author: MURDOCK, Judge.

text:
    Nancy G. SMITH v. QHG OF DOTHAN, INC., a corporation, d/b/a Home Health Services.
    2010613.
    Court of Civil Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 8, 2003.

      Joel M. Nomberg, Dothan, for appellant.
    William L. Lee III, William L. Lee IV, and William W. Nichols of Lee & Mclnish Attorneys, P.C., Dothan, for appellee.
   MURDOCK, Judge.

Nancy G. Smith appeals from the trial court’s judgment finding her 50% permanently partially disabled as a result of an injury she suffered while employed with QHG of Dothan, Inc., a corporation, d/b/a Home Health Services (“QHG”). The trial court also determined that mileage reimbursement was not to be included in the computation of the “average weekly wages” to be used in calculating Smith’s disability benefits under § 25-5-57, Ala. Code 1975.

The trial court held .an ore tenus-hearing on October 31, 2001, at which Smith and the following individuals testified: Marlene Harrell, a company representative for QHG; Myrtice Carr, a vocational expert retained by Smith; and Eric Anderson, a vocational expert retained by QHG. Written reports from both of the vocational experts were admitted into evidence. The trial court also considered the following additional evidence: the deposition testimony of Smith (dated April 1999); the deposition testimony of Dr. J. Paul Maddox, an orthopedic surgeon (dated August 2001); relevant medical and payroll records; an affidavit of Alethia E. Keahey, director of fiscal services for QHG; and a Social Security Administration disability decision in favor of Smith.

At the time of the trial, Smith was 42 years old. In addition to having graduated from high school, Smith had completed three quarters of general curriculum at a community college. Smith earned primarily A’s and B’s in high school; she earned A’s and B’s at the community college as well.

Smith, a certified nursing assistant (“CNA”), began working for QHG as an in-home patient-care provider in March 1996. Smith’s job duties included taking patients’ vital signs, bathing them,. moving them around, and changing their clothes. Smith used her own vehicle to travel to the patients’ homes, and QHG reimbursed her biweekly for her reported mileage by paying her a standard per-mile rate.

On September 3, 1997, Smith suffered an on-the-job injury to her lower back while attempting to assist a patient out of a wheelchair. Thereafter, Smith was diagnosed with a bulging disc and underwent conservative treatment. Smith resigned from her job in November 1997, explaining that, because of her level of pain, she was unable to perform her job duties. After conservative treatment failed to relieve Smith’s pain, she was referred to Dr. J. Paul Maddox, an orthopedic surgeon. Thereafter, Smith underwent two surgical procedures: (1) an “L5-S1 laminotomy, bilateral disc excision, posterior lumbar inner body fusion, and right autogenous iliac crest bone graft” (on August 6, 1998); and (2) an “L5-S1 intertransferous transfusion bilaterally with screw and rod fixation and bilateral iliac crest harvest” (on April 20, 2000). Dr. Maddox explained that the first surgery, a one-level fusion at L5-S1, was unsuccessful resulting in a “nonunion or an unhealed fusion”; the second surgery was successful. In August 2000, Dr. Maddox ordered a functional capacity evaluation (“FCE”) to determine Smith’s physical limitations.

On August 17, 2000, Daniel R. Peters, a physical therapist, conducted the FCE. According to the FCE, Smith demonstrated an ability to work in a sedentary to light-physical functional capacity with the following restrictions: “no squatting,, kneeling, running. Stand/walk FREQ but not CONSTANT.”

Dr. Maddox concurred with the FCE, finding it to be representative of Smith’s work abilities. Dr. Maddox determined that Smith had reached maximum medical improvement on August 17, 2000, and assigned Smith a 12% impairment rating to the body of as whole. Dr. Maddox released Smith to return to work within the limitations of the FCE. Dr. Maddox recognized that, because of lifting limitations, Smith would not be able to return to her job as a CNA at QHG.

Both parties had vocational experts testify at trial. Myrtice Carr, Smith’s vocational expert, opined that Smith was 100% permanently and totally disabled. Carr opined that Smith had a loss of access to the job market of 94% and a loss of earning capacity of 100%. In her vocational report, Carr opined that “[i]t is customary and reasonable to average the two methods to obtain the loss of employability which is measured to be 97%. With only four jobs feasible, this should be considered at 100 percent loss.”

QHG’s vocational expert, Eric Anderson, opined that Smith had a loss of access to the market of 50% and a loss of earning capacity of 17%. In his vocational report, Anderson opined that “Smith’s vocational disability rating ranges ... between 25% to 33.5%.” Anderson testified that Smith had enough work skills to become a medical office assistant, a file clerk, a receptionist, a hospital admitting clerk, and a cashier. Anderson further testified that Smith could receive short-term training to become a pharmacy technician or a cardiac monitor technician, both of which could yield greater wages than Smith’s preinjury job as a CNA.

Smith testified at trial that she takes Vioxx (an anti-inflammatory medication) every day for her back. She also testified that she “[a]t times [has] to take [over-the-counter] pain medicine.” Smith described her pain: “I still have pain. It’s not as bad as before. My legs are bad to cramp. I don’t sleep that good. I sleep on my right side with pillows between my legs. Sometimes I have a good night’s sleep and sometimes I don’t.” On cross-examination, Smith admitted that, although she claims that she is unable to obtain work because of her medical condition, she has not attempted to find work within her work restrictions. She also admitted that she is able to cook meals for: her husband, make up the beds, clean the house, and generally take care of her “household” duties. Smith also drives.

In its judgment, the trial court found, in part:

“5. On September 3, 1997, while working within the scope of her employment with [QHG], [Smith] injured her back lifting a patient from a wheelchair. Dr. J. Paul Maddox, an orthopedic surgeon at Southern Bone & Joint, subsequently performed two surgical procedures to repair the injury: (1) an L5-S1 laminotomy, bilateral disc excision, posterior lumbar inner body fusion and right autogenous iliac crest bone graft; and (2) L5-S1 intertransferous transfusion bilaterally with screw and rod fixation and bilateral iliac crest harvest.
“7. At the time of the accident, [Smith’s] average weekly earnings were $258.70. Although [Smith] contended at trial that her average weekly earnings should have included mileage reimbursement expenses paid by [QHG], the court specifically finds that the mileage reimbursements were not included in [Smith’s] W-2 forms and [were] not treated as income for federal income tax purposes. Thus, under Ala. Code §§ 25-5-57(b) and 25-5-1(6), the reimbursements should not be included in [Smith’s] average weekly earnings.
“11. [Smith] reached maxmium medical improvement, according to Dr. Maddox, on August 17, 2000. Dr. Maddox assigned [Smith] a 12 percent permanent partial rating to the body as a whole due to her two surgeries. Dr. Maddox released [Smith] to return to work as per the demonstrated eapabilities and limitations outlined in the [FCE] performed by Daniel Peters at Rehab Associates of Dothan on August 17,2001.[]
“12. According to the FCE, [Smith] demonstrated the physical demands and capabilities of performing sedentary to light work based on her decreased standing and walking tolerances. Mr. Peters documented [Smith] was able to frequently sit, stand and walk, and occasionally bend and climb. He believed she was able to perform some light to medium material handling activities. She demonstrated the ability to carry weights of approximately thirty-five pounds a distance of thirty feet. Further, she was able to perform a torso lift with weights of fifteen pounds occasionally and able to pull twenty pounds of force for a distance of thirty feet. Mr. Peters further documented [Smith] was able to constantly reach and could perform simple grasping, fine work, pushing and pulling and low speed assembly tasks. [Smith] was also qualified to return to fulltime work eight hours per day provided that she not squat, kneel, run, or crawl. Mr. Peters recommended [Smith] alternate sitting and standing every thirty minutes to one hour.
“13. [Smith’s] vocational expert, Myrtice Carr, testified that [Smith] was 100 percent permanently and totally disabled from gainful employment. As stated, her vocational disability evaluation report was admitted into evidence.
“14. [QHG’s] expert, Eric Anderson, expressed his opinions that while [Smith] would be precluded from returning to her past work as a certified nurse assistant based upon the physical restrictions assigned by Dr. Maddox,
she could receive short-term training to become a pharmacy technician or a cardiac monitor technician. These are jobs which yield wages greater than [Smith’s] pre-injury wages as a CNA. It was Mr. Anderson’s further opinion that [Smith] had transferable work skills that would assist her in finding employment as a hospital admitting clerk, as well as other semi-skilled positions within her restrictions.
“Mr. Anderson concluded that [Smith] has lost access to 50 percent of her pre-injury labor market and suffered a loss of earning capacity of approximately 17 percent. This yielded an overall vocational disability rating of between 25 and 33.5 percent.
“It is the conclusion and finding of this court, after having observed the demeanor and testimony of the witnesses; taking into consideration [Smith’s] age, education, training, experience, physical limitations and physical disability ratings; and after considering all of the evidence introduced at the trial, particularly the vocational expert testimony; that [Smith] suffered a 50 percent permanent partial disability and is not permanently, totally disabled.”

Smith contends that the trial court erred, as a factual matter, in finding that she was less than 100% permanently totally disabled. In a workers’ compensation case, “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25 — 5—81(e)(2), Ala. Code 1975; Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996) (holding that a trial court’s finding of fact will not be reversed if that finding is supported by substantial evidence, i.e., if that finding is supported by “‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved’ ” (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989))).

We also have held that a trial court’s factual finding based upon conflicting ore tenus evidence will not be disturbed on appeal unless that finding is clearly erroneous or manifestly unjust. Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala.Civ.App.1998). Further, it is the duty of the trial court, which has the opportunity in an ore tenus proceeding, to observe the witnesses and their demeanor, and not the appellate court, to weigh the evidence presented. Id. at 700. As this court stated in Fryfogle v. Springhill Memorial Hospital, Inc., 742 So.2d 1255 (Ala.Civ.App.1998), aff'd, 742 So.2d 1258 (Ala.1999), with respect to a trial court’s finding as to the extent of disability under the Alabama Workers’ Compensation Act:

“It is the duty of the trial court to make some determination as to the extent of disability. In making the determination, the trial court must consider all the evidence, including its own observations, and interpret it to its own best judgment. This court is precluded from weighing the evidence presented before the trial court. We merely examine the record to determine if the conclusion of the trial court is reasonably supported by the evidence, and, if so, whether the trial court has drawn the correct legal conclusions therefrom.... ”

742 So.2d at 1258 (citations omitted).

Section § 25-5-57(a)(4)d., Ala. Code 1975, a part of the Workers’ Compensation Act, provides:

“[A]ny physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gain-fill employment, shall constitute prima facie evidence of permanent total disability but shall not constitute the sole basis on which an award of permanent total disability may be based.... ”

This court has held that “permanent total disability” is the inability to perform one’s trade and the inability to find gainful employment. Mead Paper Co. v. Brizendine, 575 So.2d 571, 574 (Ala.Civ.App.1990). This two-pronged test is conjunctive, not disjunctive. Id. The burden is on the employee to reasonably satisfy the trial court that he is entitled to recover benefits. Shaw v. Cannon Sline, Inc., 678 So.2d 193 (Ala.Civ.App.1996).

“The question of whether an employee can return to his former trade is basically a threshold issue; if the employee can resume his trade then it is obvious that he is not permanently, totally disabled .... If he is unable to return to his trade, then § 25-5-57 requires the court to find that other employment is unavailable and retraining is not feasible....
“... Therefore, we find that a permanent, total disability is the inability to perform one’s trade and the inability to find gainful employment. The search for gainful employment includes retraining for another job; moreover, a person cannot refuse to be retrained if her or she is a proper candidate for retraining. § 25-5-57(a)(4)d.”

575 So.2d at 574.

In this case, the trial court, after considering all of the testimony and other evidence, determined that Smith was not permanently totally disabled, but was 50% permanently partially disabled. This court’s role is not to reweigh the evidence. We have carefully reviewed the record in this case and have considered all of the evidence contained therein, as well as Smith’s arguments pertaining to that evidence, and we conclude that substantial evidence supports the trial court’s finding that Smith is 50% permanently partially disabled.

Smith also contends that the trial court erred in computing her “average weekly earnings” under § 25 — 5—57(b), Ala.Code 1975. She argues that the mileage reimbursement she received was an “allowance” that should have been included in the computation of her earnings.

As previously stated, Smith used her own vehicle to travel to the patients’ homes. QHG reimbursed her biweekly for her reported mileage by paying her a standard per-mile rate. Smith testified that QHG’s agreement to reimburse her for mileage expense was a consideration for her at the time she took the job. Smith admitted, however, that she paid for her own gas, oil, maintenance, and insurance. Further, Smith admitted that she did not know how much it cost her each week to operate her car during the 52 weeks immediately before the accident.

Smith’s biweekly pay stubs reflect that the mileage-reimbursement payments were separately stated and included in the “total earnings” column. Alethia E. Keah-ey, director of fiscal services for QHG, submitted an affidavit stating that “Ms. Smith’s mileage reimbursements ... were not treated as income to Ms. Smith for federal income tax purposes and not included as income on her W-2 form.”

Section 25-5-57(b), Ala.Code 1975, provides, in part:

“Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6) of the injured employee in the employment in which he or she was working at the time of the injury....”

Section 25-5-1(6), Ala.Code 1975, defines “wages”:

“(6) Wages or weekly wages. The terms shall in all cases be construed to mean ‘average weekly earnings’, based on those earnings subject to federal income taxation and reportable on the Federal W-2 tax form which shall include ... fringe benefits as defined herein.... ‘Fringe benefits’ shall mean only the employer’s portion of health, life, and disability insurance benefits.”

In the present case, the trial court found that Smith’s mileage reimbursements were not included on Smith’s W-2 forms and were not treated as income for federal income tax purposes. This finding is supported by substantial evidence.

Smith argues, however, that notwithstanding the fact that her mileage reimbursements were not included on her W-2 forms, those reimbursements are still properly treatable as earnings for purposes of the Workers’ Compensation Act. Smith’s argument emphasizes the last sentence of § 25-5-57(b), which provides: “Whatever allowances, of any character made to an employee in lieu of wages are specified as part of the wage contract [and] shall be deemed a part of his or her earnings.” In essence, Smith contends that this provision, which did not change with the adoption of the 1992 amendments to the Workers’ Compensation Act, clarifies or supplements the above-quoted provisions of § 25-5-57(b) and § 25-5-1(6) so as to more broadly define the types of receipts intended by the Legislature to be included as part of an employee’s earnings.

QHG states in its brief that the Legislature’s retention of the last sentence in § 25-5-57(b) “arguably creates a conflict” with the other definitional provisions added by the Legislature to §§ 25-5-57(b) and 25-5-1(6) in 1992. QHG urges this court to reconcile this conflict by construing § 25-5-1(6) as a specific limitation on the more general provisions, including the last sentence of § 25-5-57(b).

Whether there is in fact a conflict between the last sentence of § 25-5-57(b), on the one hand, and the remainder of § 25-5 — 57(b) and § 25-5-1(6), on the other hand, is not a question which we must resolve in order to resolve the case now before us. Even if the last sentence of § 25-5-57(b) were to be read as broadening the parameters that would otherwise be established by § 25-5-1(6), the mileage reimbursements at issue in this case would not fall within those broader parameters.

In Ex parte Murray, 490 So.2d 1238 (Ala.1986), our Supreme Court explained that “allowances of any character” under the last sentence of § 25 — 5—57(b) include employer-paid fringe benefits that have a “discernible economic value to the [employee]” that is lost to an employee when he or she is unable to continue the employment following a work-related injury. 490 So.2d at 1241. The Supreme Court reasoned that the employer’s payment of premiums for the employee’s medical, hospitalization, and life insurance policies in that case was “in lieu of wages,” and it included the amount of those payments in the employee’s earnings for purposes of calculating benefits. Id. at 1240.

At issue in Ex parte Murray, however, were payments made by the employer for normal expenses that the employee would have incurred even if not working for the employer, not reimbursements for expenses incurred specially by the employee in order to perform his employment duties. That is not true in the present case. To the extent Smith’s mileage reimbursements did not exceed the costs of operating her own vehicle in the fulfillment of her employment duties, those reimbursements were not accessions to wealth and did not constitute a true economic benefit to her; rather, they were simply reimbursements to Smith for expenses that she incurred only in fulfilling her employment duties and that she would not otherwise have incurred. See Mason v. District of Columbia Dep’t of Employment Servs., 562 A.2d 644 (D.C.1989).

Smith admitted that she paid for the gas and oil used in operating her vehicle, for the insurance associated with operating the vehicle, and for the cost of maintaining the vehicle. Because the vehicle belonged to Smith, any “wear and tear” or depreciation in the value of the vehicle as a result of its use in performing her duties for QHG was borne by Smith. The record contains no evidence that Smith’s mileage reimbursements exceeded those expenses. The burden of proving earnings and average weekly wages for purposes of computing benefits under the Workers’ Compensation Act is the employee’s. Slay Transportation Co. v. Miller, 702 So.2d 142 (Ala.Civ.App.1997). The trial court therefore did not err in refusing to include those reimbursements in Smith’s earnings.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . In March 1998, an FCE had been ordered by a different physician to determine Smith’s physical limitations at that time; however, the results of that FCE were "invalid” based on a determination that Smith had exerted "submaximal effort.”

      . Under the FCE, the allowable percentage of the day permitted for specified activities is divided into four categories: "never” (0% of the day); "occasional” (1-33% of the day); "frequent” (34-66% of the day); and "constant” (67-100% of the day).

      . It is undisputed that Daniel Peters at Rehab Associates of Dothan performed the FCE on August 17, 2000 — not August 17, 2002.

      . The second sentence in the quoted portion of § 25 — 5—57(b) was added as part of the 1992 amendments to the Workers’ Compensation Act. See 1992 Ala. Acts, Act No. 92-537, § 17.

      . Section 25-5-1(6) as quoted in the text, was added to the Workers' Compensation Act by the 1992 amendments thereto. See Ala. Acts 1992, Act No. 92-537, § 2.

      . Unlike our review of a purely factual finding, our review of a legal issue is without a presumption of correctness in favor of the trial court. Ala.Code 1975, § 25-5-81(e)(1).


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Calvin J. MUMPFIELD v. STATE of Alabama.
    CR-01-2579.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Aimee C. Smith, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and H. Clay Barnett III, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

Calvin J. Mumpfield appeals the trial court’s order revoking his probation.

The record reflects that Mumpfield’s probation officer filed a delinquency report in September 2002, alleging that Mump-field had violated the terms and conditions of his probation by testing positive for cocaine and marijuana. A probation-revocation hearing was held on September 19, 2002, at which Mumpfield admitted that the charge was true. His probation was then revoked.

On appeal, Mumpfield raises two claims: (1) that the trial court lacked jurisdiction to revoke his probation because, he says, his probationary term had ended before the alleged probation violation for which his probation was revoked had occurred, and (2) that the trial court erred in not giving him credit for time he spent incarcerated before his probation was revoked. We address each claim in turn.

I.

First, Mumpfield contends that the trial court lacked jurisdiction to revoke his probation because, he says, his probationary term had ended over two years before the alleged probation violation occurred. According to Mumpfield, he was sentenced on August 26, 1999, to 10 years’ imprisonment; that sentence was split and he was ordered to serve 3 years in confinement, but the trial court suspended the 3-year confinement portion of the sentence and placed him on probation for one year. Therefore, Mumpfield concludes, his probation expired on August 26, 2000, and the trial court could not revoke his probation on September 19, 2002, over two years later. In addition, because his probation had expired on August 26, 2000, Mump-field argues, the trial court also did not have jurisdiction, on August 16, 2001, to extend his probationary term by two years. According to Mumpfield, the trial court lost jurisdiction over him on August 26, 2000, and all action the trial court purported to take subsequent to that date is void for lack of jurisdiction.

Initially, we note that the State argues that this issue is not properly before this Court for review because it was never presented to the trial court. However, this claim is jurisdictional and therefore not subject to waiver.

The record reflects that on August 10, 1999, Mumpfield was convicted of the unlawful distribution of a controlled substance, a violation of § 13A-12-211, Ala. Code 1975. On August 26, 1999, a sentencing hearing was conducted. The case action summary contains the following notation: “Sentenced to 10 yrs./split to serve 3 yrs. .reverse split postpone 1 year review. ... Supervised ... probation S years ... monitor 90 days.” (C. 8.) (Emphasis added.) Based on the case action summary, it is clear that Mumpfield’s probationary term was three years, not one year as Mumpfield alleges. The trial court ordered that the case be reviewed in one year, not that Mumpfield only had to serve one year on probation. Therefore, Mump-field’s probation did not end on August 26, 2000.

Moreover, the case action summary reflects that on August 16, 2001, after Mumpfield had served approximately two years of his three-year probationary term, the trial court extended Mumpfield’s probation by two years, pursuant to the probation officer’s request. See Rule 27.3(a), Ala.R.Crim.P. (“At any time during a term of probation, the court, for good cause shown, may extend the term of probation up to the maximum period permitted by law.”). In addition, the case action summary further reflects that Mumpfield was placed in delinquent status on August 23, 2001, for violating his probation, and his probation was not reinstated until June 13, 2002. (C. 3, 5-6.) “As a practical matter, the running of the period of probation must be considered tolled when a warrant of arrest for violation of probation is issued by the court.” Peoples v. State, 439 So.2d 774, 775 (Ala.Crim.App.1983). See also Owens v. State, 728 So.2d 673 (Ala.Crim.App.1998). Based on the case action summary, it is clear that Mumpfield was still on probation in September 2002, and that, therefore, the trial court had jurisdiction to revoke his probation on September 19, 2002.

II.

Mumpfield also contends that the trial court erred in not giving him credit for time he spent in custody before his probation was revoked.

The record supports Mumpfield’s contention. It indicates that the trial court did not give Mumpfield credit for any time he spent in custody before his probation was revoked, although it appears from the record that Mumpfield may have been incarcerated before his revocation. Although this claim was not raised in the trial court, for the reasons stated below, no objection was necessary in order for this Court to review the issue.'

Section 15-22-54(d)(3), Ala.Code 1975, provides, in pertinent part, that “[i]f revocation results in a sentence, of confinement, credit shall be given for all time spent in custody prior to revocation.” Although no Alabama case has addressed whether an issue relating to time served before revocation of probation must be raised in the trial court before it can be reviewed on appeal, both this Court and the Alabama Supreme Court have recognized that an issue relating to pretrial incarceration under a parallel statute, § 15-18-5, Ala.Code 1975, does not require an objection. Section 15-18-5 provides, in pertinent part, that “[u]pon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense.” In S.F.R. v. State, 598 So.2d 1003 (Ala.Crim.App.1991), aff'd, 598 So.2d 1006 (Ala.1992), this Court noted that “Section 15-18-5 has been held to mandate a remand to the trial court to determine ‘credit time’ even though the issue was not raised in the trial court.” 598 So.2d at 1005, citing Blake v. State, 462 So.2d 949 (Ala.1984)(Maddox, J., concurring specially)(“Procedurally, if the clerk failed to make the certification as the law required, the defendant should have raised the point at that time, but his failure to do so in a matter as grave as serving more time than the law requires should not be fatal.”). We see no material distinction between § 15-18-5 and § 15-22-54(d)(3) with respect to credit for time spent in custody; thus, we conclude that no objection in the trial court was necessary in order to preserve this issue for review.

Therefore, we remand this case to the trial court for it to credit Mumpfield with any time he spent in custody before his probation was revoked in accordance with § 15—22—54(d)(3), Ala.Code 1975. Due return shall be filed with this Court no later than 35 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

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

      . The report is not included in the record on appeal, but the case action summary reflects that it was filed.

      . In his argument on this issue, Mumpfield also mentions Rule 26.1 l(i)(l)(i), 'Ala.R.Crim. P., and states that "he should have been given a credit of fifteen dollars ($15) for each, day in custody against his fines.” (Mumpfield’s brief at p. 16.) If this statement was intended by Mumpfield to be an argument, it fails to comply with Rule 28(a)(10), Ala.R.App.P. In addition, this claim was never presented to the trial court and, therefore, is not properly before this Court for review. See, e.g., McIntosh v. State, 762 So.2d 388 (Ala.Crim.App.1999).


author: WISE, Judge.

text:
    Kenny Laroy BECKHAM v. STATE of Alabama.
    CR-01-2589.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Raymond A. Pierson, Mobile, for appellant.

      William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Kenny Laroy Beckham, appeals from the circuit court’s revocation of his probation. The record indicates that on October 21, 1999, Beckham -pleaded guilty to possession of cocaine. He was sentenced to five years’ imprisonment; the sentence was subsequently suspended and Beckham was placed on supervised probation for five years.

On August 14, 2002, Beckham’s probation officer filed a delinquency report, alleging that Beckham had violated the terms and conditions of his probation, namely, that he had been arrested and charged with a number of new offenses— distribution of crack cocaine, possession of cocaine and possession of marijuana. On September 13, 2002, the circuit court held a'probation-revocation hearing, after which Beckham’s probation was revoked. This appeal followed.

On appeal, Beckham contends that the circuit court’s revocation of his probation should be reversed because, he says, (1) the State failed to provide him with possible exculpatory information; (2) the State failed to provide him with notice of the charge pertaining to the sale of powder cocaine; (3) the State’s evidence supporting the charge of distribution of crack cocaine was based solely on hearsay; (4) the State’s proof that the substances were, in fact, crack cocaine, powder cocaine, and marijuana was baséd solely on hearsay; and (5) the circuit court failed to provide a written order or statement on the record of the evidence relied upon and the reasons for revoking probation.

First, Beckham claims that the State failed to provide him with possible exculpatory information. Specifically, he contends that the prosecutor refused to provide audiotapes of drug transactions involving Beckham. In Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), the Alabama Supreme Court held that the due-process requirements of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), provide that the State must disclose to a probationer the evidence to be used against him at the revocation hearing. Thus, a determination as to whether the State must disclose evidence to the probationer depends on whether the evidence will be used against him during the revocation hearing. Here, the audiotape made of the drug transaction between Beckham and the confidential informant was not used against Beckham in the revocation hearing; rather, Officer Patrick McKean testified that he listened to the transaction via a transmitter worn by the confidential informant. Thus, error, if any, in the State’s failure to provide the audiotape to Beckham was harmless. A probationer is entitled to minimum standards of due process, but not the higher standards of a formal trial. Williams v. State, 673 So.2d 829, 830 (Ala.Crim.App.1995).

Beckham next alleges that “the State failed to provide [him] with notice of the alleged sale of powder cocaine on June 15, 2002.” Beckham is correct in his assertion; however, our review of the record reveals that the trial court based its decision to revoke Beckham’s probation strictly on the three charges contained in the delinquency report, not upon additional charges mentioned during the revocation hearing. (R. 15 — 16, 22.) As a result, written notice of the claimed violations of parole used to revoke Beckham’s probation was provided, as required by Gagnon, Armstrong, and Wyatt v. State, 608 So.2d 762 (Ala.1992). Thus, this allegation also fails.

Beckham also claims that the State’s evidence supporting the June 8, 2002, charge of distribution of a controlled substance, specifically crack cocaine, was based solely on hearsay. While hearsay evidence is admissible in a revocation proceeding, it may not serve as the sole basis of the revocation. See Goodgain v. State, 755 So.2d 591 (Ala.Crim.App.1999); Clayton v. State, 669 So.2d 220, 222 (Ala.Crim.App.1995). As discussed above, Officer McKean testified that he listened to the drug transaction as it took place, via a transmitter worn by the informant, and then took into custody the crack cocaine that the informant purchased from Beck-ham. He stated that the tape contained the voice of three individuals, “[o]ur informant, another individual ..., and, from the informant, the Defendant.” (R. 31.) Officer McKean testified that he could not, at that particular time, tell that it was Beck-ham’s voice on the recording and that he relied on the informant to identify Beck-ham. Thus, the only evidence that Beck-ham was involved in the sale of crack cocaine was Officer McKean’s hearsay testimony that the informant told him that Beckham was the seller. Because hearsay testimony may not form the sole basis for the revocation of probation, the trial court erred when it revoked Beckham’s probation on this particular charge. However, because there was sufficient evidence that Beckham had violated his probation by committing other crimes, namely possession of cocaine and possession of marijuana, any error in using this charge is harmless.

Beckham next claims that the State failed to prove that the substances in question were, in fact, controlled substances, namely, crack cocaine, powder cocaine, and marijuana. This specific issue is raised for the first time on appeal.

“The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App.1992). This Court ‘has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing, actually be held.’ Puckett, 680 So.2d at 983.”

Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). This Court has also held that a defendant can raise for the first time on appeal the allegation that the trial court erred in failing to, advise him of his right to request an attorney to represent him during probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000). Because Beckham did not present this claim below, and because it is not one of the three exceptions that the Court has recognized that can be raised for the first time on appeal, nothing has been preserved for review.

Moreover, even had Beckham preserved the issue for review, “[t]he Supreme Court of Alabama, in Armstrong v. State, 294 Ala. 100, 104, 312 So.2d 620, 624 (1975), stated ‘on revocation hearings, the standard of proof is not reasonable doubt or preponderance of the evidence, but reasonable satisfaction from the evidence.’ Lindsey v. State, 768 So.2d 408, 412 (Ala.Crim.App.1998) (footnote omitted). Because probation itself is an act of grace, a probation-revocation hearing does not require all the formalities of a criminal trial. Peoples v. State, 807 So.2d 608, 609 (Ala.Crim.App.2001). Here, Officer McKean, a narcotics investigator with the Mobile Police Department, testified that based upon his knowledge and experience as a trained narcotics officer, the substances in question, were, in his opinion, cocaine and marijuana.

Lastly, Beckham asserts that the order revoking his probation was insufficient. Although this issue is raised for the first time on appeal, it is one of the three exceptions to the general preservation requirement and, therefore is properly before this Court for review.

Before probation can be revoked, the circuit court must provide a written order stating the evidence and the reasons relied upon to revoke probation in order to comply with the due-process requirements of Gagnon v. Scarpelli supra. Wyatt v. State, 608 So.2d 762 (Ala.1992); Armstrong v. State, supra. While the circuit court’s order on revocation adequately states the reasons for revoking Beckham’s probation, the order fails to adequately specify the evidence it relied upon. This Court has consistently held that “general recitations by the trial court to its consideration of the ‘testimony,’ ‘sworn testimony,’ or ‘relevant and competent evidence’ presented at the revocation hearing to be' insufficient for purposes of satisfying the ‘statement of the evidence relied upon’ requirement of Armstrong.” James v. State, 729 So.2d 864, 365 (Ala.Crim.App.1998).

Based on the foregoing, we remand this cause for the circuit court to enter a new order reflecting the evidence relied upon, as well as the reasons for revoking Beck-ham’s probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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

BASCHAB, J., concurs in the result.


author:
WISE, Judge.
      COBB, Judge,

text:
    Andre BONDS v. STATE of Alabama.
    CR-02-0045.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.
    Rehearing Denied Aug. 15, 2003.
    Jack A. Blumenfeld, Dothan; and Tommy Ray Scarborough, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, J., concurs.

McMILLAN, P.J., and SHAW, J., concur in the result.

COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

I respectfully dissent from the unpublished memorandum, affirming Andre Bonds’s conviction for receiving stolen property in the first degree, a violation of 13A-8-17, Ala.Code 1975. The indictment charged Bonds with receiving, retaining, or disposing of a 1987 GMC Safari van, which had a value of $4,000. Receiving stolen property in the first degree is defined as “Receiving stolen property which exceeds $1,000.00 in value.” § 13A-8-17, Ala.Code 1975. Receiving stolen property in the first degree is a Class B Felony.

The evidence established the following. On the night of September 21, 2002, Bonds was in possession of a stolen 1987 GMC Safari van. This van had been stolen from James A. White earlier that evening. While fleeing from police in this van after he was seen breaking into an automobile, Bonds lost control of the van and crashed, severely damaging the van. Concerning theft of the van, White testified that the van was worth approximately $4,000 before the crash and that it was a total loss after the crash. Specifically, White testified as follows regarding the van’s value.

“Q. [By defense]: When you said $4,000, did you just pull that number out of the air?
“A. No. That’s about what I had asked, you know, different car dealers or whatever. So depending on the year model and what it was, that’s what I guess it would be worth.
“Q. So you were guessing? You don’t know?
“A. No, sir, not a hundred percent sure I don’t.
“Q. You have nothing here to show as to the true value of that car other than your estimate?
“A. I don’t.
“Q. How long have you owned that van?
“A. It was my dad’s van. He got disabled, and he turned it over to me. So in my possession probably about two years and in his possession probably about three years.
“Q. And do you know how much your father paid for that van?
“A. No, sir, I don’t.
“MR. SCARBOROUGH: That’s all the questions I have, Your Honor.
“THE COURT: What did you say in your best judgment a reasonable market value of the van would be?
“THE WITNESS: $4000.
“THE COURT: You may step down.”

(R. 77-78.)

During presentation of the defense’s case, the trial court sustained the State’s objection to the defense’s attempt to elicit testimony from Frank Clark, who has owned an automobile paint and body shop for 18 years and who also has 3 years’ experience in automobile salvage, regarding the value of the van. The trial court reasoned that because Clark had never seen and inspected the van, he could not offer his opinion as to its value. This ruling foreclosed the possibility of presenting the jury with the option of finding Bonds guilty of receiving stolen property in the second degree, a lesser offense -to the offense of receiving stolen property in the first degree. Receiving stolen property valued between $100 and $1,000 constitutes the offense of receiving stolen property in the second degree; receiving stolen property in the second degree is a Class C Felony.

On appeal Bonds contends that the trial court erred in sustaining the State’s objection to Clark’s expert testimony because White had not provided any basis for his lay opinion that the van had a value of $4,000.

On appeal, the court affirms the rationale and ruling of the trial court. Citing Maxwell v. State, 620 So.2d 93, 98 (Ala.Crim.App.1992), the unpublished memorandum relies on the following in reaching its decision.

“[A] properly qualified expert witness may base his opinion upon ... facts of which he has firsthand knowledge ... Of course, it must be shown that the witness has sufficient knowledge of the facts to enable him to form an opinion, and he must testify as to the facts in his own knowledge upon which his opinion is based.”

(Quoting Hollis v. Scott, 516 So.2d 576, 580 (Ala.1987).) This court ruled that the trial court correctly found that because Clark had not examined the van he “did not possess sufficient knowledge of the facts to enable him to form an opinion.” Bonds v. State, 872 So.2d 212 (Ala.Crim.App.2003).

I respectfully dissent from the ruling of the unpublished memorandum. The question whether Clark qualified as an expert was not raised or addressed in the trial court. However, I believe sufficient evidence was presented to establish Clark as an expert as to the value of used automobiles and I believe sufficient facts were presented to allow Clark to give an opinion as to the value of a 1987 GMC Safari van with 110,000 miles on the odometer.

The following occurred during defense’s questioning of Clark.

“Q. Would you state your name for the Court, please?
“A. Frank Clark.
“Q. Mr. Clark, how are you employed?
“A. I have a paint and body shop and a salvage yard.
“Q. And how long have you had that paint and body shop and salvage yard?
“A. I’ve had the body shop about 18 years now, and I’ve had the salvage yard about 3.
“Q. In your business do you repair and sell vehicles?
“A. Yes, sir.
“Q. And you say you’ve been doing it about how many years?
“A. Eighteen.
“Q. Have you been certified or qualified as a automobile paint and body man?
“A. Yes, sir.
“Q. Where do you get your certification from?
“A. From school — went to ASC school through PBG school.
“Q. What I want to ask you about now, Mr. Clark, is a 1987 GMC Safari van. Have you had any experience with vehicles like that?
“A. Yes, sir.
“Q. And particularly with this one, the owner says it’s got a 110,000 miles on it. Do you have any idea or any estimate as to the value of that vehicle if it was sold today?
“MR. ADAMS: Judge, objection. Calls for speculation.
“THE COURT: I sustain the objection unless he saw and inspected this vehicle.
“MR. SCARBOROUGH: Judge, I’m asking him just about a vehicle like they say was stolen.
“THE COURT: Does he know the vehicle that is involved here?
“MR. SCARBOROUGH: He’s never seen it as far as I know.
“THE COURT: Sustained the objection.
“MR. SCARBOROUGH: That’s all I have of this witness.”

(R. 80-82.)(Emphasis added.)

“Where the opinion of an expert is elicited, the proper test to determine his qualifications is whether his knowledge of the matter would probably aid the trier of fact in its determination of the truth, Glaze v. Tennyson, 352 So.2d 1835 (Ala.1977), or if the witness has some special experience which enables him to form a more reliable opinion than the average person. C. Gamble, McElroy’s Alabama Evidence § 127.01(5) (3d ed.1977). Whether a particular witness will be allowed to testify as an expert is a matter within the sound discretion of the trial court and. will not be disturbed absent palpable abuse. Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982). Moreover, should an expert be without firsthand knowledge concerning data upon which his opinion is sought, the data may be supplied to him in the form of a hypothetical question. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (Ala.Civ.App.1974).”

Thurman v. Thurman, 454 So.2d 995, 999 (Ala.Civ.App.1984)(It was not error to allow Evelyn Hall, who “has been employed at a jewelry store in Florence, Alabama for fifteen years and [who] sells mostly new silverware but also disposes of used silverware,” “to testify as to the value of a used set of sterling silverware as the result of a hypothetical question which had been propounded to her.”).

I believe that in the instant case, even though Clark did not have firsthand knowledge of the van in question, the trial court abused its discretion when it ruled that Clark was unqualified to give his opinion as to the value of a 1987 GMC Safari van having 110,000 miles on the odometer. Having established the typical value of a 1987 GMC Safari van having 110,000 miles on the odometer, the parties would have then been entitled to elicit evidence concerning anything unique to White’s van that might have increased or lowered its value.

“ ‘The only predicate necessary for the receipt of opinion testimony of value is that the witness has had an opportunity to form a correct opinion of the value of the stolen property. State v. Johnson, 268 Ala. 11, 13, 104 So.2d 915 (1958); Tice v. State, 386 So.2d 1180, 1186 (Ala.Cr.App.), cert. denied, Ex parte Tice, 386 So.2d 1187 (Ala.1980); Alabama Code 1975, § 12-21-114. For purposes of offenses involving theft, “value” is defined as “(t)he market value of the property at the time and place of the criminal act.” Alabama Code 1975, § 13A-8-1(14).’ ”

Rheaume v. State, 624 So.2d 678, 682 (Ala.Crim.App.1993)(it was not error to allow manager of Jr. Food Store to give her opinion of the value of stolen VCRs; she “frequently rented out VCRs, which were identical to those stolen,” and thus had “sufficient ‘opportunity to form a correct opinion of the value of the stolen property’ ”)(quoting DeBruce v. State, 461 So.2d 889, 890 (Ala.Crim.App.1984)). Clark had sufficient expertise to offer his opinion as to the fair market value of a 1987 GMC Safari van with 110,000 miles on the odometer.

Based on the above, I would reverse Bonds’s conviction for receiving stolen property in the first degree and remand this cause for a new trial.

      . There was no discussion concerning Clark's qualifications as an expert on the value of used automobiles.


author: BASCHAB, Judge.

text:
    Bryan Edward SMITH v. STATE of Alabama.
    CR-02-0699.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.
    M. Adam Jones, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On March 15, 2001, the appellant, Bryan Edward Smith, was convicted of two counts of second-degree theft of property and one count of third-degree burglary. The trial court sentenced him to serve concurrent terms of five years in prison on each conviction, but suspended the sentences and ordered him to serve three years on supervised probation. On or about September 20, 2002, the appellant’s probation officer filed a motion to revoke and an “Officer’s Report on Delinquent Probationer.” After conducting a revocation hearing, the circuit court revoked the appellant’s probation. This appeal followed.

The appellant argues that, in its written revocation order, the circuit court did not adequately state the evidence upon which it relied and its reasons for revoking his probation, as required by Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). The State agrees and asks that we remand this case for the circuit court to enter an adequate written revocation order. The case action summary sheet in this case includes only the notation “Probation is revoked.” (C.R. 2.) That notation does not include a statement of the evidence upon which the circuit court relied in revoking the appellant’s probation or the circuit court’s reasons for revoking his probation. See Durr v. State, 807 So.2d 595 (Ala.Crim.App.2001). Accordingly, we remand this case to the circuit court with instructions that that court enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking the appellant’s probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 21 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On August 15, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: HARDING, Senior Justice. QUINCE,

text:
    Charles MURRAY, Petitioner, v. Jerry REGIER, etc., et al., Respondents.
    Nos. SC01-100, SC01-174.
    Supreme Court of Florida.
    Dec. 5, 2002.
    Rehearing Denied April 23, 2004.

      Bennett H. Brummer, Public Defender, and John E. Morrison, Assistant Public Defender, Miami, FL, for Petitioner.
    Richard E. Doran, Attorney General, and Richard L. Polín and Margaret Bre-nan, Assistant Attorneys General, Miami, FL, for Respondent.
   HARDING, Senior Justice.

We have for review Murray v. Kearney, 770 So.2d 273 (Fla. 4th DCA 2000), on the basis of express and direct conflict with this Court’s opinion in Alachua Regional Juvenile Detention Center v. T.O., 684 So.2d 814 (Fla.1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Murray also filed a petition for a writ of habeas corpus with the Court. We granted review of both matters and consolidated them for purposes of oral argument.

This case has a long and rather convoluted procedural history. Charles Murray is currently being detained in a state treatment center pending his commitment trial under the Jimmy Ryce Act (the Act). Murray was convicted in Dade County of attempted capital sexual battery on a minor child through a plea agreement in which he agreed to a term of incarceration followed by probation with the condition that he complete a sex offender treatment program. After Murray served the incar-cerative portion of his sentence, but prior to his release for probation, the State filed a petition to have Murray civilly committed as a sexually violent predator under the Act. Murray then filed a motion for specific performance of his criminal plea agreement, arguing that he should be released to serve the agreed-upon probation. After a hearing on the motion, the trial court denied Murray’s motion.

Murray then filed a petition for writ of habeas ’ corpus with the Fourth District Court of Appeal, seeking his release from the treatment center based upon an alleged violation of his constitutional right to due process. The Fourth District Court concluded that it did not have jurisdiction over the circuit court that ordered Murray’s pretrial detention under the Act and transferred the habeas petition to the Third District Court of Appeal. The Third District Court concluded that it lacked jurisdiction over the habeas petition because Murray was not confined in the court’s territorial jurisdiction and transferred the petition back to the Fourth District Court. The Fourth District Court then dismissed the petition, without prejudice to Murray to seek a written order on his motion for specific performance of the plea agreement and to seek review of that order in the Third District Court of Appeal. On Murray’s motion for rehearing, clarification, or certification, the Fourth District Court withdrew its order of dismissal and ordered the State to respond to Murray’s petition. The Fourth District Court then issued an opinion concluding that it did not have jurisdiction and once again dismissed Murray’s petition. The district court noted that habeas relief is unavailable where an appeal is available and concluded that Murray should have appealed the order of civil commitment, appealed the denial of his motion to enforce the plea, or moved to withdraw his plea. Upon Murray’s motion for rehearing, the Fourth District Court withdrew this opinion and issued a substitute opinion on November 1, 2000, which is the subject of the instant proceedings. See Murray v. Kearney, 770 So.2d 273 (Fla. 4th DCA 2000).

In the opinion under review, the Fourth District Court again stated that it did not have jurisdiction to consider the merits of Murray’s petition and dismissed it. See id. at 274. The district court stated that its habeas jurisdiction was limited to determining whether the challenged order was entered without jurisdiction or was illegal. The district court cited this Court’s opinion in Alachua Regional, which addressed the scope of review when the court entertaining a habeas petition does not have supervisory or appellate jurisdiction over the court that issued the order under challenge. See Murray, 770 So.2d at 274. Under this inquiry, the Fourth District Court determined that Murray was not entitled to relief because the trial court that issued the commitment order had jurisdiction over the cause and the order was legal. See id. at 274-75. The district court noted that Murray’s civil commitment was not a continuation of his incarceration from the plea because the criminal case involved a totally separate proceeding. The court further noted that Murray had not raised an argument that his confinement violates the requirements of the Act. See id. In a footnote, the district court characterized Murray’s claim as “alleging an equitable estoppel against the state pursuing civil commitment” because he had substantially changed his position by agreeing to the plea and sentence seven years before and that he had not received the bargained-for benefit of release from confinement. See id. at 275 n. 4.

After the district court dismissed Murray’s habeas petition, he filed a notice to invoke the discretionary jurisdiction of this Court based on express and direct conflict and also filed a habeas petition with this Court, arguing that his civil commitment order is illegal because it violates his due process right to specific performance of his plea agreement. We granted review in both cases and consolidated them for all appellate purposes. We resolve this matter on the basis that the Fourth District Court’s decision is in conflict with this Court’s opinion in Alachua Regional. For the reasons discussed below, we conclude that the Fourth District Court did not correctly apply Alachua Regional to the facts of the instant case.

In Alachua Regional, this Court explained the scope of review when a court entertaining a habeas corpus petition does not have supervisory or appellate jurisdiction over the court that issued the order or other process under challenge. See 684 So.2d at 816. Under such circumstances, the scope of the reviewing court’s jurisdiction is limited to whether the court that entered the order was without jurisdiction to do so or whether the order is void or illegal. Id. “The reviewing court may not discharge the detainee if the detention order is merely defective, irregular, or insufficient in form or substance.” Id.

In the instant case, the Fourth District Court dismissed Murray’s habeas petition, concluding that it “[did] not have jurisdiction.” Murray, 770 So.2d at 274. The district court concluded that under Ala-chua Regional Murray’s commitment order was not illegal because the trial court had jurisdiction over the matter and the order did not violate the procedural requirements of the Act. See id. at 274-75.

Murray contends that no court has ever considered the merits of his constitutional claim, that is, that the civil commitment violates his constitutional right to due process because the plea agreement in his criminal case specified that he would receive sex offender treatment while on probation supervision in the community. The procedural history of this case, recounted above, indeed reflects that Murray has been frustrated in his efforts to have the merits of his habeas claim considered by some court. While the scope of habeas inquiry by a court that does not have supervisory or appellate jurisdiction over the court which issued the order under challenge “is limited to whether the court that entered the order was without jurisdiction to do so -or whether the order is void or illegal,” Alachua Regional, 684 So.2d at 816, this limited inquiry does not foreclose constitutional challenges to pre-tnal detention or leave a petitioner like Murray without an avenue to bring such a challenge. ' Under the Fourth District Court’s interpretation of Alachua Regional, a claim of illegality only encompasses the statutory or procedural requirements of the Act, and not constitutional claims like Murray’s. As this Court explained in Haag v. State, 591 So.2d 614, 616 (Fla.1992), while the right to habeas relief “is subject to certain reasonable limitations consistent with [its] full and fair exercise,” it “should be available to all through simple and direct means, without needless complication or impediment, and should be fairly administered in favor of justice and not bound by technicality.” Further, “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); see also In re Beverly, 342 So.2d 481 (Fla.1977) (recognizing that civil commitment to a mental institution involves a deprivation of liberty and thus due process guarantees must be provided).

In light of these principles, we conclude that the Fourth District Court has interpreted the term “illegal” too narrowly. Under Alachua Regional, the reviewing court may discharge the detainee if the detention order is “void or illegal,” but not if the order “is merely defective, irregular, or insufficient in form or substance.” 684 So.2d at 816. A challenge to the form or substance of an order implies that something is lacking in the order or that it contains an imperfection or shortcoming. Alachua Regional followed a long line of cases that recognized similar limitations on a circuit court’s habeas review. See, e.g., State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973) (holding that circuit court may entertain habeas corpus proceeding and discharge petitioner held under an illegal or void order issued by a court over which there is no appellate jurisdiction, but may not review “the legal sufficiency of the order”); Janes v. Heidtman, 272 So.2d 207, 208 (Fla. 4th DCA 1973) (permitting reviewing court without appellate jurisdiction to discharge a person based on illegality of order, but not upon a determination of irregularity, insufficiency in form or substance or for other matters going to the propriety of the order). Under this precedent, a reviewing court without supervisory or appellate jurisdiction over the court that issued the detention order may not entertain a challenge to the form of the order. In approving the district court’s determination that the detention order in Alachua Regional was illegal, we noted that the “court did not pass on the sufficiency of the form or substance of the order or any other matter going to the propriety of the order.” 684 So.2d at 816-17. Even under the limited inquiry of Alachua Regional, the reviewing court is “permitted to view the detention order in light of the relevant facts and law.” Id. at 817. If the challenged detention order was determined to be in violation of the petitioner’s constitutional guarantee of due process, then the order would clearly be “illegal” and not merely defective, irregular, or insufficient in form or substance. See also Valdez v. Moore, 745 So.2d 1009, 1012 (Fla. 4th DCA 1999) (granting petition for writ of habeas corpus based on a due process challenge by petitioners detained under the Jimmy Ryce Act without a probable cause hearing).

The State argues that Murray should simply wait until the civil commitment process is complete and then raise his constitutional challenge on appeal. However, as Murray points out in his brief, he has already been held in pretrial detention for more than three years after his criminal incarceration expired. Such lengthy pretrial detentions are apparently not uncommon in civil commitment proceedings under the Act, at least up to this point in time. See The Florida' Legislature, Office of Economic & Demographic Research, Criminal Justice Sexually Violent Predator Program, Time from Referral to Trial to Commitment or Release (visited November 20, 2002) <http://wmv.state.fl.us/edr/Conferences/ Criminal Justicelpredator.htm > (statistical chart indicating that the average time from referral to sexually violent predator program to trial for individuals committed under the Act is 683 days). A detainee should not be foreclosed from raising a constitutional claim pretrial if the resolution of that claim could end a lengthy pretrial detention. Indeed, the traditional purpose of the writ of habeas corpus is to furnish a speedy hearing and remedy to one whose liberty is unlawfully restrained. See Janes, 272 So.2d at 208; see also Leichtman v. Singletary, 674 So.2d 889, 892 & n. 1 (Fla. 4th DCA 1996) (recognizing that although rule 3.850 “completely superseded habeas corpus as the means of collateral attack of a judgment and sentence” habeas remains available to test pretrial detention).

Because Murray is being detained in the territorial jurisdiction of the Fourth District Court of Appeal and he raises constitutional issues regarding his detention, the Fourth District Court was the proper court to rule upon his petition for habeas corpus. See Alachua Regional, 684 So.2d at 816 (recognizing that prisoner should file habeas petition in the district court which has territorial jurisdiction over the prison where the prisoner is detained and noting that proper respondent in a habeas petition is the party that has actual custody and is in a position to physically produce the prisoner); Valdez v. Moore, 745 So.2d 964 (Fla. 2d DCA 1999) (declining to exercise jurisdiction over habeas petition challenging constitutionality of pretrial detention under Jimmy Ryce Act where petitioners were detained in the territorial jurisdiction of the Fourth District Court of Appeal and transferring petition to the Fourth District Court); see also § 79.01, Fla. Stat. (2000) (“[T]he court, justice, or judge to whom such application is made shall grant the writ forthwith, against the person in whose custody the applicant is detained.”). Further, as explained above, Murray’s constitutional claim questions the legality of his civil commitment order and thus falls within the parameters of Alachua Regional and should have been addressed by the Fourth District Court.

Despite our conclusion that the Fourth District Court should have considered the merits of Murray’s claim that his civil commitment order is illegal because it violates his constitutional right to due process, we conclude that Murray is not entitled to relief on this claim. The plea agreement was part of a criminal proceeding against Murray whereas the commitment order was entered in a civil proceeding based upon clinical evaluations of Murray’s present state. In February and March 1999, two psychologists evaluated Murray and concluded that he suffers from an antisocial personality disorder and should be considered a sexually violent predator as defined by the Act. Based upon these evaluations and Murray’s previous conviction of a sexually violent offense, the State filed a petition for involuntary civil commitment under the Act. After reviewing the State’s petition and its attachments, the .circuit court determined that there was probable cause to believe that Murray is a sexually violent predator as defined in the Act and is eligible for commitment. Thus, Murray’s involuntary commitment cannot be considered continued punishment for his criminal offense, but was based upon clinical evaluations of his present state. While Murray’s previous conviction of a sexually violent offense satisfies one of the statutory criteria of a sexually violent predator, the other requirement is not related to his previous conviction.

In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the United States Supreme Court addressed several constitutional challenges to a similar Kansas statute which provides for the involuntary commitment of sexually violent predators. The Supreme Court concluded that the Kansas statute was civil, not punitive, and thus did- not violate substantive due process, ex post facto, or double jeopardy guarantees. The Supreme Court recognized that commitment as a sexually violent predator constitutes a separate proceeding from the criminal action that was based on the individual’s sexually violent offense. In rejecting Hendricks’ claim that his commitment as a sexually violent predator violates the constitutional prohibition on double jeopardy, the Supreme Court noted “[i]f an individual otherwise meets the requirements for involuntary civil commitment, the State is under no obligation to release that individual simply because the detention would follow a period of incarceration.” Id. at 370, 117 S.Ct. 2072. Further, in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), the Supreme Court expressly recognized that civil commitment could follow the expiration of a prison term without offending double jeopardy principles. The Supreme Court reasoned that “there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.” Id. at 111-12, 86 S.Ct. 760.

Thus, we conclude that any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care,- and treatment. Consequently, Murray’s constitutional claim is without merit and he was not entitled to release from detention on this basis.

For the reasons expressed above, we quash the decision below but conclude that Murray has not presented a claim that warrants dismissal of his commitment under the Act. We also deny Murray’s petition to this Court for habeas corpus and remand this cause to the district court with direction that habeas relief be denied.

It is so ordered.

SHAW, WELLS, and LEWIS, JJ., concur.

QUINCE, J., dissents with an opinion, in which ANSTEAD, C.J., concurs.

PARIENTE, J., recused.

QUINCE,

dissenting.

I disagree with the majority’s determination that the Third District Court of Appeal did not have jurisdiction to address Murray’s petition for writ of habeas corpus. The Third District was the district court with appellate jurisdiction over the circuit court that entered the order of confinement; therefore, the Third District has jurisdiction in this matter.

The majority requires that the writ of habeas corpus be filed in the Fourth District Court of Appeal solely because Murray was confined within the territorial jurisdiction of the Fourth District at the time of filing the petition, relying on Alachua Regional Juvenile Detention Center v. T.O., 684 So.2d 814, 816 (Fla.1996). In Alachua Regional, this Court held that an appellate court may not consider a defendant’s writ of habeas corpus when the defendant is confined outside the territorial jurisdiction of that appellate court, reasoning that article V, section 4(c) of the Florida Constitution restricted the appellate court’s subject matter jurisdiction. Article V, section 4(c) provides:

Each district court of appeal shall appoint a clerk and a marshal who shall hold office during the pleasure of the court and perform such. duties as the court directs. Their compensation shall be fixed by general law. The marshal shall have the power to execute the process of the court throughout the territorial jurisdiction of the court, and in any county may deputize the sheriff or a deputy sheriff for such purpose.

In Alachua Regional, this Court interpreted article V, section 4(c) as limiting the marshal’s power to the physical boundaries of the district court’s territorial jurisdiction. However, the second clause of the last sentence of article V, section 4(c) permits the marshal to deputize the sheriff or a deputy sheriff to execute the process of the court in any county. This clause, setting forth the powers and authority of the marshal, does not limit the appellate court’s jurisdiction; to the contrary, it authorizes the marshal to deputize a sheriff or deputy sheriff in any county for the purposes of executing that appellate court’s judgment.

Furthermore, article V, section 4(b)(3) of the Florida Constitution explicitly authorizes a district court to consider a petition for writ of habeas corpus challenging the confinement of the petitioner when the circuit court within that district court’s territorial jurisdiction entered the order of confinement. This provision states, in pertinent part, that a “district court of appeal or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof or before any circuit judge within the territorial jurisdiction of the court.”

In addition, Florida Rule of Appellate Procedure 9.141(c)(2) requires a defendant seeking a belated appeal or alleging ineffective assistance of appellate counsel to file a petition for writ of habeas corpus in the appellate court that heard the defendant’s direct appeal. See Richardson v. State, 624 So.2d 804 (Fla. 1st DCA 1993). There is no logical reason to require a defendant filing a petition for writ of habe-as corpus which challenges an order of confinement as illegal to be treated differ-_ entiy. Although a defendant was. required to file a writ of habeas corpus in the county where he or she was incarcerated before the adoption of Criminal Procedure Rule No. 1 (now Florida Rule of Criminal Procedure 3.850), see State v. Broom, 523 So.2d 639, 640 (Fla. 2d DCA 1988), after the United States Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the flood of petitions that decision prompted, this Court adopted rules for postconviction relief to simplify and expedite the postconviction process. See Roy v. Wainwright, 151 So.2d 825 (Fla.1963). Under these new rules, a defendant is required to file a motion for postconviction relief in the same court that imposed the judgment or sentence that the defendant is collaterally attacking as the court that tried the defendant is considered the “best equipped” to consider that defendant’s collateral attack. See Leichtman v. Singletary, 674 So.2d 889, 892 (Fla. 4th DCA 1996). For the same reasons this Court has required a defendant to seek postcon-viction relief in the same court that imposed the conviction and sentence, it should also require the defendant to seek habeas relief in the appellate court having territorial jurisdiction over the circuit court that issued an order of confinement or commitment.

Finally, to require a defendant to seek habeas relief based on a challenge to his or her confinement or commitment in the jurisdiction where he or she is confined would also put an unfair burden on those jurisdictions where such facilities are located, as in the case of Jimmy Ryce Act confinements, because most of the individuals are confined in one facility.

For these reasons, I would recede from Alachua Regional to the extent that it relies on article V, section 4(c) for its conclusion that the district courts of appeal lack “the constitutional power to issue a writ directed to a person outside the district court’s territorial jurisdiction.” 684 So.2d at 816.

I also disagree with the majority’s determination that Murray is not entitled to habeas relief. Whether or not the defendant is entitled to habeas relief is an issue better left to the court with jurisdiction over this habeas petition — the Third District. Moreover, the Third District also has jurisdiction over the trial court that entered the judgment and sentence that included the terms of probation. I would send this case to the Third District to answer all questions presented in this ha-beas petition.

ANSTEAD, C.J., concurs.

      . See §§ 394.910-394.930, Fla. Stat. (2000). As enacted in 1998, the Jimmy Ryce Act appeared in chapter 916, which is entitled “Mentally Deficient and Mentally Ill Defendants.” See §§ 916.31-916.49, Fla. Stat. (Supp.1998); ch. 98-64, at 445-455, Laws of Fla. After the Act went into effect on January 1, 1999, it was transferred to chapter 394, which is entitled "Mental Health.” See ch. 99-222, at 1372, Laws of Fla.

      . At the time that he filed his habeas petition, Murray was being held in the Martin County Treatment Center, which is under the territorial jurisdiction of the Fourth District Court of Appeal. Murray was subsequently transferred to the South Bay Correctional Facility, where he remains detained.

      . The pretrial detention order was entered by the circuit court in Dade County, which has jurisdiction over Murray's commitment proceeding. This court is under the appellate jurisdiction of the Third District Court of Appeal.

      . Murray was scheduled to be released from prison on March 1, 1999.

      . Once this Court accepts jurisdiction over a cause in order to resolve a legal issue in conflict, we have jurisdiction over all issues. See Savoie v. State, 422 So.2d 308 (Fla.1982). Our authority to consider issues other than those upon which jurisdiction is based is discretionary and is exercised only when these other issues have been properly briefed and argued and are dispositive of the case. See Savona v. Prudential Ins. Co. of America, 648 So.2d 705, 707 (Fla.1995). We consider Murray's constitutional claim under this authority-

      . Section 394.912(10), ‘ Florida Statutes (2000), defines a sexually violent predator as any person who "[h]as been convicted of a sexually violent offense” and who "[s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.”

      . Article V, section 5(b) of the Florida Constitution, a similar provision addressing the circuit court's jurisdiction,1 has no corresponding limitation.


author:
PER CURIAM.
      PARIENTE, J., ANSTEAD, C.J.,

text:
    Kenneth Allen STEWART, Appellant, v. STATE of Florida, Appellee.
    No. SC01-1998.
    Supreme Court of Florida.
    Sept. 11, 2003.
    Rehearing Denied April 20, 2004.
    James Marion Moorman, Public Defender, and A. Anne Owens, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appel-lee.
   PER CURIAM.

Appellant, Kenneth Allen Stewart, appeals his sentence of death after his resen-tencing. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const. We affirm.

I. FACTUAL BACKGROUND

The underlying facts are detailed in our decision on Stewart’s direct appeal. See Stewart v. State, 558 So.2d 416, 418 (Fla.1990). The essential facts, however, are as follows. Stewart walked into a bar and convinced one Ruben Diaz to give him a ride in his car. Once in the car, Stewart pulled a gun and ordered Diaz to drive to a wooded area. He then ordered Diaz out of the car and made him lie on the ground with his hands on his head. After removing the cash from Diaz’s wallet, Stewart shot Diaz twice in the head, killing him. He then set Diaz’s car on fire to destroy the fingerprints.

Stewart was initially sentenced to death. We reversed that sentence because the trial court failed to give a requested instruction on the statutory mitigating circumstance of impaired capacity even though the defense presented evidence on that defense. See Stewart, 558 So.2d at 416. On remand, Stewart was resentenced to death and we affirmed that sentence. See Stewart v. State, 620 So.2d 177 (Fla.1993). During postconviction proceedings, Stewart and the State agreed that Stewart would waive any. potential guilt-phase claims and the State would agree to a new sentencing. By a seven-to-five vote, the jury again recommended a sentence of death. After conducting a Spencer hearing, the trial judge sentenced Stewart to death. The court found three aggravating circumstances: (1) Stewart previously had been convicted of violent felonies (one first-degree murder, two attempted murders, an aggravated assault, and two robbery convictions); (2) he was under a sentence of imprisonment at the time of the murder; and (3) he committed the murder for pecuniary gain. The court found the two statutory mitigating factors — his extreme mental disturbance at the time of the shooting and his inability to conform his conduct to the requirements of the law. The judge gave “some” weight to both factors even though she concluded that Stewart’s mental disturbance was not extreme and his impairment was not substantial. The court also found and weighed nonstatutory mitigation.

II. ISSUES ON APPEAL

Stewart raises five issues on appeal. We summarily reject the first three because we have repeatedly addressed the same issues. Therefore, we address only claims • 4 and 5, asserting that the trial court failed to properly weigh the mitigation and that Stewart’s death sentence is disproportionate.

A. The Trial Court’s Weighing of Mitigation

Appellant argues that the trial court failed to give enough weight to the two statutory mental mitigators it found. We review this claim under an abuse of discretion standard. Blanco v. State, 706 So.2d 7, 10 (Fla.1997). The mental health experts presented conflicting testimony about the existence and extent of the two statutory mental mitigators. The defense’s experts testified that Stewart’s mental condition was “extreme” and “substantial,” while the State’s expert testified it was not. The trial court found the two statutory mental mitigators, but gave them only “some” weight.

Stewart essentially wants us to reevaluate the evidence and assign different weight to the mitigating factors. As we have said before, however:

[E]xpert testimony alone does not require a finding of extreme mental or emotional disturbance. Even uncontro-verted opinion testimony can be rejected, especially when it is hard to reconcile with the other evidence presented in the ease. As long as the court considered all of the evidence, the trial judge’s determination of lack of mitigation will stand absent a palpable abuse of discretion.

Foster v. State, 679 So.2d 747, 755 (Fla.1996) (citations omitted).

The sentencing order shows that the trial court considered, but ultimately rejected, the defense expert’s testimony about the severity of Stewart’s mental condition. Under Foster, the trial court could have totally rejected the statutory miti-gators. Instead, however, it found that the two statutory mental mitigators existed but reduced the weight given to them based on its findings about the severity of Stewart’s mental condition. As this Court stated in Quince v. State, 414 So.2d 185, 187 (Fla.1982), “[t]he trial judge was not unreasonable in failing to give great weight to this mitigating factor, which he nevertheless did find to exist, in the light of contradictory evidence.” Likewise, in light of the contradictory evidence presented to the trial court below, it did not abuse its discretion by reducing the weight given to the two statutory mental mitigators from “full weight” to “some weight.”

B. Proportionality

Stewart finally argues that the death penalty is disproportional in this case compared with other capital cases because of the substantial mitigation he presented. The trial court found three aggravating factors and 25 mitigating factors, including two statutory mitigators.

We find that Stewart’s sentence of death is proportional. The aggravating factors were: that Stewart had been convicted of a prior violent felony (great weight); that he was under a sentence of imprisonment when the crime was committed (modest weight); and that the capital felony was committed for pecuniary gain (great weight). The previous violent felony aggravator comprised several crimes, including another murder, two attempted murders, armed robbery, attempted armed robbery, and aggravated assault. . The mitigating factors consisted of the two statutory mental mitigators, i.e., extreme mental disturbance at the time of the murder and inability of Stewart to conform his conduct to the requirements of the law at the time of the murder. The trial court also found 23 nonstatutory mitigating circumstances. However, as we have repeatedly held, proportionality “is not a comparison between the number of aggravating and mitigating circumstances.” Porter v. State, 564 So.2d 1060, 1064 (Fla.1990); see also Ocha v. State, 826 So.2d 956, 965 (Fla.2002); Philmore v. State, 820 So.2d 919, 939-40 (Fla.2002); Morris v. State, 811 So.2d 661, 668 (Fla.2002). Rather, it is a qualitative review of each aggravating and mitigating circumstance. Ocha, 826 So.2d at 965. This qualitative analysis is then compared with other capital cases to ensure that the death penalty is being applied uniformly across the State. Bradley v. State, 787 So.2d 732, 745 (Fla.2001).

Here, appellant’s sentence of death is proportional to- other cases where the death sentence has been applied. See Pope v. State, 679 So.2d 710 (Fla.1996) (affirming death sentence with aggravators of previous violent felony conviction and pecuniary gain, both statutory mental miti-gators, and nonstatutory mitigators). Moreover, on Stewart’s direct appeal to this Court following his last resentencing for this same murder, we found Stewart’s death sentence to be proportional. Stewart, 620 So.2d at 180 n. 2.

III. CONCLUSION

For the reasons stated above, we affirm Stewart’s sentence of death.

It is so ordered.

WELLS, PARIENTE, LEWIS, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs with an opinion.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

QUINCE, J., recused.

PARIENTE, J.,

concurring.

I concur fully in the majority opinion in this case, and write separately only to address Stewart’s claim that the trial court erred in declining to instruct the jury on each of his thirteen proposed nonstatutory mitigators. I reiterate that

in a proper case, in which the evidence is insufficient to warrant an instruction on the statutory mitigating circumstances contained in section 921.141(6), Florida Statutes (2002), an instruction that the jury may consider a specific circumstance in mitigation may nonetheless be warranted. Whereas each of the “statutory” aggravators is specifically enumerated for the jury, the standard catch-all instruction on mitigation provides no guidance on how to determine what factors are mitigating. In particular, facts indicating emotional disturbance, extreme duress, or impaired capacity which fall short of the threshold for statutory mitigation remain potentially significant considerations in a jury’s advisory sentencing decision.

Belcher v. State, 851 So.2d 678, 687 (Fla. 2003) (Pariente, J., specially concurring). In this case, the trial ‘court gave the standard instruction on the statutory miti-gators of extreme emotional disturbance and impaired capacity as well as the catchall instruction. Under these circumstances, I conclude that, as in Belcher, the trial court did not err in refusing to instruct on the “virtual laundry list of proposed nonstatutory mitigation,” which “would not have provided greater assistance to the jury than the catch-all instruction alone.” Id.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I concur in the majority opinion except for the summary rejection of the defendant’s first three claims on appeal. For the reasons I expressed in my opinion in Downs v. Moore, 801 So.2d 906, 918-922 (Fla.2001), I disagree with the majority’s summary rejection of the defendant’s claim that the brief instruction on nonstatutory mitigation provided adequate guidance to the jury as to what it might properly consider during its deliberations. Further, for the reasons explained in my opinion in Duest v. State, 855 So.2d 33, 38, 2003 WL 21467248 (Fla. June 26, 2003), I also cannot agree with the majority’s decision to summarily reject the defendant’s claims based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Spencer v. State, 615 So.2d 688, 691 (Fla.1993) (requiring trial court to conduct separate evidentiary hearing after jury's recommendation to (a) give the defendant, his counsel, and the State an opportunity to be heard; (b) afford, if appropriate, both the State and the defendant an opportunity to present additional evidence; and (c) allow both sides to comment on or rebut information in any pre-sentence or medical report).

      . Stewart first argues that he was entitled to a special jury instruction on the nonstatutory mitigation presented. , We have repeatedly rejected this argument. See, e.g., San Martin v. State, 705 So.2d 1337, 1349 (Fla.1997). Second, Stewart argues that death-qualifying ag-gravators must be alleged in the indictment and individually found by a jury. We have repeatedly rejected this argument as well. See, e.g., Kormondy v. State, 845 So.2d 41 (Fla.2003). Finally, Stewart argues that Florida’s death penalty statute is unconstitutional because it pérmits a jury recommendation of death by a bare majority vote. When the defendant has been convicted of a prior violent felony, as Stewart has, we have rejected the argument that a jury's recommendation of death must be unanimous. See, e.g., Doorbal v. State, 837 So.2d 940, 963 (Fla.) cert. denied, - U.S. -, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003).

      . In a footnote, Stewart argues that the State's expert had a conflict of interest because he was a witness for the defense in the original penalty phase. Stewart admitted that this issue was not preserved for review. Accordingly, this subissue is procedurally barred. See Lugo v. State, 845 So.2d 74 (Fla.2003) (nonfundamental errors are procedurally barred unless they have been preserved for review).

      . These were: Stewart's physical abuse as a child (some weight); his witnessing of repeated physical brutality against family members and others; the normality of violence in his life (some weight); gross emotional stress between the ages of three and twelve (some weight); Stewart's inability to adapt to his surroundings (some weight); the absence of an acceptable role model in his life (modest weight); his abandonment by his mother at age three (little additional weight); abuse by his aunt while in her care (some weight); the absence of his mother during his tender years (little additional weight); the absence of a father during his tender years (modest weight); inculcation with alcohol abuse as a child (modest weight); intoxication at the time of the Diaz murder and the other murder (modest weight); his learning at age twelve that the man he believed to be his father was actually his stepfather (modest weight); low-normal intelligence (little weight); eighth-grade education (little weight); homelessness -at age 20 (little weight); long-term alcohol abuse (modest weight); Stewart’s crippling, lifelong obsession with the mother who abandoned him (little additional weight); mental illness for two preceding" generations in his family and his' own mental illness in his early twenties evidenced by suicide attempts, inability to function normally, homelessness, and criminal behavior (no additional weight); his remorse for the killing of Diaz (modest weight); his compassion for others while incarcerated (modest weight); an interest in spirituality developed during incarceration (modest weight); his sentencing on unrelated charges to 1-30 years in prison with an additional 30 years to be served concurrently (modest weight); and his good prison record (little weight).