author: PER CURIAM.

text:
    Timmy E. ADAMS v. NAPHCARE, INC., et al.
    2020312.
    Court of Civil Appeals of Alabama.
    July 18, 2003.

      Timmy E. Adams, pro se.
    James S. Ward of Corley, Moncus & Ward, P.C., Birmingham, for appellees.
   PER CURIAM.

Timmy E. Adams, a prisoner proceeding pro se, on February 11, 2002, sued NaphCare, Inc., and the wardens of the following correctional facilities: Kilby Correctional Facility, St. Clair Correctional Facility, Easterling Correctional Facility, Donaldson Correctional Facility, and Staten Correctional Facility (the correctional facilities are hereinafter collectively referred to as “the department defendants”). Adams alleged in his complaint that, from the time of his incarceration until the filing of his complaint, he had been forced to shave his facial hair and that, as a result, he suffers from a medical condition known as pseudofolliculitis barbae (“the condition”). Adams contends that the condition is an incurable disease that primarily affects black men after they shave. He states that the condition results when recently shaved facial hairs grow inward and penetrate the skin causing an inflammatory reaction. Adams alleged that the Department of Corrections’ “clean shave” policy discriminates against him because of his race; that the implementation of the policy has caused him to suffer from the condition, resulting in painful pustules and abscesses; that the policy is abusive and that the implementation of the policy causes him mental and physical harm; and that the policy reflects a deliberately indifferent attitude on the part of the policy-makers and that implementation of the policy results in the wanton infliction of pain, excessive punishment, the denial of equal protection, and dehumanization. Adams also, on May 23, 2002, moved the court for a preliminary injunction prohibiting the defendants from forcing him to shave.

The department defendants, on June 3, 2002, moved the court to dismiss the complaint, or, in the alternative, for a summary judgment. On July 19, 2002, NaphCare moved the court to dismiss the complaint, or, in the alternative, for a summary judgment. On September 10, 2002, Adams moved the court for a summary judgment. The court entered an order setting all pending motions for a hearing on October 16, 2002. Following a hearing, the trial court, on November 8, 2002, entered an order denying Adams’s motion for a summary judgment and granting NaphCare’s motion for a summary judgment. The court did not address the department defendants’ motion for a summary judgment. Adams filed his notice of appeal on December 23, 2002. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

NaphCare argues on appeal that the notice of appeal filed by Adams is untimely and also that the judgment ap-

pealed from was not a final judgment that would support an appeal. Because we conclude that the judgment appealed from was a nonfinal judgment, we will not address NaphCare’s argument that the appeal is untimely. See T.B. v. A.J., 812 So.2d 1287 (Ala.Civ.App.2001). “ ‘It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.’ ” Owens v. Oioens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). This court has stated:

“A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ See Rule 54(b), Ala. R. Civ. P.”

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (citations omitted).

The judgment entered by the trial court in this case does not dispose of the claims brought by Adams against the department defendants, nor does it certify the judgment entered in favor of Naph-Care as final pursuant to Rule 54(b), Ala. R. Civ. P. Therefore, this court must dismiss the appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

All the judges concur.

      . NaphCare provides medical services for the state prison system.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Philip Reeves SIMS v. STATE of Alabama.
    CR-01-1089.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.

      Domingo Soto, Mobile; and Sheila Virginia Stone, Elberta, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On August 31, 1992, Sims was convicted of two counts of second-degree robbery. Upon remand by this Court, see Sims v. State, 663 So.2d 975 (Ala.Crim.App.1994), the trial court sentenced Sims to consecutive 20-year sentences. This Court affirmed Sims’s convictions and sentences on return to remand. Sims v. State, 663 So.2d 982 (Ala.Crim.App.1994) (opinion on return to remand). The certificate of judgment was issued on May 26, 1995.

On May 23, 1997, Sims filed a Rule 32, Ala. R.Crim. P., petition. On October 14, 1997, Sims amended his petition. After the State had responded, the circuit court conducted an evidentiary hearing on June 25, 1998; the evidentiary hearing was continued. On May 14, 1999, Sims filed another amendment to his petition. On February 2, 2000, Sims filed a third amendment to his petition.

On March 13, 2000, the circuit court resumed the evidentiary hearing it had continued on June 25, 1998, and the circuit court again continued the hearing. On July 28, 2000, the circuit court resumed the evidentiary hearing a third time.

On January 2, 2002, the circuit court denied Sims’s Rule 32 petition by making an entry on the case action summary. No specific findings of fact were made. Sims filed a motion to alter or amend the order. This appeal followed.

In his petition and the amendments, Sims asserted the following claims:

1. That the State withheld Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), material from him, i.e., plaster casts of footprints;
2. That the State withheld other Brady material from him, i.e., a report (hereinafter referred to as “the Milroy Report”) that concluded that neither the shoes recovered from the crime scene nor the footprints discovered at the crime scene were the same size as Sims’s feet;
3. That trial counsel rendered ineffective assistance by failing to introduce into evidence a copy of the Milroy Report;
4. That trial counsel rendered ineffective assistance for failing to subpoena Sims’s codefendant to testify at trial on Sims’s behalf;
5. That Sims’s sentence was unauthorized by law because there was no proof that the victims had been injured;
6. That Sims was denied his right to a fair trial when the trial court ordered his trial to proceed, even though his trial counsel was not prepared for trial and requested a continuance;
7. That Sims was denied his right to a fair trial because a blood sample that actually belonged to Sims’s accomplice was attributed to Sims;
8. That the admission of the keys into evidence was in error because the chain of custody was in dispute;
9. That the trial court improperly made favorable comments about the State’s evidence;
10. That there was newly discovered evidence indicating that the affidavit supporting the search warrant in this case was inadequate;
11. That there was newly discovered evidence indicating that the affidavit supporting the search warrant in this case was based on false testimony;
12. That there was newly discovered evidence indicating that a portion of the State’s evidence at trial was false;
13. That there was newly discovered evidence indicating that a portion of the State’s evidence presented to the grand jury was false;
14. That there was newly discovered evidence indicating that the State withheld exculpatory police reports from Sims in violation of Brady;
15. That Sims’s conviction was not legal because the trial court failed to timely appoint counsel for him for six months, after his previous counsel had withdrawn; and
16. That the indictment against Sims had been dismissed and was never reinstated.

On appeal, Sims asserts the following claims:

1. That appellate counsel rendered ineffective assistance by failing to assert that trial counsel’s conduct was deficient;
2. That the trial court erroneously found that the prosecution did not suppress exculpatory evidence in violation of Brady;
3. That the trial court did not have jurisdiction to convict him and sentence him because the search warrant was insufficient;
4. That the trial court did not have jurisdiction to convict him and sentence him because the indictment was void because there was no evidence before the grand jury to connect him to the crime in question;
5. That the trial court did not have jurisdiction to convict him and sentence him because the indictment against him had been dismissed and was never reinstated;
6. That the trial court did not have jurisdiction to convict and sentence him because the trial court violated the Interstate Act on Detainers, § 15-9-81, Ala.Code 1975;
7. That the trial court erroneously failed to find him actually innocent of the robbery;
8. That the circuit court erroneously denied him a new trial when “the denoted trial exhibits were unavailable for the Rule 32 hearing”; and
9. That the circuit court failed to make specific findings of fact.

Initially, we note that of all of the claims asserted in his petition, Sims reasserts only one of them — the claim regarding the allegedly nol-prossed indictment— on appeal. Therefore, he is deemed to have abandoned the other claims from his petition. See Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (holding that “[w]e will not review issues not listed and argued in brief’).

Moreover, as for the claims asserted by Sims on appeal, with the exception of one of them — the claim regarding the allegedly nol-prossed indictment — none of them were first raised in the circuit court. Therefore, he has not preserved them for appellate review. Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App. 1997) (“An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.”).

Thus we are left with only one issue to review.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App. 1999).

Sims claims that the indictment against him was nol-prossed on October 8, 1999, and that he was thereafter never reindicted. In support of this contention, he supplied the circuit court with a copy of a National Crime Information Center (“NCIC”) report. The report indicated that, on March 8, 1991, Sims was arrested in Baldwin County and charged with second-degree robbery. The report also indicated that, on September 8, 1991, the charge was nol-prossed. The State did not refute this claim, and the circuit court did not address it.

Because the State did not, and does not on appeal, refute Sims’s allegation, the unrefuted statements must be taken as true. See Bell v. State, 845 So.2d 856 (Ala.Crim.App.2002) (citing Chaverst v. State, 517 So.2d 643, 644 (Ala.Crim.App. 1987)). Sims’s claim, on its face and in conjunction with the copy of the NCIC report, has merit. Additionally, the extensive record before us does not dispute this claim, that is, it does not indicate that Sims was reindicted or that the indictment against him was ever reinstated.

“ ‘Rule 32.9(d), Ala. R.Crim. P., requires that if an evidentiary hearing is conducted on the Rule 32 petition, “the court shall make specific findings of fact relating to each material issue of fact presented.” ’ Anglin v. State, 719 So.2d 855, 857 (Ala.Crim.App.1996) (opinion on return to remand) (emphasis and alteration in Anglin). ‘In addition [to the specific findings of fact], the basis of the trial court’s ruling, whether procedural or on the merits, must be clear.’ Jones v. State, 709 So.2d 498, 498 (Ala.Crim.App.1996) (citing Henderson v. State, 570 So.2d 879 (Ala.Crim.App.1990)). ‘A statement of the basis of the trial court’s decision is essential to afford the appellant due process.’ Owens v. State, 666 So.2d 31, 32 (Ala.Crim.App.1994).”

Ex parte Grau, 791 So.2d 345, 347 (Ala. 2000).

Although the circuit court conducted evi-dentiary hearings on this petition, it did not enter an order addressing any of the claims asserted in the petition. Rather, the circuit court entered the following notation on the case action summary sheet: “Petition for relief from conviction or sentence denied.” (C. 4.) Therefore, we remand this cause for the circuit court to address Sims’s claim regarding his indictment having been nol-prossed and to enter specific findings of fact, clearly stating the basis of its ruling on the claim. The circuit court may conduct further proceedings or take other evidence if it deems such action necessary. However, if the circuit court holds an additional hearing on remand, then the return to remand shall include a copy of the transcript of the remand proceedings in addition to the circuit court’s specific written findings of fact. Due return shall be made to this court within 42 days.

REMANDED WITH DIRECTIONS.

McMILLAN, PA., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in the result.

      . We note that the record of the trial indicates that, from arraignment through sentencing, Sims was, in fact, represented by counsel.

      . Although Sims continues to focus on the subjects of the search warrant and the alleged Brady violation, his claims on appeal differ substantively from those he advanced in his petition. Moreover, at trial, Sims moved to suppress the evidence found as a result of the search and moved for a new trial on the basis of the alleged Brady violation; therefore, those claims are precluded because they were raised at trial. Rule 32.2(a)(4), Ala. R.Crim. P.

      . We note that, to the extent that claim 13 from Sims's petition and claim 4 from his brief on appeal appear to be similar, those claims, although couched in jurisdictional terms, are allegations concerning the sufficiency and weight of the evidence. Those claims are precluded, as this Court addressed the question of the sufficiency of evidence on direct appeal. See Rule 32.2(a)(4), Ala. R.Crim. P.

      .Certainly, the trial court did not necessarily have to reindict Sims. The trial court could have simply reinstated the indictment. See Williams v. State, 494 So.2d 819 (Ala.Crim. App.1986). Again, nothing in the record indicates that this is what occurred; the State did not refute Sims’s claim with an allegation of reinstatement; and the circuit court did not make a finding that the indictment against Sims had been reinstated.

      . The National Crime Information Center operates a computer database that contains information on crimes committed in all of the states.

      . We note that the record also does not indicate that the charge was ever nol-prossed, and we recognize that the NCIC report could be in error.


author: McMILLAN, Presiding Judge.

text:
    Gary BLUNT v. STATE.
    CR-01-1799.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.

      Jennifer Paige Clark, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On October 9, 2001, the appellant, Gary Blunt, pleaded guilty to one count of second-degree receiving stolen property. He was sentenced to 10 years’ imprisonment on that conviction, the sentence to be served concurrently with the sentence imposed on his conviction for first-degree theft of property. The trial court split Blunt’s sentence to time served in jail, suspending the balance of his sentence and placing him on supervised probation for five years.

On December 13, 2001, Blunt’s probation officer filed a delinquency report requesting Blunt’s probation be revoked, but the State withdrew its motion to revoke probation on January 9, 2002. On March 12, 2002, the probation officer filed a second delinquency report, charging that Blunt had violated the conditions of his probation. The report alleged that Blunt had been charged with the offenses of first-degree receiving stolen property and third-degree receiving stolen property, that he had illegally used drugs, and that he had failed to pay his court-ordered monies.

The trial court conducted a revocation hearing, during which the court heard the testimony of the arresting officer on the two new offenses and Blunt’s illegal drug use, and the State and Blunt stipulated to the- testimony of the probation officer. After the conclusion of the revocation hearing, the trial court determined that Blunt had violated the conditions of his probation and revoked his probation, reinstating his sentences. Blunt’s appellate counsel filed a motion to set aside the probation revocation and the stipulation to the probation officer’s testimony. The trial court then held a second hearing, during which it heard the testimony of the probation officer, and it afterward denied Blunt’s motion to set aside the revocation. This appeal followed.

In his brief to this Court, Blunt raises three issues:

1. Whether a decision to revoke one’s probation can be based entirely on hearsay.
2. Whether the trial court abused its discretion in finding that the evidence presented in Blunt’s case was sufficient to meet the reasonable satisfaction standard necessary to revoke Blunt’s probation.
3. Whether the trial court’s order revoking probation was insufficient because it omitted the specific evidence relied upon by the court, and whether the trial court erred in relying on a stipulation that was set aside.

The general rules of preservation apply in revocation proceedings. Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996). This Court has recognized exceptions to those general rules in the following contexts: (1) the requirement of an adequate order of revocation and (2) the requirement that a revocation hearing actually be held. Id. See also Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). This Court has also held that a defendant can raise for the first time on appeal the trial court’s failure to inform him of his right to request counsel for revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App. 2000).

Issue 1 is not among the exceptions to the preservation requirement, and Blunt has raised it for the first time on appeal. Therefore, this claim has not been preserved for appellate review and cannot be considered by this Court.

Issue 2, although preserved for review at the trial level, is without merit. Blunt claims that the trial court improperly revoked his probation based on his failure to pay court-ordered monies. He argues that he attempted to pay and that the probation office would not accept his payments. During the hearing on Blunt’s motion to set aside the revocation, the probation officer testified to the following: Blunt initially reported to the probation office on October 15, 2001. The officer was unable to advise Blunt of the total amount owed in court ordered monies because the probation office did not receive that information until October 16, 2001. When Blunt reported in November, the probation officer was not in the office, and Blunt was shortly thereafter arrested on charges of first-degree and third-degree receiving stolen property. Blunt next reported to the probation office in February, when he was advised of the amount of court-ordered monies owed. Blunt had failed to make any payments toward his court-ordered monies as of the date of the delinquency report.

Blunt’s argument fails because the evidence indicates that Blunt was advised of the fact that he owed court-ordered monies in October, although the amount was not known. The record further reveals that on February 4, 2002, Blunt was informed that he owed $4,279 in court-ordered monies and that he had failed to pay toward this amount at the time he was found delinquent. Accordingly, the evidence of Blunt’s failure to pay his court-ordered monies was sufficient to support the revocation of his probation.

Finally, Issue 3 argues that the revocation order did not specifically set forth the evidence relied on by the trial court. This claim falls within the three exceptions to the preservation requirement. Moreover, the State has requested that this Court remand this case for the trial court to amend its revocation order to state the evidence relied on in revoking probation. Accordingly, this case is remanded to the Mobile Circuit Court with directions for that court to amend its revocation order to include the specific evidence it relied on in revoking Blunt’s probation. Due return shall be made to this Court within 63 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, SHAW, and WISE, JJ., concur. BASCHAB, J., concurs in the result.

      . He was originally indicted for one count of first-degree receiving stolen property and one count of first-degree theft of property. Upon motion by the State to which the Blunt agreed, the charges were amended so that he was only charged with second-degree receiving stolen property.

      . Although Blunt objected to the sufficiency of the evidence at the hearing on his motion to set aside the revocation, his objection argued only that the evidence of his failure to pay the court-ordered monies was not sufficient to warrant revocation. At no time did Blunt object to the sufficiency of the evidence regarding his arrest for the two new offenses or that regarding his illegal drug use. Therefore, this Court will address only the sufficiency of the evidence relative to the charge that Blunt failed to pay his court-ordered monies as instructed.


author: WISE, Judge.

text:
    Richard Bernard SMITH v. STATE of Alabama.
    CR-01-2556.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Rehearing Denied April 18, 2003.
    Jeffrey Drew Bramer, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   WISE, Judge.

The appellant, Richard Bernard Smith, purports to appeal from the district court’s revocation of his probation.

The record reveals that on January 22, 2002, Smith was convicted of obstruction of justice by using a false identity, a violation of § 13A-8-194, Ala.Code 1975. He was sentenced to imprisonment for one year and a day; however, the district court ordered that the sentence be suspended, and Smith’s sentence was split to time served, followed by three years’ supervised probation. Smith was also ordered to pay a $50 assessment to the crime victims compensation fund.

On September 17, 2002, the district court revoked Smith’s probation, finding that Smith had violated one of the terms of his probation, namely, the condition that he not commit any new criminal offenses. The court found probable cause that Smith had committed two new felony offenses. On September 20, 2002, Smith filed a notice of appeal with the district court clerk, and on September 24, 2002, he filed a notice of appeal with this Court.

We are not able to review the district court’s revocation of Smith’s probation because this matter is not properly before us. A district court’s order of probation revocation may be reviewed in one of two ways: (1) by the filing of a petition for writ of certiorari in the circuit court, see Stokley v. State, 709 So.2d 84, 85 (Ala. Crim.App.1997); or (2) by direct appeal to this Court, as provided for in Rule 30.2, Ala.R.Crim.P.

Rule 30.2, Ala.R.Crim.P., provides:

“An appeal from the district or municipal court shall go directly to the appropriate appellate court:
“(1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury, or ■
“(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question.”

See also § 12-12-72, Ala.Code 1975.

In this ease, neither of the above requirements was met. There is no transcript of the probation revocation hearing in the record, and the record does not contain a stipulation of fact by the parties. Likewise, the record does not contain a stipulation by the parties that only questions of law are involved and it does not contain a question certified by the district court. Because Smith failed to meet the requirements of Rule 30.2, Ala.R.Crim.P., jurisdiction lies with the circuit court, not with this Court. Accordingly, this appeal is not properly before this Court, and it is due to be dismissed. See Scrushy v. State, 834 So.2d 149 (Ala.Crim.App.2002); Hill v. State, 710 So.2d 519 (Ala.Crim.App.1997); Brooks v. State, 668 So.2d 897 (Ala.Crim.App.1995).

Based on the foregoing, Smith’s appeal is dismissed. However, in accordance with Stinson v. State, 741 So.2d 1111 (Ala.Crim. App.1999), and Lucas v. City of Tuscaloosa, 680 So.2d 1027 (Ala.Crim.App.1996), Smith’s case should be transferred to the Circuit Court of Jefferson County for that court to allow Smith to proceed with his petition for a writ of certiorari. The circuit court should conduct a certiorari review of the district court’s revocation of Smith’s probation. If, after the appropriate review, the circuit court finds that the district court’s action was proper, then it may “affirm” the action of the trial court. See Stokley v. State, 709 So.2d at 85.

APPEAL DISMISSED.

McMILLAN, p.j., and COBB, BASCHAB, and SHAW, JJ., concur.

      . Because Smith was not entitled to a jury trial, no waiver of his right to a jury trial was necessary.


author: BROWN, Justice.

text:
    Ex parte State of Alabama. (In re Richard Bernard SMITH v. STATE of Alabama).
    1021238.
    Supreme Court of Alabama.
    Aug. 15, 2003.
    William H. Pryor, Jr., atty. gen., Nathan A. Forrester, deputy atty. gen., and Stephen N. Dodd, asst. atty. gen., for petitioner.
   BROWN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MOORE, C.J., and SEE, HARWOOD, and STUART, JJ., concur.


text:
    Clayton Dean ROBINSON v. STATE of Alabama.
    CR-01-2644.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.

      Clayton D. Robinson, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   COBB, Judge.

On June 12, 2000, pursuant to a negotiated agreement, Clayton Dean Robinson pleaded guilty to first-degree sodomy; he was sentenced to 10 years in prison. Robinson did not appeal his conviction or sentence. On April 16, 2002, Robinson filed a Rule 32, Ala. R.Crim. P., petition. After the State filed a response, the circuit court summarily denied the petition. This appeal followed.

In his petition, Robinson claimed that the trial court was without jurisdiction to accept his guilty plea because “the district attorney at no time during the ... pro-eeeding[s] took the oath on the information” (C. 14); that the trial court was without jurisdiction to sentence him because it “failed to give him a formal sentencing hearing and his 35 days[] with an attorney to review his Presentence Investigation Report” (C. 15); and that his trial counsel rendered ineffective assistance by failing “to adequately investigate the facts before advising [him] to plead guilty” (C. 17). Robinson also contended that the circuit court was without jurisdiction to accept his guilty plea because, although he was indicted for first-degree sodomy, he pleaded guilty to second-degree sodomy, and the indictment did not allege sufficient facts to support a conviction for second-degree sodomy, because second-degree sodomy was not a lesser offense within the offense of first-degree sodomy in this case.

On appeal, Robinson reiterates the claims from his petition and contends that the trial court erred by failing to conduct an evidentiary hearing on the claims in his petition. He also maintains that the circuit court should have made specific findings of fact regarding all of his claims.

Initially, we note that Robinson did not first raise his contention regarding the lack of specific findings of fact in the circuit court. Because he did not first present this claim to the circuit court, he has not preserved it for appellate review. Whitehead v. State, 593 So.2d 126 (Ala.Crim.App.1991).

1. Robinson’s Nonjurisdictional Claims

Robinson asserts three nonjurisdictional claims as to which the facts are not in dispute: that the district attorney failed to take an oath on the information; that the trial court failed to conduct a formal sentencing hearing; and that his trial counsel rendered ineffective assistance.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition only

“[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b), Ala. R.Crim. P.], or is precluded [under Rule 32.2, Ala. R.Crim. P.], or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings.... ”

As for Robinson’s claim regarding the district attorney’s failure to take the oath on the information pursuant to § 15-15—20.1(b), Ala.Code 1975, as the State pointed out to the circuit court this ease was commenced on an indictment, not on an information, and therefore § 15—15— 20.1(b) was not applicable. Because this claim was clearly without merit and did not entitle Robinson to relief under Rule 32, summary disposition was appropriate. Rule 32.7(d).

As for Robinson’s claim that the trial court failed to conduct a formal sentencing hearing, his specific contention was that the trial court should have awaited a presentence report before sentencing him in order to have considered him for parole. As the State pointed out to the circuit court, Robinson waived parole consideration during the guilty plea proceedings; therefore, formal proceedings with a pre-sentence report would have been useless. Because this claim was clearly without merit and did not entitle Robinson to relief under Rule 32, summary disposition was appropriate. Rule 32.7(d).

As for Robinson’s claim of ineffective assistance of trial counsel, his claim that trial counsel failed to adequately investigate the facts of his case is merely a bare allegation and does not describe how trial counsel’s conduct was deficient or how Robinson was prejudiced by such conduct. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because this claim amounted to a bare allegation and was, therefore, not sufficiently specific, summary disposition was appropriate. Rule 32.7(d). See also Rule 32.6(b), Ala. R.Crim. P.

II. Robinson’s Jurisdictional Claim

As for Robinson’s final claim regarding his indictment, the facts are somewhat in dispute and the record before us is unclear.

“We apply an abuse of discretion standard of review to the circuit court’s denial of a Rule 32, Ala. R.Crim. P., petition for postconviction relief. See Elliott v. State, 601 So.2d 1118 (Ala.Cr.App.1992). If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).”

Reed v. State, 748 So.2d 231, 233 (Ala. Crim.App.1999).

We note that neither Robinson nor the State has attached a copy of the indictment or a copy the guilty plea agreement to any of the filings in this case. A copy of the indictment and a copy of the plea agreement are not otherwise in the record before us. Robinson moved the circuit court to supplement the record with a copy of the indictment and a copy of the plea agreement, but the circuit court denied the motion and refused to supplement the record.

However, it is undisputed that Robinson was indicted for first-degree sodomy, although we cannot discern under which subsection of § 13A-6-63, Ala.Code 1975, he was indicted.

The record before us does contain a copy of the guilty plea proceedings. The transcript of those proceedings indicates that the trial court stated that Robinson was pleading guilty to “sodomy,” with no mention of a degree. The transcript also indicates that the trial court informed Robinson that he was pleading guilty to a Class B felony, which would indicate a plea to second-degree sodomy, see § 13A-6-64(b), Ala.Code 1975, not first-degree. Additionally, the sentencing range dictated by the trial court — a term of not less than 2 years nor more than 20 — is the sentencing range for Class B felony, not a Class A felony. See § 13A-5-6(a)(2), AIa.Code 1975. Finally, the only factual basis for the charge in the record before us is in the form of the trial court’s question to Robinson: “Clay, did you have inappropriate sexual contact with the minor child that’s spelled out in the indictment, alleged in the indictment against you?” (C. 94.) This factual basis does not indicate whether the victim was less than 12 years old, as is required with first-degree sodomy, or more than 12, but less than 16 years old, as is required with second-degree sodomy.

Nonetheless, the State maintains that Robinson pleaded guilty to first-degree sodomy, which is a Class A felony, se'e § 13A-6-63(b), Ala. Code, 1975, based on the fact that “all other court filings clearly indicate! ] that Robinson was charged with sodomy 1st degree by indictment and pled guilty to the same charge.” (C. 42.) However, these “other court filings” are not in the record before us; nothing else in the record before us indicates that Robinson did in fact plead guilty to first-degree sodomy.

Because the State agrees with Robinson’s assertion that he was indicted for first-degree sodomy, and because the record before does not support the State’s refutation of Robinson’s claim that he pleaded guilty to second-degree sodomy, we must remand this cause for the circuit court to address this claim.

The circuit court shall first determine the charge to which Robinson pleaded guilty, and it shall then determine whether the indictment against him alleged sufficient facts to encompass such a guilty plea. The circuit court may rely on its own records of the guilty plea proceedings, or it may hold an evidentiary hearing, if necessary, or it may take evidence by affidavits, written interrogatories, or depositions in lieu of an evidentiary hearing. The circuit court shall make specific findings of fact in its order on return to remand and shall include in the record on return tp remand a copy of the indictment and a copy of the plea agreement. Due return shall be made within 35 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

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

BASCHAB, J., concurs in the result.

      . Robinson filed an amendment to his petition, but neither the State nor the circuit court addressed the claims in his amendment.

      . We know of no requirement that a defendant spend 35 days with his counsel to review a presentence report.

      . In the circuit court, Robinson filed a “Motion for [an] Evidentiary Hearing,” which the circuit court summarily denied.

      . "A person commits the crime of sodomy in the first degree if ... [h]e, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.” § 13A-6-63(a)(3), Ala.Code 1975.

      . "A person commits the crime of sodomy in the second degree if ... [h]e, being 16 years old or older, engages in deviate sexual intercourse with another person less than 16 and more than 12 years old.” § 13A-6-64(a)(l), Ala.Code 1975.


text:
    Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC02-37.
    Supreme Court of Florida.
    Feb. 5, 2004.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bar-tow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the conviction and sentence of death.

FACTS AND PROCEDURAL HISTORY

Appellant Oscar Ray Bolin, Jr. is again before this Court on direct appeal of his conviction and sentence of death for the December 1986 murder of Teri Lynn Mathews. In 1991, a Pasco County grand jury returned an indictment charging Bo-lin with first-degree murder. In 1992, Bo-lin was tried and convicted for the murder. The trial judge followed the jury’s recommendation and sentenced Bolin to death. On appeal, this Court reversed Bolin’s con-vietion because improper evidence was admitted at trial. See Bolin v. State, 650 So.2d 19 (Fla.1995) (concluding that trial court erred in finding waiver of spousal privilege based on defendant’s deposition of his ex-wife). On remand, Bolin was again tried, convicted, and sentenced to death. On appeal, this Court reversed a second time, based upon an abuse of discretion by the trial court for denying Bo-lin’s motion for individual voir dire of prospective jurors on the issue of pretrial publicity. See Bolin v. State, 736 So.2d 1160 (Fla.1999). The second retrial commenced on October 15, 2001. Bolin was again convicted and sentenced to death.

Evidence presented at Bolin’s 2001 trial included the following. Mathews’ body was discovered on December 5, 1986, near the side of a road in rural Pasco County. The body was found wrapped in a sheet imprinted with a St. Joseph’s Hospital logo. The body had multiple head injuries, was shoeless, and was wet, although it had not rained recently. The victim’s car keys were found close to the body. Evidence collected from the scene included nylon pantyhose and a pair of white pants. There was a single set of truck tire tracks leading to the body. The victim’s car was found the next day by Mathews’ boyfriend, Gary McClelland, who was worried about her disappearance and attempted to trace her steps after she left work the previous day. The victim’s red Honda was found parked at the Land O’ Lakes Post Office, with its headlights still on. The victim’s mail was found scattered on the ground, and her purse was found undisturbed on the seat inside her car.

Bolin’s half-brother, Phillip, testified that he was awakened by Bolin on the night of December 4, 1986. Bolin appeared to be nervous and told Phillip that he needed Phillip’s help. The two walked outside, and then Phillip heard a moaning sound, which he thought could have been a wounded dog. Instead, he saw a sheet-wrapped body, and Bolin told him that the girl was shot near the Land O’ Lakes Post Office. Bolin then walked over and straddled the body with his feet, raised a wooden stick with a metal end, and hit the body several times. Phillip said that he turned away because he was scared to watch, but compared the sound to hitting a pillow with a stick. Bolin next turned on a water hose and sprayed the body. Bolin demanded that Phillip help him load the body onto the back of a black Ford tow truck, and Phillip helped by picking up the body by the ankles. Phillip testified that he noticed there were no shoes on the body and that the girl was wearing pantyhose. Phillip refused Bolin’s offer of money to go with him to dispose of the body, so Bolin went alone and returned twenty to thirty minutes later. He continued talking to Phillip about the girl, stating that she had been shot in a drug deal.

At school the next day, Phillip talked with his friend, Danny Ferns, about what happened the night before and took Danny to where the body had been. Danny testified at trial, to corroborate Phillip’s account of the murder, that there were blood stains on the ground at the site and that the grass in the area was disturbed. The State presented other corroborating evidence, which included the testimony of Rosie Kahles Neal. At the time of the murder, Neal co-owned with her now-deceased husband Kahles and Kahles, Inc., the business that employed Bolin as a tow truck driver. She testified that the truck Bolin was driving on the night of the murder was not returned that night, and she thought the truck had been stolen by Bolin because he could not be located and it was the first call he had handled by himself. Neal testified that Bolin was late coming to work the next morning, was wearing the same clothes as he had the day before, and had a foul smell. She further testified that Bolin played with and carried a knife and got excited when the story of the missing girl, Mathews, was reported on the news. Her testimony also corroborated the murder weapon, as she testified that she gave Bolin a “tire buddy” on the night of the murder. The tire buddy was a two-foot-long wooden club, which was drilled out and filled with lead.

Michelle Steen also offered corroborating testimony. Michelle Steen was married to Bolin’s cousin, David Steen. In 1987, while Bolin visited their home, he volunteered that he had killed and beaten a girl in Florida and put a hose down her throat, and that Phillip had watched him do it.

The State then offered the perpetuated videotaped testimony of Cheryl Coby, Bo-lin’s ex-wife, who had died after the first trial. She had been a severe diabetic, was hospitalized numerous times in 1986, often brought home hospital towels and sheets from St. Joseph’s Hospital, and identified the sheet that had been wrapped around Mathews’ body as a hospital sheet resembling the ones she brought home. Cheryl Coby had a post office box at the Land O’ Lakes Post Office, and Bolin picked up her social security checks there when she was in the hospital.

The State also offered DNA testimony indicating that Bolin could have been the source of the semen found in a stain on Mathews’ pants. Federal Bureau of Investigation forensic serology expert John R. Brown testified that he could not eliminate Bolin as the contributor of the semen stain but could eliminate Gary McClelland, Mathews’ boyfriend, as the source of the stain. David Walsh, a molecular biologist, extracted DNA from the stain on the pants and found that he could exclude both the victim and McClelland as the donors of the stain on the pants. Walsh found that five of the six bands of DNA detected in the stain matched five of the six bands from Bolin’s DNA. Walsh was not able to visualize one band because of the small amount of DNA remaining on the pants. Dr. Christopher Basten, an expert in population genetic frequency, testified that Bolin was 2100 times more likely to be the source of the semen than a random, unrelated person.

Bolin was convicted of first-degree murder as charged in the indictment. Following the conviction, but prior to the beginning of the penalty phase, Bolin informed the court that he did not want to have a jury advisory proceeding, put on mitigation evidence, or question witnesses. The trial judge held an on-the-record colloquy with Bolin; the trial judge made a finding that Bolin’s waiver was knowing, voluntary and intelligent; and the penalty phase proceeded without a jury. The State presented aggravating evidence through three witnesses with regard to aggravating circumstances. The Court stated that the defense could present whatever evidence in mitigation that the defense wanted to present at a Spencer hearing, which was thereafter scheduled.

The Spencer hearing was held on December 14, 2001, and again defense counsel told the court that Bolin instructed it not to call any witnesses or present any evidence. The prosecutor suggested that pursuant to Muhammad v. State, 782 So.2d 343 (Fla.2001), the court should obtain a presentence investigation to look for mitigation and review prior testimony in prior trials regarding mitigation. The court questioned Bolin about his decision, and Bolin declared his desire to waive presentation of penalty-phase evidence, stating, “I’ve read Muhammad three times. I understand the philosophy behind Muhammad, and I understand what counsel has told me. I’ve discussed it with them. I made a free and voluntary decision.” At the sentencing hearing on December 28, 2001, Bolin was once again sentenced to death for the murder of Mathews. The court followed the Muhammad guidelines and found three aggravating factors, one statutory mitigating factor, and twelve nonstatutory mitigating factors. The court found that the three aggravators outweighed all of the miti-gators combined.

FOR-CAUSE CHALLENGES

In his first claim, Bolin asserts that the trial court wrongfully denied his voir dire cause challenges as to prospective jurors Almas, Glass, and Gale, thus forcing him to use peremptory challenges. Bolin was allowed ten peremptory challenges, and he used all ten of those challenges. Pursuant to Trotter v. State, 576 So.2d 691 (Fla. 1990), Bolin then requested two additional peremptories, identifying jurors Cox and Bradley as the jurors upon whom he would have exercised challenges if the additional challenges were granted. The trial court refused to grant the extra peremptory challenges. Two alternate jurors were seated, both of whom were accepted by Bolin.

We find no basis for relief. The record of the voir dire examinations of jurors Cox and Bradley demonstrate that the examinations consisted of such confusing and leading questions that the answers to the questions which formed the basis of the cause challenges appear to have been merely answers prompted by the questions rather than the fixed beliefs of the jurors. Based upon the questions and answers of jurors Cox and Bradley, we do not find that the trial court’s decision to deny the cause challenges was an abuse of discretion. Hertz v. State, 803 So.2d 629, 638 (Fla.2001). Moreover, even if the trial court erred in denying the cause challenges during the voir dire examinations, any such error as to juror Cox was subsequently rendered harmless and, as to juror Bradley, was later waived.

In respect to juror Cox, he was excused during the trial because of illness and thus was not a member of the jury that returned the verdict in the case. Cox was replaced by an alternate juror, to whom Bolin had no objection.

With regard to juror Bradley, during the trial she advised the court that she recognized a witness, the victim’s mother, as a shopper at the Home Depot where Bradley worked as a cashier. The court questioned Bradley, who stated that her knowledge of the witness would not affect her decision-making process. Defense counsel then moved to strike Bradley on the basis that she could not be fair. The court did not strike Bradley but stated to defense counsel, “Towards the end of the trial you can renew that and we’ll take it up again.” At the conclusion of the trial but before deliberations, the court gave defense counsel the option to replace Bradley with the second alternate juror. The record contains the following discussion:

MR. HALKITIS [prosecutor]: Judge you have to make a determination on Ms. Bradley.
THE COURT: We’re going to do that now. Do you want a few minutes to chat?
MR. WILLIAMS [defense counsel]: We’re going to withdraw our motion.
THE COURT: Okay. So you’re going to keep Ms. Bradley?
MR. WILLIAMS: Yes.
THE COURT: For the record, did you discuss that with Mr. Bolin, he’s in agreement with that?
MR. WILLIAMS: I don’t know if we did or not.
MR. SWISHER [defense counsel]: I’m not sure. Let me go ask.
After consulting with Mr. Bolin, we’re going to keep Ms. Bradley.
COURT: Okay. Just to make it clear, when I said we’d entertain your objection at the end of the trial had you elected to excuse Ms. Bradley, I’m inclined to grant that.
With that knowledge in mind, Mr. Bo-lin wants to keep Ms. Bradley.
MR. HALKITIS: Could the record reflect that they’ve had some time to consult with Mr. Bolin and they have consulted with Mr. Bolin.

It is plain that Bolin elected to keep juror Bradley and waived his objection to juror Bradley when he was given the opportunity to remove her at the conclusion of the trial before deliberations.

REPLACEMENT OF JUROR COX

Bolin next argues that the trial court abused its discretion by replacing juror Cox with an alternate juror. Midway through the trial, juror Cox called the trial court’s office and told a judicial assistant and the jury manager that he had been unable to sleep, was having breathing problems, and was going to the doctor or hospital. The trial court held a hearing at which both sides inquired of the judicial assistant and the jury manager about juror Cox’s condition. The court then found that it was impractical to delay the trial on the chance that juror Cox might be able to return, given that he was elderly, on oxygen, had emphysema, and had an attack the night before. We find no abuse of discretion by the trial judge in excusing juror Cox and having the previously accepted alternate juror replace him.

USE OF TERM “MATCH” IN DNA EVIDENCE

Bolin next claims that the testimony about the DNA comparison of the semen sample from the victim’s pants and Bolin’s blood was improper because David Walsh, who analyzed the DNA in question, used the word “match.” We find no merit in this claim. First, the record reveals that no Frye hearing was requested with respect to this DNA evidence. Thus, there was no challenge similar to that in Brim v. State, 695 So.2d 268 (Fla.1997). This claim is only a challenge as to the use of the term “match.” The testimony of expert Walsh as well as the testimony of the two other DNA experts were subject to full cross-examination. In this record we do not find that the use of the term “match” was error, but even if it was error, such error would be harmless beyond a reasonable doubt.

LACK OF RECORD OF VENIRE’S OATH

Bolin next claims that he is entitled to a new trial or proof of the venire’s oath because the record does not reflect whether the prospective jurors were sworn prior to voir dire. Florida Rule of Criminal Procedure 3.300 states, “The prospective jurors shall be sworn collectively or individually, as the court may decide.” Bolin accurately contends that the record does not indicate whether the venire was sworn prior to voir dire. Rather, the record begins with the judge’s opening remarks and proceeds directly to voir dire. Although the record does not indicate whether the venire was sworn, defense counsel did not object at any point during the trial to a failure to give the oath to the venire and thus waived any objection. Id. We recently addressed this issue in Smith v. State, 866 So.2d 51 (Fla. 2004). In Smith, there was no record evidence that the venire was sworn, and we concluded that no fundamental error occurred. Consistent with Smith, we deny relief on this claim.

WAIVER OF PENALTY-PHASE JURY

Bolin’s final claim is that the trial court erred by accepting Bohn’s waiver of a penalty-phase jury recommendation. We have carefully reviewed the record on this issue and find that the trial judge correctly considered and ruled upon Bo-lin’s waiver.

After the jury returned its verdict of guilty, Bolin advised the trial court that he did not want to have a jury for the penalty phase. There followed an extensive hearing before the trial court in which the prosecutor, Bolin’s counsel, and Bolin himself discussed the proper procedure to be used in view of Bolin’s stated decision to waive the jury.

This Court’s recent decision in Muhammad v. State, 782 So.2d 343 (Fla.2001), was discussed at length with the prosecutor, defense counsel, and the trial court, each working to comply with what is required when a capital defendant states an intent to effect a waiver. That discussion follows.

MR. SWISHER [defense counsel]: He does not want us to call mitigation witnesses, that’s correct.
THE COURT: So you’re saying two things then. He doesn’t want a jury recommendation and he doesn’t want to utilize mitigating witnesses, whether there’s a recommendation from a jury or not?
MR. SWISHER: Correct.
THE COURT: Okay. Do you want to have him put anything on the record? He has that opportunity now.
MR. SWISHER: He’s sitting right here next to me and I’ve been talking out loud, so I assume if he disagrees with me, he’ll say something.
THE COURT: Well, let’s not assume anything.
MR. SWISHER: Well, ask him.
THE COURT: Do you want to add anything, Mr. Bolin, to what Mr. Swisher has said in your behalf?
[BOLIN]: I instructed counsel to not pursue a jury mitigation advisory sentence.
THE COURT: And he said more than that. Was there more to what you want to acknowledge in terms of the recommendation in terms of mitigation?
MR. SWISHER: Do you want us to put on mitigation evidence or not, to the jury? Do you want us to put on mitigation evidence in front of the jury?
[BOLIN]: No.
Then a brief recess was taken by the court, after which this discussion continued.
THE COURT: All right. Let’s see if we can finalize this current scenario.
Defense want to put anything on the record before I do additional inquiry of Mr. Bolin on this issue?
MR. SWISHER: No, sir.
THE COURT: All right. Mr. Bolin, to reiterate. I think we’ve covered this. I want to make sure there’s no doubt in your mind or mine as to what you’re telling me.
You want to waive your right to a jury recommendation; is that correct?
[BOLIN]: Yeah.
THE COURT: You want to waive the penalty phase by a jury, correct?
[BOLIN]: Yes.
THE COURT: In other words, you understand a penalty phase would be conducted, but it would be conducted by the Court and the Court alone. Do you understand that?
[BOLIN]: Exactly.
THE COURT: Okay. Now, I know you’re not, but in an abundance of caution, are you under the influence of any alcohol, drugs, or medication?
[BOLIN]: No.
THE COURT: Are you making this waiver of your own free will, understanding your rights?
[BOLIN]: Yes.
THE COURT: Okay. You consider yourself making an intelligent waiver?
[BOLIN]: I’m not under any influence or anything.
THE COURT: Well, no, because I’ve seen you participating right along. You seem to be very articulate, very intelligent. You seem to understand all these proceedings, from my observations.
Is there anything you don’t understand, you need your attorneys to clarify at this juncture?
[BOLIN]: No.
THE COURT: You understand everything; is that correct?
[BOLIN]: (Indicating.)
THE COURT: Okay. Counsel, can you assure the Court your client is fully aware of his rights and making a knowing and intelligent waiver?
MR. SWISHER: Yes, sir.
THE COURT: All right. Now you understand if you waive — if I dismiss this jury, send them home, and you waive your right to have a jury recommendation, that’s irreversible? You can’t turn around tomorrow or next week or five weeks or a month from now and say, oh, now I want a recommendation. It’s a final, irrevocable waiver. Do you understand that?
[BOLIN]: It’s a waiver of a jury recommendation as far as mitigation to them, nothing to do with the Court.
THE COURT: Right.
[BOLIN]: Yeah.
THE COURT: There’s no jury recommendation going to be sought today or any other time. You’re waiving that is irreversible, for all time. Do you understand that?
[BOLIN]: Yes, sir.
THE COURT: Okay. Either counsel have anything else?
MR. HALKITIS [the prosecutor]: Judge, I’d just like you to ask the defendant whether he’s had enough time to confer with his lawyers. Does he feel that he’s had an opportunity to discuss this situation and that he doesn’t need any more time?
THE COURT: Well, that’s a fair request, even though it’s pretty fairly obvious we’ve had several breaks in this to ferret out the final position.
Have you had a chance to speak to your lawyers, sir, to your satisfaction?
[BOLIN]: I’ve talked to both Mr. Swisher and Mr. Williams.
THE COURT: All right. So you’ve had all your questions answered, right?
[BOLIN]: Yes, sir.
THE COURT: So you still feel you’re making it of your own free will knowing your legal rights, and after speaking to your lawyers, this is your final decision; is that correct?
[BOLIN]: Yes, sir.

Based upon this record, we find no error in the trial court accepting Bolin’s waiver of the penalty-phase jury. This case is distinguishable from Thibault v. State, 850 So.2d 485 (Fla.2003), in which there was not a sufficient waiver. Additionally, even if there was merit to Bolin’s claim on appeal, Bolin would not be entitled to relief since he did not attack the voluntariness of his waiver in the trial court. Griffin v. State, 820 So.2d 906, 912 (Fla.2002).

PROPORTIONALITY

This Court must review the proportionality of a death sentence, even if the issue has not been raised by the defendant. See Jennings v. State, 718 So.2d 144, 154 (Fla.1998). To determine whether a sentence of death is a proportionate penalty, this Court must consider the totality of the circumstances of the case and compare this case with other capital cases. Urbin v. State, 714 So.2d 411, 416-17 (Fla. 1998). The trial court found three aggravating factors, one statutory mitigator, and twelve nonstatutory mitigators. However, each aggravator was given great weight by the court, while the mitigators were found insignificant. The trial court found that “each and every one of the aggravating factors in this case, standing alone, is more than sufficient to outweigh the entirety of mitigation.” The instant case is similar to other cases where death was imposed. See Singleton v. State, 783 So.2d 970 (Fla. 2001) (upholding sentence where two weighty aggravators justified death sentence over three statutory and nine non-statutory mitigators); Johnston v. State, 841 So.2d 349, 360 (Fla.2002) (upholding sentence where victim was sexually assaulted and later killed, and trial court found two weighty aggravators justified death sentence over one statutory and twenty-six nonstatutory mitigators). Therefore, we find that Bolin’s death sentence is proportionate. See Spencer v. State, 691 So.2d 1062 (Fla.1996).

SUFFICIENCY OF EVIDENCE

This Court must review the sufficiency of the evidence to determine whether sufficient evidence exists to support a first-degree murder conviction, even if this issue has not been raised by the defendant. See Mansfield v. State, 758 So.2d 636, 649 (Fla.2000). Upon a thorough review of the record, substantial evidence exists to support Bolin’s conviction. There is substantial testimony in the record of Bolin’s half-brother, Phillip, concerning Bolin’s activities on the night of the murder. Both Bolin and the victim had post office boxes at the Land O’ Lakes Post Office. Mathews’ car was found the next morning at the post office, with its headlights still on and her mail on the ground. Bolin picked up his wife’s social security check on the night of the murder from that post office. The victim’s body was found wrapped in a sheet from a hospital in which Bolin’s then wife, Cheryl Coby, had been hospitalized and from which Coby testified she had brought home sheets like the one wrapped around the victim’s body. Bolin failed to return his employer’s tow truck to the business on the night of the murder. The victim’s body revealed trauma wounds to the victim’s head that were consistent with the tire buddy given to Bolin, as corroborated by Phillip Bolin’s eyewitness portrayal of the beating of what Phillip testified Bolin told him was a girl’s body wrapped in a sheet. Phillip also corroborated that the body was shoeless but that the girl was wearing pantyhose. Bolin’s semen was found on the victim’s pants, as determined by DNA testing which revealed that Bolin was 2100 times more likely to be the source of the semen than a random, unrelated person. Based upon this evidence and the other evidence in the record, we conclude that the evidence is sufficient to support Bolin’s first-degree murder conviction.

CONCLUSION

For the reasons set forth above, we affirm Bolin’s conviction of first-degree murder and sentence of death.

It is so ordered.

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

QUINCE, J., recused.

      . Spencer v. State, 615 So.2d 688 (Fla. 1993).

      . The aggravating factors found by the trial court were: (1) Bolin was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (great weight); (2) the capital felony was committed while Bolin was engaged in the kidnapping of the victim from the post office or defendant intended to commit a sexual battery (great weight); and (3) the capital felony was heinous, atrocious, or cruel (great weight).

      . The court found the statutory mitigator that the capacity of Bolin to appreciate, the criminality of his conduct was substantially impaired because of brain damage, but the court gave this mitigator little weight.

      . The court found twelve nonstatutory miti-gators: (1) Bolin had a somewhat difficult childhood (some weight); (2) he had a sporadic and minimal educational experience (little weight); (3) he received improper care during childhood (little weight); (4) he was under stress at the time of the murder because of his wife being pregnant and frequently ill (slight weight); (5) Bolin was twenty-four years of age at the time he committed the murder; (6) he was respectful to other parties in this case (little weight); (7) he saved another life by rescuing a drowning person (some weight); (8) he was employed at the time of the offense (slight weight); (9) he received no adverse disciplinary reports from prison (some weight); (10) he had used alcohol and drugs as a minor, but did not have a dependancy problem (slight weight); (11) he had some evidence of minor brain damage or mental illness (little weight); and (12) he had a medical history that included multiple suicide attempts (slight weight).

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).


text:
    STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (2003-1).
    No. SC03-629.
    Supreme Court of Florida.
    March 18, 2004.
    Honorable Dedee S. Costello, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Panama City, FL, for Petitioner.
    Jeffrey Kottkamp, Chair, House Judiciary Committee, and Gus M. Bilirakis, Chair, House Subcommittee on Public Safety Appropriations, Tallahassee, FL, Responding.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases petitions this Court to consider amendments to the Florida Standard Jury Instructions in Criminal Cases. We have jurisdiction. See art. Y, § 2(a), Fla. Const.

On April 8, 2003, the Committee submitted a Supplemental Report which included four proposals: (1) revised instructions on drug abuse offenses; (2) revised instructions for offenses based on lewd and lascivious conduct; (3) a revised instruction on justifiable use of force by law enforcement; and (4) removal of an obsolete drug abuse instruction.

Prior to the submission of the Supplemental Report, proposals 1 and 2 were published for comment in the September 15, 2002, edition of The Florida Bar News, and proposal 3 was published in the November 1, 2002, edition of The Florida Bar News. No comments were received regarding any of these proposals. After the Supplemental Report was submitted to the Court, all four proposals were published in the June 1, 2003, edition of The Florida Bar News. One comment was received pertaining to proposal 1.

Upon consideration, we hereby authorize the publication and use of the revised instruction on justifiable use of force by law enforcement (proposal 3) and the removal of the obsolete drug abuse instruction (proposal 4), as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions. We further caution all interested parties that the notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final. New language is indicated by underlining, and deletions are indicated by struck-through type.

We decline to authorize for publication or use proposals 1 and 2 and refer them to the Committee for further study. Based on comments made by the Florida House of Representatives Committee on the Judiciary on proposal 1, the Committee should revise this instruction to reflect the fact that the absence of knowledge of the illicit nature of a controlled substance is an affirmative defense and to reflect the permissive presumption of the existence of such knowledge that arises from proof of possession of a controlled substance. As to proposal 2, the Committee should reexamine the proposed instructions in light of section 800.04, subsections (2) and (3), Florida Statutes (2003). The Committee should revise the proposed instructions, where appropriate, to reflect the enumerated prohibited defenses as well as the other specified circumstances which cannot be raised as defenses to crimes charged under section 800.04.

It is so ordered.

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

APPENDIX

Proposal 3. Revised instruction on justifiable use of force by law enforcement

3.6(h) JUSTIFIABLE USE OF FORCE BY LAW ENFORCEMENT OFFICER

In making an arrest of a felon § 776.05, FlaStat. Give if applicable

A law enforcement officer, or any person [he][she] has summoned or directed to assist [him][her], need not retreat from or stop efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force that [he][she] reasonably believes necessary to defend [himself] [herself] or another from bodily harm while making the arrest. That force is also justifiable when necessarily used

1. in retaking a felon who has escaped or

2. in arresting a felon who is fleeing from justice.

Force in making unlawful arrest prohibited § 776.051(2), Fla.Stat.

Use of any force by a law enforcement officer or any person summoned or directed to assist the law enforcement officer is not justified if

Give if applicable

1. the arrest is unlawful and

2. it is known by the officer or the person assisting [him] [her] to be unlawful.

In making an arrest of-a-fleeing felon. Give 1 or 2as-appUeable-. — Define-felón

In arresting — a—Mon-^who is fleeing from justiceran-officer-is-justified in the use of any force if

U — the—officer—reasonably—believes that — the fleeing felon poses — a threat of death or serious physical harm to the officer-or others;-or-

2, — the—officer—reasonably—believes that the-fleeing-felon has committed a crime involv-ing-the-infliction or the threatened infliction of serious physical harm to another per-

To prevent escape from custody § 776.07(1), FlaStat Give if applicable

A law enforcement officer or other person who has an arrested person in [his][her] custody is justified in the use of any force that [he][she] reasonably believes to be necessary to prevent the escape of the arrested person from custody.

To prevent escape from penal institution § 776.07(2), FlaStat. Give if applicable

A guard or other law enforcement officer is justified in the use of any force that [he][she] reasonably believes to be necessary to prevent an escape from a penal institution of a person the officer reasonably believes is lawfully detained.

Give if applicable

“Deadly force” includes, but is not limited to

1. firing a firearm in the direction of the person to be arrested, even though no intent exists to kill or

inflict great bodily harm; and § 776.06(1)(a), FlaStat.

2. firing a firearm at a vehicle in which the person to be arrested is riding. § 776.06(l)(b), FlaStat.

Definition; give if applicable

A “firearm” is legally defined as (adapt from § 790.001(6), Fla.Stat., as required by allegations).

Proposal 4. Removal of an obsolescent drug abuse instruction

DRUG ABUSE — POSSESSION ON OR NEAR SCHOOL

F,S,893.13(l)(e)

Before you can — find—the- defendant gailty-oi--(crime - charged) the State must prove the following three elements beyond a reasonable doubt:

Elements

4, — (Defendant)

{sold]

[purchased]

[manufactured]

[delivered]

[possessed with intent to sell]

[possessed with intent to purchase]

[possessed with intent to manufacture]

{possessed-w-ith-intent-to-deliver-}

2, — a—controlled—substance—(specific substance alleged)

3, — in, on, or within 1000 feet of the real property comprising a public or private elementary, middle, or secondary-school,

Definitions; give as applicable

gep

“Sell” means to transfer or-deliver-something -to — another person in exchange for money or something of value

or a promise of money or something of value.

Deliver F.S. 893.02(5)-

“Deliver” or “delivery— means the-actual, constructive» or attempted transfer from one person to-another of a controlled- substance» whether or not-there is an agency relationship,

Possession

To “possess” means to have personal charge-of or exercise the-right of ownership, management or control over the thing-possessedv

Possession may be actual or construe-

Actual possession means

(a-)-the thing is in the hand of or on the person» or

(b) the thing is in -a container in the hand of or on the-person, or

(c) the thing is so close as to be within-ready reaeh-and is under the control of the person.

Give if applicable

Mere proximity to a thing is not sufficient to establish control-over that thing when-the thing is -not-in a place-over which the person has control.

Constructive — possession—means—Hie thing is in a place over which the person has control, or in which the person has concealed it.

Give if applicable

See Ghieone v. State, 684 So.2d 736 (Fla. 4996)

If a thing is in a place over which the person-does not-have control, in order to establish — constructive—possession—the State-must-prove-the person’s (1) control over the thing» (2) knowledge that the thing-was within the person’s presence, and (3) knowledge of the illicit nature of the thing.

Possession may be joint, that is, two or more -persons may — jointly have-possession of an article, exercising control over it, — In that — case, each of those persons is-considered to-be in possession of that article, 1

If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.

If a -person does not -have exclusive possession-of a thing, knowledge of its presence -may not be inferred or assumed.

Note to Judge:

If the defense seefcs-to-show a-laek-of knowledge-as to the nature of a particular drug, an additional-instruction may-be-re-quir-ed, — See State v. Medlinr-2n-%-§Qt24 394 (Fla.1973).


author: CANADY, Judge.

text:
    Tawna COOKSEY-JAMES, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Lee Memorial Hospital, Appellees.
    No. 2D02-4484.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    Tawna Cooksey-James, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
    No Appearance for Appellee Lee Memorial Hospital.
   CANADY, Judge.

Tawna Cooksey-James appeals an order of the Unemployment Appeals Commission (UAC) which upheld a hearing referee’s determination that Cooksey-James was fired for misconduct and therefore not eligible to collect unemployment benefits. Because Cooksey-James’ actions do not as a matter of law constitute misconduct justifying the denial of unemployment benefits, we reverse and remand.

Cooksey-James was fired by Lee Memorial Hospital for violating the hospital’s policy that required an employee to clock-out if she left the hospital building at anytime during her shift. The policy did not require an employee to clock-out when taking her regular lunch or other paid breaks provided that she did not leave the building to do so. This policy was contained in an employment manual that had been provided to Cooksey-James.

Cooksey-James temporarily lost her regular childcare during the period immediately preceding her firing. Cooksey-James was thus required to leave work to pick her child up each day for a two-week period. She explained the situation to a charge nurse who suggested that she combine her lunch and other paid breaks and use that time to pick her child up. Cook-sey-James did so each day for four days, each time explaining to that day’s charge nurse what she was doing and arranging coverage for her patients with the other nurses. It is undisputed that none of the charge nurses advised her that she could not do this or that she needed to clock-out. She did not clock-out when she left.

On the fifth day, while Cooksey-James was picking up her daughter, a supervisor who had just returned from vacation came to see Cooksey-James and was told that Cooksey-James had left to pick up her daughter. Upon learning that Cooksey-James had not clocked-out to do so, the supervisor immediately instituted proceedings that resulted in Cooksey-James’ firing.

Cooksey-James sought and received unemployment benefits. The employer challenged the award of benefits alleging that Cooksey-James was fired for misconduct and therefore ineligible for benefits. A hearing referee agreed, determining that Cooksey-James’ conduct constituted misconduct under the definition set forth in section 443.036(29), Florida Statutes (2001). The referee therefore reversed the award of benefits. Cooksey-James appealed to the UAC, which affirmed over a well-reasoned dissent.

Section 443.101(l)(a) provides that an individual is “disqualified for [unemployment] benefits” if “discharged ... for misconduct connected with his or her work.” Section 443.036(29) defines misconduct as “[cjonduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee” or “[e]arelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.” While a violation of an employer’s policy may constitute misconduct, “[r]epeated violations of explicit policies, after several warnings, are usually required.” Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001).

In the instant case, although Cooksey-James did violate an explicit policy, it is undisputed that she was never warned about the violation of the policy. In fact, despite the fact that she openly engaged in the activity that violated the policy no one advised her that there was any problem with her behavior until her abrupt firing. Under these circumstances, the policy violation does not constitute misconduct as defined in section 443.036(29). Because the UAC’s interpretation of the law was clearly erroneous, we reverse and remand with instructions that Cooksey-James’ benefits be reinstated.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.