Supreme Court of Florida

____________

No. SC14-2276

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RANDY W. TUNDIDOR,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[April 27, 2017]

PER CURIAM.

Randy W. Tundidor appeals his conviction of first-degree murder and 

sentence of death as well as his two convictions for attempted felony murder. We 

have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, 

we vacate Tundidor’s two convictions of attempted felony murder, deny all other 

claims raised on appeal, and affirm Tundidor’s conviction for first-degree murder 

and sentence of death.

I. BACKGROUND

Randy W. Tundidor was convicted of first-degree murder of Joseph 

Morrissey (Count I), two counts of attempted first-degree murder and two counts 
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of attempted felony murder of Linda Morrissey and Patrick Morrissey (Counts II–

V), two counts of armed kidnapping of Joseph Morrissey and Linda Morrissey 

(Counts VI–VII), armed burglary (Count VIII), armed robbery of Joseph Morrissey 

and Linda Morrissey (Count IX), and arson (Count X). Joseph and Linda 

Morrissey, husband and wife, were Tundidor’s landlords. Patrick Morrissey is 

Joseph and Linda’s son, who was five years old at the time of the crimes.

At trial, the State presented the testimony of Linda Morrissey and 

Tundidor’s son, Randy H. Tundidor (“Junior”), among other evidence that 

demonstrated the following. In December 2009, Tundidor rented a townhouse 

from the Morrisseys and moved in with his fiancée, Hilda Mendieta, Hilda’s 

children and mother, and Tundidor’s other son, Shawn Tundidor. Shortly after 

moving in, Tundidor began conducting repairs on the townhouse and then 

deducting the costs from his rent payment, which caused a dispute with the 

Morrisseys. In a letter dated April 2, 2010, Joseph informed Tundidor that he was 

in violation of the lease. On April 5, 2010, Tundidor received the letter at his 

townhouse and became very upset and angry with Joseph.

Tundidor left the townhouse and called his son, Junior, to ask him if he 

knew someone who could hurt Joseph. Junior offered to help Tundidor scare 

Joseph if Tundidor would let Junior stay with him at the townhouse. Later that 
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evening, Tundidor picked Junior up in Hollywood and then drove to Tundidor’s 

business. 

Once at the business, Tundidor told Junior that Joseph was evicting him and 

destroying his family. During the conversation, Tundidor gathered some items, 

including a cleaned and loaded silver .380-caliber gun, eight to ten sets of wire 

cuffs made from zip ties, a screw driver, a big knife, and a set of walkie-talkies, 

placing these items inside a box. The plan was for Junior to enter the Morrisseys’

house, tie them up, and then search for anything of value. Tundidor told Junior to

use the walkie-talkies for communication and to turn off his cell phone so the 

police could not track it. From the business phone line, Tundidor called Hilda, his 

fiancée, and asked her to “MapQuest” directions to the Morrisseys’ house, and she 

read the results to Tundidor over the phone. Tundidor and Junior left the business 

at 10:37 p.m. and drove to the Morrisseys’ house.

Once at the Morrisseys’ house, Junior armed himself with the gun and 

entered the house through an open window. Junior did not hide his face, but he 

wore two layers of gloves. Junior walked through the house to a lighted room 

where he found Linda. Junior asked for Joseph, and Linda brought Junior to the 

living room where Joseph was sleeping on the couch. Junior yelled to wake

Joseph. Next, Junior used the zip tie cuffs to bind Linda’s and Joseph’s hands, and 

then he directed them to the master bedroom. Patrick was sleeping on the bed in 
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the master bedroom, but Junior did not wake him. Junior had Linda and Joseph 

kneel by the bed, and he covered their heads with towels so they could not see. 

During this time, Junior was communicating with Tundidor using the walkietalkies to tell him what steps had been completed.

Next, Junior left the Morrisseys in the bedroom and let Tundidor into the 

house through the front door. Once inside, Tundidor directed Junior to look for 

valuables. Junior returned to the bedroom and demanded things of value. Linda 

offered Junior her wedding ring and some other jewelry, but Junior did not take it 

because he did not think it was valuable. Junior went through Joseph’s wallet, but 

only found a few dollars and some euros. Junior left the bedroom to go talk to 

Tundidor. Tundidor told Junior that he wanted money and that Junior had to take 

the Morrisseys to the ATM to withdraw $5,000. Junior returned to the bedroom

and told the Morrisseys that they were going to the bank to withdraw $5,000. They 

took the Morrisseys’ car, and Junior made Joseph drive with Linda in the front 

passenger seat while Junior sat in the back seat with the gun. Junior left Patrick at 

the house because he did not want to wake him. When at the ATM machine, Linda 

was only able to withdraw $500, which she gave to Junior.

After returning to the house, Junior brought Linda and Joseph back into the 

master bedroom, where he used a new set of zip ties to bind their wrists. Junior 

covered Joseph’s and Linda’s heads again. Patrick was still asleep on the bed. 
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Junior used the walkie-talkie to report to Tundidor that the Morrisseys were tied up 

and scared and that he had obtained some money from them. Tundidor reentered 

the house, and Junior gave Tundidor the $500. Tundidor began looking around at 

the Morrisseys’ electronic equipment. Tundidor directed Junior to take the 

Morrisseys’ two laptops and put them in Tundidor’s car; the laptops were later 

found at Tundidor’s business during a search of the premises. 

Next, Tundidor announced to Junior that Joseph had to die. Junior argued 

with Tundidor, but ultimately, Junior gave the gun to his father and retrieved 

Joseph from the master bedroom. Junior entered the master bedroom and first

bound the Morrisseys’ feet together with sets of zip ties. Junior then forced Joseph 

to hop to the living room. Tundidor threw Joseph on the couch as Junior watched. 

With gun in hand, Tundidor put a pillow to Joseph’s head and pulled the trigger, 

but the gun jammed. Tundidor gave the gun to Junior and then retrieved the large 

knife from the box.

Wearing gloves borrowed from Junior, Tundidor stabbed Joseph in the 

stomach area. Joseph begged for his life as he was being stabbed. Eventually, 

Joseph stood up, bleeding from the stomach area and his hands. Tundidor swung 

the knife at Joseph’s head and neck area, making contact there. Joseph fell to the 

floor. After stabbing Joseph, Tundidor handed the knife to Junior and told him to 

put it back in the box and to put the box in the car. Junior complied. Junior 
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testified that Tundidor had no difficulty swinging the knife or moving about the 

house; Tundidor was not limping and was not using oxygen.

Next, Junior and Tundidor went into the garage. Tundidor saw a gas can 

and directed Junior to pick it up. Junior handed the gas can to Tundidor, and 

Tundidor started spreading gasoline around the house, starting in the living room 

and kitchen. Tundidor announced he wanted to kill Linda and Patrick too, saying,

“They got to go too.” Junior protested, angering his father. Tundidor then lit a fire 

near Joseph. Junior left the house, and Tundidor followed him out the front door. 

Tundidor left Linda and Patrick in the bedroom; Linda had her hands tied behind 

her back and feet tied together, but Patrick was unrestrained.

Linda testified that she struggled and managed to get one hand free from her 

restraints. During the stabbing, she heard Joseph cry and plead, but was unable to 

get to him because her feet were bound. She was able to see Joseph moving and 

twitching like he was being hurt. Then, she saw an orange light coming from the 

kitchen and heard the fire alarm go off. Linda next heard the two men leave the 

house through the front door.

Linda tried to hop, but she fell and hurt her arms. Linda called to Patrick 

and asked him to get scissors; Patrick found a pair and was able to cut Linda free 

from her restraints. At this point, the house was full of smoke. Patrick crawled to 

the front door, and Linda looked for Joseph, finding his body in the family room. 
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Linda called to Joseph, but he did not respond. Linda ran outside and screamed for 

help. Getting no immediate response, Linda ran back inside to Joseph and realized 

there was “slippery stuff” on the floor and that Joseph was on fire. Linda struggled 

to pull Joseph out of the house and eventually got Joseph outside on the patio, but 

he was unresponsive. 

An officer who responded to the scene testified that he found the house filled 

with smoke and Joseph with his hands and feet bound together, covered in blood, 

lying on the back patio. The officer smelled gasoline and saw a gas can in the 

living room and a fire in the kitchen. A fireman testified that he saw a gas can near 

the front door and could smell gasoline in the air. Linda testified that she had last 

seen her gas can near the garage door and that she did not know how it came to be 

near the front door. Junior’s DNA was found on the gas can. Also, the shirt Junior 

wore at the time of his arrest had Joseph’s blood on it.

Detective Kendall testified that he arrived on the scene in the early morning 

hours on April 6, 2010. Based on an interview with Linda, he initially suspected 

Junior, and he put a warrant out for Junior’s arrest. Detective Kendall also sent an 

officer to observe Tundidor’s home in an unmarked car. 

Dr. Trelka, the medical examiner, testified that Joseph suffered multiple stab 

wounds, blunt force trauma, and thermal injuries. Dr. Trelka noted burns to 

Joseph’s scalp and the right side of his neck and shoulder. Joseph may have been 
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alive when he was burned based on the redness of his skin around the burn areas; 

however, the carbon monoxide level in his blood was negative. If Joseph was alive 

when burned, it was not for long. Dr. Trelka noted that there was movement 

between Joseph and his assailant during the stabbings. The stabbing injury to 

Joseph’s hand and finger was potentially fatal and could have been a defensive 

wound. A knife capable of causing the injuries to Joseph had to be a very sharp, 

solid weapon and at least seven or eight inches long. The knife the police 

obtained, a bowie knife, which was the same as the knife missing from Tundidor’s 

collection, was consistent with the injuries Dr. Trelka observed.

Junior testified that after leaving the Morrisseys’ house, Tundidor and Junior 

drove back to Tundidor’s business. Once there, Tundidor gave Junior $60 so 

Junior could go buy drugs. About an hour later, Junior returned and found that 

Tundidor had burned the clothes he wore to the Morrisseys’ house and changed 

into a different set of clothes. Tundidor and Junior then left the business and drove 

to Tundidor’s townhouse. Tundidor gave Junior the knife, which had been cleaned 

and ground down, and asked Junior to get rid of it. Junior threw the knife into a 

nearby lake.

Junior testified that after arriving home, he went into Tundidor’s garage to 

use coke. Junior did not change his clothes. Later in the day on April 6, 2010, the 

police came to the house to talk to Tundidor, and Junior hid in the attic. After the 
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police left, Tundidor told Junior that the police were looking for Junior. Junior 

spent the rest of the day in the attic taking drugs. Tundidor woke Junior up in the 

early hours of April 7, 2010, and told Junior to leave. Junior went to a gas station 

where he made some phone calls. Within about 45 minutes of arriving at the gas 

station, Junior was arrested.

Junior was taken to the police station where he met with Detective Kendall. 

In that meeting on April 7, 2010, Junior “gave him a story,” making up names of 

people that he said were involved in the crimes because he did not want to be 

charged with murder. Later, on April 29, 2010, Junior spoke with Detective 

Kendall again, disclosing much, but not all, of what had transpired. Junior testified 

that he changed his mind and decided to tell the truth and testify against Tundidor 

because Tundidor was blaming the crimes on Junior and Shawn (Junior’s brother 

and Tundidor’s son). In exchange for Junior’s testimony against Tundidor, the 

State reduced the charge to second-degree murder, eliminating the possibility of a 

death sentence, and Junior agreed to plead guilty to all other charges.

The police searched Tundidor’s business and found zip ties similar to those 

used to bind the Morrisseys, a set of walkie-talkies, and euros in the garbage can. 

Police documented a burn area in the parking lot, and residue from the area was 

collected. A surveillance video recorded the burning at 2:30 a.m. on April 6, 2010.
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Hilda testified that on April 6, 2010, she learned about the murder on the 6 

a.m. news. Junior was at home, which was uncommon. Junior saw the news and 

looked scared. When Hilda confronted Tundidor about the murder, he asked 

whether she really wanted to know, and Hilda replied that she did not. 

Later that morning, Hilda and Shawn went to work at Tundidor’s business 

and noticed that a bowie-like knife was missing. They also smelled gasoline and a 

burning odor. The smells were coming from the bathroom and back of the shop. 

They also saw burn marks in the bathroom and ashes in the parking lot, which had 

not been there previously. Tundidor told Hilda that he burned Junior’s crack pipe 

and asked her to sweep it away, which she did. Hilda testified that the pile she 

swept up was “pretty big” and looked like pieces of clothing.

On April 9, 2010, Tundidor asked Hilda to get rid of his silver and black 

gun. When she refused, he said, “[Y]ou want me to go to jail?” He then locked 

himself in his room, and she heard him using power tools. Later that day, Hilda 

found holes and gouges in the drywall of her bedroom where no such marks had 

existed before.

Shawn testified that on April 5, 2010, he returned home between 9:30 and 10 

p.m., before the crime took place, and immediately made a phone call. He did not 

leave the house again that evening and was on the phone until 1 or 2 a.m. 

Tundidor was not home when Shawn fell asleep on the couch. Yoska Guillen 
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confirmed that Shawn was on the phone with her on April 5, 2010. This call lasted 

from 11:20 p.m. until 12:10 a.m. the next morning. During that time, Shawn did 

not disconnect, and Yoska said she did not hear noises in the background or Shawn 

talking to anyone else. Hilda also testified that on April 5, Shawn returned home 

that evening at about 8 p.m. and was on the phone for a very long time, until 10 to 

10:30 p.m. While she did not see him the rest of the night, she heard him in the 

house. Hilda believes she would have been alerted by the alarm noises if Shawn 

had left the house the night of the crimes. 

The following morning, Shawn learned about the Morrisseys on the news 

and asked Junior what happened. Junior replied that he should ask Tundidor. 

When Shawn confronted Tundidor, who was also watching the news, Tundidor 

said: “Nobody f***s with [Tundidor] and gets away with it.” Shawn did not press 

his father any further and just went to work at Tundidor’s business. When Shawn 

arrived at Tundidor’s business, he found the doors locked and alarm set. Upon 

entering, he noticed that a knife was missing from the display case and its box was 

on the floor. He found the sink stained with burn marks and a big black burn stain 

outside near the garage door with ash, clothing pieces, and other material.

Following Junior’s arrest, Shawn confronted Tundidor. Tundidor admitted 

to Shawn that Junior did not know that Joseph was going to die that night; Junior 

only thought they were going to rob the Morrisseys and that Junior would get 
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money for crack cocaine. Tundidor admitted to Shawn that he sent Junior into the 

Morrisseys’ house to tie up the Morrisseys. Shawn inquired about white sneakers 

he had left in the car, and Tundidor replied that “they were not white when I was 

done with them.” Tundidor also complained that Joseph was trying to evict him, 

and Tundidor said he could not let his family be thrown out on the streets, 

following up with “nobody f***s with [Tundidor]” and “nobody gets away with 

it.” Also, Tundidor asked Shawn to retrieve the rent checks from the mailbox as he 

no longer had to pay the landlord since he was dead.

As a result of this conversation, Shawn asked the police to let him wear a 

wire. The resulting recording was played for the jury. On the tape, Tundidor said 

that Junior had the Morrisseys drive to the bank and withdraw money, that Linda 

could not identify either him or Junior, that the worst things the police had were 

the laptops from the house, and that he would pin the murder on “Will” before 

letting Junior take the blame for murder. Also, Tundidor is heard on the tape 

saying, “The murder weapon, they ain’t gonna find it.” Tundidor then told Hilda 

and Shawn to “look the other way” and not “ask” him things or try to figure things 

out. On cross-examination, the defense explored Shawn’s police statements in 

which he initially lied to give Junior an alibi, only to later state that Tundidor 

admitted to going to the Morrisseys’ house and killing Joseph.
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During the guilt phase, Tundidor’s counsel argued that Junior and Shawn 

were responsible for the murder. Tundidor’s counsel emphasized Junior’s 

inconsistent statements to the police and statements that Junior made to other jail 

inmates. Tundidor’s counsel also highlighted Tundidor’s medical problems and 

physical limitations. Nonetheless, on May 9, 2012, the jury returned a verdict of 

guilty on each count.

Tundidor waived mitigation for the penalty phase. On October 12, 2012, an 

ex parte Koon/Muhammad1 hearing was held before Judge Bidwill. A 

psychologist testified that she found Tundidor competent to proceed and waive 

mitigation and that Tundidor’s counsel and mitigation expert had discussed the 

available mitigation with Tundidor. Judge Bidwill also questioned Tundidor. 

Judge Bidwill determined that Tundidor was making a knowing, intelligent, and 

voluntary waiver of mitigation, and the case was returned to the trial judge.

At the penalty phase, the State presented evidence from the medical 

examiner that Joseph was alive at the time of all of his injuries. Additionally, the 

State presented victim impact statements from Linda and Patrick, Joseph’s widow 

and son. Tundidor argued against aggravation but presented no mitigation. The 

jury returned a unanimous recommendation for death.

 

1. See Koon v. Dugger, 619 So. 2d 246 (Fla. 1993); Muhammad v. State, 

782 So. 2d 343 (Fla. 2001).
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At the Spencer2 hearing, Tundidor again waived mitigation. However, 

Tundidor presented evidence of residual doubt, proclaiming his innocence and 

blaming Junior and Shawn. The trial judge appointed Mitch Polay to investigate

and present evidence on mitigation.

On November 7, 2014, the trial court sentenced Tundidor to death for the 

murder of Joseph Morrissey. The trial court found the following aggravators: (1) 

Tundidor was previously convicted of another capital felony or of a felony 

involving the use or threat of violence (great weight); (2) the crime was committed 

while he was engaged in the commission of, or an attempt to commit, or flight after 

committing or attempting to commit the crimes of armed kidnapping and arson 

(great weight); (3) the capital felony was committed for pecuniary gain (great 

weight); (4) the capital felony was especially heinous, atrocious, or cruel (HAC) 

(great weight); and (5) the crime was committed in a cold, calculated, and 

premeditated manner (CCP) (great weight). Additionally, the trial court found the 

following mitigators: (1) no significant history of prior criminal activity (very 

little weight); (2) Tundidor had a chaotic and dysfunctional family upbringing 

(little weight); (3) Tundidor was forced to quit school at a young age (very little 

weight); (4) Tundidor suffered from physical injuries and pain (very little weight); 

 

2. See Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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(5) Tundidor was gainfully employed and ran a successful business (minimal 

weight); (6) Tundidor was a Red Cross volunteer and did volunteer work for his 

church (very little weight); (7) Tundidor was well-behaved while awaiting trial in 

jail (slight weight); and (8) Tundidor has maintained positive relationships 

(minimal weight).

II. ISSUES ON APPEAL

Tundidor raises thirteen issues on appeal. We also review whether there is 

sufficient evidence to support Tundidor’s conviction. However, as explained 

below, except for Tundidor’s double jeopardy claim, none of these issues warrants

relief.

A. Junior’s Statement to Detective Kendall

Tundidor first argues that the trial court abused its discretion when it 

allowed Detective Kendall to testify as to what Junior said in his April 29, 2010,

statement. We disagree.

When Junior was arrested, he met with Detective Kendall and initially 

claimed that two fictitious individuals were responsible for Joseph’s murder. 

Approximately three weeks later, on April 29, 2010, Junior met with Detective 

Kendall again and stated that he and Tundidor were responsible for the murder. At 

trial, Junior testified against Tundidor, consistent with his April 29, 2010, 

statement. On cross-examination, Tundidor’s counsel questioned the truthfulness 
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of Junior’s testimony by asking, “The lie that you want the jury to believe . . . is 

the one that gets you off the hook[?]” Near the end of the State’s case-in-chief, the 

State called Detective Kendall to testify regarding the April 29, 2010, meeting. 

Tundidor objected to the testimony as hearsay, but the trial court allowed it.

Admissibility of evidence is within the sound discretion of the trial court, 

and the trial court’s ruling will not be disturbed on appellate review unless there is 

an abuse of discretion. Peterson v. State, 2 So. 3d 146, 158 (Fla. 2009). 

“However, the question of whether a statement is hearsay is a matter of law and is 

subject to de novo review on appeal.” Cannon v. State, 180 So. 3d 1023, 1037 

(Fla. 2015), cert. denied, 136 S. Ct. 2389 (2016). 

If a declarant testifies at trial and is subject to cross-examination concerning 

the out-of-court statement, then the statement is not hearsay if that statement is 

“[c]onsistent with the declarant’s testimony and is offered to rebut an express or 

implied charge against the declarant of improper influence, motive, or recent 

fabrication.” § 90.801(2)(b), Fla. Stat.

In this case, the trial court did not abuse its discretion in allowing Detective 

Kendall’s testimony regarding Junior’s April 29, 2010, statement. Tundidor’s 

counsel implied that Junior had an improper motive when counsel referenced 

Junior’s plea deal, and in so doing, Tundidor opened the door for the State to rebut 

that inference. Therefore, because Detective Kendall’s testimony was consistent 
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with Junior’s trial testimony and it was introduced by the State to refute Tundidor’s 

inference that Junior had an improper motive, Detective Kendall’s testimony fell 

within section 90.801(2)(b), Florida Statutes, and was admissible. See Rodriguez

v. State, 609 So. 2d 493, 500 (Fla. 1992) (holding that section 90.801(2)(b) applied 

when “[d]efense counsel’s references to plea agreements with the state during 

cross-examination of [witnesses] were sufficient to create an inference of improper 

motive to fabricate,” and the State could introduce statements made “prior to the 

plea negotiations and therefore prior to the existence of both witnesses’ motive to 

fabricate”). The trial court did not abuse its discretion.

B. Discovery Deposition

Next, Tundidor argues that the trial court erred by admitting the deposition 

of Junior’s former girlfriend, Anna Sanchez, at trial. We disagree.

Because Anna was unavailable at trial, Tundidor offered Anna’s five-pagelong Arthur3 hearing testimony in which she discussed things Shawn told her 

regarding Joseph’s murder. In response, the State sought the admission of Anna’s 

deposition testimony, arguing that the deposition would give the jury a more 

complete picture as to her testimony and that the deposition followed up on issues 

 

3. See State v. Arthur, 390 So. 2d 717 (Fla. 1980).
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addressed in her Arthur hearing testimony. Although Tundidor protested, the trial 

court admitted both the Arthur hearing and the deposition testimony.

Section 90.108(1), Florida Statutes, provides that, “[w]hen a writing or 

recorded statement or part thereof is introduced by a party, an adverse party may 

require him or her at that time to introduce any other part or any other writing or 

recorded statement that in fairness ought to be considered contemporaneously.” 

This rule of completeness is not limited to situations where statements are taken 

out of context, and “[u]nder a plain reading of the statute, parties may seek the 

introduction of other statements when those statements ‘in fairness ought to be 

considered contemporaneously’ with the introduction of the partial statement.” 

Larzelere v. State, 676 So. 2d 394, 402 (Fla. 1996) (quoting § 90.108, Fla. Stat.

(1991)); see also Eberhardt v. State, 550 So. 2d 102, 105 (Fla. 1st DCA 1989) 

(holding that once testimony of a conversation came in, the rule of completeness 

allowed admission of the balance of that conversation and “conversations other 

than the one [the witness] mentioned on direct examination”). “The admissibility 

of evidence is within the sound discretion of the trial court, and the trial court’s 

determination will not be disturbed on appellate review absent a clear abuse of that 

discretion.” Gosciminski v. State, 132 So. 3d 678, 697 (Fla. 2013) (quoting 

Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005)).
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Here, Anna’s deposition was admissible under section 90.108. The Arthur

hearing testimony was only five pages long and, due to its brevity, might have 

provided an incomplete impression to the jury regarding Anna’s interaction with 

Shawn. For example, at the Arthur hearing, Anna simply said that she and Shawn 

had a falling out; whereas, in the deposition testimony, Anna added that the falling 

out occurred after she and Junior broke up, and that she and Shawn “just stopped 

talking.” Further, in her deposition, Anna provided more information regarding 

her conversation with Junior’s attorney and what happened when she went to the 

police department to inform them about what Shawn had said. 

Given the relation between the Arthur hearing and deposition testimonies, 

we hold that the trial court did not abuse its discretion in admitting the deposition 

testimony.

C. Recorded Conversation

Next, Tundidor argues that the recording of his conversation with Shawn 

was inadmissible because it does not fall under the statutory exception for the use 

of secret recordings. We disagree.

Section 934.06, Florida Statutes, provides that secret recordings cannot be 

used as evidence unless an exception applies. See McDade v. State, 154 So. 3d 

292, 297 (Fla. 2014). Section 934.03(2)(c) provides an exception to the general 

rule prohibiting secret recordings when the recording is made “under the direction 
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of an investigative or law enforcement officer.” Further, absent an abuse of 

discretion, a trial court’s admission of evidence will not be disturbed on appeal.

Peterson, 2 So. 3d at 158.

Detectives initially made contact with Shawn and asked that Shawn contact 

them if he had any information regarding Joseph’s murder. Shawn later had 

conversations with his father, which motivated Shawn to contact the police. 

Shawn told the detectives that Tundidor said he was responsible for the murder and 

Junior only thought they were only going to rob the Morrisseys. Shawn offered to 

wear a recording device because the “detectives didn’t believe [him].” The 

detectives agreed to the plan, outfitted Shawn with the recording device, and then 

took Shawn home. Shawn went to speak to Tundidor and made the recording that 

is at issue. The next morning, Shawn gave the detectives the recording.

The fact that Shawn was the one to suggest that he wear a wire does not 

affect whether the recording was made “under the direction of an investigative or 

law enforcement officer” and does not prevent application of section 934.03(2)(c). 

In Mead v. State, 31 So. 3d 881, 882 (Fla. 4th DCA 2010), the court held that a 

recording may qualify under the exception in section 934.03(2)(c), even if the 

witness is the first person to suggest making the recording. Further, in Mead, the 

supervisor only gave a verbal authorization to make the recording, but in this case 

the police were even more involved by providing the recording equipment and 
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driving Shawn to and from the police station before and after Shawn made the 

recording. See id. 

Accordingly, because the police agreed to Shawn’s suggestion of recording

his conversation with his father and helped him to do so by providing the recording 

equipment and transportation, the recording was made under the direction of the 

police, and the trial court did not abuse its discretion in admitting the recording.

D. Text Messages

Tundidor also asserts that the State improperly introduced text messages in 

its rebuttal case because the text messages did not refute a theory brought out in his 

case-in-chief and did not impeach a defense witness. However, we conclude that 

the trial court did not abuse its discretion in admitting this evidence.

After Tundidor rested, and over Tundidor’s objection, the State recalled 

Detective Kendall as a rebuttal witness to testify to the content of text messages 

exchanged between Tundidor and Shawn on April 5 and 6, particularly a message 

that Tundidor sent to Shawn saying, “Don’t want you involved.”

“Generally, rebuttal testimony is permitted to refute a defense theory or to 

impeach a defense witness.” Rimmer v. State, 825 So. 2d 304, 321 (Fla. 2002). A 

trial court’s decision to allow a party to offer rebuttal testimony is subject to an 

abuse of discretion standard of review. Cruse v. State, 588 So. 2d 983, 990 (Fla. 

1991). “Discretion is abused only when the judicial action is arbitrary, fanciful, or 
- 22 -

unreasonable, which is another way of saying that discretion is abused only where 

no reasonable person would take the view adopted by the trial court.” White v. 

State, 817 So. 2d 799, 806 (Fla. 2002).

In this case, Tundidor presented evidence regarding Shawn’s involvement in 

the murder by having inmates testify that Junior told them that Shawn was 

involved and not Tundidor. This theory of the crime, that Shawn was responsible 

for the murder, opened the door for the State’s rebuttal. Here, the State’s rebuttal 

testimony pertained to communications between Tundidor and Shawn, specifically 

when Tundidor sent a text to Shawn saying, “Don’t want you involved.” These 

communications before the crimes occurred directly related to Shawn’s degree of 

involvement, which was an issue raised by Tundidor’s defense. Cf. Glynn v. State, 

787 So. 2d 203, 204 (Fla. 4th DCA 2001) (holding that the trial court did not abuse 

its discretion admitting defendant’s prior statement as rebuttal to defense’s expert 

testimony that defendant was incapable of committing the crime).

Therefore, we hold that the trial court did not abuse its discretion by 

allowing the State to introduce text messages in its rebuttal.

E. Expert Opinion Testimony

Tundidor claims that the trial court permitted the State to introduce improper 

expert opinion testimony by allowing Dr. Bertot to testify on cross-examination 

that Tundidor’s physical limitations regarding his ability to commit a stabbing 
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murder would be the pain associated with his knee and shoulder injuries. We 

disagree. 

Admission of evidence is within the court’s discretion, and its ruling will be 

affirmed unless there has been an abuse of discretion. Williams v. State, 967 So. 

2d 735, 747–48 (Fla. 2007). However, when it is apparent that an expert opinion is 

based on insufficient data, it is inadmissible. Husky Indus., Inc. v. Black, 434 So. 

2d 988, 992 (Fla. 4th DCA 1983). 

In this instance, the expert witness, Dr. Bertot, was given sufficient data 

from which to form an opinion because Dr. Bertot had been treating Tundidor for 

his orthopedic issues. And although Tundidor argues that Dr. Bertot was not 

treating him for all of his health issues, such as breathing difficulty or obesity, Dr. 

Bertot took a medical history and documented these conditions when assessing 

Tundidor. Therefore, Dr. Bertot had sufficient data regarding Tundidor’s medical 

condition in order to formulate an expert opinion as to Tundidor’s physical 

limitations. Cf. Brennan v. State, 754 So. 2d 1, 4 (Fla. 1999) (holding that the trial 

court did not err when it allowed expert testimony from a medical examiner 

regarding “the victim’s cause of death, despite the fact that the expert did not 

perform the autopsy” because the medical examiner made independent conclusions 

using objective evidence).
- 24 -

Therefore, we hold that the trial court did not abuse its discretion when it 

allowed Dr. Bertot to testify on cross-examination as an expert witness regarding 

Tundidor’s physical limitations.

F. Privileged Statements

Tundidor asserts that the trial court erred when it concluded that Junior’s 

statements to Junior’s attorney during a meeting with Tundidor and Tundidor’s 

attorney were privileged. We disagree.

Generally, private conversations between attorneys and their clients are 

protected by privilege. See § 90.502, Fla. Stat.; see also McWatters v. State, 36 

So. 3d 613, 636 (Fla. 2010). But if the communication is voluntarily made in the 

presence of a third-party, the privilege will typically be lost. See Nova Se. Univ., 

Inc. v. Jacobson, 25 So. 3d 82, 86 (Fla. 4th DCA 2009). However, 

communications between codefendants and their counsel regarding issues of their 

joint defense are still protected by privilege. See Volpe v. Conroy, Simberg & 

Ganon, P.A., 720 So. 2d 537, 539 (Fla. 4th DCA 1998).

In this case, codefendants Tundidor and Junior met with their counsel at the 

jail. Junior’s counsel testified that the purpose of the meeting was for the attorneys 

to discover what happened. Therefore, the communications fall within the 

exception to the third-party rule, and the communications at this meeting were still 

protected by attorney-client privilege. See id. (“Where, however, co-parties 
- 25 -

communicate regarding issues of common interest to their joint defense to 

adequately prepare their case, the sharing of information with their co-parties' 

attorneys implies no waiver of the privilege.”); Visual Scene, Inc. v. Pilkington 

Bros., 508 So. 2d 437, 440 (Fla. 3d DCA 1987) (“An exception to this general 

waiver rule, variously called the ‘common interests,’ ‘joint defense,’ or ‘pooled 

information’ exception, enables litigants who share unified interests to exchange 

this privileged information to adequately prepare their cases without losing the 

protection afforded by the privilege.”).

Accordingly, the trial court did not abuse its discretion in ruling that Junior’s 

attorney did not have to testify regarding the statements Junior made during a 

meeting with Tundidor and Tundidor’s attorney.

G. Motion to Disqualify Trial Judge

Tundidor argues that the trial court erred in denying his motion to disqualify 

the trial judge after the guilt and penalty phases but before the Spencer hearing. 

Because the motion was untimely, we affirm its denial.

A motion to disqualify must be filed within 10 days after discovery of the 

facts that are the grounds for the motion. Fla. R. Jud. Admin. 2.330(e).

In this case, the trial judge’s DUI arrest on November 5, 2013, was the basis 

for Tundidor’s motion. The arrest was public knowledge on November 6, 2013, 
- 26 -

yet Tundidor did not file the motion until December 5, 2013. Because the motion 

was filed well outside of the 10-day timeframe, it was untimely.

Therefore, the motion was properly denied because it was untimely.

H. Motion for New Trial

Additionally, Tundidor claims that the trial court erred when denying his 

renewed motion for a new trial. However, we disagree.

Florida Rule of Criminal Procedure 3.600(a) provides that “[t]he court shall 

grant a new trial if . . . [t]he verdict is contrary to law or the weight of the 

evidence.” “A trial court’s denial of a motion for a new trial is reviewed under an 

abuse of discretion standard. In order to demonstrate abuse, the nonprevailing 

party must establish that no reasonable person would take the view adopted by the 

trial court.” Stephens v. State, 787 So. 2d 747, 754 (Fla. 2001).

In this case, the verdict is not contrary to the weight of the evidence. For 

example, Junior and Shawn, Tundidor’s sons, testified against him. Junior testified 

that Tundidor asked him to help him scare his landlord, and brought with him a 

gun and a seven- or eight-inch-long bowie knife. Junior further testified how 

Tundidor accompanied him to the house and how Junior carried out his father’s 

directives. Shawn testified that when Tundidor was asked about Joseph’s murder, 

Tundidor made comments such as, “Nobody f***s with [Tundidor] and gets away 

with it.” Hilda testified that when she went to Tundidor’s business on April 6, 
- 27 -

2010, she smelled gasoline and noticed that a large bowie knife was missing. 

Hilda also testified that Tundidor asked her to get rid of his silver and black gun, 

and when she refused, Tundidor yelled, “[Y]ou want me to go to jail?” 

Furthermore, the search of Tundidor’s business returned zip ties similar to those 

used to bind the Morrisseys, a set of walkie-talkies, and euros in the garbage can.

Accordingly, the trial court did not abuse its discretion when it denied 

Tundidor’s renewed motion for a new trial. See Bryan v. State, 533 So. 2d 744, 

750 (Fla. 1988) (upholding denial of a motion for new trial because there was an 

“abundance of evidence” regarding the identity of the victim and that the defendant 

accompanied the victim to the location where he was murdered).

I. Mitigation Witnesses

Tundidor argues that he is entitled to relief because his counsel complied 

with Tundidor’s wishes not to present mitigation witnesses. Essentially, Tundidor 

is claiming ineffective assistance of counsel because his counsel deferred to the 

client’s decision to waive the presentation of mitigation. This claim does not 

warrant relief. 

 Claims of ineffective assistance of counsel are generally “not reviewable 

on direct appeal but are more properly raised in a motion for post-conviction 

relief.” Kelley v. State, 486 So. 2d 578, 585 (Fla. 1986). “[A]n ineffective 

assistance of counsel claim may be treated on the merits on direct appeal only in 
- 28 -

the ‘rare’ instance where (1) the ineffectiveness is apparent on the face of the 

record, and (2) it would be ‘a waste of judicial resources to require the trial court to 

address the issue.’ ” Robards v. State, 112 So. 3d 1256, 1267 (Fla. 2013) (quoting 

Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987)). 

Moreover, in an appeal of the denial of a postconviction motion with an 

ineffective assistance of counsel claim regarding the presentation of mitigation 

evidence, the defendant has the burden to show “that counsel’s ineffectiveness 

‘deprived the defendant of a reliable penalty phase proceeding.’ ” Henry v. State, 

937 So. 2d 563, 569 (Fla. 2006) (quoting Asay v. State, 727 So. 2d 974, 985 (Fla.

2000)). Counsel cannot be deemed deficient for following his client’s interest and 

not presenting mitigation evidence. See id. at 573 (“Given [defendant’s] adamant, 

informed refusal to participate in the investigation and preparation of any type of 

mitigation, we conclude that counsel’s preparation and [defendant’s] decision to 

waive his rights did not deny him of a reliable penalty phase proceeding.”); Power 

v. State, 886 So. 2d 952, 961 (Fla. 2004) (upholding lower court’s finding that 

counsel was not deficient when defendant “interfered with trial counsel’s ability to 

obtain and present mitigating evidence”).

As in Henry and Power, the record reflects that Tundidor was adamant about 

not presenting mitigation, refusing to cooperate with the PSI investigation and the 

attorney appointed by the trial court to investigate and present mitigating evidence. 
- 29 -

Accordingly, Tundidor’s counsel cannot be deemed ineffective by following 

Tundidor’s wishes when Tundidor was deemed competent to waive mitigation 

after discussing the available options with his counsel and mitigation expert and

after Judge Bidwill determined that Tundidor was making a knowing, intelligent, 

and voluntary waiver of mitigation. See Koon, 619 So. 2d at 250 (establishing that 

when a defendant wants to waive mitigation against his counsel’s advice, “[t]he 

court should then require the defendant to confirm on the record that his counsel 

has discussed these matters with him, and despite counsel’s recommendation, he 

wishes to waive presentation of penalty phase evidence”).

Thus, Tundidor has not demonstrated that his counsel was ineffective on the 

face of the record.

J. Mitigating Circumstances

Tundidor also argues that the trial court erred by failing to find two 

mitigating circumstances and giving little weight to five other mitigating 

circumstances. We agree that the trial court erred when it rejected the age 

mitigator, but we disagree with Tundidor’s arguments regarding the other 

mitigators. Moreover, the error regarding the age mitigator was harmless.

Each statutory and nonstatutory mitigator must be identified and evaluated 

to determine if it is mitigating and established by the evidence, and then the weight 

for each proven mitigator must be assessed. Ferrell v. State, 653 So. 2d 367, 371 
- 30 -

(Fla. 1995). “The finding of whether a mitigating circumstance has been 

established is a question of fact that will not be overturned where it is supported by 

competent, substantial evidence.” Fletcher v. State, 168 So. 3d 186, 218 (Fla. 

2015), cert. denied, 136 S. Ct. 980 (2016). “The age of the defendant at the time of 

the crime” is a statutory mitigating circumstance. § 921.141(7)(g), Fla. Stat. 

Middle age may be considered a mitigating factor when the defendant has no 

significant prior criminal history as it demonstrates “the length of time [the 

defendant] obeyed the law prior to committing this crime.” Burns v. State, 699 So. 

2d 646, 648 n.4 (Fla. 1997).

Here, the trial court erred by not finding a statutory mitigating circumstance 

based on Tundidor’s age because the court’s rejection of this mitigator is not 

supported by competent, substantial evidence. The record reflects that Tundidor 

was 44 at the time of the murder, and the PSI showed no prior criminal history. 

The trial court considered Tundidor’s age only insofar as it pertained to 

immaturity. However, this error is harmless beyond a reasonable doubt. See State 

v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986).

The trial court did not err when it concluded that Tundidor’s ability to adjust 

well to prison was not established as a nonstatutory mitigator. Tundidor cites his 

good behavior in jail as evidence that he could adjust well to prison life. However, 

as the judge explained when assessing the proposed mitigator, there was no direct 
- 31 -

evidence regarding Tundidor’s good behavior and only a lack of disciplinary 

reports. We conclude that competent, substantial evidence supports the trial 

court’s rejection of this mitigating circumstance.

Tundidor also argues that the trial judge erred by not weighing more heavily 

five of the eight mitigating circumstances that were found to be established. “This 

Court reviews a trial court’s assignment of weight to mitigation under an abuse of 

discretion standard.” Bevel v. State, 983 So. 2d 505, 521 (Fla. 2008). “Discretion 

is abused ‘only when the judicial action is arbitrary, fanciful, or unreasonable, 

which is another way of saying that discretion is abused only where no reasonable 

person would take the view adopted by the trial court.’ ” Wilcox v. State, 143 So. 

3d 359, 389 (Fla. 2014) (quoting Green v. State, 907 So. 2d 489, 496 (Fla. 2005)). 

Here, the trial court individually assessed each mitigator, determining that each 

was proved by the evidence and assigning weight to each mitigator. Accordingly, 

we conclude that the trial court did not abuse its discretion, because the trial court's 

assignments of weight are supported by competent, substantial evidence and are 

not arbitrary, fanciful, or unreasonable.

Therefore, except for the rejection of the age mitigator, the trial court did not 

err with regard to the finding of mitigators and the assignment of weight. 

Moreover, the error regarding the age mitigator is harmless beyond a reasonable 

doubt.
- 32 -

K. Double Jeopardy

Both Tundidor and the State agree that Tundidor’s convictions for two

counts of attempted first-degree murder and two counts of attempted felony murder 

are violations of double jeopardy. Notably, the trial court withheld sentencing for 

the two counts of attempted felony murder. However, Tundidor argues that he is 

entitled to resentencing with a corrected scoresheet for the noncapital and capital 

convictions. We hold that Tundidor’s two convictions for attempted felony murder 

must be vacated. However, we disagree with Tundidor that resentencing is 

required.

This issue is reviewed de novo because it presents a pure question of law. 

See Sanders v. State, 35 So. 3d 864, 868 (Fla. 2010). “In general, when the 

vacation of a conviction would result in changes to the defendant’s scoresheet, the 

defendant is entitled to be resentenced using a corrected scoresheet.” Fernandez v. 

State, 199 So. 3d 500, 502 (Fla. 2d DCA 2016). However, the error is harmless if 

the record conclusively shows that the trial court would have imposed the same 

sentence using a corrected scoresheet. State v. Anderson, 905 So. 2d 111, 118

(Fla. 2005). “The standard is no different from the one announced in DiGuilio—

whether beyond a reasonable doubt the error did not contribute to the verdict.” Id. 

The harmless error test places the burden on the State. DiGuilio, 491 So. 2d at 

1139. This Court explained:
- 33 -

The would-have-been-imposed test applies this standard to scoresheet 

error. It requires an examination of the record for conclusive proof 

that the scoresheet error did not affect or contribute to the sentencing 

decision. If the reviewing court cannot determine conclusively from 

the record that the trial court would have imposed the same sentence 

despite the erroneous scoresheet, remand for resentencing is required.

Anderson, 905 So. 2d at 115–16.

In this case, the State’s harmless error argument is persuasive. The State 

argues that the trial court’s findings contained in its sentencing order show the 

heinousness of Tundidor’s actions and lend support for the maximum sentences for 

each of the noncapital crimes for which he was sentenced. The vacation of the two 

attempted felony murder convictions would result in a reduction of 92 points on 

Tundidor’s scoresheet. Nonetheless, the trial court sentenced Tundidor to the 

maximum allowed for each of the noncapital offenses (with the exception of the 

two counts of attempted felony murder for which it withheld sentencing).

Specifically, he was sentenced to the maximum of life imprisonment for each 

count of armed kidnapping, armed burglary, and armed robbery as well as the 

maximum sentence of 30 years for each count of arson and attempted first-degree 

murder. Accordingly, resentencing for the noncapital convictions is not required 

because it can be determined conclusively from the record that the trial court 

would have imposed the same sentence, despite the erroneous scoresheet. See

Kablitz v. State, 979 So. 2d 969, 972 (Fla. 4th DCA 2008) (concluding that the 

State had shown “that the same sentence would have been imposed had the 
- 34 -

corrections [to the scoresheet] been made” where defendant “was a ten-time 

convicted felon, and the court sentenced him well above the minimum guidelines 

sentence”); White v. State, 873 So. 2d 600, 600–01 (Fla. 5th DCA 2004) (holding 

scoresheet error harmless where the lowest permissible sentence was reduced from 

53 to 44.4 months but the record conclusively demonstrated that the trial court 

would have imposed the same sentence of 53 months with a corrected scoresheet); 

Mooney v. State, 864 So. 2d 60, 61–62 (Fla. 4th DCA 2003) (affirming as 

harmless the denial of a claim of scoresheet calculation error because the record 

demonstrated that the departure sentence would have been imposed despite the 

error); cf. Hughes v. State, 139 So. 3d 477, 478 (Fla. 2d DCA 2014) (“The error is 

not harmless because [the defendant] was sentenced to the lowest permissible 

sentence under the incorrectly calculated scoresheet and nothing in the record 

conclusively shows the sentence would have been the same under an accurate 

one.”); Budd v. State, 939 So. 2d 1158, 1159 (Fla. 2d DCA 2006) (“Because the 

record does not conclusively show that the same sentence would have been 

imposed, particularly where the lowest permissible prison sentence was previously 

imposed, we reverse and remand for the postconviction court to resentence [the 

defendant] pursuant to a corrected scoresheet.”).

In arguing that resentencing is required for the capital conviction, Tundidor 

relies on Burr v. State, 576 So. 2d 278, 280–81 (Fla. 1991), claiming that use of an
- 35 -

illegal conviction in capital sentencing violates the Due Process Clause of the state 

constitution, is not “merely cumulative,” and requires resentencing. However, in 

Burr, the jury returned a recommendation of life, but the trial judge rejected the 

jury’s recommendation and cited three aggravating factors to justify imposing the 

death penalty. Two of the three aggravating factors were based on inadmissible 

collateral crimes. Burr, 576 So. 2d at 280. Resentencing was necessary because 

this Court could not conclude that the inadmissible collateral crimes evidence did 

not contribute to the trial judge’s decision to impose the death penalty, especially 

because the jury had recommended life. Id. For reasons explained below, Burr is 

not analogous to the instant case.

Here, the jury voted 12-0 in favor of the death penalty for the capital 

conviction. Additionally, the sentencing order lays out the reasoning behind the 

sentence imposed, which indicates that Tundidor’s conviction of two additional 

crimes, which under double jeopardy he should not have been convicted of, did not 

impact the judge’s determination of the sentence. When assessing the prior violent 

felony aggravating circumstance regarding the first-degree murder sentence, the 

trial court mentioned the two attempted first-degree murder and two attempted 

felony murder convictions, but then stated that “either of these contemporaneous 

convictions would satisfy the aggravating circumstance . . . because they involve 

different victims than Joseph Morrissey.” Thus, resentencing for the capital 
- 36 -

conviction is not necessary. See Spann v. State, 857 So. 2d 845, 855 (Fla. 2003) 

(concluding that any error by the trial court in relying on defendant’s prior 

conviction of battery as a death penalty aggravator was harmless, where any one of 

the defendant’s three prior felony conviction aggravators would have supported the 

trial court’s finding of aggravating circumstance); Mahn v. State, 714 So. 2d 391, 

399 (Fla. 1998) (concluding that although robbery conviction was improperly used 

as a prior violent felony conviction, it was harmless error because 

contemporaneous convictions of two other homicides satisfied the aggravating 

circumstance).

Therefore, we vacate the two convictions for attempted felony murder but 

hold that resentencing is not required for the noncapital or capital convictions.

L. Hurst

While Tundidor’s appeal was pending, the United States Supreme Court 

issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016), in which it held that 

Florida’s capital sentence scheme violated the Sixth Amendment to the United 

States Constitution. The Supreme Court concluded that “[t]he Sixth Amendment 

requires a jury, not a judge, to find each fact necessary to impose a sentence of 

death. A jury’s mere recommendation is not enough.” Id. at 619.

On remand from the United States Supreme Court in Hurst, we stated that 

“the Supreme Court’s decision in Hurst v. Florida requires that all the critical 
- 37 -

findings necessary before the trial court may consider imposing a sentence of death 

must be found unanimously by the jury.” Hurst v. State (Hurst), 202 So. 3d 40, 44

(Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017). We further 

held that “in order for the trial court to impose a sentence of death, the jury’s 

recommended sentence of death must be unanimous.” Id. Finally, we explained

that Hurst v. Florida error is capable of harmless error review. Id. at 67. Thus, the 

issue here is whether any Hurst error during Tundidor’s penalty phase proceedings 

was harmless beyond a reasonable doubt.

The standard for evaluating whether the error was harmless beyond a 

reasonable doubt “is whether there is a reasonable possibility that the error affected 

the [sentence].” Id. at 68 (quoting DiGuilio, 491 So. 2d at 1139) (alteration in 

original). “As applied to the right to a jury trial with regard to the facts necessary 

to impose the death penalty, it must be clear beyond a reasonable doubt that a 

rational jury would have unanimously found that there were sufficient aggravating 

factors that outweighed the mitigating circumstances.” Davis v. State, 207 So. 3d 

142, 174 (Fla. 2016), petition for cert. filed, No. 16-8569 (U.S. April 3, 2017);

accord Hurst, 202 So. 3d at 67–68.

In this case, the penalty phase jury returned a unanimous recommendation 

for a sentence of death. “[This] recommendation[] allow[s] us to conclude beyond 

a reasonable doubt that a rational jury would have unanimously found that there 
- 38 -

were sufficient aggravators to outweigh the mitigating factors.” Davis, 207 So. 3d 

at 174. Further: 

Even though the jury was not informed that the finding that sufficient 

aggravating [factors] outweighed the mitigating circumstances must 

be unanimous, and even though it was instructed that it was not 

required to recommend death even if the aggravators outweighed the 

mitigators, the jury did, in fact, unanimously recommend death. From 

these instructions, we can conclude that the jury unanimously made 

the requisite factual findings to impose death before it issued the 

unanimous recommendations.

Id. at 175 (citation omitted). 

Thus, we conclude that the State has sustained its burden of demonstrating 

that any Hurst error in Tundidor’s penalty phase was harmless beyond a reasonable 

doubt. The jury unanimously found all of the facts necessary for the imposition of 

the death sentence by virtue of its unanimous recommendation. Accordingly, 

Tundidor is not entitled to a new penalty phase.

M. Proportionality

Tundidor next contends that the death sentence is not proportional. We 

disagree.

“This Court must review the proportionality of a death sentence, even if the 

issue has not been raised by the defendant.” Bolin v. State, 869 So. 2d 1196, 1204 

(Fla. 2004). Proportionality review “is not a comparison between the number of 

aggravating and mitigating circumstances.” Crook v. State, 908 So. 2d 350, 356 

(Fla. 2005) (quoting Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990)). Instead, 
- 39 -

we must consider the totality of the circumstances in comparison to other cases 

where the death sentence has been upheld to determine if death is warranted. 

Davis v. State, 859 So. 2d 465, 480 (Fla. 2003).

The instant case involves a murder by stabbing as well as two counts of 

attempted first-degree murder, two counts of armed kidnapping, armed burglary, 

armed robbery, and arson. The jury recommended death by a vote of twelve to 

zero. The trial court found five aggravating circumstances beyond a reasonable 

doubt: (1) committed by a person previously convicted of a violent felony (great 

weight); (2) committed while engaged in the commission of armed kidnapping and 

arson (great weight); (3) committed for pecuniary gain (great weight); (4) 

especially heinous, atrocious, or cruel (HAC) (great weight); and (5) committed in 

a cold, calculated, and premeditated manner (CCP) (great weight). The trial court 

found eight mitigating circumstances: (1) no significant history of prior criminal 

activity (very little weight); (2) Tundidor had a chaotic and dysfunctional family 

upbringing and was physically and verbally abused by his father (little weight); (3) 

Tundidor was forced to quit school at an early age (very little weight); (4) 

Tundidor suffered from physical injuries as well as pain (very little weight); (5) 

Tundidor was gainfully employed and operated a successful business (minimal 

weight); (6) Tundidor was a Red Cross volunteer and did volunteer work for his 

church (very little weight); (7) Tundidor was well-behaved in jail while awaiting 
- 40 -

trial (slight weight); and (8) Tundidor has maintained positive relationships 

(minimal weight).

Under the totality of the circumstances, Tundidor’s sentence is proportional 

in relation to other death sentences that this Court has upheld. See, e.g., 

Gosciminski, 132 So. 3d at 716–17 (holding death sentence proportionate for 

stabbing murder during burglary where trial court found three aggravators, 

including HAC and CCP, one statutory mitigator of “no significant history of 

criminal activity,” and 13 nonstatutory mitigators); Kocaker v. State, 119 So. 3d 

1214, 1226, 1232 (Fla. 2013) (holding death sentence proportionate for stabbing 

death of cab driver where trial court found prior violent felonies); Banks v. State, 

46 So. 3d 989, 993, 1000–01 (Fla. 2010) (holding death sentence proportionate for 

stabbing murder and stealing a car where trial court found HAC, CCP, and prior 

violent felony aggravators as well as low IQ and brain deficits mitigators); Merck

v. State, 975 So. 2d 1054, 1066–67 (Fla. 2007) (holding death sentence 

proportionate for stabbing murder where trial court found prior violent felony and 

HAC aggravators, statutory age mitigator and several nonstatutory mitigators, 

including a difficult family background, alcohol use the night of the murder, and 

capacity to form positive relationships); Blackwood v. State, 777 So. 2d 399, 405, 

412–13 (Fla. 2000) (holding death sentence proportionate for strangulation murder 
- 41 -

where trial court found HAC aggravator, one statutory mitigator, and eight 

nonstatutory mitigators). Accordingly, Tundidor’s death sentence is proportional. 

III. SUFFICIENCY

Finally, “[i]n appeals where the death penalty has been imposed, this Court 

independently reviews the record to confirm that the jury’s verdict is supported by 

competent, substantial evidence.” Davis v. State, 2 So. 3d 952, 966–67 (Fla. 

2008). Applying this standard, we conclude that competent substantial evidence 

supports Tundidor’s conviction for first-degree murder. 

As explained above, Junior testified that Tundidor asked him to help him 

scare his landlord. Junior testified that Tundidor brought a gun and a seven- or 

eight-inch-long bowie knife with him to the Morrisseys’. Tundidor instructed 

Junior to enter the Morrisseys’ house and restrain them. Junior testified that once 

the Morrisseys were restrained, Tundidor entered the house to give further 

instructions and look for valuables. Then Tundidor instructed Junior to take the 

Morrisseys to an ATM to withdraw money. Junior testified that once Junior 

returned with $500 from the ATM, Junior restrained the Morrisseys a second time, 

and Tundidor reentered the house at that time. Junior testified that Tundidor took 

laptops from the Morrisseys’ home. He then instructed Junior to bring Joseph to 

him. Junior also testified that Tundidor attempted to shoot Joseph, but the gun 

jammed. At that point, Tundidor retrieved the bowie knife. Junior testified that 
- 42 -

Tundidor then proceeded to stab Joseph nine times. Finally, Tundidor instructed 

Junior to help him set the house on fire, leaving Linda bound in the master 

bedroom with her five-year-old son.

Additionally, Hilda, Tundidor’s fiancée, testified that when she went to 

Tundidor’s business on April 6, 2010, she noticed a large bowie knife was missing 

and she smelled gasoline and a burning odor. She testified that she also saw burn 

marks in the bathroom and a pile of ashes that looked like pieces of clothing. 

Hilda also testified that Tundidor asked her to get rid of his silver and black gun, 

and when she refused, Tundidor yelled, “[Y]ou want me to go to jail?”

Shawn testified that when he asked Tundidor about seeing the Morrisseys on 

the morning news, Tundidor said: “Nobody f***s with [Tundidor] and gets away 

with it.” Shawn testified that when he went to work at Tundidor’s business, he 

noticed that the large bowie knife was missing and found ash, clothing pieces, and 

other material outside near the garage door. Also, Shawn testified that after Junior 

was arrested, Tundidor told him that Junior had not known that Joseph was going 

to die, and Junior only knew they were going to rob the Morrisseys and that he 

would get money for crack cocaine. Shawn also testified that Tundidor told Shawn 

that Shawn’s shoes “were not white when [Tundidor] was done with them.” 

Furthermore, there was evidence recovered from the search of Tundidor’s 
- 43 -

business. For example, the police found zip ties similar to those used to bind the 

Morrisseys, a set of walkie-talkies, and euros in the garbage can.

Accordingly, we find that there is sufficient evidence to support the firstdegree murder conviction.

IV. CONCLUSION

For the reasons expressed above, we vacate the two convictions of attempted 

felony murder, deny all other claims raised on appeal, and affirm Tundidor’s 

conviction for first-degree murder and sentence of death.

It is so ordered.

LEWIS, J., concurs.

LABARGA, C.J., and PARIENTE, J., concur in result.

CANADY, J., concurs specially with an opinion, in which POLSTON and 

LAWSON, JJ., concur.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

CANADY, J., specially concurring.

I concur in the majority opinion in all respects except for the discussion 

regarding Hurst. 

POLSTON and LAWSON, JJ., concur.

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

I concur with my colleagues that Tundidor is not entitled to relief on the 

majority of his claims; however, I cannot agree with the majority’s conclusion that 
- 44 -

the Hurst error in this case is harmless beyond a reasonable doubt. Because I 

would find that the Hurst error in this case requires a new penalty phase, I dissent.

In Hurst v. State, 202 So. 3d 40, 69 (Fla. 2016), petition for cert. filed, No. 

16-998 (U.S. Feb. 13, 2017), we declined to speculate why the jurors voted the 

way they did; yet, here, the majority finds that the unanimous “recommendation 

allows us to conclude beyond a reasonable doubt that a rational jury would have 

unanimously found that there were sufficient aggravators to outweigh the 

mitigating factors.” Majority op. at 37 (quoting Davis v. State, 207 So. 3d 142, 

174 (Fla. 2016)). 

Although the jury unanimously recommended a death sentence, we cannot 

know that the jury found each aggravating factor unanimously. Because three of 

the aggravators found by the trial court for the murder in this case—that the capital 

felony was committed for pecuniary gain; that the capital felony was especially 

heinous, atrocious or cruel; and that the crime was committed in a cold, calculated, 

and premeditated manner—require specific factual findings, Hurst requires that the 

jury, not the trial judge, make that determination. The jury made no such 

determination in Tundidor’s case.

By ignoring the record and concluding that all aggravators were 

unanimously found by the jury, the majority is engaging in the exact type of 

conduct the United States Supreme Court cautioned against. See Hurst v. Florida, 
- 45 -

136 S. Ct. at 622. Because the harmless error review is neither a sufficiency of the 

evidence review nor “a device for the appellate court to substitute itself for the 

trier-of-fact by simply weighing the evidence,” see DiGuilio, 491 So. 2d at 1139, I 

cannot conclude beyond a reasonable doubt that the error here was harmless, and I 

would vacate Tundidor’s unconstitutional death sentence and remand for 

resentencing. See Hurst, 202 So. 3d at 69.

An Appeal from the Circuit Court in and for Broward County, 

Cynthia G. Imperato, Judge - Case No. 062010CF006496A88810

Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant

Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie T. Campbell, 

Assistant Attorney General, West Palm Beach, Florida,

for Appellee