author: SHAW, Judge. SHAW, Judge.

text:
    Rodrellas SMITH v. STATE of Alabama.
    CR-00-2214.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Opinion on Return to Remand March 22, 2002.

      Rodrellas Smith, pro se.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   SHAW, Judge.

Rodrellas Smith appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his August 13, 1999, guilty-plea conviction for unlawful distribution of a controlled substance. Smith was sentenced to five years’ imprisonment, enhanced by an additional five years’ imprisonment pursuant to § 13A-12-250, Ala.Code 1975, and an additional five years’ imprisonment pursuant to § 13A-12-270, Ala.Code 1975. Smith’s five-year base sentence was suspended and he was ordered to serve three years on probation. Smith did not appeal his conviction.

Smith filed the present petition on October 17, 2000. In his petition, Smith alleged (1) that his guilty plea was involuntary because, he said, neither the trial court nor his trial counsel informed him that his sentence would be enhanced by §§ 13A-12-250 and 13A-12-270 or that he could not receive probation on the enhanced portion of his sentence; and (2) that his trial counsel was ineffective for not informing him that his sentence would be enhanced by §§ 13A-12-250 and 13A-12-270 and that he could not receive probation on the enhanced portion of his sentence. Smith maintained that had he known that his sentence would be enhanced by an additional 10 years upon the application of §§ 13A-12-250 and 13A-12-270 and that he could not receive probation for the enhanced portion of his sentence, he would not have pleaded guilty.

On June 5, 2001, after receiving a response from the State, the circuit court summarily denied Smith’s petition. The circuit court found that Smith’s claims were not pleaded with sufficient specificity to warrant relief, and that they were precluded by Rules 32.2(a)(3) and (a)(5), Ala. R.Crim.P., because they could have been, but were not, raised and addressed at trial and on appeal.

We find it necessary to remand this case to the circuit court for it to examine the merits of the claims in Smith’s petition. It is well settled that “claims challenging the voluntariness of a guilty plea, as well as claims alleging ineffective assistance of trial counsel, may be raised for the first time in a timely filed Rule 32 petition.” George v. State, 774 So.2d 608, 609 (Ala.Crim.App.2000). See also Ex parte Ingram, 675 So.2d 863 (Ala.1996); Baker v. State, 717 So.2d 859 (Ala.Crim.App.1996); and Cantu v. State, 660 So.2d 1026 (Ala.1994). Thus, the claims in Smith’s petition are not, as the circuit court found, precluded by Rules 32.2(a)(3) and (a)(5), Ala.R.Crim.P. In addition, contrary to the circuit court’s finding, Smith’s claims were pleaded with sufficient specificity to entitle him to relief if the facts alleged are true. Smith alleged that he was not informed, either by the trial court or by his counsel, that the enhancement provisions of §§ 13A-12-250 and 13A-12-270 would be applied to his sentence or that he could not receive probation on the enhanced portion of his sentence and that, had he known the enhancements would apply and that he could not receive probation, he would not have pleaded guilty. “When an accused is not informed that § 13A-12-250 [or § 13A-12-270] will be applied in the accused’s case and that the statute does not allow for probation, then the accused has not been informed of the true and correct terms of the sentence ... and it cannot be said that his plea was ‘knowingly given.’ ” Pope v. State, 681 So.2d 1098, 1099 (Ala.Crim.App.1995). See also Cummings v. State, 642 So.2d 489 (Ala.Crim.App.1992). In addition, “a misrepresentation by a defendant’s counsel, if material, may render a guilty plea involuntary.” Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999). See also Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001); and Minor v. State, 627 So.2d 1071 (Ala.Crim.App.1992).

Moreover, the State did not specifically refute either of Smith’s claims in its response; rather, the State merely asserted a general denial of Smith’s claims. The State argued that Smith was afforded “a hearing at the time of ... his guilty plea[ ] to ensure that [his] guilty plea was voluntarily and intelligently given”; that Smith “was well aware of his constitutional rights” when he pleaded guilty; and that Smith executed “Court’s Exhibit B” reflecting that he was satisfied with his counsel’s performance. (C. 31.) The State did not specifically address Smith’s claims that he was not informed by the trial court or his counsel that his sentence would be enhanced by §§ 13A-12-250 and 13A-12-270 nor did it attach Court’s Exhibit B to its motion to dismiss and that document is not contained in the record on appeal. Furthermore, the record on appeal does not contain a transcript of Smith’s guilty-plea proceedings and because Smith did not appeal his conviction a transcript is not otherwise available for this Court to review. Based on the record before us, we are unable to determine the merits of Smith’s claims that his guilty plea was involuntary and that his trial counsel was ineffective.

Therefore, we remand this cause to the circuit court for that court to address the merits of Smith’s claims that his guilty plea was involuntary and that his trial counsel was ineffective and to make specific findings of fact regarding each claim. On remand, the circuit court may either conduct an evidentiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings; a transcript of the evi-dentiary hearing, if one is conducted; any other evidence taken by the court; and a transcript of the guilty-plea proceedings.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

On Return to Remand

SHAW, Judge.

On October 17, 2000, Rodrellas Smith filed a Rule 32, Ala.R.Crim.P., petition for postconviction relief, attacking his August 13, 1999, guilty-plea conviction for unlawful distribution of a controlled substance. Smith was sentenced to five years’ imprisonment, enhanced by an additional five years’ imprisonment pursuant to § 13A-12-250, Ala.Code 1975, and an additional five years’ imprisonment pursuant to § 13A-12-270, Ala.Code 1975; his five-year base sentence was suspended and he was placed on probation for three years. In his petition, Smith alleged (1) that his guilty plea was involuntary because, he said, neither the trial court nor his trial counsel informed him that his sentence would be enhanced by §§ 13A-12-250 and 13A-12-270 or that he could not receive probation on the enhanced portion of his sentence, and (2) that his trial counsel was ineffective for not informing him that his sentence would be enhanced by §§ 13A-12-250 and 13A-12-270 and that he could not receive probation on the enhanced portion of his sentence. The circuit court summarily denied Smith’s petition on June 5, 2001.

On November 30, 2001, this Court remanded the case to the circuit court for it to address the merits of Smith’s claims that his guilty plea was involuntary and that his trial counsel was ineffective. See Smith v. State, 852 So.2d 185 (Ala.Crim.App.2001). On return to remand, the eir-cuit court has submitted the following order:

“This court received this case on an order of remand from the Court of Criminal Appeals pursuant to a Rule 32 petition heretofore filed by the defendant.
“This defendant was on probation from this court for the distribution portion of this case pursuant to § 13A-12-211; therefore, this court still had jurisdiction over this defendant in this case.
“The defendant in open court stated that he would prefer to be placed on probation in this case pursuant to Soles [v. State, 820 So.2d 163 (Ala.Crim.App.2001),] and this court concurred and granted his motion to dismiss the Rule 32 petition. Pursuant to the defendant’s motion the Rule 32 petition is dismissed as moot as this defendant is no longer in custody on this case [and] the remainder of the sentence was suspended and the defendant placed on probation for one (1) year.”

(Record on remand, C. 2.)

Instead of addressing the merits of the claims in Smith’s petition as this Court requested that it do, the circuit court apparently suspended the enhanced portion of Smith’s sentence, pursuant to the newly amended § 15-18-8, Ala.Code 1975, and this Court’s opinion in Soles v. State, 820 So.2d 163 (Ala.Crim.App.2001). However, the circuit court did not have jurisdiction to modify Smith’s sentence.

First, the circuit court exceeded the scope of our remand order. It is well settled that “any act by a trial court beyond the scope of an appellate court’s remand order is void for lack of jurisdiction.” Anderson v. State, 796 So.2d 1151, 1156 (Ala.Crim.App.2000)(opinion after remand), citing Ellis v. State, 705 So.2d 843, 847 (Ala.Crim.App.1996) (stating that on remand, “the trial court had no jurisdiction to modify the original or base sentence imposed or to take any action beyond the express mandate of this court”). The circuit court was directed to address the merits of Smith’s claims that his guilty plea was involuntary and that his trial counsel was ineffective. The circuit court’s modification of Smith’s sentence was, therefore, beyond its jurisdiction.

Second, it is also well settled that “[i]f a motion for a new trial or a request to modify a sentence is not filed within 30 days of sentencing, the trial court loses all jurisdiction to modify the sentence.” Massey v. State, 587 So.2d 448, 449 (Ala.Crim.App.1991). See also Moore v. State, 814 So.2d 308, 309-310 (Ala.Crim.App.2001) (“In the absence of a motion for a new trial or a request to modify a sentence, filed within 30 days after sentencing, the trial court loses all jurisdiction to modify a defendant’s sentence at the end of the 30th day.”). Athough it appears that on remand Smith indicated that if the circuit court would suspend the enhanced portion of his sentence, he would dismiss his Rule 32 petition, Smith’s request was clearly not filed within 30 days of his sentencing, which occurred in 1999. Therefore, the circuit court did not have jurisdiction to modify Smith’s sentence. See, e.g., McGee v. State, 620 So.2d 145 (Ala.Crim.App.1993).

Finally, the amendment to § 15-18-8(a)(l) does not apply retroactively. Section 15-18-8(a)(l) was amended by Act No. 2000-759, § 1, Aa. Acts 2000. Section 3 of that Act provides: “The provisions of Sections 1 and 2 shall be applied prospectively only and shall apply only to any case in which the sentence is not final at the trial court on the effective date of this act.” The effective date of the amendment was May 25, 2000, approximately nine months after Smith pleaded guilty and was sentenced on August 13, 1999. Athough in Soles, 820 So.2d at 165, this Court recognized that the recent amendment to § 15-18-8(a)(l) supersedes the prohibitions in §§ 13A-12-250 and 13A-12-270 against probation on the enhanced portion of a sentence, and “allows a trial court to suspend a sentence imposed pursuant to the school/housing enhancements, notwithstanding that those provisions disallow probation,” Smith’s sentence was final before the amendment to § 15-18-8; therefore, the amendment did not apply to him. The circuit court did not have jurisdiction to contravene the prohibitions against probation in §§ 13A-12-250 and 13A-12-270 and to suspend the enhanced portion of Smith’s sentence. See, e.g., Ellis, supra.

Because the circuit court did not comply with our previous instructions, we must remand this case a second time with instructions that the circuit court address the merits of Smith’s claims in his Rule 32 petition that his guilty plea was involuntary and that his trial counsel was ineffective and to make specific findings of fact regarding each claim. On remand, the circuit court may either conduct an eviden-tiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Aa.R.Crim.P. We further instruct the circuit court to set aside its order modifying Smith’s sentence because that order was issued without jurisdiction. Due return should be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings; a transcript of the evidentia-ry hearing, if one is conducted; any other evidence taken by the court; and a transcript of the guilty-plea and sentencing proceedings.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and WISE, JJ„ concur. BASCHAB, J., concurs in the result.

      . On the printed Rule 32 form, Smith indicated that he was attacking both his 1999 conviction for unlawful distribution of a controlled substance (CC-99-2835) and his 1997 conviction for unlawful possession of- a controlled substance (CC-97-4581). However, the claims in Smith’s petition were directed solely at his 1999 conviction; the circuit court's order denying the petition listed only case no. CC-99-2835; and Smith’s notice of appeal listed only case no. CC-99-2835. Therefore, we construe Smith’s Rule 32 petition as challenging only his 1999 conviction.

        . At the time Smith was convicted and sentenced, §§ 13A-12-250 and 13A-12-270 expressly provided that a defendant could not receive probation on the enhanced portion of his sentence. However, in Soles v. State, 820 So.2d 163 (Ala.Crim.App.2001), this Court recognized that the recent amendment to § 15-18-8(a)(l), Ala.Code 1975, effective May 25, 2000, supersedes the prohibitions in §§ 13A-12-250 and 13A-12-270 against probation, and "allows a trial court to suspend a sentence imposed pursuant to the school/housing enhancements, notwithstanding that those provisions disallow probation.” 820 So.2d at 165.

      . Although the circuit court’s order indicated that Smith appeared “in open court,” the transcript of the proceedings that were apparently conducted on remand are not included in the record submitted by the circuit court on return to remand.

       Note from the reporter of decisions: On January 7, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Rodney COGMAN v. STATE of Alabama.
    CR-00-2588.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Aug. 16, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1012194.

      Rodney Cogman, pro se.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   WISE, Judge.

Rodney Cogman appeals from the circuit court’s denial of his Rule 32, Ala. R.Crim.P., petition for postconviction relief, in which he attacked his 1996 conviction for first-degree robbery. On September 27, 1996, we affirmed Cogmaris conviction on direct appeal, by an unpublished memorandum. Cogman v. State (No. CR-95-1530), 689 So.2d 1019 (Ala.Crim.App.1996) (table). Following the denial of Cogmaris application for rehearing, this Court issued a certificate of judgment on December 10, 1996.

On December 11, 1998, Cogman filed his first Rule 32, Ala.R.Crim.P., petition, which the circuit court summarily denied on September 24,1999. Cogman filed this, his second Rule 32 petition, on June 18, 2001. The petition contained four claims of ineffective assistance of trial counsel, four claims of ineffective assistance of appellate counsel, and a claim that he was due an out-of-time appeal, because, he says, through no fault of his own, he did not receive notice of the circuit court’s dismissal of his first Rule 32 petition until 10 months after the court had entered its ruling. The State filed a response in which it conceded that Cogman had not received timely notice of the court’s September 24, 1999, denial of his first Rule 32 petition. Thus, the State indicated it would not oppose an out-of-time appeal from the first Rule 32 petition. However, the State responded that all new claims raised in the second petition were procedurally barred as successive, pursuant to Rule 32.2(b), Ala.R.Crim.P.

On August 2, 2001, the circuit court entered the following order:

“Court finds that petitioner was not timely notified of the Court’s denial of the Rule 32 petition. The Court hereby incorporates all pleadings and responses. The Court finds that through no fault of petitioner, he failed to file a timely appeal. The Court now reconsiders the Petition for Relief, and finds that the petition is without merit. Petition is therefore denied and dismissed. Clerk shall noti[fy] petitioner.”

(C. 46.) This appeal followed.

Cogman contends that in light of the claims presented, the circuit court erred in denying his petition without first conducting an evidentiary hearing. We disagree.

Although it initially appears that Cog-man is entitled to an out-of-time appeal from his first Rule 32 petition based on the authority of Ex parte Fountain, 842 So.2d 726 (Ala.2001), and Brooks v. State, [Ms. CR-00-1134, April 26, 2002] - So.2d - (Ala.Crim.App.2002) (opinion on rehearing), a closer review of the record reveals otherwise.

Cogmaris first Rule 32 petition raised claims of ineffective assistance of counsel. An ineffective-assistance-of-counsel claim is not jurisdictional; therefore, it is subject to the two-year limitations period in Rule 32.2(c). See Knight v. State, 727 So.2d 900, 901 (Ala.Crim.App.1999). By Cogmaris own admission, he did not file his first Rule 32 petition until December 11, 1998, one day after the two-year limitations period had expired. Because only nonjurisdictional claims for relief were contained in Cogman’s first Rule 32 petition, which was filed more than two years after the certificate of judgment in his case was issued, those issues were precluded by Rule 32.2(c), Ala.R.Crim.P. Thus, the circuit court should have dismissed the petition as proeedurally barred by Rule 32.2(c), Ala.R.Crim.P. Given these circumstances, there is no need to grant Cogman an out-of-time appeal from the denial of his first Rule 32 petition and the claims raised therein.

We note that the State’s failure to assert this defense does not preclude this Court from noticing this defect.

“Rule 32.2(c), Ala.R.Crim.P., establishes a limitations period for filing a petition for postconviction relief on the grounds specified in Rule 32.1(a) and (f), Ala. R.Crim.P., and its language is mandatory. See Hugh Maddox, Alabama Rules of Criminal Procedure § 32.2 (3d ed.1999). ‘The statute of limitations is a jurisdictional matter.’ Hines v. State, 516 So.2d 937, 938 (Ala.Crim.App.1987). See also Ex parte Campbell, 784 So.2d 323 (Ala.2000); Hunt v. State, 642 So.2d 999 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994). Therefore, the failure to file a Rule 32 petition within the two-year limitations period is a jurisdictional defect that can be noticed at any time and is not waived by the failure of the State to assert it. Any previous holdings to the contrary are hereby expressly overruled. See, e.g., Howard v. State, 616 So.2d 398 (Ala.Crim.App.1993).”

Williams v. State, 783 So.2d 135, 137 (Ala.Crim.App.2000).

With the exception of the out-of-time appeal claim, Cogman’s second Rule 32 petition contains only nonjurisdictional claims for relief. Given that the second petition was also filed more than two years after the certificate of judgment was issued, it is likewise precluded by Rule 32.2(c), Ala.R.Crim.P. Although the circuit court dismissed Cogman’s petition for a reason other than the one discussed above, the court’s ruling is, nevertheless, due to be affirmed. See Long v. State, 675 So.2d 532, 533 (Ala.Crim.App.1996) (“ ‘where the judgment of the circuit court denying a petition for post-conviction relief is correct for any reason, it will be affirmed by this Court, even if the circuit court stated an incorrect reason for its denial’ ”) (quoting Swicegood v. State, 646 So.2d 159, 160 (Ala.Crim.App.1994)). Accord Whitt v. State, 827 So.2d 869, 876 (Ala.Crim.App.2001); Waddle v. State, 784 So.2d 367, 369 n. 2 (Ala.Crim.App.2000). Accordingly, the circuit court was authorized to deny Cogman’s petition without an evidentiary hearing. See Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992); Rule 32.7(d), Ala.R.Crim.P. The judgment of the circuit court is therefore affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . Cogman claims that his first Rule 32 petition was timely because, he says, this Court did not issue a certificate of judgment until December 13, 1996. However, we have reviewed the records of Cogman’s direct appeal, see Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992) (this Court may take judicial notice of its own records), and determined that the certificate of judgment was issued on December 10, 1996.


text:
    V.R. v. STATE of Alabama.
    CR-01-0334.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Opinion Overruling Rehearing Sept. 27, 2002.
    Certiorari Denied Jan. 24, 2003 Alabama Supreme Court 1020047.

      James M. Byrd, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   SHAW, Judge.

V.R. appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his April 2000 convictions for two counts of rape in the first degree and his resulting sentences of 19 years’ imprisonment, which were to be served concurrently. This Court affirmed V.R.’s convictions and sentences on direct appeal in an unpublished memorandum issued on December 15, 2000. See Rogers v. State, (No. CR-99-2106) 820 So.2d 176 (Ala.CrimApp.2000) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on April 27, 2001.

V.R. filed the present petition on June 11, 2001, claiming that he had been denied effective assistance of trial counsel because, he said, his trial counsel should have had a reputable physician test V.R. for chlamydia prior to trial and his trial counsel should have called a doctor to testify at trial that V.R. did not have chlamydia. In his petition, V.R. alleged the following: (1) that V.R. was accused of having sexual intercourse with R.F., his ,10-year-old stepdaughter (“the victim”); (2) that during discovery the State advised V.R.’s trial counsel that the victim suffered from the sexually transmitted disease chlamydia; (3) that V.R. advised his trial counsel that he had never had sexual intercourse with the victim and that he did not have the sexually transmitted disease chlamydia; (4) that at trial the State introduced into evidence the victim’s medical records, which showed that she had tested positive for chlamydia; (5) that at trial Dr. Angela Powell testified that the only means by which the victim could have contracted chlamydia was through sexual intercourse and that chlamydia is often asymptomatic; (6) that at trial the victim testified that she had never had sexual intercourse with anyone other than V.R.; (7) that at trial V.R. testified that he had never had sexual intercourse with the victim and that he did not have the sexually transmitted disease chlamydia, but on cross-examination, V.R. was unable to explain how he was sure that he did not have chlamydia since the disease is asymptomatic; (8) that while his direct appeal was pending, V.R.’s appellate counsel directed him to be tested for chlamydia by a reputable physician; and (9) that in August 2000, V.R. tested negative for chlamydia. V.R. attached a copy of the lab report to his petition.

In its response, the State “denie[d] the Petitioner’s allegations and state[d] that Petitioner has only made bare allegations insufficient to support a claim for postcon-viction relief. Rule 32.6(b), Alabama Rules of Criminal Procedure.” (C. 12.) Additionally, the State alleged that V.R. was “precluded from relief by operation of law as these allegations could have been, but were not, raised on appeal. Rule 32.2(a)(5), Alabama Rules Criminal Procedure.” (C. 12.) This matter was scheduled for a September 17, 2001, hearing, and the case action summary shows that on September 18, 2001, the attorneys were given 15 days to submit caselaw as to whether V.R.’s claim was precluded. Relying on Avery v. State, 832 So.2d 664, 666 (Ala.Crim.App.2001), V.R. contended that “[t]he 30-day time limit for filing [a] motion- for new trial had long since passed before appellate counsel was able to discover and document ineffective assistance by trial counsel.” (C. 14.) The State argued the following:

“In the instant case, [V.R.’s appellate counsel] filed an appearance as counsel for [V.R.] on June 12, 2000, the day of sentencing. On that same day, [V.R.] provided an oral notice of appeal. On June 26, 2000, the court reporter filed the exhibits from trial with the circuit clerk’s office. On July 10, 2000, [V.R.] filed a motion for new trial. On August 15, 2000, [the trial court] denied the new trial motion.
“[V.R.’s] Rule 32 petition alleges ineffective assistance of counsel as a result of the trial counsel’s failure to have [V.R.] examined to determine whether he was infected with chlamydia. It is the State’s position that the ineffective-assistance-of-counsel claim could have reasonably been asserted in the motion for new trial. [V.R.] argues that he could not have ascertained this argument since the record on appeal was not certified until September 8, 2000. However, the argument could have reasonably been ascertained by a simple inspection of the trial exhibits that were filed in the clerk’s office on June 26, 2000. As such, the Rule 32 petition is due to be denied.”

(C. 23.) On October 24, 2001, the circuit court denied V.R.’s petition, on the ground “that the issue of ineffective assistance of counsel could reasonably have been presented in the timely filed motion for new trial.” (C. 29.) In its order, the circuit court also stated:

“In the instant case, [V.R.’s appellate] counsel .filed the written notice of appeal on [July 2,] 2000. On the written notice, [V.R.] indicated that one of the anticipated issues on appeal was whether trial counsel was so ineffective that [V.R.] was denied his constitutional right to counsel. On July 10, 2000, [V.R.] filed a motion for new trial in which the ineffective-counsel issue was not raised.”

(C. 28-29.)

Although the circuit court originally scheduled a hearing on V.R.’s petition, it appears from the record that a hearing was never held. No transcript of a hearing is found in the record, and in its order denying the petition, the circuit court does not state that a hearing was held; rather, the circuit court merely states that it “reviewed the record and the pleadings [and] is of the opinion that the Rule 32 petition submitted by V.R.is due to be dismissed.” (C. 28.) In addition, although V.R. initially ordered a transcript, a note in the record from the circuit clerk states, “12-05-01 Call from [V-R-’s counsel]. He said there was no transcript.” (C. 87.)

In Avery, 832 So.2d at 666, this Court stated:

“Under [Ex parte] Ingram[, 675 So.2d 863 (Ala.1996)], the proper method for presenting an ineffective assistance of trial counsel claim that could not reasonably be presented in a motion for a new trial is by filing a Rule 32 petition.
“‘If the appellant was convicted before the Alabama Supreme Court’s decision in Ingram, newly appointed appellate counsel could have presented claims of ineffective assistance of trial counsel in a motion for new trial filed pursuant to Ex parte Jackson, 598 So.2d 895 (Ala.1992). Those same claims of ineffective assistance of trial counsel could have then been presented on direct appeal. Accordingly, if the appellant was convicted before the decision in Ingram, and the appellant was, in fact, represented by separate appellate counsel, then the allegations of ineffective assistance of trial counsel presented in the Rule 32 petition are precluded from review, because the claims could have been, but were not, raised at trial and on appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P. If, however, the appellant was convicted after Ingram, the appellant is not necessarily precluded from raising allegations of ineffective assistance of trial counsel in a Rule 32 petition. If the appellant can establish that appellate counsel could not have reasonably asserted all the allegations of ineffective assistance of trial counsel in a timely filed motion for new trial — thereby preserving the claims for review on direct appeal — then the appellant is not precluded from raising ineffective assistance of trial counsel claims in a Rule 32 petition.’
“Andersch v. State, 716 So.2d 242, 245 (Ala.Crim.App.1997).”

(Emphasis added.) In the present case, V.R. was convicted in April 2000 and was sentenced on June 12, 2000. V.R.’s newly appointed appellate counsel filed a motion for a new trial on July 10, 2000. Neither the trial transcript nor the results of V.R.’s medical examination were available until after the expiration of the 30-day period in which to file a motion for a new trial. In its appellate brief, the State argues:

“Any delay in receiving the record did not impact [V.R.’s] ability to pursue his ineffectiveness claim [in a motion for a new trial and on direct appeal]. The facts related the counsel’s ineffectiveness — the absence of a medical examination and failure to call an expert witness — were uniquely known to [V.R.] and existed independent of the trial transcript.”

(State’s brief at p. 7-8.) However, without the trial transcript, V.R.’s appellate counsel could not have known specific details from the trial, such as: (1) that Dr. Angela Powell testified that the victim had chlamydia, a sexually transmitted disease that is often asymptomatic and that the only means by which the victim could have contracted chlamydia was through sexual intercourse; (2) that the victim testified that she had never had sexual intercourse with anyone other than V.R.; and (3) that V.R.’s statement that he did not have chlamydia was rendered self-serving and meaningless when he was asked on cross-examination how he knew he did not have a disease that was asymptomatic. While it is true that V.R.’s newly appointed appellate counsel could have made a general allegation of ineffective assistance of trial counsel in V.R.’s motion for a new trial, it would appear that V.R.’s appellate counsel needed the trial transcript and the results of V.R.’s medical examination to be able to provide specific details to support an ineffective-assistance-of-trial-counsel claim.

Therefore, V.R.’s claim of ineffective assistance of trial counsel is not precluded by Rule 32.2(a)(3) and (5). In addition, V.R. pleaded sufficient facts that, if true, would entitle him to relief. We recognize that the fact that V.R. did not have chlamydia does not prove that he did not commit this crime. However, such evidence would have called into question the credibility of the victim—the victim testified at trial that she had never had sexual intercourse with anyone but V.R. and expert testimony showed that the only means by which the victim could have contracted chlamydia was through sexual intercourse—and would have bolstered the credibility of V.R.—whose credibility was attacked on cross-examination when he was unable to explain how he was sure that he did not have chlamydia since it was an asymptomatic disease. Therefore, a determination whether the failure to present this evidence constituted deficient performance and whether it prejudiced V.R.’s defense is required under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Accordingly, we must remand this cause to the circuit court for that court to address the merits of V.R.’s ineffective-assistance-of-trial-counsel claim and to enter specific written findings of fact. As noted above, the record is not entirely clear as to whether the circuit court held a hearing on V.R.’s petition. If the circuit court did conduct a hearing on V.R.’s petition and the circuit court deems that hearing adequate to make a ruling, then the circuit court should issue a new order addressing the merits of V.R.’s claim. If the circuit court did not conduct a hearing on V.R.’s petition, then on remand, the circuit court may either conduct an evidentiary hearing or, alternatively, take evidence in the form of affidavits, written interrogatories, or depositions. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, along with a transcript of the evidentiary hearing, if any, or other evidence received by the court.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

On Application for Rehearing

SHAW, Judge.

On June 28, 2002, this Court remanded this case to the circuit court for it to address the merits of V.R.’s ineffective-assistance-of-trial-eounsel claim raised in his Rule 32, Ala.R.Crim.P., petition for postconviction relief and to enter specific written findings of fact regarding that claim. See V.R. v. State, 852 So.2d 194 (Ala.Crim.App.2002).

On July 12, 2002, the State filed an application for rehearing, requesting that we set aside our judgment. The State also filed a motion to stay the proceedings in the circuit court pending this Court’s ruling on the application for rehearing. We accepted the State’s application for rehearing pursuant to Bishop v. State, 608 So.2d 345 (Ala.1992), and we stayed the proceedings in the circuit court so that we could address the State’s argument on rehearing.

The State contends on rehearing that this Court erred in holding that V.R.’s ineffective-assistance-of-trial-counsel claim was not procedurally barred by Rule 32.2(a)(3) and (5), Ala.R.Crim.P., because, it argues, as it did in its original brief, the claim could “reasonably” have been raised in V.R.’s motion for a new trial and then pursued on direct appeal. In our original opinion, we noted that whether V.R.’s claim was barred was debated in the circuit court before that court ruled on the petition. The court directed the parties to submit caselaw on the issue whether the claim was barred, and the court ultimately ruled in favor of the State, finding that the claim was barred because it “could reasonably have been presented in the timely filed motion for new trial.” (C. 29.) We disagreed with the circuit court, and we held that V.R.’s claim could not “reasonably” have been raised in his motion for a new trial. Specifically, we noted in our original opinion:

‘While it is true that V.R.’s newly appointed appellate counsel could have made a general allegation of ineffective assistance of trial counsel in V.R.’s motion for a new trial, it would appear that V.R.’s appellate counsel needed the trial transcript and the results of V.R.’s medical examination to be able to provide specific details to support an ineffective-assistance-of-trial-counsel claim.”

852 So.2d at 198.

On rehearing, the State specifically takes issue with our holding that although a general allegation of ineffective assistance of trial counsel could have been presented in his motion for a new trial, because V.R. could not have presented the specific claim he now presents in his Rule 32 petition without the benefit of a medical examination and the trial transcript — neither of which he had before the 30-day time period for filing a motion for a new trial had lapsed — his claim could not “reasonably” have been raised and, therefore, was not barred. The State argues that our holding in this regard “flies in the face of’ and “undermines the letter and the spirit of’ the Alabama Supreme Court’s opinion in Ex parte Ingram, 675 So.2d 863 (Ala.1996), in which that Court held:

“When a defendant makes a claim of ineffective assistance of trial counsel, and that claim cannot reasonably be presented in a new trial motion filed within the 30 days allowed by Rule 24.1(b), Ala.R.Crim.P., the proper method for presenting that claim for appellate review is to file a Rule 32, Ala. R.Crim.P., petition for post-conviction relief.”

675 So.2d at 866. (Emphasis added.)

The State maintains that a defendant like V.R. — who had different counsel at trial and on appeal and whose appellate counsel was appointed within the 30-day period for filing a motion for a new trial— can “reasonably” raise an ineffective-assistance-of-trial-counsel claim in a motion for a new trial and that the defendant who does not do so is barred from raising that claim in a Rule 32 petition. The State summarizes its argument in its brief on rehearing as follows:

“Acting under the letter and spirit of the Alabama Supreme Court’s decision in Ex parte Ingram, 675 So.2d 863, 865-66 (Ala.1996), newly appointed counsel had the capability in the present case to ‘reasonably present’ [V.R.’s] ineffective-assistanee-of-trial-counsel claim in a timely-filed- motion for new trial. After asserting the ineffectiveness claim, counsel could have extended the time for consideration of the motion under Rule [24.4] of the Alabama Rules of Criminal Procedure to investigate and detail the instances of deficient conduct to support [V.R.’s] claim. See generally Parris v. State, [[Ms. CR-00-0406, August 31, 2001] - So.2d - (Ala.Crim.App.2001)]; Broadnax v. State, [825 So.2d 134 (Ala.Crim.App.2000)]. By following this procedure contemplated by Ingram and its progeny, [V.R.] could have resolved his ineffectiveness claim on direct appeal. Because a petitioner is barred from relief on a claim that ‘could have been but was not raised at trial,’ Ala. R.Crim.P. 32.2(a)(3), the trial court correctly ruled that [V.R.] was precluded from pursuing his ineffective-assistance-of-trial-counsel claim in a Rule 32 proceeding.”

(State’s brief on rehearing at p. 8.) The State argues that defendants such as V.R. must make a general allegation of ineffective assistance of counsel in a motion for a new trial, have the proceedings on the motion continued under Rule 24.4, Ala. R.Crim.P., until the trial transcript is prepared and/or other evidence is obtained in support of the ineffective-assistance allegation, and then amend the motion to include specific claims of ineffective assistance of counsel. According to the State, this “procedure” will facilitate review of ineffective-assistanee-of-trial-counsel claims on direct appeal and cut down on the number of postconviction petitions on that basis, a policy the Alabama Supreme Court has endorsed. In this case, because V.R. did not avail himself of this “procedure,” the State argues, he is now barred as a matter of law from raising any ineffective-assistance-of-trial-eounsel claim in his Rule 32 petition.

Although the State’s suggested “procedure” takes a different form — i.e., using the provisions in Rule 24.4 — it is, practically speaking, cut from the same cloth as the procedure created by the Alabama Supreme Court in Ex parte Jackson, 598 So.2d 895 (Ala.1992), and subsequently overruled by that Court in Ex parte Ingram, supra, as an unworkable “trap for the unwary, potentially frustrating the presentation of some defendants’ ineffective-assistance-of-counsel claims.” 675 So.2d at 865 (footnote omitted). In Ex parte Jackson, the Supreme Court adopted a procedure — to promote the raising of ineffective-assistance-of-trial-counsel claims in a motion for a new trial, rather than in a postconviction petition — whereby newly appointed appellate counsel could file a motion to extend the time for filing a motion for a new trial in order to obtain a copy of the transcript and raise ineffective-assistance-of-trial-counsel claims. After several years of that procedure, however, the Supreme Court recognized “innumerable problems” associated with it, concluded that those problems “greatly outweigh[ed] the benefits obtained through the small reduction ... in the number of collateral appeals,” and overruled Ex parte Jackson and abandoned that procedure in favor of something more workable, holding that a defendant could raise a claim of ineffective assistance of trial counsel for the first time in a Rule 32 petition so long as that claim could not “reasonably” have been presented in a motion for a new trial. Ex parte Ingram, 675 So.2d at 865-66.

As explained below, we are not persuaded by the State’s argument that using Rule 24.4 to, in effect, extend the time for raising a specific claim of ineffective assistance of trial counsel was contemplated by Ex parte Ingram or any of its progeny, and we believe that using Rule 24.4 in such a manner could result in the same confusion that the Ex parte Jackson procedure generated.

Rule 24.4 provides:

“No motion for new trial or motion in arrest of judgment shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided in this section. A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day; provided, however, that with the express consent of the prosecutor and the defendant or the defendant’s attorney, which consent shall appear in the record, the motion may be carried past the sixtieth day to a date certain; if not ruled upon by the trial court as of the date to which the motion is continued, the motion is deemed denied as of that date, unless it has been continued again as provided in this section. The motion may be continued from time to time as provided in this section.”

(Emphasis added.) A defendant faces two obstacles in extending the time for a ruling on a motion for a new trial: the prosecutor and the trial court. Not only must a defendant obtain the express consent of the prosecutor in order to benefit from Rule 24.4, the language of the rule is permissive — a trial court is not required to continue the proceedings, even when both parties consent. Thus, even if a defendant files a motion for a new trial that includes a general allegation of ineffective assistance of counsel, there is no guarantee that he or she will be able to obtain an extension of time until the transcript is prepared.

If a defendant follows the procedure suggested by the State and files a motion for a new trial with nothing more than a general allegation of ineffective assistance of trial counsel and the prosecutor refuses to consent to extend the time, or the trial court denies the defendant’s request to extend the time, then the defendant has raised a general claim of ineffective assistance of counsel that a trial court would clearly be justified in denying without a hearing because the burden is on the defendant alleging ineffective assistance of counsel to “identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moreover, such a general allegation of ineffective assistance of trial counsel in a motion for a new trial is generally not sufficient to preserve for review a more specific claim of ineffectiveness. See, e.g., M.B. v. State, 641 So.2d 330 (Ala.Crim.App.1994). Thus, the de-fendant would, in most cases, not be able to pursue more specific claims on appeal.

Even more problematic, however, is that because the defendant challenged his trial counsel’s effectiveness at trial, he or she would be barred by Rule 32.2(a)(2) from raising that issue in a Rule 32 petition. The only way to avoid this outcome would be for a defendant who is unsuccessful in obtaining an extension of time under Rule 24.4 to file a motion requesting, in effect, to withdraw the ineffective-assistance-of-counsel claim from the motion for a new trial. This would require additional action on the part of a defendant and his or her appellate counsel in order to preserve the right to seek postconviction relief under Rule 32. Of course, the failure through neglect or inadvertence to take such action would raise the specter of an ineffective-assistance-of-appellate-eounsel claim being raised in a subsequent Rule 32 petition. On the other hand, if a defendant did not follow the suggested procedure and did not at least attempt to challenge trial counsel’s effectiveness in a motion for a new trial, he or she would be barred by Rule 32.2(a)(3) and (5) from raising that issue in a Rule 32 petition because, as the State urges, the failure to attempt the suggested procedure would be conclusive on the issue whether the ineffective-assistance-of-counsel claim could have reasonably been raised in a new-trial motion.

In other words, the only practical way a defendant could get his ineffeetive-assis-tance-of-counsel claim addressed in the new-trial motion would be if the prosecutor expressly consented to extending the time under Rule 24.4 and the trial court granted the defendant’s request to extend the time — two circumstances that are beyond a defendant’s control. In effect, the procedure suggested by the State would place a defendant in the untenable position of having to rely on the goodwill of the prosecutor to get his or her claim addressed. In reality, the procedure could easily lead to confusion and ultimately result in potentially valid ineffective-assistance-of-trial-counsel claims being barred in some circumstances. We do not believe that was the result intended by the Alabama Supreme Court when it decided Ex parte Ingram, and we are not willing to adopt a multilayered procedure that could lead to the relinquishment of the rights of defendants who have legitimate claims of ineffective assistance of counsel, as in this case, merely to further the otherwise laudable goal of reducing the number of post-conviction petitions filed in this State.

Therefore, we hold that a defendant is not precluded by Rule 32.2(a)(3) and (5) from raising an ineffective-assistance-of-trial-counsel claim for the first time in a Rule 32 petition if -the trial transcript was not prepared in time for appellate counsel to have reviewed the transcript to ascertain whether such a claim was viable and to present the claim in a timely filed motion for a new trial. It is neither reasonable nor practical to expect newly appointed appellate counsel to raise an ineffective-assistance-of-trial-eounsel claim without the benefit of a trial transcript to document and support a defendant’s allegations as to what occurred during trial. Thus, V.R. is not precluded from raising his claim of ineffective assistance of trial counsel in his Rule 32 petition.

Based on the foregoing, the State’s application for rehearing is overruled and the stay granted by this Court is lifted.

APPLICATION OVERRULED; STAY LIFTED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ„ concur.

      . Although not applicable in this case, we note that the Alabama Supreme Court recently amended Rule 32, Ala.R.Crim.P., to add language similar to the language in Ex parte Ingram. The Supreme Court added Rule 32.2(d), which provides, in part: “Any claim that counsel was ineffective must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable.” (Emphasis added.)

      . We recognize that in Ex parte Jefferson, 749 So.2d 406 (Ala.1999), the Alabama Supreme Court created an exception to the preservation requirement when a defendant asserts a claim alleging ineffective assistance of counsel. The Court held that a general claim of ineffective assistance of counsel may be sufficient to preserve for appellate review a more specific claim of ineffective assistance of counsel “[w]here the record on appeal reflects that trial counsel’s performance was so deficient as to fall below an objective standard of reasonableness.” 749 So.2d at 408. However, in Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000), this Court recognized that the exception carved out by the Alabama Supreme Court in Jefferson would be applicable in "only a minute number of cases” — those cases where counsel's error is “so blatant and clear on the face of the record that there [is] no room for interpretation.” 781 So.2d at 1011. We held in Montgomery that we would "not stretch to find ineffective assistance of counsel in cases where the claim has not been addressed by the trial court,” and that if the record on appeal does not reflect on its face that counsel’s performance was so deficient as to fall below an objective standard of reasonableness, the preservation exception carved out in Jefferson would not apply. Id.

      . We also reject the State’s argument that because V.R.’s appellate counsel stated in his notice of appeal that ineffective assistance of trial counsel was a possible issue, he was "aware of and could have 'reasonably presented' ” his claim in his motion for a new trial. (State's brief on rehearing at p. 15.) As we pointed out in our original opinion, although V.R. could have raised a general claim of ineffective assistance of counsel, he could not have provided any support for the claim without a medical examination and the trial transcript.


author: PER CURIAM.

text:
    John D. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. SC01-2007.
    Supreme Court of Florida.
    July 11, 2003.

      Michael P. Reiter, Capital Collateral Regional Counsel-North, Harry P. Brody, Assistant CCRC-N and Jeffrey M. Hazen, Assistant CCRC-N, Office of the Capital Collateral Regional Counsel-North, Tallahassee, FL; and Frank J. Tassone, Jr., Registry Counsel, Jacksonville, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   PER CURIAM.

John D. Freeman (Freeman), a death row inmate, appeals an order of the trial court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons more fully set forth below, we affirm the trial court’s denial of relief.

The facts, as set forth in Freeman v. State, 761 So.2d 1055 (Fla.2000), are as follows:

John D. Freeman (Freeman) was convicted of first-degree felony murder for the 1986 killing of Leonard Collier (Collier). Freeman was sentenced to death, and both the conviction and sentence were affirmed on appeal. See Freeman v. State, 563 So.2d 73 (Fla.1990). Collier caught Freeman in the act of burglarizing his home. Freeman claimed that Collier pointed a gun at him and threatened to shoot him to prevent his escape. The two struggled over the gun and fell outside into the front yard. When Freeman obtained possession of the gun, he used the gun to repeatedly strike Collier in the head ten to twelve times. Collier died from the head wounds.

Id. at 1058. The Collier murder was the second murder that Freeman committed within twenty-two days. The first murder was committed in a similar manner — the victim, Alvin Epps (Epps), came home to find Freeman burglarizing his home and Freeman stabbed him to death. In the Epps case, Freeman was convicted of first-degree murder, the jury recommended a life sentence, the judge overrode the jury recommendation, and this Court reversed the override. Freeman v. State, 547 So.2d 125 (Fla.1989).

After Freeman’s direct appeal was concluded in the Collier murder, he filed a motion for postconviction relief, which the trial court summarily denied. See Freeman v. State, 761 So.2d 1055 (Fla.2000). Freeman appealed the summary denial of his postconviction motion to this Court, and also filed a petition for a writ of habeas corpus. The cases were consolidated for our consideration. After considering Freeman’s appeal, we remanded Freeman’s 3.850 motion for an evidentiary hearing on his claim of ineffective assistance of counsel. See id. In all other respects, we affirmed the trial court’s denial of Freeman’s postconviction motion. We also denied Freeman’s petition for a writ of habeas corpus. See id.

The trial court conducted an evidentiary hearing on the remanded claim and denied relief. Freeman now appeals that denial, raising two claims of ineffective assistance of counsel: whether trial counsel was ineffective in the guilt phase trial for failing to object to the State’s alleged improper reliance on racial factors in seeking the death penalty, and whether trial counsel was ineffective in the penalty phase trial for failure to present evidence in mitigation. For the reasons explained below, we affirm the trial court’s denial of relief.

Ineffective Assistance at Guilt Phase Trial

Freeman alleges defense counsel was ineffective for fading to argue that the State’s decision to pursue the death penalty was based upon improper racial considerations. He claims the prosecutor rejected Freeman’s offer to plead guilty in the Epps and Collier cases in exchange for two consecutive life sentences because the State needed to seek the death penalty in more cases where Caucasian defendants killed African-American victims.

Although the decision to seek the death penalty is within the prosecutor’s discretion, that discretion may be curbed by the judiciary where motives such as bad faith, race, religion, or a desire to prevent the defendant from exercising his constitutional rights contributes to the prosecutor’s decision. See State v. Bloom, 497 So.2d 2, 3 (Fla.1986). Freeman claims that race was the motive behind the prosecutor’s decision to seek the death penalty in this case.

At the evidentiary hearing, Freeman presented the testimony of then Assistant State Attorney John Bradford Stetson, Jr., State Attorney Ed Austin, Assistant Public Defender Ann Finnell (who was Freeman’s co-counsel at the Epps trial), and Assistant Public Defender Patrick McGuinness (Freeman’s trial counsel for both the Collier and Epps murders). The testimony showed that pri- or to trial, Freeman’s trial counsel approached the prosecutor with an offer to plead guilty to both the Epps and Collier murders in exchange for two consecutive life sentences with twenty-five-year mandatory minimum terms. The testimony showed that both parties were aware of the then pending federal case, McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). McCleskey involved an allegation that prosecutors were seeking the death penalty disproportionally against African-American defendants. Freeman alleges that when his trial counsel presented the plea offer to the prosecutor, the prosecutor refused the offer for fear that defense attorneys in other cases would argue that he was favoring Caucasian defendants. Freeman argues that the State relied on race in making its decision, that the reliance created a reverse-McCleskey claim, and that trial counsel was ineffective for failing to raise the claim because he admittedly did not know how to do so.

The trial court found that, although the prosecutor’s response to defense counsel’s plea offer was “a somewhat ill-considered retort,” the evidence demonstrated that the State did not pursue the death penalty based on Freeman’s race. The evidence the trial court relied upon included the testimony of Ed Austin, the State Attorney at the time of trial. Austin stated that his office never prosecuted a defendant based on his or her race. Austin also stated that although he had no recollection of Freeman’s case, at the time of Freeman’s trial it was standard policy for him to discuss the case with the prosecutor and determine the elements of the crime, the aggravation and mitigation, and whether the State should go forward and seek the death penalty. Austin commented on the ongoing accusations that his office too often sought the death penalty in cases where the victims were Caucasian and the defendants were African-American. He stated there were a lot of newspaper articles criticizing the State Attorney’s Office, but those accusations had nothing to do with the decision to file and prosecute a homicide as a first-degree murder case. The decision to seek the death penalty, Austin stated, was made on the basis of the facts of the case. When Austin was asked about the public’s perception of the State Attorney’s Office, he stated that perceptions have nothing to do with how a case is prosecuted, or the decision to seek the death penalty, or whether there is aggravation that outweighs mitigation. Austin stated that the only time race is considered in the prosecution is if race is an element of the crime, and that during his tenure as a State Attorney, his office never filed a case for the wrong reasons. The cases were filed based on the law. Prosecutor Stetson also testified at the evidentiary hearing. He stated that under the facts of this case, irrespective of race, the aggravating circumstances clearly supported the decision to seek the death penalty.

For ineffective assistance of counsel claims raised in postconviction proceedings, the appellate court affords deference to findings of fact based on competent, substantial evidence and independently reviews deficiency and prejudice as mixed questions of law and fact. See Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.2000) (setting forth standard of appellate review following an evidentiary hearing on motion based on ineffective assistance of counsel claims); see also State v. Riechmann, 777 So.2d 342 (Fla.2000); Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000) (“[W]e review the prongs of ... ineffective assistance of counsel as questions of mixed law and fact.”). Therefore, we give deference to the findings of fact regarding the conversations between the prosecutor and defense counsel, the conversations between the prosecutor and the State Attorney, and the testimony as to how and why the State chose to seek the death penalty in this case. The trial court’s finding that the State did not prosecute Freeman because of his race is based on competent, substantial evidence in the record.

Next, we review whether these findings constitute a deficiency in performance that prejudiced Freeman. This Court reviews de novo the issue of whether defense counsel was deficient at trial and, if so, whether the defendant was prejudiced. See Stephens, 748 So.2d at 1033-34. Freeman argues that defense counsel was ineffective because he admittedly did not know what legal mechanism to employ to address the issue of the prosecutor’s perceived rebanee on race as a factor in the decision to seek the death penalty.

As stated in Stewart v. State, 801 So.2d 59, 64-65 (Fla.2001), for a defendant to succeed in his ineffectiveness claims, he must satisfy two elements: first, he must show that counsel’s performance was deficient; and second, he must show that the deficient performance prejudiced the defense. In order to prove these elements, a defendant must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment and that counsel’s errors were so serious as to deprive the defendant of a fair trial where the result is reliable. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[W]hen a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.” Stewart, 801 So.2d at 65; see also Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[T]here is no reason for a court deciding an effective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.”); Downs v. State, 740 So.2d 506, 518 n. 19 (Fla.1999) (finding no need to address prejudice prong where defendant failed to estabbsh deficient performance prong).

Even if we assume defense counsel was deficient in his inability to address this issue at the time of trial, Freeman has faked to establish that the State rebed on race when it decided to seek the death penalty, and thus has not demonstrated prejudice. The testimony establishes only that the prosecutor was aware of the McCleskey issue and perceptions and accusations made about his office. State Attorney Austin confirmed that race was not a factor in deciding to seek the death penalty in Freeman’s case. The trial court accepted this testimony as true, and there is nothing in the record to refute it. The trial court’s finding that the prosecutor did not rely on this defendant’s race in seeking the death penalty is supported by the competent, substantial evidence in the record. Therefore, we find no error in the trial court’s denial of relief on this claim.

Ineffective Assistance of Counsel at the Penalty Phase Trial

Freeman claims defense counsel was ineffective in the penalty phase trial for failing to investigate and present to the jury mitigating evidence from friends and family about Freeman’s abusive home life, for faihng to have mental health experts review his family history and present this evidence along with evidence of alcohol and drug abuse, and for failing to present the live testimony of David Sorrells, Freeman’s best friend, who would have testified to abuse Freeman suffered as a child.

As stated above, for Freeman to succeed on an ineffectiveness claim, two elements must be satisfied. First, he must show that counsel’s performance was deficient, or that counsel made errors so serious that he or she did not function as the “counsel” guaranteed by the Sixth Amendment. Second, he must show that the deficient performance prejudiced the defense. See Stewart v. State, 801 So.2d 59, 64-65 (Fla.2001). This second prong requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial with a reliable result. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The trial court considered each of the alleged deficiencies and found that trial counsel was not deficient. We agree.

Lay Witnesses

Defense counsel McGuinness testified at the evidentiary hearing that he made the decision to present the same mitigation at this trial as he presented in the Epps trial since, in the Epps trial, the jury recommended a sentence of life imprisonment. The only witnesses he called in the penalty phase were Mary Freeman (Freeman’s mother), Robert Jewell (Freeman’s brother), and David Sorrells (Freeman’s friend). Sorrells did not testify live at the trial, but the transcript of his testimony from the Epps trial was read to the jury. Defense counsel stated that he believed part of the evidence in the penalty phase trial included evidence that Freeman was abused by his stepfather. As for evidence that Freeman’s sister was sexually abused by Freeman’s stepfather, defense counsel testified that he did not have this information, and he admitted he never spoke to Freeman’s sister. He stated that he would have put on evidence of the sexual abuse only if he could have linked it to Freeman. He also stated that he knew of Freeman’s use of drugs and alcohol, but did not use that information in mitigation because he could not link it to the crime. He admitted that perhaps he should have “delved” .more deeply into Freeman’s drug and alcohol use.

Freeman, argues that defense counsel should have presented more evidence in mitigation, arguing that the result at trial would have been different if the jury had heard about the scope of physical and sexual abuse in the Freeman household.

The facts do not support the allegation that Freeman was sexually abused or was aware that his sister was sexually abused. To find that trial counsel was deficient in failing to present evidence of physical and sexual abuse, Freeman must first show that a reasonable investigation would have uncovered the evidence. See Gorby v. State, 819 So.2d 664, 676 n. 11 (Fla.2002) (finding that trial counsel was not ineffective for not presenting evidence of the defendant’s childhood sexual abuse where there was no evidence that such abuse occurred). The record in this case does not demonstrate that any of the witnesses or potential witnesses knew of the evidence of sexual abuse or would have told defense counsel about it if they did know. Freeman’s sister testified at the evidentiary hearing that she kept the abuse to herself until “later.” She testified that her mother knew of the abuse at the time of Freeman’s trial, but Freeman’s mother did not volunteer this information to counsel.

The trial court found that the testimony presented at the evidentiary hearing did not demonstrate physical abuse to the extent Freeman claims it occurred during his childhood. Each witness testified to single incidents of punishment that each said occurred after Freeman misbehaved. The trial court acknowledged the testimony of Freeman’s neighbors, Mary Holliman and Bobbie Hart, who both described an incident where Freeman was whipped with a rubber hose. However, the severity of Freeman’s claimed abuse was tempered by the testimony of Mitchell Tanner and Dwayne Watson, who stated that Freeman grew up like “all the rest of us,” that Freeman got into trouble and stayed out with his friends past his curfew, and that Freeman knew when he went home he would have to face his stepfather. Freeman’s neighbor, James Holliman, testified that he would hear Freeman and his brother yell, “I won’t do it anymore.” And Freeman’s aunt, Sonja Bigdon, testified that Freeman’s stepfather yelled, as did Freeman’s mother, but that his stepfather loved Freeman in his own way and was good to Freeman at times.

While additional evidence regarding specific examples of abuse could have been presented, that is not the standard Strickland contemplates in evaluating counsel’s performance. See Gudinas v. State, 816 So.2d 1095, 1106 (Fla.2002) (finding that trial counsel was not ineffective for failing to present evidence in mitigation that was cumulative to evidence already presented in mitigation); see also Cherry v. State, 781 So.2d 1040, 1051 (Fla.2000) (“[E]ven if trial counsel should have presented witnesses to testify about Cherry’s abusive background, most of the testimony now offered by Cherry is cumulative.... Although witnesses provided specific instances of abuse, such evidence merely would have lent further support to the conclusion that Cherry was abused by his father, a fact already known to the jury.”).

The trial court acknowledged that the witnesses’ combined testimony demonstrated that Freeman’s stepfather was overly zealous in his punishment, but the court also noted that the punishment described in the testimony was in response to Freeman’s misbehavior. Further, as the trial court found, the information presented at the evidentiary hearing was “largely cumulative” to that evidence presented at trial, and that the combined testimony would not have outweighed the statutory aggravating circumstances.

It is clear from the testimony that Freeman suffered some physical abuse at the hand of his stepfather. In fact, the jury recommendation of life in the Epps trial was based in part on the “history of abuse during Freeman’s childhood.” Freeman, 547 So.2d at 129. However, the fact that Freeman was physically abused by his stepfather was a fact made clear to this jury at trial. Freeman’s brother and mother, as well as Dr. Louis Legum, a mental health expert, told the jury that Freeman was abused by his stepfather. In fact, the trial court accepted the non-statutory mitigating factor of abuse by Freeman’s stepfather.

Although the evidence presented at the postconviction hearing may have painted a clearer picture as to the extent of the abuse, trial counsel is not ineffective if he adequately made the point. See Jennings v. State, 583 So.2d 316, 321 (Fla.1991) (“It is not negligent to fail to call everyone who may have information about an event. Once counsel puts on evidence sufficient, if believed by the jury, to establish his point, he need not call every witness whose testimony might bolster his position.”). Even if counsel’s failure to demonstrate the abuse with greater detail can be considered error, it would be harmless because the abuse Freeman suffered as a child was found as a mitigating factor.

Expert Testimony

Freeman also called a number of friends and family members to testify at the evi-dentiary hearing. The testimony showed that Freeman suffered a head injury when a neighbor accidently backed over him with a car when he was about two years old, and another head injury after falling off a bicycle. At the evidentiary hearing, defense counsel testified that there were no medical records available to indicate the nature or severity of either of the head injuries, the hospital records had been destroyed, and the treating physician had no recollection of the injuries. Freeman then presented Dr. James E. Larson as an expert witness in forensic psychology to testify that Freeman suffered from a “mild neuropsychological impairment” and a “learning disability.” Dr. Larson administered certain tests to Freeman and testified that Freeman performed poorly.

The trial court found that there was no materially significant information Dr. Larson possessed that defense counsel did not provide to Dr. Legum at trial. The trial court also held that because Dr. Legum did not testify at the evidentiary hearing, there was no evidence that Dr. Legum’s testimony at trial would have been any different had he been given Dr. Larson’s information. Based on these facts, the trial court found that there was no showing that trial counsel was deficient. See Porter v. State, 788 So.2d 917 (Fla.2001) (finding that this Court will not substitute its judgment for trial court’s judgment on questions of fact, credibility of witnesses, and weight of evidence); see also Cherry v. State, 781 So.2d 1040 (Fla.2000); Whitfield v. State, 706 So.2d 1 (Fla.1997).

The trial court then considered the second prong of Strickland and held that Freeman demonstrated no prejudice. The trial court found that Dr. Larson’s opinion that Freeman possessed a “mild neuropsy-chological impairment” was based on his speculative assessment of a combination of factors, which was subject to impeachment by the State. Furthermore, both Dr. Larson and Dr. Legum would have testified that Freeman suffered from “anti-social personality disorder” which is a trait most jurors tend to look disfavorably upon. At best, the trial court found, Dr. Larson’s testimony would have established nonstat-utory mitigation. See Blackwood v. State, 777 So.2d 399 (Fla.2000) (finding that trial court properly rejected statutory mental mitigator where mental health expert testified that defendant suffered from mental disturbance which was not “extreme”); see also Mahn v. State, 714 So.2d 391 (Fla.1998); Foster v. State, 679 So.2d 747 (Fla.1996); Johnson v. State, 660 So.2d 637 (Fla.1995). The trial court concluded that Freeman’s claim failed both prongs of the Strickland test for ineffective assistance of counsel.

We accord deference to the trial court’s findings of fact, and will uphold them if the facts are based on competent, substantial evidence. See Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999). The facts the trial court relied upon are supported by competent, substantial evidence in the record. Defense counsel testified at the postconviction hearing that he provided Dr. Legum with Freeman’s school records, juvenile records, background information from his files, and any other information he obtained as he acquired it. Defense counsel informed Dr. Legum that Freeman was sent to the hospital on a suicide watch prior to trial. Dr. Larson’s testimony at the postconviction hearing was substantially similar to Dr. Legum’s testimony at trial. Both experts testified to Freeman’s IQ, intellectual capabilities, and performance on achievement tests. The fact that Freeman found a new expert to provide more favorable mental health testimony does not, in itself, render trial counsel deficient. See Gaskin v. State, 822 So.2d 1243 (Fla.2002) (holding counsel’s reasonable mental health investigation was not rendered incompetent merely because defendant later secured testimony of more favorable mental health expert and where expert’s opinion at evi-dentiary hearing was cumulative to that already presented to trial court).

The trial court’s finding that Freeman’s school records, juvenile records, and other information in trial counsel’s files were given to the trial expert is supported by the competent, substantial evidence in the record based on trial counsel’s own testimony that he provided this information. The facts in the record do not support Freeman’s claim that his trial counsel was deficient in failing to provide the trial expert with pertinent background information, and relief on this claim is therefore denied.

Failure to Subpoena David Sorrells

Freeman claims that it was crucial to his defense that David Sorrells, his best friend from childhood, testify live at his trial. Sorrells testified live at the Epps trial. Defense counsel did not subpoena Sorrells for trial in this case because he perceived Sorrells as a friendly witness and expected Sorrells would testify voluntarily. However, when the penalty phase trial began, defense counsel could not locate Sorrells. Counsel sent Freeman’s brother to Sorrells’ house and left a message with Sorrells’ girlfriend. Counsel sought a continuance to find Sorrells and bring him into the courtroom to testify, telling the judge that he knew where Sor-rells worked and could find him there. However, because Sorrells had not been subpoenaed, the trial judge refused to continue the penalty phase trial. The trial judge had counsel read Sorrells’ testimony from the Epps trial to the jury, and instructed the jury to accept the testimony as if Sorrells had presented it live.

Sorrells testified at the evidentiary hearing. He stated that he had not been contacted to testify at the trial, but would have done so. Freeman now argues that Sorrells’ testimony should have been presented live, and when considered in conjunction with the failure of trial counsel to present the other lay testimony, there was clear prejudice. He argues that without Sorrells’ testimony along with the testimony of other friends and neighbors, the jury believed that only family members were willing to testify favorably about his character, and the jury never understood that he is a human being with positive characteristics.

Sorrells testified at the Epps trial about two incidents of physical abuse Freeman suffered. At the evidentiary hearing Sor-rells stated that had he been called as a live witness, he would also have testified that Freeman was a hard worker, Freeman enjoyed children, and he was well-mannered. He would have also added that Freeman’s stepfather was “a pretty rowdy fella.”

Counsel’s failure to subpoena a defense witness is not prejudicial where the testimony is presented to the jury by other evidence. See Melendez v. State, 612 So.2d 1366, 1368 (Fla.1992) (rejecting a claim of ineffectiveness of counsel for failure to subpoena defense witness because, when witness failed to appear, trial counsel was able to get testimony before jury by way of stipulation). In this case, Sorrells’ testimony was presented by reading the transcript of his prior testimony.

Furthermore, as the trial court found, trial counsel’s' failure to subpoena Sorrells was a tactical decision to prevent the State from knowing who the defense witnesses were. Although trial counsel stated that he did not subpoena Sorrells because he thought Sorrells would voluntarily appear, he also stated that, at the time of this trial, there was no discovery regarding penalty phase witnesses and if he did not subpoena a witness, the prosecutor would not know who his witnesses would be. Trial counsel stated, “I saw no reason to assist the State in preparing to meet any of my witnesses.” Thus, the trial court’s finding that this was a tactical reason is supported in the record.

As this Court stated in Occhicone v. State, 768 So.2d 1037 (Fla.2000):

In order to obtain a reversal of his death sentence on the ground of ineffective assistance of counsel at the penalty phase, [the defendant] must show “both (1) that the identified acts or omissions of counsel were deficient, or outside the wide range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.”

Id. at 1049 (quoting Rose v. State, 675 So.2d 567, 571 (Fla.1996)). The evidence Freeman now presents as evidence of mitigation would not alter the balance of the aggravating and mitigating circumstances. There were three aggravating circumstances found: (1) Freeman was previously convicted of first-degree murder, armed robbery, and burglary of a dwelling with an assault (the Epps case); (2) Freeman committed the Collier murder during the commission of a burglary of a dwelling; and (3) Freeman committed the crime for pecuniary gain. There were no statutory mitigators found. Four nonstatutory miti-gators were found: (1) Freeman was of low intelligence; (2) he had been abused by his stepfather; (3) he possessed some artistic ability; and (4) he enjoyed playing with children. Every item Freeman presents as mitigation in this postconviction proceeding was considered by the jury at trial. The fact that Freeman’s postconviction counsel can support the mitigation with stronger evidence would not, with reasonable probability, alter the balance of the aggravating and mitigating circumstances. The trial court properly denied relief on this claim.

Therefore, based on the foregoing, we hereby affirm the trial court’s denial of postconviction relief.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.


author: CANTERO, J.

text:
    F.B., a child, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1156.
    Supreme Court of Florida.
    July 11, 2003.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, Florida, for Respondent.
   CANTERO, J.

We review F.B. v. State, 816 So.2d 699 (Fla. 4th DCA 2002), which certified conflict with T.E.J. v. State, 749 So.2d 557 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we approve the Fourth District Court of Appeal’s holding that the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error, and therefore this claim must first be raised in the trial court to be preserved for appellate review.

I. The Decisions in Conflict

The operative facts of the two cases are essentially the same. In F.B., the petitioner was adjudicated delinquent on the charge of petit theft of items valued at $100 or more but less than $300, a first-degree misdemeanor. 816 So.2d at 700; see § 812.014(l)(a), (2)(e), Fla. Stat. (1999) (declaring the theft of items valued at $100 but less than $300 to be a first-degree misdemeanor). Although the State presented evidence about the items taken, it offered no evidence of their value. Petitioner failed to object, however, or to move for judgment of acquittal on this ground. Petitioner raised the claim for the first time on appeal, asserting fundamental error. The Fourth District held that under State v. Barber, 301 So.2d 7 (Fla.1974), the issue must be preserved for appeal. 816 So.2d at 701; accord Joseph v. State, 830 So.2d 911, 911 (Fla. 4th DCA 2002) (citing F.B. and affirming burglary of occupied dwelling conviction because insufficient evidence claim was not preserved). Similarly, in the conflict case, T.E.J. argued for the first time on appeal that a delinquency adjudication for first-degree petit theft must be reduced to second-degree because the State failed to prove the value of the stolen items. 749 So.2d at 558. Without mentioning Barber, the Second District Court of Appeal, relying on our decision in Negron v. State, 306 So.2d 104, 107 (Fla.1974), receded from on other grounds by Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), concluded that the “failure of proof on the essential element of value was fundamental error” and reversed. 749 So.2d at 558; accord E.R. v. State, 806 So.2d 529 (Fla. 2d DCA 2001) (reversing third-degree grand theft conviction as fundamental error, relying on T.E.J., because the State failed to prove that the value of the property exceeded $300 and ordering the conviction reduced to second-degree petit theft).

II. Barber and Negron

The courts in F.B. and T.E.J. relied on two different eases from this Court for their opposite holdings. In State v. Barber, 301 So.2d 7, 8 (Fla.1974), the respondents were convicted of two counts of breaking and entering with intent to commit grand larceny. As did the petitioner here, on appeal they alleged that the evidence was insufficient to sustain the conviction on the element of the value of the property stolen. The respondents, contended that the State thus failed to present a prima facie ease and that this constituted fundamental error. Citing a line of prior decisions, we rejected that argument and held that “unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment.” Id. at 9. Because the issue was not preserved below, we held that it “was not open to appellate review.” Id.

Three months after Barber, we decided Negron v. State, 306 So.2d 104 (Fla.1974), on which the Second District relied in T.E.J. After resolving the conflict issue presented, this Court turned to the petitioners’ contention “that there was fundamental error committed as to them in that they were convicted of grand larceny when the State’s evidence did not support a conviction of grand larceny.” 306 So.2d at 107. Again, the petitioners claimed that the State failed to present sufficient evidence of the value of the items stolen. Without referring to Barber, we reviewed the record and held that the evidence was insufficient to support a grand theft conviction. Id. at 108. We reversed for entry of a petty larceny conviction. Id. at 109.

Although Negron tacitly rests on the assumption that the petitioners’ insufficient evidence claim constituted fundamental error, the Court did not address that issue. Thus, while the Second District’s reliance on Negron is understandable, we again remind the courts that

this Court does not intentionally overrule itself sub silentio. Where a court encounters an express holding from this Court on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply our express holding in the former decision until such time as this Court recedes from the express holding.

Puryear v. State, 810 So.2d 901, 905 (Fla.2002) (emphasis added). As explained below, we reaffirm Barber, which did expressly rule on the issue, and recede from Negron to the extent it conflicts with Barber.

III. Preservation and Fundamental Error

We first review the principles underlying the requirement to preserve error for review and the requisites for determining fundamental error, which may be raised for the first time on appeal. In general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs. J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). “Furthermore, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). This Court has explained that

[ t]he requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

Castor v. State, 365 So.2d 701, 703 (Fla.1978). The requirement of contemporaneous objection thus not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage. See J.B., 705 So.2d at 1378.

The sole exception to the contemporaneous objection rule applies where the error is fundamental. Id. We have stated that “in order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So.2d 481, 484 (Fla.1960) (holding that the alleged error “did not permeate or saturate the trial with such basic invalidity as to lead to a reversal regardless of a timely objection”). Thus, an error is deemed fundamental “when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” J.B., 705 So.2d at 1378; see also State v. Johnson, 616 So.2d 1, 3 (Fla.1993) (stating that “for an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process”). “The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So.2d 106, 108 (Fla.1988); see also Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (noting that “this Court has cautioned that the fundamental error doctrine should be used Very guardedly’ ”).

IV. Insufficiency of the Evidence and Fundamental Error

As the foregoing discussion suggests, rarely will an error be deemed fundamental, and the more general rule requiring a contemporaneous objection to preserve an issue for appellate review will usually apply. We find that the interests of justice are better served by applying this general rule to challenges to the sufficiency of the evidence. Any technical deficiency in proof may be readily addressed by timely objection or motion, thus allowing the State to correct the error, if indeed it is correctable, before the trial concludes. See Johnson v. State, 478 So.2d 885, 886 (Fla. 3d DCA 1985) (noting that “[h]ad counsel complied with the rule and specifically brought the ground now urged to the trial court’s attention, the error, if any, might have been cured by allowing the state to re-open its case and supply the missing, technical element of age”).

The deferential standard of review appellate courts apply to claims of insufficiency of the evidence — i.e., “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment” — further supports our holding. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (clarifying the difference between sufficiency and weight of the evidence and defining the appellate court’s task in reviewing a claim of insufficiency of the evidence). In light of this standard of review and the interests the contemporaneous objection rule serves, we hold that, with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.

The first exception is based on the longstanding appellate rule under which, in death penalty cases, this Court is required to review the sufficiency of the evidence to support the conviction. See Fla. R.App. P. 9.140(f). This Court always reviews such eases to determine whether competent, substantial evidence supports the verdict, regardless of whether the issue is preserved for review or even raised on appeal. See, e.g., Brooks v. State, 762 So.2d 879 (Fla.2000); Woods v. State, 733 So.2d 980 (Fla.1999); Archer v. State, 613 So.2d 446 (Fla.1993).

The second exception to the requirement that claims of insufficiency of the evidence must be preserved occurs when the evidence is insufficient to show that a crime was committed at all. This exception is illustrated in two cases. In Troedel v. State, 462 So.2d 392, 399 (Fla.1984), we reversed one of the defendant’s two burglary convictions because “[tjhere was no evidence of more than one such unlawful entry.” We held that “a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.” Id. We applied this rule in Vance v. State, 472 So.2d 734 (Fla.1985), in which the petitioner was charged with two counts of aggravated assault with a deadly weapon and was convicted on each of the lesser-included offense of improper exhibition of a dangerous weapon under section 790.10, Florida Statutes (1981), which prohibits such exhibition “in the presence of one or more persons.” Relying on Troedel’s fundamental error pronouncement, we held that because section 790.10 was only violated once in the single episode, the second conviction was “totally unsupported by evidence.” 472 So.2d at 735.

Thus, an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process. See, e.g., Stanton v. State, 746 So.2d 1229, 1230 (Fla. 3d DCA 1999) (citing Troedel and stating that “a person who takes temporary possession of contraband for the sole purpose of turning it into the authorities, and promptly does so, is [not] guilty of a crime”); Griffin v. State, 705 So.2d 572, 574 (Fla. 4th DCA 1998) (reversing conviction because a “conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law”); Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994) (reversing conviction and stating that “[c]onviction of a crime which did not take place is a fundamental error, which the appellate court should correct even when no timely objection or motion for acquittal was made below”); Nelson v. State, 543 So.2d 1308, 1309 (Fla. 2d DCA 1989) (reversing conviction as fundamental error because defendant’s conduct did not constitute the crime of which he was convicted).

Y. Conclusion

In conclusion, we reaffirm, with the two discrete exceptions explicated above, the longstanding rule that claims of insufficiency of the evidence must be specifically preserved for appellate review. Accordingly, we approve the Fourth DCA’s decision in F.B. and disapprove the decision in T.E.J.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and BELL, JJ., concur.

      . Since these two cases were decided, the Fourth District has followed F.B. and Barber in another case, see Joseph, 830 So.2d at 911, and the Third District has followed T.E.J., see Stanford v. State, 833 So.2d 174 (Fla. 4th DCA 2002).

      . We note that a motion or objection must be specific to preserve a claim of insufficiency of the evidence for appellate review. A boilerplate objection or motion is inadequate. See Brooks v. State, 762 So.2d 879, 894-95 (Fla.2000).


author: WELLS, J.

text:
    Raymond Edward BARNES, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1413.
    Supreme Court of Florida.
    July 11, 2003.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, FL, for Respondent.
   WELLS, J.

We have for review Barnes v. State, 815 So.2d 745 (Fla. 1st DCA 2002), a per curiam decision affirming the lower court’s decision and citing State v. Medlin, 273 So.2d 394 (Fla.1973), and Reed v. State, 783 So.2d 1192 (Fla. 1st DCA 2001). We accepted jurisdiction based on this Court’s review of Reed, see art. V, § 3(b)(3), Fla. Const, and hereby remand for further proceedings in light of this Court’s decision in Reed v. State, 837 So.2d 366 (Fla.2002).

It is so ordered.

ANSTEAD, C.J., PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.