Jose Antonio JIMENEZ, Appellant, v. STATE of Florida, Appellee. Jose Antonio Jimenez, Appellant, v. State of Florida, Appellee.

PER CURIAM.

Jose Antonio Jimenez, a prisoner under sentence of death and an active death warrant, has filed two appeals in this Court since Governor Scott signed his death warrant on July 18, 2018. Collectively, Jimenez appeals the postconviction courts orders summarily denying his fifth and sixth successive motions for postconviction relief filed under Florida Rule of Criminal Procedure 3.851, the postconviction courts order denying his motion to amend his sixth successive postconviction motion, and the postconviction courts order denying his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons below, we affirm the denials of all four motions and lift the stay of execution entered on August 10, 2018.

BACKGROUND

On October 2, 1992, Jimenez beat and stabbed to death 63-year-old Phyllis Minas in her home in Dade County, Florida. Jimenez v. State , 703 So.2d 437, 438 (Fla. 1997), cert. denied , 523 U.S. 1123, 118 S.Ct. 1806, 140 L.Ed.2d 945 (1998). Jimenezs jury found him guilty of burglary with an assault and battery in an occupied dwelling and first-degree murder, and he was subsequently sentenced to death for the murder consistent with his penalty phase jurys unanimous recommendation. Id. We previously described the facts of the incident as follows:

During the attack [Minass] neighbors heard her cry, Oh God! Oh my God! and tried to enter her apartment through the unlocked front door. Jimenez slammed the door shut, locked the locks on the door, and fled the apartment by exiting onto the bedroom balcony, crossing over to a neighbors balcony and then dropping to the ground. Rescue workers arrived several minutes after Jimenez inflicted the wounds, and Minas was still alive. After changing his clothes and cleaning himself up, Jimenez spoke to neighbors in the hallway and asked one of them if he could use her telephone to call a cab.

Jimenezs fingerprint matched the one lifted from the interior surface of the front door to Minass apartment, and the police arrested him three days later at his parents home in Miami Beach.

Id. We upheld Jimenezs convictions and sentence of death on direct appeal, and they became final in 1998 when the United States Supreme Court denied certiorari. Id. at 442 ; Jimenez v. Florida , 523 U.S. 1123, 118 S.Ct. 1806, 140 L.Ed.2d 945 (1998).

Since then, Jimenez has engaged in extensive litigation in both state and federal court, none of which has resulted in relief from his convictions or sentence of death. As relevant to the claims raised in these proceedings, in 2001, we upheld the denial of Jimenezs initial postconviction motion.

Jimenez v. State , 810 So.2d 511, 513 (Fla. 2001). Thereafter, we affirmed the denial of Jimenezs first successive postconviction motion, which Jimenez filed in April 2005. Jimenez v. State , 997 So.2d 1056 (Fla. 2008). Additionally, Jimenez sought relief in federal court pursuant to a petition for writ of habeas corpus, the district court denied relief, and the Eleventh Circuit Court of Appeals denied Jimenezs request for a certificate of appealability. Jimenez v. Fla. Dept of Corr. , 481 F.3d 1337, 1340-41 (11th Cir.), cert. denied , 552 U.S. 1029, 128 S.Ct. 628, 169 L.Ed.2d 405 (2007).

Governor Scott signed Jimenezs death warrant on July 18, 2018. Thereafter, Jimenez filed several requests for public records to numerous agencies, including a request for additional public records pursuant to Florida Rule of Criminal Procedure 3.852(h)(3) to the City of North Miami Police Department (NMPD), which was the agency that investigated the victims murder and, three days later, arrested Jimenez. Collateral counsel had not previously requested public records from NMPD (or any other agency), which is a prerequisite for a request for additional records pursuant to rule 3.852(h)(3). See Fla. R. Crim. P. 3.852(h)(3) ; see also Hannon v. State , 228 So.3d 505, 511 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 441, 199 L.Ed.2d 326 (2017). NMPD had, however, more than 18 years before Jimenezs post-warrant records request, submitted records to the repository pursuant to the provisions of rule 3.852(h) that apply to cases like Jimenezs, in which the mandate affirming the conviction and sentence of death was issued prior to rule 3.852s effective date of October 1, 1998. See Fla. R. Crim. P. 3.852(h)(1). Although NMPD objected to and the postconviction court ultimately denied Jimenezs public records request to NMPD, NMPD sent its entire, unredacted file to the repository as a courtesy before the postconviction court entered its denial order so that there could be a comparison between it and NMPDs prior submission. The repository received NMPDs submission on July 25, 2018, and on July 30, 2018, Jimenez obtained an order from the postconviction court allowing him to access those records, even though they had not been redacted, subject to a prohibition against releasing any confidential or exempt records without permission from the postconviction court. The records repository began emailing Jimenezs counsel the records that same day and also sent Jimenezs counsel a CD containing the records (over 1,000 pages), which was received the next day, July 31, 2018.

During the same time period that Jimenez was reviewing NMPDs post-warrant records submission, he was also litigating in the postconviction court his fifth successive postconviction motion and a motion to correct illegal sentence, both of which Jimenez filed after the Governor signed his death warrant. After holding a Huff hearing, the postconviction court summarily denied Jimenezs fifth successive postconviction motion and denied his motion to correct illegal sentence on July 31, 2018. Jimenez appealed the denials to this Court on August 1, 2018.

On the same day, August 1, 2018, during their review of NMPDs post-warrant records submission, Jimenezs counsel and his investigator saw handwritten documents that they did not recognize. The investigator then traveled to the repository to compare the 2018 submission against NMPDs prior submission, and Jimenezs counsel ultimately confirmed that 81 pages of handwritten records had not previously been disclosed. Jimenezs counsel further confirmed that there was no indication in NMPDs prior submission that records had been withheld or public records exemptions claimed.

On August 6, 2018, without first seeking leave from this Courts post-warrant scheduling order-which required all proceedings in the postconviction court to be completed by July 31, 2018-Jimenez filed in the postconviction court his sixth successive postconviction motion raising one claim with several subclaims in which he argued that NMPDs post-warrant records submission includes newly discovered evidence that demonstrates Brady , Giglio , due process, and discovery violations that singularly and cumulatively entitle him to relief from his convictions and death sentence or, at minimum, an evidentiary hearing. After the postconviction court held a Huff hearing, Jimenez sought to amend his sixth successive postconviction motion to add a new subclaim as well as additional allegations regarding other of his subclaims. On August 9, 2018, the postconviction court denied Jimenezs motion to amend and summarily denied his sixth successive postconviction motion, stating in both denial orders that it would not entertain rehearing.

On August 10, 2018, Jimenez appealed to this Court the summary denial of his sixth successive postconviction motion and the denial of his motion to amend. Thereafter, we stayed Jimenezs execution and amended nunc pro tunc the July 31, 2018, deadline for completing proceedings before the postconviction court to the date that they had actually been completed, August 10, 2018. In so doing, we prohibited additional filings in the postconviction court by either party without prior leave of this Court.

Presently pending before this Court are (1) Jimenezs first post-warrant appeal, in which Jimenez challenges the summary denial of his fifth successive postconviction motion and the denial of his motion to correct illegal sentence; and (2) Jimenezs second post-warrant appeal, in which Jimenez challenges the summary denial of his sixth successive postconviction motion and the denial of his motion to amend. We address them in turn.

ANALYSIS

I. First Post-Warrant Appeal

A. Fifth Successive Postconviction Motion

In appealing the summary denial of his fifth successive postconviction motion, Jimenez raises four claims: (1) that he was denied access to public records necessary and relevant to framing and prosecuting his postconviction claims; (2) that he is entitled to an evidentiary hearing on his claim that Floridas use of etomidate as the first of three drugs in its lethal injection procedure places him at substantial risk of serious harm in violation of the Eighth Amendment and article I, section 17 of the Florida Constitution ; (3) that Floridas continued use of a three-drug protocol instead of a one-drug protocol constitutes cruel and unusual punishment in light of evolving standards of decency; and (4) that executing him after he has spent more than 23 years on death row constitutes cruel and unusual punishment in light of evolving standards of decency. None of these claims warrants relief.

(1) Public Records

Jimenez first challenges the postconviction courts denial of his requests for certain public records pursuant to Florida Rule of Criminal Procedure 3.852(h)(3) and (i), which he claims are necessary and relevant to framing and prosecuting his postconviction claims. We review rulings on public records requests pursuant to Florida Rule of Criminal Procedure 3.852 for abuse of discretion, Hannon , 228 So.3d at 511, and find none here.

Jimenez first argues that the postconviction court erred by denying his rule 3.852(h)(3) request to the Florida Department of Corrections (DOC) on the ground that the records are overbroad, burdensome, and not related to a colorable claim. Jimenez relies on this Courts decision in Muhammad v. State , 132 So.3d 176, 201 (Fla. 2013), for the proposition that it is an abuse of discretion to deny an inmate his own inmate and medical records. However, unlike Muhammads counsel, who had made previous requests for these records from the DOC, and [following the signing of Muhammads death warrant] sought an update of his inmate and medical files, id. , Jimenezs collateral counsel had not previously requested public records from DOC as required by the plain language of rule 3.852(h)(3).

Collateral counsel does not deny the absence of a prior records request to DOC. Rather, he argues that rule 3.852 relieved him of that obligation because it established the records repository. However, this argument is contrary to the plain language of rule 3.852(h)(3), which limits the request for production of additional public records under that subdivision to a person or agency from which collateral counsel has previously requested public records. Fla. R. Crim. P. 3.852(h)(3) ; see also Rolling v. State , 944 So.2d 176, 181 (Fla. 2006) (Because there is no evidence in the record that Rolling has ever requested records from the Medical Examiners Office or the Department of Corrections before his [post-warrant request], we find that the trial court was correct in denying his claim without an evidentiary hearing.); Sims v. State , 753 So.2d 66, 70 (Fla. 2000) (The use [in rule 3.852(h)(3) ] of the past tense and such words and phrases as requested, previously, received, produced, previous request, and produced previously are not happenstance.).

Moreover, unlike the public records request at issue in Muhammad , Jimenezs request to DOC did not specifically identify the records requested, or provide any context as to how those records were relevant to a potential, colorable claim. Cf. Muhammad , 132 So.3d at 201 (affirming the denial of overly broad requests under rule 3.852(h)(3) that did not clearly demonstrate how the records were relevant to a colorable claim). The record nevertheless shows that DOC produced, as a courtesy, Jimenezs medical and psychological records, which had previously been produced to different counsel in 2015 in connection with Jimenezs clemency proceedings. While Jimenez argues that his inmate file might reveal a basis to challenge his competency to be executed, even though Jimenez acknowledged receipt of his medical and psychological records in the fifth successive postconviction motion at issue, he did not allege that claim. Nor has he explained how his inmate file would be relevant to the claims he did raise in his motion, or the claims he subsequently raised in his sixth successive postconviction motion discussed below. Cf. Sims , 753 So.2d at 69 (explaining that rule 3.852is a discovery rule for public records production ancillary to proceedings pursuant to rules 3.850 and 3.851).

On these facts, holding that the postconviction court abused its discretion in denying Jimenezs eleventh-hour request would be antithetical to the purpose of rule 3.852(h)(3). See id. at 70 (explaining that rule 3.852(h)(3) is not intended to be a procedure authorizing a fishing expedition for records unrelated to a colorable claim for postconviction relief but rather provide[s] for the production of public records from persons and agencies who were the recipients of a public records request at the time the defendant began his or her postconviction odyssey). Accordingly, we affirm the postconviction courts denial of Jimenezs request to DOC pursuant to rule 3.852(h)(3).

We also find no abuse of discretion in the postconviction courts denial of requests for additional records from DOC, the Florida Department of Law Enforcement (FDLE), and the District Eight Medical Examiner pursuant to rule 3.852(i), which Jimenez requested in support of his challenges to Floridas current lethal injection protocol. Specifically, although the postconviction court ordered DOC and FDLE to produce checklists, logs, and documents memorializing the execution of Eric Branch, Jimenez claims that the postconviction court erred by denying his requests for records related to the selection of drugs, creation of the protocol, alternatives to the current protocol, reasons for the recent changes that have been made, including to the positioning of inmates in the death chamber and the mitten-like coverings that are placed on their hands, and the records of three other executions besides Branchs using the current protocol (Mark James Asay, Cary Michael Lambrix, and Patrick Hannon).

Recently, in finding no abuse of discretion in the denial of a similar request, we explained that [t]he current injection protocol was fully considered and approved of in Asay VI , and production of records relating to lethal injection are unlikely to lead to a colorable claim for relief [when] the challenge to the constitutionality of lethal injection as currently administered in Florida has been fully considered and rejected by the Court. Hannon , 228 So.3d at 511-12 (quoting Walton v. State , 3 So.3d 1000, 1014 (Fla. 2009) ); see also Correll v. State , 184 So.3d 478, 492 (Fla. 2015) (holding public records request for the autopsy records of twenty-one inmates is not only unduly burdensome, but also unlikely to lead to a colorable claim because the records would not establish when the inmates became unconscious, or whether they experienced pain during their executions); Muhammad , 132 So.3d at 203 ([R]equests related to actions of lethal injection personnel in past executions do not relate to a colorable claim concerning future executions because there is a presumption that members of the executive branch will perform their duties properly.). We likewise find no abuse of discretion here.

(2) Use of Etomidate

Jimenez next argues that the postconviction court erred in summarily denying his claim that Floridas use of etomidate as the first of three drugs in its lethal injection procedure places him at substantial risk of serious harm in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the Florida Constitution. We disagree.

Claims raised under rule 3.851 may be summarily denied when they are legally insufficient ... or are positively refuted by the record. Because a postconviction courts decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. Marek v. State , 8 So.3d 1123, 1127 (Fla. 2009) (quoting Connor v. State , 979 So.2d 852, 868 (Fla. 2007) ). Further, [c]onclusory and speculative allegations are insufficient to warrant an [e]videntiary [h]earing. Knight v. State , 923 So.2d 387, 399 (Fla. 2005) (quoting order denying amended motion for postconviction relief).

In Asay VI , we fully considered and approved of the current lethal injection procedure, which replaced midazolam with etomidate as the first drug in the three-drug protocol. In so doing, we held that competent, substantial evidence supported the postconviction courts finding after an evidentiary hearing that Asay had failed to make the showing required to prevail on a method of execution challenge under the Eighth Amendment pursuant to the United States Supreme Courts decision in Glossip v. Gross , --- U.S. ----, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015). Asay VI , 224 So.3d at 701 (In Glossip , the Supreme Court provided that a condemned prisoner must: (1) establish that the method of execution presents a substantial and imminent risk that is sure or very likely to cause serious illness and needless suffering and (2) identify a known and available alternative method of execution that entails a significantly less severe risk of pain.).

Jimenez argues that events that transpired during Eric Branchs February 2018 execution constitute new evidence requiring reconsideration of the constitutionality of lethal injection as currently administered in Florida. Specifically, Jimenez argues that screaming and body movements during Branchs execution show that Jimenez will experience severe pain on injection of the first drug in the protocol-etomidate-and that etomidate may not render Jimenez fully unconscious for the entire period of the execution, thereby placing him at substantial risk of serious harm.

However, it is impossible to know whether Branchs actions were in protest of his execution or a reaction to etomidate, such as the transient venous pain on injection and transient skeletal movements, including myoclonus recognized among the most frequent adverse reactions in Asay VI , 224 So.3d at 701. Moreover, the record indicates that the required consciousness check was performed before the subsequent administration of the second and third drugs.

In sum, Jimenezs speculative and conclusory allegations regarding Branchs execution are insufficient to require revisiting our holding in Asay VI approving the constitutionality of lethal injection as currently administered in Florida over the challenge that the use of etomidate as the first drug in the lethal injection protocol presents a substantial risk of serious harm. Cf. Hannon , 228 So.3d at 508-09 (affirming postconviction courts summary denial of challenge to constitutionality of the current lethal injection protocol approved in Asay VI where Hannon presented no new evidence that would require us to reconsider our recent approval of the three-drug protocol).

(3) Three-Drug Protocol

Jimenez next argues that Floridas continued use of a three-drug protocol instead of a one-drug protocol constitutes cruel and unusual punishment in light of evolving standards of decency. However, we have consistently rejected [the] challenge that the DOC should substitute the current three-drug protocol with a one-drug protocol. Hannon , 228 So.3d at 509 (citing Asay VI , 224 So.3d at 702 ; Muhammad , 132 So.3d at 196-97 ); see also Muhammad , 132 So.3d at 197 (Florida is not obligated to adopt an alternative method of execution without a determination that Floridas current three-drug protocol is unconstitutional.). Accordingly, the postconviction court properly denied this claim.

(4) Length of Time on Death Row

In his final claim in the appeal of the denial of his fifth successive postconviction motion, Jimenez argues that, because he has spent over 23 years on death row, adding his execution to that punishment constitutes cruel and unusual punishment in light of evolving standards of decency. We have consistently rejected this argument and decline to recede from our long-standing precedent in Jimenezs case. See, e.g. , Lambrix v. State , 217 So.3d 977, 988 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 312, 199 L.Ed.2d 202 (2017) (denying relief on claim that the totality of the punishment the State has imposed on [the capital defendant], which now includes not just execution, but also more than three decades of being on death row, violates the Eighth Amendment and citing numerous cases demonstrating that [t]his Court has consistently rejected this claim). Accordingly, we affirm the postconviction courts denial of relief on this claim.

B. Motion to Correct Illegal Sentence

Jimenez also appeals the postconviction courts denial of his rule 3.800(a) motion to correct illegal sentence. Jimenez argues that his life sentence for burglary with an assault and battery in an occupied dwelling is illegal in light of this Courts decision in Delgado v. State , 776 So.2d 233 (Fla. 2000), in which this Court receded from the interpretation of the burglary statute that it had used to affirm Jimenezs burglary conviction on direct appeal. We previously denied Jimenez relief pursuant to Delgado in affirming the denial of his initial postconviction motion, see Jimenez , 810 So.2d at 512-13, and we reject his attempt to misuse rule 3.800(a) to revive arguments that are procedurally barred. See also Jimenez , 481 F.3d at 1340, 1340, 1342-43 (denying Jimenezs application for a certificate of appealability to appeal the district courts denial of his federal habeas claim that this Courts refusal on collateral review to apply a subsequent construction of the burglary statute to the conduct for which Jimenez was convicted violated due process and the Eighth Amendment prohibition against the arbitrary and capricious imposition of a death sentence because the claim was procedurally barred and because, even without the procedural bar, Jimenez did not make a substantial showing that [this Courts] refusal to apply retroactively an interpretation of the burglary statute violated his constitutional rights). Accordingly, we affirm the postconviction courts denial of relief.

II. Second Post-Warrant Appeal

Jimenezs second post-warrant appeal challenges the postconviction courts summary denial of his sixth successive postconviction motion, in which Jimenez raised claims of Brady , Giglio , discovery, and due process violations arising from alleged newly discovered evidence contained within 81 pages of investigatory and trial preparation materials recently disclosed by NMPD. In addition, Jimenez appeals the postconviction courts denial of his motion to amend his sixth successive postconviction motion to add a new subclaim and additional argument regarding other of his subclaims. We address the motion to amend first, followed by the sixth successive postconviction motion.

A. Motion to Amend

[E]ven accepting for the sake of argument that the circuit court erred in denying the motion [to amend], any such error would clearly be harmless. Zakrzewski v. State , No. SC11-1896, 115 So.3d 1004 (Fla. Nov. 9, 2012) (table). Jimenezs claims are based upon written materials contained in NMPDs post-warrant records submission that this Court is just as capable as the trial court of assessing. Johnson v. State , 44 So.3d 51, 72 n.18 (Fla. 2010). As explained below, even giving Jimenez the benefit of his proposed amendments, none of his claims warrants relief. Accordingly, we affirm the denial of Jimenezs motion to amend and find no error in the postconviction courts refusal to allow rehearing for claims that are conclusively refuted by the record and, thus, due to be summarily denied.

B. Sixth Successive Postconviction Motion

Jimenez next appeals the postconviction courts summary denial of his sixth successive postconviction motion. Giving Jimenez the benefit of the additional subclaim and arguments presented in his motion to amend, Jimenez raises the following seven subclaims, which he alleges arise from records that were previously undisclosed by NMPD: (1) handwritten detective notes of an interview with Jimenezs and the victims neighbor that occurred before the neighbor gave her sworn, recorded statement evince a Brady violation; (2) handwritten detective notes from an interview with Jimenezs former girlfriend regarding her daughters relationship with the victim evince a Brady violation; (3) handwritten notes by NMPD Detectives Diecidue and Ojeda taken during their interview with Jimenez on the day of his arrest evince Brady , Giglio , discovery, and due process violations; (4) handwritten detective notes regarding, and correspondence from, jailhouse informant Jeffrey Allen evince a Brady violation; (5) a fax coversheet showing communication between NMPD and private investigator Steve Sessler on October 16, 1992, evince a Brady violation; (6) handwritten detective notes showing contact information for cab driver Anwar Ali and the content of a September 1993 interview with Ali evince a Brady violation; and (7) handwritten notes that appear to be trial preparation materials for Detective Ojeda evince a Brady violation. Jimenez contends that, singularly and cumulatively, these alleged violations entitle him to relief from his convictions and sentence of death, or at the very least require an evidentiary hearing.

Before analyzing each of Jimenezs subclaims, we address the standards that govern our review.

Timeliness

Before this Court may reach the merits of any subclaim within Jimenezs sixth successive postconviction, he must first establish that it is timely. A rule 3.851 motion for postconviction relief must generally be filed within one year after the judgment and sentence are finalized. See Fla. R. Crim. P. 3.851(d)(1). A motion filed after the expiration of this time period is procedurally barred unless one of the following circumstances exists:

(A) the facts on which the claim is predicated were unknown to the movant or the movants attorney and could not have been ascertained by the exercise of due diligence, or

(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or

(C) postconviction counsel, through neglect, failed to file the motion.

Fla. R. Crim. P. 3.851(d)(2).

Jimenez filed the sixth successive rule 3.851 motion at issue on August 6, 2018, well beyond the one-year time period limitation after his judgment and sentence became final on May 18, 1998, when the United States Supreme Court denied certiorari. However, Jimenez argues that his motion is timely under rule 3.851 because the 81 pages of investigatory and trial preparation materials that NMPD disclosed in response to Jimenezs post-warrant public records request constitute newly discovered evidence. To be considered timely filed as newly discovered evidence, the rule 3.851 motion was required to have been filed within one year of the date upon which the claim became discoverable through due diligence. Jimenez , 997 So.2d at 1064 (citing Mills v. State , 684 So.2d 801, 804-05 (Fla. 1996) ).

If Jimenez is correct that the claims in his sixth successive postconviction motion do, in fact, arise from newly discovered evidence (which, as addressed below, they do not) and are, therefore, timely (which, as addressed below, they are not), several standards nevertheless stand between Jimenez and the relief he seeks.

Brady

The first standard at issue in this appeal applies to Jimenezs claims that information contained in NMPDs 2018 post-warrant disclosure shows violations of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as well as the States discovery obligations under the Florida Rules of Criminal Procedure. Brady requires the State to disclose material information within its possession or control that is favorable to the defense. Taylor v. State , 62 So.3d 1101, 1114 (Fla. 2011). To establish a Brady claim,

the defendant must demonstrate that (1) favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene , 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ; Way v. State , 760 So.2d 903, 910 (Fla. 2000). To meet the materiality prong, the defendant must demonstrate a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. 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) ) ]. A reasonable probability is a probability sufficient to undermine this Courts confidence in the outcome. Id. ; see also Strickler , 527 U.S. at 290, 119 S.Ct. 1936. However, in making this determination, a court cannot simply discount[ ] the inculpatory evidence in light of the undisclosed evidence and determin[e] if the remaining evidence is sufficient. Franqui v. State , 59 So.3d 82, 102 (Fla. 2011). It is the net effect of the evidence that must be assessed. Jones v. State , 709 So.2d 512, 521 (Fla. 1998).

Mosley v. State , 209 So.3d 1248, 1258-59 (Fla. 2016) (quoting Mungin v. State , 79 So.3d 726, 734 (Fla. 2011) ).

Furthermore, to assess materiality where more than one Brady violation is alleged, pursuant to Kyles v. Whitley , 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995),

[i]n making the materiality determination, a court must first evaluate the tendency and force of the undisclosed evidence item by item before separately evaluat[ing] its cumulative effect. See [ Kyles , 514 U.S.] at 436 n.10, 115 S.Ct. 1555 (We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately and at the end of the discussion ....). Considering the undisclosed evidence cumulatively means adding up the force of it all and weighing it against the totality of the evidence that was introduced at the trial. Smith [v. Secy, Dept of Corr. ], 572 F.3d [1327,] 1334 [ (11th Cir. 2009) ]. A reasonable probability of a different result exists when the governments evidentiary suppressions, viewed cumulatively, undermine confidence in the guilty verdict. Id. (citing Kyles , 514 U.S. at 434, 436 & n.10, 437, 115 S.Ct. 1555 ).

Smith v. State , 235 So.3d 265, 269 (Fla. 2017).

Jimenez also makes the related argument that the Brady violations he claims are reflected in NMPDs post-warrant disclosure show that the State failed to comply with its discovery obligations.

As this Court has explained, when discovery violations are proven in motions for postconviction relief[,] ... [t]he test for measuring the effect of the failure to disclose exculpatory evidence, regardless of whether such failure constitutes a discovery violation, is [the same that applies to a Brady violation, namely] whether there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Duest v. Dugger , 555 So.2d 849, 851 (Fla. 1990) (quoting United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ). Moreover, the defendants personal knowledge of the evidence claimed to represent a Brady violation would in and of itself defeat his Brady claim, since by definition such evidence would not have been unlawfully suppressed by the State. Gorham v. State , 494 So.2d 211, 212 n.* (Fla. 1986).

Giglio

The next standard at issue applies to Jimenezs claim that the State violated Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). By contrast to an allegation of suppression of evidence under Brady , a Giglio claim is based on the prosecutors knowing presentation at trial of false testimony against the defendant. Guzman v. State , 868 So.2d 498, 506 (Fla. 2003). To establish a Giglio violation,

[A] defendant must show that: (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. Rhodes v. State , 986 So.2d 501, 508-09 (Fla. 2008). As to the knowledge prong, in Guzman ..., [this Court has] clarified that Giglio is satisfied where the lead detective testifies falsely at trial because the knowledge of the detective ... is imputed to the prosecutor who tried the case. Id. at 505.

The materiality prong of Giglio is more defense-friendly than in a Brady claim. See Davis v. State , 26 So.3d 519, 532 (Fla. 2009) ([T]he standard applied under the third prong of the Giglio test is more defense friendly than the test ... applied to a violation under Brady .). While under Brady , evidence is material if a defendant can show a reasonable probability that ... the result ... would have been different, Way , 760 So.2d at 913 (emphasis added), under Giglio , the evidence is considered material simply if there is any reasonable possibility that it could have affected the jurys verdict. Rhodes , 986 So.2d at 509 (emphasis added).

Mosley , 209 So.3d at 1259 (quoting Mungin , 79 So.3d at 738 ).

Further, the cumulative analysis used to evaluate materiality under the Brady standard also applies to Giglio claims. See Smith v. Secy, Dept of Corr. , 572 F.3d 1327, 1334 (11th Cir. 2009) (Considering the undisclosed evidence cumulatively means adding up the force of it all and weighing it against the totality of the evidence that was introduced at the trial. That is the way a court decides if its confidence in the guilty verdict is undermined where a suppressed-evidence type of Brady claim is involved, or if the suppression was harmless beyond a reasonable doubt where a Giglio type of Brady claim is involved.).

And, similar to the way in which a defendants personal knowledge of information allegedly suppressed is fatal to a Brady claim, see Gorham , 494 So.2d at 212 n.*, a Giglio claim based on information that the defendant and defense counsel had at the time of trial is barred. Moore v. State , 132 So.3d 718, 724 (Fla. 2013).

Due Process

Jimenez argues that the same new evidence within NMPDs post-warrant disclosure that he contends supports his Brady and Giglio claims also shows that the State violated his right to due process by misleading both his defense counsel and his jury. See Alcorta v. Texas , 355 U.S. 28, 31-32, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957) (holding that it violates due process for a prosecutor to intentionally mislead the defense and jury in a material way). In support of this argument, Jimenez relies primarily on Garcia v. State , 622 So.2d 1325, 1331 (Fla. 1993), in which this Court explained that, while the State is free to argue to the jury any theory of the crime that is reasonably supported by the evidence, it may not subvert the truth-seeking function of the trial by obtaining a conviction or sentence based on deliberate obfuscation of relevant facts. See also generally Banks v. Dretke , 540 U.S. 668, 696, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (A rule thus declaring prosecutor may hide, defendant must seek, is not tenable in a system constitutionally bound to accord defendants due process.... Prosecutors dishonest conduct or unwarranted concealment should attract no judicial approbation.); Johnson v. State , 44 So.3d 51, 53 (Fla. 2010) ([S]ocietys search for the truth is the polestar that guides all judicial inquiry, and when the State knowingly presents false testimony or misleading argument to the court, the State casts an impenetrable cloud over that polestar.); Waterhouse v. State , 82 So.3d 84, 104 n.11 (Fla. 2012) ([A]ttorneys and judges should be able to rely upon the veracity of a police report.).

However, as with the other due-process-based claims (i.e., Brady and Giglio ), a defendant who knows that his jury is being misled cannot adopt an Ill deal with it later approach. See Fla. R. Crim. P. 3.851(d)(2) ; cf. also Ferrell v. State , 29 So.3d 959, 977 (Fla. 2010) (holding claim that the State violated Giglio when, during closing argument, the prosecutor misled the jury ... actually presents a substantive claim of improper closing argument, which should have been raised on direct appeal, and is thus procedurally barred).

Review of Summary Denial

Finally, Jimenezs argument that the postconviction court should have granted him an evidentiary hearing implicates the standard applicable to our review of a summary denial. A postconviction motion may be summarily denied only [i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief. Fla. R. Crim. P. 3.851(f)(5)(B), (h)(6) ; see also Parker v. State , 904 So.2d 370, 376 (Fla. 2005) (As a general proposition, a defendant is entitled to an evidentiary hearing on any well-pled allegations in a motion for postconviction relief unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.). Because a postconviction courts decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. Marek v. State , 8 So.3d 1123, 1127 (Fla. 2009). In reviewing a trial courts summary denial, this Court must accept the defendants allegations as true to the extent that they are not conclusively refuted by the record. Tompkins v. State , 994 So.2d 1072, 1081 (Fla. 2008). However, mere conclusory allegations do not warrant an evidentiary hearing. Anderson v. State , 220 So.3d 1133, 1142 (Fla. 2017) ; see also LeCroy v. Dugger , 727 So.2d 236, 238 (Fla. 1998) ([S]peculation and conjecture about what ... letters and notes and opinions and cryptic references may suggest is not sufficient to warrant an evidentiary hearing, much less relief.) (quoting trial courts order).

As explained below, application of these standards to Jimenezs subclaims makes clear that Jimenez is not entitled to relief on these claims.

(1) Virginia Taranco, the neighbor

In his first subclaim, Jimenez argues that the State committed a Brady violation when it failed to disclose information with respect to the victims neighbor, Virginia Taranco, who provided a taped, sworn statement following the murder, was deposed prior to trial, and testified at trial. Jimenez claims that the previously undisclosed notes reveal a previously unknown interview of Ms. Taranco before the taped statement began during which Taranco exonerated Jimenez by saying that while she was at Ms. Minas door investigating the sounds that she had heard, she observed Mr. Jimenez come down from the third floor ... while the assailant is still inside ... [meaning that] Mr. Jimenez could not possibly have been the assailant. Contrary to Jimenezs assertion, the fact that this interview occurred was disclosed to Jimenez in discovery prior to trial, and the notes reveal that Taranco recounted the relevant facts in the preliminary interview exactly as she did in the taped interview, in her deposition, and at trial, which was not exonerating.

The notes start with five lines that have an X marked over them and are lined through. Those five lines, which form the basis for this subclaim, are plainly legible despite the cross-through, and read:

Heard one bang, went to investigate

Heard second bang. While at door

observed [defendant] coming from Third Floor

was wearing no hat First observed on

ground Floor with baseball hat

The remainder of the detectives notes reflect that the detective had Taranco restart her account at the beginning, chronologically, from when she first observed Jimenez on the ground floor, prior to the murder, and describe Taranco seeing Jimenez coming down to the second floor (where the victims apartment was located) from the third floor (where Jimenezs apartment was located) when Taranco was waiting for the police, not when she was at the victims door hearing noises and seeing the victims door being pushed shut from the inside.

This subclaim is procedurally barred, as this evidence is not newly discovered. The record establishes that Jimenez has known of the existence of Tarancos pre-interview since before trial because it was mentioned in her sworn taped statement-a transcript of which was provided to trial counsel in discovery and included in NMPDs original submission to the records repository more than 18 years before the successive postconviction motion at issue was filed. Further underscoring Jimenezs knowledge that Taranco was interviewed before giving her sworn taped statement, defense counsel expressly referenced the pre-interview at trial during his cross-examination of Taranco. Although Jimenez claims that he was not aware that the page of handwritten notes existed, he was already aware of the information contained in the page of notes, as none of it is new or previously unknown information inconsistent with Tarancos sworn statement or her trial testimony.

Even if this subclaim were not procedurally barred, it is without merit. The first prong under Brady is not satisfied because this allegedly suppressed information is neither exculpatory nor impeaching. The crossed-out lines describe Taranco hearing two bangs, investigating the noises, standing at the victims door, and two encounters with the defendant, without any mention of how much time passed between these events. These lines of notes do not reveal any facts that are inconsistent with the rest of the page of notes or with Tarancos trial testimony, which was that she saw Jimenez twice on the evening of the victims murder. First, Taranco testified that she saw Jimenez in the parking lot at approximately 7:55 p.m. Second, Taranco testified that she saw Jimenez coming down the stairs to the second floor from the third floor somewhere between 8:20 and 8:22 p.m., after she had already called the police, which Taranco testified was at least 10 to 15 minutes after she heard the noises coming from inside the victims apartment. The crossed-out lines of the notes do not show that Jimenez was with Taranco at the victims door while the attack was ongoing inside the victims apartment, which would be exculpatory. Rather, these lines are almost identical to Tarancos trial testimony since hearing two bangs and observing Jimenez coming from the third floor while Taranco stood at the victims door is consistent with the events and timeline articulated at trial.

Accordingly, because this subclaim is both procedurally barred and without merit we affirm the postconviction courts summary denial.

(2) Yvette Imhoff, Jimenezs former girlfriend

Jimenez next argues that the State committed a Brady violation when it failed to disclose information with respect to a phone interview of Jimenezs former live-in girlfriend, Yvette Imhoff. The State allegedly failed to provide a page of handwritten notes from an October 7, 1992, telephonic interview between Detective Ojeda and Imhoff. The page of notes contains a sentence that states, Phyllis became friends w/ daughter. Imhoff did not testify at trial, but the written report by Detective Ojeda regarding his interview with Imhoff (which was previously disclosed) states that, in response to his question as to whether Jimenez or Imhoff ever knew the victim, Imhoff stated that she knew that her daughter had become friends with a lady downstairs, but that her daughter never mentioned her name. Jimenez claims that the sentence in the notes is newly discovered evidence that the person whom Imhoffs daughter became friends with was the victim and is Brady material because it is exculpatory. He asserts that the fact that the victim had a friendship with Jimenezs former girlfriends daughter, and that Jimenez knew about it, shows that Jimenez had a positive relationship with the victim and that he had been inside her apartment on occasion-which explains his fingerprint on the inside of the victims front door.

This subclaim is procedurally barred. Detective Ojedas previously disclosed report expressly mentions the phone interview and the fact that Imhoff stated that her daughter had made friends with a lady downstairs. Moreover, Imhoffs statement was not without context, as Detective Ojedas report plainly states that Imhoff gave this answer in response to his question of whether either she or Jimenez ever knew the victim. To the extent it is not clear from the context that the reports reference to a lady downstairs is in reference to the victim, with due diligence, Jimenez could have followed up years ago and discovered this information. In any event, if Jimenez had a good relationship with the victim and had been inside the victims apartment on previous occasions, this would not be newly discovered evidence because Jimenez would have known it all along. Cf. Jimenez , 997 So.2d at 1068 (concluding that [t]he presence of Jimenez inside [the victims] unit on other occasions is necessarily based on his own personal knowledge of his actions, which is not newly discovered evidence).

Even without the procedural bar, however, the subclaim is without merit. The first prong under Brady is not satisfied because this allegedly suppressed information is not exculpatory. The handwritten sentence relied upon by Jimenez does not provide any information regarding whether Jimenez actually knew that his former girlfriends daughter had befriended the victim. Nor does it show that Jimenez had any relationship with the victim whatsoever, let alone a good relationship. Moreover, the sentence does not relate in any way to the allegation that Jimenez had been inside the victims apartment on other occasions, prior to the victims murder. Nor does the sentence have any impeachment value. Imhoff did not testify at trial. Moreover, Detective Ojeda did not testify regarding his interview with Imhoff. Nor is Detective Ojedas report from Imhoffs interview, in which it was clear that he was asking Imhoff about any contact that she or Jimenez had with the victim, viewed through the lens of his notes, which expressly references the victims name, impeaching in the sense that it shows NMPDs investigation was not a search for the truth. Accordingly, there was not a Brady violation. We affirm the postconviction courts summary denial of this subclaim.

(3) Jimenezs Statements to Detectives Diecidue and Ojeda

In his third subclaim, Jimenez argues that NMPDs post-warrant disclosure of notes taken by Detectives Diecidue and Ojeda during their interview of Jimenez on the day of his arrest establish Brady , Giglio , discovery, and due process violations that entitle him to relief from his convictions and sentence of death, or, minimally, to an evidentiary hearing. This subclaim is procedurally barred and, in any event, without merit.

The notes at issue indicate that they were taken during an interview of Jimenez by Detective Diecidue at 2:50 p.m. on an unspecified date and during an interview of Jimenez by Detective Ojeda at 3:55 p.m. on an unspecified date, which Jimenez argues was October 5, 1992, as his arrest occurred at approximately 3:55 p.m. on that date. The notes suggest that Jimenez told Detective Diecidue that he knocked on the victims door at approximately 7:00 p.m. on the evening of the murder to use her phone, but that she was using the phone, and that he later used a phone to call a cab at approximately 8:00 p.m., went downstairs to meet the cab, and saw the police. The notes also indicate that Jimenez talked to Detective Ojeda about the various residents of the apartment complex, telling him which residents lived in which apartments; disclosed that he had a problem with one of his neighbors (not the victim) because of music; and told Detective Ojeda what he was wearing on the day of the murder.

Jimenezs claim is procedurally barred. The fact that these statements were made by Jimenez and the fact that the detectives took notes while Jimenez made them is not newly discovered evidence because Jimenez necessarily had personal knowledge of these facts and because the detectives generally disclosed the substance of the conversations that occurred prior to Jimenez invoking his rights under Miranda . See Fla. R. Crim. P. 3.851(d)(2) ; cf. Jimenez , 997 So.2d at 1068.

Moreover, even without the procedural bar, Jimenez would not be entitled to relief on the merits. Although the record reveals that, despite being asked during their pre-trial depositions, both detectives failed to disclose the full content of Jimenezs statements to them (and also failed to document the full substance of those statements in their reports), Jimenez has failed to establish Brady s third prong of materiality. There is no reasonable probability that had the jury heard the information contained in the detectives notes the result of the proceeding would have been different. Jimenezs cooperation or lack thereof was not a feature of the States case, and the value of Jimenezs statements concerning his interaction with the victim is limited. They do not show a close relationship between Jimenez and the victim or put Jimenez inside the victims apartment in a position to leave his fingerprint on the inside of the victims front door at any time other than during the murder when witnesses testified that the door was pushed shut and locked from the inside around the same time as another witness identified Jimenez dropping down from a balcony beside the victims balcony. Adding up the force of the information concerning Jimenezs alleged cooperation with law enforcement and his statements concerning innocent contact with the victim or her apartment and weighing it against the totality of the evidence that was introduced at the trial, there is no reasonable probability of a different outcome. Our confidence in the outcome is not undermined. See Mosley , 209 So.3d at 1258-59.

Nor has Jimenez proven a Giglio or due process violation. In his initial brief, Jimenez contends that the lies and misrepresentations by Detectives Ojeda and Diecidue in their pretrial deposition testimony and in their police reports violated due process and amounted to a Giglio violation and demonstrate that the State obscured relevant facts in order to obtain his convictions and sentence. We disagree.

Jimenezs allegations of false testimony and misleading argument by the State implicate Giglio s prohibition against the States knowing presentation of false testimony, to the extent that false testimony was actually presented at trial. See Jimenez , 997 So.2d at 1070 (explaining that supposed false testimony that is not presented during the trial ... cannot form the basis for a Giglio claim). To the extent Jimenezs allegation that the State obscured the relevant facts to obtain his convictions and sentence are based on the States arguments during his trial, they implicate the due-process protection against the States misleading the jury (or the court). See Ferrell , 29 So.3d at 977 (concluding that the claim that the State violated Giglio when, during closing argument, the prosecutor misled the jury ... actually presents a substantive claim of improper closing argument); see also Evans v. State , 177 So.3d 1219, 1234 (Fla. 2015) (explaining that a preserved challenge to the prosecutors improper closing arguments is reviewed for harmless error); Garcia , 622 So.2d at 1331 ([W]hile the State is free to argue to the jury any theory of the crime that is reasonably supported by the evidence, it may not subvert the truth-seeking function of the trial by obtaining a conviction or sentence based on deliberate obfuscation of relevant facts.). Regardless of how the claim is classified, however, assuming, as we do here, that there is no preservation issue or other procedural bar, entitlement to relief is measured by whether the knowing presentation of false testimony or misleading argument was harmless beyond a reasonable doubt. See Guzman v. State , 941 So.2d 1045, 1050 (Fla. 2006) (explaining that the test of materiality under Giglio .... is the same as the harmless error test, which requires the State to prove that there is no reasonable possibility that the error contributed to the conviction) (internal quotation marks omitted); see also Mosley , 209 So.3d at 1259 ([U]nder Giglio , the evidence is considered material simply if there is any reasonable possibility that it could have affected the jurys verdict.) (internal quotation marks omitted).

Here, while the detectives only revealed that they received basic information from Jimenez in their reports and depositions, meaning that the State necessarily failed to disclose the full substance of Jimenezs oral statements, it is clear that no false testimony was presented at trial. Only Detective Ojeda testified at trial, and he did not testify about Jimenezs cooperation or lack thereof with police during his interview. In fact, Detective Ojeda did not testify to any statements Jimenez made during his interview based on the States agreement in connection with Jimenezs motion to suppress any statements made during that interview. Thus, because no testimony was presented at trial on these subjects, there is no Giglio violation. See Jimenez , 997 So.2d at 1070 (explaining that supposed false testimony that is not presented during the trial ... cannot form the basis for a Giglio claim).

Assuming, arguendo, that any argument by the prosecutor at trial was misleading in light of Jimenezs statements to detectives that might evince his cooperation with law enforcement or innocent contact with the victim or her apartment, Jimenez would still not be entitled to relief.

Considering the cumulative effect of what Jimenez contends was misleading argument in light of the totality of the evidence introduced at trial, there is no reasonable possibility that the force of any misleading argument by the State concerning Jimenezs alleged cooperation with law enforcement-which was not a feature at trial-added to the force of any misleading argument by the State concerning Jimenezs innocent contact with the victim or her apartment-where there was no evidence that Jimenez, even by his own statement, ever actually used the victims phone or was otherwise ever in the position to innocently leave his fingerprint on the inside of the victims front door-could have affected the jurys verdict. See Smith , 572 F.3d at 1334.

Thus, even if Jimenezs subclaim regarding the recently disclosed detective notes of his interview by NMPD detectives were not procedurally barred, he would not be entitled to relief on the merits. Accordingly, we affirm the postconviction courts summary denial of this subclaim.

(4) Inmate Jeffrey Allen

Jimenez next argues that NMPDs 2018 records submission shows that the State committed a Brady violation by failing to disclose information with respect to Jeffrey Allen. Allen is an inmate who was housed with and who informed upon Jimenez but who did not testify against Jimenez at trial. See Jimenez , 997 So.2d at 1071. The State allegedly failed to provide handwritten notes from a March 15, 1993, interview between Detective Diecidue and Allen; a February 8, 1993, phone message from Allen for Pearce; a note from Detective Ojeda dated February 9 of an unspecified year indicating that he spoke with Allen; and multiple pages of handwritten letters from Allen. Jimenez alleges that these documents indicate that Allen was acting as a state agent when incarcerated with Jimenez in violation of the Sixth Amendment, before the March 15, 1993, date that Detective Diecidue stated in a 1995 deposition was his first and only contact with Allen. Jimenez claims that these notes and letters constitute Brady material because they could have been used to impeach Detective Diecidue. Jimenez also argues that the documents can be used as impeachment evidence to show that the investigation was not a search for truth.

This subclaim is procedurally barred. The State previously disclosed a report by Detective Diecidue reflecting that, prior to his March 15, 1993, interview, Allen had called several times and advised that he had information relating to this investigation. Further, Jimenezs former counsel deposed Allen on March 11, 1998, at which time Allen stated that he had written notes and several letters about his knowledge of the murder and given them to Detectives Ojeda and Diecidue. At this deposition, Allen stated that he met with the detectives more than once and also referenced phone calls with them. Collateral counsel could have made a specific public records request to NMPD to obtain Allens letters and notes but did not do so, and in any event, the police reports in this case describe the information that Allen provided to the detectives. There is thus no new evidence that was unavailable to Jimenez by the exercise of due diligence.

Even without the procedural bar, this subclaim is without merit. The first prong under Brady is not satisfied because this information is not impeaching. Defense counsel could not have used these documents at trial for impeachment as evidence of prior inconsistent statements, because neither Allen nor Detective Diecidue testified at trial, and Detective Ojeda did not mention Allen in his trial testimony. Nor could the documents have been used at trial to impeach Detective Ojeda for bias or to impeach the caliber of the police investigation, because they do not contain information that shows partiality on the part of the police department. Nor is the information exculpatory, as Allens status as a jailhouse informant for the State and unilateral communication attempting to benefit from that status have no bearing on the guilt or innocence of Jimenez, and Allen did not testify at trial. Accordingly, there was not a Brady violation. We affirm the postconviction courts summary denial of this subclaim.

(5) Steve Sessler, the private investigator

Jimenezs next subclaim concerns a fax coversheet contained in NMPDs post-warrant records disclosure that shows contact between law enforcement and a private investigator named Steve Sessler on October 16, 1992 (14 days after the victims murder). Jimenez raised a related claim in 2005, in his first successive postconviction motion, concerning NMPDs collaboration with Sessler. Prior to the 1992 Minas murder at issue here, Sessler had investigated Jimenez in connection with the October 1990 death of Marie Debas. Sessler had been hired by Debass boyfriend, Manuel Calderon, whom Jimenez alleged was a member of a drug cartel and had a vendetta against him because Jimenez previously had an affair with Debas. In Jimenezs 2005 motion, he alleged that the State had committed a Brady violation by failing to disclose that Sessler provided NMPD with information he had gathered in connection with the Debas case, which Jimenez alleged caused NMPD to unfairly target him for the Minas murder.

This Court affirmed the denial of Jimenezs 2005 claim, concluding that it was procedurally barred because it was not based on newly discovered evidence:

[I]t had long been common knowledge that the North Miami Police Department was given information that originated from the investigation orchestrated by Calderon.... [W]hen Jimenezs trial counsel deposed Detective Diecidue on December 13, 1995, he confirmed that Sessler had provided him with information concerning Jimenezs possible involvement in the death of Debas while the investigation for the murder of Minas was ongoing.

Jimenez , 997 So.2d at 1069. Additionally, this Court concluded that, even if the claim were not procedurally barred, it would be without merit because Jimenez could not establish the materiality prong of a Brady claim:

If evidence of Calderons influence had been presented during the trial, this would have opened the door to potentially damaging evidence concerning Jimenezs involvement in the death of Debas.

Thus, there is not a reasonable probability that if this information with regard to the influence of Calderon had been disclosed to Jimenez, the jury would have reached an alternative verdict.

Id. at 1070 (concluding, further, that Jimenezs Giglio claim relating to Calderons influence was without merit because the supposed false testimony was not presented during the trial, so it cannot form the basis for a Giglio claim).

Jimenezs present claim adds only that he has discovered within NMPDs 2018 records submission a fax coversheet showing that Sessler communicated with NMPD on October 16, 1992, two weeks into the investigation of the Minas murder. Jimenez asserts that this communication shows the influence of Sessler and Calderon on the investigation very early in the case. This is not new evidence. Accordingly, this claim is procedurally barred. It also fails on the merits for the reason that this Court previously articulated in affirming the denial of the Brady and Giglio claims related to Sessler that Jimenez raised in his first successive postconviction motion filed in 2005. See id. at 1069-70. Accordingly, we affirm the postconviction courts summary denial of this subclaim.

(6) Anwar Ali, the cab driver

Jimenez also claims that NMPDs post-warrant disclosure contains new Brady material related to Anwar Ali, the cab driver who responded to Jimenezs call for a taxi on the night of the victims murder but who never picked up Jimenez and, instead, picked up a man with a bleeding face several minutes and blocks away from the apartment complex where the victim was murdered. The postconviction court properly summarily denied this claim, which is procedurally barred and without merit.

In affirming the denial of Jimenezs first successive postconviction motion, this Court found procedurally barred, and alternatively meritless, Jimenezs claim that the State had committed a Brady violation by failing to disclose that it had repeatedly attempted to get Ali to identify Jimenez as the man with the bleeding face, even though Ali said the man was not Jimenez, essentially harassing him, and that these efforts had resulted in Alis refusal to involve himself in this case further. Jimenez , 997 So.2d at 1064-65.

In the claim at issue here, Jimenez does not suggest that NMPDs disclosure goes to the substance of the testimony that Ali would have had to offer had he testified at trial, namely that he picked up a person, who stated that he had been mugged and was bleeding from the face, approximately sixteen blocks from the crime scene and approximately thirty minutes after the murder. Id. at 1065. Rather, Jimenez claims that NMPDs failure to provide him, before trial, with Alis address and phone number-which NMPDs recent disclosure indicates it had-at a time when Jimenez was trying to secure Alis trial testimony is new evidence that amounts to a Brady violation. Jimenez further argues that law enforcements deceit with respect to the handling of Ali is new evidence of valuable impeachment because it shows the investigation was not a search for the truth.

Jimenezs arguments are procedurally barred. That NMPD had Alis contact information is not new evidence. Although Jimenez was unsuccessful in his attempt to subpoena Ali to testify at trial, there is plentiful evidence establishing that, with the exercise of due diligence, the defense could have contacted Ali. For example, defense counsel knew that the State had been able to contact Ali, as defense counsel extensively questioned both Detectives Ojeda and Diecidue about Ali during their respective pre-trial depositions. Further, during Detective Ojedas deposition, defense counsel informed Detective Ojeda about statements regarding picking up a man with a bleeding face that Ali had allegedly made to an investigator for the defense (who also clearly had contact with Ali), and Detective Ojeda stated that he was going to follow up. With the exercise of due diligence, defense counsel could have, too.

The fact that Detective Diecidue wrote down Alis name and phone number is also not new evidence since Jimenez knew that the detective had been in contact with Ali. While Jimenez claims that this notation reflects that Detective Diecidue interviewed Ali but chose not to take notes because the information Ali provided was favorable to Jimenez, the notes do not indicate that they are from an interview with Ali. But, even accepting for the sake of argument that Jimenez is correct, this is also not new evidence. If it actually occurred, whatever impeachment value Detective Diecidues decision to document only a name and number may have had is part and parcel of the impeachment value inherent in Detective Diecidues lost report of Alis interview discussed by both Detectives Diecidue and Ojeda in their pre-trial depositions, which is not new because Jimenez has known about the lost report since 1993.

Similarly, although Jimenez argues that Detective Ojeda never disclosed that he had an interview with Ali, the recently disclosed notes suggest that Detective Ojeda followed up with Ali after his July 1993 deposition, just as he told defense counsel at the deposition he was going to do. The notes are consistent with the information the State previously disclosed to Jimenez and with other information that it is clear from Detective Ojedas deposition Jimenez already had and, in fact, alerted the State to (i.e., Alis description of encountering the man with the bleeding face). Thus, these notes are not new evidence.

Finally, even without the procedural bar, Alis testimony would not have been exculpatory or impeaching as required to establish the first prong of Brady for the reasons we previously expressed. See Jimenez , 997 So.2d at 1065 (explaining that Alis account of picking up the man with the bleeding face blocks away from the crime scene and thirty minutes after the victims murder would not have logically connected the person that he picked up in his cab to the murder or impeach[ed] any of the evidence presented by the State during the trial). Accordingly, we affirm the postconviction courts summary denial of this subclaim.

(7) Detective Ojedas trial preparatory materials

Finally, Jimenez argues that an 11-page document that he claims was written by the prosecutor to prepare for Detective Ojedas trial testimony, and which the postconviction court denied Jimenez leave to address in his successive postconviction motion, is new evidence of a Brady violation. Had his motion to amend been granted, Jimenez would have argued that this document-which he acknowledges is consistent with Detective Ojedas trial testimony-is undisclosed impeachment evidence. Even assuming for the sake of argument that the postconviction court should have granted Jimenezs motion to amend, this claim is both procedurally barred and conclusively refuted by the record. See Zakrzewski , 115 So.3d 1004.

[P]rosecutors are permitted to discuss testimony with witnesses .... Hartley v. State , 990 So.2d 1008, 1015 (Fla. 2008). Although trial preparatory materials that are exculpatory or impeaching because, for example, they reveal[ ] coaching by the prosecutor[, contain] conflicting accounts of the witnesss testimony, or indicate any testimony contrary to that presented at trial can give rise to Brady claims, Tompkins v. State , 872 So.2d 230, 239 (Fla. 2003), the document at issue in this case is neither exculpatory nor impeaching. Rather, it contains answers to questions that are consistent with Detective Ojedas reports and deposition testimony, which were available to Jimenez before trial. Therefore, it contains nothing new. Cf. Mills v. State , 507 So.2d 602, 604 (Fla. 1987) (Our examination does not show that the State put words in this witness[s] mouth. Even though some of the questions [the State provided to its witness] contained answers to those questions, there is no evidence that these answers emanated from any source other than the witness.).

Furthermore, the record conclusively refutes Jimenezs speculation of nefarious intent on behalf of the State in terms of the prosecutor somehow working with Detective Ojeda to keep information about a white van from the jury because the word out was written in the margin next to questions regarding the van. Before Detective Ojeda testified at trial, the prosecutor asked another NMPD officer, Officer Sidd, a question concerning whether Officer Cardonas investigation of the white van led her to conclude that the individuals in the van were not involved in the murder that is virtually identical to the question denoted with the word out in the document at issue, and the trial court sustained defense counsels objection. In other words, it was not the prosecutor but the trial court that (properly) kept this (hearsay) testimony out, although the jury was permitted to hear testimony from at least four witnesses, three of whom were law enforcement officers, relating to the white van.

Accordingly, even if the recently disclosed document presents anything new, on the merits, because the document is neither exculpatory nor impeaching, it fails under the first prong of Brady .

In conclusion, all seven of the subclaims that Jimenez raised or sought to raise in his sixth successive postconviction motion are procedurally barred and, in any event, without merit. Although Jimenez argues that the postconviction court did not properly consider the force of all of the Brady and Giglio violations evinced in the new evidence when it assessed materiality, there is no newly discovered evidence in NMPDs post-warrant submission. Accordingly, all of Jimenezs claims are procedurally barred and due to be summarily denied on that basis alone. To the extent our alternative merits analysis reached materiality for the Brady violations alleged in Jimenezs third and fifth subclaims, adding up the force of Jimenezs own statements-that do not place him in the position to innocently leave his fingerprint on the inside of the victims front door or put him cooperating with law enforcement in any way that mattered to the evidence actually presented at trial-plus the force of a fax coversheet showing a Sessler/Calderon connection to NMPDs investigation of the victims murder-that if introduced would open the door to damaging evidence concerning Jimenezs involvement in another persons death-and weighing it against the totality of the evidence introduced at trial, this evidence could not reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Smith , 235 So.3d at 268-69 (quoting Kyles , 514 U.S. at 435, 115 S.Ct. 1555 ). Further, although we alternatively reached materiality for the Giglio /due process argument Jimenez raised in his third subclaim with respect to the States arguments concerning Jimenezs innocent contact with the victim or her apartment and his cooperation with detectives during his interview, there are no additional instances of false testimony or misleading argument to consider cumulatively with the materiality analysis we already conducted for that subclaim. Jimenez is not entitled to relief, singularly or cumulatively, on his allegations that NMPDs post-warrant records disclosure evinces Brady , Giglio , due process, and discovery violations.

CONCLUSION

For the reasons above, we affirm the postconviction courts orders summarily denying Jimenezs fifth and sixth successive postconviction motions pursuant to rule 3.851, the postconviction courts order denying Jimenezs motion to correct illegal sentence pursuant to rule 3.800(a), and the postconviction courts order denying Jimenezs motion to amend his sixth successive postconviction motion. We further lift the stay of execution entered on August 10, 2018. No rehearing will be entertained by this Court, and the mandate shall issue immediately.

It is so ordered.

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

LEWIS, J., concurs in result.

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

Jimenezs execution was scheduled for 27 days later, on August 14, 2018, but this Court subsequently stayed his execution.

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

Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

[R]ecords requests under Rule 3.852(h) are limited to persons and agencies who were the recipients of a public records request at the time the defendant began his or her postconviction odyssey; whereas, records requests under Rule 3.852(i) 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. Hannon , 228 So.3d at 511 (internal quotation marks and citation omitted); see also Fla. R. Crim. P. 3.852(i)(2)(C) (listing as one condition of the trial courts ordering the production of additional public records that the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence); Fla. R. Crim. P. 3.852(k)(1) (limiting the scope of production under any part of this rule, in pertinent part, to public records that are either relevant to the subject matter of the proceeding under rule 3.851 or are reasonably calculated to lead to the discovery of admissible evidence).

Jimenezs request to DOC states, in pertinent part, that

[t]he public records requested are for any files, records, reports, letters, memoranda, notes, drafts and/or electronic mail in the possession or control of [DOC] pertaining to Mr. Jimenez that were received or produced by [DOC] since Mr. Jimenezs previous request; and or any documents that were, for any reason, not produced previously.

Asay v. State (Asay VI) , 224 So.3d 695 (Fla. 2017).

In its order summarily denying relief on this claim, the postconviction court explained the relevant facts from Branchs execution:

Shortly before the execution process began, Branch gave a statement calling Governor Rick Scott and Attorney General Bondi cowards for failing to execute him in person. As the administration of the etomidate commenced, Branch released a guttural yell or scream. He then yelled out murderers three times. Branchs legs were moving, his head moved, and his body was shaking. He calmed down within a minute. The appropriate consciousness check was performed before the subsequent administration of the second and third drugs.

Jimenez could not prevail on his challenge to the current protocol in any event because he has also failed to meet his burden under Glossip to identify a known and available alternative method of execution that entails a significantly less severe risk of pain. Asay VI , 224 So.3d at 701 (citing Glossip , 135 S.Ct. at 2737 ). His proposed alternative-replacing the three-drug protocol with one drug, pentobarbital or compounded pentobarbital-relies on a drug that is not readily available and has been previously rejected by this Court as speculative. See id. at 702. To the extent Jimenez suggests switching back to midazolam, this Court rejected the argument that the substitution of etomidate for midazolam violates the Eighth Amendment in Asay VI . Finally, although Jimenez proposes switching from lethal injection to nitrogen gas, his fifth successive postconviction motion states that he has not had adequate time to research and consult with an expert about this method.

The standard of review is de novo. See Williams v. State , 235 So.3d 962, 963 (Fla. 5th DCA 2017) (The error to be corrected in a rule 3.800(a) motion must be apparent from the face of the record. Johnson v. State , 60 So.3d 1045, 1049 (Fla. 2011). Accordingly, such a motion cannot require an evidentiary hearing. Id. As no evidentiary hearing is required or permitted, this Court is presented with pure issues of law on appeal, and applies the de novo standard of review.).

In the sworn taped statement of Taranco on October 7, 1992, Detective Ojeda states that he and Detective Diecidue spoke with Taranco immediately prior to beginning the taped interview. He said, [W]e spoke to you natural before we went on tape and interviewed you. And we spoke to you about the homicide and what role you played in it on October 2nd.

Besides Detective Ojeda, Taranco is the only other person implicated by Jimenezs claims who testified at trial. Jimenezs frequent use of the phrase Giglio / Brady claims in his briefs filed in this Court, coupled with his argument that the notes from Tarancos pre-interview may be true while her trial testimony may not be, makes it unclear whether Jimenez is also arguing that the notes demonstrate that the State knowingly presented false testimony by Taranco in violation of Giglio . To the extent Jimenez is making this claim, because the notes do not show that Tarancos trial testimony was false, they do not evince a Giglio violation. See Mosley , 209 So.3d at 1259.

In this subclaim, Jimenez points out that the notes regarding Imhoffs interview also contain the phrase wh/van unk span/male. However, beyond referencing this fact in a footnote in his motion below, Jimenez did not argue how this note entitles him to relief, and it is still not clear whether or how he contends it does. Nevertheless, that Jimenez knew of the existence of and, thus, had the ability to follow up on the presence of a white van in connection with this case is clear from a review of the trial transcript. A police officer (Officer Cardona) had been assigned to investigate a white van seen in the parking complex of the apartment near the victims balcony, and, although this officer did not testify at trial, she wrote a report and gave a deposition about her investigation. Further, at trial, testimony regarding a white van being parked under the victims balcony ranged from witnesses who saw the van, witnesses who said they did not see it, and witnesses who were alleged to have made inconsistent statements as to whether they saw it or not. This is not newly discovered evidence.

Detective Ojedas notes also reference the time of 8:00 p.m., a cab, and Vig, which Jimenez suggests is shorthand for Virginia. Testimony at trial showed that Jimenez used his neighbor Virginia Tarancos phone to call a taxi after Taranco had called the police upon becoming concerned for the victims welfare.

Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The applicable discovery rule did not require the State to provide the detectives notes to Jimenez. See Fla. R. Crim. P. 3.220(b)(1)(B). However, because these notes show the substance of statements made orally by Jimenez, the defendant, the State did have a discovery obligation to reveal their contents, regardless of whether they constitute Brady material or evince a Giglio or other due-process violation. See Fla. R. Crim. P. 3.220(b)(1)(C).

After Jimenezs convictions and sentence in this case, Jimenez pled guilty to the second-degree murder of Debas, whose death had been ruled an accidental drug overdose before Sesslers involvement.

Although Detective Ojedas notes do not include the year, they identify the month as September. Because the victim was murdered in October of 1992, an interview in September in connection with the murder investigation would necessarily have had to have occurred at least a year after the victims murder, in September 1993, which also necessarily would have been after Detective Ojedas July 1993 deposition.

PARIENTE, J., concurring in part and dissenting in part.

I agree that Jimenez is not entitled to relief on his second post-warrant appeal regarding newly discovered evidence (No. SC18-1321). See majority op. at 476-91. However, I dissent from affirming the postconviction courts denial of Jimenezs first post-warrant appeal regarding Floridas lethal injection protocol (No. SC18-1247). See majority op. at 471-76. For the reasons explained below, I would reverse and remand for an evidentiary hearing on these claims.

Floridas Lethal Injection Protocol

For the fifth time since this Courts decision in Asay VI , Florida will execute a death-sentenced defendant using a lethal injection protocol that the defendant argues is in violation of the Eighth Amendment to the United States Constitution. See majority op. at 473-74. Indeed, the majority relies on Asay VI to deny Jimenez relief on these claims. See majority op. at 474-75. However, Jimenez challenges Floridas lethal injection protocol in light of new and troubling information, specifically regarding Floridas most recent execution, which, at the very least, should be fully developed at an evidentiary hearing. I disagree with the majority that Jimenezs claims are insufficient to require revisiting our holding in Asay VI . Majority op. at 475.

In my dissenting opinion in Asay VI , I explained that Asay was unconstitutionally denied access to documents that may have supported his claim that Floridas new lethal injection protocol-which replaced midazolam with etomidate as the first drug in the protocol, intended to induce unconsciousness-violates the Eighth Amendments bar against cruel and unusual punishment. 224 So.3d at 705-08 (Pariente, J., dissenting). Although Asay VI is now final, Jimenez presents new, additional evidence from the executions Florida has performed since that decision-Mark Asay on August 24, 2017, Michael Lambrix on October 6, 2017, Patrick Hannon on November 8, 2017, and Eric Branch on February 22, 2018-regarding the possibility that the lethal injection protocol subjects the defendant to cruel and unusual punishment.

As to the administration of the first drug in the lethal injection protocol, etomidate, the postconviction court wrote in its order denying Jimenezs motion: As the administration of the etomidate commenced, Branch released a guttural yell or scream.... Branchs legs were moving, his head moved, and his body was shaking. Order, at 4. His body continued to shake and his chest was heaving for another four minutes. Initial Br., at 38. The postconviction court noted and the majority accepts that all of this took place before the consciousness check was performed before the subsequent administration of the second and third drugs. Order, at 4; majority op. at 475. Dr. Lubarsky, an experienced anesthesiologist, Initial Br., at 29, opined that this was indicative of insufficient anesthetic depth prior to the administration of the second and third drugs. Id. at 38.

As to the second and third drugs, Jimenez alleges that-according to Dr. Lubarskys review of Floridas lethal injection protocol and records from Branchs execution-Branch had only 1/10th of the clinical dose of etomidate... in his bloodstream by the end of the execution process, an amount that is insufficient to ensure that he did not feel the excruciating pain of the second and third drugs. Id. at 31. In Dr. Lubarskys opinion, Branchs scream was objective evidence of his experiencing significant pain during [the] execution, id. at 35-not in protest of his execution or a reaction to etomidate. Majority op. at 475. Of course, this information was unknown when this Court rejected Asays challenge to the new lethal injection protocol.

In my view, this new information makes it impossible to allow another execution to proceed without thoroughly reviewing whether Floridas lethal injection protocol subjects defendants to a substantial risk of pain, in violation of the Eighth Amendment. Thus, I would reverse and remand for an evidentiary hearing.

Further, I reiterate my long-standing concern that a one-drug protocol has a greater likelihood of reducing any substantial risk of pain. Specifically, Floridas continued use of a paralytic agent, such as rocuronium bromide, could lead to a situation where defendants like Jimenez are entirely aware of the execution, including the attendant extreme pain and suffering, but unable to inform anyone of or indicate such awareness. See Initial Br., at 49. I again urge the executive branch to adopt a one-drug protocol to avoid this unconstitutional risk. See Asay VI , 224 So.3d at 705 (Pariente, J., dissenting) (quoting Schwab v. State , 973 So.2d 427, 429 (Fla. 2007) (Pariente, J., concurring) ).

Short Warrant Period

Finally, I note the seriously constricted warrant period in this case. As the majority explains, Governor Scott signed Jimenezs death warrant on July 18, 2018, scheduling his execution for 27 days later-August 14, 2018. Majority op. at 470 & n.1. The original scheduling order determined July 31, 2018, as the deadline for completing proceedings before the postconviction court. Majority op. at 471.

This extremely short warrant period created a fire drill approach to the review of Jimenezs claims. It was not until after the postconviction court denied Jimenezs sixth successive postconviction motion (filed on August 6, 2018) that this Court entered a stay of execution. See majority op. at 470-71. The postconviction court and Jimenezs attorneys were forced to race against the clock in reviewing and presenting all of Jimenezs claims, respectively. But for this Court entering a stay of execution as a result of Jimenezs second post-warrant appeal, this Court would have also had inadequate time to thoroughly review his claims.

While I realize that all proceedings should be completed by the time the Governor signs a death warrant, some claims, such as those challenging the execution method, cannot be raised or evaluated until the signing of the death warrant. At the least, defendants must have adequate time to investigate and raise and courts must have adequate time to properly review these warrant-based claims.

Since executions resumed in Florida after Hurst , the judicial system-the circuit courts, this Court, and the United States Supreme Court-has been faced with increasingly short warrant periods, the shortest being the one in this case-a mere 27 days. However, the Legislature-tasked with providing the method, the means, and the instrumentalities for executing death sentences imposed by the courts pursuant to the law, Abdool v. Bondi , 141 So.3d 529, 543 (Fla. 2014) (quoting Blitch v. Buchanan , 100 Fla. 1202, 131 So. 151, 155 (1930) )-has determined that a warrant period of 180 days is reasonable. See § 922.052(2)(b), Fla. Stat. (2018) ; Abdool , 141 So.3d at 544. Thus, I urge the Executive branch, in setting warrant periods, to consider the judicial proceedings that must be completed before the date of execution.

CONCLUSION

For these reasons, while I agree that Jimenez is not entitled to relief on his newly discovered evidence claims, I would reverse and remand for an evidentiary hearing on his claims challenging Floridas lethal injection protocol.

QUINCE, J., concurs.

As to the majoritys discussion of this issue, I reiterate the importance of express[ing] the prejudice prong of Brady [v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] in terms of a probability sufficient to undermine confidence in the verdict and not a reasonable probability of a different result. Pittman v. State , 90 So.3d 794, 822 (Fla. 2011) (Pariente, J., concurring in result) (quoting Strickler v. Greene , 527 U.S. 263, 290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ).

Asay v. State (Asay VI ), 224 So.3d 695 (Fla. 2017).

The postconviction courts Order Denying Successive Motion to Vacate Judgments of Conviction & Sentence is cited herein as Order.

Indeed, it appears that many other states that still impose the death penalty have adopted one-drug protocols. Eight states-Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas, and Washington-have used a single-drug method for executions. Six other states-Arkansas, California, Kentucky, Louisiana, North Carolina, and Tennessee-have announced plans to use a one-drug protocol. Death Penalty Info. Ctr., State by State Lethal Injection , https://deathpenaltyinfo.org/state-lethal-injection (last visited Aug. 6, 2018).

The warrant period for Asays execution was 52 days. Asay VI , 224 So.3d at 699. The warrant period for Lambrixs execution was 34 days. Lambrix v. State , 227 So.3d 112, 112 (Fla. 2017). The warrant period for Hannons execution was 33 days. Hannon v. State , 228 So.3d 505, 508 (Fla. 2017). The warrant period for Eric Branchs execution was 34 days. Branch v. State , 236 So.3d 981, 983-84 (Fla. 2018).