his motion for DNA testing; (3) whether the State's failure to preserve evidence violated his due process rights; and (4) whether the trial court erred in denying his motion to compel the *238 production of public records. The State cross-appeals the trial court's order granting a new penalty phase.

I. BRADY CLAIMS

In Tompkins' first issue on appeal, he argues that the trial court erred in summarily denying his claim that the State withheld evidence in violation of Brady. Specifically, Tompkins contends that the State withheld several police reports and other documents FN12 which he claims contain the following exculpatory evidence: (1) statements by individuals that tend to contradict the testimony of Barbara DeCarr, Stevens, and Turco; (2) information about other possible suspects; (3) information about a police investigation in the disappearance of Jessie Albach, one of Lisa DeCarr's friends, which was being investigated in conjunction with the DeCarr case; and (4) information related to the credibility of witnesses Stevens and Turco. Tompkins asserts that he was entitled to an evidentiary hearing and that the trial court erred in denying his Brady claims without holding a hearing.

FN12. These documents include: (1) a June 8, 1984, police report; (2) a legible copy of a March 24, 1983, police report; (3) a July 28, 1983, police report; (4) handwritten lead sheets prepared by Detective Burke; (5) a May 3, 1984, report concerning interviews with W.H. Graham; (6) an August 18, 1982, report; (7) a December 27, 1983, letter from the State Attorney; (8) a May 21, 1984, report; (9) records showing that “in June 1983, W.H. Graham was being investigated for raping one of the girls who worked at the ‘Naked City’ on June 24th”; (10) a June 14, 1983, police report of a phone interview with Lori Lite; (11) a June 9, 1984, report; (12) a May 9, 1984, report; (13) a list of questions to be asked of Detective Burke during trial; and (14) undisclosed impeachment evidence regarding witnesses Stevens and Turco.

In a case such as this, where the defendant files a successive motion for postconviction relief, the trial court may dismiss the motion if it “fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of procedure governed by these rules.” Fla. R.Crim. P. 3.850(f). However, if the trial court does not dismiss the successive motion for the above stated reasons, the trial court must hold an evidentiary hearing unless “the motion, files and records in the case conclusively show that the movant is entitled to no relief.” Fla. R.Crim. P. 3.850(d).

When the trial court denies postconviction relief without conducting an evidentiary hearing, “this Court must accept [the defendant's] factual allegations as true to the extent they are not refuted by the record.” Rose v. State, 774 So.2d 629, 632 (Fla.2000); see also Valle v. State, 705 So.2d 1331, 1333 (Fla.1997) (“Under rule 3.850, a movant is entitled to an evidentiary hearing unless the motion and record conclusively show that the movant is entitled to no relief. Thus we must treat the allegations as true except to the extent they are rebutted conclusively by the record.”) (citation omitted). However, the defendant has the burden of establishing a legally sufficient claim. See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). If the claim is legally sufficient, this Court must then determine whether the claim is refuted by the record. See id.

In Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the United States Supreme Court enunciated the three components of a true Brady violation as follows:

The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued. See also Cardona v. State, 826 So.2d 968, 973 (Fla.2002) (evaluating a Brady claim under the three prong test set forth in Strickler ); Way v. State, 760 So.2d 903, 910 (Fla.2000) (same). Under the prejudice prong, the defendant must show that the suppressed evidence is material. See Strickler, 527 U.S. at 282, 119 S.Ct. 1936. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Way, 760 So.2d at 913 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)) (alteration in original); see also Strickler, 527 U.S. at 290, 119 S.Ct. 1936. In determining materiality, the “cumulative effect of the suppressed evidence must be considered.” Cardona, 826 So.2d at 973; see also Way, 760 So.2d at 913. With these principles in mind, we now address Tompkins' specific allegations.

First, we agree with the trial court that Tompkins' claim that the State withheld information related to the credibility of witnesses Stevens and Turco-specifically, that Stevens served time in jail for committing perjury in 1986 and that Turco pled guilty to extortion in 1995-was insufficiently pled. Tompkins summarily states that these undisclosed facts about Stevens and Turco could have been used to impeach Stevens' and Turco's credibility at trial. However, he presents no explanation for how he could have accomplished this given that these events occurred after his trial. Further, Tompkins fails to allege any basis to establish that Stevens or Turco perjured themselves at his trial. Accordingly, we find no error in the trial court's summary denial of this claim.

We also agree with the trial court's conclusion that the March 24, 1983, police report was not withheld by the State. As the trial court noted, “[d]uring argument, defense counsel conceded that he had obtained a copy of ... [the March 24] report in 1989, however, he was unable to read it.” Because defense counsel knew of the report and could have requested a legible copy, a Brady violation is conclusively refuted. Cf. Way, 760 So.2d at 911-12 (noting that evidence is not “suppressed” where the defendant was aware of the exculpatory information).

As to the list of questions to be asked of Detective Burke and the Jessie Albach files, these documents fail to meet the first prong of Brady because they do not contain information that is favorable to Tompkins. The few answers indicated on the question sheet are irrelevant to Burke's substantive testimony. Contrary to Tompkins' assertions, the alleged nondisclosure of the list of questions in this case is not analogous to the situation presented in Rogers v. State, 782 So.2d 373, 384 (Fla.2001), where this Court held that a cassette tape, which revealed coaching by the prosecutor and conflicting accounts of the witness's testimony, was favorable to the defendant. Unlike the tape at issue in Rogers, the list of questions in this case does not show any attempt by the prosecutor to direct Burke's testimony. Nor does the list indicate any testimony contrary to that presented at trial.

We also reject Tompkins' argument that because the Albach and DeCarr cases were investigated together and there are statements regarding Lisa in the Albach reports, these reports constitute Brady material. In Rogers, this Court held *240 that police reports generated in a joint law enforcement investigation of robberies similar to the one for which the defendant was arrested were favorable to the defendant. See id. at 380-82. This Court concluded that the police reports were favorable to Rogers because they could have been used to show that a person other than Rogers was involved in the robbery with the codefendant and, therefore, the reports could have been used to impeach the codefendant's testimony at trial. See id. at 382.

The Albach documents contain statements regarding Lisa DeCarr and provide information about a W.H. Graham, a person who Tompkins apparently claims is another likely suspect. However, other than the fact that Jessie and Lisa were friends, there is no indication in these reports that Lisa ever had contact with W.H. Graham. Further, the statements about Lisa are general-that Lisa was missing and was friends with Jessie. Thus, these files do not provide the same type of information that this Court concluded was favorable to the defendant in Rogers.FN13. The fact that the Albach files indicate that W.H. Graham had a car that fit the description of the car that witness Wendy Chancey stated she saw Lisa get into on the day she disappeared does not alter our conclusion. Chancey did not testify at trial and trial counsel was not found ineffective by this Court or the Eleventh Circuit Court of Appeals for failing to call Chancey to testify. See Tompkins, 549 So.2d at 1372; Tompkins, 193 F.3d at 1333. Thus, even if we were to assume that this limited piece of information in the Albach files is favorable to Tompkins, he has failed to demonstrate prejudice.

As to the remaining documents, we conclude that even if the information they contain could be said to be favorable to Tompkins, the record in this case conclusively demonstrates that the documents are not material because they cannot “ reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Cardona, 826 So.2d at 982 (quoting Way, 760 So.2d at 913).

Tompkins argues that the information related to police by Maureen Sweeny in the June 8, 1984, police report supports Wendy Chancey's version of the events and supports the defense's theory that Lisa ran away.FN14 We reject this argument for several reasons. First, as previously noted, Chancey did not testify at trial. Second, although Tompkins appears to assume that Sweeny's information was gained from Barbara DeCarr and Tompkins, the report does not indicate who told Sweeny about the version of the events she gave to the police. Third, the fact that Lisa DeCarr's brother and boyfriend went to look for her does not shed any new light on her disappearance because it is clear from the record that Lisa was originally classified as a runaway. Lastly, other than conclusory statements, Tompkins provides no evidence or argument to support *241 his claims of an unreliable investigation by police. Therefore, the only part of the June 8, 1984, report that is even conceivably favorable to Tompkins is a statement made by Sweeny's fiance, Mike Glen Willis, that includes an account of the events on the day Lisa disappeared that is inconsistent with Barbara DeCarr's trial testimony.FN15 However, this one piece of undisclosed inconsistent information, even taken together with any other favorable evidence the State may have failed to disclose to Tompkins, does not rise to the level necessary to undermine our confidence in the verdict in this case.

FN14. The report states in pertinent part: SWEENY advised that it was very strange the explanation given surrounding LISA'S disappearance. She advised that she was told that LISA had come home, found WAYNE sitting at the kitchen table with her mother, and asked “what the hell is he doing here!” Her mother, BARBARA, explained that he had no place to go and that she was going to let him move in with them, until he could get on his feet. At that point LISA ran out the back door. According to MAUREEN [SWEENY], it was very unusual for LISA to be outside without her makeup and supposedly she had been outside and then come inside and then gone out again without her makeup. LISA's brother BILLY left the house to go find her and came back to take care of JAMIE.

SWEENY advised that she had been told that WAYNE had gotten up to chase LISA to try and catch her but she was gone, by the time he got outside. SWEENY advised that LISA had left her purse containing her makeup, etc. on the table.

FN15. With respect to the Willis statement, the report states in pertinent part: “That is when WAYNE and BARBARA told MIKE the story about the last time they saw LISA. The day they last saw LISA was the day WAYNE moved back into the house on Osborne. She became upset because of the fact that she [sic] was moving back and stormed out of the house.”

Tompkins also argues that a July 28, 1983, report contains an account of a phone call from Barbara DeCarr that contradicts her trial testimony. We disagree. In the phone call, Ms. DeCarr stated that she reported that Lisa ran away on March 24, 1983, and that she thought Lisa might be with Jessie. At trial, Ms. DeCarr never stated that she did not, at first, believe that Lisa ran away. In fact, Ms. DeCarr testified that after Tompkins told her Lisa ran away, she called the police. She also testified that she contacted Child Search of Florida and that prior to May 1984 she refused to suspect that Tompkins was involved in Lisa's disappearance. Accordingly, the record conclusively refutes Tompkins' claim that the July 28 report is material evidence because the report would not have impeached Ms. DeCarr's trial testimony. Compare Cardona, 826 So.2d at 981 (concluding that withheld impeachment evidence regarding the State's key witness was of such a degree that it “could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict”).

Finally, we conclude that as to Burke's lead sheets, prejudice is conclusively refuted by the record. Tompkins contends that the lead sheets show that Burke spoke with Lisa's boyfriend, Junior Davis, and had Tompkins known this he would have ascertained whether Davis told police about meeting Stevens at the corner store on the day of Lisa's disappearance. Tompkins also asserts that the lead sheets indicate the true identity of a Bob McKelvin, who allegedly attempted to solicit Lisa. However, the record shows that defense counsel was aware of both Junior Davis and Bob McKelvin during trial. Defense counsel asked Stevens on cross-examination about her encounter with Davis at the corner store. Defense counsel also questioned both Detective Burke and Barbara DeCarr about McKelvin. Detective Burke testified that he could not recall hearing the name McKelvin but he was aware of a neighbor who made sexual advances towards Lisa. Barbara DeCarr testified that McKelvin did proposition her daughter.

Thus, we affirm the trial court's summary denial of Tompkins' Brady claims. Either the undisclosed documents are not Brady material because they are neither favorable to Tompkins nor suppressed, or Tompkins has not demonstrated that he was prejudiced by the lack of disclosure. Further, even if we were to engage in a cumulative analysis and consider the undisclosed, favorable documents in conjunction with Tompkins' claims raised in his first motion for postconviction relief, our conclusion as to prejudice would not change. See Way, 760 So.2d at 915 (noting that conducting a cumulative analysis would not change the Court's conclusion that the defendant failed to establish prejudice).

II. DNA TESTING

On April 10, 2001, Tompkins filed a motion for DNA testing, seeking to have several pieces of evidence tested, including hair samples discovered with Lisa's remains at the grave site. A hearing was held on April 11, 2001, at which Tompkins argued that since the time this evidence was originally submitted for testing by the State in 1984, mitochondrial DNA testing had developed and would now allow DNA to be extracted from the hair samples. FN16 After the trial court orally denied the motion at the hearing, the State revealed that it could not locate the hair samples and Tompkins was permitted to question several witnesses regarding this missing evidence. FN17

FN16. When the hair samples were tested in 1984, nothing conclusive could be established. FN17. Although the hair samples are no longer available, Tompkins contends that DNA testing is possible on other items found at the grave site, including the skeletal remains, robe, pajamas and miscellaneous debris.

In an order dated April 12, 2001, the trial court denied Tompkins' motion, finding that the evidence sought to be tested had been available since 1984, that mitochondrial DNA testing had been available in judicial proceedings since 1996, and that mitochondrial DNA testing had been used in the Thirteenth Judicial Circuit in 1999. The trial court also found that Tompkins failed to set forth any compelling reasons for the DNA testing and that mitochondrial DNA testing would not prove or disprove any material issues in the case.

The trial court again denied Tompkins' request for DNA testing in its order denying Tompkins' motion for postconviction relief and in its order denying Tompkins' motion for rehearing. In the latter order, entered on June 15, 2001, the trial court expanded on its reason for denying the motion for DNA testing in light of the enactment of section 925.11, Florida Statutes (2002).

Section 925.11 requires that the trial court make the following findings after the defendant has filed a sufficient petition and the State has responded: 1. Whether the sentenced defendant has shown that the physical evidence that may contain DNA still exists. 2. Whether the results of DNA testing of that physical evidence would be admissible at trial and whether there exists reliable proof to establish that the evidence has not been materially altered and would be admissible at a future hearing; and 3. Whether there is a reasonable probability that the sentenced defendant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial. § 925.11(2)(f), Fla. Stat. (2002). In this case, the trial court rejected Tompkins' claim that there is an issue of the identity of the remains, noting that the Eleventh Circuit Court of Appeal had addressed this issue and found Tompkins' argument that “ ‘there was very little evidence of the identity of the deceased’ ... preposterous.” Tompkins, 193 F.3d at 1342. The trial court further found that any samples of DNA obtained from the hairs, bone fragments, robe or pajamas would be “unreliably contaminated due to the location of the remains and would not prove *243 [Tompkins'] innocence or result in a mitigation of sentence.”

We agree with both of the trial court's findings. Given the evidence presented at trial regarding the identity of the remains FN18 and the location of the remains, we conclude that even if the DNA analysis indicated a source other than Lisa DeCarr or Tompkins, there is no reasonable probability that Tompkins would have been acquitted or received a life sentence. See § 925.11(2)(f), Fla. Stat. (2002); Fla. R.Crim. P. 3.853; see also King v. State, 808 So.2d 1237, 1247-49 (Fla.2002) (affirming trial court's denial of defendant's motion for mitochondrial DNA testing, where trial court found that even if test showed that hair found on victim's body did not come from victim or defendant, there was no reasonable probability that defendant would have been acquitted or have received a life sentence). Accordingly, we affirm the trial court's denial of Tompkins' motion for DNA testing.

FN18. This included dental identification, as well as evidence that the skeletal remains were that of a midteen female, that jewelry identified as Lisa's was found next to the remains, and that the remains were found wrapped in a robe identified as belonging to Lisa.

In a related claim, Tompkins argues that the trial court erred in finding that there was no bad faith on the part of the State regarding the loss of hair samples discovered with Lisa's remains. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”); see also King, 808 So.2d at 1242-43 (approving trial court's application of Youngblood in evaluating defendant's claim regarding State's destruction of evidence). In light of our conclusion that the trial court did not err in denying Tompkins' motion for DNA testing, we conclude that this issue is moot.

III. PUBLIC RECORDS

In his final issue on appeal, Tompkins argues that he has been denied effective assistance of counsel because the trial court denied him access to public records from the Hillsborough County Sheriff's Office, the State Attorney's Office of the Thirteenth Judicial Circuit, the Florida Department of Law Enforcement, the Division of Elections, the Department of Corrections, the Florida Parole Commission, and the Board of Executive Clemency. In denying Tompkins' motion to compel the production of records, the trial court found that Tompkins “failed to provide sufficient specific and identifiable reasons as to the request for public records.”

The trial court noted that the only issue raised at the hearing on Tompkins' motion to compel was related to juror misconduct and that postconviction counsel both conceded that this issue was known to “himself and trial counsel in 1985” and “provided no explanation as to why requests were not made until after the Governor signed the death warrant.” The trial court also expressed concern “regarding the timing of the voluminous public records requests,” finding that the requests “appear to be at best a ‘fishing expedition’ and at worst a dilatory tactic.”

We review the trial court's denial of Tompkins' motion to compel for an abuse of discretion. See generally Glock v. Moore, 776 So.2d 243, 254 (Fla.2001) (concluding that trial court did not abuse discretion in denying defendant's motions to compel and determining that defendant's right to public records was not denied). In Sims v. State, 753 So.2d 66 (Fla.2000), we addressed the issue of public records where the request is made after the death warrant has been signed: The language of section 119.19 and of rule 3.852 clearly provides for the production of public records after the governor has signed a death warrant.

However, it is equally clear that this discovery tool is not intended to be a procedure authorizing a fishing expedition for records unrelated to a colorable claim for postconviction relief.... ... Rule 3.852 is not intended for use by defendants as, in the words of the trial court, “nothing more than an eleventh hour attempt to delay the execution rather than a focused investigation into some legitimate area of inquiry.” Id. at 70. Thus, a defendant must show how the requested records relate to a colorable claim for postconviction relief and good cause as to why the public records request was not made until after the death warrant was signed. See Glock, 776 So.2d at 254; Bryan v. State, 748 So.2d 1003, 1006 (Fla.1999).

Tompkins argues that he could not have made this public records request earlier because at the time this Court issued its decision in Buenoano v. State, 708 So.2d 941 (Fla.1998), making it clear that any such claim will be barred if counsel fails to exercise due diligence, Tompkins was litigating in federal court and then was precluded by the adoption of Florida Rule of Criminal Procedure 3.852 from filing his request before his death warrant was signed. This argument fails for three reasons.

First, although a request for public records under rule 3.852(h)(3) is contingent upon the signing of a death warrant, rule 3.852(i) “allows collateral counsel to obtain additional records at any time if collateral counsel can establish that a diligent search of the records repository has been made and ‘the additional public records are either relevant to the subject matter of the postconviction proceeding or are reasonably calculated to lead to the discovery of admissible evidence.’ ” Sims, 753 So.2d at 70-71 (quoting rule 3.852(i)(1)). Accordingly, Tompkins was not required to wait until the death warrant was signed to make an additional public records request, provided he could have made the required showing under rule 3.852(i).

Second, Tompkins' request for information from the Division of Elections related to Judge Coe's campaign contributions could have been made years ago, and Tompkins has not indicated any good cause as to why he did not make this request until after the death warrant was signed. Similarly, Tompkins' request for juror criminal records could also have been made years ago. As noted by the trial court, counsel conceded that this issue was known to trial counsel in 1985 and provided no explanation as to why the requests were not made until after the death warrant was signed. Accordingly, we conclude that the trial court did not abuse its discretion in denying Tompkins' motion to compel the production of public records.FN19

FN19. We do not address Tompkins' requests to the Hillsborough County Sheriff's Office, the Department of Corrections, the Florida Parole Commission and the Board of Executive Clemency in further detail because Tompkins has failed to present any argument as to how the trial court erred in denying the motion to compel with respect to these agencies. See Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999) (stating that where defendant did not present any argument or allege on what grounds trial court erred in denying claims in his postconviction motion, claims were “insufficiently presented for review”); Coolen v. State, 696 So.2d 738, 742 n. 2 (Fla.1997) (explaining that the defendant's “failure to fully brief and argue” specific points on appeal “constitutes a waiver of these claims”).

IV. THE STATE'S CROSS-APPEAL

On cross appeal, the State seeks reversal of the trial court's decision to *245 grant Tompkins a new penalty phase trial.FN20 In its order granting the new penalty phase, the trial court stated:

FN20. The trial judge at this successive rule 3.850 proceeding was Judge Perry. The trial judge at the trial and for the initial postconviction motion was Judge Coe, who is now deceased.

The Court finds that testimony demonstrates that there was an ex parte communication between the sentencing judge and the State in this case. The Court finds that the limitation of argument that the Court imposed for the State is not a sufficient “weighing” by the trial judge. The Court finds that the failure to independently weigh aggravating and mitigating circumstances in this case entitles Defendant to relief. State v. Tompkins, No. 84-10538, order at 10 (Fla. 13th Cir. Ct. order filed Apr. 20, 2001). Based on our review of the record of the trial, direct appeal, and postconviction proceedings in the state and federal courts, we conclude that the trial court erred in granting Tompkins a new penalty phase trial.

For the purpose of analyzing the trial court's ruling, we have assumed, without deciding, that there was competent, substantial evidence presented at the evidentiary hearing for the trial court to conclude that Judge Coe either himself communicated or had his assistant communicate to the prosecutor that the prosecutor was to prepare the written sentencing order, and that the prosecutor did in fact prepare the written sentencing order which was entered by Judge Coe.FN21 Although we do not condone the ex parte communication, we conclude that under the circumstances of this case, which we here set out in detail, Tompkins is not entitled to a new penalty phase because he has not demonstrated that he was denied his right to a neutral, detached judge or that Judge Coe failed to independently weigh the aggravating and mitigating circumstances. Compare Randolph v. State, 853 So.2d 1051, 1057 (Fla. 2003) (concluding that the defendant was not denied a neutral, detached judge where the judge's law clerk engaged in an ex parte communication with the prosecutor but there was no evidence that the judge either determined that the defendant would receive a death sentence prior to the sentencing proceedings or did not independently weigh the aggravating and mitigating circumstances) with Porter v. State, 723 So.2d 191, 197 (Fla. 1998) (concluding that the defendant was entitled to a new sentencing based on evidence that the trial judge made up his mind to sentence the defendant to death before the penalty proceedings began).

FN21. At the evidentiary hearing, the prosecutor testified that he had no specific recollection of being called by Judge Coe's office. The prosecutor testified that the notes in his office's records indicated that someone from Judge Coe's office called him shortly after the jury returned its recommendation of death. The prosecutor stated that he assumed the call was to prepare the sentencing order because that would not have been unusual for Judge Coe to do.

Our analysis begins with the return of the jury in the 1985 penalty phase trial. Upon receiving the jury's recommendation of death by a 12-0 vote, the court immediately pronounced sentence: THE COURT: Okay. Record the verdict. Discharge the jury. Approach the bench. No, I mean out there. Bring the defendant forward. Any further comments? MR. HERNANDEZ [DEFENSE COUNSEL]: No, your honor. THE COURT: Okay. I will accept the jury's finding of guilt and its recommendation of the death penalty. Make an adjudication of guilt. Can you or your client show cause why sentence should not be pronounced at this time? MR. HERNANDEZ: No, your honor. THE COURT: It's the judgment, order, and sentence of this Court that the defendant be sentenced to death in the electric chair.

Although we changed this procedure after the penalty phase in this 1985 trial,FN22 at the time of this penalty phase trial, this Court had held that the pronouncement of a death sentence at the time of the jury's return with a recommendation of death was not reversible error. See Randolph v. State, 463 So.2d 186, 192 (Fla.1984). Moreover, if Tompkins were to pursue an issue with respect to Judge Coe's having pronounced the sentence upon the return of the jury's advisory sentence, Tompkins had to do so in his direct appeal. This issue is therefore not presently before this Court. However, the above portion of the record establishes what has been a known fact since 1985-that Judge Coe had considered and decided that death was the appropriate sentence before the written sentencing order was entered.

FN22. See Spencer v. State, 615 So.2d 688, 690-91 (Fla.1993) (setting forth exact procedure to be used in sentencing phase proceedings, including requirement that after hearing any additional evidence presented by the State or the defendant, the trial court “recess the proceeding to consider the appropriate sentence”); Grossman v. State, 525 So.2d 833, 841 (Fla.1988) (holding that “all written orders imposing a death sentence be prepared prior to the oral pronouncement of sentencing for filing concurrent with the pronouncement”).

The sentencing order which was thereafter entered set out three aggravating circumstances: (1) Tompkins was previously convicted of felonies involving the use or threat of violence to a person; (2) the murder was committed while Tompkins was engaged in an attempt to commit sexual battery; and (3) the murder was especially heinous, atrocious, or cruel (HAC). The only mitigating circumstance provided in the order was Tompkins' age (twenty-six) at the time of the murder.

On direct appeal, this Court found that competent, substantial evidence in the record supported those three aggravating factors. Importantly, for present purposes, this Court stated the following: Appellant next contends that the trial court did not give adequate consideration to the evidence of nonstatutory mitigating circumstances. With respect to nonstatutory mitigating circumstances, the trial court stated that it found “NONE, notwithstanding testimony to the effect that the defendant was a good family member and good employee.” We conclude that the judge did consider the evidence but found that it did not rise to a sufficient level to be weighed as a mitigating circumstance.

Appellant's final claim of error is that the trial judge did not make a reasoned independent judgment of whether or not the death penalty should be imposed. Appellant bases this argument on the trial judge's written order stating that the jury's death recommendation is “entitled to great weight.” We reject this claim. The trial court expressly stated: “After considering only the evidence before the jury, the court finds that the aforesaid statutory aggravating circumstances clearly outweigh the statutory mitigating circumstance.” There is nothing in the court's order or elsewhere in the record to suggest that the trial court imposed the death penalty because it felt compelled to do so by the jury's recommendation. Tompkins, 502 So.2d at 421 (emphasis supplied).

This statement shows that on direct appeal this Court conducted a detailed record review of the trial court's order. Based on that review, this Court concluded that the record supported the finding of three very weighty aggravators and the finding of only one weak mitigator. It remains evident that the three weighty aggravators outweigh the one weak mitigator of age. Thus, based upon the record in this case through direct appeal, we conclude that the issue concerning the preparation of the sentencing order is not a substantive issue of whether the aggravators outweighed the mitigators, but rather is a procedural issue of whether Judge Coe himself conducted the requisite weighing of aggravators and mitigators at the time the sentencing order was prepared.

Because the relevant concern underlying the requirement that the trial judge prepare the sentencing order is assuring that the judge independently weigh the aggravating and mitigating circumstances, see Patterson v. State, 513 So.2d 1257, 1261 (Fla.1987), we have determined that this procedural issue was resolved during the pendency of this case. Following this Court's decision affirming Tompkins' conviction and death sentence on direct appeal, Tompkins filed his initial rule 3.850 motion for postconviction relief, and Judge Coe held an evidentiary hearing on the motion on May 19 and 20, 1989. At the hearing, Tompkins argued that his trial counsel was ineffective in failing to present additional mitigating evidence during the penalty phase at trial. See Tompkins v. Dugger, 549 So.2d 1370, 1372 (Fla.1989).

Following that evidentiary hearing, Judge Coe denied relief. He expressly found that the additional mitigators asserted by Tompkins “would not have affected the penalty in light of the crime and the nature of the aggravating circumstances.” Id. at 1373. Judge Coe reasoned that the additional mitigating evidence did not create “a reasonable probability that but for the counsel's errors, the results in the sentencing phase would have been different, given the 12/0 verdict, given the egregious nature of the offense, given the two prior rapes.” Record at 470, Tompkins v. Dugger (No. 74235). Judge Coe stated, “I don't think there was a reasonable possibility, given proper investigation, preparation and presentation, that the outcome would have been different, nor do I think this lack undermined any confidence in the outcome.” Id.

This Court approved Judge Coe's conclusion based on his weighing of the aggravating and mitigating circumstances following an evidentiary hearing. See Tompkins, 549 So.2d at 1373. Furthermore, this Court affirmed the death sentence after additional mitigating evidence which had not been presented at trial, was presented and weighed at the evidentiary hearing.

On review of the denial of Tompkins' federal habeas petition, the Eleventh Circuit Court of Appeals similarly “considered all of the mitigating circumstance evidence Tompkins says should have been presented at the sentence stage, along with that which was actually presented,” and concluded that the weight of the “multiple, strong aggravating circumstances ... overwhelm[ed] the mitigating circumstance evidence that was and could have been presented.” Tompkins v. Moore, 193 F.3d 1327 (11th Cir.1999).

Accordingly, based upon this examination of the record in this case, we conclude that Tompkins has not demonstrated that he was denied a neutral, detached judge or that Judge Coe failed to independently weigh the aggravating and mitigating circumstances at the time the sentencing order was prepared.

CONCLUSION

Based on the forgoing, we affirm the trial court's summary denial of Tompkins' Brady claims and affirm the trial court's denial of Tompkins' motion for DNA testing and motion to compel the production of public records. However, we reverse the trial court's order granting a new penalty phase trial and reinstate the death sentence. The stay of execution is dissolved effective 30 days after this decision becomes final. It is so ordered. WELLS, PARIENTE, LEWIS, CANTERO and BELL, JJ., concur.ANSTEAD, C.J., concurs in part and dissents in part with an opinion. QUINCE, J., recused.

*****

ANSTEAD, C.J., concurring in part and dissenting in part.

The only disagreement I have with the majority is the holding that the trial court erred in granting Tompkins a new sentencing phase based on his claim that the sentencing judge failed to independently weigh the aggravating and mitigating circumstances and failed to disclose that the State prepared the sentencing order. This holding is directly contrary to our controlling law, fails to respect the role of the trial judge as fact-finder, and conflicts with the outcome of a recent case involving almost identical circumstances and the same sentencing judge.FN23

FN23. Although we do not condone the ex parte communication in this case, we note that Tompkins was not denied either a neutral, detached judge or an impartial sentencer. Compare Randolph v. State, 853 So.2d 1051, 1064 (Fla.2003) (concluding that the defendant was not denied a neutral and detached judge where the judge's law clerk engaged in an ex parte communication with the prosecutor but there was no evidence that the judge determined that the defendant would receive a death sentence prior to the sentencing proceedings) with Porter v. State, 723 So.2d 191, 197 (Fla.1998) (concluding that the defendant was entitled to a new sentencing based on evidence that the trial judge made up his mind to sentence the defendant to death before the penalty proceedings began). In granting relief on this claim, the trial court explained:

During the April 17, 2001 hearing, the State conceded that an evidentiary hearing was necessary on this claim. On April 18, 2001, the Court conducted an evidentiary hearing on this claim. Based upon the testimony of the witnesses and the argument of counsel, the Court finds that Defendant is entitled to relief with regard to this claim.

After the evidentiary hearing, the Court finds that the former State Attorney, Mike Benito, admitted drafting the sentencing order for the Defendant. The Court finds that Mr. Benito drafted the order after being contacted by the judge or the judge's office. Additionally, the Court finds that the sentence of the Defendant was pronounced immediately after the jury provided its recommendation. ( See Transcript of Sentencing, attached).

Florida Statutes require that the sentencing judge independently weigh the aggravating and mitigating circumstances. Fla. Stat. 921.141 (1985). It is impossible for a judge to request that any party draft any sentencing order which requires the weighing of aggravating and mitigating circumstances. See Card v. State, 652 So.2d 344 (Fla.1995) and Spencer v. State, 615 So.2d 688 (Fla.1993).

The Court finds that testimony demonstrates that there was an ex parte communication between the sentencing judge and the State in this case. The *249 Court finds that the limitation of argument that the Court imposed for the State in arguing aggravating and mitigating circumstances is not sufficient “weighing” by the trial judge. The Court finds that the failure to independently weigh aggravating and mitigating circumstances in this case entitles Defendant to relief.

As noted above, these findings are supported by the evidence and this Court's law. In this case, prosecutor Benito testified that although he did not have a specific recollection of being called by Judge Coe's office, he prepared the sentencing order in this case as he had done in other cases for Judge Coe. The State presented no evidence to refute Benito's testimony that he was asked by Judge Coe, in an ex parte communication, to prepare the order. Further, the record supports the trial court's finding that there was no weighing of the aggravating and mitigating circumstances in this case. Judge Coe pronounced sentence immediately following the jury recommendation, and as in State v. Riechmann, 777 So.2d 342 (Fla.2000), the record does not contain any oral findings reflecting any independent weighing of the aggravating and mitigating circumstances by Judge Coe.

Further, Tompkins' trial counsel and prior postconviction counsel testified that they were unaware that the sentencing order had been prepared by the State. Although the State makes a due diligence argument, the State cites nothing in the record that would have led counsel to conclude that the State prepared the sentencing order.

In Roberts v. State, 840 So.2d 962 (Fla.2002), Maharaj v. State, 778 So.2d 944 (Fla.2000), and State v. Riechmann, 777 So.2d 342, 351 (Fla.2000), the defendants were granted new sentencing proceedings based on the same claim Tompkins presented in this case. In Maharaj, the State did not appeal the trial court's granting of a new sentencing proceeding and this Court affirmed this issue without discussion. See 778 So.2d at 947-48, 959.

In Riechmann, this Court reviewed the trial court's order granting a new penalty phase and concluded that the trial court properly considered “the nature of the contact between the judge and the prosecutor, when the judge was given the order, and when he gave copies to the defendant,” in determining that “Riechmann was denied an independent weighing of the aggravating and mitigating circumstances.” 777 So.2d at 352. This Court noted that the record supported the trial court findings that “the record contains no oral findings independently made by the trial judge, which satisfies the weighing process required by section 921.141(3), nor did defense counsel know that the State prepared a sentencing order to which he failed to object.” Id.

Most recently, in Roberts, this Court affirmed the trial court's findings that the sentencing order was prepared by the State after an ex parte communication with the trial judge. Although contradictory evidence was presented as to whether the trial judge asked the State to prepare the sentencing order, this Court found that the lower court's ruling was supported by substantial competent evidence and affirmed the grant of a new sentencing proceeding. See Roberts, 840 So.2d at 972-73.

Because the trial court's order indicates that the judge properly considered the factors set forth in this Court's controlling case law, I would affirm the trial court's order for a new penalty phase.

Tompkins v. State, 894 So.2d 857 (Fla. 2005) (Successive PCR).

Background: Following final appellate affirmance, 502 So.2d 415, of his conviction of first-degree murder and sentence of death, denial of his initial motion for post-conviction relief and state habeas petition, 549 So.2d 1370, and affirmance of denial of federal habeas corpus relief, 193 F.3d 1327, movant filed successive motion for post-conviction relief and motion for post-conviction DNA testing. The Circuit Court, Hillsborough County, Daniel L. Perry, J., denied motions, and movant appealed. During pendency of appeal, movant filed motion to relinquish jurisdiction, which motion was denied by the Supreme Court. Movant filed another set of motions for post-conviction relief and for DNA testing. The Circuit Court, Hillsborough County, Daniel L. Perry, J., dismissed both motions for lack of jurisdiction. The Supreme Court, 872 So.2d 230, affirmed denial of first set of successive post-conviction motions. Movant appealed from dismissal of second set of successive post-conviction motions.

Holdings: The Supreme Court held that: (1) dismissal of motions over which circuit court lacked jurisdiction was appropriate remedy, and (2) it would grant movant extension of time in which to file new post-conviction motion raising claims of newly discovered evidence. Ordered accordingly.