text:
    STATE of Florida, DEPARTMENT OF REVENUE, and Patricia D. Ward, Appellants, v. David SPEIGHTS, Appellee.
    No. 1D03-0871.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    Charles J. Crist, Jr., Attorney General; Toni C. Bernstein and William H. Branch, Assistant Attorneys General, Tallahassee, for Appellants.
    John J. Uskert of the Law Offices of John J. Usker, P.A., Panama City, for Appellee.
   PER CURIAM.

Appellants, the Department of Revenue and Patricia D. Ward, appeal an order in which the lower court vacated prior judgments that were based in part upon the determination that appellee, David Speights, was the father of Térrica Speights, and awarded attorney’s fees to Speights. Appellants challenge the lower court’s finding that Ward committed extrinsic fraud in obtaining the determination of paternity, and contend there was no statutory authority for the fee award. We reverse and remand with directions.

After DNA testing in 2001 showed that Speights was not Terrica’s father, Ward admitted that she had been knowingly untruthful in 1991, when she filed a sworn complaint to establish paternity and a paternity affidavit averring that no other man than Speights could be the father. She was, in fact, having a sexual relationship with another man.at the time. Having no cause to believe that Ward was being dishonest, Speights did not litigate the issue of paternity and instead executed a stipulation admitting same, and when the parties divorced in 1993, Speights was ordered to pay child support. Finding that Ward’s 1991 averments constituted extrinsic fraud, the lower court vacated the final judgment of paternity; an income deduction order; portions of the final judgment of dissolution having to do with Terriea’s custody, visitation, and child support; an authorization of payroll deduction; and any other orders adjudicating parentage, custody, or child support with regard to Térrica. The court also directed Ward to pay Speights’ attorney’s fees.

The lower court erred by determining that Ward’s representations re: garding her daughter’s paternity constituted extrinsic rather than intrinsic fraud. In DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984), the court reversed a decision of the Fourth District finding that the husband had committed extrinsic fraud by filing false financial affidavits upon which the wife relied when entering into a marital settlement agreement. The supreme court concluded that the husband’s misrepresentations-.were intrinsic fraud, because the false affidavits were part of the record in the dissolution proceeding, and the husband’s net worth was “a matter before the court for resolution and could have been tried.” Id. at 380. In contrast, “[ejxtrin-sic fraud involves conduct which is collateral to the issues tried in a case.” Id. at 377. “The cases distinguish between false and misleading information being presented on an issue to be tried and conduct which prevents a party from trying the issue.” Id. at 380.

In the case at bar, Ward and the Department filed the complaint to establish paternity and the accompanying paternity affidavit on July 3, 1991. Speights and Ward filed the stipulation of paternity on August 20, 1991, whereupon the court issued the final judgment of paternity. Accordingly, Ward’s false representation was not collateral to the paternity proceeding, but was central to it. The court in DeClaire emphasized that filing false affidavits during court proceedings cannot be considered extrinsic fraud without “substantially expanding the grounds on which final judgments may be attacked,” undermining the principle of finality. Id.

The lower court relied upon M.A.F. v. G.L.K, 573 So.2d 862 (Fla. 1st DCA 1990), wherein this court held that in a dissolution proceeding involving child support, it is extrinsic fraud for a wife to knowingly conceal that her husband is not the father of her children. Id. at 863. The parties’ marital status distinguishes M.A.F. from the case at bar. This court cited the husband’s right to rely on the presumption of legitimacy of children born ■ during the marriage: “A husband has no affirmative duty in a divorce proceeding to question the virtue of his wife and the legitimacy of his children absent a sound basis to doubt otherwise.” Id. Paternity .was not at issue in the parties’ dissolution, because the husband never doubted that he was the father; thus, the wife’s deceit was collateral to the proceeding. In the case at bar, however, Ward filed a paternity action against Speights, and her fraudulent representation related to the central issue of paternity; therefore, it constituted intrinsic fraud.

Under Florida Rule of Civil Procedure 1.540(b)(3), Speights cannot obtain relief from judgments entered more than a year before he filed his action.

REVERSED and REMANDED for further proceedings consistent with this opinion, including reconsideration of appellee’s motion for attorney’s fees.

ERVIN, ALLEN and LEWIS, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Samuel SAPP, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3979.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.
    Samuel Sapp, Polk City, pro se.
    ■ Charles J.-Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), challenging the trial court’s retention of jurisdiction over one-third of each of his two consecutive sentences. This is a proper claim for relief under rule 3.800(a). See Carter v. State, 786 So.2d 1173, 1181 (Fla.2001) (“a sentence is ‘illegal’ if it ‘imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances’ ”) (quoting Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999)). See also Kirtsey v. State, 855 So.2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002).

We find that appellant has stated a facially sufficient claim that his sentences are illegal, and that this is not refuted by the record.

On December 14, 1979, appellant was sentenced to 99 years in prison with credit for time served for one count of kidnaping, and to 30 years in prison for a count of sexual battery, again with credit for time served. The sentences were to run consecutively, with the court stating on each count that it would retain jurisdiction over that sentence pursuant to section 947.16, Florida Statutes. The trial court did not provide that it would retain jurisdiction over one-third of the total years imposed in the sentences on the two counts. Instead, it simply imposed the retention on each count.

We find that this violates the express language of section 947.16, Florida Statutes, and case law interpreting it. See Heath v. State, 558 So.2d 165 (Fla. 1st DCA 1990) (reversing denial of a rule 3.800(a) motion, holding that the sentencing court should have retained jurisdiction over one-third of the total of the defendant’s consecutive sentences, rather than retaining jurisdiction over one-third of each of the consecutive sentences imposed). See also Famiglietti v. State, 499 So.2d 57 (Fla. 4th DCA 1986); Brown v. State, 458 So.2d 1216 (Fla. 1st DCA 1984).

To the extent that the trial court concluded that appellant was barred from raising his sentencing challenge because he had made other challenges to the retention of jurisdiction on appeal and in other post-conviction motions, we find that the court erred because this precise issue was not raised before.

Accordingly, we reverse the summary denial of appellant’s rule 3.800(a) motion, and remand to the trial court for further consideration of appellant’s claim on its merits. Unless there is record information refuting appellant’s claim, the trial court shall grant relief and correct or clarify appellant’s sentences in accordance with this opinion and the authorities cited herein.

FARMER, C.J., GUNTHER and POLEN, JJ., concur.


author: NESBITT, Senior Judge.

text:
    Wendy FONG, Appellant, v. TOWN OF BAY HARBOR ISLANDS, Appellee.
    No. 3D02-3097.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.

      Scott Alan Orth, for appellant.
    Craig B. Sherman, Miami, and Drew B. Sherman, Boca Raton, for appellee.
    Before SCHWARTZ, C.J., and GODERICH, J., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

We have for review a Summary Final Judgment in favor of the Town of Bay Harbor Islands and against Wendy Fong. For the following reasons, we reverse in part and affirm in part.

Wendy Fong is a resident of the Town of Bay Harbor Islands (“the Town”). In early 2000, the Town instituted code enforcement activities with regard to the property on which Ms. Fong lives. On September 11, 2000, a hearing was held on the code violations, in which a special master ruled that continuing violations existed. The Town filed an amended complaint, pursuant to section 162.01, Florida Statutes (2000), seeking to foreclose a lien on real and personal property owned by Fong. Fong filed a Motion for Summary Judgment in which she argued that the foreclosure action could not proceed against her homestead. The Town filed a Cross-Motion for Summary Judgment. The trial court granted the Town’s Cross-Motion, finding:

At the present time, the lien amounts remain unpaid by [Fong] and [the Town] is entitled to execute and levy against any and all property of [Fong], excluding only that property which constitutes [Fong’s] “Homestead” in Florida.... Although the Court finds that the particular parcel of real property described in Paragraph 3 herein is [Fong’s] “Homestead” for purposes of preventing [the Town] from foreclosing on same at the present time, the Court also specifically finds that [the Town’s] lien shall remain upon said real property, to be satisfied from the proceeds of sale in the event that said property is no longer [Fong’s] “Homestead”, or should the property ever lose its “Homestead” status for any reason whatsoever.

Fong filed this appeal, claiming that the imposition of a lien on the homestead property impairs her rights under Article X, Section 4, of the Florida Constitution. We agree.

“As Article X, Section 4, specifically provides, it applies alike to invalidate both a ‘forced sale,’ or, as here, the simple imposition of a ‘lien’ on homestead property.” Robles v. Robles, 860 So.2d 1014 n. 3 (Fla. 3d DCA 2003) (citing Demura v. County of Volusia, 618 So.2d 754 (Fla. 5th DCA 1993); Cannon v. Cannon, 254 B.R. 773 (Bankr.S.D.Fla.2000); Prieto v. Eastern Nat. Bank, 719 So.2d 1264 (Fla. 3d DCA 1998); Miskin v. City of Fort Lauderdale, 661 So.2d 415 (Fla. 4th DCA 1995)). If Fong were to sell the property, there would be no lien on the property then in the hands of the purchasers; rather, the proceeds from that sale could be reached by creditors such as the Town if Fong failed to invest these proceeds into another homestead within a reasonable period of time. Demura v. County of Volusia, 618 So.2d 754, 756 (Fla. 5th DCA 1993). However, should the property lose its homestead status while still owned by Fong, then the Town’s order against her could be enforced as a lien against the property. Id. at 756-57.

The trial court’s order also found that “three (3) of the four (4) original code violations remain uncorrected on [Fong’s] property and, therefore, said civil penalties shall continue to accrue on a daily basis until the violations have been corrected by [Fong].” This was error under section 162.09(3), Florida Statutes (2000), which provides that “[a] fine imposed pursuant to this part shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit filed pursuant to this section, whichever occurs first.” (emphasis added). The order should reflect that the fines ceased on August 27, 2002, the date the Summary Final Judgment was entered.

We also agree with Fong’s contention that the trial court erred in entering a Supplemental Judgment Awarding Attorneys’ Fees to the Town because, despite the fact that the court granted the Town’s Cross-Motion for Summary Judgment, it was Fong who prevailed on the significant issue; namely, whether the subject parcel of real property was homestead for purposes of exemption from forced sale under the Florida Constitution.

We find the other issues raised in Fong’s appeal, as well as the issue raised in the Town’s cross-appeal, to be without merit. Accordingly, the trial court’s order is reversed as to the aforementioned errors and remanded for further proceedings consistent with this opinion, and affirmed in all other respects.

       Town of Bay Harbor Islands, Fla., Code Enforcement section 5-3/4 (12)(c), provides that "[i]n an action to foreclose on a lien the prevailing party is entitled to recover all costs, including a reasonable attorney’s fee that it incurs in the foreclosure.”


author: WELLS, Judge. RAMIREZ, J.

text:
    Eric Michael PATZ, M.D., Appellant, v. DEPARTMENT OF HEALTH, Florida Board of Medicine, Appellee.
    No. 3D03-1154.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Cohen & Cohen and Donald T. Norton, for appellant.
    Avron Bernstein, (Tallahassee), for ap-pellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   WELLS, Judge.

Eric M. Patz, M.D., appeals from a final administrative order of the State Board of Medicine granting the Department of Health’s motion for default and sanctioning Patz for violations of section 458.331 of the Florida Statutes. We affirm.

On October 18, 2002, the Department of Health filed a two-count administrative complaint against Patz. That complaint was served on December 10, 2002, along with Election of Rights and Explanation of Rights forms advising Patz, among other things, that if he disputed any material fact alleged in the complaint, he could request a formal hearing before an administrative law judge pursuant to section 120.569(2)(a) of the Florida Statutes. The Explanation of Rights form further advised Patz, in bold typeface, that his failure to make such an election within twenty-one days of receipt of the complaint “may be considered a waiver of the right to a formal hearing” under Rule 28-106.111(4) of the Florida Administrative Code, and “the Board [of Medicine] may proceed to hear your case.”

Patz did not, however, file the Election of Rights form or otherwise request a formal hearing within the twenty-one day period. In fact, he did not retain counsel until mid-January 2003 and did not execute the Election of Rights form until February 12, 2003, forty-three days late. Consequently, notwithstanding his untimely request for a hearing, the Department moved for and was granted a default by the Board. Thereupon, the Board approved and adopted the allegations of fact and conclusions of law set forth in the administrative complaint and disciplined Patz accordingly.

Patz claims here that entry of a default against him was improper because he did not delay for a protracted length of time in seeking a hearing, because he filed the untimely Election of Rights form before a hearing on the Department’s motion for default, and because the Department was not prejudiced by the untimely filing. In support of his argument, Patz relies upon Florida Rule of Civil Procedure 1.500 which governs defaults in a civil proceeding.

This matter is not controlled by the rules of civil procedure. It is governed by section 120.569 of the Florida Statutes, Rule 28-106.111 of the Florida Administrative Code, and the rules of administrative procedure. The well reasoned decision in Cann v. Dept. of Children and Family Servs., 813 So.2d 237, 238-39 (Fla. 2d DCA 2002), confirms that because no evidence of equitable tolling exists, we are obligated to affirm the default judgment:

The Canns argue thatbhe late request should be accepted because the one-day delay was the result of.excusable neglect. At least two district courts of appeal have previously applied an excusable neglect standard to determine whether an untimely ’request for an administrative hearing should be granted. See Unimed Lab., Inc. v. Agency for Health Care Admin., 715 So.2d 1036 (Fla. 3d DCA 1998); Rothblatt v. Dep’t of Health & Rehabilitative Servs., 520 So.2d 644 (Fla. 4th DCA 1988). Prior opinions have consistently held that the late filing of a request for an administrative hearing is not a jurisdictional defect. Appel v. Fla. Dep’t of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999). See also Machules v. Dep’t of Admin., 523 So.2d 1132 (Fla.1988). In Machules, although the supreme court did not adopt an excusable neglect standard, it did hold that the doctrine of equitable tolling could be applied to extend a similar administrative time limit.
In this case, Florida Administrative Code Rule 28-106.111(2), (4) required that the Canns file their request for an administrative hearing in the office of the Department within twenty-one days from the date they received the Department’s notice.- Although Florida Administrative Code Rule 28-106.103 allows an additional five days for mailing in some circumstances, that rule expressly excepts requests for hearing under rule 28-106.111. The Canns admit that they understood that their request had to be filed at the Department’s office on November 29, 2000. Further, section 120.569(2)(c), Florida Statutes (2000), provides: “A petition shall be dismissed if ... it has been untimely filed.” This language, requiring the dismissal of ah untimely request, was added by chapter 98-200, section 4, at 1831, Laws of Florida. We conclude that this amendment overruled Unimed Laboratory and Rothblatt to fhe extent those cases held that an untimely .administrative appeal could proceed if the delay was a result of qxeusable neglect.
We are not inclined to believe that section 120.569(2)(c), Florida Statutes (2000), overruled the holding in Machules that a late request for an administrative hearing is not a jurisdictional defect. We do not need to resolve that issue, however, because the requirements for equitable tolling were not met in this case. In Machules, the Florida Supreme Court stated, “Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, ,or has timely asserted his rights mistakenly in the wrong forum.” 523 So.2d at 1134. In this case, none of these three- circumstances exist. The agency .notice was proper, and the Canns knew the proper forum. Two days for the postal delivery of a letter is not “extraordinary.”
Because the Department’s rules require the filing of the request for hearing within twenty-one days and section 120.569(2)(c) compels the dismissal of untimely requests, and because equitable tolling provides no exception in this case, we must affirm the Department’s order dismissing the Canns’ request for hearing as untimely. Cf. Fryer v. Fla. Unemployment Appeals Comm’n, 691 So.2d 27 (Fla. 2d DCA 1997) (affirming Unemployment Appeals Commission order affirming appeals referee’s dismissal of request for review because it was untimely; noting, “The statute and rule do not permit any exceptions.”). Id. at 27.
We note, however, that we are very sympathetic to the Canns’ argument. In administrative matters affecting substantial interests, adopting an excusable neglect standard or a time schedule based on the date of service of requests for hearing would promote legitimate public policies. Unfortunately, this court lacks the power to create either rule for use in administrative proceedings.

(Footnotes omitted).

We, like the Second District before us, recognize that denying a late request for an administrative hearing could be, and perhaps should be, compared to entry of a default in a judicial proceeding, and that the administrative rules should encourage the setting aside of defaults to permit claims to be heard on their merits rather than decided on procedural technicalities. Cann, 813 So.2d at 239. However “the legislature or the relevant agencies are the decision-makers to which these policy arguments must be directed. In the context of administrative law, the courts cannot override a filing rule that does not violate due process.” Cann, 813 So.2d at 240. The final order is, therefore, affirmed.

GERSTEN, J., concurs.

RAMIREZ, J.

(concurring).

I concur with the majority based on Cann v. Dep’t. of Children and Family Servs., 813 So.2d 237 (Fla. 2d DCA 2002) and simply would like to quote from Chief Judge Blue’s concurring opinion, with which I agree:

I write to emphasize my disagreement with the rule we are required to enforce. One of the strengths of our system of justice is the belief that conflicts should be decided on the merits. For this reason, we employ the doctrine of “excusable neglect” to prevent the dismissal of potentially meritorious claims for technical defects. This concept has served the public well in the court system. I would ask that the legislature consider providing this equitable relief for those citizens of the state who are required to have their personal and property rights decided in the administrative arena.

Id. at 240.

      . Section 120.569(2)(c), Florida Statutes (2002), which covers administrative decisions affecting substantial interests, provides, in pertinent part:
      ... Upon the receipt of a petition or request for hearing, the agency shall carefully review the petition to determine if it contains all of the required information. A petition shall be dismissed if it ... has been untimely filed.

      (Emphasis added).

      . Rule 28-106.111, Florida Administrative Code (2002), which covers the point of entry into administrative proceedings that determine substantial interests, provides, in relevant part:

      (2) Unless otherwise provides by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.

      (4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters.

      .Patz failed to demonstrate that he was misled or lulled into inaction, that he was in some extraordinary way prevented from asserting his rights, or that he mistakenly asserted his rights in the wrong forum. Thus, equitable tolling does not apply. See Whiting v. Florida Dept. of Law Enforcement, 849 So.2d 1149, 1151 (Fla. 5th DCA 2003)(affirm-ing dismissal of an untimely petition for an administrative hearing under section 120.569(2)(c) because Whiting’s mistaken belief as to when the time period for filing a petition ended was insufficient to support a claim of equitable tolling); Jancyn Mfg. Corp. v. State, Dept. of Health, 742 So.2d 473, 476 (Fla. 1st DCA 1999)(refusing to apply equitable tolling doctrine where the Department did not mislead the other party but "was the result of appellant’s own inattention”).
      We also find Foley v. State of Florida Dept. Of Health, 839 So.2d 828 (Fla. 4th DCA 2003), distinguishable. In Foley, the Department of Health confessed error acknowledging that it was equitably estopped from securing a default because it had advised that an untimely Election of Rights would be accepted and that the petitioner had "detrimentally relied upon that representation. ...” Foley, 839 So.2d at 829. No similar circumstances exist here, and there was no showing that Patz relied to his detriment on anything the Department said or did in not timely filing his election of rights.


author: HAWKES, J.

text:
    Rodney P. SCHWAB, Appellant, v. Linda C. SCHWAB, and M.A. Rigoni, Inc. etc., Appellee.
    No. 1D02-4871.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2003.

      Clayton-Johnson and Leonard E. Ireland, Jr., Gainesville, for Appellant.
    David A. Barrett, Barrett & Associates, Tallahassee, for Appellee.
   HAWKES, J.

After almost thirty years of marriage the wife filed a petition for dissolution of marriage, and the parties entered into a mediation agreement resolving all but four issues. After a final hearing, the trial court adopted the mediation agreement in its entirety and ruled on the remaining litigated issues. The husband now appeals the final order of dissolution of marriage, alleging four errors: (1) the award of the wife’s attorney’s fees; (2) the facial sufficiency of the trial court’s orders awarding the attorney’s fees; (3) the amount of permanent periodic alimony awarded to the wife; and (4) the security interest in the husband’s M.A. Rigoni stock, awarded to the wife and her attorney, to secure the awards of alimony and attorney’s fees. We find the allegations contained in the second, third, and fourth grounds to be meritorious and, accordingly, reverse as to those issues.

Although we affirm the award of the wife’s attorney’s fees, we reverse one of the trial court’s orders entered on August 3, 2001, awarding the wife $30,321.82 in temporary legal fees. The order lacks the requisite findings as to the reasonable hourly fee for the attorney and the reasonable number of hours required to be spent. See Hamlin v. Hamlin, 722 So.2d 851, 852 (Fla. 1st DCA 1998). On remand, the trial court should make the necessary findings and enter an appropriate award.

We next address the permanent alimony awarded to the wife. When determining an appropriate award of alimony, the trial court must consider the recipient spouse’s need versus the paying spouse’s ability to pay. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). At issue in this case is the wife’s need. The wife’s financial affidavit lists expenses indicating the wife’s need to be slightly greater than the $10,000 per month alimony ordered by the trial court. However, the financial affidavit is insufficient to support the entire alimony award for two reasons. See Calhoun v. Calhoun, 554 So.2d 21 (Fla. 1st DCA 1989).

First, the affidavit included $2,169.00 in expenses related to the parties’ adult children. The trial court found during the hearing that neither party needed to contribute to the support of either child. Therefore these expenses cannot be included when determining the wife’s need. Despite the earlier finding, the trial court improperly included these items. The affidavit also included a $1,000.00 per month expense for payment of a delinquent Visa account. However, the trial court awarded the wife $20,000.00 in lump sum alimony, in part, to pay this delinquent Visa debt. Consequently, since the trial court’s award was sufficient to satisfy the obligation, this expense is also unnecessary and cannot constitute part of the wife’s continuing need. Thus, the trial court should deduct $3,169.00, reflecting the total unnecessary expenses, from the $10,000.00 per month alimony award.

Second, the wife’s financial affidavit includes several expenses that appear inflated. For example, the affidavit included $600.00 per month for gasoline and oil for her car, $900.00 per month for food and home supplies, and $400.00 per month for meals outside of her home. There is no competent, substantial record evidence to establish that these amounts were derived from the standard of living shared by the parties prior to the wife’s filing for dissolution. See Tarkow v. Tarkow, 805 So.2d 854, 856 (Fla. 2d DCA 2001) (reversing the trial court’s award of $9000.00 per month in alimony in part for lack of competent, substantial evidence to support inflated items in the wife’s financial affidavit). On remand, the trial court should examine the remaining expenses included in the wife’s financial affidavit and consider only those supported by competent, substantial evidence and based on the standard of living established during the marriage.

Finally, the trial court erred by securing the awards of alimony and attorney’s fees with the husband’s M.A. Rigoni stock. There is no statutory authority for securing an award of attorney’s fees. Further, using the stock as security for the alimony award violates the parties’ mediation agreement which the court adopted in its final order. The agreement provided that any award of alimony would be secured by the husband purchasing life insurance. If the trial court believed circumstances or evidence justified a different security mechanism from that agreed to by the parties, the court should have advised the parties and refused to accept that portion of the agreement.

Based on the foregoing, the trial court’s final oi'der of dissolution of marriage is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

VAN NORTWICK and PADOVANO, JJ., concur.

      . The wife’s financial affidavit included $1,725.00 in general monthly expenses related to her children and an additional $444.00 for the daughter’s car payment.

      . See § 61.08(3), Fla. Stat. (1999).


author: BENTON, J.

text:
    George Henry DEVANEY, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4471.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2003.
    Nancy A. Daniels, Public Defender; G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

George Henry Devaney, III, appeals the denial of the amended motion for postcon-viction relief he filed pursuant to Fla. R.Crim. P. 3.850 (2001), seeking to set aside convictions for “DUI Manslaughter, DUI with serious bodily injury, Leaving the scene of an accident involving death, [and] Leaving the scene of an accident involving serious bodily injury.” We reverse and remand.

The motion alleged that his trial counsel provided ineffective assistance in failing to interview and then in failing to call three exculpatory witnesses whose names he had furnished them. Evidence adduced on the motion established that the failure to call these'witnesses was objectively unreasonable, based on prevailing professional standards, and that this failure to meet minimum constitutional requirements undermines confidence in the correctness of the result at trial. See Schwab v. State, 814 So.2d 402, 408 (Fla.2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The central question at trial was who was driving when the fatal accident occurred on January 4, 1997. Mr. Devaney’s truck was involved in two accidents early that morning. He conceded that he was driving at the time of the second accident, but contended (and still contends) that one Mike Milling was driving at the time of the first accident, the accident that gave rise to criminal charges. Mr. Milling testified that Mr. Devaney was driving at the time of the first accident but, on cross-examination as to that accident, Mr. Milling said, “I know what I hit.” Two state’s witnesses, Lamart McClain and William McGhee, testified that, while they were in a holding cell (along with perhaps seven others) on the day Mr. Devaney’s jury was chosen, Mr. Devaney said that he was driving at the time of the first accident.

On the second day of trial, after the prosecution alerted the defense to its intention to call Messrs. McClain and McGhee, the trial court allowed defense counsel to depose them that night. When proceedings resumed the following morning, a Friday, a lawyer who represented Mr. Devaney was addressing the court about the two newly disclosed state’s witnesses he had deposed the night before, when he said:

I just got a note from my client about people in the jail that he is aware of that can refute the allegations that we heard of last night. The first I knew about it is right now, when Mr. Devaney just gave me this information.
I mean, the court recognizes that I am ill, have been doing the best I could all week. I was very ill this morning, but I — the reason why I’m here, and probably shouldn’t be here, is I didn’t want the court to think for one moment that I was using my illness to further perpetuate my request of the court last night that we be given additional time to do what we could to investigate these two witnesses, so I am here. I can stay here and I plan to be here today.
Nevertheless, we are — we were in court last night. Talk about being on the horns of a dilemma, we are in a mess here as to what to do about defending our client’s rights with regard to these two new witnesses.
.... I’m not attributing any fault to the state, but due to my condition, I’ve not been able to stay on top of things this week.... And I probably could have put a lot of time in last night, and I just was too sick to do that, and I was sick again this morning.

The trial court responded to defense counsel by discussing the possibility that numerous unlisted defense witnesses would testify to rebut the testimony of the two unlisted state’s witnesses:

[I]f you come in with seven witnesses ... I’m going to order the state to have an opportunity to depose them, we’re going to keep going. So we’re all in the same boat in this thing, in terms of what’s fair for one is fair for the other.
... And if you have rebuttal witnesses or something, obviously, you’re going to have.... If you tell me you’re ill, you’re ill.
... Clearly, you have the weekend. How effective you can be over the weekend, I have no idea. That’s entirely a decision you and your client and [co-counsel] have to make, given your condition .... [T]his case just seems to be growing as opposed to diminishing. And I don’t intend to keep this jury here ad infinitum....

The note Mr. Devaney gave his lawyer had five names on it, including those of Chili-migras Constandinos, Dewayne McNair and Donald Anderson (who was listed as Scott Anderson in the motion). The latter two testified at the evidentiary hearing below in ways that might well have led the jury to reject the testimony of Messrs. McClain and McGhee, and acquit Mr. De-vaney, if defense counsel had called Messrs. McNair and Anderson at the trial.

When asked at the evidentiary hearing about the note Mr. Devaney had given him at the trial, the lawyer quoted above testified:

I do not have a recollection of this but I certainly do not refute that, you know, the transcript indicates it is me addressing Judge Morris, and that the transcript also indicates that I just got a note from my client about people at the jail that he is aware of that can refute the allegations that we heard of last night.
Mrs. Zedalis, I do not remember this.
I apologize for that, and I apologize to my client, I don’t remember it....

Nor did defense counsel have any recollection of visiting the jail to interview anybody Mr. Devaney had named in the note.

The order we have for review denying the motion was drawn by counsel at the trial court’s direction, but only after the judge who heard the motion ruled from the bench, stating reasons:

[TJhese issues ... are, from a legal perspective, not that difficult.... I find that both of the state’s witnesses who testified for purposes of impeachment [at the original trial] were lacking in credibility, I find that the two witnesses presented today, although convicted felons, have no apparent motive to lie today, and I have no reason to question their credibility....
The issue is has the defense carried the burden of establishing that the defense counsel made such errors that they can be determined by this court to have been ineffective.... [T]here was no way the [trial] judge was going to give them additional time to investigate or develop further defense. Whether or not that created an issue on appeal, ... it’s very clear that the defense counsel took every reasonable step during the course of the trial to present a full and adequate defense to Mr. Devaney and there is nothing in the record that would lead me to the conclusion that he was not provided effective assistance of counsel at that trial.

We defer to the motion judge’s credibility determinations with regard to witnesses the motion judge actually saw and heard testify, but no substantial, competent evidence supports the motion judge’s overall view of the case.

At the original trial, the trial judge gave defense counsel the entire weekend to interview anybody they chose. Assuming that this would yield several defense witnesses, the trial judge outlined a discovery procedure designed to avoid prejudice to the state that last-minute defense witnesses might otherwise cause. But there was no evidence that defense counsel interviewed anybody at the jail over the weekend or at any time before the trial concluded. None of the potential trial witnesses was called. Defense counsel’s testimony at the postconviction evidentiary hearing did not reveal any tactical or strategic reason for failing to interview or failing to call the exculpatory witnesses. Cf. Johnson v. State, 769 So.2d 990, 1001 (Fla.2000) (“Counsel’s strategic decisions will not be second-guessed on collateral attack.”); Rose v. State, 675 So.2d 567, 570 (Fla.1996) (“[I]t is apparent that there was a reasoned basis for counsel’s decision.”).

In Schwab v. State, 814 So.2d 402 (Fla.2002), our supreme court dissected the Strickland test for analyzing claims of ineffective assistance of counsel, as follows:

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-prong test to be applied by courts in analyzing claims of ineffective assistance of counsel. See Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000). As to the first prong, the Supreme Court stated that “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” based on “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Under the second prong of the test, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The Supreme Court defined “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Id.

Schwab, 814 So.2d at 408. “[T]he failure to call witnesses can constitute ineffective assistance of counsel if the witnesses may have been able to cast doubt on the defendant’s guilt....” Marrow v. State, 715 So.2d 1075, 1075 (Fla. 1st DCA 1998) (quoting Jackson v. State, 711 So.2d 1371, 1372, (Fla. 4th DCA 1998)).

In the present case, the jury’s verdict hinged on their finding that Mr. Devaney, not Mr. Milling, was driving at the time of the first crash. On this record, there is a reasonable probability that the exculpatory witnesses’ testimony — by directly contradicting the testimony that Mr. Devaney said that he was driving at the time of the first crash and by otherwise calling the credibility of Mr. McGhee into question— would have led the jury to return a verdict of not guilty.

Reversed and remanded.

ALLEN and DAVIS, JJ., concur.

      . Mr. Devaney conceded that he had a conversation in the holding cell with Mr. McClain, but said that, when Mr. McClain said that Mr. Milling was going to testify that Mr. Devaney had been driving, he responded, "Well, you go back ... and you tell Mike Milling why did he run to Ohio whenever my lawyers wanted to take his deposition for the case.”

      . Although the trial court did not make a finding as to the number or identity of the witnesses listed, Mr. Devaney's uncontrovert-ed testimony at the evidentiary hearing was that he had listed five names, including those of Messrs. Constandinos, McNair and Anderson.


author: JjVICTORY, J.

text:
    STATE of Louisiana v. Michael D. LEGRAND.
    No. 2002-KA-1462.
    Supreme Court of Louisiana.
    Dec. 3, 2003.
    Opinion Granting Rehearing in Part Feb. 6, 2004.

      G. Benjamin Cohen, R. Neal Walker, Marcia A. Widder, for Applicant.
    Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Asst. District Attorney, Juliet L. Clark, Terrytown, Vincent Paciera, Jr., New Orleans, Donald A. Rowan, Jr., for Respondent.
   JjVICTORY, J.

This is a direct appeal under Article V, Section 5(D) of the Louisiana Constitution. The defendant, Michael D. Legrand, was indicted for the first-degree murder of Rafael Santos, in violation of La. R.S. 14:30(A)(l)(specific intent homicide committed in the course of an armed robbery). Following a trial, a jury found the defendant guilty as charged and, after a sentencing hearing, unanimously recommended a sentence of death. The trial court sentenced the defendant to death in accordance with that recommendation. The defendant now appeals his conviction and sentence, raising 53 assignments of error. After a thorough review, we conclude that none of the assignments of error raised by the defendant merits reversal, and we therefore affirm the defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On May 18, 1999, Rafael Santos’ body was found in his apartment after he failed to appear for work and his co-workers became concerned. His autopsy revealed that he had been stabbed over 25 times and that three of those wounds were fatal. He was stabbed with a variety of utensils including plastic and wooden handled knives, screwdrivers and scissors, all taken from Mr. Santos’ apartment.

Sergeant Grey Thurman, a member of the Jefferson Parish Sheriffs Office’s Homicide Section, arrived on the scene to investigate the murder. He noticed that the | ¿victim had clearly been dead for several days and that an apparent struggle had taken place before his death. Furniture, glasses and ashtrays had been knocked to the floor, the telephone cord had been cut, and the telephone was on the floor. There were also broken pieces of knife blades, knife handles, bent knives, screwdrivers and scissors strewn about the room. Sergeant Thurman also noted the large amount of blood and number of injuries the victim sustained.

From his investigation, Sergeant Thurman was able to develop the defendant as a suspect in the case and subsequently obtained a warrant for his arrest. After the defendant was arrested, Sergeant Thurman advised him of his Miranda rights and took two statements from him. In his first statement, the defendant admitted that he knew the victim and that he had visited him frequently in the past. In his second statement, the defendant admitted that he had thought about stealing the victim’s extensive CD collection so that he could pawn the discs to make some money. The defendant told Sergeant Thurman that a few weeks before the murder, he and his friend Clayton Runnels went to the victim’s apartment intending to steal the victim’s CDs and that the victim, a friend of the defendants, let the two men in, but they were unable to steal the CDs because the victim was on his way to work and asked them to leave. In addition, he told Sergeant Thurman that after his first attempt to steal the CDs, he returned to the victim’s apartment alone and when he saw that Santos was not at home, he unsuccessfully attempted to kick in the front door.

The defendant related to Sergeant Thurman that on the night of the murder, May 15, 1999, he returned to the victim’s apartment accompanied by Judy Fairless. The defendant knocked on the door while Fair-less waited in the car. Santos opened the door and let the defendant enter his apartment. The defendant immediately went to the victim’s refrigerator to get a Coke and then sat on the couch with the victim. |3The defendant stated that a kitchen knife was lying on the table in front of the sofa. Santos and the defendant talked for a couple of minutes before the defendant picked up the knife and said to the victim, “dude I’m sorry, I don’t have a choice.” The defendant then told the victim that he was going to take some of his CDs. Santos then stood up and went after the defendant. The defendant recalled that Santos yelled out the defendant’s name as the defendant stabbed him. He recalled stabbing Santos “everywhere,” and specifically remembered cutting his throat.

The defendant claimed that he did not remember retrieving the other knives and objects that were used to stab the victim, but he did recall that after he “woke up” he remembered “seeing two knives, a black handle knife and a white handle knife.” After seeing the victim lying on the ground, the defendant loaded the CDs into duffel bags and a laundry basket and handed them over the fence to Fairless. He also took money from the victim’s wallet. The defendant then attempted to clean the blood from his face, hands and legs while in the victim’s apartment, and eventually took his clothes off and changed into a shirt and a pair of shorts belonging to the victim.

The defendant’s efforts at cleaning the blood off himself were unsuccessful. Around five a.m., after the murder, the defendant went to the apartment of his neighbors, Francine Flick and Kevin Brown, and knocked on the door. Flick answered the door and saw that the defendant had blood on his face, shirt, hands and shoes. She also noticed that the defendant was nervous and agitated. Brown also saw the defendant in his bloodstained clothes. When Brown asked the defendant what happened, the defendant told him that he “... went to the guy’s house to get the CDs, and the guy tried to stop him, and he stabbed him.” The defendant went on to tell Brown that he stabbed the victim with a “bunch of knives” or whatever he could reach.

14A few days later, the defendant, along with his friend Clayton Runnels went to Warehouse Music to sell the CDs. In exchange for Runnels’s help, the defendant gave him $30.00 out of the $300.00 that the music store paid for the CDs.

On July 8, 1999, a Jefferson Parish grand jury indicted the defendant for the first-degree murder of Rafael Santos, a violation of R.S. 14:30. At trial, the state presented testimony from several witnesses linking the defendant to the crime. It also introduced into evidence both of the defendant’s audio taped statements. Although the defense never contested that the defendant had in fact committed the homicide, the defense introduced the testimony of one witness, Dr. McGarrity, who testified in support of the defense of voluntary intoxication. The defense’s main argument at the guilt phase focused on rebutting evidence of the defendant’s specific intent to kill by relying on the defense of voluntary cocaine intoxication and the fact that the defendant entered the victim’s apartment unarmed.

The jury subsequently found the defendant guilty of first degree murder. The following day, the trial court conducted the capital sentencing hearing. The state first reintroduced all of its evidence from the guilt phase. Next, the state called the victim’s sister, Barbara Hoffman, to testify regarding victim impact evidence. The defense presented testimony from six witnesses including family members, a licensed psychologist, and a social worker.

Following the penalty phase, the jury returned with a recommendation of death after finding both of the aggravating circumstances advanced by the state: (1) that the offender was engaged in the perpetration or attempted perpetration of an armed robbery; and (2) that the offense was committed in an especially heinous, atrocious or cruel manner. La.C.Cr.P. art 905.4(A)(1), (7). The trial court formally sentenced the |Rdefendant to death by lethal injection on January 12, 2001. The defendant now appeals his conviction and sentence to this Court urging 53 assignments of error.

DISCUSSION

Assignment of Error No. 36

The defendant claims that the state failed to prove beyond a reasonable doubt that the defendant had the specific intent to kill or inflict great bodily harm at the time of the crime and that his conviction must be reversed.

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). Specific intent can be formed in an instant. State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382, 390. Additionally, specific intent may be inferred when the circumstances indicate that the offender actively desired the prescribed criminal consequences of his act. La. R.S. 14:10(1). Moreover, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Jones, 97-2591 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169, writ denied, 99-3141 (La.4/7/00), 759 So.2d 91; State v. Ford, 28,724 (La.App. 2 Cir. 10/30/96), 682 So.2d 847, 849-50, writ denied, 99-210 (La.5/14/99), 745 So.2d 12.

| fiFirst degree murder is defined in La. R.S. 14:30 as follows:

A. First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... armed robbery ...

The defendant’s statement alone clearly established that he went to the victim’s home, armed himself with a dangerous weapon, attempted to take the CDs from the victim’s immediate control by force, and that he killed the victim to accomplish this purpose. The evidence presented by the state established beyond a reasonable doubt that the defendant cut, stabbed, and punctured the victim a minimum of 25 times, using knives, scissors, and screwdrivers, which the defendant retrieved from the victim’s apartment. The defendant cut the victim’s throat, stabbed the victim in the back of the head, and inflicted 13 puncture wounds and two stab wounds upon the victim’s back. He drove a Phillips screwdriver into the victim’s head with such force that he left a star-shaped impression in the victim’s skull, left another such puncture wound in the victim’s temple, and inflicted five puncture wounds in the victim’s chest, three of which perforated the victim’s pulmonary artery. The broken knives and different types of wounds support the reasonable inference that as one weapon broke or proved insufficient to injure the victim with enough severity, the defendant sought additional knives and other weapons (scissors, screwdrivers) from the nearby kitchen drawers, to accomplish his aim of killing the victim. The evidence of specific intent to kill or to inflict great bodily harm was overwhelming.

The defendant’s claim that he could not have had the specific intent to kill the victim because he did not enter the victim’s home with a weapon, is unfounded. As noted above, specific intent can be formed in an instant, and it is not relevant that the defendant waited to arm himself after he entered the residence.

[7The defendant also claims that he armed himself and stabbed the victim only after the two became involved in a struggle. However, this statement seems to misstate the evidence and the defendant’s confession. In his confession, the defendant told Detective Thurman that he picked up the knife before he told the victim that he was going to take his CDs. The defendant stated, “I told him, I said, I’m sorry dude, I picked up the knife and I said, I’m sorry, I — I’m a — you know I — I wanna take some of your CDs man.” It was at this time that the victim resisted and attempted to defend himself. The defendant did not just stab the victim as his brief suggests, but was the aggressor in a violent armed robbery, stabbing the victim as he attempted to resist the defendant’s assault.

The defendant’s last argument is that because he was under the influence of cocaine at the time of the murder, he was unable to form the requisite specific intent to kill. According to La. R.S. 14:15(2), the fact that the offender is in an intoxicated or drugged condition at the time of the commission of the crime is immaterial except:

(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.

The jury obviously rejected the defendant’s argument that he was so drugged or intoxicated that he could not form the requisite specific intent to kill. La. R.S. 14:15(2); State v. Davis, 92-1623 (La.5/23/94),637 So.2d 1012, 1020. As the ultimate fact finder, the jury determines whether a defendant has proven his condition and whether the State negated that defense beyond a reasonable doubt. Id. The defendant, in his audio taped confession, did not allege that he was under the influence of cocaine at the time of the commission of the murder, nor did he alleged that he was under the influence at the time he gave his confession. Sergeant Thurman, the arresting officer, noted that the defendant did not appear to be intoxicated at the time of his |sarrest or statement. Although several witnesses testified as to the defendant’s past drug use, none testified that they observed him using drugs on the night of the murder, nor did anyone note that he appeared to be in a drugged condition after the murder.

The defendant’s actions clearly belie any claim that the defendant was unable to form the specific intent to kill the victim due to drug intoxication. The jury evidently made a credibility determination and rejected the defendant’s defense. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). Based on the overwhelming evidence presented by the state, it is not unreasonable for the jury to conclude that the defendant had the requisite specific intent.

Assignment of Error No. 35

The defendant further asserts that the evidence was insufficient to support the jury’s finding at the penalty phase that the offense was committed in a heinous, atrocious or cruel manner under La. C.Cr.P. art. 905.4(A)(7).

Under our law, an offense must meet the following criteria to qualify as especially heinous, atrocious, or cruel:

This Court has long required a narrowing construction, requiring that there must exist elements of torture, pitiless infliction of unnecessary pain or serious bodily abuse prior to death to support this aggravating circumstance. State v. Brogdon, 457 So.2d 616, 630 (La.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985); State v. Sawyer, 422 So.2d 95, 101 (La.1982); State v. Sonnier, 402 So.2d 650, 659 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). Further, the murder must be one in which the death was particularly painful and carried out in an inhuman manner. State v. Baldwin, 388 So.2d 664, 677 (La.1980). A finding that the wounds were inflicted to kill, not to maim or inflict pain, may but does not necessarily preclude a finding that the murder was especially heinous, atrocious or cruel. State v. Tassin, 536 So.2d 402, 411 (La.1988).

State v. Bowie, 00-3344 (La.4/3/02), 813 So.2d 377, 394, cert. denied, 537 U.S. 951, 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002). This Court has affirmed findings that the offense was committed in an especially heinous, cruel, or atrocious manner in numerous cases involving stabbings.

In the instant case, the victim was stabbed over 25 times, with a variety of weapons. Of these 25 wounds, only three of them actually caused his death. These three wounds, inflicted with a Phillips head screwdriver, punctured the victim’s pulmonary artery which caused him to bleed to death. The other wounds the victim suffered included a number of defensive wounds, described by the medical examiner as incised wounds to the palms of the victim’s hand which indicated that he put his hands up in the struggle to defend himself from his assailant. There was also a star shape wound embedded in the victim’s skull, which was also caused by a Phillips head screwdriver. The medical examiner indicated that the victim was alive when his throat was cut, a 13 cm wound which penetrated skin and underlying musculature, but did not involve the major vascular structures of the neck.

| min this case, the jury considered the evidence and determined that the crime was committed in an especially heinous, atrocious, and cruel manner. The testimony of the medical examiner clearly supports this finding. At any rate, this Court has held on numerous occasions that the failure of one or more statutory aggravating circumstances does not invalidate others, properly found, unless introduction of evidence in support of the invalid circumstance interjects an arbitrary factor into the proceedings. State v. Bowie, supra at 395-396 (citing State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, 192); State v. Letulier, 97-1360 (La.7/8/98), 750 So.2d 784, 799. The state presented sufficient evidence to prove the other aggravating circumstance found by the jury, that is, that the defendant murdered the victim while engaging in an armed robbery or the attempted perpetration of an armed robbery. In the instant case, no arbitrary factors were interjected into the proceedings, as the evidence presented by the state, including the medical examiner’s evidence concerning the number of the victim’s wounds and the nature of the victim’s injuries, was highly relevant and sufficient for the jury to conclude that the murder was committed in an especially heinous, atrocious and cruel manner. Accordingly, this assignment of error is meritless.

Assignments of Error Nos. 1-8

The defendant asserts that his rights to due process, a fair trial and a reliable sentencing determination were denied by a series of trial court errors surrounding the state’s principal witness testifying that he had passed a polygraph examination.

This Court has long adhered to the view that lie detector or polygraph test results are inadmissible for any purpose at the trial of guilt or innocence in criminal cases. Consistent with this view, the Court has “made it clear” that the rule excluding polygraph evidence “also operates to prevent any reference during trial to the fact that |na witness has taken a polygraph examination with respect to the subject matter of his testimony.” State v. Hocum, 456 So.2d 602, 604 (La.1984); State v. Tonubbee, 420 So.2d 126, 132 (La. 1982), cert. denied, 460 U.S. 1081, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983); State v. Davis, 407 So.2d 702, 706 (La.1981); State v. Catanese, 368 So.2d 975, 981 (La.1979). Such evidence is prohibited because it “invites a probable inference by the jury that the witness passed the polygraph examination and therefore is testifying truthfully.” Hocum, supra at 604-605. Moreover, this Court has held that polygraph information and test results are inadmissible “either as substantive evidence or as relating to the credibility of a party or witness.” State v. Humphrey, 445 So.2d 1155, 1158 (La.1984) (quoting Tonubbee, supra at 132).

However, “[e]ven though any reference to the results of a polygraph test would be improper, an appellate court will not automatically reverse a conviction whenever an impermissible reference to a polygraph exam is made during a criminal trial.” State v. Womack, 592 So.2d 872, 881 (La.App. 2 Cir.1991), writ denied, 600 So.2d 675 (La.1992). A reversal and new trial are required only if there is a reasonable possibility that the error complained of might have contributed to the conviction. Hocum, supra at 604-605; State v. Semien, 566 So.2d 1032 (La.App. 3 Cir. 1990), writ denied, 569 So.2d 960 (La.1990).

In the "instant case, Clayton Runnels took the stand' and described for jurors how he and the defendant “discussed going to Mr. Rafael’s apartment and beating him up and taking his property,” an idea 'Runnels attributed to the defendant. He testified 11?.that some time later he had accompanied the defendant to the victim’s apartment before the murder in an abortive attempt to steal the victim’s CDs. According to Runnels, the victim let them into the apartment and he and Runnels smoked some marijuana. While at the apartment, the defendant went into the kitchen looking for scissors to cut a cigarette, and while the victim’s back was turned, the defendant picked up a knife from the victim’s kitchen and made stabbing motions behind the victim’s back. According to Runnels, he frantically waved at the defendant to deter him from any actual attack, and after the victim advised them that he had to go to work, Runnels and the defendant left the apartment.

During cross-examination, Runnels acknowledged that while he had been arrested initially for accessory after the fact to murder, he had pled guilty to a reduced charge of accessory to simple robbery. Although he had entered that plea a year before trial, Runnels had not been sentenced on that conviction, nor had his other pending drug charges allotted to the same section of court been resolved. Run-neis had also been aware of the nature of the charges against the defendant from media coverage of the murder. Defense counsel vigorously questioned the witness in an attempt to establish that Runnels was altering some aspects of his testimony in order to receive favorable treatment in his own case:

Q. Okay. And isn’t it true that you’re exaggerating your testimony regarding the stabbing motion because you knew about the stabbing before you gave the statement? You’re exaggerating your testimony about him saying, Let’s go beat up the guy to get the CD’s, because you wanted help in your case. Isn’t that true?
A. No.
Q. Isn’t that true, a case that they told you you were — they advised you of your rights for accessory after the fact of first degree murder, that the D.A.’s office accepted accessory to simple robbery; isn’t that true?
A. The charge of accessory to simple robbery was presented after I took a polygraph test, and they realized that I was—
11gMr. Dohre [defense attorney]:
I’m going to object, your Honor.

The trial court overruled the objection stating that the defense “opened the door” and it allowed the witness to finish his answer. Runnels then stated that “I was originally arrested on accessory to murder ... And I took a polygraph test, which let Detective Thurman know that I was telling the truth, that I did not help Michael kill this man.” The trial court then refused to admonish the jury and refused to allow the defense attorney to ask more questions about the polygraph examination.

The defendant claims error with the trial court’s overruling defense counsel’s objection to Runnels’ reference to the polygraph examination, allowing the witness to complete his answer, refusing to admonish the jury and refusing to allow the defense attorney to ask more questions about the polygraph examination. First, we find that the trial court did not err in overruling the defense objection to Runnels’s comment during cross-examination. Runnels’s mentioned the polygraph in an effort to bolster his disclaimer that he had nothing to do with the actual murder, a point the defense never contested. He mentioned that he took a polygraph test in response to the defense attorney repeatedly asking him about the fact that less serious charges were accepted by the state. In an effort to explain the state’s decision to charge him with the less serious crime, he simply offered what he believed to be the reason that the charges were lessened.

After having had the door opened to this testimony, it was only fair for the trial judge to allow the witness to complete his answer. In fact, in finishing his answer, he 114stated that the polygraph test “let Detective Thurman know that I was telling the truth, that I did not help Michael kill this man,” which actually clarified that the polygraph related only to Runnels’ lack of participation in the murder.

Following that, it was not erroneous for the trial court to curtail any other questions concerning the polygraph examination. Runnels’ reference to the polygraph examination did not relate to any fact genuinely at issue, as the defendant acknowledged that Runnels had nothing to do with the murder and the testimony was relevant only to Runnels’ explanation of why he believed that he was charged with a lesser crime. In allowing further questioning in regards to the polygraph examination, the trial court would have only allowed the introduction of inadmissible and irrelevant evidence.

The defense attorney requested that the jury be admonished about the admissibility of the polygraph, but the trial court denied it, stating, “We’re not mentioning a polygraph.” According to La. C.Cr.P. art. 771, an admonishment is proper when a witness makes a remark or comment that is “irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state in the mind of the jury.” La.C.Cr.P. art 771. In this case, Runnels’ remark was relevant to the question asked of him by the defense attorney. Runnels was simply attempting to explain why the charges against him were reduced after his arrest. The fact that the charges were reduced after the polygraph only serves to prove the fact that Runnels did not help the defendant kill the victim, a fact that was not disputed by the defense and therefore was not prejudicial.

|1fiThe defense further argues that the state was allowed to exploit defense counsel’s mistake of opening the door to Runnels mentioning of the polygraph examination during its rebuttal closing argument at the guilt phase which referenced Runnel’s testimony. In its closing at the guilt phase, defense counsel referred to the polygraph examination as follows:

But what I am saying is that he knows that he has a sentencing awaiting him, and he knows that he has an open charge awaiting him. Both that he said have been or he was told would be continued until after his trial. And he knows when he talked to the police that night that they had booked him with accessory to murder, first degree murder. And he knows that. And he needs information to help himself. He’s not going to say he was there and that’s, you know, nobody, nobody, I never suggested to Clayton Runnels that he was there, okay on the night of the murder. He was there before. He admitted that. But I’m talking about the night of the murder. I never suggested to him that he was there, so when he passed the polygraph tests about him being there, I never suggested that. And I certainly didn’t meant to suggest that, because I know he wasn’t there.

Following this, the prosecutor, in his rebuttal closing argument at the guilt phase, discussed Runnels’ testimony:

And he pled guilty to an accessory after the fact to a simple robbery. Why is that? Because that was his intent, was to participate in a simple robbery, no weapons. Not accepting it. Don’t justify it. But that’s what it was.
And he told you he passed the polygraph test. Not — there wasn’t any limitations on his passing the polygraph test. He was telling you the truth.

At the conclusion of the state’s closing argument, the defense objected and now strenuously argues that the state’s remarks in closing may have led the jury to believe that the polygraph .covered all areas of Runnels’ testimony, including the testimony that the defendant made the stabbing motions on a prior visit to the apartment and had told Runnels that he would beat the victim if need be to get the CDs, and is therefore reversible error under Hocum.

| ^Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. In addition, La. C.Cr.P. art. 774 confínes the scope of argument to “evidence admitted, to the lack of evidence, to conclusion of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” The trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981). Even if the prosecutor exceeds these bounds, the Court will not reverse a conviction if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. See State v. Martin, 93-0285 (La.10/17/95), 645 So.2d 190, 200; State v. Jarman, 445 So.2d 1184, 1188 (La.1984); State v. Dupre, 408 So.2d 1229, 1234 (1982).

In this case, taken in context, the statement “there wasn’t any limitations on his passing the polygraph test. He1 was telling the truth,” related only to Runnels’ participation in the crime and why he was able to plead guilty to an accessory after the fact to simple robbery. In addition, the statement “there wasn’t any limitations on his passing the polygraph test” is so vague that we cannot conclude that the jury would be misled.

Further, this case is easily distinguishable from Hocum in which this Court determined that admission of testimony regarding a polygraph examination required reversal of a defendant’s conviction. In Hocum, the defendant’s former employer (and alleged co-conspirator) was the only witness who solidly linked Hocum to the crime for which he was tried. During the trial, testimony that the former employer’s deal with the prosecution depended on his taking and passing a polygraph was improperly admitted. This Court reversed Hocum’s conviction for inciting a felony after determining that there was a reasonable possibility that the improper introduction 117of this testimony contributed to the guilty verdict:

... the state’s- case against Hocum depended almost entirely on Gaulon’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Gaulon’s credibility as a witness was therefore an important issue in the case, and there is more than a reasonable possibility that the jury’s knowledge that Gaulon had successfully passed a polygraph test on the subject of his testimony could have affected its judgment and contributed to its verdict.

Hocum, 456 So.2d at 605.

In this case, Runnels’ testimony that the defendant planned to beat the victim if he had to was not even evidence of defendant’s specific intent to kill the victim. Further, Runnel’s testimony that the defendant made a pantomime stabbing motion behind the victim’s back was far from the only evidence of the defendant’s guilt. The law is clear that specific intent to commit first-degree murder can be formed in an instant and “premeditation” is -not an element of the crime. As discussed above, the other evidence of the defendant’s specific intent was overwhelming. The location, placement, type, and number of wounds, without even considering Runnels’ testimony, clearly establish that.the defendant had, at least, the specific intent to inflict great bodily harm upon the victim. Further, the fact that the defendant cut the victim’s phone cord, and the defendant’s statement to police that he picked up a weapon and told the victim he was going to take his CDs before stabbing him and cutting his throat, overwhelmingly establish the defendant’s specific intent, regardless of Clayton Runnels’ testimony. Therefore, in light of this overwhelming evidence of the defendant’s specific intent, it cannot be said that the remarks about the polygraph exam might have contributed to the conviction.

Finally, the remarks, even if objectionable, do not call for a reversal of the defendant’s death sentence. The remarks were all made during the guilt phase of the trial and, having found the defendant guilty of first-degree murder in light of the [isevidence presented at trial concerning the extremely violent stabbings the defendant committed the night of the murder, there is no reasonable possibility that the evidence complained of might have contributed to the jury’s determination at the sentencing phase, and any error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This assignment of error lacks merit.

CAPITAL SENTENCING REVIEW

Under La.C.Cr.P. art. 905.9 and La.S.Ct.R. 28, this Court reviews every sentence of death imposed by the courts of this state to determine if it is constitutionally excessive. In making this determination, the Court considers whether the jury imposed the sentence under the influence of passion, prejudice or other arbitrary factors; whether the evidence supports the jury’s findings with respect to a statutory aggravating circumstance; and whether the sentence is disproportionate, considering both the offense and the offender. In the instant case, the trial court has submitted a Uniform Capital Sentence Report (“UCSR”), and the Department of Public Safety and Corrections (“DOC”) has submitted a Capital Sentence Investigation (“CSI”).

The CSI indicates that the defendant is a white male born on September 27, 1973. He was 26 years old at the time of the offense. He is unmarried, but does have one son, although he was not contributing child support at the time of the offense. The defendant was the only child born to his biological parents, but he has two half sisters born to his biological mother as a result of a previous relationship. The defendant, who was adopted at the age of 13, also has two adoptive sisters and one adoptive brother.

According to the UCSR, both of the defendant’s parents were incarcerated l19when he was born. He was reared by his uncle, Paul Legrand, until the age of five when his mother was released from prison and regained physical custody of him. He then began living with his mother and stepfather who was his biological father’s former cell-mate. During this time, the defendant claims to have been both physically and sexually abused by his stepfather. When he told his mother about the abuse, she accused him of lying and sent him to the Office of Community Service. The defendant was placed in several foster homes unsuccessfully. He was eventually placed in a group home where he claims to have been frequently molested. At the age of 13, the defendant was removed from the group home and was adopted by his uncle, Paul Legrand.

The defendant was enrolled in the Jefferson Parish Public School system and has a tenth-grade education. As for his employment history, the defendant indicated that he drifted from job to job working mainly as a laborer. The defendant worked as a Kirby vacuum salesman in 1996-1997. In 1995-1996 and 1997-1999, the defendant worked at Roto Rooter, but left for other employment opportunities. The defendant has also worked- as a bartender and at Office Max, for an unspecified amount of time. The CSI indicates that the defendant is classified as a first felony offender. He has a prior conviction for possession of marijuana and has been arrested for possession of drug paraphernalia, second degree battery, and carnal knowledge of a juvenile. When he was arrested in the instant case, several charges were refused by the district attorney, including theft of a firearm, possession of stolen property, possession of cocaine, possession of a firearm while in possession of a controlled dangerous substance and possession of drug paraphernalia.

A psychiatric evaluation revealed that the defendant has a prior psychiatric history. The defendant attempted "suicide several times, which resulted in brief | ¡,ninvoluntary confinements at local hospitals. Although there was no indication that the defendant was under the influence of alcohol or narcotics during the commission of the instant offense, the defendant’s statements allege prior drug usage. According to the UCSR, as an adolescent, the defendant was diagnosed and treated for Major Affective Disorder, Depressed type, Unipolar;" Mild Learning Disability; Impulsive Character Traits; Adjustment Disorder with Mixed Disturbances of Emotion and Conduct; Intermittent Explosive Disorder, Impulsive Control Disorder; and Attention Hyperactivity Disorder. These conditions were the result of the physical and emotional abuse suffered by the defendant during his childhood.

It was determined that the defendant was able to distinguish right from wrong and was able to adhere to the right. The defendant was also able to cooperate intelligently in his own defense.

Aggravating Circumstances

At trial, the state argued that the following aggravating circumstances existed: (1) that the offender was engaged in the perpetration or attempted perpetration of an armed robbery; and (2) that the offense was committed in an especially heinous, atrocious, or cruel manner. La.C.Cr.P. art. 905.4(A)(1), (7). The jury found the existence of both of the aggravating circumstances urged by the state.

Even were we to accept the defendant’s claim that the evidence failed to support that the murder was “committed in an especially heinous, atrocious, or cruel manner,” the inclusion of this aggravating circumstance did not interject an arbitrary factor into these proceedings because evidence of the manner in which the offense was committed and of the nature of the victims’ injuries' was relevant and properly admitted at trial." See State v. Roy, 95-0638 (La.10/4/96), 681 So.2d 1230, 1242, cert. denied, 520 U.S. 1188, 117 S.Ct. 1474, 137 L.Ed.2d 686 (1997). As noted above, this Court b-ihas held on numerous occasions that the failure of one or more statutory aggravating circumstance does not invalidate others, properly found, unless introduction of evidence in support of the invalid circumstance interjects an arbitrary factor into the proceedings. Bowie, supra at 395-396 (citing Wessinger, supra at 192; Letulier, supra at 799). Evidence of the invalid aggravating circumstance in this case did not interject an arbitrary factor into the proceedings because evidence of the crime, including the defendant’s conduct, the victim’s injuries, and the. circumstances leading up to and following the murder was relevant and properly admitted at trial. Further, the remaining aggravating circumstance was amply supported. Hence, no arbitrary factors were interjected into the proceedings. See State v. Roy, supra at 1242.

Proportionality

Although the federal Constitution does not require a proportionality review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana. State v. Burrell, 561 So.2d 692, 710 (La.1990). This Court, however, has vacated only one capital sentence on the ground that it was disproportionate to the offense and the circumstances of the offender, State v. Sonnier, 380 So.2d 1, 7 (La.1979), although it effectively decapitalized another death penalty reversed on other grounds. See State v. Weiland, 505 So.2d 702 (La.1987) (on remand, the state reduced the charge to second-degree murder and the jury returned a verdict of manslaughter).

This Court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender. If the jury’s recommendation of death is inconsistent with sentences imposed in similar cases in the same jurisdiction, an inference of arbitrariness arises, j g2,Sonnier; supra.

The state’s Capital Sentence Review Memorandum reveals that since 1976 jurors in the 24th Judicial District Court have returned a guilty verdict in 56 capital cases, including this one, and recommended the death penalty 23 times before this. The first case in which the jury recommended the death penalty is that of Benjamin Berry, who fatally shot a law enforcement officer during a bank robbery. Berry was executed in 1987. State v. Berry, 391 So.2d 406 (La.1980), cert. denied, 451 U.S. 1010, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). The second case is that of Reginald Smith, who shot the victim in a lounge parking lot. The victim’s two friends ran away from the direction of the gunfire. The defendant was found guilty of first degree murder because a witness saw the defendant fire two additional shots in the direction of the parking lot, and the jury found the aggravating circumstance of knowingly created a risk of death or great bodily harm to more than one person. Smith died of natural causes in January, 1983. State v. Smith, 391 So.2d 1182 (La.1980). The third case is that of Robert Sawyer, who killed the female victim by beating her and inflicting karate kicks. She was also scalded and set on fire, after twice being raped by co-defendant, Charles Lane. In March 1993, Sawyer was executed by lethal injection. State v. Sawyer, 422 So.2d 95 (La.1982), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 191 (1984). The fourth case is that of Tyronne Lindsey, who killed a shopper in the Oakwood Mall parking lot. After numerous resentencings and a retrial, Lindsey was once again sentenced to death. State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). The fifth case is that of Jimmy Robinson who killed the husband of an apartment complex manager in her presence during an armed robbery. This Court affirmed the conviction but vacated the death sentence and, on remand, Robinson received a sentence of life imprisonment without [¡¡..¡benefit of parole, probation, or suspension of sentence. State v. Robinson, 421 So.2d 229 (La.1982). The sixth case is that of Johnny Taylor who stabbed the victim multiple times and stole his car. Taylor was executed on February 29, 1984. State v. Taylor, 422 So.2d 109 (La.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983). The seventh case is that of Lane Nelson, who robbed and stabbed a transvestite who had picked him up hitchhiking to New Orleans. Before his death sentence was carried out, Nelson’s conviction was reversed and on retrial, he was convicted of second degree murder and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. State v. Nelson, 459 So.2d 510 (La.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 322 (1985). The eighth case is that of Leslie Lowenfield who shot and killed his ex-girlfriend, her daughter, her parents and her current boyfriend. This Court affirmed the conviction and sentence. State v. Lowenfield, 495 So.2d 1245 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986). The ninth case is that of Glen Keith Weiland who stabbed his girlfriend and her ex-husband, killing the female victim. This Court reversed Weiland’s first-degree murder conviction. State v. Weiland, 505 So.2d 702 (La.1987). On retrial the state amended the indictment to second degree murder. The jury subsequently convicted defendant of manslaughter and he was sentenced to 21 years imprisonment at hard labor. The tenth case is that of Robert Tassin,'who shot two victims, one fatally, in the course of an armed robbery/drug deal. The Court affirmed his conviction and sentence. State v. Tassin, supra. The eleventh case is that of Glen Seals, who Mlled a cab driver in the course of an armed robbery. This Court affirmed his conviction and death' sentence. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). However, in post-conviction proceeding, this | ?4court reversed his conviction and sentence on grounds that the trial court failed to make a formal determination of the defendant’s competency to proceed after signing a motion appointing a psychiatrist to examine the defendant. State ex rel. Seals v. State, 00-2738 (La.10/25/02) 831 So.2d 828. The twelfth case is that of Manuel Ortiz, a murder-for-hire case in which the defendant employed a “hitman” to kill his wife and her friend. This Court affirmed the defendant’s conviction and sentence. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). The thirteenth case is that of Julius Lucky who shot two of his co-workers, one fatally, during the course of an armed robbery. This Court affirmed his conviction and death sentence. State v. Lucky, 96-1687 (La.4/13/99), 755 So.2d 845, cert. denied 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000). The fourteenth case is that of Edward Harris, who shot and killed two pedestrians in a drive-by shooting. This Court reversed and remanded this case to the trial court because a potential juror was excluded from the jury based on his race. State v. Harris, 01-0408 (La.6/21/02), 820 So.2d 471. The fifteenth case is that of Teddy Chester, who killed a cab driver during the course of an armed robbery. This Court affirmed his conviction and death sentence. State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276. The sixteenth case is that of Allen Snyder, who stabbed his wife and her new boyfriend, killing the boyfriend. This Court conditionally affirmed his conviction and death sentence, but remanded the case to the trial court for a retrospective determination of his competence to stand trial. If a retrospective determination cannot be made, or if it is determined that defendant was not competent at the time of trial, defendant shall be entitled to a new trial. State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832. Snyder’s appeal has been refiled in this Court and remains pending. The seventeenth case is that of Emmett Taylor, who killed a | as69 year old employee of Rhodes Drug Store, during an armed robbery attempt. This Court affirmed the conviction and death sentence in State v. Taylor, 99-1311 (La.1/17/01), 781 So.2d 1205, cert. denied, 534 U.S. 844, 122 S.Ct. 106, 151 L.Ed.2d 64 (2001). The eighteenth ease is that of Damon Thibodeaux, who killed 14-year-old Crystal Champagne on the levee during an aggravated rape. This Court affirmed his conviction and death sentence in State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). The nineteenth case is that of Elzie Ball, who killed a Budweiser deliveryman during the course of an armed robbery. On May 23, 1997, Ball was convicted of first-degree murder and sentenced to death. This Court affirmed his conviction and death sentence. State v. Ball, 00-2277 (La 1/25/02), 824 So.2d 1089, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002). The twentieth and twenty-first cases are those of Lawrence Jacobs and Roy Bridgewater, who committed a double murder of an adult male victim and his mother during the course of an aggravated burglary. The defendants were tried separately, convicted and each sentenced to death. This Court reversed Jacobs’s conviction and death sentence on grounds of the trial court’s erroneous denial of defense cause challenge and remanded for a new trial. State v. Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280. In a separate appeal, this Court found the evidence insufficient to support a first-degree murder conviction. This Court reduced Roy Bridgewater’s conviction to guilty of second-degree murder, reversed the death sentence, and sentenced him to life in prison without benefit of parole, probation, or suspension of sentence. State v. Bridgewater, 00-1529 (La.11/28/01). On rehearing, this Court held that evidence was sufficient to sustain first-degree murder conviction and that the death penalty was not disproportionate. The Court therefore reinstated the defendant’s conviction and death sentence. State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1226, 154 L.Ed.2d 1089 (2003). The twenty-second case is that of Jarrell Neal, who killed two people during a drug-related burglary. This Court affirmed his conviction and death sentence in State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The twenty-third case is that of Ryan Matthews, who shot and killed the owner of a convenience store and fired another shot at a customer but missed. Matthew’s appeal was filed in this Court, but the case has been remanded to the district court for further evidentiary proceedings. The twenty-fourth case is that of Thoa Tan Lam, who entered the home of a former employer and shot four people, two of whom died, and then shot himself in an unsuccessful suicide attempt. Lam’s appeal was filed in this Court but the case has been remanded for purposes of conducting an evidentiary hearing on the defendant’s claim that the inadequacy of his interpreter denied him due process. The instant first-degree murder comprises the twenty-fifth case in which a Jefferson Parish jury has returned the death sentence. Michael Legrand stabbed the victim to death with several weapons including kitchen knives, scissors and screwdrivers, during the course of an armed robbery. On September 28, 2000, Legrand was convicted of first degree murder and sentenced to death. State v. Legrand, 02-KA-1462.

The brief outline of the cases above indicates that the death penalty imposed in this case is not disproportionate. Further, the use of a statewide basis of comparison yields the same result. Cases are legion in which this Court has affirmed capital sentences based primarily on the jury’s finding that the defendant killed the victim in the course of an armed robbery or attempted armed robbery. See, e.g., State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364 (affirming death penalty for single-shot |a7armed robbery-murder when jury also found other aggravating circumstance that defendant had caused risk of great bodily harm to another victim), cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996); State v. Thompson, 516 So.2d 349, 356-57 (La.1987) (affirming death penalty for single-shot armed robbery-murder while questioning finding of other aggravating factor), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 149 (1988).

A comparison of the defendant’s case with the above-referenced cases, indicates that the death penalty as applied to this defendant is not disproportionate considering the offender and tjie offense.

DECREE

For the reasons assigned herein, the defendant’s conviction for first-degree murder and his sentence of death are affirmed. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for cer-tiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme court timely, under its prevailing rules for rehearing of denial of certiorari, or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this Court under La. C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La. R.S. 15:567(33), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts.

AFFIRMED.

ON APPLICATION FOR REHEARING

'hPER CURIAM.

Granted for limited purpose of addressing defendant’s motion to remand this cáse, which was filed on November 20, 2002, and which this Court referred to the merits of the appeal by order issued on December 18, 2002. Otherwise, the application for rehearing is denied.

On March 3, 2003, defendant filed its brief on appeal asserting 51 assignments of error. In footnote 98, included in the section addressing assignment of error no. 32 (“the death sentence is disproportionate under the facts of this case”), defendant referred to the motion to remand, as follows:

This Court has referred to the merits of this appeal Mr. Legrand’s Motion to Remand for Adjudication of his Motion for New Trial Under the Proper Standard of Review. In the motion, which is incorporated by reference herein, he argues that the trial court failed to apply the proper standard of review to address Mr. Legrand’s arguments that his death sentence was against the weight of the evidence or that, under La. C.Crim. P. Art. 851(5), the ends of justice would be served by granting a new sentencing hearing. In the event that this Court does not reverse on other grounds, Mr. Legrand respectfully urges that the case must be remanded to allow the trial court to analyze his motion for new trial under the proper standard of review.

This Court failed to address the motion to remand in the main opinion or the appendix to the main opinion and we therefore granted the application for rehearing for the limited purpose of ruling on the motion to remand.

In the motion to remand, defendant argues that the trial court erroneously denied his motion for new trial, because in denying the motion for new trial, the trial judge |j>wrongly believed that “I have a non-discretionary decision anyway,” when in fact, the judge has discretion to grant a new trial when he is of the opinion that the ends of justice would be served by the granting of a new trial. La. C.Crim. P. Art. 851(5).

Having reviewed the transcript of the hearing and ruling on the motion for new trial, it is clear that the trial judge applied the correct standard of review in denying the motion for new trial. After hearing argument from counsel addressing the motion for new trial, the trial judge stated that he had thought about the case thoroughly and determined that the jury had an abundance of evidence to find defendant guilty of first degree murder and then went through all the arguments individually and found them meritless. He then stated “I am going to deny the motion for new trial.” Although defendant argues that the trial court has the discretion to order a new trial on sentencing under La.C.Cr.P. art. 851(5), there is no indication in this record that the trial judge felt that a new trial was warranted and accordingly, he denied the motion.

The court then proceeded to sentencing. The trial judge asked if defendant wished to say anything before sentencing and defense counsel referred the trial judge to a letter defendant had written him which had been placed under seal. The trial judge stated that he had not read the letter and defense counsel asked that it be unsealed when it became part of the record. The trial judge then stated,

“Okay. It can be unsealed for whatever purposes. I mean I’ll read it later, but it’s not supposed to influence my decision.
[Defense counsel]: Correct.
Trial judge: And I have a non-discretionary decision anyway.

Thus, although defendant asserts in his rehearing application that “the trial court denied the motion [for new trial] under the mistaken belief that it had a ‘non-discretionary decision,’ ” it is clear that the trial court was not referring to his discretion in ruling on the motion for new trial, but rather, having already denied defendant’s motion for new | ¡¡trial, was merely commenting on his discretion in sentencing the defendant in accordance with the jury’s determination pursuant to La.C.Cr.P. art. 905.8.

Accordingly, defendant’s motion to remand is denied.

      . Runnels later entered a guilty plea to accessory to simple robbery for his role in the incident.

      . The assignments of error not discussed in this opinion do not constitute reversible error and are governed by well-settled principles of law. Those assignments are reviewed in an unpublished appendix that will comprise a part of the official record in this case.

      . The defendant was able to drive to the victim’s house, tell the victim that he was about to take his CDs and stab the victim a number of times. He even had the presence of mind to cut the victim’s telephone cord, so that he would be unable to call for help. Following the stabbing, the defendant packed the victim’s CD collection and passed it over the fence to his accomplice. He then removed money from the victim's wallet and attempted to clean the blood off himself. After changing into some of the victim’s clean clothes, the defendant returned to his vehicle and drove away from the apartment.

      . In State v. Moore, 414 So.2d 340, 348 (La.1982), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983), the victim received 13 stab wounds and died "with awareness of her impending death.” In State v. Taylor, 422 So.2d 109 (La.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983), there was evidence that the more than 20 stab wounds did not cause immediate death. The coroner testified that death would have taken place over a period of minutes (10 to 20) as the lungs collapsed and blood slowly leaked from the blood vessels. This Court did not reach a definite conclusion on the heinous nature of the crime in State v. Kirkpatrick, 443 So.2d 546 (La.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 847 (1984), but indicated that the crime had been committed in an especially heinous, atrocious or cruel manner. The victim, who had received two stab wounds with a butcher knife, had been "left bleeding on the floor before he was, out of cruelty or pity, shot in the head.” Kirkpatrick, 443 So.2d at 560. That victim had also received two blows to the head with a heavy glass object.

      . In Womack, a witness testified that his reason for coming to Louisiana was "to administer polygraph examinations." Womack, 592 So.2d at 880. The witness's testimony also "showed that defendant was willing to take the test but that no test was administered due to defendant’s confession ... [and] no test results were offered.” Id. The court found that “[t]his brief, unsolicited reference to ‘polygraph’ was not an impermissible or erroneous reference to test results.” Id.

      . The polygraph tests and results, which were not seen by the jury, actually contained only the following:
      "Were you present when Rafael was stabbed?” "No.”
      "Were you present when Rafael was stabbed last month?” "No.”
      "Were you at Michael Legrand's apartment when Rafael was stabbed last month?” "No.”

      . It should also be noted that defense counsel requested the admonition only after attempting to delve deeper into the details of the polygraph examination during the cross-examination.

      . In fact, in its closing argument, the defense attorney stated "... I never suggested to Clayton Runnels that he was there, okay, on the night of the murder.”