author: SHAW, Judge.

text:
    David Michael JOLLY v. STATE of Alabama.
    CR-00-2693.
    Court of Criminal Appeals of Aabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 24, 2003.
    Certiorari Denied March 28, 2003 Alabama Supreme Court 1020712.

      John David Floyd, Gadsden; and Marcus W. Reid, Anniston, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, David Michael Jolly, was convicted of two counts of reckless manslaughter, violations of § 13A-6-3(a)(l), Ala.Code 1975. He was sentenced to 20 years’ imprisonment for each conviction, the sentences to run consecutively.

The evidence adduced at trial revealed the following. On December 23, 1999, at approximately 11:00 p.m., Jolly was driving his Dodge pickup truck on Highway 431 when he struck head-on a Ford Mustang automobile driven by Ashley Doyle. Doyle and his passenger, Josh Gaither, died as a result of injuries they sustained in the crash. A witness for the State testified that he observed Jolly drink several beers and some Jack Daniel’s whiskey the night of the incident. Several witnesses at the scene testified that they had observed Jolly after the crash; that he appeared shaken and unsteady; and that he smelled of alcohol. None of the witnesses who testified that they actually heard the collision heard any noises, such as tires squealing, that sounded like brakes were applied before the impact.

Several law-enforcement officers testified that they smelled alcohol on Jolly’s breath and that they saw empty beer bottles in the floorboard of Jolly’s truck. Jolly, who was not asked to perform any field sobriety tests at the scene, did consent to and gave blood and breath tests several hours after the crash. Jolly was arrested for driving under the influence of alcohol and was taken to the Calhoun County jail. Shortly after arriving at the jail, Jolly waived his Miranda rights and, in a recorded interrogation, admitted to having had “two or three beers” several hours before the incident, but he claimed that the beer bottles found in his truck belonged to someone else. (R. 323.) Jolly also stated that he “had dozed off and [he] apparently went on the wrong side of the road and hit another car.” (R. 318.) At trial, Jolly admitted to having had “a couple of beers” several hours before the crash, but testified that he was not intoxicated and that he must have fallen asleep shortly before he hit the Mustang.

I.

Jolly first argues that the trial court erred in not instructing the jury on criminally negligent homicide as a lesser-included offense to murder, the offense for which he was indicted; an instruction he claims was warranted because, according to Jolly, there was evidence to support the giving of that instruction. The State contends that Jolly’s objection at trial did not raise the grounds he argues on appeal. We agree with the State.

After the trial court had charged the jury, Jolly raised the following objection to the trial court’s refusal to give his requested jury charge on criminally negligent homicide:

‘Tour Honor, for the record, the defendant would except to the failure of the Court to give the criminally negligent homicide charge [as] the lesser included at the end of Defendant’s requested jury instruction number 7, which would request that the Court charge on § 13A-6-4, criminally negligent homicide and in relation thereto, defendant’s requested jury instruction number 9, which is also a distinction on the law between the mental culpability requirement of criminally (sic) negligence, as opposed to manslaughter and recklessness, which would also support a charge of criminally negligent homicide. I think that’s all, Your Honor.”

(R. 764-65.)

Nowhere in his objection at trial did Jolly argue that there was evidence before the jury that would justify the giving of that instruction. See Wilkerson v. State, 686 So.2d 1266, 1274 (Ala.Crim.App.1996). In fact, Jolly did not state any grounds in his objection to the trial court’s refusal to give the lesser-included-offense instruction. See Rule 21.3, Ala.R.Crim.P. See also Miller v. State, 673 So.2d 819 (AIa.Crim.App.1995); Greenhill v. State, 746 So.2d 1064 (Ala.Crim.App.1999). To the extent that Jolly did arguably state a ground for his objection, it did not address whether the evidence supported the lesser-included-offense instruction; rather, it addressed the distinction between degrees of culpability, i.e., recklessness or negligence. The statement of specific grounds of objection to a jury instruction at trial waives all other grounds. See Raper v. State, 584 So.2d 544, 546 (Ala.Crim.App.1991). See also Miller v. State, 645 So.2d 363, 366 (Ala.Crim.App.1994); and Wasp v. State, 647 So.2d 81, 84-85 (Ala.Crim.App. 1994). Therefore, Jolly failed to preserve this issue for our review.

II.

Second, Jolly argues that the trial court erroneously denied his motion to suppress the evidence seized from his truck pursuant to a search warrant because, he says, “the search warrant ... was issued on the basis of an affidavit that was clearly a ‘bare bones’ affidavit.” (Jolly’s appellate brief at p. 40.) The State correctly notes that the affidavit and search warrant Jolly complains of are not included in the record on appeal; therefore, this issue is not properly before this Court on appeal. See Williams v. State, 794 So.2d 441, 442 (Ala.Crim.App.2000); Crenshaw v. State, 563 So.2d 16, 17 (Ala.Crim.App.1989); Copeland v. State, 455 So.2d 951, 955 (Ala.Crim.App.1984). It is the appellant’s duty to check the record and to ensure that a complete record is presented on appeal. See T.T.J. v. State, 716 So.2d 258, 260 (Ala.Crim.App.1998).

III.

Third, Jolly argues that the trial court denied him his Sixth Amendment right to counsel at trial. Specifically, Jolly contends that he was denied the right to counsel when the trial court ordered one of his three attorneys out of the courtroom following the jury verdict, and then instructed that attorney not to return to his courtroom, not even for the sentencing hearing in the instant case. The State correctly notes that Jolly did not object when the trial court entered its ruling or during the sentence proceeding and, thus, that he failed to preserve this issue for our review. See Trawick v. State, 431 So.2d 574, 578-79 (Ala.Crim.App.l983)(“The grounds urged on a motion for a new trial must ordinarily be preserved at trial by timely and specific objections.”). See also Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997) (“Even constitutional claims may be waived on appeal if not specifically presented to the trial court.”); Mester v. State, 755 So.2d 66, 69 (Ala. Crim.App.1999); Harris v. State, 794 So.2d 1214 (Ala.Crim.App.2000).

We note, however, that even if this issue had been preserved for review, Jolly was not actually denied his right to counsel. Three attorneys represented Jolly throughout the proceedings, and only one of those was barred from the courtroom during Jolly’s sentencing hearing. Compare with Pratt v. State, 851 So.2d 142 (Ala.Crim.App.2002)(defendant was without counsel at sentencing hearing where trial court allowed counsel to withdraw before handing down sentence). See also Steeley v. State, 622 So.2d 421, 425 (Ala. Crim.App.l992)(it is well settled that, unlike the right to the assistance of counsel, the right to counsel of one’s choice is not absolute). The two remaining attorneys had been substantially involved in the trial — conducting seven of the eight direct examinations during the defense’s case-in-chief and nearly half of the examinations during the State’s case-in-chief and the hearing on the motion for youthful-offender status, as well as making numerous motions and objections throughout the proceedings. Therefore, Jolly was not denied his right to counsel.

IV.

Fourth, Jolly argues that the trial court erroneously denied his motion for youthful-offender status. Specifically, Jolly contends that the trial court’s decision to deny him youthful-offender status was “arbitrary” and was made “without some examination of any facts to show that the defendant would be ineligible for youthful offender treatment.” (Jolly’s appellate brief at p. 52.) He contends that “[tjhere is nothing in the record to indicate that the trial court based its decision on other factors in addition to the nature of the crime charge[d], but that youthful offender status was denied solely because of the nature of the crime charged.” (Jolly’s appellate brief at p. 52.)

In Mansel v. State, 716 So.2d 234 (Ala.Crim.App.1997), this Court stated:

“ ‘The trial court has almost absolute discretion in ruling on applications for youthful offender status, and the actions of the trial judge are presumptively correct in the absence of a showing to the contrary.’ Carden v. State, 621 So.2d 342, 345 (Ala.Cr.App.1992).
“ ‘ “When deciding whether to grant youthful offender status, it is expected that the nature of the crime charged, along with prior convictions of the defendant, will be considered, as well as any other matters deemed relevant by the court. No prescribed format is required. Neither is the trial court required to articulate on the record the reasons for denying youthful offender status to a defendant.” ’
“Self v. State, 512 So.2d 811, 814 (Ala.Cr.App.1987), quoting Goolsby v. State, 492 So.2d 635, 636 (Ala.Cr.App.1986) (citations omitted).
“ ‘It is sufficient if the order of denial reflects that some investigation, examination, or inquiry was conducted before the application for youthful offender status was denied. Talley v. State, 504 So.2d 741, 742-43 (Ala.Cr.App.1987). A formal hearing on an application for youthful offender status is not required. Garrett v. State, 440 So.2d 1151, 1152 (Ala.Cr.App. 1983). Where it does not affirmatively appear that the trial court’s decision was arbitrary or that it was made without any examination or investigation, there is no basis for overturning the trial court’s decision. Wilson v. State, 563 So.2d 11, 12 (Ala.Cr.App.1989).’
“Carden, 621 So.2d at 345.”

716 So.2d at 235.

Here, the record reflects that the trial court ordered a probation officer to conduct an investigation on Jolly’s application and that the trial court held a hearing on Jolly’s application, during which six witnesses testified on Jolly’s behalf and three witnesses testified for the State. At the conclusion of the hearing, the trial court stated:

“Upon consideration of the investigation and the report in this case, the testimony that I have heard inside this courtroom, along with all inferences that can be drawn therefrom, statements of the attorneys in this case, and the nature of the fact situation on which these charges are based, I’m going to deny youthful offender treatment in this case.”

(R.Supp. 48.)

Based on our review of the record and the aforementioned ruling by the trial court, we find no abuse of discretion by the trial court in its denial of Jolly’s application for youthful-offender treatment.

V.

Fifth, Jolly argues that the trial court improperly prohibited him from presenting evidence of his good character. The record reflects that during a sidebar conference, Jolly informed the trial court that he intended to call several character witnesses to testify as to his general reputation in the community and to give their opinions about his reputation. The State conceded that Jolly was entitled to present evidence of his general reputation in the community, but objected as to any testimony from the witnesses concerning then-personal opinions about Jolly. The State also raised concerns that the testimony would become cumulative. The trial court advised Jolly that he was allowed to elicit testimony from the witnesses about his general reputation in the community and advised the parties that it would reserve any ruling on at what point the testimony became cumulative until the State saw fit to object on those grounds after Jolly had begun to call his witnesses. During the testimony of Jolly’s first character witness, the trial court sustained the State’s objection to the witness’s testifying about his personal opinion of Jolly’s character and reputation. That witness and three others then testified that Jolly’s general reputation in the community was good. When Jolly called his fifth character witness, the State objected on the grounds that the testimony was cumulative; the trial court allowed that witness to testify that Jolly’s general reputation in the community was good. When Jolly called his sixth character witness, the State again objected to the cumulative nature of the testimony, and the trial court sustained the objection. On appeal, Jolly contends that the trial court improperly limited his ability to offer evidence of his good character when the trial court prohibited defense witnesses from giving their personal opinions as to his reputation and when it limited the number of character witnesses he could call.

In Seay v. State, 751 So.2d 32 (Ala.Crim.App.1999), this Court stated:

“Alabama law has long held that:
“ ‘Generally, character evidence (acts, reputation, or opinion of character) is inadmissible when offered as a basis from which to infer how a person acted on the occasion in question. A special exception to this general exclusionary rule, however, is afforded the criminally accused. The criminal defense, under what is often termed the “mercy rule,” may take the initiative to prove the accused’s good character in order to infer, from such character, that the accused did not commit the crime charged.
“ ‘While the accused is given special exemption from the prohibition on character, good character may be evidenced through only one medium of proof. The accused’s character evidence is limited to general reputation in the community. No allowance is made, as is true under the federal mercy rule, for a character witness’ opinion as to the accused’s character. The accused’s reputation may be as a whole or attached to a trait that is pertinent to the crime serving as the basis of the prosecution.’
“Charles W. Gamble, Gamble’s Alabama Rules of Evidence, § 404(a)(1)(A) at 59 (1995); see also Ex parte Woodall, 730 So.2d 652 (Ala.1998); Jones v. State, 53 Ala.App. 690, 304 So.2d 34 (1974). Since before the 1900s, Alabama law has afforded an accused the right to prove his or her good reputation in the community and character evidence of a specific trait, such as peacefulness. See Thomas v. State, 41 Ala.App. 19, 122 So.2d 731 (1960); Bogle v. State, 27 Ala.App. 215, 169 So. 332 (1936); Griffin v. State, 26 Ala.App. 473, 162 So. 547 (1935); Beaird v. State, 215 Ala. 27, 109 So. 161 (1926); Carson v. State, 50 Ala. 134 (1874).”

751 So.2d at 35-36 (emphasis added).

Based on the above authority, the trial court properly prohibited defense witnesses from testifying as to their personal opinions about Jolly’s reputation. As to Jolly’s claim that the trial court erroneously limited the number of character witnesses he could call, he has cited no authority or statute to support that argument. That argument has therefore been waived. See Rule 28(a)(10), Ala.R.App.P. See also Hamm v. State, [Ms. CR-99-0654, February 1, 2002] - So.2d -, -(Ala.Crim.App.2002).

VI.

Sixth, Jolly (who was 20 years old at the time of the crime) argues that the trial court erroneously denied his motion to declare § 32-5A-191(b), Ala.Code 1975, unconstitutional because, he contends, the statute violates his equal-protection rights under the Eighth and Fourteenth Amendments to the United States Constitution in that he was treated differently than if he had been 21 years old at the time of the offense. Although we agree that the statute does treat those who are less than 21 years of age differently than those who are at least 21 years of age, we disagree that the statute is unconstitutional.

Section 32-5A-191, Ala.Code 1975, provides, in relevant part:

“(a) A person shall not drive or be in actual physical control of any vehicle while:
“(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
“(2) Under the influence of alcohol;
“(b) A person who is under the age of 21 years shall not drive or be in actual physical control of any vehicle if there is .02 percentage or more by weight of alcohol in his or her blood.”

In State v. Spurlock, 393 So.2d 1052 (Ala.Crim.App.1981), this Court stated:

“The presumption exists that statutes are constitutional. This Court will not hold them unconstitutional unless convinced beyond a reasonable doubt of their unconstitutionality. Alabama Dairy Commission v. Food Giant, Inc., 357 So.2d 139 (Ala.1978). The party challenging the constitutionality of a statute has the burden of establishing its invalidity. Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551 (1974).
“ ‘The essence of the theory of equal protection of the laws is that all similarly situated are treated alike.’ City of Birmingham v. Stacy Williams Co., Inc., 356 So.2d 608, 611 (Ala.1978). See also City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala.1977); Hubbard v. State, 382 So.2d 577 (Ala.Cr.App.1979), affirmed, Ex parte Hubbard, 382 So.2d 597 (Ala.1980). Equal protection of the laws does not compel uniformity in the face of difference. Hadnott v. City of Prattville, 309 F.Supp. 967 (N.D.Ala.1970). The Equal Protection Clause does not mean that a state may not draw lines that treat one class of individuals differently from the others. The test is whether the difference in treatment is an invidious discrimination. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). Classification of subjects in a statute is not arbitrary and invalid if based on some difference which bears a reasonable and just relation to the attempted classification. Board of Com’rs of City of Mobile v. Orr, 181 Ala. 308, 61 So. 920 (1913).
“Since this case involves neither a ‘suspect class’ nor a ‘fundamental right’, the ‘rational basis test’ is the proper test to apply to either a substantive due process challenge or an equal protection challenge. Gideon v. Alabama State Ethics Commission, 379 So.2d 570, 574 (Ala.1980).
“ ‘Under the rational basis test the Court asks: (a) Whether the classification furthers a proper governmental purpose and (b) whether the classification is rationally related to that purpose.’ Gideon, [3]79 So.2d at 574.”

393 So.2d at 1055-56. Here, as in Spur-lock, we apply the rational-basis test because there is no suspect class and no fundamental right is involved.

Our research has uncovered no published cases addressing this issue in Alabama. However, several other states have held similar statutes constitutional. In Collins v. State ex rel. Department of Public Safety, 991 P.2d 557 (1999), the Oklahoma Court of Civil Appeals stated:

“[The United States] Congress call[ed] for an under-twenty-one age distinction in the law, when, in 23 U.S.C.A. § 161(a)(3), of the [Federal Highway Safety] Act, it state[d]:
“ ‘Requirement. — A State meets the requirement of this paragraph if the State has enacted and is enforcing a law that considers an individual under the age of 21 who has a blood alcohol concentration of 0.02 percent or greater while operating a motor vehicle in the State to be driving while intoxicated or driving under the influence of alcohol.’
“The enactment of age-specific statutes reveals Congressional belief that there is a heightened risk to public safety when minors drink and drive.”

991 P.2d at 560-61. The Oklahoma statutes at issue set the alcohol concentration for a person 21 years of age or older at O.10 percent, and set the limit for a person under the age of 21 at an alcohol concentration of “any measurable quantity of alcohol.” Collins, 991 P.2d at 559. In Collins, the Court held that those statutes were “ ‘rationally related’ to the legitimate governmental ends of prohibiting underage drinking and driving.” Collins, 991 P.2d at 561. See also State v. Ferris, 762 So.2d 601 (La.2000); Mason v. State, 781 So.2d 99 (Miss.2000); Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999); State v. Luchau, 297 Mont. 415, 992 P.2d 840 (1999); Commonwealth v. Howard, 969 S.W.2d 700 (Ky.1998); State v. Crain, 972 S.W.2d 13 (Tenn.Crim.App.1998).

Here, as in those states, the statute is rationally related to. a proper government purpose — prohibiting underage drinking and driving. Therefore, the trial court properly denied Jolly’s motion to declare § 32-5A-191(b) unconstitutional.

VII.

Next, Jolly argues that “[t]he trial court’s evident bias and hostility toward the defense warrants a reversal and new trial.” (Jolly’s appellate brief at p. 66.) In his brief, Jolly takes issue with the jury’s verdict, with the fact that he did not receive youthful-offender status, with the trial judge’s denial of his motion to recuse himself, with the sentences imposed by the trial court, with the trial judge’s alleged tone of voice and facial expressions during the trial, and with the trial court’s admonishment of defense counsel. He raised several of these issues either in his pretrial motion seeking to have the trial judge recuse himself or in his posttrial motion for a new trial. We are uncertain from our examination of Jolly’s brief whether he is challenging the trial court’s denial of his motion to recuse or the denial of his motion for a new trial, or both. However, because the record does not reveal any bias or hostility by the trial court that would warrant reversal on either theory, Jolly is not entitled to any relief on his claim.

In Smith v. State, 756 So.2d 892 (Ala.Crim.App.l998)(opinion on return to remand), aff'd, 756 So.2d 957 (Ala.2000), this Court stated:

“When determining whether the trial court’s statements are improper, this court must review comments based on the particular facts of each case. McNeely v. State, 524 So.2d 375, 380 (Ala.Cr.App.1986). Comments by the trial court do not constitute error
“ ‘ “ ‘unless they have affected the result of the trial.’ ” Towns v. State, 494 So.2d 798, 800 (Ala.Cr.App.1986), quoting Cox v. State, 489 So.2d 612 (Ala.Cr.App.1985). See also McCovery v. State, 365 So.2d 358 (Ala.Cr. App.1978).
“ ‘ “ ‘To constitute error the judge’s actions viewed as a whole must amount to intervention which could have led the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor. ... A venerable line of cases indicates judicial intervention must be qualitatively and quantitatively substantial to meet this test....’ United States v. Robinson, 687 F.2d 359 (1982) (citations omitted).” ’
“McNeely, 524 So.2d at 380.”

756 So.2d at 941.

In Hodges v. State, 856 So.2d 875 (Ala.Crim.App.2001)(opinion on return to remand), this Court stated:

“ ‘ “All judges are presumed to be impartial and unbiased. Ex parte Cotton, 638 So.2d 870 (Ala.1994). ‘The burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice.’ ” Ex parte Grayson, 665 So.2d 986, 987 (Ala.Cr. App.1995).’ Ex parte Knotts, 716 So.2d 262[, 266] (Ala.Crim.App.1998).
“ ‘The burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice. Otwell v. Bryant, 497 So.2d 111, 119 (Ala.1986). Prejudice on the part of a judge is not presumed. Hartman v. Board of Trustees, 436 So.2d 837 (Ala.1983); Duncan v. Sherrill, 341 So.2d 946 (Ala.1977); Ex parte Rives, 511 So.2d 514, 517 (Ala.Civ.App.1986). “ ‘[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.’ ” Ex parte Balogun, 516 So.2d 606, 609 (Ala.1987), quoting Fulton v. Longshore, 156 Ala. 611, 46 So. 989 (1908). Any disqualifying prejudice or bias as to a party must be of a personal nature and must stem from an extrajudicial source. Hartman v. Board of Trustees of the University of Alabama, 436 So.2d 837 (Ala.1983); Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979). Thus,
“ ‘ “ ‘[T]he disqualifying prejudice of a judge does not necessarily comprehend every bias, partiality, or prejudice which he may entertain with reference to the case, but must be of a character, calculated to impair seriously his impartiality and sway his judgment, and must be strong enough to overthrow the presumption of his integrity.’ ”
‘Ross v. Luton, 456 So.2d [249] at 254 [ (Ala.1984) ], quoting Duncan v. Sherrill, 341 So.2d 946, 947 (Ala.1977), quoting 48 C.J.S. Judges § 82(b).’
“Ex parte Melof 553 So.2d 554, 557 (Ala.1989). See also Ex parte Cotton, 638 So.2d 870 (Ala.1994).

“Hodges failed to meet his burden of showing that the trial court was biased or prejudiced against him. We have often stated that ‘ “[a]dverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice.” Hartman v. Board of Trustees of the University of Alabama, 436 So.2d 837, 841 (Ala.1983).’ Thomas v. State, 611 So.2d 416, 419 (Ala.Crim.App.1992).

“ ‘ “The bias or prejudice necessary to disqualify a judge ‘ “must stem from an extrajudicial source and must result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” ’ Kitchens v. Maye, 623 So.2d 1082, 1086 (Ala.1993) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793 (1966)) (emphasis added in Kitchens). A trial court’s denial of a motion to recuse will not be reversed on appeal ‘unless clear evidence of bias is shown.’ Adkins v. State, 600 So.2d [1054] at 1062 [ (Ala.Cr.App.1990), remanded on other grounds, 600 So.2d 1067 (Ala.1992) ].” ’
“Ex parte Knotts, 716 So.2d 262, 267 (Ala.Crim.App.1998) (quoting Riddle v. State, 669 So.2d 1014, 1019 (Ala.Crim.App.1994)).”

856 So.2d at 898.

In Baker v. State, [Ms. CR-95-0292, January 12, 2001] - So.2d - (Ala.Crim.App.2001), this Court stated:

“ ‘The trial judge has a duty to be thorough, courteous, patient, punctual, just and impartial. Yet, at the same time it must be remembered that he is a “human being, not an automaton or a robot.” Allen v. State, 290 Ala. 389, 342, 276 So.2d 583 (Ala.1973). In light of all the circumstances of this case, we find that the actions and comments of the trial judge were not so prejudicial as to require a mistrial or cause a reversal of this conviction.’
“Oglen v. State, 440 So.2d [1172,] at 1176 [ (Ala.Crim.App.1983) ]. Despite the great deal of care and caution a trial judge must exercise in discharging his duties, ‘ “he is not required to be a ‘Great Stone Face’ which shows no reaction to anything that happens in his courtroom. Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973).” Gwin v. State, 425 So.2d 500, 506-07 (Ala.Cr.App.1982), cert. quashed, 425 So.2d 510 (Ala.1983).’ Arnold v. State, 601 So.2d 145, 153 (Ala.Crim.App.1992).”

— So.2d at -.

We have reviewed the record, and we find no evidence of any bias on the part of the trial court. After reviewing an investigation report and conducting a thorough hearing, the trial court stated its reasons for denying Jolly’s motion to be treated as a youthful offender. There were two occasions where the trial court admonished defense counsel—the first occurred outside of the hearing of the jury and the second after the jury had returned its verdict and had been dismissed. (R. 731-37; 771-72.) The other instances complained of on appeal are simply insufficient to establish bias in this case. Additionally, Jolly was indicted for two counts of murder, and the jury found Jolly guilty of the lesser-included offense of manslaughter in each case. Contrary to Jolly’s argument, the trial court did not make known its opinions about the evidence; there is no evidence indicating that the jury either noticed or was influenced by any alleged action by the trial court; and although Jolly’s sentences are the harshest possible for the convictions, they are within the statutory range, the trial court explained its reasons for imposing them, and we find no violation of the principles of sentencing set out in Rule 26.8, Ala. R.Crim.P.

Therefore, we find no abuse of discretion in the trial court’s denial of Jolly’s motion to recuse or his motion for a new trial.

VIII.

In addition to arguing that his consecutive 20-year sentences violate the principles of sentencing discussed in Rule 26.8, Ala.R.Crim.P. (see Part VII of this opinion), Jolly also argues that they constitute cruel and unusual punishment within the meaning of the Eighth Amendment of the United States Constitution.

In his motion for a new trial, Jolly argued that his sentences “were clearly excessive, and greatly disproportionate to sentences regularly imposed in Manslaughter cases in this jurisdiction.” (C. 135.) The nonspecific references in the new-trial motion to excessiveness and dis-proportionality of the sentences were not sufficient to alert the trial court that an Eighth Amendment challenge was being made. “ ‘The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ ” Culp v. State, 710 So.2d 1357, 1359 (Ala.Crim.App.1996), quoting Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). Because the grounds he raises on appeal are different from the grounds he argued at trial, this issue is not preserved for our review.

Assuming, for the sake of argument, that Jolly had properly preserved this issue, we would find no abuse of discretion by the trial court in imposing the aforementioned sentences. In Adams v. State, 815 So.2d 583 (Ala.Crim.App.2001), this Court stated:

“It is well settled that ‘[w]here a trial judge imposes a sentence within the statutory range, this Court will not disturb that sentence on appeal absent a showing of an abuse of the trial judge’s discretion.’ Alderman v. State, 615 So.2d 640, 649 (Ala.Crim.App.1992). ‘The exception to this general rule is that “the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant’s Eighth Amendment rights.” ’ Brown [v. State, 611 So.2d 1194], at 1197, n. 6 [(Ala.Crim.App.1992) ], quoting Ex parte Maddox, 502 So.2d 786, 789 (Ala.1986).”

815 So.2d 583 at 585. Jolly was convicted of two counts of manslaughter, a Class B felony. See § 13A-6-3, Aa.Code 1975. A conviction of manslaughter, as a Class B felony, carries with it a range of punishment of “not more than 20 years or less than 2 years.” § 13A-5-6(a)(2), Aa.Code 1975. Based on our review of the record, we find no abuse of discretion by the trial court in imposing the aforementioned sentences on Jolly.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

BASCHAB, J., concurs in the result.

      . Doyle died at the scene and Gaither was pronounced dead the following day at University of Alabama in Birmingham Medical Center.

      . The blood test was administered at approximately 1:00 a.m. and indicated that Jolly’s blood-alcohol level was .09. The breath test was administered at 1:48 a.m. and indicated that Jolly’s blood-alcohol level was .06.

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

      . Additionally, we note that, pursuant to § 28-1-5, Ala.Code 1975, it is "unlawful for a person less than 21 years of age to purchase, consume, possess, or to transport any alcohol, liquor or malt or brewed beverages within the State of Alabama.”


source: Caselaw Access Project

author: BASCHAB, Judge. COBB, Judge,

license: Public Domain

text:
    Rex WATKINS v. STATE of Alabama.
    CR-01-1551.
    Court of Criminal Appeals of Aabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 24, 2003.
    Certiorari Denied March 28, 2003 Aabama Supreme Court 1020710.
    Stephen R. Glassroth, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW and WISE, JJ., concur; COBB, J., concurs in the result, with opinion.

COBB, Judge,

concurring in the result.

Rex Watkins petitioned the circuit court, pursuant to Rule 32, Aa. R.Crim. P., requesting that court to grant him a new trial based on the victim’s recantation of her testimony against him. The circuit court denied the petition after holding a hearing. This Court affirmed that denial by an unpublished memorandum.

I feel compelled to point out:

“The general rule regarding the awarding of a new trial based on [a] recanting witness is that, where independent evidence corroborates the testimony that a witness later seeks to recant, the grant of a new trial rests within the sound discretion of the trial judge. However, when a defendant is convicted solely on the testimony of the now recanting witness, it would be an abuse of discretion not to allow a new trial.”

Robinett v. State, 494 So.2d 952, 955 (Ala. Crim.App.1986).

The memorandum affirming the denial of Watkins’s petition does not mention the fact that this Court noted on direct appeal that a gynecologist testified that she examined the victim when the victim was 12 years old and found that her hymenal ring was not intact, which was consistent with repeated incidents of sexual penetration, abuse, or activity. Because of this fact, I believe the circuit court did not abuse its discretion by not allowing a new trial. Therefore, I concur in the result reached by the majority’s memorandum.

      . The circuit court entertaining the petition was not the same trial court that originally heard the case.


author: PER CURIAM.

text:
    John D. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. SC01-2007.
    Supreme Court of Florida.
    July 11, 2003.
    Rehearing Denied Nov. 25, 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 8.850 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 failing 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, 1033-84 (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 reliance 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 establish 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 failed to establish that the State relied 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 failing 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: PER CURIAM. PER CURIAM. COPE, J.

text:
    The STATE of Florida, Appellant, v. Eldrick Wendall WOODING, Appellee.
    No. 3D01-1168.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Order Denying Rehearing and Certification Oct. 22, 2003.
    Charlie Crist, Attorney General and Frederieka Sands, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and John Eddy Morrison, Assistant Public Defender, for appellee.
    Before JORGENSON, COPE, and GREEN, JJ.
   PER CURIAM.

We affirm this case for the reasons expressed in Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2002). See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (stating: “even though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling.”). See also Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979) (providing: “[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.”).

Before COPE, GREEN, and FLETCHER, JJ.

ON MOTION FOR REHEARING AND CERTIFIED QUESTION

PER CURIAM.

Denied. See Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

GREEN and FLETCHER, JJ., concur.

COPE, J.

I would grant rehearing in part for the reasons stated in my partial dissent in Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).


author: PER CURIAM. GREEN, J.

text:
    The STATE of Florida, Appellant, v. Shahaira MARTINEZ, Appellee.
    No. 3D02-2022.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Charles J. Crist, Jr, Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellee.
    Before GERSTEN, GODERICH and GREEN, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings in accordance with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA, 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

GERSTEN and GODERICH, JJ., concur.

GREEN, J.

(specially concurring).

The doctrine of stare decisis compels me to join in the reversal of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution, accord Nunez v. State, 27 Fla. L. Weekly D1701, 2002 WL 1723694 (Fla. 5th DCA July 26, 2002); Carlson v. State, 27 Fla. L. Weekly D2162, - So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct. 4, 2002).


text:
    Otto GRACE and Ana D. Grace, Appellants, v. ROYAL INDEMNITY CO., a foreign corp., and Karen Holloway, Appellees.
    No. 3D02-1245.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Friedman & Friedman; Lauri Waldman Ross, Miami, for appellants.
    Conroy, Simberg, Ganon, Krevans & Abel and Mara Shlackman, Fort Lauder-dale, for appellees.
    Before LEVY, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Inservices, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002).


text:
    LUMAR REAL ESTATE SERVICES, CORP., Appellant, v. ISRAEL MARMOR & ASSOCIATES, LOWER INC., Appellee.
    No. 3D02-655.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Rehearing Denied Nov. 5, 2003.
    Allan Jay Atlas, Fort Myers, and Joshua D. Manaster, for appellant.
    J.B. Harris, Miami, for appellee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, 776 So.2d 940 (Fla. 3d DCA 2001).


text:
    ROYAL BELGE, Belgemar, and B.D.M., Appellants, v. NEW MIAMI WHOLESALE, INC. a Florida corporation, Appellee.
    No. 3D00-2747.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Rehearing Denied Nov. 5, 2003.
    Roy D. Wasson, Miami; James J. McNally, Coral Gables, for appellants.
    Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso, and John R. Kelso, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE, and GERSTEN, JJ.
   ON MOTION FOR REVIEW OF POST-MANDATE ORDER AWARDING APPELLATE FEES AFTER REMAND

PER CURIAM.

Appellants, Royal Beige, Belgemar and B.D.M. (“insurers”), along with appellee, New Miami Wholesale, Ine. (“New Miami”), seek review pursuant to Rule 9.400(c), Florida Rules of Appellate Procedure, of a final order of the trial court determining the amount of appellate attorney’s fees to be awarded to New Miami.

The original controversy arose from an action brought by New Miami against the insurers seeking $174,972.00 in damages on a claim for goods lost in transit. Final judgment was entered in favor of New Miami. Thereafter, New Miami was awarded $78,500.00 for attorney’s fees in the trial level.

The insurers appealed the adverse final judgment, and this Court affirmed. See Royal Beige, Belgmar and B.DM. v. New Miami Wholesale, Inc., 810 So.2d 951 (Fla. 3d DCA 2002). This Court further granted New Miami’s motion for appellate attorney’s fees, and remanded the case to the trial court for determination of the fee amount at the appellate level.

On remand, New Miami presented its claim in the trial court for $56,425 in appellate attorney’s fees. The trial court awarded New Miami $37,496.00, finding that the maximum amount recoverable was limited by a contingency fee agreement between New Miami and its counsel. The agreement provided:

Unless otherwise specifically agreed, we will from this date forward perform our legal services in connection with the above-referenced case on a contingency fee basis. The contingency fee, based on recovery shall be one-third of the sum recovered through our efforts. While New Miami Wholesale, Inc. will not be responsible for payment of attorney fees, New Miami Wholesale, Inc. will be responsible for payment of any costs associated with the matter and we will strive to keep any such costs at a minimum. New Miami Wholesale, Inc. will receive monthly invoices for all costs incurred in connection with the case.

The abuse of discretion standard applies to this Court’s review of a judgment or order setting appellate attorney’s fees. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282 (Fla. 1st DCA 1997). “As with other discretionary decisions, we must affirm the order of the trial court if reasonable people could differ as to the propriety of the action taken.” Pellar v. Granger Asphalt Paving, Inc., 687 So.2d at 284-85.

We find the trial court properly capped New Miami’s attorney’s fees at one-third of the sum recovered in accordance with the terms of the contingency fee agreement. However, we agree with the insurers that the trial court erred in its calculations as to the amount of the “sum recovered,” for purposes of applying the one-third cap.

The trial judge on remand added the amount of $269,489.00 paid by the insurers, to the trial level attorney’s fee amount awarded of $78,500.00, and found a total “sum recovered” of $347,989.00. As correctly noted by the insurers, it is improper to add statutory attorney’s fees to the principal award for purposes of calculating the percentage due. See World Serv. Life Ins. Co. v. Bodiford, 537 So.2d 1381 (Fla.1989).

In World Serv., the Florida Supreme Court rejected the argument that an attorney fee percentage should be based upon the gross amount received plus the award of attorney’s fees. In so doing, it stated: “Counsel’s percentage fee is determined by the amount of principal coverage, plus interest. He is not entitled to add statutory attorney’s fees to the principal and claim a percentage of this total.” World Serv. Life Ins. Co. v. Bodiford, 537 So.2d at 1381-82; see Foodtown, Inc. of Jacksonville v. Argonaut Ins. Co., 102 F.3d 483 (11th Cir.l996)(attorney’s fees limited to maximum amount set forth in written agreement).

It is well established that a court cannot award attorney’s fees in an amount that exceeds the fee agreement reached between the attorney and client. See Lane v. Head, 566 So.2d 508 (Fla.1990); Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985); Gov’t Employees Ins. Co. v. Robinson, 581 So.2d 230 (Fla. 3d DCA 1991). This precept applies to fees awarded in cases involving insurance contracts pursuant to Section 627.428, Florida Statutes (2002), see Independent Fire Ins. Co. v. Lugassy, 609 So.2d 51 (Fla. 3d DCA 1992), quashed on other grounds, Lugassy v. Independent Fire Ins. Co., 636 So.2d 1332 (Fla.1994), as well as appellate attorney’s fees awards, see Arabia v. Siedlecki 789 So.2d 380 (Fla. 4th DCA 2001).

Here, the fee agreement specified that the fees recoverable “shall be one third of the sum recovered through our efforts.” New Miami has recovered and been paid in full the sum of $269,489.00, which represents the original loss amount of $174,972.00, plus prejudgment interest of $69,077.99, and postjudgment interest of $25,438.66. The attorney’s fee award for both the trial work and the appeal is limited to one-third of this amount, pursuant to the terms of the contract.

In sum, in accordance with World Serv. and the above-cited authority, we find the trial court erred in including the award of statutory attorney’s fees in the sum recovered, for purposes of applying the one-third percentage cap. Accordingly, we reverse the award of $37,496.00 in attorney’s fees, and remand with instructions to enter a new order awarding the sum of $11,-329.66 in favor of New Miami.

Reversed and remanded with instructions.

      . One-third of the $269,489.00 sum recovered is $89,829.66. Since the insurers have already paid $78,500 in attorney’s fees, the maximum additional amount owed is $11,329.66.


author: ALTENBERND, Chief Judge.

text:
    Antonio Uzcanga ENRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2111.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 2003.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Antonio Uzcanga Enriguez appeals an order withholding adjudication and imposing a term of probation for felony dumping pursuant to section 403.413, Florida Statutes (2001). Although he did not preserve the issue in the trial court, he argues on appeal that the felony littering statute is unconstitutional. We affirm.

Mr. Enriguez operated an automobile repair business at a location adjacent to a citrus grove in Polk County. The citrus grove was managed by Haines City Citrus. Growers Association. On August 8, 2001, the Association discovered that Mr. Enri-guez had placed automobiles and automobile parts inside the grove in a maimer that prevented the Association from applying fertilizer. The Association had not given Mr. Enriguez permission to place any vehicles on the Association’s property and had previously complained to Mr. En-riguez about such vehicles. In response to these earlier complaints, Mr. Enriguez had always moved the vehicles, but they kept reappearing inside the grove. Accordingly, the Association complained to the Polk County Sheriffs Office on August 8 about the cars. A deputy was dispatched to investigate the claim. The deputy found four “older junk” cars, weighing more than 500 pounds, parked inside the grove. The deputy did not determine whether some or all of these vehicles were operable, although it appears that they were later removed by tow trucks.

As a result of the conditions the deputy observed on August 8, the State charged Mr. Enriguez with misdemeanor trespass on property other than a structure or conveyance and felony dumping. Following a bench trial, the circuit court found Mr. Enriguez guilty of both charges. The circuit court withheld adjudication and placed Mr. Enriguez on probation for three years with conditions allowing for early termination. He appeals from this order.

Mr. Enriguez does not challenge the disposition of his misdemeanor trespass charge. He argues only that the felony littering statute is unconstitutional. Section 408.413(4) states:

(4) DUMPING LITTER PROHIBITED.-Unless otherwise authorized by law or permit, it is unlawful for any person to dump litter in any manner or amount:
(c) In or on any private property, unless prior consent of the owner has been given and unless such litter will not cause a public nuisance or be in violation of any other state or local law, rule, or regulation.

“Dump” is defined in the statute as “dump, throw, discard, place, deposit, or dispose of.” § 403.413(2)(g), Fla. Stat. (2001). The definition of “litter” contains a long list of items including “garbage, rubbish, trash, ... [and] motor vehicle or motor vehicle part.” § 403.413(2)(a), Fla. Stat. (2001). If the litter weighs more than 500 pounds, the offense is a third-degree felony. See § 403.41S(6)(c), Fla. Stat. (2001).

Mr. Enriguez points out that this statute, if read literally, might criminalize some behavior that would not seem criminal. For example, if a person “places” a car on private property when the person parks illegally for a few minutes when visiting in a residential neighborhood, then a minor traffic infraction may be transformed into a felony. It was this concern that caused the Third District to hold the statute unconstitutional in State v. Thurston, 591 So.2d 998 (Fla. 3d DCA 1991).

Mr. Enriguez understandably argues that his case is controlled by the decision in Thurston. We disagree. Thurston is not a model of clarity, but we are inclined to believe that the Third District intended to hold the statute unconstitutional as applied to the facts in that case. The Third District’s opinion in Thurston incorporated major portions of the trial court’s ruling. The trial court’s opinion did not explain the facts of the case in any detail and concluded that the statute was unconstitutional as applied to motor vehicles because the statute was “overbroad.” Thurston, 591 So.2d at 998-99. “Over-breadth” is an analysis that applies only to statutes that proscribe conduct that may be protected by the First Amendment. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999); Southeastern Fisheries Ass’n v. Dep’t of Natural Res., 453 So.2d 1351, 1353 (Fla.1984). At least in the typical case, dumping litter or discarding motor vehicles on other people’s property is not an activity protected by the First Amendment. Thus, much of the analysis in Thurston is misplaced.

Because Mr. Enriguez did not raise and preserve this issue in the trial court like the defendant in Thurston, he is not permitted to argue that the statute is unconstitutional as applied to the facts in his case. We cannot review an unpre-served argument that a statute is unconstitutional as applied. See Trushin v. State, 425 So.2d 1126 (Fla.1982). Only the facial invalidity of the statute may be raised for the first time on appeal. State v. Johnson, 616 So.2d 1 (Fla.1993); Trushin, 425 So.2d at 1129-30; see also Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001).

A facial challenge to a statute on grounds that it is void for vagueness is a difficult argument to present successfully for the first time on appeal. The difficulty arises largely because, when a statute does not reach constitutionally protected conduct, a facial challenge must establish that a statute is vague in all of its applications. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (stating that party who engages in “some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others”); Sandstrom v. Leader, 370 So.2d 3, 6 (Fla.1979) (stating “that marginal cases might exist where doubts may arise as to whether there may be prosecution under [a criminal statute] does not render the enactment unconstitutionally vague”); Bryant v. State, 712 So.2d 781, 783 (Fla. 2d DCA 1998) (citing Flipside, 455 U.S. at 495, 102 S.Ct. 1186) (stating when statute does not reach constitutionally protected conduct, “it may only be deemed void for vagueness if it is impermissibly vague in all of its applications”). Mr. Enriguez has presented isolated scenarios in which the application of this statute may be ambiguous, but he has not successfully argued that it is ambiguous in all of its applications.

A statute will withstand constitutional scrutiny under a void for vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the pro-scribed conduct. Sanicola v. State, 384 So.2d 152 (Fla.1980). The language must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. State v. Hagan, 387 So.2d 943, 945 (Fla.1980); see also State v. Manfredonia, 649 So.2d 1388 (Fla.1995).

We conclude that a person of common intelligence would not read a littering statute that proscribed dumping, throwing, discarding, placing, depositing, or disposing of garbage and trash, including motor vehicles and motor vehicle parts, as a statute that applied to parking violations. We further conclude that the statute does adequately warn people that placing garbage and trash, including junk cars, on their neighbor’s property is illegal. We cannot conclude that the statute is vague in all of its applications. Thus, we decline to hold the statute facially unconstitutional, leaving any marginal confusion in the statute for resolution in challenges to the statute as applied to the specific facts of other cases.

Affirmed.

FULMER and WALLACE, JJ„ Concur.

      . § 810.09, Fla. Stat. (2001).

      . § 403.413(4), Fla. Stat. (2001).

      . We note that Mr. Enriguez’s appellate counsel filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), attempting to raise this constitutional issue in the trial court as a sentencing error. Although we conclude this issue is not an appropriate matter to be addressed by such a motion, the trial court denied the motion as untimely. The trial court reasoned that the motion was untimely because Mr. Enriguez's initial brief was overdue in this court. Rule 3.800(b)(2) states that the motion must be served before the party’s first brief is served. It does not state that the first brief must be timely served. As a practical matter, Mr. Enriguez's brief was not untimely and the rule 3.800(b)(2) motion was timely because this court had granted extensions of time in which to file the initial brief. Although this erroneous ruling does not affect the outcome of this appeal, we caution trial courts that they should not assume that a motion filed pursuant to rule 3.800(b)(2) is untimely unless it is clear that the appellant has already served an initial brief to the appellate court and has not obtained permission from the appellate court to file the motion.

      . With some hesitancy, we are not declaring express and direct conflict with Thurston, 591 So.2d 998. We have concluded that we should simply distinguish that case because it does not contain a factual description, because it can be read as an as-applied decision, and because it seems to address First Amendment issues not present in our case.


text:
    Karen H. MARGARITOFF, Appellant, v. Dimitri MARGARITOFF a/k/a Dimiter Andrej Margaritoff, Appellee.
    Nos. 3D02-3163, 3D02-3485.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2003.
    Stanley Jay Bartel, Miami, for appellant.
    Nancy A. Hass (Hallandale), for appel-lee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We affirm the dismissal of the petition for dissolution of marriage with prejudice. Our affirmance, however, does not preclude the former wife from instituting the appropriate civil or equitable proceeding to determine the rights to the real property located in Key Biscayne, Florida.

Affirmed as modified.


text:
    Wilson T. McCLELLAN, Appellant, v. G.W. COMPANY & SONS, INC.; Wayne Frasure, individually; and Wayne Frasure, d/b/a G.W. Company, Appellees.
    No. 1D02-3204.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.

      Frank A. Baker, Marianna, for Appellant.
    Paul H. Field of Lane, Reese, Aulick, Summers & Field, P.A., Coral Gables, for Appellee.
   PER CURIAM.

Affirmed. See Sparks v. Barnes, 755 So.2d 718 (Fla. 2d DCA 1999); Steele v. Kinsey, 801 So.2d 297 (Fla. 2d DCA 2001).

KAHN, DAVIS and PADOVANO, JJ., concur.


author: WOLF, C.J.

text:
    Desmond BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3044.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.
    Nancy A. Daniels, Public Defender; M.J. Lord, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Desmond Byrd challenges his conviction and sentence for manslaughter. Appellant raises six issues on appeal, one of which has merit and is discussed herein: Whether the trial court erred in modifying the jury instruction concerning justifiable use of deadly force in self defense or defense of others. We find the modified instruction given by the trial court was misleading and confusing; therefore, we reverse and remand for a new trial.

After a football game in August 2000, appellant and three of his friends got into a verbal altercation with another group of boys. The altercation escalated into a fight. Sometime during the altercation appellant got a baseball bat. He asserted that he initially pounded the bat on the ground to break up the altercation, but he became frightened and swung the bat again at someone coming at him from the side. Matthew Pritchard, who had been watching the confrontation, was struck on the head when appellant swung his bat. Pritchard immediately collapsed to his knees, was unable to get up, was bleeding from his ear, and lost consciousness. Pritchard died five days later from a head injury.

There were a number of eyewitnesses who testified that appellant hit Pritchard with a hard swing of his bat on the side or back of the head. Appellant testified that he swung the bat in self defense and he only hit the victim in the shoulder and not the head. He asserted that any head injuries must have been inflicted by another party.

Based upon appellant’s assertion of self defense, the trial court gave an instruction on justifiable use of deadly force. Over defense objection, the trial court gave a modified version of the standard instrdction on justifiable use of deadly force, Florida Standard Jury Instruction (Criminal) 3.04(d). The underlined portions of the instruction quoted below is the language which was added by the trial court at the State’s request:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
2. Desmond Lavan Byrd or the persons he was seeking to defend initially provoked the use of force against himself, or themselves unless:
(a) The force asserted toward the defendant or others was so great that he reasonably believed that he was in imminent danger ... and had exhausted every reasonable means to escape the danger. ...

The appellant argues that the modifications in the standard jury instruction shifted the jury’s focus from his behavior to the behavior of the persons he was seeking to defend. We agree.

Modifications to the standard jury instructions on the issue of self defense which are misleading, confusing, or misstate the law may result in reversible error. See Mason v. State, 584 So.2d 165 (Fla. 1st DCA 1991). The modified instruction in this case improperly shifted the jury’s attention from whether appellant’s behavior provoked the incident to whether someone else may have been the initial cause of the use of deadly force. The instruction as read could be reasonably understood to mean appellant was not entitled to assert self defense based upon the actions of one of his friends. This is not the law. See § 776.041, Fla. Stat (2000).

We are, therefore, constrained to reverse and remand for a new trial.

LEWIS and POLSTON, JJ., CONCUR.

      . We share appellant’s concern that the modified instruction on non-deadly force violated the precepts of Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), but in light of our resolution of this case, it is unnecessary for us to reach that issue.

      . Renumbered as Florida Standard Jury Instruction (Criminal) 3.6(f).

      . We note that this is not necessarily a case where two people were acting in concert, and the modified instruction did not limit its application to that particular situation.


text:
    Oscar RAMIREZ, Appellant, v. OSCEOLA FARMS and RSKCo., Appellees.
    No. 1D02-5199.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.

      Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Walter E. Beisler of Beisler & Beisler, West Palm Beach, for Appellees.
   PER CURIAM.

AFFIRMED. See Harrell v. Fla. Constr. Specialists/AARLAAgent for FWCIGA 834 So.2d 352 (Fla. 1st DCA), review denied, 851 So.2d 728 (Fla.2003).

BARFIELD, WEBSTER and BROWNING, JJ., concur.


text:
    Ronald HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3102.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Appellant, pro se.
    Charlie Crist, for Appellee.
   PER CURIAM.

The appellant is seeking to appeal the trial court’s order of July 2, 2003, which denied one of the appellant’s grounds for relief and directed the state to show cause why the appellant should not be granted relief on the second claim. This appeal is hereby dismissed because it is an appeal from a nonfinal, nonappealable order. See State v. Rudolf, 821 So.2d 385 (Fla. 2d DCA 2002). The appellant may file another appeal of this issue once the trial court enters a final order disposing of all of the claims raised in the appellant’s motion.

DISMISSED.

ALLEN, DAVIS and BENTON, JJ., concur.


text:
    Donnell QUARTERMAN, Petitioner, v. Chauncey D. HOLLAND and Eddie Holland, Respondents.
    No. 1D03-3482.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.
    Donnell Quarterman, pro se, petitioner.
    No appearance for respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000)(denying mandamus relief because the petitioner had not set the motion for a hearing before the trial court).

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Ramey WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2676.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to correct illegal sentence. See Pitts v. State, 855 So.2d 681(Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED.

BARFIELD, WEBSTER, and BROWNING, JJ., concur.


text:
    Tony RUDD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2701.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to correct illegal sentence. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED.

BARFIELD, WEBSTER and BROWNING, JJ., concur.


text:
    James A. COLDIRON, Appellant, v. STATE of Florida and Sergeant Kent, Columbia C.I., Appellees.
    No. 1D03-3318.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.
    James A. Coldiron, pro se, appellant.
    No appearance for appellees.
   PER CURIAM.

DISMISSED. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Larry D. BOSTIC, Petitioner, v. James V. CROSBY, Jr., Respondent.
    No. 1D02-4247.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.
    Larry D. Bostic, petitioner, pro se.
    Louis A. Vargas, General Counsel, and Sheron Wells, Assistant General Counsel, Department of Corrections, for respondent.
   PER CURIAM.

Larry D. Bostic seeks certiorari review of an order of the circuit court denying his petition for writ of mandamus. We deem it necessary to address only his claim that he is entitled to relief under Bolden v. Moore, 28 Fla. L. Weekly D187, - So.2d -, 2003 WL 69560 (Fla. 1st DCA Jan.8, 2003), review granted, 848 So.2d 1153 (Fla. 2003). Respondent Crosby asserts that the rationale employed by this court in Bolden is not applicable to this case, or alternatively suggests that this proceeding should be abated pending the supreme court’s disposition of the question certified in Bolden. We conclude that because Bostic’s sentences are for unrelated crimes, our decision in Bolden affords him no basis for relief. Compare Lewis v. Crosby, 860 So.2d 453, 2003 WL 22002720 (Fla. 1st DCA Aug.26, 2003). Accordingly, we deny both the petition for writ of certiorari and respondent’s motion to abate. This disposition is without prejudice to Bostic’s right to seek relief in the event the supreme court’s decision in Bolden establishes a basis for doing so.

ALLEN, DAVIS and BENTON, JJ., concur.


text:
    James KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1606.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    Appellant James Kearse, pro se, Malone.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, James Kearse, raises three issues on appeal, one of which we find dispositive. Before a pre-trial suppression hearing, Kearse unequivocally requested that he be allowed to represent himself. The trial court denied the appellant’s request without conducting a Faretta hearing. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has an affirmative right to present his own defense. A trial court may not impose counsel on a “literate, competent, and understanding” defendant that has voluntarily waived his right to counsel. Id. at 835, 95 S.Ct. 2525. This requirement is reflected in Florida Rule of Criminal Procedure 3.111(d)(3) which provides:

Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.

The focus of a Faretta hearing under Rule 3.111 is whether a defendant is competent to waive the right to counsel, not whether he is competent to provide an adequate defense. See State v. Bowen, 698 So.2d 248, 251 (Fla.1997). Here, the record reveals that the trial court’s inquiry focused exclusively on Kearse’s education, legal experience, and dissatisfaction with the public defender’s quality of representation. The trial court concluded, “Well, what I’m going to do at this time is I’m going to deny your request to represent yourself. I don’t believe that you have the training and ability to do that.”

Cases such as Bowen establish that denial of a “literate, competent, and understanding” defendant’s right to voluntary self-representation requires a new trial. Bowen, 698 So.2d at 251. We find it equally clear that denial of this right at any “crucial stage” of the proceedings requires reversal. In addressing the requirement to renew an offer of the assistance of counsel at each subsequent stage of the proceedings, • our supreme court held: Traylor v. State, 596 So.2d 957, 968 (Fla.1992) (emphasis added). The hearing on Kearse’s suppression motion was a “crucial stage” in the proceedings below. Accordingly, Kearse had a right to “choose his manner of representation” absent a finding that his waiver of counsel was not competent or voluntary.

that a prime right embodied by the Section 16 Counsel Clause [Florida Constitution] is the right to choose one’s manner of representation against criminal charges. In order for this right to have meaning, it must apply at least at each crucial stage of the prosecution. For purposes here, a “crucial stage” is any stage that may significantly affect the outcome of the proceedings.... Once the defendant is charged — and the Section 16 rights attach — the defendant is entitled to decide at each crucial stage of the proceedings whether he or she requires assistance of counsel.

We do not intimate that the trial court erred otherwise in denying the motion to suppress. Nevertheless, we must vacate the order on that motion and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

ERVIN, BOOTH, and KAHN, JJ., concur.