text:
    Grady Maynard FINCHER v. STATE of Alabama.
    CR-01-0722.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.

      Grady Maynard Fincher, pro se.
    Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   On Application for Rehearing

SHAW, Judge.

The unpublished memorandum issued April 19, 2002, is withdrawn and the following opinion is substituted therefor.

Grady Maynard Fincher appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 1996 guilty-plea conviction for trafficking in illegal drugs and his resulting sentence, as a habitual felony offender, of life imprisonment without the possibility of parole. This Court affirmed Fincher’s conviction and sentence on direct appeal, in an unpublished memorandum issued on January 17, 1997. See Fincher v. State, (No. CR-95-1243) 706 So.2d 863 (Ala.Crim.App.1997) (table). The Alabama Supreme Court denied certiorari review and this Court issued a certificate of judgment on June 2, 1997. On September 16, 1997, Fincher filed his first Rule 32 petition, alleging that he was improperly sentenced as a habitual felony offender. The circuit court summarily denied that petition, and this Court affirmed the denial on appeal. See Fincher v. State, 724 So.2d 87 (Ala.Crim.App.1998).

On July 9, 2001, Fincher filed his second Rule 32 petition — the petition that is the subject of this appeal. After receiving a response from the State, the circuit court summarily denied the petition.

In his petition, and again on appeal, Fincher alleges that his guilty plea was involuntary and that the trial court lacked jurisdiction to sentence him to life imprisonment without parole because, he says, the plea and the sentence were based on a plea agreement with the State that was “statutorily impossible” for the State to comply with. According to Fincher, the plea agreement provided that he would plead guilty to trafficking in illegal drugs, a Class A felony, which, at the time, required a mandatory sentence of life imprisonment without the possibility of parole because Fincher had three or more prior felony convictions, see § 13A — 5—9(c)(3), Ala.Code 1975, but that if he rendered substantial assistance to police between his plea and the sentencing hearing (which was postponed for several months), he would be given a reduced sentence of life imprisonment, as opposed to life imprisonment without parole. Fincher maintains that the State could not comply with this agreement because the Habitual Felony Offender Act required that he be sentenced to life imprisonment without parole, and the State did not have the power to reduce his sentence even though, he says, he fulfilled his part of the agreement by rendering substantial assistance to the police.

Although Fincher attempts to couch his claim in jurisdictional terms, it. is not truly a jurisdictional claim; rather, it is a claim that his guilty plea was involuntary. Claims relating to the voluntariness of guilty pleas are not jurisdictional and, therefore, are subject to the procedural bars of Rule 32.2, Ala.R.Crim.P. See, e.g., Harris v. State, 778 So.2d 256 (Ala.Crim.App.2000). Fincher’s claim is time-barred by Rule 32.2(c) because his petition was filed over two years after the certificate of judgment finalizing his conviction was issued. In addition, this claim is barred by Rules 32.2(a)(2) and (a)(4) because it was raised and addressed both at trial and on direct appeal. In our memorandum affirming Fincher’s conviction and sentence on direct appeal, this Court stated the following regarding this same claim:

“The appellant contends that the trial court erred in not allowing him to withdraw his guilty plea because, he says, he entered into an oral plea agreement with the district attorney that was ‘statutorily impossible’ for the district attorney to fulfill.

“The appellant’s argument in this regard may be summarized as follows:

“A. When the appellant [pleaded] guilty to trafficking in illegal drugs, the provisions of § 13A-5-9, Ala. Code 1975, mandated that he be sentenced to life [imprisonment] without parole because he had three or more prior felony convictions;
“B. The appellant [pleaded] guilty to trafficking pursuant to an agreement with the district attorney, which provided that if the appellant rendered substantial assistance to law enforcement in drug cases, the district attorney would recommend to the trial court before any sentencing was passed that the appellant be allowed to withdraw his guilty plea to trafficking and then enter a guilty plea to the lesser included offense of distribution, a Class B felony, for which the appellant would then receive a sentence of life imprisonment (with the possibility of parole);
“C. Section 13A-12-232(b), Ala. Code 1975, provides that a person convicted of drug trafficking may, upon motion of the prosecutor, have his sentence reduced or suspended if the trial court finds that the defendant rendered substantial assistance to law enforcement in the arrest or conviction of any of his accomplices, accessories, coconspirators, or principals, except where the sentence is life imprisonment without parole;
“D. Therefore, the appellant’s plea of guilty to trafficking was induced by a promise from the district attorney that was statutorily impossible (under § 13A-12-232(b)) for the district attorney to fulfill, because the appellant’s mandatory sentence for trafficking would be life without parole under the habitual felony offender act;
“E. Accordingly, because the district attorney could not perform his part of the bargain, the appellant was not obligated to perform his own part of the bargain, and, therefore, he should be allowed to withdraw his guilty plea and have further proceedings in the trial court.
“We disagree with the appellant’s argument. The appellant’s guilty plea was conditional, and he was not sentenced to life [imprisonment] without parole upon that plea until he faded to fulfill that condition. The record reflects that the trial court was fully aware of the terms of the plea agreement when accepting the appellant’s guilty plea. The record also shows that the trial court continued the appellant’s sentencing for [90] days to allow the appellant an opportunity to provide the assistance to law enforcement. At the time of the appellant’s initial sentencing hearing, [90] days later, the appellant was unable to obtain a favorable recommendation from the district attorney, and all the parties agreed to give the appellant an additional two months to provide assistance to law enforcement. At the later sentencing hearing, the district attorney again refused to make a recommendation to the trial court, arguing to the court that the appellant had still not provided substantial assistance to law enforcement. The trial court then sentenced the appellant to life without parole for trafficking.
“If, however, the appellant had fulfilled the terms of his agreement to render substantial assistance to law enforcement in the drug cases, the district attorney would have been legally obligated to recommend at the sentencing hearing that the appellant be allowed to withdraw his guilty plea to trafficking and to enter a guilty plea to distribution. The trial court would have been required, moreover, either to accept the district attorney’s recommendation in this regard or to allow the appellant to withdraw his guilty plea to trafficking. Thus, if the appellant had fulfilled the terms of the plea agreement, he could not have been sentenced to life [imprisonment] without parole upon his original guilty plea and, in fact, would not have remained convicted of trafficking, because, under the terms of the agreement, he would have been allowed to withdraw his guilty plea to trafficking. Accordingly, it is apparent that the district attorney never promised the appellant something that was proscribed by § 13A-12-232(b), ie., he never promised the appellant that he could plead guilty to and be convicted of trafficking and thereupon be sentenced as a habitual felon to life without parole and then have this sentence reduced or suspended because he assisted law enforcement.
“The question ... whether or not the appellant had fulfilled his obligations under the plea agreement was a matter within the trial court’s discretion. Sides v. State, 575 So.2d 1232 (Ala.Cr.App.1991). The appellant does not, on appeal, appear to argue seriously that he did meet his obligation to assist law enforcement. Once the trial court determined that the appellant had not fulfilled his part of the agreement, the district attorney was not required to make the recommendation that the appellant be allowed to withdraw his guilty plea to trafficking and to enter a guilty plea to distribution. Kresler v. State, 462 So.2d 785 (Ala.Cr.App.1984).
“The law in Alabama is clear that whether a defendant should be allowed to withdraw a plea of guilty is a matter solely within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of discretion. Doty v. State, 647 So.2d 41 (Ala.Crim.App.1994). See also Rule 14.4(e), Ala.R.Crim.P. (trial court may allow defendant to withdraw plea if necessary to avoid manifest injustice). The trial court acted within its sound discretion in denying the appellant’s motion to withdraw his guilty plea and for a new trial.”

(Some emphasis added; some emphasis original.) Even if this claim were not barred (and we hold that it is), it is clearly meritless, as this Court has already determined. Therefore, the circuit court properly denied Fincher’s petition.

We note that Fincher also contends for the first time on appeal that the circuit court erred in ordering, at the conclusion of the Rule 32 proceedings, that he pay the filing fee for his Rule 32 petition. Because Fincher did not present this claim to the circuit court, it was not properly preserved for review. See, e.g., Neal v. State, 803 So.2d 586 (Ala.Crim.App.2001). Moreover, even if this issue were preserved for review, it is meritless. Fincher raised this same claim on appeal from the denial of his first Rule 32 petition, and this Court stated:

“Fincher contends that the trial court erred in ordering, at the conclusion of the proceedings, that he pay the filing fee for his Rule 32 petition. There is no merit to this contention. Section 12-19-70(b), Code of Alabama 1975, provides that, as was done in the present case, the docket fee of an indigent petitioner may be waived initially and then taxed as costs at the conclusion of the case. See, Cofield v. State, 682 So.2d 493 (Ala.Cr.App.1996).”

Fincher, 12A So.2d at 90. The circuit court did not err in ordering Fincher to pay the filing fee at the conclusion of the proceedings.

Fincher also contends for the first time on appeal that his sentence of life imprisonment without parole, as a habitual felony offender, was illegal under Ex parte Casey, [Ms. 1001555, February 22, 2002] — So.2d — (Ala.2002), because, he says, “[t]he 6 or 7 priors used for enhancement were pardoned crimes.” (Fincher’s reply brief at p. 6.) In his brief on rehearing, Fincher alleges that his prior convictions were pardoned in 1992, four years before they were used to enhance his sentence. In Ex parte Casey, the Alabama Supreme Court held that “pardoned convictions cannot be used to enhance [a] sentence under the Habitual Felony Offender Act.” — So.2d at —. In that case, Casey’s sentence for his 1981 conviction for robbery had been enhanced pursuant to the Habitual Felony Offender Act using six prior felony convictions, all of which had been pardoned in 1974, before they were used for enhancement, and the Supreme Court held that Casey was entitled to be resentenced without the use of the pardoned convictions.

Unlike Ex parte Casey, however — where Casey raised the claim in his Rule 32 petition and the circuit court denied the claim on its merits so that there were facts in the record indicating that Casey’s prior convictions had been pardoned and that the trial court lacked jurisdiction to sentence Casey as a habitual offender using those pardoned convictions- — there is nothing in the record before this Court in this case that suggests that the prior convictions used to enhance Fincher’s sentence were pardoned and that, therefore, the trial court lacked jurisdiction to sentence Fincher as a habitual felony offender. All we have before us is Fincher’s allegations in his briefs to this Court (allegations that were not included in Fincher’s Rule 32 petition) and an attachment to Fincher’s brief on rehearing that Fincher alleges is the pardon he received on his convictions. However, “[t]his court is bound by th[e] record and not by allegations in brief as to circumstances not reflected by the appellate record.” A.K. v. State, 562 So.2d 609, 613 (Ala.Crim.App.1989). Moreover, “attachments to briefs are not considered part of the record and therefore cannot be considered on appeal.” Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991).

Although we recognize that jurisdictional issues can be raised at any time, see Nunn v. Baker, 518 So.2d 711 (Ala.1987), we likewise recognize that:

“ ‘A court of general jurisdiction proceeding within the scope of its powers will be presumed to have jurisdiction to give the judgments and decrees it renders until the contrary appears. So, a court of general jurisdiction is presumed to have acted within its powers, and the burden is on the accused affirmatively to show that it had no jurisdiction, unless facts showing ivant of jurisdiction affirmatively appear on the record.’
“22 C.J.S. Criminal Law § 174 (1989). ‘[A] court conducting a criminal proceeding is presumed to have jurisdiction, whether or not there are recitals in its record to show it.’ 22A C.J.S. Criminal Law § 702 (1989).”

Willingham v. State, 796 So.2d 440, 443 (Ala.Crim.App.2001) (emphasis added).

No facts appear in the record that indicate that the trial court lacked jurisdiction to sentence Fincher as a habitual offender, and because Fincher did not include this claim in his Rule 32 petition, Fincher has obviously failed to affirmatively show such a lack of jurisdiction. This Court will not remand a case to the circuit court to hold an evidentiary hearing on a jurisdictional claim that was not presented in the petitioner’s Rule 32 petition unless facts appear in the record affirmatively showing a lack of jurisdiction. Of course, because this claim is jurisdictional in nature, Finch-er may file another Rule 32 petition raising this claim; the claim will not be subject to the procedural bars in Rule 32.2, Ala.R.Crim.P.; if pleaded properly, Fincher would be entitled to have an opportunity to present evidence to prove the claim. See Rule 32.3, Ala.R.Crim.P., and Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001). Therefore, Fincher is not without a remedy.

Based on the foregoing, the judgment of the circuit court summarily denying Finch-er’s Rule 32 petition is affirmed.

UNPUBLISHED MEMORANDUM OF APRIL 19, 2002,' WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

McMillan, p.j., and COBB, BASCHAB, and WISE, JJ., concur.

      . Fincher's allegation regarding when he allegedly received the pardons is raised for the first time on rehearing; he did not allege in his original brief on appeal, or in his reply brief, when he had allegedly received the pardons.

      . Because Fincher did not include this claim in his petition, but instead, raised it for the first time on appeal, there are no facts in the record indicating that the prior convictions used to enhance Fincher’s sentence were, in fact, pardoned before they were used for enhancement. If the prior convictions were pardoned before they were used to enhance Fincher's present sentence, then Fincher’s sentence would be illegal, and the Supreme Court’s holding in Ex parte Casey would entitle Fincher to be resentenced. However, if those prior convictions were still intact at the time they were used to enhance Fincher’s life-imprisonment-without-parole sentence, i.e., the pardons were not received until after the prior convictions were used to enhance Fincher’s sentence, then Fincher would not be entitled to be resentenced because the convictions would have been properly used. Although, under Ex parte Casey, a pardoned conviction cannot be used to enhance a sentence because a pardon blots out the existence of guilt, a pardon does not apply retroactively to remove the penalties that have already been suffered as a result of that conviction. See, e.g., State ex. rel. Sokira v. Burr, 580 So.2d 1340, 1342 (Ala.1991), quoting Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81, 18 L.Ed. 366 (1866) (noting that although a pardon " 'releases the punishment and blots out of existence the guilt ... [I]t does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.' ”). Because Fincher failed to include this claim in his petition and failed to allege facts in the petition indicating that he received the pardon before the prior convictions were used for enhancement, there are no facts before this Court affirmatively showing a jurisdictional defect in Fincher’s sentencing.


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Victor ROBINSON v. STATE.
    CR-01-0986.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Victor Robinson, pro se.
    Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Victor Robinson, appeals from the circuit court’s dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his June 1995 conviction for murder, a violation of § 13A-6-2, Ala.Code 1975. Robinson was sentenced as an habitual felony offender to life imprisonment. This Court affirmed Robinson’s conviction on direct appeal, by an unpublished memorandum. Robinson v. State (No. CR-95-0190, September 27, 1996), 689 So.2d 1010 (Ala.Crim.App.1996) (table). This court issued its certificate of judgment on October 15,1996.

Robinson filed his Rule 32 petition on October 22, 2001. In his petition, he argued (1) that the circuit court was without jurisdiction to render a judgement or to impose sentence because the jury venire and the petit jury were not sworn before voir dire examination and before hearing evidence; and (2) that newly discovered evidence existed that required his sentence be reconsidered by the circuit court. On December 20, 2001, the circuit court summarily dismissed Robinson’s Rule 32 petition, stating:

“This court specifically finds that [Robinson’s] claim regarding the swearing in of the petit jury in his Rule 32 petition ... is precluded pursuant to Rule 32.2(a)(3) ánd (4). [Robinson] could have raised this claim at trial or in his previous Rule 32 petition but failed to do so. In regards to [Robinson’s] second claim of newly discovered evidence, this Court specifically finds that [that] claim is denied pursuant to Rule 32.3, Ala.R.Crim.P., which requires [that Robinson] plead and prove by a preponderance of evidence the facts necessary to entitle him to relief. Andersch v. State, 716 So.2d 242 (Ala.Crim.App.1997). This court finds the bare-boned allegations made in regards to a new bill further amending § 13A-5-9 of the Code of Alabama to be insufficient. This Court finds no caselaw or statute to support [Robinson’s] claim that the amendment is to be applied retroactively.”

This appeal followed.

I.

Robinson first contends that the circuit court was without jurisdiction to render a judgment or to impose sentence because, he claims, neither the jury venire nor the petit jury was sworn prior to voir dire examination and trial. In Fortner v. State, 825 So.2d 876, 880 (Ala.Crim.App. 2001), this Court held that “a petitioner’s claim that the jury venire, or the petit jury, was not properly sworn is not jurisdictional and is waivable.” We subsequently refined this holding in Brooks v. State, [Ms. CR-00-1892, March 1, 2002] — So.2d — (Ala.Crim.App.2002), to recognize that a claim that the trial court failed to administer the oath to either the jury venire or the petit jury is non-jurisdictional; however, a claim that the trial court failed to administer the oath to both the jury venire and the petit jury is jurisdictional. — So.2d at —. Based on the decision in Brooks, we conclude that Robinson’s claim that the trial court failed to administer the oath to both the jury venire and the petit jury is a jurisdictional claim. Therefore, because jurisdictional claims are exempt from the procedural bar of Rule 32, the circuit court should have addressed the merits of this claim.

The fact that the circuit court did not address the merits of this claim does not, however, mandate reversal of the trial court’s order. We have reviewed the record of Robinson’s direct appeal, see Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992) (this Court may take judicial notice of its own records), and we conclude that Robinson’s assertion that neither the venire nor the petit jury was sworn is incorrect. Indeed, at page 17 of Robinson’s trial transcript, the court reporter noted: “A jury venire was struck and placed in the jury box and administered the oath of service.” Thus, Robinson’s claim is without merit, and the trial court did not err in denying relief based on this claim.

II.

Robinson next contends that newly discovered evidence exists that requires that his sentence be reconsidered by the trial court. This Court has held that, for a new trial to be granted, premised upon “newly discovered evidence,” that evidence must “have been in existence, though not known, at the time of the original trial.” See Smitherman v. State, 521 So.2d 1050, 1055 (Ala.Crim.App.1987).

Robinson’s claim of “newly discovered evidence” is premised on the recent amendment to § 13A-5-9, which provided, in pertinent part:

“The provisions of Section 13A-5-9 of the Code of Alabama 1975, shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each non-violent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

Act No. 2001-977, Ala.Acts 2001.

The amendment of § 13A-5-9 was effective December 1, 2001. The circuit court issued its ruling on December 20, 2001. Contrary to the trial court’s order, the 2001 amendment to § 13A-5-9 was in effect at the time of the court’s order, and it provides support for Robinson’s claim. However, Robinson is not yet eligible for a discretionary review of his sentence. The 2001 amendment specifies that the retroactive application be “based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the [trial] court.” Act No. 2001-977, Ala.Acts 2001. Executive Order No. 62 gives the Department of Corrections until June 1, 2002, to develop a procedure for evaluating nonviolent offenders possibly affected by the amendment and to submit the proposed evaluation process to the attorney general and to the Alabama Sentencing Commission for comment and thereafter to submit the final proposed process to the Governor for approval.

Because this procedure has not yet been implemented, pursuant to Executive Order No. 62, the trial court is without authority to reconsider Robinson’s sentence. Thus, the trial court did not err in denying relief based on this claim.

Although the circuit court dismissed Robinson’s claims for reasons other than the ones discussed above, the court’s ruling is due to be affirmed. See Cole v. State, 686 So.2d 537, 538 (Ala.Crim.App.1996) (if the circuit court’s ruling is correct for any reason, its judgment is due to be affirmed on appeal). Accordingly, the trial court did not err in summarily dismissing Robinson’s petition. The judgment of the trial court is therefore affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Manuel VALLE, Petitioner, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent.
    No. SC01-2865.
    Supreme Court of Florida.
    Aug. 29, 2002.
    Rehearing Denied Nov. 12, 2002.

      Todd G. Scher, Litigation Director, Office of the Capital Collateral Regional Counsel-South, Fort Lauderdale, FL, for Petitioner.
    Robert A. Butterworth, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Respondent.
   PER CURIAM.

Manuel Valle, a prisoner under sentence of death, petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons that follow, we deny the petition.

BACKGROUND

Valle was convicted and sentenced to death for the April 2, 1978, murder of police officer Louis Pena. See Valle v. State, 394 So.2d 1004, 1005 (Fla.1981). The facts of this crime are provided in detail in the case on direct appeal of Valle’s retrial. See Valle v. State, 474 So.2d 796, 798 (Fla.1985). On appeal, this Court reversed the conviction and sentence, concluding that the trial court abused its discretion in forcing Valle to go to trial on short notice. See Valle, 394 So.2d at 1005. On retrial, Valle again was found guilty as charged on all counts, and the jury recommended a death sentence by a vote of nine to three. The trial court imposed the death penalty and this Court affirmed the conviction and sentence on direct appeal. See Valle, 474 So.2d at 798.

Valle then sought certiorari review in the United States Supreme Court, contending that the exclusion of rehabilitative character evidence that Valle would be a model prisoner if incarcerated for life and not executed violated the Eighth Amendment. The Court accepted review, vacated this Court’s decision, and remanded for reconsideration in light of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). See Valle v. Florida, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). On remand, this Court vacated Valle’s death sentence because of the exclusion of model prisoner evidence. See Valle v. State, 502 So.2d 1225, 1226 (Fla.1987).

In Valle’s third sentencing in 1988, the jury recommended the death penalty by a vote of eight to four. The trial court imposed the death penalty, finding five aggravating circumstances, and no mitigating circumstances. This Court affirmed Valle’s death sentence. See Valle v. State, 581 So.2d 40, 49 (Fla.1991).

On December 2, 1993, Valle filed an amended motion for postconviction relief. After a Huff hearing, the postconviction court summarily denied the motion without an evidentiary hearing. Valle appealed to this Court the summary denial of his post-conviction motion. This Court reversed and remanded for an evidentiary hearing on the claim that counsel was ineffective for presenting model prisoner evidence and for failing to move for a mistrial and disqualification of the resentencing judge after the judge allegedly kissed the victim’s widow in front of the jury. See Valle v. State, 705 So.2d 1331, 1333-34 (Fla.1997).

At the beginning of the evidentiary hearing on remand, Valle withdrew his claim that counsel was ineffective for failing to move for a mistrial or disqualification. Consequently, the evidentiary hearing addressed only the claim that defense counsel was ineffective for presenting model prisoner evidence. The trial court ultimately rejected Valle’s claim, concluding that he failed to prove either deficiency or prejudice. Valle appealed the denial of postconviction relief, and this Court affirmed. See Valle v. State, 778 So.2d 960, 967 (Fla.2001). Valle now files this petition for writ of habeas corpus, raising four issues.

ANALYSIS

Habeas petitions are the proper vehicle to raise claims of ineffective assistance of appellate counsel. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). The standard of review applicable to claims of ineffective assistance of appellate counsel raised in a habeas petition mirrors the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for claims of trial counsel ineffectiveness. See Jones v. Moore, 794 So.2d 579, 586 (Fla.2001). However, appellate counsel cannot be considered ineffective under this standard for failing to raise issues that were not properly raised during the trial court proceedings and do not present a question of fundamental error. See Rutherford, 774 So.2d at 643. The same is true for claims without merit because appellate counsel cannot be deemed ineffective for failing to raise nonmeritorious claims on appeal. See id. In fact, appellate counsel is not necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivolous issue. See Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (appellate counsel not required to argue all non-frivolous issues, even at request of client); Provenzano v. Dugger, 561 So.2d 541, 549 (Fla.1990) (noting that “it is well established that counsel need not raise every nonfrivolous issue revealed by the record”)- Finally, a claim that has been resolved in a previous review of the case is barred as “the law of the case.” See Mills v. State, 603 So.2d 482, 486 (Fla.1992).

In Valle’s first claim in his habeas petition, he asserts that appellate counsel was ineffective for failing to argue that the trial court erred in denying his motion to waive the advisory jury in his 1988 resen-tencing proceeding. Specifically, Valle claims that he could not present good prisoner evidence as mitigation without telling the jury that he had been on death row for ten years, and this would have unduly prejudiced the jury against Valle. Therefore, Valle maintains that the trial court should have granted his motion to waive the advisory jury, and appellate counsel was ineffective in failing to raise this claim in his direct appeal.

This Court reviews a trial court’s decision regarding the waiver of an advisory jury for an abuse of discretion. See Muhammad v. State, 782 So.2d 343, 361 (Fla.2001). As we have explained, “even when a capital defendant makes a voluntary and intelligent waiver of the advisory jury’s recommendation, the trial judge ‘may in his or her discretion either require an advisory jury recommendation, or may proceed to sentence the defendant without such advisory jury recommendation.’ ” Id. (quoting State v. Carr, 336 So.2d 358, 359 (Fla.1976)).

This Court rejected an argument similar to Valle’s in Sireci v. State, 587 So.2d 450, 452 (Fla.1991). In Sired, the defendant asserted that the trial court abused its discretion in refusing to waive the jury sentencing recommendation because, given the time lapse between the conviction and the resentencing proceeding, the jury necessarily would know of and be prejudiced by the prior death sentence. Id. The Court rejected the defendant’s contention, explaining:

Regardless of the jury’s recommendation, the trial judge must conduct an independent review of the evidence and make his or her own findings regarding the aggravating and mitigating factors. The trial judge here noted that if he found the jury was influenced by improper considerations, he had “the ability and the duty to lessen the reliance upon the jury’s verdict.” Even if the jury may have surmised that the defendant had been previously sentenced to death, we find no abuse of discretion in the trial court’s refusal to waive an advisory jury sentencing recommendation.

Id. (citations omitted); see also Thompson v. State, 389 So.2d 197, 199 (Fla.1980) (holding that trial court did not abuse its discretion in convening an advisory jury over the objection of the defendant).

Based on this Court’s decision in Sired, we conclude that the trial court in this case did not abuse its discretion in denying Valle’s motion to waive the advisory jury. Consequently, we hold that appellate counsel was not ineffective in failing to raise this claim on appeal. See Rutherford, 114, So.2d at 643 (stating that failure to raise nonmeritorious claim on appeal does not render counsel ineffective).

In Valle’s second claim, he asserts that the jury instruction for the cold, calculated, and premeditated (“CCP”) aggravator was inadequate, and appellate counsel was ineffective for failing to raise this claim on direct appeal. Because this claim was not preserved at trial by objection, appellate counsel cannot be ineffective for failing to raise this claim on appeal unless the claim constituted fundamental error. See Rutherford, 774 So.2d at 646.

We conclude that this claim does not rise to the level of fundamental error. This Court previously has upheld substantially similar CCP jury instructions. See Wike v. State, 698 So.2d 817, 821-22 (Fla.1997) (upholding CCP instruction providing that “ ‘premeditated’ means the defendant exhibited a higher degree of premeditation than that which is normally required in a premeditated murder”). The CCP instruction in this case provided the statutory definition of the aggravator, provided the definition of premeditated murder, and further explained that for the CCP aggra-vator to apply “the law requires there be heightened premeditation, that is a deliberate intent to kill that is more contemplative, more methodical and more controlled than the premeditation required for a conviction of first degree murder.” Therefore, we conclude that the jury instruction in this case was not unconstitutionally vague.

Moreover, even assuming the instruction was inadequate, Valle is unable to show prejudice under Strickland because this Court concluded on direct appeal that the “facts were sufficient to sustain a finding that the murder was cold, calculated, and premeditated.” Valle, 581 So.2d at 48. See, e.g., Arbelaez v. State, 775 So.2d 909, 915 (Fla.2000) (explaining that even if counsel were deficient for failing to object to aggravator instructions, there would be no prejudice because evidence established that circumstance existed); Gore v. State, 706 So.2d 1328, 1334 (Fla.1997) (holding that even if CCP instruction, was inadequate, the error was harmless in light of overwhelming evidence of CCP). Therefore, we deny Valle relief on this claim.

In Valle’s third claim, he asserts that appellate counsel was ineffective for failing to argue on direct appeal that the State’s comments during voir dire tainted the jury pool and allowed the State to obtain many for-cause excusáis of potential jurors. Specifically, Valle claims that the State misstated the law during voir dire when it repeatedly stated that the potential jurors had to recommend the death penalty if they found that the aggravating circumstances outweighed the mitigating circumstances. Further, Valle claims that based upon the potential jurors’ responses to the State’s misstatement of the law, the State was able to excuse otherwise qualified jurors for cause. Therefore, Valle contends that appellate counsel was ineffective in failing to raise this claim on direct appeal.

However, Valle did argue on direct appeal that the State’s comments during voir dire misstated the law and this Court summarily denied this issue. See Valle, 581 So.2d at 49. Furthermore, Valle argued on direct appeal that the trial court erred by failing to hold an adequate inquiry into the State’s peremptory challenges of black venire members. See id. at 43. Therefore, Valle’s claim in this habeas petition is merely a variant of claims already decided by this Court. See Jones, 794 So.2d at 586 (concluding that issue raised in habeas was within issue on direct appeal, and that “habeas is not proper to argue a variant to an already decided issue”) (citing Thompson v. State, 759 So.2d 650, 657 n. 6 (Fla.2000)); Mann v. Moore, 794 So.2d 595, 601 (Fla.2001) (holding that claim raising same prosecutorial comments as those raised on direct appeal to assert related claim on habeas was procedurally barred). Therefore, we deny relief on this claim.

Finally, Valle asserts that appellate counsel was ineffective in failing to argue that the trial court erred in denying Valle’s motion to suppress the gun that the police found in Valle’s bag when he was arrested. This issue was properly preserved at trial and was not raised on appeal. This Court has explained the analysis to follow when appellate counsel fails to raise an issue that was properly preserved by objection at trial:

With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal, this Court evaluates the prejudice or second prong of the Strickland test first. In doing so, we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error. A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner. If we conclude that the trial court’s ruling was not erroneous, then it naturally follows that ha-beas petitioner was not prejudiced on account of appellate counsel’s failure to raise that issue. If we do conclude that the trial court’s evidentiary ruling was erroneous, we then consider whether such error is harmful error. If that error was harmless, the petitioner likewise would not have been prejudiced.

Jones, 794 So.2d at 583-84.

In accordance with Jones, we evaluate the prejudice prong first and conclude that any error in admitting the gun into evidence was harmless. See Farinas v. State, 569 So.2d 425, 428 (Fla.1990). Valle provided a detailed confession of killing Officer Pena and shooting Officer Spell. Further, Officer Spell was an eyewitness to the murder and identified Valle as the killer. The authorities recovered the car that Valle was driving at the time of the murder shortly after the crimes and Valle’s fingerprints were found inside the car. Valle’s fingerprints also were found on the victim’s car. Therefore, we conclude beyond a reasonable doubt that the admission of the gun, even if erroneous, did not affect the jury verdict. See id. Because we conclude that any error would be harmless, petitioner cannot satisfy the prejudice prong of his ineffective assistance of appellate counsel claim. Because we conclude there is no prejudice, we deem it unnecessary to discuss the deficiency prong. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[Tjhere 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.”); see also Porter v. State, 788 So.2d 917, 925 (Fla.2001) (stating that because the defendant failed to carry the burden on the prejudice component of Strickland, the Court did not reach the first component in respect to competence of counsel). We thus deny relief on this claim.

It is so ordered.

ANSTEAD, C.J., and SHAW, HARDING, PARIENTE, LEWIS, and QUINCE, JJ., concur.

WELLS, J., concurs in result only.

      . Valle also was convicted of attempted first-degree murder of police officer Gary Spell, and possession of a firearm by a convicted felon. See Valle, 394 So.2d at 1005. Further, Valle pled guilty to automobile theft. See id.

        . The trial court found the following aggrava-tors: (1) Valle previously had been convicted of another prior violent felony; (2) the murder was of a law enforcement officer; (3) the murder was for the purpose of preventing lawful arrest; (4) the murder hindered law enforcement; and (5) the murder was cold, calculated, and premeditated ("CCP”). See Valle, 581 So.2d 40, 43 (Fla.1991). The trial court merged factors 2, 3, and 4, treating them as only one aggravator. See id.

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

      . Valle raises the following issues in this petition: (1) appellate counsel was ineffective for failing to raise a claim regarding the trial court's denial of Valle's motion to waive the advisory jury; (2) appellate counsel was ineffective for failing to raise as an issue the CCP instruction, which was inadequate and unconstitutional; (3) appellate counsel was ineffective for failing to raise as an issue that the State’s comments to the jury during voir dire tainted the jury pool and resulted in the State obtaining many for-cause excusáis of potential jurors; and (4) appellate counsel was ineffective for failing to raise as an issue the trial court's denial of Valle's motion to suppress physical evidence.

      . The trial court instructed the jury on the CCP aggravator as follows:
      The crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification.
      Now, I instructed [sic] you that the defendant’s conviction for first degree murder is insufficient in and of itself to require a finding that the homicide was cold, calculated and premeditated for the purposes of this aggravating circumstance.
      Killing with premeditation is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of a premeditated intent to kill and the killing.
      The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing. I instruct you for this aggravating circumstance to apply, the law requires there be heightened premeditation, that is a deliberate intent to kill that is more contemplative, more methodical and more controlled than the premeditation required for a conviction of first degree murder.


text:
    AMENDMENT TO THE FLORIDA RULES OF APPELLATE PROCEDURE (RULE 9.142).
    No. SC02-770.
    Supreme Court of Florida.
    Oct. 31, 2002.
    Rehearing Denied Dec. 19, 2002.
    Katherine E. Giddings, of Katz, Kutter, Alderman, Bryant & Yon, Tallahassee, FL, Chair, Appellate Court Rules Committee, for Petitioner.
    Stephen Krosschell of Goodman & Nikvasil, P.A., Clearwater, FL, Responding.
   PER CURIAM.

On its own motion, this Court proposed a new appellate rule, Florida Rule of Appellate Procedure 9.142, to effectuate a procedure governing review of nonfinal orders in death penalty postconviction proceedings as set forth in Trepal v. State, 754 So.2d 702 (Fla.2000). In Trepal, the Court clarified its jurisdiction to review such orders, holding that jurisdiction was appropriate under article Y, section 3(b)(1) of the Florida Constitution. See 754 So.2d at 706-707. We also held that the appropriate method for seeking review was by petition in this Court with filing requirements that mirror the strict filing requirements contained in Florida Rule of Appellate Procedure 9.100, governing original proceedings in this Court and the district courts. See id. at 707.

The proposed rule was published for comment in the May 15, 2002, edition of The Florida Bar News. After considering the comments received, we now adopt rule 9.142 with certain modifications from the originally proposed version and as shown in the appendix to this opinion.

As adopted, new rule 9.142 contains both the procedures for direct appeals in death penalty cases — now contained in rules 9.140(b)(6) and 9.140(h) — and the procedures for review of nonfinal orders in death penalty postconviction proceedings, thus creating one appellate rule governing review procedures in death penalty cases. Rule 9.142(a) contains the procedures for direct appeals. The substance of these procedures is unchanged. It has simply been deleted from rule 9.140 and added to rule 9.142 so that all procedures governing review of death penalty cases are located within one rule.

Rule 9.142(b) contains the new procedures governing petitions for review of nonfinal orders in death penalty postcon-viction proceedings. The new procedures provide that review proceedings under this subdivision are to be treated as original proceedings; require that the petition for review be filed with the' clerk of the Supreme Court within thirty days of rendition of the nonfinal order to be reviewed; allow either party to the death penalty postconviction proceeding to seek review; set forth the required contents of the petition; provide that the court may issue an order to show cause “if the petition demonstrates a preliminary basis for relief or a departure from the essential requirements of law that may cause material injury for which there is no adequate remedy by appeal”; permit a response to the petition only when ordered by the court; provide that a stay of proceedings is not automatic and allow the lower tribunal to proceed with all matters, except the entry of a final order, unless a stay is granted by this Court; and make clear that seeking review under this subdivision will not extend the time limitations under Florida Rule of Criminal Procedure 3.851 or 3.852.

We accordingly amend the Rules of Appellate Procedure as discussed above and as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The Committee Notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective on January 1, 2003, at 12:01 a.m.

It is so ordered.

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

APPENDIX

Rule 9.140. Appeal Proceedings in Criminal Cases

(a) Applicability. Appeal proceedings in criminal cases shall be as in civil cases except as modified by this rule.
(b) Appeals by Defendant.

(1) Appeals Permitted. A defendant may appeal

(A) a final judgment adjudicating guilt;
(B) a final order withholding adjudication after a finding of guilt;
(C) an order granting probation or community control, or both, whether or not guilt has been adjudicated;
(D) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853;
(E) an unlawful or illegal sentence;
(F) a sentence, if the appeal is required or permitted by general law; or
(G) as otherwise provided by general law.

(2) Guilty or Nolo Contendere Pleas.

(A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:
(i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.
(ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only
a. the lower tribunal’s lack of subject matter jurisdiction;
b. a violation of the plea agreement, if preserved by a motion to withdraw plea;
c. an involuntary plea, if preserved by a motion to withdraw plea;
d. a sentencing error, if preserved; or
e. as otherwise provided by law.

(B) Record.

(i) Except for appeals under subdivision (b)(2)(A) of this rule, the record for appeals involving a plea of guilty or nolo contendere shall be limited to:

a. all indictments, informations, affidavits of violation of probation or community control, and other charging documents;
b. the plea and sentencing hearing transcripts;
c. any written plea agreements;
d. any judgments, sentences, scoresheets, motions, and orders to correct or modify sentences, orders imposing, modifying, or revoking probation or community control, orders assessing costs, fees, fines, or restitution against the defendant, and any other documents relating to sentencing;
e. any motion to withdraw plea and order thereon;
f. notice of appeal, statement of judicial acts to be reviewed, directions to the clerk, and designation to the court reporter.
(ii) Upon good cause shown, the court, or the lower tribunal before the record is transmitted, may expand the record.

(3) Commencement. The defendant shall file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal at any time between the rendition of a final judgment and 30 days following rendition of a written order imposing sentence. Copies shall be served on the state attorney and attorney general.

(4) Cross-Appeal. A defendant may cross-appeal by serving a notice within 10 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Review of cross-appeals before trial is limited to related issues resolved in the same order being appealed.

(5) Procedure in Death Penalty Appeals-.r

(A) When the notice-of appeal is filed in the supreme couN^ — the chief justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the.complete record for--timely filing in the supreme-eourk
(B) After the record-is filed, the cler-k will promptly-establish a (briefing schedule allowing the defendant 60 days from the date the record is filed, the state 45 days from the- date the defendant’s brief is served, and the defendant 30 days from the date-the state’s brief is served)' to-serve-their respective briefs. — On appeals from orders ruling on applications for relief (under Florida Rule of Criminal Procedure -3.850 or 3.853), and on resentencing--matters--the--schedules-set forth in subdivision (g) of this rule will een-trol- — In addition to filing paper copies of transcripts, the court reporter shall file with the clerk of the lower tribunal, on clearly labeled computer disks in a format approved by ifae-^s-u-preme court, sufficient copies of these transcripts for the clerk of the lower tribunal to include the dis-ks-in-the-record-transmitted-to the court and to the parties.
(-Q — I-f-an-y-brief-is-delinquent, an order to show cause may issue under-F-lor-ida — Rule-of—!Criminal-Procedure 3.840, and sanctions may be imposed.
(D) Oral argument will be scheduled after the filing of the defendant’s reply brief.
(E)-In-death penalty cases, all petitions for extraordinary relle-f-ever-which the supreme court has original jurisdiction, including petitions for writ of habe-as-eorpus, -shall-be filed simultaneously with the initial brief-in-the appeal from ■the lower tribunal’s order-on the defendant’s application for relief- under Florida — Rule-of Criminal Procedure 3.850.

(c) Appeals by the State.

(1)Appeals Permitted. The state may appeal an order

(A) dismissing an indictment or information or any count thereof or dismissing an affidavit charging the commission of a criminal offense, the violation of probation, the violation of community control, or the violation of any supervised correctional release;
(B) suppressing before trial confessions, admissions, or evidence obtained by search and seizure;
(C) granting a new trial;
(D) arresting judgment;
(E) granting a motion for judgment of acquittal after a jury verdict;
(F) discharging a defendant under Florida Rule of Criminal Procedure 3.191;
(G) discharging a prisoner on habeas corpus;
(H) finding a defendant incompetent or insane;
(I) granting relief under Florida Rule of Criminal Procedure 3.853;
(J) ruling on a question of law if a convicted defendant appeals the judgment of conviction;
(K) imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines;
(L) imposing a sentence outside the range recommended by the sentencing guidelines;
(M) denying restitution; or
(N) as otherwise provided by general law for final orders.

(2) Non-final orders. The state as provided by general law may appeal to the circuit court non-final orders rendered in the county court.

(3) Commencement. The state shall file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed; provided that in an appeal by the state under rule 9.140(c)(l)(J), the state’s notice of cross-appeal shall be filed within 10 days of service of defendant’s notice or service of an order on a motion pursuant to rule 3.800(b)(2). Copies shall be served on the defendant and the attorney of record. An appeal by the state shall stay further proceedings in the lower tribunal only by order of the lower tribunal.

(d) Withdrawal of Defense Counsel after Judgment and Sentence or After Appeal by State.

(1) The attorney of record for a defendant in a criminal proceeding shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed:

(A) a notice of appeal or cross-appeal has been filed on behalf of the defendant or the state;
(B) a statement of judicial acts to be reviewed has been filed if a transcript will require the expenditure of public funds;
(C) the defendant’s directions to the clerk have been filed, if necessary;
(D) designations to the court reporter have been filed for transcripts of those portions of the proceedings necessary to support the issues on appeal or, if transcripts will require the expenditure of public funds for the defendant, of those portions of the proceedings necessary to support the statement of judicial acts to be reviewed; and
(E) in publicly funded defense and state appeals, the lower tribunal has appointed the public defender for the local circuit court, who shall initially remain counsel for the appeal until the record is transmitted to the appellate court. In publicly funded state appeals, defense counsel shall additionally file in the appellate court a copy of the order appointing the local public defender. In non-publicly funded defense and state appeals, retained appellate counsel shall file a notice of appearance in the appellate court, or defense counsel of record shall file a motion to withdraw in the appellate court, with service on the defendant, that states what the defendant’s legal representation on appeal, if any, is expected to be. Documents filed in the appellate court shall be served on the attorney general (or state attorney in appeals to the circuit court).

(2) Orders allowing withdrawal of counsel are conditional and counsel shall remain of record for the limited purpose of representing the defendant in the lower tribunal regarding any sentencing error the lower tribunal is authorized to address during the pendency of the direct appeal pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

(e) Sentencing Errors. A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal:

(1) at the time of sentencing; or
(2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).

(O Record.

(1) Service. The clerk of the lower tribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal.
(2) Transcripts.
(A) If a defendant’s designation of a transcript of proceedings requires expenditure of public funds, trial counsel for the defendant (in conjunction with appellate counsel, if possible) shall serve, within 10 days of filing the notice, a statement of judicial acts to be reviewed, and a designation to the court reporter requiring preparation of only so much of the proceedings as fairly supports the issue raised.
(B) Either party may file motions in the lower tribunal to reduce or expand the transcripts.
(C) Except as permitted in subdivision (f)(2)(D) of this rule, the parties shall designate the court reporter to file with the clerk of the lower tribunal the original transcripts for the court and sufficient copies for the state and all indigent defendants.
(D) Non-indigent defendants represented by counsel may designate the court reporter to prepare only original transcripts. Counsel adopting this procedure shall, within 5 days of receipt of the original transcripts from the court reporter, file the original transcripts along with securely bound copies for the state and all defendants. Counsel shall serve notice of the use of this procedure on the attorney general (or the state attorney in appeals to circuit court) and the clerk of the lower tribunal. Counsel shall attach a certificate to each copy certifying that it is an accurate and complete copy of the original transcript. When this procedure is used, the clerk of the lower tribunal upon conclusion of the appeal shall retain the original transcript for use as needed by the state in any collateral proceedings and shall not destroy the transcripts without the consent of the Office of the Attorney General.
(E) In state appeals, the state shall designate the court reporter to prepare and file with the clerk of the lower tribunal the original transcripts and sufficient copies for all separately represented defendants. Alternatively, the state may elect to use the procedure specified in subdivision (f)(2)(D) of this rule.
(F) The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the court reporter to prepare the necessary copies of the original transcripts.

(3) Retention of Documents. Unless otherwise ordered by the court, the clerk of the lower tribunal shall retain all original documents except the original transcripts designated for appeal which shall be included in the record transmitted to the court.

(4) Service of Copies. The clerk of the lower tribunal shall serve copies of the record to the court, attorney general (or state attorney in appeals to circuit court), and all counsel appointed to represent indigent defendants on appeal. The clerk of the lower tribunal shall simultaneously serve copies of the index to all non-indigent defendants and, upon their request, copies of the record or portions thereof at the cost prescribed by law.

(5) Return of Record. Except in death penalty cases, the court shall return the record to the lower tribunal after final disposition of the appeal.

(6) Supplemental Record for Motion to Correct Sentencing Error Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

(A) The clerk of circuit court shall automatically supplement the appellate record with any motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), any response, any resulting order, and any amended sentence. The clerk shall transmit the supplement to the appellate court within 5 days of the filing of the order ruling on the motion. If an order is not filed within 60 days from the filing of the motion, this time shall run from the expiration of the 60 day period, and the clerk shall supplement the record with the motion and a statement that no order was timely filed.
(B) If any appellate counsel determines that a transcript of proceeding relating to such a motion is required to review the sentencing issue, appellate counsel shall, within 5 days from the transmittal of the supplement described in subdivision (A), designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. A copy of the designation shall be filed with the appellate court. The procedure for this supplementation shall be in accordance with this subdivision, except that counsel is not required to file a revised statement of judicial acts to be reviewed, the court reporter shall deliver the transcript within 15 days, and the clerk shall supplement the record with the transcript within 5 days of its receipt.

(g) Briefs. Initial briefs shall be served within 30 days of service of the record or designation of appointed counsel, whichever is later. Additional briefs shall be served as prescribed by rule 9.120.

(h) Post-Trial Release.

(1) Appeal by Defendant The lower tribunal may hear a motion for post-trial release pending appeal before or after a notice is filed; provided that the defendant may not be released from custody until the notice is filed.

(2) Appeal by State. An incarcerated defendant charged with a bailable offense shall on motion be released on the defendant’s own recognizance pending an appeal by the state, unless the lower tribunal for good cause stated in an order determines otherwise.

(3) Denial of Post-Trial Release. All orders denying post-trial release shall set forth the factual basis on which the decision was made and the reasons therefor.

(4) Remeiv. Review of an order relating to post-trial release shall be by the court on motion.

(i)Scope of Review. The court shall review all rulings and orders appearing in the record necessary to pass upon the grounds of an appeal. In the interest of 'justice, the court may grant any relief to which any party is entitled. In death penalty cases, the court shall-review the evidence to determine if the interest of justice requires a new trial-,-whether or not insufficiency of the evidence-is-a-n issue presented for reviewr

Committee Notes

1977 Amendment. This rule represents a substantial revision of the procedure in criminal appeals.

Subdivision (a) makes clear the policy of these rules that procedures be standardized to the maximum extent possible. Criminal appeals are to be governed by the same rules as other cases, except for those matters unique to criminal law that áre identified and controlled by this rule.

Subdivision (b)(1) lists the only matters that may be appealed by a criminal defendant, and it is intended to supersede all other rules of practice and procedure. This rule has no effect on either the availability of extraordinary writs otherwise within the jurisdiction of the court to grant, or the supreme court’s jurisdiction to entertain petitions for the constitutional writ of certiorari to review interlocutory orders. This rule also incorporates the holding in State v. Ashby, 245 So.2d 225 (Fla.1971), and is intended to make clear that the reservation of the right to appeal a judgment based on the plea of no contest must be express and must identify the particular point of law being reserved; any issues not expressly reserved are waived. No direct appeal of a judgment based on a guilty plea is allowed. It was not intended that this rule affect the substantive law governing collateral review.

Subdivision (b)(2) replaces former rule 6.2. Specific reference is made to rule 9.110(d) to emphasize that criminal appeals are to be prosecuted in substantially the same manner as other cases. Copies of the notice, however, must be served on both the state attorney and the attorney general. The time for taking an appeal has been made to run from the date judgment is rendered to 30 days after an order imposing sentence is rendered or otherwise reduced to writing. The former rule provided for appeal within 30 days of rendition of judgment or within 30 days of entry of sentence. The advisory committee debated the intent of the literal language of the former rule. Arguably, under the former rule an appeal could not be taken by a defendant during the “gap period” that occurs when sentencing is postponed more than 30 days after entry of judgment. The advisory committee concluded that no purpose was served by such an interpretation because the full case would be reviewable when the “gap” closed. This modification of the former rule promotes the policies underlying Williams v. State, 324 So.2d 74 (Fla.1975), in which it was held that a notice of appeal prematurely filed should not be dismissed, but held in abeyance until it becomes effective. This rule does not specifically address the issue of whether full review is available if resentencing occurs on order of a court in a collateral proceeding. Such cases should be resolved in accordance with the underlying policies of these rules. Compare Wade v. State, 222 So.2d 434 (Fla. 2d DCA 1969), with Neary v. State, 285 So.2d 47 (Fla. 4th DCA 1973). If a defendant appeals a judgment of conviction of a capital offense before sentencing and sentencing is anticipated, the district court of appeal (as the court then with jurisdiction) should hold the case in abeyance until the sentence has been imposed. If the death penalty is imposed, the district court of appeal should transfer the case to the supreme court for review. See § 921.141(4), Fla. Stat. (1975); Fla. R.App. P. 9.040(b).

Subdivision (b)(3) governs the service of briefs. Filing should be made in accordance with rule 9.420.

Subdivision (c)(1) lists the only matters that may be appealed by the state, but it is not intended to affect the jurisdiction of the supreme court to entertain by certiora-ri interlocutory appeals governed by rule 9.100, or the jurisdiction of circuit courts to entertain interlocutory appeals of pretrial orders from the county courts. See State v. Smith, 260 So.2d 489 (Fla.1972). No provision of this rule is intended to conflict with a defendant’s constitutional right not to be placed twice in jeopardy, and it should be interpreted accordingly. If there is an appeal under item (A), a motion for a stay of the lower tribunal proceeding should be liberally granted in cases in which there appears to be a substantial possibility that trial of any non-dismissed charges would bar prosecution of the dismissed charges if the dismissal were reversed, such as in cases involving the so-called “single transaction rule.” Item (E) refers to the popularly known “speedy trial rule,” and items (F), (G), and (H) track the balance of state appellate rights in section 924.07, Florida Statutes (1975).

Subdivision (c)(2) parallels subdivision (b)(2) regarding appeals by defendants except that a maximum of 15 days is allowed for filing the notice. An appeal by the state stays further proceedings in the lower tribunal only if an order has been entered by the trial court.

Subdivision (c)(3) governs the service of briefs.

Subdivision (d) applies rule 9.200 to criminal appeals and sets forth the time for preparation and service of the record, and additional matters peculiar to criminal cases. It has been made mandatory that the original record be held by the lower tribunal to avoid loss and destruction of original papers while in transit. To meet the needs of appellate counsel for indigents, provision has been made for automatic transmittal of a copy of the record to the public defender appointed to represent an indigent defendant on appeal, which in any particular case may be the public defender either in the judicial circuit where the trial took place or in the judicial circuit wherein the appellate court is located. See § 27.51(4), Fla. Stat. (1975). Counsel for a non-indigent defendant may obtain a copy of the record at the cost prescribed by law. At the present time, section 28.24(13), Florida Statutes (1975), as amended by chapter 77-284, § 1, Laws of Florida, prescribes a cost of $1 per page.

To conserve the public treasury, appeals by indigent defendants, and other criminal defendants in cases in which a free transcript is provided, have been specially treated. Only the essential portions of the transcript are to be prepared. The appellant must file a statement of the judicial acts to be reviewed on appeal and the parties are to file and serve designations of the relevant portions of the record. (This procedure emphasizes the obligation of trial counsel to cooperate with appellate counsel, if the two are different, in identifying alleged trial errors.) The statement is necessary to afford the appellee an opportunity to make a reasonable determination of the portions of the record required. The statement should be sufficiently definite to enable the opposing party to make that determination, but greater specificity is unnecessary. The statement of judicial acts contemplated by this rule is not intended to be the equivalent of assignments of error under former rule 3.5. Therefore, an error or inadequacy in the statement should not be relevant to the disposition of any case. In such circumstances, the appropriate procedure would be to supplement the record under rule 9.200(f) to cure any potential or actual prejudice. Either party may move in the lower tribunal to strike unnecessary portions before they are prepared or to expand the transcript. The ruling of the lower tribunal on such motion is renewable by motion to the court under rule 9.200(f) if a party asserts additional portions are required.

Subdivision (e) replaces former rule 6.15. Subdivision (e)(1) governs if an appeal is taken by a defendant and permits a motion to grant post-trial release pending appeal to be heard although a notice of appeal has not yet been filed. The lower tribunal may then grant the motion effective on the notice being filed. This rule is intended to eliminate practical difficulties that on occasion have frustrated the cause of justice, as in cases in which a defendant’s attorney has not prepared a notice of appeal in advance of judgment. Consideration of such motions shall be in accordance with section 903.132, Florida Statutes (Supp. 1976), and Florida Rule of Criminal Procedure 3.691. This rule does not apply if the judgment is based on a guilty plea because no right to appeal such a conviction is recognized by these rules.

Subdivision (e)(2) governs if the state takes an appeal and authorizes release of the defendant without bond, if charged with a bailable offense, unless the lower tribunal for good cause orders otherwise. The “good cause” standard was adopted to ensure that bond be required only in rare circumstances. The advisory committee was of the view that because the state generally will not be able to gain a conviction unless it prevails, the presumed innocent defendant should not be required to undergo incarceration without strong reasons, especially if a pre-trial appeal is involved. “Good cause” therefore includes such factors as the likelihood of success on appeal and the likelihood the defendant will leave the jurisdiction in light of the current status of the charges against the defendant.

Subdivision (e)(3) retains the substance of former rules 6.15(b) and (c). The lower tribunal’s order must contain a statement of facts as well as the reasons for the action taken, in accordance with Younghans v. State, 90 So.2d 308 (Fla.1956).

Subdivision (e)(4) allows review only by motion so that no order regarding post-trial relief is reviewable unless jurisdiction has been vested in the court by the filing of a notice of appeal. It is intended that the amount of bail be reviewable for exces-siveness.

Subdivision (f) interacts with rule 9.110(h) to allow review of multiple judgments and sentences in 1 proceeding.

Subdivision (g) sets forth the procedure to be followed if there is a summary denial without hearing of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. This rale does not limit the right to appeal a denial of such a motion after hearing under rule 9.140(b)(1)(C).

1980 Amendment. Although the substance of this rule has not been changed, the practitioner should note that references in the 1977 committee notes to supreme court jurisdiction to review non-final orders that would have been appeal-able if they had been final orders are obsolete because jurisdiction to review those orders no longer reposes in the supreme court.

1984 Amendment. Subdivision (b)(4) was added to give effect to the administrative order entered by the supreme court on May 6, 1981 (6 Fla. L. Weekly 336), which recognized that the procedures set forth in the rales for criminal appeals were inappropriate for capital cases.

1992 Amendment. Subdivision (b)(3) was amended to provide that, in cases in which public funds would be used to prepare the record on appeal, the attorney of record would not be allowed to withdraw until substitute counsel has been obtained or appointed.

Subdivision (g) was amended to provide a specific procedure to be followed by the courts in considering appeals from summary denial of Florida Rule of Criminal Procedure 3.800(a) motions. Because such motions are in many respects comparable to Florida Rule of Criminal Procedure 3.850 motions, it was decided to use the available format already created by existing subdivision (g) of this rule. Because a Florida Rule of Criminal Procedure 3.800(a) motion does not have the same detailed requirements as does a Florida Rule of Criminal Procedure 3.850 motion, this subdivision also was amended to require the transmittal of any attachments to the motions in the lower court.

1996 Amendment. The 1996 amendments are intended to consolidate and clarify the rules to reflect current law unless otherwise specified.

Rule 9.140(b)(2)(B) was added to accurately reflect the limited right of direct appeal after a plea of guilty or nolo conten-dere. See Robinson v. State, 373 So.2d 898 (Fla.1979), and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

New subdivision (b)(4) reflects Lopez v. State, 638 So.2d 931 (Fla.1994). A defendant may cross-appeal as provided, but if the defendant chooses not to do so, the defendant retains the right to raise any properly preserved issue on plenary appeal. It is the committee’s intention that the 10-day period for filing notice of the cross-appeal should be interpreted in the same manner as in civil cases under rule 9.110(g).

Rule 9.140(b)(6)(E) adopts Florida Rule of Criminal Procedure 3.851(b)(2) and is intended to supersede that rule. See Fla. R. Jud. Admin. 2.135. The rule also makes clear that the time periods in rule 9.140(j) do not apply to death penalty cases.

The revised rules 9.140(e)(2)(D) and 9.140(e)(2)(E) are intended to supersede Brown v. State, 639 So.2d 634 (Fla. 5th DCA 1994), and allow non-indigent defendants represented by counsel, and the state, to order just the original transcript from the court reporter and to make copies. However, the original and copies for all other parties must then be served on the clerk of the lower tribunal for inclusion in the record. The revised rule 9.140(e)(2)(F) also allows chief judges for each circuit to promulgate an administrative order requiring the lower tribunal clerk’s office to make copies of the transcript when the defendant is indigent. In the absence of such an administrative order, the court reporter will furnish an original and copies for all parties in indigent appeals.

Rule 9.140(j)(3) imposes a two-year time limit on proceedings to obtain delayed appellate review based on either the ineffectiveness of counsel on a prior appeal or the failure to timely initiate an appeal by appointed counsel. The former was previously applied for by a petition for writ of habeas corpus in the appellate court and the latter by motion pursuant to Florida Rule of Criminal Procedure 3.850 in the trial court. Because both of these remedies did not require a filing fee, it is contemplated that no fee will be required for the filing of petitions under this rule. Subdivision (j)(3)(B) allows two years “after the conviction becomes final.” For purposes of the subdivision a conviction becomes final after issuance of the mandate or other final process of the highest court to which direct review is taken, including review in the Florida Supreme Court and United States Supreme Court. Any collateral review shall not stay the time period under this subdivision. Subdivision (j)(3)(C) under this rule makes clear that defendants who were convicted before the effective date of the rule will not have their rights retroactively extinguished but will be subject to the time limits as calculated from the effective date of the rule unless the time has already commenced to run under rule 3.850.

Rule 9.140(j)(5) was added to provide a uniform procedure for requesting belated appeal and to supersede State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla.1990). This decision resulted in there being two procedures for requesting belated appeal: Florida Rule of Criminal Procedure 3.850 when the criminal appeal was frustrated by ineffective assistance of trial counsel, id.; and habeas corpus for everything else. See Scalf v. Singletary, 589 So.2d 986 (Fla. 2d DCA 1991). Experience showed that filing in the appellate court was more efficient. This rale is intended to reinstate the procedure as it existed prior to State v. District Court of Appeal, First District. See Baggett v. Wainwright, 229 So.2d 239 (Fla.1969); State v. Meyer, 430 So.2d 440 (Fla.1983).

In the rare case where entitlement to belated appeal depends on a determination of disputed facts, the appellate court may appoint a commissioner to make a report and recommendation.

2000 Amendment. Subdivision (b)(1)(B) was added to reflect the holding of State v. Schultz, 720 So.2d 247 (Fla.1998). The amendment to renumber subdivision (b)(i)(D), regarding appeals from orders denying relief under Florida Rules of Criminal, Procedure 3.800(a) or 3.850, reflects current practice.

The committee added language to subdivision (b)(6)(B) to require court reporters to file transcripts on computer disks in death penalty cases. Death penalty transcripts typically are lengthy, and many persons review and use them over the years. In these cases, filing lengthy transcripts on computer disks makes them easier to use for all parties and increases their longevity.

The committee deleted the last sentence of subdivision (b)(6)(E) because its substance is now included in rule 9.141(a). The committee also amended and transferred subdivisions (i) and (j) to rule 9.141 for the reasons specified in the committee note for that rule.

COURT COMMENTARY

1996. Rule 9.140 was substantially rewritten so as to harmonize with the Criminal Appeal Reform Act of 1996 (CS/HB 211). The reference to unlawful sentences in rule 9.140(b)(1)(D) and (e)(l)(J) means those sentences not meeting the definition of illegal under Davis v. State, 661 So.2d 1193 (Fla.1995), but, ¡nevertheless, subject to correction on direct appeal.

Rule 9.142. Procedures for Review in Death Penalty Cases

(a) Procedure in Death Penalty Appeals.

(1)Record. When the notice of appeal is filed in the supreme court, the chief justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the complete record for timely filing in the supreme court.

(2) Briefs; Transcripts. After the,,-^ record is filed, the clerk will prompt)^ establish a briefing schedule allowing/£he defendant 60 days from the date the record is filed, the state 45 days from Jt£e date the defendant’s brief is served/ and the defendant 30 days from the date the state’s brief is- served to serve their respective briefs. On appeals from orders ruling on applications for relief under Florida Rule of Criminal Procedure 3.851 or 3.853, and on resentencing matters, the schedules set forth in rule 9.140(f) will control. In addition to filing paper copies of transcripts, the court reporter shall file with the cle;rk of the lower tribunal, on clearly labeled computer disks in a format approved by the supreme court, sufficient copies of these transcripts for the clerk of the lower tribunal to include the disks in the, record transmitted to the court and to the parties.

(3) Sanctions. If any brief is delinquent, an order to show cause may issue under Florida Rule of Criminal Procedure 3.840, and sanctions may be imposed.

(4) Oral Argument. Oral argument will be scheduled after the filing of the defendant’s reply brief.

(5) Petitions for Extraordinary Relief. In death penalty cases, all petitions for extraordinary relief over which the supreme court has original jurisdiction, including petitions for writ of habeas corpus, shall be filed simultaneously with the initial brief in the appeal from the lower tribunal’s order on the, defendant’s application for relief under Florida Rule of Criminal Procedure 3.851. \

(b) Petition Seeking Review of Nonfi-nal Orders in Death Penalty Postconviction Proceedings. \

(1) Applicability. This rule applies to proceedings that invoke the jurisdiction of the supreme court for review of nonfinal Schultz, 720 So.2d 247 (Fla.1998). The amendment to renumber subdivision (b)(1)(D), regarding appeals from orders denying relief under Florida Rules of Criminal Procedure 3.800(a) or 3.850, reflects current practice.

The committee added language to subdivision (b)(6)(B) to require court reporters to file transcripts on computer disks in death penalty cases. Death penalty transcripts typically are lengthy, and many persons review and use them over the years. In these cases, filing lengthy transcripts on computer disks makes them easier to use for all parties and increases their longevity.

The committee deleted the last sentence of subdivision (b)(6)(E) because its substance is now included in rule 9.141(a). The committee also amended and transferred subdivisions (i) and (j) to rule 9.141 for the reasons specified in the committee note for that rule.

COURT COMMENTARY

1996. Rule 9.140 was substantially rewritten so as to harmonize with the Criminal Appeal Reform Act of 1996 (CS/HB 211). The reference to unlawful sentences in rule 9.140(b)(1)(D) and (c)(l)(J) means those sentences not meeting the definition of illegal under Davis v. State, 661 So.2d 1193 (Fla.1995), but, nevertheless, subject to correction on direct appeal.

Rule 9.142. Procedures for Review in Death Penalty Cases

(a) Procedure in Death Penalty Appeals.

(1) Record, When the notice of appeal is filed in the supreme court, the chief justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the complete record for timely filing in the supreme court.

(2) Briefs; Transcripts. After the record is filed, the clerk will promptly establish a briefing schedule allowing the defendant 60 days from the date the record is filed, the state 45 days from the date the defendant’s brief is served, and the defendant 30 days from the date the state’s brief is served to serve their respective briefs. On appeals from orders ruling on applications for relief under Florida Rule of Criminal Procedure 3.851 or 3.853, and on resentencing matters, the schedules set forth in rule 9.140(g) will control. In addition to filing paper copies of transcripts, the court reporter shall file with the clerk of the lower tribunal, on clearly labeled computer disks in a format approved by the supreme court, sufficient copies of these transcripts for the clerk of the lower tribunal to include the disks in the record transmitted to the court and to the parties.

(3) Sanctions. If any brief is delinquent, an order to show cause may issue under Florida Rule of Criminal Procedure 3.840, and sanctions may be imposed.

(4) Oral Argument Oral argument will be scheduled after the filing of the defendant's reply brief.

(5) Petitions for Extraordinary Relief. In death penalty cases, all petitions for extraordinary relief over which the supreme court has original jurisdiction, including petitions for writ of habeas corpus, shall be filed simultaneously with the initial brief in the appeal from the lower tribunal’s order on the defendant’s application for relief under Florida Rule of Criminal Procedure 3.851.

(6)Scope of Review. In death penalty cases, the court shall review the evidence to determine if the interest of justice requires a new trial, whether or not insufficiency of the evidence is an issue presented for review.

(b) Petition Seeking Review of Nonfi-nal Orders in Death Penalty Postconviction Proceedings.

(1) Applicability. This rule applies to proceedings that invoke the jurisdiction of the supreme court for review of nonfinal orders issued in postconviction proceedings following the imposition of the death penalty.

(2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100 unless modified by this subdivision.

(3) Commencement; Parties.

(A) Jurisdiction of the supreme court shall be invoked by filing a petition with the clerk of the supreme court within 30 days of rendition of the nonfinal order to be reviewed. A copy of the petition shall be served on the opposing party and furnished to the judge who issued the order to be reviewed.
(B) Either party to the death penalty postconviction proceedings may seek review under this rule.

(4) Contents. The petition shall be in the form prescribed by rule 9.100, and shall contain

(A) the basis for invoking the .jurisdiction of the court;
(B) the date and nature of the order sought to be reviewed;
(C) the name of the lower tribunal rendering the order;
(D) the name, disposition, and dates of all previous trial, appellate, and post-conviction proceedings relating to the conviction and death sentence that are the subject of the proceedings in which the order sought to be reviewed was entered;
(E) the facts on which the petitioner relies, with references to the appropriate pages of the supporting appendix;
(F) argument in support of the petition, including an explanation of why the order departs from the essential requirements of law and how the order may cause material injury for which there is no adequate remedy on appeal, and appropriate citations of authority; and
(G)the nature of the relief sought.

(5) Appendix. The petition shall be accompanied by an appendix, as prescribed by rule 9.220, which shall contain the portions of the record necessary for a determination of the issues presented.

(6) Order to Show Cause. If the petition demonstrates a preliminary basis for relief or a departure from the essential requirements of law that may cause material injury for which there is no adequate remedy by appeal, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted.

(7) Response. No response shall be permitted unless ordered by the court.

(8) Reply. Within 20 days after service of the response or such other time set by the court, the petitioner may serve a reply, which shall not exceed 15 pages in length, and supplemental appendix.

(9) Stay.

(A) A stay of proceedings under this rule is not automatic; the party seeking a stay must petition the supreme court for a stay of proceedings.
(B) During the pendency of a review of a nonfinal order, unless a stay is granted by the supreme court, the lower tribunal may proceed with all matters, except that the lower tribunal may not render a final order disposing of the cause pending review of the nonfinal order.

(10) Other pleadings. The parties shall not file any other pleadings, motions, replies, or miscellaneous papers without leave of court.

(11) Time Limitations. Seeking review under this rule shall not extend the time limitations in rule 3.851 or 3.852.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . These subdivisions were recently renumbered from (b)(6) to (b)(5) and from (h) to (i) due to amendments adopted in Amendments to Florida Rules of Appellate Procedure, 827 So.2d 888 (Fla.2002), which will become effective on January 1, 2003.

      . The appendix reflects the rules as amended by this Court in Amendments to Florida Rules of Appellate Procedure, 827 So.2d 888 (Fla.2002). As previously stated, these amendments become effective on January 1, 2003.