text:
    Jonathan TRIPLETT v. WAL-MART STORES, INC.
    2011287.
    Court of Civil Appeals of Alabama.
    March 21, 2003.

      Thomas P. Williams, Robertsdale, for appellant.
    D. Greg Dunagan, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   YATES, Presiding Judge.

Jonathan Triplett appeals from a summary judgment entered in favor of his employer, Wal-Mart Stores, Inc., in his claim seeking workers’ compensation benefits for an injury he allegedly sustained during the course of his employment with Wal-Mart.

Triplett sued Wal-Mart on October 31, 2001, seeking to recover workers’ compensation benefits for injuries he allegedly sustained during the course of his employment. On June 14, 2002, Wal-Mart moved the trial court for a summary judgment, arguing that Triplett’s accident did not occur within the fine and scope of his employment and that Triplett was guilty of willful misconduct. The trial court denied Wal-Mart’s motion for a summary judgment on June 21, 2002. Thereafter, on July 2, 2002, Wal-Mart moved the trial court to “reconsider” its order denying the motion for a summary judgment. Wal-Mart argued that it had made a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. Wal-Mart argued also that Triplett had failed to respond to the motion for a summary judgment, much less present substantial evidence in opposition to the motion. The trial court, on July 9, 2002, granted Wal-Mart’s “motion to reconsider” and entered a summary judgment in its favor.

The record indicates that Wal-Mart filed a second “motion to reconsider” with the trial court on July 12, 2002. This “motion to reconsider” is identical to the motion filed by Wal-Mart on July 2, 2002. Triplett, on August 15, 2002, filed his affidavit in opposition to Wal-Mart’s motion for a summary judgment. The trial court, on August 21, 2002, entered an order on the case action summary sheet purporting to grant Wal-Mart’s “motion to reconsider” and to enter a summary judgment in favor of Wal-Mart. Triplett filed his notice of appeal on September 30, 2002.

The issue of jurisdiction is so fundamental that this court will take notice of it ex mero motu. International Paper Co. v. Dempsey, 844 So.2d 1236 (Ala.Civ.App.2002). This court has stated:

“This court obtains jurisdiction over an appeal only after a timely notice of appeal has been properly filed with the clerk of the trial court. A summary judgment granted in the moving party’s favor upon all the issues presented or for all the relief requested is a final judgment. The 42-day period for filing an appeal begins to run from the date on which the trial court entered its final order. The time for appeal may be suspended by the filing of a Rule 59(e), Alabama Rules of Civil Procedure, motion. No suspension occurs if the motion is not filed within 30 days of the entry of final judgment. If the motion is timely filed, the time for taking an appeal begins to run from the date of entry of an order granting or denying the motion. If a Rule 59(e) motion is not ruled on within 90 days, it is deemed denied by operation of law on the 90th day and appeal must be taken within the next 42 days.”

Payne v. City of Athens, 607 So.2d 292, 293 (Ala.Civ.App.1992) (citations omitted).

We conclude that Triplett’s notice of appeal filed on September 30, 2002, is untimely and that the appeal is due to be dismissed. The 42-day time period for filing a notice of appeal began to run on July 9, 2002, the date that the trial court granted Wal-Mart’s postjudgment motion and entered a summary judgment in its favor. Wal-Mart’s second “motion to reconsider” filed on July 12, 2002, was a nullity and did not suspend the 42-day time period for filing a notice of appeal from running. See generally Humphries v. Humphries, 726 So.2d 698 (Ala.Civ.App.1998). Triplett could have tolled the running of the 42-day period had he filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., within 30 days from the date of the trial court’s final judgment entered on July 9, 2002; however, Triplett failed to file a timely postjudgment motion and the time for filing a notice of appeal was not suspended. Therefore, the notice of appeal filed on September 30, 2002, was untimely.

APPEAL DISMISSED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Lavoris SMITH v. STATE of Alabama.
    CR-01-1223.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      Robert Aaron Gartlan, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   SHAW, Judge.

Lavoris Smith appeals from the trial court’s order revoking her probation.

On June 26, 1997, Smith pleaded guilty to illegal possession of a credit card and to possession of a forged instrument in case nos. CC-96-1183 and CC-96-1280. She was sentenced to three years’ imprisonment for each conviction, to run concurrently. The sentences were suspended, and she was placed on probation for three years. On January 22, 1998, Smith pleaded guilty to three counts of possession of a forged instrument in case nos. CC-97-1192, CC-97-1193, and CC-97-1194. She was sentenced to three years’ imprisonment for each conviction, to run concurrently with each other and with the sentences in the other two cases. Those sentences were suspended, and she was placed on probation for five years. On June 17, 1999, William D. Webber, Smith’s probation officer, filed a delinquency report alleging that Smith had violated the terms and conditions of her probation by failing to pass a drug test. After a revocation hearing on March 5, 2002, the trial court revoked Smith’s probation.

On appeal, Smith contends that the trial court erred in revoking her probation because, she says: (1) the trial court’s initial order of probation was defective so the revocation based on it was improper; (2) the trial court did not address her personally, pursuant to Rule 27.6(c), Ala. R.Crim.P., before it accepted her admission that she had failed the drug test; (3) there was insufficient evidence to warrant revoking her probation; (4) the revocation of her probation was a violation of due process; and (5) the court abused its discretion in not considering lesser alternatives than incarceration. None of these issues were presented to the trial court. In Evans v. State, 794 So.2d 1234 (Ala. Crim.App.2000), this Court stated:

“Even constitutional issues must be properly preserved for appellate review. Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997).
“ ‘The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App.1992). This court “has recognized, in probation revocation proceedings, only two exceptions to the general rale that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.” Puckett, 680 So.2d at 983.’
“Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). Additionally, as noted earlier, this Court recently held in Law [v. State, 778 So.2d 249 (Ala.Crim.App.2000),] that a defendant can also raise for the first time on appeal that the trial court erred in failing to advise him of his right to request an attorney during probation revocation proceedings. 778 So.2d at 250.”

794 So.2d at 1236-37. Smith’s claims do not fall within one of the exceptions to the general rules of preservation that have been recognized in probation revocation proceedings. Thus, because Smith did not raise these claims in the trial court, they were not properly preserved for review.

Smith also contends on appeal that the trial court’s order revoking her probation was insufficient because, she says, the trial court failed to state the reasons it was revoking her probation or the evidence it relied on in doing so. Although Smith did not object to the sufficiency of the trial court’s order, it is well settled that “the adequacy of a written order of revocation can be raised for the first time on appeal.” Durr v. State, 807 So.2d 595, 595 (Ala.Crim.App.2001), citing Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998).

“ ‘In accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Cr.App.1994).”

Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000).

In its written order, the trial court stated that it was revoking Smith’s probation because she “failed to pay any money toward her fines and courts costs” and because “she failed a drug test.” (C. 42.) Therefore, it properly stated the reasons for revoking Smith’s probation. However, the trial court did not state in its order the evidence it relied on in doing so. Therefore, based on Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), we must remand this cause to the trial court for it to prepare a written statement of the evidence it relied on in revoking Smith’s probation.

We also must remand this cause for the trial court to clarify its revocation order. The order lists case nos. CC-96-1183, CC-96-1280, CC-97-1192, and CC-97-1193, but does not list case no. CC-97-1194. However, the record indicates that the revocation proceedings were related to all five of Smith’s convictions. Based on the record before us, we do not know whether the trial court intended to revoke Smith’s probation on only four of her convictions as indicated in its order, or whether it intended to revoke Smith’s probation on all five of her convictions and, as the result of a clerical error, the order listed only four case numbers instead of five.

Based on the foregoing, we remand this case for the trial court to provide a written statement of the evidence it relied on in revoking Smith’s probation, and to clarify whether it intended to revoke Smith’s probation for all five of her convictions, or only those four listed on its order of revocation. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 35 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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


author: BASCHAB, Judge.

text:
    Timothy Wayne DUTTON v. STATE of Alabama.
    CR-01-0938.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 2002.
    Rehearing Denied Jan. 7, 2003.
    Certiorari Denied March 28, 2003 Alabama Supreme Court 1020578.

      John G. Butler, Jr., Huntsville, for appellant.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

The appellant, Timothy Wayne Dutton, was convicted of one count of second-degree burglary, a violation of § 13A-7-6(b), Ala.Code 1975; one count of third-degree burglary, a violation of § 13A-7-7, Ala. Code 1975; and one count of unlawfully breaking and entering a vehicle, a violation of § 13A-8-ll(b), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve concurrent terms of ten years in prison on the third-degree burglary and unlawfully breaking and entering a vehicle convictions and fifteen years and one day in prison on the second-degree burglary conviction. See § 13A-5-9(a), Ala.Code 1975. It then split his sentence on the second-degree burglary conviction and ordered him to serve five years in prison followed by three years on supervised probation. The appellant filed a motion for a new trial, which the trial court summarily denied. This appeal followed.

In an unpublished memorandum released today, we affirmed the appellant’s convictions for second-degree burglary and unlawfully breaking and entering a vehicle. See Dutton v. State, (CR-01-0938, October 25, 2002) — So.2d - (Ala.Crim.App.2002) (table). In this opinion, we address the sufficiency of the evidence to support the appellant’s conviction for third-degree burglary.

The appellant argues that the State did not present sufficient evidence to support his third-degree burglary conviction. (Issue III in the appellant’s brief.)

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

§ 13A-7-7(a), Ala.Code 1975.

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

The State presented evidence that, around 10:00 p.m. on April 7, 2001, Jay Robert Wilson came home and found that someone had broken into his house. Wilson testified that every door in the house had “jimmy marks to where [someone had] stuck a screwdriver in and [tried] to pry it open” and that the rubber shielding around the doors had been pulled away. (R. 42.) A laptop computer, some I.S.O. readers, and a satellite card, all of which belonged to some of his friends, had been stolen. Wilson telephoned law enforcement authorities and reported the burglary. When law enforcement officers asked if he suspected anyone, he gave them the appellant’s name. Wilson testified that he suspected him because he had previously worked with and supervised the appellant at World Link; that, while the appellant was working at World Link, things had disappeared from everywhere the appellant had been; and that he had “let [the appellant] go for some ... quality control reasons” and because little things had disappeared around work sites. (R. 41.)

The day after the burglary, Wilson, his father, and his brother went to Steve Tef-teller’s house. Tefteller had worked with Wilson as a subcontractor and had worked with the appellant. Wilson told Tefteller that his house had been broken into, that he believed the appellant had done it, and to put the word out that he was going to find his equipment.

A few days later, between 6:00 and 8:00 p.m., the appellant telephoned Wilson and asked why he was “sicking the law on him.” (R. 48.) Wilson said that it was because he had stolen his property, and the appellant repeatedly denied that he had stolen anything from Wilson. The appellant asked Wilson what was missing, and Wilson told him. The appellant said he did not take Wilson’s property and that, if that was what Wilson was upset about, he would get him a laptop. Wilson told the appellant that he did not want a new laptop and that he wanted his property back. The appellant told him that he did not take his property, but stated that he would help him find it.

About ten minutes after Wilson’s telephone conversation with the appellant, Wilson received a telephone call from an unknown person, who told him he was accusing the wrong person and that his equipment was behind the BP gas station on Highway 24. Wilson testified that he had caller ID, that he tried to call that telephone number back, and that the number would not accept incoming telephone calls. He also stated that, because he thought that the telephone call might have been an attempt to lure him away from his house, he radioed Robbie Letson and asked him to go to the gas station and look behind the dumpster for his equipment. Letson went to a gas station, but radioed Wilson and told him the property was not there.

Shortly thereafter, the appellant telephoned Wilson and asked him if he had found his property. Wilson said that he had not and that he had gone to the wrong gas station. The appellant then said, “ T don’t know for sure, but did you check the BP up on 24?’ ” (R. 54.) Wilson told him that he had sent Letson to the Texaco on Moulton Road, and the appellant said, “ Well, are you sure you were at the right one?’ ” (R. 55.) Wilson asked Letson to go to the BP gas station, and he then telephoned the Decatur Police Department. Before law enforcement officers arrived, Letson went to the gas station, radioed Wilson, retrieved a bag, and took the bag to Wilson. The laptop computer and the programmers were in the bag, but the satellite card was not.

Wilson testified that, when the appellant first telephoned him, he had not told him about the anonymous telephone call he had received; that the appellant already knew about the telephone call; that the appellant asked him if he had found his property; and that the appellant subsequently directed him to the right gas station. He also stated that, while the law enforcement officers were there, the appellant telephoned him and asked him if he had gotten his stuff back. Wilson told him that he had. At that time, the officer’s radio beeped, and the appellant asked him who was there. The appellant then said he was going to bed.

We agree with the appellant’s assertion that the State did not present sufficient evidence to show that he knowingly entered Wilson’s house with the intent to commit a crime therein. Therefore, we reverse the appellant’s conviction for third-degree burglary and render a judgment for the appellant.

AFFIRMED BY MEMORANDUM IN PART; REVERSED AND JUDGMENT RENDERED IN PART.

McMILLAN, P.J., and COBB and SHAW, JJ., concur; WISE, J., concurs in the memorandum and dissents from the opinion.

      . The second-degree burglary conviction arose from the April 30, 2001, burglary of Kevin and Lucinda Burchel’s home. The third-degree burglary conviction arose from the April 7, 2001, burglary of Jay Wilson's home. The unlawfully breaking and entering a vehicle conviction arose from the January 30, 2001, breaking and entering of Kevin Bur-chel's 1996 Dodge truck.


author: PER CURIAM.

text:
    Anthony A. SPANN, Appellant, v. STATE of Florida, Appellee.
    No. SC00-1498.
    Supreme Court of Florida.
    April 3, 2003.
    Rehearing Denied Oct. 16, 2003.

      Robert A. Norgard, Special Public Defender, Bartow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, FL, for Appel-lee.
   PER CURIAM.

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

Factual and Procedural History

On November 13, 1997, Anthony Spann (Spann) drove his blue Subaru as the getaway car for the robbery of a pawn shop. Leonard Philmore (Philmore) and Sophia Hutchins (Hutchins) robbed the pawn shop. They took handguns and jewelry, but little or no money. That evening, Spann, Philmore, and two women, Keyon-tra Cooper (Cooper) and Toya Stevenson (Stevenson), spent the night in a local motel.

The next morning, on November 14, 1997, while the four were still at the motel, Cooper’s friend paged her to tell her that police were looking for Philmore. Spann and Philmore decided to leave town and planned to rob a bank for the money to do so. They planned to use the Subaru as the getaway car from the bank robbery. Since they assumed police would be looking for the Subaru, they planned to carjack a different vehicle to use as transportation to leave town. They specifically targeted a woman for the carjacking to make it easier, and then planned to kill her so that she could not identify them later.

At about noon, Spann and Philmore took Cooper and Stevenson home to get ready to leave town. Spann and Philmore then went to a shopping mall to search for a victim. When their attempts failed, they went to what Spann described as “a nice neighborhood” where they spotted a gold Lexus -with a woman driver. They followed her to a residence. When she pulled into the driveway, Philmore approached her, asked to use her cell phone, then forced her back into the car at gunpoint.

Philmore rode in the Lexus with the victim, Kazue Perron, and Spann followed in the Subaru. The victim was nervous and crying. She offered Philmore her jewelry, which he took and then later threw away because he was afraid it would get him in trouble. They drove down an isolated road, and when they stopped, Spann motioned to Philmore, a motion which Philmore understood to mean that he should kill the woman. Philmore told the victim to go to the edge of a canal, but according to him, the woman instead came toward him. Philmore testified that he shot her in the forehead using a gun he had stolen the day before from the pawn shop. Philmore picked up the victim’s body and threw it into the canal, and got blood on his shirt.

Philmore and Spann left together in the Subaru to rob a bank. In the car, Phil-more took off his bloody t-shirt, which was later recovered by police, and put on Spann’s t-shirt. Philmore went into the bank, grabbed approximately one thousand dollars cash from the hand of a customer at the counter, and got back into the passenger’s side of the blue Subaru. As planned, Spann and Philmore abandoned the Subaru and picked up the Lexus. They then went to pick up Cooper and Stevenson.

Stevenson testified that between 2:30 and 3:00 that afternoon, Spann and Phil-more picked her up in the Lexus. They picked up Cooper, then headed back to Sophia Hutchins’ house. Stevenson and Cooper questioned Philmore and Spann about the car and they were told not to worry about it.

Before they reached Hutchins’ house, at around 3:15 p.m., Officer Willie Smith, who was working undercover for the West Palm Beach Police Department, saw Spann driving the gold Lexus. Smith knew Spann had an outstanding warrant so he signaled surveillance officers, who began to pursue him. Spann tried to out-drive the police and a chase began at speeds of up to 130 miles per hour through a residential neighborhood. They drove onto the interstate, and the police lost Spann. Eventually the Lexus blew a tire and went off the road at the county line. A motorcyclist saw the Lexus drive off the road and four people get out and run into an orange grove. The motorcyclist called 911 on his cell phone.

The grove owner was working with a hired hand that day trapping hogs in the grove. He saw people come into the grove from the road and later identified one of the men as Spann. The grove owner heard a helicopter overhead and saw that the men had guns. He told them to hide in the creek brush, then he called 911. The grove owner met troopers by the road and helped search for Spann and the others. Six hours after the manhunt began, Spann, Philmore, Cooper and Stevenson were found in the grove. Days later, the grove owner found a gun and beeper in the water near the creek brush where the four were hiding. Police recovered a second gun in the same water.

Spann and Philmore were both indicted on the charge of first-degree murder, but their trials were severed. Spann was also indicted for the crimes of conspiracy to commit robbery with a deadly weapon, carjacking with a deadly weapon, kidnapping, robbery with a deadly weapon, and grand theft. Philmore was tried first and convicted of first-degree murder. See Philmore v. State, 820 So.2d 919 (Fla.2002), cert. denied, 537 U.S. 895, 123 S.Ct. 179, 154 L.Ed.2d 162 (2002). Before his sentencing phase trial, Philmore testified for the State against Spann. Philmore was eventually sentenced to death and the conviction and sentence were affirmed on appeal. See id.

As for Spann, the jury returned verdicts of guilty on each count, including the first-degree murder of Kazue Perron. Spann waived both the presentation of mitigating evidence and a jury advisory recommendation. The trial court conducted hearings on these matters, found that Spann’s decision was made knowingly and intelligently, and discharged the jury. Defense counsel proffered evidence in mitigation, and the State presented three witnesses in support of certain aggravating circumstances. The parties filed sentencing memoranda, and the trial court conducted a Spencer hearing. The trial court then sentenced Spann to death for first-degree murder; fifteen years for conspiracy to commit robbery with a deadly weapon; life for carjacking; life for kidnapping; life for robbery with a deadly weapon; and five years for grand theft. Spann now appeals, raising seven issues not including our required proportionality review. The issues are restated as follows: (1) whether the trial court erred in admitting expert testimony as to handwriting identification because the expert testimony does not satisfy the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923); (2) whether the trial court failed to adequately follow the procedures required for granting a defendant’s request to waive mitigation as set forth in Koon v. Dugger, 619 So.2d 246 (Fla.1993); (3) whether the trial court erroneously found that Spann freely and voluntarily made a knowing and intelligent waiver of the advisory jury in the penalty phase trial; (4) whether the trial court improperly found and considered Spann’s conviction for misdemeanor battery as an aggravating factor; (5) whether the trial court improperly doubled three separate aggravating circumstances; (6) whether the trial court failed to consider and weigh all the mitigating evidence in the record; (7) whether the trial court abused its discretion in the weight assigned to the mitigating factors; and (8) although not raised by Spann, whether the sentence of death was proportional. We discuss each issue below.

Discussion

1. Frye Issue

While in jail, Spann wrote Phil-more a note telling Philmore how he should testify. Spann initially denied writing the note. He eventually admitted he wrote it after handwriting experts were hired and Spann was ordered to give handwriting samples, which he did. Although Spann admitted writing the note, the State still wanted its handwriting expert to testify at trial that Spann distorted or intentionally disguised his handwriting samples, arguing that this showed consciousness of guilt. Defense counsel moved to exclude the State’s handwriting expert’s testimony to the extent the expert’s testimony was irrelevant and inadmissible under Frye or Daubert, and argued that expert testimony on the distortion issue had not been determined to be scientifically accepted. The trial court set a Frye hearing on this limited issue.

At the Frye hearing, the trial court inquired at length regarding the disguise or distortion issue, and limited its consideration to whether the testimony was a proper topic for expert opinion and whether its probative value outweighed its prejudicial effect. The trial court found that the proffered testimony would “assist the jury in determining the fact in issue,” that the proffered testimony “is indeed based on scientific principle, which has gained acceptance in the field of Forensic Document Examination,” and that the “witness is qualified as an expert to present opinion testimony on the variations of the Defendant’s handwriting and possible basis for it.” The court ordered that no mention be made at trial that the writing samples Spann provided were the result of a court order. Although the trial court permitted the expert to testify as to the differences in the handwriting samples and possible reasons for it, such as intoxication, illness, or physical impairment, the court prohibited the expert from specifically rendering an opinion of intentional disguise, or that Spann had a deliberate intent to deceive or disguise his handwriting. Defense counsel registered an objection, but did not contemporaneously provide a specific basis for the objection.

The record clearly demonstrates Spann’s objection at trial was supported by the argument that the expert should not be permitted to testify that Spann distorted or disguised his handwriting. However, that is not the issue raised in this appeal.

In this appeal, Spann argues that the admissibility of handwriting comparison testimony in general should be reconsidered since this type of testimony has recently been scrutinized in the federal courts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Spann’s argument is beyond the scope of the very clear objection at trial. To be preserved for appeal, “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.” Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992). Because the record clearly shows that Spann’s trial objection was limited to the expert testimony on the issue of distortion or intentional disguise, and because Spann’s argument here is that handwriting expert testimony in general should be barred, the issue was not properly preserved and this claim is procedurally barred.

Even if the alleged error had been properly preserved, this claim would fail. All of the cases cited by Spann involve the federal standard for admitting new or novel scientific evidence under the test set forth in Daubert. Florida does not follow Daubert. Florida courts follow the test set out in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). “This test requires that the scientific principles under-girding this evidence be found by the trial court to be generally accepted by the relevant members of its particular field.” Hadden v. State, 690 So.2d 573, 576 (Fla.1997). Courts will only utilize the Frye test in cases of new and novel scientific evidence. See, e.g., U.S. Sugar Corp. v. Henson, 823 So.2d 104 (Fla.2002); Brim v. State, 695 So.2d 268, 271-72 (Fla.1997). “By definition, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” U.S. Sugar, 823 So.2d at 109 (citing Ramirez v. State, 651 So.2d 1164, 1166-67 (Fla.1995)). In the vast majority of cases, no Frye inquiry will be required because no innovative scientific theories will be at issue.

Forensic handwriting identification is not a new or novel science. In fact, by the turn of the century expert testimony in the area of handwriting identification was permitted in thirty-seven states and “was viewed as the obvious and necessary way to adduce proof about the authenticity of disputed writings.” Jennifer L. Mnookin, Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability, 87 Va. L.Rev. 1723, 1756 (2001). Frye was decided in 1923, and by that time, forensic handwriting identification had already established itself as a tool commonly used in court. Once established, handwriting identification experts were unchallenged as valid and acceptable experts for the majority of the twentieth century. In 1993, the United States Supreme Court decided Daubert, which interprets a federal rule of evidence and is not binding on the states. Daubert requires the trial judge to evaluate scientific expert testimony to ensure that the “reasoning or methodology underlying the testimony is scientifically valid” before admitting it. Id. at 592-93, 113 S.Ct. 2786. Following Daubert, some federal courts have reexamined the admissibility of handwriting expert testimony, and those are the eases Spann relies on here to support his contention that we should also reexamine the admissibility of expert handwriting identification testimony. See, e.g., United States v. Starzecpyzel, 880 F.Supp. 1027, 1048 (S.D.N.Y.1995) (holding that a document examiner’s testimony could not survive scrutiny under Daubert, but expert handwriting examiners, while not scientific enough to satisfy Daubert, could be admitted as “nonscientific expert witnesses” who “providfe] jurors with a helpful practical skill derived from their training and experience”).

While some federal courts have affirmed the use of handwriting identification experts under Daubert and some have not, Florida still considers the admissibility of new and novel scientific evidence under the test set forth in Frye. Because expert forensic handwriting identification is not new or novel, Frye has no application. Therefore, even if the issue Spann raises here had been properly preserved for review, it would be without merit. The Frye hearing in this case was limited to the issue of whether the expert could testify that Spann distorted or disguised his handwriting. The trial court properly admitted the testimony.

Because Spann did not properly preserve the issue of whether the field of expert handwriting identification in general meets the Frye test, this issue is procedurally barred. Furthermore, the trial court’s consideration of the admissibility of expert testimony on the limited issue of distorted or disguised handwriting was properly considered and resolved. Therefore, Spann is not entitled to relief on this claim.

2. Waiver of Mitigating Evidence

It is well established that a competent defendant may waive his right to present mitigating evidence in the penalty phase of his first-degree murder trial. See Durocher v. State, 604 So.2d 810, 812 (Fla.1992); Pettit v. State, 591 So.2d 618, 620 (Fla.1992) (holding that one convicted of first-degree murder could waive his right to present mitigating evidence, but stressing that “the trial judge must carefully analyze the possible statutory and nonstat-utory mitigating factors against the aggra-vators to assure that death is appropriate”).

Before the trial court may grant a defendant’s request to waive the presentation of mitigation, the court is obligated to ensure that the defendant’s waiver is knowing, uncoerced, and not due to defense counsel’s failure to fully investigate penalty phase matters. See Koon v. Dugger, 619 So.2d 246, 250 (Fla.1993). As Koon states, when a defendant refuses to allow the presentation of mitigating evidence in the penalty phase against his counsel’s advice, (1) counsel must inform the court on the record of the defendant’s decision; (2) counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be; and (3) the trial court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence. See id. at 250. Application of this rule creates a trial record that adequately reflects the defendant’s knowing waiver of his right to present evidence in mitigation. See id. at 249. The procedures set forth in Koon were followed in this case.

Defense counsel notified the court on the record that Spann did not wish to present mitigating evidence. Spann told the court that he had been thinking about this decision since he was in jail in 1997. On two separate occasions — at the time Spann waived his presentation of mitigation and again when he waived a jury at the penalty phase — the trial judge inquired in detail, and defense counsel indicated on the record what the mitigating evidence would be if it were presented. The court inquired whether Spann’s decision was against the advice of counsel, and counsel said it was. The court inquired directly of Spann whether he wished to waive mitigation and whether he understood the consequences of a waiver. The defense also submitted a written sentencing memorandum, and the court ordered a presentence investigation. The judge heard penalty-phase arguments and conducted a Spencer hearing. During the proceedings, Spann maintained his position that he did not wish to be present for the penalty phase and did not wish to present mitigation or even to have a penalty phase jury.

At the penalty phase trial, the State called three witnesses who testified to facts in support of aggravating circumstances. At sentencing, the court indicated that it considered the presentence investigation (PSI) and the sentencing scoresheet, as well as statutory and non-statutory mitigators since the trial court must consider all mitigation anywhere in the record to the extent it is believable and uncontroverted even when a defendant waives the presentation of mitigating evidence. See Overton v. State, 801 So.2d 877 (Fla.2001) (citing Farr v. State, 621 So.2d 1368, 1369 (Fla.1993)).

Although the colloquy and repeated questioning of Spann is almost identical to the colloquy in Overton, which was found to be sufficient, Spann argues that his counsel did not thoroughly indicate the mitigation that existed in the record. The trial court solicited both statutory and nonstatutory mitigating evidence from defense counsel. Defense counsel advised the court that Spann was an accomplice with a relatively minor role in the murder, that Spann’s mother, sister, and brother would testify that Spann was a good son and brother when he was a young man, and that at some point, Spann fell in with a bad crowd. Counsel also submitted that prison records show that Spann would be capable of living in an open prison environment without being a threat to himself or anyone else. Counsel indicated that a mental health expert was hired to examine Spann, but Spann failed to cooperate. The trial court questioned counsel as to what evidence they sought to present as a result of the mental health evaluation. Counsel also stated that they examined school records, social records, and criminal records, and that they met with Spann’s family. The trial court specifically inquired about potential mitigating evidence discovered after meeting with Spann’s family members. The trial court acted cautiously, followed the requirements of Koon, and conducted a colloquy similar to that in Overton, which was approved by this Court. The trial court did not abuse its discretion when it granted Spann’s request to waive presentation of mitigation. “Discretion is abused only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ ” Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)). The record supports the trial court’s finding that Spann acted knowingly and intelligently when he waived presentation of mitigation, and that he did so on his own accord and not because his counsel failed to adequately investigate existing or available mitigation. Because there was no abuse of discretion, relief is hereby denied.

3. Waiver of Jury Recommendation

Spann argues that the judge erroneously found that he knowingly and intelligently waived a jury recommendation in the penalty phase trial because the judge treated the request as a matter of right rather than as a request that could be denied.

This Court recently considered the issue of voluntariness of a waiver in Griffin v. State, 820 So.2d 906 (Fla.2002). As in this case, the defendant in Griffin waived his sentencing phase jury. We stated in Griffin that the standard by which this Court will consider the volun-tariness of a waiver is similar to the one used when it considers the validity of a plea. Griffin, 820 So.2d at 912 (citing Lamadline v. State, 303 So.2d 17, 20 (Fla.1974)). “[I]n order to challenge the volun-tariness of a plea on appeal, the defendant first [must] move to withdraw the plea at the trial court.” Id. at 912-913.

In this case, there was no motion to withdraw Spann’s waiver of the sentencing phase jury. Therefore, under Griffin, Spann is foreclosed from raising this claim in this proceeding and may only raise the claim by collateral attack through a post-conviction motion. See Griffin, 820 So.2d at 913 (“[F]ailure of a capital defendant to first attack the voluntariness of a waiver of a sentencing jury at the trial court precludes review on direct appeal.”). We therefore deny relief on this claim.

4. Misdemeanor Battery in Support of an Aggravating Factor

Spann next argues that the trial court improperly found that he was previously convicted of another capital felony or another felony involving the use or threat of violence to the person. See § 921.141(5)(b), Fla. Stat. (1999). The “finding of a prior violent felony conviction aggravator only attaches ‘to life-threatening crimes in which the perpetrator comes in direct contact with a human victim.’ ” Mahn v. State, 714 So.2d 391, 399 (Fla.1998) (quoting Lewis v. State, 398 So.2d 432, 438 (Fla.1981)). Whether a crime constitutes a prior violent felony is determined by the surrounding facts and circumstances of the prior crime. See Gore v. State, 706 So.2d 1328, 1333 (Fla.1997).

The trial court found that Spann was convicted in 1991 of the crime of battery, in 1995 of the crime of shooting into an occupied vehicle, and in 1999 of manslaughter with a firearm. Based upon judgments and sentences introduced as to “each offense,” the court specifically stated in its sentencing order that “these felonies involve the use or threat of violence to another person.” It is clear from the sentencing order that the trial court listed these three prior offenses in discussing the aggravating circumstance.

The State presented testimony from the driver of the vehicle into which Spann shot several times, as well as the judgment and sentence. The State also presented testimony from the homicide investigator who testified that Spann shot a man in 1997, and subsequently pleaded guilty to manslaughter. Either one of these crimes alone would support the finding of this aggravating circumstance. If there was any error in relying on the prior crime of battery to support this aggravating circumstance, it was harmless since Spann had two other prior felony convictions involving the use of violence to another person. See, e.g., Mahn v. State, 714 So.2d 391, 399 (Fla.1998) (concluding that although robbery conviction was improperly used as a prior violent felony conviction, contemporaneous convictions of two other homicides satisfied the aggravating circumstance).

Spann argues that this Court cannot consider the other two prior violent felonies because the trial court failed to provide the weight it attached to each of the prior felonies. Although the trial court did not specifically indicate the weight given to the battery conviction, it is clear from a close reading of the sentencing order, especially that portion discussing the first nonstatutory mitigating factor, that the battery conviction was given only some weight. The trial court considered the fact that the defendant was a juvenile when the battery incident occurred and found this to be a mitigating factor. Relief is not warranted on this issue.

5. Improper Doubling

Spann argues that the trial court improperly doubled three aggrava-tors: during the commission of a felony, pecuniary gain, and avoid arrest. The State counters that this issue was not properly preserved and that all three ag-gravators are based on different aspects of the crime so they should not be merged.

To be preserved for appeal, “the specific ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.” Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992). Spann’s argument was not preserved, but he contends that his failure to object does not preclude appellate review since the trial court may not double the aggravators.

Spann is correct that the consideration of two or more aggravators is improper when the aggravators are based on the same aspect of the crime. See Rose v. State, 787 So.2d 786, 801 (Fla.2001) (citing Banks v. State, 700 So.2d 363, 367 (Fla.1997)). However, the facts of a case may support multiple aggravating factors “so long as they are separate and distinct aggravators and not merely restatements of each other.” Rose, 787 So.2d. at 801. This Court in Banks said:

Improper doubling occurs when both aggravators rely on the same essential feature or aspect of the crime. However, there is no reason why the facts in a given case may not support multiple aggravating factors so long as they are separate and distinct aggravators and not merely restatements of each other, as in murder committed during a burglary or robbery and murder for pecuniary gain, or murder committed to avoid arrest and murder committed to hinder law enforcement.

700 So.2d at 367 (citation omitted). Therefore, when considering the issue of doubling, the focus is on the aggravators themselves, not on the overlapping facts.

The trial court relied on the following facts to support the aggravating circumstance of kidnapping the victim of the homicide. Spann and Philmore planned to rob a bank because they did not get enough money from the robbery of a pawn shop the previous day. They planned to carjack a vehicle, abduct the woman driver, and then kill her so she could not identify them. The evidence shows that Spann and Philmore did exactly what they had planned. They followed the victim, Kazue Perron, to her residence, approached her as she was getting out of her vehicle, and forced her back into the car at gun point. Perron was forced to drive toward Indiantown. They eventually drove down an isolated road, where Perron was killed. These facts clearly demonstrate that the murder was committed during a kidnapping.

In support of the pecuniary gain aggra-vator, the trial court considered the facts which demonstrated that during the series of events, Spann and Philmore stole the vehicle the murder victim had been driving. After Perron was forced to drive to an isolated location, the defendants took her vehicle. After they snatched $1000 from a customer in a bank, Spann and Philmore used Perron’s Lexus to pick up their female companions. They were in the Lexus when they were spotted by the police. The murder was in fact committed for pecuniary gain of the vehicle.

The testimony is clear that Spann told Philmore they needed to kill the victim of the carjacking so that she could not identify them and they would have enough time to get away with the car. The evidence was unrebutted that the elimination of the witness was the dominant motive for the murder. The victim’s body was found in a remote area, and she was shot in the forehead, which is consistent with an execution-style killing. Philmore, who was also found guilty of first-degree murder and sentenced to death, also challenged the avoid arrest aggravator. Based on the same evidence, this Court upheld the trial court’s finding that the sole or dominant motive for the killing was to eliminate the witness. See Philmore v. State, 820 So.2d 919, 985 (Fla.2002) (finding competent, substantial evidence of -witness elimination existed where the defendant confessed that he killed the victim to eliminate her as a witness; he drove the victim for approximately thirty minutes looking for a remote location; and there was no indication that the defendant wore a mask or gloves to conceal his identity).

It is clear that the facts in support of these three aggravating factors overlap. However, Banks does not prohibit the use of the same facts to support multiple aggravating factors so long as they are separate and distinct aggravators and not merely restatements of each other.

We have previously upheld the finding of the “pecuniary gain and committed during the course of a kidnaping” ag-gravators. See Hartley v. State, 686 So.2d 1316, 1323 (Fla.1996) (noting that the assertion that the pecuniary gain and in-the-course-of-a-Mdnapping aggravators are improperly doubled has been consistently rejected). Where other factors indicate that the defendant did not act with the absolute, sole motive of pecuniary gain, it is not error to find the pecuniary gain and in-the-course-of-a-kidnaping aggravators. Id. Spann’s sole motivation for these crimes was not pecuniary gain; he clearly wanted the victim dead to prevent her from identifying him. Therefore, these two aggrava-tors were properly found.

We also reject the argument that the pecuniary gain aggravator is inconsistent with a concurrent finding of the avoid arrest aggravator. See Thompson v. State, 648 So.2d 692, 695 (Fla.1994) (holding that it is proper for a trial court to utilize both the pecuniary gain and avoid arrest aggra-vators in the same case); see also Hildwin v. State, 727 So.2d 193, 195 (Fla.1998) (holding “in order to establish this aggra-vator the State must prove beyond a reasonable doubt only that ‘the murder was motivated, at least in part, by a desire to obtain money, property or other financial gain’ ”) (quoting Finney v. State, 660 So.2d 674, 680 (Fla.1995)). The evidence is clear that the murder was motivated by Spann and Philmore’s desire to obtain a car so they could leave town in an unsuspicious car after they robbed a bank.

The three aggravators are based on separate and distinct aspects of the criminal enterprise and were properly found. Therefore, relief on this claim is denied.

6. Consideration of All Mitigating Evidence

Mitigating evidence must be considered and weighed when it is contained anywhere in the record, to the extent it is uncontroverted and believable. See Farr v. State, 621 So.2d 1368 (Fla.1993). This requirement applies with equal force when the defendant asks the court not to consider mitigating evidence, as Spann did in this case. Id. The sentencing court must “expressly evaluate in its written order each mitigating circumstance proposed by the defendant.” Rogers v. State, 783 So.2d 980, 995 (Fla.2001); accord Jackson v. State, 767 So.2d 1156, 1158 (Fla.2000). “Such documentation is necessary to assure this Court that the trial court has properly evaluated and weighed each mitigating circumstance proposed by the defendant, as well as to permit this Court a meaningful review of the sentencing order.” Bryant v. State, 785 So.2d 422, 432-33 (Fla.2001); Jackson, 767 So.2d at 1159. However, because nonstat-utory mitigation is so individualized, the defense must share the burden and identify for the court the specific nonstatutory mitigation it is attempting to establish. See Lucas v. State, 568 So.2d 18, 24 (Fla.1990); see also Donaldson v. State, 722 So.2d 177, 188 (Fla.1998).

Spann claims there are nineteen items of mitigation supported by the record that are believable and uncontroverted, including: (1) Spann was capable of living in a prison population without serious difficulty or doing harm to another; (2) at a certain age Spann came under the influence of a bad crowd; (3) available mental health mitigation; (4) school records; (5) social records; (6) Spann’s criminal history records; (7) Philmore’s criminal history records; (8) Spann was in a car accident in 1989 or 1990; (9) Spann’s drug use during the episode; (10) Spann’s low level of education as referenced in the PSI; (11) Spann’s skills as a welder; (12) Spann’s current or most recent employer is unknown; (13) Spann left home at an early age; (14) Spann had an unstable residential history; (15) Spann has two other children besides the one referenced in the sentencing order; (16) Spann has sinus and hayfever problems; (17) Spann has an unhealthy relationship with his mother; (18) Spann needed an appropriate male role model; and (19) Spann was institutionalized as a juvenile.

In the sentencing order, the trial court stated:

The defendant has affirmatively waived all evidence of mitigation, hence none was presented. However, the Court will consider the proffered non-statutory mitigation as well as all mitigation in the record including any and all mitigation as set forth in the PSI.

The trial court then considered and weighed the mitigating evidence that was established in the record. The trial court found no statutory mitigation but specifically found the following nonstatutory mitigation: (1) the defendant had been a good son according to his mother, a good brother according to his siblings, and a good student up to a point (little weight); (2) the defendant was not the person who fired the fatal shots in the murder for which he is to be sentenced (very little weight); (3) the defendant is capable of living in a prison population without serious difficulty or doing harm to another (some weight); (4) the defendant’s wife would testify that he was a good husband and father (slight weight); and (5) the PSI reflects that the defendant’s father was shot to death when the defendant was two to four years old (moderate weight).

The trial court concluded:

The Court accepted as true through the proffer and/or through the evidence and/or PSI that non-statutory mitigating circumstances have been established, as discussed above.

Spann argues that all mitigating evidence, even if it was not explicitly proffered but contained somewhere in the record, should have been individually listed in the sentencing order and discussed. Evidence is mitigating if, in fairness or in the totality of the defendant’s life or character, it may be considered as extenuating or reducing the degree of moral culpability for the crime committed. See Evans v. State, 808 So.2d 92 (Fla.2001). The relevant standards of review for mitigating circumstances are as follows: (1) whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review by this Court; (2) whether a mitigating circumstance has been established by the evidence in a given case is a question of fact and subject to the competent, substantial evidence standard; and (3) the weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard. See Campbell v. State, 571 So.2d 415, 419-20 (Fla.1990).

Many of the items Spann now lists as mitigation were considered by the trial court and were included in the trial court’s discussion of mitigation in the sentencing order. For example, the sentencing court found that Spann was capable of living in a prison population without serious difficulty, and gave this nonstatutory mitigator some weight. The sentencing court also discussed Spann’s assertion that at some point he came under the influence of a bad crowd. The sentencing court referenced the presentence investigation report, which would have included facts such as Spann’s low level of education. Furthermore, the transcript indicates that the judge specifically inquired about Spann’s school records, social records, and criminal history records, as well as any mitigation that would be revealed through a mental health evaluation. Other items Spann now lists as mitigation are not extenuating or do not reduce the degree of moral culpability for the crimes committed. For example, the evidence fails to show that Spann’s alleged history of sinus and hayfever problems is mitigating. Likewise, Spann’s skills as a welder, the fact that he left home at an early age, and his unstable residential history are not extenuating and do not reduce the degree of moral culpability for the crime committed. We find that the mitigating evidence was properly considered and weighed by the trial court, and we therefore deny relief on this issue.

7. Weighing of All Mitigating Evidence in the Record

Spann waived the presentation of mitigation, argued that the trial court did not consider all of the mitigation, and now argues that the mitigation the court did consider and found to exist was not given sufficient weight. The “weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard.” Elledge v. State, 706 So.2d 1340, 1347 (Fla.1997) (finding trial court did not abuse its discretion in providing weight to the mitigating circumstances because the Court could not “say that no reasonable person would give this circumstance [little] weight in the calculus of this crime”); accord Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (“[Discretion is abused only where no reasonable man would take the view adopted by the trial court.”).

Spann argues that the trial court abused its discretion in assigning weight to three of the mitigating circumstances: that Spann was a good son, good brother, and good student (little weight); that Spann had a good jail record (some weight); and that Spann was a good husband and father (sight weight).

As stated above, it is well-settled law that it is within the discretion of the sentencing court to assign relative weight to each mitigating factor, and the sentencing court’s finding will not be disturbed absent a showing of abuse of discretion. See Trease v. State, 768 So.2d 1050, 1055 (Fla.2000); see also Elledge v. State, 706 So.2d 1340, 1347 (Fla.1997). In this case, the trial, court evaluated the nonstatutory mitigation based on the information available in the record. If there was other information the trial court could have used to evaluate a potential mitigating factor, the defendant refused to present it. Cf. La-Marca v. State, 785 So.2d 1209, 1216 (Fla.2001) (“Because appellant waived the presentation of mitigating evidence, he cannot subsequently complain on appeal that the trial court erred in declining to find mitigating circumstances that might otherwise have been foundIt is illogical to accept the defendant’s argument on appeal that a mitigating factor should have been found or greater weight should have been assigned based on evidence the defendant failed or refused to submit. Spann tied the hands of his trial counsel by refusing to allow any evidence in mitigation, and now argues the trial court should have sought a more detailed proffer concerning mitigation. The trial court did not abuse its discretion. Thus, this claim does not warrant a new penalty phase trial.

8. Proportionality Review

Finally, we find that the sentence of death in this case is proportional. The trial court properly found five aggravating circumstances: (1) prior violent felony; (2) felony murder (kidnapping); (3) avoid arrest; (4) pecuniary gain; and (5) cold, calculated and premeditated (CCP). No statutory mitigators were found. The non-statutory mitigators that were found are: (1) Spann was relatively young at the time of the battery conviction (some weight); (2) Spann was a good son, good brother, and good student (little weight); (3) Spann was not the shooter (very little weight); (4) Spann had a good jail record (some weight); (5) Spann was a good husband and father (slight weight); (6) Spann’s father had been shot to death (moderate weight).

The sentence of death is proportional to other death sentences where there were findings of similar factors in aggravation and mitigation. See Cave v. State, 727 So.2d 227, 229 (Fla.1998) (affirming death sentence with murder in the course of a felony (robbery-kidnapping), CCP, HAC, and avoid arrest aggravators and one statutory and eight nonstatutory mitigators where the defendant was the ring leader of a plan to rob a convenience store, led the victim at gunpoint, and controlled her during the long ride to a remote location where she was killed by accomplices); Alston v. State, 723 So.2d 148 (Fla.1998) (upholding sentence of death where defendant and another man abducted the victim and shot him to death; finding five aggravating factors — prior violent felony, murder committed during a robbery and kid-naping, avoiding arrest, HAC, and CCP— and several mitigating factors, including deprived and violent childhood, cooperation with police, low intelligence and mental age, bipolar disorder, and ability to get along with other people); Jennings v. State, 718 So.2d 144 (Fla.1998) (upholding death sentence where defendant killed three Cracker Barrel employees during a robbery by slitting their throats and trial court found three aggravating factors— murder committed during the course of a robbery, murder committed to avoid arrest and CCP — and several mitigating factors including no significant history of criminal behavior, deprived childhood, accomplice received a life sentence, cooperation with police, good employment history, loving relationship with mother, positive personality traits, capacity to care for and be loved by children, and exemplary courtroom behavior); Puiatti v. State, 495 So.2d 128, 129 (Fla.1986) (concluding that death sentence was proportional with avoid arrest, pecuniary gain, and CCP, no mitigation, and where codefendant kidnapped and robbed victim, used the victim’s car to take her to orange grove where she was shot, and then drove to New Jersey). Thus, we conclude that the death sentence in this case was proportional.

Conclusion

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

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, and QUINCE, JJ„ and SHAW and HARDING, Senior Justices, concur.

LEWIS, J., concurs as to the conviction and concurs in result only as to the sentence.

      . Spencer v. State, 615 So.2d 688 (Fla.1993). At a Spencer hearing the defendant is allowed to present additional mitigating evidence to the trial judge.

        . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).