author: PATTERSON, Retired Appellate Judge. PATTERSON, Retired Appellate Judge.

text:
    Jamie FRANKLIN v. STATE.
    CR-01-0812.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    Opinion on Return to Remand Jan. 7, 2003.
    Vader A1 Pennington, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   PATTERSON, Retired Appellate Judge.

The appellant, Jamie Franklin, was indicted on January 19, 2001, by the Mobile County grand jury for the offense of third-degree robbery, a violation of § 13A-8-43(a)(2), Ala.Code 1975. After a jury found her guilty of the offense charged in the indictment, she was sentenced to 10 years’ imprisonment; however, the sentence was split, and the appellant was ordered to serve 2 years in a jail-like facility and the balance of the sentence was suspended on the condition of her good behavior while serving on probation for five years. Upon successful completion of the probationary period, the suspension would become permanent. The appellant was also ordered to pay $50 to the Alabama Crime Victims Compensation Fund and court costs.

The appellant contends on appeal that the State failed to prove a prima facie case of third-degree robbery under § 13A-8-43(a)(2) because, she argues, she had abandoned the stolen merchandise and the owner had recovered it before any threat of imminent use of force was made against a security guard present. This issue was preserved for appellate review by a motion for a judgment of acquittal made at the conclusion of the State’s case-in-chief. In support of her contention, the appellant relies on our holdings in Banks v. State, 575 So.2d 1244 (Ala.Crim.App.1991); Casher v. State, 469 So.2d 679 (Ala.Crim.App.1985); and Harris v. State, 451 So.2d 406 (Ala.Crim.App.1984).

The State’s evidence showed that, on December 6, 1999, personnel at a J.C. Penney department store in Mobile observed the appellant, her sister, and a female friend on the second floor of the store acting suspiciously. Donald Mroc-zko, a security officer in Penney’s loss-prevention department, was notified, and he began observing the three females through a two-way mirror in a viewing booth. He observed the appellant take several items of clothing from clothes racks and put them in her bag. When she and her companions headed for the escalator, he followed them. At the foot of the escalator, the appellant went toward the store exit while her companions went in another direction. Mroczko followed the appellant as she walked past the check-out counters and, as she neared the exit, he witnessed her dropping her bag in the men’s department. After picking up the bag, which contained the stolen merchandise later determined to be valued at $202, he stopped her outside the store. He asked her to return to the store to discuss a matter with him. She first seemed cooperative and reentered the store with him, but once inside, she tried to flee; he dropped her bag and grabbed her. They fell to the floor, and she bit his arm. It took several people considerable time to subdue her and pry his arm from her mouth. During the altercation, she told him and the others assisting him that she had AIDS and that, now, they had it too.

The appellant argues that, for her to have properly been found guilty of third-degree robbery under § 13A-8-43(a)(2), the State was required to show that she threatened the imminent use of force with intent to compel acquiescence to the taking of, or escaping with, the property. She further argues that the altercation took place well after she had abandoned the property and it had been recovered; that, thus, the State failed to prove that a robbery had occurred; and that, accordingly, her robbery conviction should not stand.

Section 13A-8-43(a)(2), under which the appellant was indicted, defines one alternative of third-degree robbery as follows: “A person commits the crime of robbery in the third degree if in the course of committing a theft [she threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.” Section 13A-8-2(1) defines “theft of property,” in pertinent part, as follows: “A person commits the crime of theft of property if he ... [k]nowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property.” The phrase “in the course of committing a theft” is defined by § 13A-8^40(b) as “embracing] acts which occur in an attempt to commit or [in] the commission of theft, or in immediate flight after the attempt or commission.”

The State’s evidence clearly shows that the appellant neither threatened the use of force nor used force against the J.C. Penney security officer, Mroczko, or any other store employee with the intent to compel acquiescence to the taking of, or escaping with, the property. It is obvious from the State’s evidence that the appellant threatened the imminent use of force and even resorted to force, not with the intent to compel acquiescence in the taking of, or escaping with, the property — a necessary element to be proven for a robbery conviction — but with the intent to effect an escape to avoid arrest and prosecution for her theft or attempted theft. The threat of force and the use of force by the appellant occurred after she had abandoned the property and the security guard had recovered it.

The rule in Alabama is that the use of force or the threat of imminent use of force to merely effect an escape, after the property taken has been abandoned, does not supply the element of use of force or the threat of the imminent use of force necessary to make the taking a robbery. See Ex parte Sapp, 497 So.2d 550 (Ala.1986); Banks v. State; Casher v. State; Harris v. State.

Because the State failed to prove an essential element of the charge of third-degree robbery under § 13A-8-43(a)(2), i.e., the threat of imminent use of force that must have been used in the course of committing the theft, the appellant’s robbery conviction cannot stand. Although the State failed to prove an essential element of robbery, it clearly proved each and every element of theft of property (which embraces attempted theft ), a lesser-included offense of robbery, the crime charged. See Ramsey v. State, 441 So.2d 1065 (Ala.Crim.App.1983); § 13A-1-9(a)(2).

“It is well established that if an appellate court holds the evidence insufficient to support a jury’s guilty verdict on a greater offense, but finds the evidence sufficient to support a conviction on a lesser included offense, it may enter a judgment on that lesser included offense, provided that the jury was charged on the lesser included offense.”

Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995). Accord Ex parte Edwards, 452 So.2d 508 (Ala.1984). See, e.g., J.F.C. v. City of Daphne, 844 So.2d 608 (Ala.Crim. App.2002).

The instant case presents a clear factual situation to which the doctrine expressed and approved in Edwards v. State, 452 So.2d 506 (Ala.Crim.App.1983), aff'd, 452 So.2d 508 (Ala.1984), and restated in Ex parte Roberts, supra, may be applied. See also Borden v. State, 523 So.2d 508 (Ala.Crim.App.1987); Pack v. State, 461 So.2d 910 (Ala.Crim.App.1984). (The attorney general states in his brief to this court that, if we should find the State’s evidence insufficient to support a third-degree robbery conviction, we should follow the Edwards procedure.) The trial court correctly instructed the jury, at the appellant’s request, on the lesser-included offense of third-degree theft of property. In addition to instructing the jury on the definition of theft of property, as set out in § 13A-8-2, it instructed, in accordance with § 13A-8-5, that theft of property that does not exceed $250 in value and that is not taken from the person of another constitutes third-degree theft of property.

For the foregoing reasons, we vacate the judgment of the trial court and remand this case with instructions that, in the presence of the appellant and her counsel, the trial court enter a judgment of guilty on the charge of third-degree theft of property and sentence the appellant accordingly. The trial court is also instructed to prepare a return showing such judgment and sentence and to file same with this court within 42 days of the date of this opinion.

The appellant raises two additional issues in her brief to this court: “Did the trial court err in charging on flight?” and “Did the trial court err in failing to charge on the right to resist an unlawful arrest?” (Appellant’s brief, p. vi.) We decline to address these issues because they were not briefed and argued in accordance with Rule 28, A.R.App. P., nor were they preserved for appellate review.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e).

REMANDED WITH DIRECTIONS.

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

On Return to Remand

PATTERSON, Retired Appellate Judge.

The appellant, Jamie Franklin, was convicted of the offense of third-degree robbery, see § 13A-8-43(a)(2), Ala.Code 1975, and was sentenced to 10 years’ imprisonment. Her sentence was split, and she was ordered to serve two years in a jail-like facility to be followed by five years’ probation. The balance of her sentence was suspended on the condition of her good behavior while on probation. On appeal, this court held that the State’s evidence failed to prove an essential element of the charge of third-degree robbery, i.e., the threat of the imminent use of force with intent to compel acquiescence to the taking of, or escaping with, the property. Franklin v. State, 854 So.2d 153 (Ala.Crim.App.2002). We also held that, although the State failed to prove an essential element of robbery, it clearly proved each and every element of theft of property in the third degree (which embraces attempted theft), a lesser-included offense of robbery. §§ 13A-8-2 and -5. Following the procedure approved in Edwards v. State, 452 So.2d 506 (Ala.Crim.App.1983), aff'd, 452 So.2d 508 (Ala.1984), and restated in Ex parte Roberts, 662 So.2d 229 (Ala.1995), we vacated the judgment of the trial court and remanded the case with instructions that the trial court enter a judgment of guilty on the charge of third-degree theft of property, a Class A misdemeanor, and sentence the appellant accordingly.

On October 29, 2002, the trial court, in accordance with the instructions of this court, adjudged the appellant guilty of third-degree theft of property. It sentenced her to one year in the Mobile County Metro Jail, suspended that sentence to time already served, ordered her to serve two years’ probation, see § 15-22-54(a), and ordered her to pay $25 to the Alabama Crime Victims Compensation Fund and to pay the costs of court.

The return to remand has been filed, and the record reflects that the trial court has fully complied with our instructions. The judgment and the sentence of the trial court are affirmed.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

AFFIRMED.

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

      . An attempt is defined, by § 13A-4-2(a), Ala. Code 1975, as follows: "A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    Darnell Falenda JACKSON v. STATE of Alabama.
    CR-01-1923.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 2002.
    Darnell Falenda Jackson, pro se.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On June 14, 2000, pursuant to a negotiated agreement, the appellant, Darnell Falenda Jackson, pled guilty to unlawful distribution of a controlled substance. He alleges that, on November 11, 2000, the trial court sentenced him to serve a term of six years in prison and that it enhanced his sentence by five years because the sale occurred within three miles of a school and an additional five years because the sale occurred within three miles of a public housing project. See §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. He did not appeal his conviction. On May 7, 2002, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily dismissed the petition. This appeal followed.

The appellant argues that the circuit court’s order dismissing his petition is void. Citing Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997), he contends that the circuit court did not have jurisdiction to rule on his petition because the record does not show that the circuit court granted his request to proceed in forma pauperis and because the circuit court did not require him to pay the fifing fee. The appellant correctly asserts that the record does not indicate that the circuit court granted his request to proceed in forma pauperis. In addition, the record does not indicate that the appellant paid the fifing fee.

In Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997), Goldsmith filed a petition for a writ of certiorari and a request to proceed informa pawperis in the Montgomery Circuit Court. The circuit court apparently did not rule on his request to proceed in forma pauperis. Because Goldsmith had not paid the filing fee, the circuit clerk’s office did not docket the case or assign a case number to it. However, the circuit court entered an order dismissing the petition, and Goldsmith appealed the circuit court’s judgment to this court. We dismissed Goldsmith’s appeal, holding that,

“in the absence of a docket fee in the amount prescribed in § 12-19-71(3), Ala.Code 1975, or an approved in forma pauperis declaration, the petition for certiorari review was never properly before the trial court. The order dismissing the petition was a nullity.”

Goldsmith, 709 So.2d at 1352-53 (footnote omitted).

Subsequently, in Ex parte St. John, 805 So.2d 684, 685-86 (Ala.2001), the Alabama Supreme Court stated:

“We note in passing that the Goldsmith rule will justify dismissing an appeal of a denial or a dismissal of a Rule 32 petition for lack of jurisdiction in the [circuit] court to enter the ruling only (a) if the record on appeal affirmatively shows that the petitioner did not either pay the [circuit] court filing fee or obtain leave to proceed in forma pauperis before the [circuit] court as required by Rule 32.6(a), Ala. R.Crim. P., or (b) if, before the [circuit] court, the State has challenged a failure by the petitioner to pay the [circuit] court filing fee or to obtain the leave, or the [circuit] court has dismissed the petition on such ground, and either the State or the petitioner has raised such failure as an issue on appeal. Unless such failure is such an issue on appeal, no statute or rule requires the record on appeal to contain proof that the petitioner has paid the [circuit] court filing fee or that the [circuit] judge has granted leave to proceed in forma pauperis before the [circuit] court.”

Finally, in Ex parte McWilliams, 812 So.2d 318 (Ala.2001), McWilliams filed a petition for a writ of habeas corpus and an “Affidavit of Substantial Hardship” in the Escambia Circuit Court. The circuit court entered an order denying the petition, and McWilliams appealed the circuit court’s judgment to this court. We dismissed McWilliams’ appeal on the ground that the circuit court’s order denying the petition was void because the circuit court had not ruled on McWilliams’ request to proceed in forma pauperis or required McWilliams to pay the filing fee. Subsequently, we entered an order taxing the docket fee for the appeal to McWilliams. McWilliams filed a petition for a writ of mandamus with this court, requesting that we set aside our order taxing the docket fee to him. We denied the petition. McWilliams then filed in the Alabama Supreme Court a petition for a writ of mandamus directing this court to set aside its order taxing him with the docket fee. In its decision, the supreme court addressed the propriety of our previous decision dismissing McWil-liams’ appeal and stated:

“Section 12-19-70, Ala.Code 1975, requires that a circuit court collect the docket fee for a postconviction petition at the time the petition is filed, unless
the circuit court approves a verified statement of substantial hardship, in which event the docket fee may be initially waived and then taxed as costs at the conclusion of the case. See § 12-19—70(b), Ala.Code 1975; Ex parte Carter, 807 So.2d 584, 536 (Ala.2001).
“In its unpublished memorandum dismissing McWilliams’s appeal from the order of the Escambia Circuit Court purporting to deny his petition challenging his capital-murder conviction, the Court of Criminal Appeals correctly stated that the circuit court could not obtain subject-matter jurisdiction to consider a postconviction petition without first collecting a docket fee or granting a proper request to be allowed to proceed in forma pauperis. ‘[Ajbsent the payment of a filing fee [required by § 12-19-70, Ala.Code 1975,] or the granting of a request to proceed in forma pauperis the trial court fails to obtain subject matter jurisdiction to consider a post-conviction petition.’ Carpenter v. State, 782 So.2d 848, 849 (Ala.Crim.App.2000) (citing Goldsmith v. State, 709 So.2d 1352, 1352-53 (Ala.Crim.App.1997)). See also, e.g., Ex parte Beavers, 779 So.2d 1223, 1224 (Ala.2000). Thus, the Court of Criminal Appeals correctly determined that the order of the Escambia Circuit Court purporting to deny McWil-liams’s postconviction petition was void. E.g., Carpenter, supra, 782 So.2d at 850; Goldsmith, 709 So.2d at 1353.”

McWilliams, 812 So.2d at 320-22 (footnote omitted).

Based on the statements in St. John and McWilliams, the supreme court’s intent regarding cases like the one before us is not clear. Nevertheless, because we cannot ascertain from the record before us whether the appellant paid the filing fee or whether the circuit court granted the appellant’s request to proceed in forma pau-peris, we cannot properly address the appellant’s argument that the circuit court did not have jurisdiction to rule on his petition. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings regarding whether the appellant paid the required filing fee and whether it actually granted his request to proceed in forma pauperis. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s written findings.

REMANDED WITH INSTRUCTIONS.

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

      . Although the circuit clerk's notice of appeal indicates that the appellant was granted indi-gency status in the circuit court and that indigency status was revoked on appeal, the record on appeal does not support those assertions.

      . We also noted that McWilliams should have filed his petition in the Montgomery Circuit Court, where he was convicted, because his claims were cognizable in a Rule 32 petition.

      . The supreme court also held that, because the petition should have been filed in the Montgomery Circuit Court, we should not have dismissed McWilliams’ appeal. Rather, it held that we should have reversed the Es-cambia Circuit Court's judgment and remanded the case with instructions that that court transfer the petition to the Montgomery Circuit Court. Therefore, the supreme court held that McWilliams would not have been subject to the docket fee.


author: WISE, Judge.

text:
    Eric McFADDEN v. STATE of Alabama.
    CR-01-2241.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Eric McFadden, pro se.
    Andrew W. Redd, gen. counsel, and William F. Addison, asst. gen. counsel, Department of Corrections, for appellee.
   WISE, Judge.

Eric McFadden appeals from the circuit court’s summary denial of his petition for a writ of habeas corpus. McFadden’s petition challenged a prison disciplinary proceeding in which he was found guilty of violating Rule 35 in Annex A to the Alabama Department of Corrections, Administrative Regulation 403, fighting without a weapon, and of violating Rule 86 in Annex A, being fired from a job. The hearing officer found McFadden guilty of both offenses. As a result of the officer’s findings, McFadden lost six months’ good time, he was transferred to a higher security level institution, and his case was referred to social services for further review. McFadden also lost all privileges for 30 days as a result of being fired from his job.

On April 9, 2002, McFadden filed a petition for a writ of habeas corpus with the Circuit Court of Elmore County, alleging that the disciplinary proceeding failed to comport with due-process requirements because, he argued, the finding of guilt was based solely on hearsay testimony. The State moved to dismiss the petition, denying its averments and asserting that McFadden had received the full range of due process. On June 24, 2002, the circuit court dismissed the petition and ordered McFadden to pay a $157 filing fee. This appeal followed.

On appeal, McFadden restates his argument that he was denied the minimum due-process requirements established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), when the disciplinary hearing officer made a decision based solely on hearsay testimony. The loss of good time constitutes a denial of a liberty interest that triggers the due-process requirements established in Wolff v. McDonnell. Hearin v. State, 741 So.2d 1122, 1123 (Ala.Crim.App.1999); Summer-ford v. State, 466 So.2d 182, 183 (Ala.Crim.App.1985). Under Wolff v. McDonnell, an inmate facing a disciplinary proceeding is entitled to notice of the claimed violation and has the right to call witnesses and present documentary evidence in his behalf and receive a written statement by the fact-finders as to the evidence relied on and the reasons for the disciplinary action. 418 U.S. at 563, 94 S.Ct. 2963; Brown v. State, 592 So.2d 621, 623 (Ala.1991); Hea-rin v. State, 741 So.2d at 1123; Young v. State, 584 So.2d 553, 554 (Ala.Crim.App.1991). Our review of the record indicates that McFadden received notice of the alleged violations, that he elected not to call witnesses, and that the hearing officer provided written findings of fact.

However, in order for the requirements of due process to be satisfied, the record must also show that there is “some evidence” to support the decision to revoke McFadden’s good-time credits. See Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). See also Headley v. State, 720 So.2d 996, 997 (Ala.Crim.App.1998). As this Court has recognized on numerous occasions, hearsay evidence alone is insufficient to satisfy the “some evidence” standard. See, e.g., Griffin v. State, 636 So.2d 1285, 1286 (Ala. Crim.App.1994).

Here, the sole evidence upon which the finding of guilt was based was the hearsay testimony of Sgt. James A. Kennedy, the arresting officer, regarding what a person who was not incarcerated told him about the incident. As this Court noted in Bridges v. State, 636 So.2d 696 (Ala.Crim.App.1993):

“Due process requires that the decision of the state disciplinary board or a hearing officer not be made arbitrarily or capriciously, but be based upon some evidence. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Heidelburg v. State [, 522 So.2d 337 (Ala.Crim.App.1988) ]. Hearsay testimony may be admissible in prison disciplinary hearings; however, it may not alone be sufficient to support a finding of guilt. Pearsall v. State, 564 So.2d 1014 (Ala.Cr.App.1989), rev’d in part on other grounds, 564 So.2d 1017 (Ala.1990). See also Ex parte Floyd, 457 So.2d 961 (Ala.1984). Situations arise where findings of guilt based entirely on hearsay are proper and necessary; however, in those cases certain measures must be taken to ensure minimum due process. Pearsall v. State.”

636 So.2d at 697.

Taking into consideration all the circumstances, we do not find that the hearsay testimony of Sgt. Kennedy constitutes “some evidence” so as to satisfy the requirements of due process. No reason was given for the State’s failure to produce the unidentified “free-world person” who had direct knowledge of the incident. The State presented nothing to indicate the reliability of the hearsay testimony, other than a “body chart” indicating that McFadden suffered no injuries as a result of the fight. Although the State argues that the body chart detailing the injuries of inmate Steve Orr, with whom McFadden had been fighting, supplied sufficient nonhearsay evidence to support the hearing officer’s finding, our examination of the record reveals otherwise. Orr’s chart reads simply, “I got in a fight at work” and does not indicate that that fight was with McFadden; we cannot say that this constitutes “some evidence” so as to satisfy the requirements of due process.

Based on the foregoing, we hold that the hearing officer’s finding of guilt was not supported by some evidence and that the officer’s finding was, therefore, arbitrary and capricious. See Oliver v. State, 770 So.2d 1116, 1118 (Ala.Crim.App.2000); Bridges v. State, supra, 636 So.2d at 697. The judgment of the circuit court dismissing the habeas corpus petition is hereby reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Charles Nicholas TURNER v. STATE of Alabama.
    CR-01-2112.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.
    Elizabeth H. Huntley, Clanton, for appellant.
    Charles Nicholas Turner, pro se.
    William H. Pryor, Jr., atty. gen., and H. Clay Barnett III, asst. atty. gen., for ap-pellee.
   BASCHAB, Judge.

Pursuant to a negotiated agreement, the appellant, Charles Nicholas Turner, pled guilty to unlawfully breaking and entering a vehicle, a violation of § 13A-8-ll(b), Ala. Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of 15 years in prison. See § 13A-5-9(c)(l), Ala.Code 1975. It then split the sentence and ordered him to serve 36 months in prison followed by 60 months on supervised probation. The appellant did not file any post-judgment motions. This appeal followed.

Appellate counsel filed a brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that she had not found any non-frivolous issues to raise on appeal. The appellant did not file any pro se issues for our consideration.

However, our examination of the record reveals that the appellant was indicted for one count of first-degree theft of property, two counts of third-degree burglary, and one count of third-degree theft of property. The third-degree burglary charge in Count 2 of the indictment was amended by agreement to charge unlawfully breaking and entering a vehicle, and the appellant pled guilty to that charge. Count 2 of the indictment alleged that the appellant

“did knowingly enter or remain unlawfully in a building of Monica Turner with intent to commit a crime therein, to-wit: theft, in violation of Section 13A-7-7 of the Code of Alabama....”

(C.R.4.)

“A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”

§ 13A-7-7(a), Ala. Code 1975.

“A person commits the crime of unlawful breaking and entering a vehicle if, without the consent of the owner, he breaks into and enters a vehicle-or any part of a vehicle with the intent to commit any felony or theft.”

§ 13A-8-ll(b), Ala.Code 1975. The commentary to § 13A-8-11, Ala.Code 1975, states:

“In 1979, the legislature added the crime of unlawful breaking and entering a vehicle, subsection (b), which essentially re-instates the former offense of burglary of motor vehicles, former § 13-2-42. Since burglary under the Criminal Code is technically concerned only with the unlawful entering or remaining in buildings and dwellings, none of those degrees cover the illegal entry of vehicles in general. Also, burglary no longer requires proof of a breaking — only an entry. Hence, while a related crime, the conduct here proscribed is not a lesser included offense of any degree of burglary.”

(Emphasis added.) Even though the appellant agreed to amend the indictment to charge unlawfully breaking and entering a vehicle, unlawfully breaking and entering a vehicle is not a lesser included offense of third-degree burglary. A defendant cannot properly consent to amending an indictment to charge an offense that is not a lesser included offense of the indicted offense. See Scott v. State, 742 So.2d 799 (Ala.Crim.App.1998); Green v. State, 619 So.2d 952 (Ala.Crim.App.1993); Ross v. State, 529 So.2d 1074 (Ala.Crim.App.1988); Rule 13.5(a), Ala. R.Crim. P. Therefore, the trial court did not have jurisdiction to accept the appellant’s guilty plea to unlawfully breaking and entering a vehicle, and that court’s judgment is void. See Glover v. State, 649 So.2d 216 (Ala.Crim.App.1994); Ross, supra. The conviction and sentence that resulted from the guilty plea are a nullity and are hereby vacated. Finally, “[bjecause the trial court’s actions were void, there is no judgment to support an appeal.” Carpenter v. State, 782 So.2d 848, 850 (Ala.Crim.App.2000). Accordingly, we vacate the trial court’s judgment and dismiss this appeal.

JUDGMENT VACATED; APPEAL DISMISSED.

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

      . The remaining counts in the indictment were nolle prossed.


author: BASCHAB, Judge. COBB, Judge,

text:
    C.M.R. v. STATE of Alabama.
    CR-01-1290.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.
    Clarence Dortch III, Talladega; and W.L. Williams, Jr., Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW and WISE, JJ., concur; COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

In its unpublished memorandum, the majority states that C.M.R. “was adjudicated delinquent based on a charge of second-degree criminal mischief, a violation of § 13A-70-22, Ala.Code 1975.” C.M.R. was accused of throwing a rock that struck and damaged a patrol car. The majority states that the parties stipulated that the patrol car sustained $127.50 worth of damage. The majority also acknowledges that the statute defining criminal mischief in the second degree provides that to constitute second-degree criminal mischief the damage to property must exceed $250, while the statute defining criminal mischief in the third degree provides that the damage to property must not exceed $250. Notwithstanding the foregoing, in response to C.M.R.’s allegation on appeal that the State did not sustain its burden of proof in a delinquency adjudication for criminal mischief in the second degree because the damage did not exceed $250, the majority finds no error. The majority offers the following reasons in its attempt to support its conclusion: 1) that, after C.M.R. argued that the State had failed to establish the elements of the charged offense, the prosecutor argued that the complaint could be amended to charge third-degree criminal mischief; and 2) that the juvenile court’s order simply stated that C.M.R. committed “an offense,” and the juvenile court did not state that its adjudication was based on a finding of second-degree criminal mischief.

It was with some initial hesitancy that I decided to dissent in this case. The juvenile court judge knew the law, and the case was tried to the judge and not to a jury. With the proverbial “wink and a nod,” I could have argued that the trial court had obviously intended to allow the State to amend the complaint to charge third-degree criminal mischief but that it had failed to state its intent for the record. Or I could have argued that, although the trial court had faded to state in its order that it was adjudicating C.M.R. delinquent based on a charge of third-degree criminal conduct, it had intended to do so. I could make neither of those arguments in good faith, however, because those arguments are supported by neither the record nor the law.

“Recognizing the quasi-criminal nature of delinquency proceedings, we have recently held that due process and our Juvenile Code require that an adjudication of delinquency be reversed if there is a material variance between the allegations of the delinquency petition and the proof introduced at trial. Scott v. State, 374 So.2d 316 (Ala.1979). Lest this leave any room for confusion, we now hold, based on the reasoning of that case, that the allegations of a delinquency petition must be tested by the same standards of sufficiency as a criminal complaint for indictment.”

Driskill v. State, 376 So.2d 678, 679 (Ala.1979). In Ex parte Vaughn, 495 So.2d 83 (Ala.1986), the Alabama Supreme Court reversed the judgment of this Court and held that the juvenile had been erroneously adjudicated delinquent on a charge of first-degree assault. In that case, the Court stated, “The record shows, and in fact the State concedes, that the petitioner did not commit the offense of assault in the first degree because there was no serious physical injury to the victim.” Id. at 84 (footnote omitted). The Court did not simply enter a judgment on a lesser-included offense. The holdings of Ex parte Vaughn and Driskill v. State do not support the majority’s decision in the ease before us.

In this case, the State failed to prove a prima facie case of second-degree criminal mischief, because, as the parties stipulated, the amount of damage involved was below the statutory limit for that offense. It is possible that the juvenile judge intended to grant the State’s motion to amend the charge but failed to do so on the record. It is also possible that the judge intended to adjudicate C.M.R. delinquent based on a charge of third-degree criminal mischief but failed to state this on the record or in its order. The juvenile judge, as the fact-finder in this case, was authorized to find that C.M.R. committed third-degree criminal mischief and to state that finding on the record. The fact remains, however, that the record does not reflect either that the complaint was amended to charge the lesser offense or that C.M.R. was adjudicated on an offense other than the one with which he was charged. At a minimum, this Court should remand the cause to give the juvenile judge the opportunity to clarify the record and its order, or to order that court to adjudicate C.M.R. delinquent based on a finding that he committed third-degree criminal mischief. See M.T.R. v. State, 620 So.2d 753 (Ala.Crim. App.l993)(where the evidence was insufficient to establish the charge of first-degree assault, the cause was remanded for the juvenile court to adjudicate M.T.R. delinquent on the underlying charge of assault in the second degree). The record, as it now appears before us, indicates that C.M.R. was adjudicated delinquent based on a finding of criminal mischief in the second degree, and this adjudication will appear in any subsequent proceeding C.M.R. might have in juvenile court. Even this Court’s unpublished memorandum states that C.M.R. was adjudicated “based on a charge of second-degree criminal mischief....” This error, although admittedly relatively minor, should not be ignored or skirted. Doing so is fundamentally unfair to C.M.R. and, I believe, it shows a disregard for the law and for the importance of accuracy in criminal records.

The majority cites Ex parte N.W., 748 So.2d 190 (Ala.1999); however, that case does not support its holding on this issue. The majority cites Ex parte N.W. for the proposition that specification of an offense in a delinquency petition constitutes a charge of that offense and all lesser-included offenses. I do not disagree with that oft-stated proposition of law, but it does not address the fundamental error in this case. Nothing in the record in C.M.R.’s case indicates that the trial court actually adjudicated C.M.R. delinquent on the lesser offense. As I noted above, the record, as it stands before us, suggests that C.M.R. was adjudicated based on a finding that he committed the greater offense of criminal mischief in the second degree.

I believe that this case should be remanded to address this fundamental error. Accordingly, I dissent.


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

text:
    Bruce Douglas PACE, Appellant, v. STATE of Florida, Appellee. Bruce Douglas Pace, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC01-1831, SC02-519.
    Supreme Court of Florida.
    May 22, 2003.
    Rehearing Denied Sept. 2, 2003.

      Michael P. Reiter, Capital Collateral Counsel — Northern Region, and John M. Jackson, Assistant CCC-NR, Office of the Capital Collateral Representative, Northern Region, Tallahassee, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Curtis M. French, Senior Assistant Attorney General, Tallahassee, FL, for Ap-pellee/Respondent.
   PER CURIAM.

Bruce Douglas Pace appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Pace also files a petition for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court’s order denying Pace’s rule 3.850 motion, and wé deny Pace’s petition for a writ of habeas corpus.

BACKGROUND

On November 7, 1989, investigators found Floyd Covington’s bloodstained taxicab in a wooded area. Bloodstain patterns indicated that Covington was shot while he was sitting in the driver’s seat, with the first shot coming from the passenger’s side. Covington’s body was found three days later in another wooded area approximately twelve miles from where the taxicab was found. Covington had been shot twice with a shotgun. Serology testing showed that the blood in the taxicab was consistent with Covington’s type. An investigation led police to Pace, who was an acquaintance of Covington’s.

During Pace’s trial, the State presented evidence that Pace was seen driving Cov-ington’s taxicab on the morning of the murder; Pace’s clothing had bloodstains that were consistent with Covington’s blood type; Pace’s fingerprint was found on the driver-side window of the taxicab; and Pace stated to a witness the night before the murder that he was going to do something he hated to do because he needed money. Pace’s stepfather testified that Pace informed him that after Covington had given Pace a ride to his stepfather’s home, Pace entered the home through an open window and was choked to unconsciousness. Pace told his stepfather that he awoke in the woods, lying next to a shotgun and Covington’s car, and after noticing blood in the car, he grabbed the gun and left the scene. Also, on the morning after the murder, Pace’s stepfather recovered from the front yard of his house two shotgun shells that were consistent with the type used to kill Covington. Pace had possession of the shotgun believed to be the murder weapon. A jury convicted Pace of first-degree murder and armed robbery.

During Pace’s penalty phase, the State introduced a copy of a judgment of conviction for strong-arm robbery that Pace committed on December 4, 1981, for which he had received a fifteen-year sentence. Additionally, the State presented the testimony of probation officer Robert Mann, who testified that Pace was on parole at the time of the murder. Pace’s counsel presented five witnesses: Paul Campbell, a correctional officer, who testified that Pace had been a model prisoner; Hurley Manning, Pace’s high school football coach, who testified that Pace had been a hardworking football player and the type of player you would want in the program; Robert Settles, Pace’s former employer, who testified that Pace had been a master sawman with a lot of potential, which Pace unfortunately had not lived up to; Evelyn Rich, Pace’s aunt, who testified that Pace was a loving, caring person who came from a good, supportive family; and Lillian Rich, Pace’s mother, who testified that Pace worked to support the family after Pace’s stepfather left when Pace was thirteen or fourteen years old.

During the penalty phase closing arguments, the State argued that five aggravating circumstances applied: (1) Pace was on parole at the time of the murder; (2) Pace was previously convicted of a violent felony; (3) the murder was committed during the commission of a robbery; (4) the murder was committed to avoid arrest; and (5) the murder was committed in a cold, calculated, and premeditated manner. Pace’s counsel argued that Pace was a human being and a good person with a good heart, and that the State exaggerated the aggravating circumstances of the murder.

The jury recommended by a seven-to-five vote that Pace be sentenced to death. The trial court followed the jury’s recommendation and sentenced Pace to death, finding three aggravating circumstances: (1) Pace had a previous conviction for a violent felony; (2) Pace was on parole at the time of the murder; and (3) the murder was committed during the course of a robbery. The trial court found no mitigating circumstances. See State v. Pace, No. 88-CF-689 order at 3 (Fla. 1st Cir. Ct. order filed Nov. 16,1989).

Pace appealed to this Court, raising seven issues. This Court affirmed Pace’s convictions and sentence. This Court found that the trial court erred by limiting Pace’s cross-examination of a witness regarding a third shotgun shell but held that the error was harmless. Regarding Pace’s penalty phase, this Court held:

[T]he aggravating circumstances of previous convictions of felony involving violence, committed while on parole, and committed while engaged in a robbery are all supported beyond a reasonable doubt. The trial judge found no statutory mitigating circumstances and, after reviewing the nonstatutory mitigating evidence, concluded that none of the suggested mitigating factors had been established. Considering the totality of the circumstances, we conclude that the record supports the trial judge’s conclusion. Accord Floyd v. State, 569 So.2d 1225 (Fla.1990). Even if one or more nonstatutory mitigating factors were wrongfully rejected, we are persuaded beyond a reasonable doubt that the weight thereof was so insignificant that the trial judge would have imposed death. Because the aggravating circumstances outweigh any nonstatutory mitigating evidence, death is the appropriate penalty. Accord Eutzy v. State, 458 So.2d 755 (Fla.1984), cert. denied, 471 U.S. 1045, 105 S.Ct. 2062, 85 L.Ed.2d 336 (1985); Johnson v. State, 438 So.2d 774 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984).

Pace v. State, 596 So.2d 1034, 1035-36 (Fla.1992).

On March 7, 1997, Pace filed an amended rule 3.850 motion for postconviction relief, raising twenty-one claims. The circuit court below (postconviction court) held a Hujf hearing, thereafter summarily denied several of Pace’s claims, and scheduled an evidentiary hearing on the remaining claims. Following the evidentiary hearing, the postconviction court entered a final order denying all relief. Pace v. State, No. 88-CF-689 (Fla. 1st Cir. Ct. order filed June 11, 2001) (postconviction order). Pace now appeals the postconviction court’s denial of his rule 3.850 motion. He also petitions this Court for a writ of habeas corpus.

RULE 3.850 APPEAL

Pace’s rule 3.850 appeal asserts the following: (1) the postconviction court erred by denying Pace’s claim regarding ineffective assistance of penalty-phase counsel; (2) the postconviction court erred by denying Pace’s claim regarding ineffective assistance of guilt-phase counsel; (3) the postconviction court erred by denying Pace’s Brady claims; (4) the postconviction court erred by denying Pace’s claim regarding ineffective assistance of guilt-phase counsel for failing to object to prose-cutorial comments on Pace’s silence; (5) Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 158 L.Ed.2d 556 (2002), renders Florida’s capital sentencing scheme unconstitutional; and (6) the postconviction court denied Pace access to public records. We now address each issue raised.

Issue I. Ineffective Assistance of Penalty-Phase Counsel

To establish a claim of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689,104 S.Ct. 2052. Additionally, “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697,104 S.Ct. 2052. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In Occhicone v. State, 768 So.2d 1037 (Fla.2000), this Court stated: “Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Id. at 1048 (citations omitted).

Regarding the review of a postconviction court’s Strickland analysis, this Court stated:

[T]he performance and prejudice prongs are mixed questions of law and fact subject to a de novo review standard but ... the trial court’s factual findings are to be given deference. See Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999). So long as its decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court. Id. We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.

Porter v. State, 788 So.2d 917, 923 (Fla.2001). Pace claims that penalty-phase counsel was ineffective for failing to present evidence of Pace’s history of crack addiction and for failing to provide an adequate mental health examination. Pace further claims that penalty-phase counsel was ineffective for failing to present evidence of Pace’s difficult childhood.

A. Failure to Investigate and Present Evidence of Crack Addiction and Failure to Provide an Adequate Mental Health Examination

Pace’s first claim of ineffective assistance of penalty-phase counsel involves three subclaims: (1) counsel was ineffective for failing to investigate and present evidence; (2) counsel was ineffective for failing to adequately prepare mental health experts; and (3) counsel was ineffective for fading to have Pace examined by a neuropsychologist. The postconviction court found that there was no deficient performance and therefore did not address the prejudice prong.

Pace alleges that penalty-phase counsel Sam Hall was ineffective for failing to investigate and present evidence that Pace was addicted to crack. “[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” State v. Riechmann, 111 So.2d 342, 350 (Fla.2000). This claim was rejected by the posteonvietion court after the evidentiary hearing. At the hearing, attorney Hall testified that at the time of Pace’s trial, Hall considered himself an experienced capital attorney. Hall had fully tried one capital case and worked substantially on another prior to Pace’s trial. He further testified regarding the details of the penalty-phase investigation.

The postconviction court found that the evidence presented at the evidentiary hearing showed that Hall’s investigation consisted of the following: (1) deposing several witnesses; (2) utilizing an investigator to interview witnesses for potential mitigating evidence; (3) obtaining witness statements from the State; (4) obtaining Pace’s school records; and (4) securing two mental health experts, psychologist Dr. James Larson and psychiatrist Dr. Peter Szmurlo, to examine Pace. Dr. Larson and Dr. Szmurlo provided Hall with examination reports that did not reveal any significantly mitigating information and were otherwise unfavorable to Pace. Although Dr. Szmurlo’s examination report stated that Pace denied having any psychiatric problems “[ejxcept for a rather heavy use of cocaine,” attorney Hall testified that Pace consistently related to Hall that he was suffering from no drug-related effects at the time of the offense. Neither expert requested that Pace be evaluated by an addiction specialist nor indicated that Hall’s crack use might have affected his mental health at the time of the offense. Hall interviewed several of Pace’s friends and relatives regarding Pace’s crack use but, as the postconviction court stated, “individuals close to Pace failed to disclose any information that either augmented or sharply contradicted Pace’s own self reports of crack use.” Postconviction order at 13. We find no error in the postconviction court’s denial of relief based upon that court’s detailed evaluation of the evidence.

Regarding Pace’s claim that Hall was ineffective for failing to present evidence of Pace’s crack use, the postconviction court concluded that “given the unfavorable psychological opinions, counsel’s tactical decision to humanize [Pace] and not present any evidence of his drug use was a reasonable strategy.” Postconviction order at 20. The postconviction court’s conclusion is supported by the testimony regarding Pace’s representations to Hall and by the generally unfavorable expert opinions. “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Thus, there is competent, substantial evidence to support the postconviction court’s finding that Hall made a strategic decision to present Pace’s positive attributes over evidence of his crack use. We find no legal error in the postconviction court’s determination that Hall’s decision was not deficient performance in light of the information that both the experts and Pace provided to Hall. Cf. Rutherford v. State, 727 So.2d 216, 223 (Fla.1998).

Pace asserts that in denying this claim, the postconviction court erroneously relied upon the same assumption that Hall had relied upon — that Pace had to be under the influence of drugs at the time of the offense. However, we do not find that either Hall or the postconviction court relied upon such an assumption. Hall’s testimony was that in his experience, Pace’s cocaine addiction would only be considered “significantly” mitigating if some effect of the addiction could be linked to Pace’s conduct at the time of the offense. Because Pace continued to assert that he was not affected by his crack use at the time of the offense and because Dr. Larson and Dr. Szmurlo, the experts hired by Hall, did not report that Pace’s crack use affected his mental health at the time of the offense, Hall concluded that evidence of Pace’s past crack use would be more prejudicial than beneficial under the circumstances of the defense. Hall concluded that the evidence of crack use would be contrary to his strategic efforts to emphasize with the jury that Pace “had some good qualities and was a human being who should be saved.” Our review of the post-conviction order reveals that the court made a factual determination based upon the evidence presented that Hall’s decision was strategic and that the postconviction court applied the correct rule of law.

Pace’s second claim of ineffective assistance of penalty-phase counsel asserts that Hall was ineffective for failing to adequately prepare mental health experts, effectively denying Pace an adequate mental health evaluation. Pace points to the fact that had Hall provided Dr. Szmurlo and Dr. Larson with the information that post-conviction counsel provided, both experts would have found that both statutory mental mitigators were applicable. Pace also asserts that Hall was ineffective for failing to explain mitigating circumstances to Dr. Szmurlo.

In its detailed order, the postconviction court denied this claim and stated:
[Pace] asserts that Szmurlo and Larson improperly diagnosed Pace due to the failure of counsel to provide the experts with sufficient background information. This claim is without merit for several reasons. First and foremost, trial counsel’s investigation into [Pace’s] drug use was reasonable based upon the representations of [Pace] and others. Second, counsel did not withhold any essential information from either expert that was within their possession. Third, neither expert believed at the time of the original evaluation that they had inadequate information to render a diagnosis nor requested additional information from counsel. Fourth, counsel did provide the experts with information that contained insight into [Pace’s] background.
The record reveals that counsel provided Szmurlo and Larson with police investigative reports that contained information pertaining to [Pace’s] crack use, hygiene issues, emotional state, and the fact that he stayed in an abandoned house. Counsel also provided Dr. Larson with numerous pretrial statements and depositions. In addition to the background materials, each expért had an opportunity to interview [Pace] and Pace reported heavy crack use to both of them. Despite their knowledge of his crack use and aberrant behavior, both experts failed to develop the presence of organic brain damage or statutory mental mitigation during their initial evaluations. In addition, neither expert recommended that an addictions specialist examine Pace. Counsel is not deficient for relying upon the experts’ opinions and deciding not to further investigate or present information on Pace’s crack use or organic brain damage.
Moreover, the fact that [Pace] has now secured favorable testimony of mental mitigation and brain damage from Dr. Michael Herkov and Dr. Barry Crown does not render counsel’s investigation into mitigation ineffective. See Asay v. State, 769 So.2d 974, 986 (Fla.2000); Jones v. State, 732 So.2d 313, 320 (Fla.1999); Rose v. State, 617 So.2d 291, 294 (Fla.1993). See also Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997) (stating “mere fact a defendant can find, years after the fact, a mental health expert who will testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that expert at trial.”). Counsel diligently obtained two mental health professionals to examine Pace prior to trial but those experts failed to provide counsel with favorable information. As indicated above, counsel is not deficient for reasonably relying upon the opinions of Szmurlo and Larson and not seeking out additional experts. See Card v. Dugger, 911 F.2d 1494, 1513 (11 Cir.1990) (stating counsel is not required to shop for a psychiatrist who will testify in a particular way).
Furthermore, the fact that Szmurlo and Larson have now changed their diagnosis does not render counsel’s background investigation ineffective. At the evidentiary hearing, Szmurlo and Larson both testified that they currently believe that Pace was suffering from an emotional disturbance at the time of the murder and his ability to conform his conduct to the requirements of the law was impaired. However, the information that Szmurlo and Larson attribute to this change in opinion is comprised primarily of individuals who have changed their accounts of Pace’s behavior or other information that counsel had no reason to pursue due to the representations of [Pace] and others.
Of the 10 recently obtained affidavits that collateral counsel submitted to the experts, trial counsel had deposed five of the affiants prior to Pace’s trial. Barry Copeland, Ella Mae Green, Melanie Pace, Cynthia Pace, and Hilda Pace were each questioned regarding Pace’s drug use and none of these witnesses offered information they provided in the recent affidavits. Trial counsel cannot be deemed ineffective for failing to provide information to mental heath experts that the affiants chose not to disclose to counsel when originally questioned. As for the remaining affiants, trial counsel had no reason to pursue these individuals in light of the information they received from [Pace] and his friends and family.
Collateral counsel also provided the experts with a presentence investigation report (“PSI”) for his strong arm robbery conviction and Pace’s school records. Although this information was available to counsel prior to [Pace’s] trial, counsel is not obligated to pursue every conceivable record that pertains to [Pace’s] background. Trial counsel had information on the prior offense from the records he obtained from the Department of Corrections and made a tactical decision to limit information on this offense to the experts. Further, trial counsel were aware that [Pace] did not have significant disciplinary problems in school and that he graduated from high school. Thus, trial counsel is not deficient for failing to obtain records that counsel had no reason to believe contained any favorable mitigating information.
In addition, collateral counsel provided Szmurlo with Section 921.141, Florida Statutes (1999), the statute governing aggravating and mitigating circumstances. [Pace] contends that counsel were ineffective for failing to provide Szmurlo, who was inexperienced in evaluations for capital cases, with more explicit instructions on mitigation. The record reveals that counsel sent Szmur-lo a letter detailing the scope of the evaluation and directing him to look for “mitigating circumstances.” No other explanation was provided but Szmurlo testified at the evidentiary hearing that he understood that he was looking for anything of significance from a psychiatric standpoint that would have rendered [Pace’s] judgment to be deficient. Although Szmurlo was not aware of the statutory definition of mitigating circumstances pursuant to section 921.141(6), Fla. Stat. (1989), the term mitigation has a common meaning and his testimony demonstrates that he understood his role. Therefore, counsel’s failure to provide Szmurlo with a legal definition of mitigation did not adversely impact his evaluation. See generally Roche v. State, 690 N.E.2d 1115, 1128 (Ind.1998) (stating that the term mitigation is a term of general use that is understood by persons of ordinary intelligence).

Postconviction order at 16-19 (footnotes and record citations omitted).

We find that there is competent, substantial evidence to support the postconviction court’s findings of fact, and we find no error in the trial court’s denial of Pace’s second subclaim of ineffective assistance of penalty-phase counsel.

Pace’s third subclaim asserts that penalty-phase counsel was ineffective for failing to have Pace examined by a neurop-syehologist. This claim was properly rejected by the postconviction court as being without merit. Neither of the two experts who examined Pace indicated the possibility of brain damage after both administered neuropsychological testing, and a capital defendant does not have an independent right to be examined by a neuropsychologist.

B. Failure to Present Evidence of Pace’s Difficult Childhood

Pace next asserts that Hall was ineffective for failing to present evidence that Pace suffered a difficult childhood and was greatly affected by the death of his grandmother. We find no error in the postconviction court’s determination that Pace failed to demonstrate that Hall was deficient in respect to this evidence. There was evidence presented at the evi-dentiary hearing which indicated that Pace received stricter punishment from his stepfather (with no elaboration as to the punishment), that he was affected by his stepfather’s departure and return, and that Pace was close to his grandmother and became 'withdrawn after her death. However, there was competent, substantial evidence supporting the postconviction court’s conclusion that the evidence presented at the evidentiary hearing failed to establish an abusive childhood. Moreover, evidence concerning the fact that Pace’s stepfather had abandoned the family during Pace’s childhood was presented during the penalty phase.

Regarding the death of Pace’s grandmother, witnesses at the postconviction ev-identiary hearing did not testify that Pace’s grandmother’s death had any strong effect on Pace. Competent, substantial evidence supports the postconviction court’s finding that witness testimony “was not detailed or substantial enough to attribute Pace’s extreme behavioral changes to her death.” Postconviction order at 21-22. We agree with the postconviction court’s denial of relief.

Issue II: Ineffective Assistance of Guilt-Phase Counsel

Pace asserts that his guilt-phase counsel was ineffective for failing to present a voluntary intoxication defense and an insanity defense based on Pace’s crack use. The postconviction court’s order denying this claim states:

Counsel abandoned this defense for the following reasons: (a) representations by [Pace] that he was not intoxicated at the time of the offense; (b) third party observations of [Pace] around the time of the crime that indicated that he did not appear intoxicated; (c) opinions from two mental health experts that stated the involuntary intoxication defense was not applicable. In addition, [Pace’s] confession to the defense investigator indicated a clear recollection of the facts of the offense and involved deliberate behavior, such as secreting the body and taxi as well as driving the taxi. Thus, trial counsel is not deficient for rejecting an intoxication defense that did not appear viable and was unsupported by the evidence.

Postconviction order at 8 (footnote and record citation omitted). The postconviction court’s factual findings are supported by competent, substantial evidence in the record. Pace reiterated to guilt-phase counsel on numerous occasions that he was not intoxicated during the commission of the crime. There was also no indication from the experts that Pace was insane at the time of the offense, and guilt-phase counsel testified that he believed Pace was competent. We find no error in the post-conviction court’s determination that Pace’s guilt-phase counsel did not act defi-ciently by failing to present a voluntary intoxication defense or an insanity defense. Therefore, Pace has failed to demonstrate ineffective assistance of guilt-phase counsel.

Issue III. Brady Claims

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The Court later announced the three-prong test a defendant must establish to successfully assert a Brady claim: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The question regarding whether prejudice ensued (also referred to as whether the evidence is material) “is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Id. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). The standard of review is de novo for the legal question of prejudice while giving deference to the postconvietion court’s factual findings. See Rogers v. State, 782 So.2d 373, 377 (Fla.2001).

Pace asserts that the State suppressed a fingerprint smudge report and a written reprimand of Investigator Jean Shirah.

A. The Fingerprint Smudge Report

On the second day of Pace’s trial, prosecutor Kim Skievaski directed sheriffs officers to conduct an experiment to determine whether a fingerprint on the window of the victim’s taxicab would smudge if the window was rolled down and up again. The officers determined in a written report that a fingerprint would not smudge. This report was not provided to Pace’s counsel.

The postconviction court held that Pace failed to demonstrate that the withheld smudge report was sufficiently exculpatory. The court cited the following facts to support its conclusion.

At the Defendant’s trial, the evidence revealed the existence of one latent print attributable to Pace on the exterior of the driver’s side window of Covington’s cab. Defense counsel diminished the ev-identiary value of this print by eliciting testimony that Pace occasionally worked for Covington and had often ridden in his cab. In addition, the State’s expert conceded that there is no scientific method to determine the age of a print and a print can remain on a surface for an indefinite period of time under ideal conditions. Thus, the fingerprint evidence alone failed to establish a sufficient link between the Defendant and the murder of Covington.[n.] Given the weakness of the fingerprint evidence, a report that indicated that a print would not smudge if the window were rolled down is of little significance.
[n.] Examples of more substantial evidence linking Pace to the crime are the following: witnesses placed the Defendant in Covington’s cab on the morning of the murder, Pace had possession of the shotgun believed to be the murder weapon, the Defendant had human blood that matched the victim’s blood type on his clothing the day of the murder, and witnesses placed the Defendant near the location where the cab was dumped after the murder.

Postconviction order at 25-26 (record citations omitted). The record supports the postconviction court’s factual findings, and we approve the postconviction court’s denial of this claim. Pace has not demonstrated that the evidence is sufficiently exculpatory or that prejudice ensued. The information provided in the smudge report would have been cumulative to other evidence presented by Pace’s counsel, and it was not favorable enough “to put the whole case in such a different fight as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555.

B. Reprimand of Investigator Jean Shirah

Investigator Jean Shirah was a deputy sheriff who testified during Pace’s trial. Two months before Pace’s trial, Shi-rah knowingly gave false information under oath during a deposition for an unrelated case. Shirah had testified that she had collected a particular exhibit during a search, when in fact the item had been collected by another officer. The State Attorney’s office subsequently reprimanded Shirah, issued her a written reprimand, and notified the Public Defender’s office. Pace asserts that the failure to disclose the written reprimand issued to Shirah constitutes a Brady violation.

The postconviction court held that Pace failed to demonstrate that the State suppressed this evidence because the State Attorney’s office communicated to Pace’s counsel that Shirah gave false testimony, and Pace’s counsel testified that he was probably aware that Shirah had been reprimanded. Additionally, the postconviction court held that Pace failed to establish that prejudice ensued. We find no error in the decision that there was no Brady violation. See Stewart v. State, 801 So.2d 59, 70 (Fla.2001).

Issue IV. Prosecutorial Comments on Pace’s Silence

Pace alleges that guilt-phase counsel was ineffective for failing to object to and preserve improper prosecutorial comments relating to Pace’s silence. Pace alleges that the following prosecutorial comments were improper:

The Defendant never makes one mention of Floyd Covington or about the story that he told to either May Green or Michael Green. And you recall their testimony about whether or not it appeared he had been injured in any way or complained about being injured in any way....
He never reported it, not to any law enforcement agency, not to May Green, Michael Green, not to anyone else. He never tells anybody that he was injured, never reports what happened to him or Floyd Covington.

The postconviction court denied this claim, stating:

At [Pace’s] trial, Harvey Rich, [Pace’s] stepfather, testified that Pace told him the following: Covington had given Pace a ride home on the morning of his disappearance, November 4, 1988; Pace entered the home through an open window and was choked to unconsciousness; Pace regained consciousness in the woods lying next to his brother’s shot gun and Covington’s car; he picked up the gun and left the scene after noticing blood in the car. During closing argument, [trial counsel] asserted that the State had not presented any evidence to disprove Pace’s declaration of innocence to Rich.
The prosecutor’s comments were a fair response to defense counsel’s assertions as well as a permissible comment on the evidence. Viewing the comments in context, the prosecutor was not commenting on Pace’s failure to testify but on the reasonableness of the statement [Pace] made to Rich in light of his pre-arrest behavior. The prosecutor was simply attempting to direct the jury’s attention to the testimony and evidence presented that were inconsistent with his declaration of innocence to Rich. See generally Barwick v. State, 660 So.2d 685, 694 (Fla.1995). In addition, the behavior that the prosecutor is referring to deals with actions by [Pace] before he was advised of his right to remain silent. Therefore, trial counsel is not ineffective for failing to object to comments that were not fairly susceptible of being interpreted as comments on Pace’s right to remain silent.

Postconviction order at 6-7 (record citations omitted). We find no error in the postconviction court’s denial of this claim. Pace’s ineffective assistance claim is based on portions of the prosecutor’s arguments that were taken out of context. The prosecutor was not commenting on Pace’s failure to testify but was rather commenting on the inconsistencies in the hypothesis of innocence that Pace presented at trial. Pace has failed to demonstrate ineffective assistance of guilt-phase counsel for the failure to object to these prosecutorial comments.

Issue V. Ring v. Arizona

Pace raises this identical claim in his petition for writ of habeas corpus, and we will address the claim in our discussion of Pace’s habeas petition.

Issue VI. Access to Public Records

Pace filed numerous public records requests, including requests to the Santa Rosa County Sheriffs Department, the Milton Police Department, the Florida Department of Law Enforcement, and the First Judicial Circuit State Attorney’s office. The postconviction court denied these requests, finding that the public records stage of Pace’s case had ended. Pace raised a claim with the postconviction court in his rule 3.850 motion, alleging that certain state agencies failed to provide public records. The postconviction court detailed the history of the public records requests and then denied an evidentiary hearing on Pace’s claim. The postconviction court concluded, “The Court has attempted through every means available to bring some finality to Defendant’s request for public records disclosure.” State v. Pace, No. 88-CF-689 order at 3 (Fla. 1st Cir. Ct. order filed Dec. 15,1998).

Pace subsequently filed similar public records requests on December 28, 1998. He made no complaint and filed no motion to compel with the postconviction court regarding these requests. In Vining v. State, 827 So.2d 201, 219 (Fla.2002), this Court stated:

Although Vining now contends that there are many public records outstanding, he made no further complaint on the public records issue during the five-month span between the postconviction court’s public records order and the evi-dentiary hearing. Based on this record, we conclude that the court afforded Vin-ing ample time and opportunity to pursue any public records claim. Through his own actions, Vining either waived or abandoned any claim that he was denied public records.

Due to Pace’s inaction during the year and a half between his public records request and the evidentiary hearing, we conclude that Pace has waived or abandoned any claim that he was denied public records. See id.

PETITION FOR WRIT OF HABEAS CORPUS

Pace’s petition for a writ of habeas corpus asserts the following: (1) appellate counsel was ineffective for failing to argue that the cold, calculated, and premeditated (CCP) instruction was unconstitutionally vague; (2) appellate counsel was ineffective for failing to argue that the trial court committed fundamental error by instructing the jury on the avoid arrest aggravator; (3) Ring v. Arizona renders Florida’s capital sentencing scheme unconstitutional; (4) appellate counsel was ineffective for failing to challenge the trial court’s admission of a pair of pants into evidence; and (5) this Court erred by affirming Pace’s death sentence without assessing proportionality.

Habeas Issue I. CCP Instruction

Pace asserts that his appellate counsel was ineffective for failing to raise on direct appeal the claim that the CCP instruction given during Pace’s penalty phase was unconstitutionally vague. The instruction given was identical to that found unconstitutional in Jackson v. State, 648 So.2d 85, 89-90 (Fla.1994). When evaluating a claim of ineffective assistance of appellate counsel raised in a petition for writ of habeas corpus, this Court must determine

first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency-falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000).

Pace’s appellate counsel was not ineffective for failing to challenge the CCP instruction. Pace’s trial counsel did not object to the CCP instruction on the ground that the wording of the statute was unconstitutionally vague. Therefore, this claim was not preserved for appeal. In the absence of fundamental error, an appellate attorney has no obligation to raise an issue that was not preserved for review. See Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000). Pace does not assert that the erroneous CCP instruction constituted fundamental error, and this Court has held that claims of error based on this Court’s decision in Jackson are procedurally barred unless “[t]he objection at trial [attacks] the instruction itself, either by submitting a limiting instruction or making an objection to the instruction as worded.” Pope v. State, 702 So.2d 221, 223-24 (Fla.1997). Additionally, appellate counsel cannot be considered ineffective for failing to challenge a jury instruction on the basis of decisions that had not yet been decided. Cf. Downs v. State, 740 So.2d 506, 518 (Fla.1999).

Habeas Issue II. Avoid Arrest Aggravator Instruction

Pace asserts that appellate counsel was ineffective for failing to raise the fundamental error of allowing the avoid-arrest aggravator to be presented to the jury. However, the trial court did not commit error, much less fundamental error. “The fact that the state did not prove this ag-gravator to the trial court’s satisfaction does not require a conclusion that there was insufficient evidence ... to allow the jury to consider the factor.” Bowden v. State, 588 So.2d 225, 231 (Fla.1991). Appellate counsel was not ineffective for failing to raise this issue.

Habeas Issue III. Ring v. Arizona

Pace asserts that Florida’s capital sentencing statute and his death sentence are unconstitutional in light of the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We have denied relief for postconviction claims based upon this argument. See Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). We likewise deny Pace’s claim.

Habeas Issue IV. Failure to Challenge Admission of Evidence

Pace next asserts that appellate counsel was ineffective for failing to assert on direct appeal that the trial court erred by improperly admitting a pair of pants, which allegedly belong to Pace, with spots of blood on them. Pace’s trial counsel objected on several occasions that the State failed to sufficiently demonstrate that the pants belonged to Pace. Although Pace’s appellate counsel did not raise the issue on appeal, Pace has failed to demonstrate that his appellate counsel performed deficiently by not raising this issue. In Garcia v. State, 564 So.2d 124 (Fla.1990), this Court stated:

Evidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is authentic. The finding of authenticity does not mean that the trial judge makes a finding that the proffered evidence is genuine. He only determines whether prima facie evidence of its genuineness exists. Once the matter has been admitted the opposing party may challenge its genuineness. The jury then determines as a matter of fact whether the proffered evidence is genuine.

Id. at 126 (quoting Charles W. Ehrhardt, Florida Evidence § 901.1, at 570-71 (2d ed.1984)).

There was prima facie evidence presented during Pace’s guilt phase to sufficiently authenticate that the pants belonged to Pace. The pants were found in Pace’s bedroom, and one witness identified the pants as the pair that Pace was wearing the day after the murder. Other witnesses testified that, although they could not conclusively identify the pants, the pants looked like a pair that Pace owned. Additionally, witnesses testified that the pair of pants Pace was wearing after the murder had blood stains on them that were essentially identical to the blood stains on the pants admitted into evidence. Counsel cannot be deemed ineffective for failing to raise a meritless issue. See Rutherford, 774 So.2d at 646.

Habeas Issue V. This Court’s Proportionality Review

Pace contends that this Court failed to assess the proportionality of Pace’s sentence in his direct appeal. This claim is without merit. In affirming Pace’s death sentence, this Court held that “death is the appropriate penalty. Accord Eutzy v. State, 458 So.2d 755 (Fla.1984); Johnson v. State, 438 So.2d 774 (Fla.1983).” Pace, 596 So.2d at 1036 (denial of certiorari citations omitted). In both Eutzy and Johnson, this Court upheld death sentences for defendants who had been convicted of murdering taxicab drivers.

CONCLUSION

Accordingly, we affirm the postconviction court’s denial of Pace’s rule 3.850 motion and deny Pace’s petition for writ of habeas corpus.

It is so ordered.

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

ANSTEAD, C.J., concurs specially with an opinion.

ANSTEAD, C.J.,

specially concurring.

I concur with the majority opinion in all respects, except for its discussion of the Ring issue.

      . On direct appeal, Pace asserted: (1) the trial court erred by admitting into evidence statements Pace made to his stepfather; (2) the trial court erred by limiting defense cross-examination about an alleged third shotgun shell; (3) the trial court erred by allowing into evidence Pace’s statement, made the day before the murder, that he would do something “tomorrow” to make money; (4) the trial court erred by allowing into evidence the two shotgun shells found in Pace's yard; (5) the trial court erred by denying Pace's motion for judgment of acquittal; (6) the trial court erred by failing to find any nonstatutory mitigating circumstances; and (7) Pace’s death sentence was disproportionate.

      . Pace's rule 3.850 motion asserted: (1) state agencies failed to provide public records; (2) a four-part claim alleging that (a) counsel was ineffective at the guilt phase, (b) the State suppressed exculpatory evidence (a fingerprint smudge report and a written reprimand of State investigator Jean Shirah), (c) there was newly discovered evidence of innocence, and (d) there were erroneous evidentiary rulings at trial; (3) a "shell” claim of newly discovered evidence of innocence; (4) counsel was ineffective at the penalty phase; (5) the trial court erred by failing to excuse certain prospective jurors for cause; (6) the jury veni-re did not represent a fair cross section of the community; (7) Pace's shotgun was illegally seized by police; (8) the defense cross-examination about a third shotgun shell was erroneously limited; (9) the evidence was insufficient to support Pace’s robbery conviction; (10) the prosecutor, in closing argument at the guilt phase, improperly commented on defendant’s silence; (11) and (12) there were improper arguments by the prosecutor at the penalty phase; (13) the murder-committed-during-a-felony aggravator is unconstitutional; (14) the avoid-arrest instruction was erroneous; (15) the cold, calculated, and premeditated (CCP) instruction was unconstitutional; (16) the prior-violent-felony aggravator was invalid because Pace's prior conviction was invalid; (17) the penalty-phase jury instructions were burden-shifting; (18) the pecuniary-gain aggravator was improper; (19) there was improper evidence and argument on non-statutory aggravating factors; (20) the rules precluding juror interviews were unconstitutional; and (21) electrocution is a cruel or unusual punishment.

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

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

      . Postconviction counsel provided Dr. Larson and Dr. Szmurlo with recent affidavits from Pace's friends and family, the presentence investigation report for Pace's strong arm robbery, and Pace’s juvenile records. Drs. Szmurlo and Larson both testified at the evi-dentiary hearing that they believed, after reviewing the information provided by postcon-viction counsel, that Pace was suffering from an extreme mental or emotional disturbance and was unable to conform his conduct to the requirements of the law during the commission of the offense.