author: PER CURIAM. STUART, Justice

text:
    Ex parte Shonelle JACKSON. (In re Shonelle Jackson v. State).
    1981723.
    Supreme Court of Alabama.
    May 18, 2001.
    Bryan A. Stevenson and Randall S. Susskind of Equal Justice Initiative of Alabama, Montgomery, for petitioner.
    Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for respondent.
   PER CURIAM.

Shonelle Jackson was convicted of murder made capital because it occurred during the commission of a robbery in the first degree, see § 13A-5-40(a)(2), Aa. Code 1975, and first-degree theft of property, see § 13A-8-3, Aa.Code 1975. The jury recommended, on the capital conviction, a sentence of life imprisonment without the possibility of parole, by a vote of 12-0; the trial court overrode that recommendation and sentenced Jackson to death. Jackson was also sentenced, as a habitual offender with three prior felony convictions, see § 13A-5-9(c)(2), Aa.Code 1975, to life imprisonment for the theft conviction. The Court of Criminal Appeals affirmed both convictions and sentences. See Jackson v. State, 836 So.2d 915 (Ala.Crim.App.1999), for a detailed statement of the facts. We granted certio-rari review; see Rule 39(c), Aa.R.App.P.

Jackson contends that the trial court erred by not conducting a hearing outside the presence of the jury on his motion to suppress his statement made to the police.

Initially, we note that the Court of Criminal Appeals conducted a plain-error review of this issue, stating: “Although [Jackson] requested a hearing in his written motion, he did not subsequently object when the trial court denied the motion without conducting a hearing.” 836 So.2d at 934. The record indicates that on January 30, 1998, Jackson filed a pretrial motion to suppress his statement made to a law-enforcement officer. On February 2, 1998, the trial court denied the motion, by entering the following order on the first page of the motion: “Ordered, motion denied without a hearing.” (C.R. 49.) At trial, Jackson entered two objections to the admission of his statement, one of them specifically referencing the pretrial motion to suppress. The trial court overruled Jackson’s objections and admitted the statement. The specificity of the trial court’s order denying Jackson’s motion to suppress his statement indicates that the trial court was aware of Jackson’s request for a hearing and that the trial court’s determination was final. Jackson suffered an adverse ruling; therefore, the error is preserved for review. Cf. Ex parte Rowell, 666 So.2d 823 (Ala.1992)(holding that a ruling on a pretrial motion to-suppress is sufficient to preserve the issue for review and that the defendant need not object to the evidence when it is admitted).

In Duncan v. State, 278 Ala. 145, 165, 176 So.2d 840, 859 (1965), this Court stated, “We are clear to the conclusion that whenever a motion is made for the question of the voluntariness of the confession to be determined outside the presence of the jury, the motion should be granted.” See also Smith v. State, 554 So.2d 451 (Ala.1989), and Felder v. State, 470 So.2d 1321, 1326 (Ala.Crim.App.1984) (holding that “an accused is entitled to a hearing on the voluntariness of his confession”).

The record indicates that Jackson moved to suppress his statement made to a law-enforcement officer, stating in his motion:

“1. The defendant, Shonell[e] Andre Jackson, was taken into custody and interrogated on April 29, 1997, according to police records, in connection with his alleged participation in the April 25, 1997, shooting of [Lefrick] R. Moore.
“2. He was questioned, which questioning was recorded, by Detective A.J. Signore, Montgomery, Alabama Police Department.
“3. Mr. Signore informed the defendant that his fingerprints had been found on a Dairy Queen cup in the automobile used in the robbery/killing of Mr. Moore.
“4. In fact no fingerprints were found.
“5. A preliminary hearing was held on this ease on August 8, 1998, which was transcribed as per Court Order.
“6. The following exchange occurred on pages 17 and 18 of the transcript of that hearing:
“ ‘Q. And his statement states that.... It says, Detective Signore then advised Mr. Jackson a Dairy Queen cup was found inside the vehicle, which the other three subjects were in and asked how his fingerprints got on the cup. Do you recall that statement?
“ ‘A. I believe I may have made something ... a statement similar to that, yes, sir.
“ ‘Q. Did you, in fact, have forensics do a fingerprint analysis on a variety of this evidence?
“ ‘A. Eventually, yes, we did.
“ ‘Q. And I have a latent print search here which indicates one Dairy Queen cup. It says GNP and the results are negative.
“ ‘A. Yes, sir, that’s correct.
“ ‘Q. Is it my understanding that negative means there were no fingerprints on that cup?
“ A. Yes, sir. That’s my information.
“ ‘Q. Why did you tell Mr. Jackson that you had a cup with his fingerprints on it?
“ A. Because I was conducting an investigation.
“ ‘Q. But that wasn’t true, was it?
“ A. No, sir. At that time I didn’t know it to be true, no.
“ ‘Q. So it was a lie?
“ A. Yes, sir.
“ ‘Q. Is that a standard investigative technique with the police department?
“ A. Well, it’s kind of interesting, because more times than not, the defendants come down and lie to us, so we have to use every means available to get the truth from them and sometimes we have to bend the truth or work around the truth.’
“7. Mr. Jackson cannot be said to have voluntarily answered questions or voluntarily made a statement; but was, instead coerced into responding to the police interrogation. [Citations omitted.] The circumstances around the interrogation were coercive and the police investigator lied to the defendant about the evidence they possessed. The totality of the circumstances [shows] that the statement was involuntary and taken in violation of federal and state constitutional guarantees.
“WHEREFORE, the defendant, Sho-nell[e] Andre Jackson, respectfully requests this Honorable Court to:
“(a) allow the presentation of evidence and argument on this motion;
“(b) schedule a hearing on this motion;
“(e) suppress Mr. Jackson’s statement in its entirety; and
“(d) grant any other relief that is just and proper under the circumstances.”

(C.R.46-48.) The trial court denied the motion, without conducting a hearing.

Jackson requested a hearing to determine the admissibility of his statement, and the trial court denied him the opportunity to present evidence. Consequently, Jackson was deprived of his chance to testify about the circumstances relating to the voluntariness of his statement. If the trial court had conducted a hearing, Jackson could have testified and presented evidence indicating that the statement was not voluntarily made, without being subjected to cross-examination on other issues. Rule 104, Ala.R.Evid. If Jackson had testified in the hearing, conflicting evidence might have been presented to rebut the state’s evidence of voluntariness. Therefore, in accordance with Duncan, Smith, and Felder, we hold that the trial court erred in determining the admissibility of Jackson’s statement without conducting a hearing.

Jackson argues that in light of the United States Supreme Court’s holding in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and this Court’s holding in Smith, this error requires that the case be remanded for an evidentiary hearing. We agree.

In Jackson v. Denno, the defendant’s statement was admitted into evidence without a hearing, outside the presence of the jury, to determine its admissibility. The defendant testified at trial that his statement was coerced. The trial court permitted the jury to determine the volun-tariness of the statement. The United States Supreme Court held that the defendant was entitled to a posttrial evidentiary hearing, rather than a new trial, to determine whether the confession was voluntary.

In Smith, the trial court admitted the defendant’s statements made at the scene of the accident, without conducting a hearing outside the presence of the jury to determine their admissibility. The Court of Criminal Appeals held that the trial court erred in not conducting a hearing outside the presence of the jury and that the defendant was entitled to a new trial. This Court, however, applying the rationale in Jackson v. Denno, ordered that the case be remanded for a evidentiary hearing to determine the admissibility of the statements.

In accordance with Smith, we remand this case for a hearing to determine the admissibility of Jackson’s statement. If, after the hearing, the trial court determines that Jackson’s statement was voluntarily made and was properly admitted into evidence for the jury’s consideration, a new trial is not required. See Jackson v. Denno, 378 U.S. at 393-94, 84 S.Ct. 1774 (stating that if the statement was properly admitted into evidence, “we see no constitutional necessity at that point for proceeding with a new trial, for [the defendant] has already been tried by a jury with the confession placed before it and has been found guilty”). However, if the trial court determines that Jackson’s statement was not voluntary and therefore was not admissible into evidence, then there must be a new trial, at which the statement is not admitted into evidence.

This cause is remanded with instructions for the Court of Criminal Appeals to remand the case for a hearing in the trial court to determine the admissibility of Jackson’s extrajudicial statement, in accordance with this opinion. After the trial court makes its return to the Court of Criminal Appeals, that court shall forward that return to this Court.

REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

SEE, BROWN, and STUART, JJ., dissent.

STUART, Justice

(dissenting).

In light of the facts in this particular case, I do not believe a remand for an evidentiary hearing is necessary to determine the admissibility of Jackson’s statement.

In Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965), this Court stated:

“If there is no request expressly made by counsel for the defendant that the hearing on the issue of the voluntariness of the confession be heard in the absence of the jury, we think, nevertheless, that the trial court should on [its] own action require such a hearing to be held if there is to be any conflict in the testimony, and particularly when the defendant desires to take the stand.... ”

278 Ala. at 165, 176 So.2d at 859.

No evidence in the record before us contradicts the voluntariness of the statement received in evidence. The record reflects that Jackson, in his motion to suppress, requested a hearing on that motion, but he did not object, either before trial or when his statement was admitted into evidence, on the ground that a hearing on the matter was necessary to present additional evidence regarding voluntariness. Nor did Jackson indicate in his motion or at trial that additional evidence was available or that he wished to testify on the question of the voluntariness of his statement. Jackson’s motion to suppress is specific and presents only this legal question: whether a misrepresentation used by a law-enforcement officer makes a statement involuntary.

Alabama holds to the general rule that a confession is not inadmissible merely because it was induced by a trick or a misrepresentation that was not reasonably calculated to lead the accused to confess falsely. See Barbour v. State, 673 So.2d 461 (Ala.Crim.App.1994), aff'd, 673 So.2d 473 (Ala.1995), cert. denied, 518 U.S. 1020, 116 S.Ct. 2556, 135 L.Ed.2d 1074 (1996); Ex parte Hill, 557 So.2d 838, 841 (Ala.1989) (“more subtle forms of psychological manipulation, such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone, to render a confession or incriminating statement involuntary”); Fincher v. State, 211 Ala. 388, 100 So. 657 (1924); and Bates v. State, 549 So.2d 601 (Ala.Crim.App.1989). In Fincher, the Court stated:

“It is also declared by this court that if a confession was procured, not by menace, threat, or hope, but by the mere employment of falsehood on the part of officers or ‘other persons,’ such falsehood ‘does not alone exclude it’ (Curry v. State, 203 Ala. 239, 242, 82 South. 489; Burton v. State, 107 Ala. 108, 18 South. 284; Stone v. State, 105 Ala. 60, 69, 18 South. 114; Levison v. State, 54 Ala. 520, 525; King v. State, 40 Ala. 314; 1 Greenl. Ev., §§ 322, 323, 329); nor does the fact that a confession was obtained by artifice alone exclude it (Brindley v. State, 193 Ala. 43, 69 South. 536, Ann. Cas. 1916E, 177). It is only when such falsehood or artifice amounts to a promise of favor or threat of punishment. Where these have not been employed, the confession is admissible. Levison v. State, 54 Ala. 520, 525; 16 C.J., p. 729, § 1497.”

211 Ala. at 393, 100 So. at 662; see, also, Charles W. Gamble, McElroy’s Alabama Evidence, § 200.07(7) (5th ed.1996). Instead, the trial court must examine the totality of the circumstances surrounding the statement to determine its voluntariness. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Ex parte Matthews, 601 So.2d 52 (Ala.1992).

I have carefully reviewed the record to determine whether Jackson voluntarily and knowingly waived his Miranda rights before making the inculpatory statement to the police and whether the statement was voluntary. The record indicates that Jackson’s statement was voluntary. The record reveals that Jackson, 18 years old at the time, voluntarily went to the Montgomery Police Department, on April 29, 1997, at 2:05 p.m. At 2:16 p.m., Detective Andrew Signore read Jackson his Miranda rights and Jackson signed a waiver form indicating that he understood his rights, that he had not been threatened or promised anything, and that he wished to talk to the police. Signore also signed the form, indicating that he had advised Jackson of his rights. Detective C.D. Phillips, Signore’s partner at the time, signed the form as a witness.

Signore testified that Jackson initially denied having had any involvement with the three codefendants. Because he thought Jackson was not telling the truth, based on the statements of the codefend-ants, Signore told Jackson that his fingerprints were found on a Dairy Queen cup found in the stolen vehicle; in fact, he did not know if fingerprints had been found on the cup. Signore testified that after he told Jackson about the fingerprints, Jackson admitted that he had been with the other defendants on the day of the crime. After making that statement, Jackson asked if he could change his statement again. Signore testified that Jackson then admitted to having been with the other defendants at the time of the murder and to possessing a .380 automatic pistol.

After considering the totality of the circumstances surrounding Jackson’s statement, I conclude that the State met its burden of proving that Jackson made his statement voluntarily after having made a voluntary and knowing waiver of his Miranda rights. The record does not indicate that Jackson was threatened or coerced into giving a statement. Neither the motion to suppress nor Jackson’s objections at trial indicate that Jackson had additional evidence to present on this matter. Signore’s misrepresentation alone did not render the statement involuntary. The weight and preponderance of the evidence support the trial court’s denial of the motion to suppress.

Because Signore’s misrepresentation was the sole ground upon which Jackson claimed that his statement was involuntary, and because my review of the record indicates that Signore’s misrepresentation did not render the statement involuntary, I believe the trial court’s error in not conducting a hearing was harmless. Rule 45, Ala.R.App.P. I do not believe that speculation and conjecture that Jackson might have wanted to testify, without his having made such a proffer to the trial court regarding additional conflicting evidence, supports a remand. Therefore, I respectfully dissent.

SEE and BROWN, JJ., concur.

      . This portion of Jackson's statement was taped.


source: Caselaw Access Project

author: BASCHAB, Judge. WISE, Judge

license: Public Domain

text:
    Shonelle Andre JACKSON v. STATE.
    CR-97-2050.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.

    Bryan A. Stevenson and Randall Scott Susskind, Montgomery, for appellant.
    Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

BASCHAB, Judge.

On the authority of Ex parte Jackson, 836 So.2d 973 (Ala.2001), we remand this case to the trial court for proceedings that are consistent with the Alabama Supreme Court’s opinion. Specifically, the trial court shall conduct a hearing “to determine the admissibility of Jackson’s extrajudicial statement, in accordance with this opinion.” Ex parte Jackson, 836 So.2d at 976. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 63 days after the release of this opinion. The return to remand shall include a transcript of the evidentiary hearing and the trial court’s findings of fact and conclusions of law.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, J., concur; WISE, J., concurs specially, with opinion; and SHAW, J., recuses himself.

WISE, Judge

(concurring specially).

I concur with the main opinion remanding this case to the trial court for that court to conduct a hearing “to determine the admissibility of Jackson’s extrajudicial statement,” as required by the Alabama Supreme Court. However, I write to express my agreement with the following language from Justice Stuart’s dissent:

“After considering the totality of the circumstances surrounding Jackson’s statement, I conclude that the State met its burden of proving that Jackson made his statement voluntarily after having made a voluntary and knowing waiver of his Miranda rights. The record does not indicate that Jackson was threatened or coerced into giving a statement. Neither the motion to suppress nor Jackson’s objections at trial indicate that Jackson had additional evidence to present on this matter. Signore’s misrepresentation alone did not render the statement involuntary. The weight and preponderance of the evidence support the trial court’s denial of the motion to suppress.
“Because Signore’s misrepresentation was the sole ground upon which Jackson claimed that his statement was involuntary, and because my review of the record indicates that Signore’s misrepresentation did not render the statement involuntary, I believe the trial court’s error in not conducting a hearing was harmless. Rule 45, Ala.R.App.P. I do not believe that speculation and conjecture that Jackson might have wanted to testify, without his having made such a proffer to the trial court regarding additional conflicting evidence, supports a remand.”

836 So.2d at 978. Nonetheless, because this Court is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “is without authority to overrule the decisions of that court,” Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972), we are required to follow the holding of the majority in Ex parte Jackson, and to remand this case to the trial court for further proceedings consistent with that opinion.


author: PER CURIAM. JOHNSTONE, Justice LYONS, Justice

text:
    Ex parte Shonelle JACKSON. (In re Shonelle Jackson v. State of Alabama).
    1981723.
    Supreme Court of Alabama.
    May 10, 2002.

      Bryan A. Stevenson and Randall S. Susskind, of Equal Justice Initiative of Alabama, Montgomery, for petitioner.
    Bill Pryor, atty. gen., and Kathryn D. Anderson and Anne C. Adams, asst, attys. gen., for respondent.
   PER CURIAM.

The opinion of February 15, 2002, is withdrawn and the following is substituted therefor.

Shonelle Jackson was convicted of murder made capital because the killing occurred during the commission of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; he was sentenced to death on that conviction. He was also convicted of first-degree theft of property, see § 13A-8-3, Ala.Code 1975, and on that conviction he was sentenced to life imprisonment as an habitual offender with three prior felony convictions, see § 13A-5-9(c)(2), Ala.Code 1975. The Court of Criminal Appeals affirmed both convictions and sentences. See Jackson v. State, 836 So.2d 915 (Ala.Crim.App.1999). This Court granted certiorari review, see Rule 39(c), Ala.R.App.P., as it read before it was amended effective May 19, 2000, and remanded the case to the Court of Criminal Appeals for that court to remand the case for the trial court to conduct a hearing outside the presence of the jury to determine the admissibility of Jackson’s inculpa-tory statement. Ex parte Jackson, 886 So.2d 973 (Ala.2001). We instructed the Court of Criminal Appeals to forward the trial court’s return to this Court. It appears that the trial court has complied with our directions and has conducted a hearing to determine the admissibility of Jackson’s statement.

I.

Jackson contends that the trial court erred in denying his motion to suppress a statement he made to a law-enforcement officer because, he says, the officer tricked him into making the statement. “ ‘In reviewing the correctness of the trial court’s ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley v. State, 494 So.2d 750, 760-61 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). The trial court’s ruling on a motion to suppress will not be disturbed unless it is palpably contrary to the great weight of the evidence. See Dixon v. State, 588 So.2d 903 (Ala.1991); Parker v. State, 587 So.2d 1072, 1088 (Ala.Crim.App.1991); Rutledge v. State, 680 So.2d 997, 1002 (Ala.Crim.App.1996); and Maples v. State, 758 So.2d 1 (Ala.Crim.App.1999), aff'd, 758 So.2d 81 (Ala.1999), cert. denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000).

Extrajudicial statements are pri-ma facie involuntary and inadmissible; the duty rests on the trial court to determine whether the statement is voluntary, and unless it appears that it is voluntary it should not be admitted. See Farrior v. State, 728 So.2d 691 (Ala.Crim.App.1998). The burden is on the State to show volun-tariness and a Miranda predicate before such a statement can be admitted into evidence. See Lewis v. State, 535 So.2d 228 (Ala.Crim.App.1988). “Whether a waiver is voluntary, knowing, and intelligent depends on the particular facts and underlying circumstances of each case, including the background, experience, and conduct of the accused — i.e., the totality of the circumstances.” Click v. State, 695 So.2d 209, 218 (Ala.Crim.App.1996). The voluntariness of an inculpatory statement remains undetermined until the trial court has examined the totality of the circumstances surrounding the statement. See Ex parte Hill, 557 So.2d 838, 841 (Ala.1989).

The trial court’s finding that a statement was voluntary need only be supported by a preponderance of the evidence. Dixon v. State, supra. The test for the voluntariness of an extrajudicial confession or an inculpatory statement is whether, in light of all the surrounding circumstances, the statement was free from inducement, threat, or promise, either expressed or implied, that would have produced in the mind of the accused any fear of harm or hope of favor. Ex parte Price, 725 So.2d 1068 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999).

Moreover, “more subtle forms of psychological manipulation, such as trickery or deception by the police, have not been considered sufficiently coercive, standing alone, to render a confession or incriminating statement involuntary.” Ex parte Hill, 557 So.2d at 841.

The trial court submitted the following order on return to remand:

“On August 31, 2001, the Alabama Court of Criminal Appeals remanded this case to the trial court to conduct proceedings consistent with the Opinion as written and released by the Alabama Supreme Court on May 18, 2001. The Alabama Supreme Court [had] remanded this case to the Alabama Court of Criminal Appeals with the instructions to order the trial court to conduct a hearing to determine the admissibility of Defendant Jackson’s extrajudicial statement. The trial court appointed the Honorable Bryan A. Stevenson to represent the defendant at the hearing, which was conducted on October 24, 2001. At the hearing, the defendant was represented by Mr. Stevenson, as well as the Honorable Randall Susskind, both of the Equal Justice Initiative of Alabama. The State of Alabama was represented by the Honorable Susan Redmond, Chief Deputy District Attorney for Montgomery County. After hearing the testimony and accepting exhibits introduced into evidence, this Court advised the parties that they would have 7 days in which to present any Memorandum of Law supporting their respective positions. Defense counsel submitted a Memorandum of Law on November 2, 2001, and this Court has reviewed the same.
“The State of Alabama called its first and only witness, Detective A. J. Signore, of the Montgomery Police Department. Detective Signore testified that he had been employed with the Montgomery Police Department for 10 years, and in 1997, had been a homicide investigator. Pursuant to this case, Detective Signore testified that the defendant’s mother signed a ‘consent to search’ her home wherein detectives confiscated certain items, including .380-caliber bullets. The detectives, before leaving the defendant’s mother’s home, told the mother that if the defendant came home she was to notify [them] that the police would like to talk to him. Later that afternoon, the defendant went to police headquarters to talk to the detectives. At the hearing, Detective Signore testified that the defendant, who was 18 years old at the time, reported to the police headquarters where Detective Signore and his partner, Detective C.D. Phillips, were on duty. Detective Signore testified that the defendant was read his Miranda rights, after which he signed the waiver form indicating that he understood his rights, that he had not been promised anything or threatened in any way and that he wished to give a statement to the police. The defendant’s statement was taken in Detective Signore’s office at the Montgomery Police Department with Detective Phillips also present.*
“Initially, the defendant denied even knowing the three other codefendants that were involved in the shooting. Detective Signore testified at the hearing that he had statements from the 3 code-fendants stating that all 3 of them knew the defendant and that the defendant had been involved in the shooting. Detective Signore stated that in order to get the defendant to tell the truth about his relationship with the other 3 code-fendants, he told the defendant that a Dairy Queen [fast-food restaurant] cup had been found in the vehicle with the defendant’s fingerprints on it. After Detective Signore told the defendant this information, the defendant then told Detective Signore that, in fact, he did know the other codefendants, but denied any involvement in the shooting. After telling Detective Signore that he knew the other codefendants, he asked the detective if he could make another statement. In his second statement, Defendant Jackson admitted to having been with the other codefendants at the time of the murder and to possessing a .880 automatic pistol.
“The defense called Ms. Rosalyn Jordan as its first witness. Ms. Jordan is a sixth-grade teacher at Patterson Elementary School. She testified that the defendant had been a student in her classroom and her records indicated that he had failed the first and third grades. She stated that the defendant was a low-achiever and that he was 13 years old in the sixth-grade. She also stated that she had only seen the defendant a few times since he had been a sixth-grader in her class. The defense also called Ms. Thelma Owens, who is an employee at the Southern Poverty Law Center. She is related to the defendant, as his aunt, and she stated that she helped to raise him. She went on to state that the defendant was very respectful of her and any type of authority figures.
“There was absolutely no question that Detective Signore lied to the defendant about the fingerprints on the Dairy Queen cup. It is important to recognize, however, that the lie was told by Detective Signore only in order to find out if the defendant did, in fact, have a relationship with the other co-defendants. The lie was not told to induce the defendant to confess [to] a crime. Alabama Courts have repeatedly held that a confession is not inadmissible merely because it was induced by a trick or misrepresentation. As defense counsel pointed out in its Memorandum of Law, although police deception is not conclusive as to the voluntariness of a statement, it is certainly a factor to be considered in the determination of its voluntariness. See Frazier v. Cupp, 394 U.S. 731[, 89 S.Ct. 1420, 22 L.Ed.2d 684] (1969). This Court would again note, however, that the deception used in this case was not deception that led to a confession to the actual crime. The deception or misrepresentation used by Detective Signore was only used in order to establish whether or not a relationship existed between the defendant and codefendants. After the statement was made concerning the fingerprints on the Dairy Queen cup, Defendant Jackson admitted only to knowing the code-fendants, but denied any involvement in the actual crime.
“This Court must look at the totality of the circumstances in analyzing whether or not the defendant’s extrajudicial statement was voluntary or not. The Court is convinced, after conducting the hearing, that the defendant did, in fact, voluntarily come to the police station and, after being read his Miranda rights and signing his waiver, he agreed to talk to the detectives. There was no testimony and/or evidence presented that would indicate that the defendant could not knowingly and voluntarily waive his rights and agree to talk with the detectives. There was also nothing unusual or extraordinary about the room in which the statement was taken, or the manner in which the statement was obtained. As Justice Stuart so ably stated in her dissent [to the Supreme Court’s opinion of May 18, 2001], there is no question that Detective Signore made misrepresentations concerning the fingerprints found on the Dairy Queen cup; however, whether or not the misrepresentations render a statement involuntary is a question of law and does not require the gathering of additional facts in order to make a decision. This trial court, however, has conducted the hearing as ordered by the majority and would point out that no new information or facts were gleaned from this hearing and this court finds that after examining the totality of the circumstances surrounding the statement of the defendant, said statement was made voluntarily and is therefore admissible.
“ * Detective Signore's office in which the defendant's statement was taken is a normal detective office containing a desk and two chairs positioned facing the desk. Defense counsel went into very elaborate details about the office in its Memorandum of Law trying to show that the room would imply that the statement was not voluntary. The Court found nothing unusual, deceptive, or coercive about the room in which defendant's statement was taken at Montgomery Police Department Headquarters.”

The trial court’s findings are adequately supported by the record. We have carefully reviewed the record on return to remand to determine whether Jackson voluntarily and knowingly waived his Miranda rights before making the inculpato-ry statement to the police and whether the statement was voluntary. After considering the totality of the circumstances surrounding Jackson’s statement, we conclude that the State met its burden in proving that Jackson voluntarily and knowingly waived his Miranda rights and that he made his statement voluntarily. The record does not reveal that Jackson was threatened or coerced into giving a statement. The weight and preponderance of the evidence support the trial court’s decision to deny the motion to suppress. Therefore, the trial court did not err in denying the motion to suppress Jackson’s statement.

II.

In his brief to this Court, Jackson raises several additional issues, which include sub-issues, for review, all of which were argued in the Court of Criminal Appeals and were thoroughly addressed by that court. We have carefully reviewed all the issues raised by Jackson and we will address the following two issues, which were specifically addressed by Jackson’s counsel at oral argument before this Court:

1. Whether the trial court erred in granting the State’s motion in limine, preventing him, Jackson argues, from presenting motive evidence; and
2. Whether the trial court erred in overriding the unanimous jury recommendation of life imprisonment without the possibility of parole and sentencing Jackson to death.

A.

Jackson contends that the trial court erred in granting the State’s motion in limine because, he says, its doing so improperly prevented him from presenting evidence that the motive for the murder was retaliation for a drug deal that had gone “bad,” not robbery as the State alleged. He argues that by granting the State’s motion, the trial court prevented him from testifying, from cross-examining witnesses, and from presenting mitigation evidence.

A motion in limine is the proper method by which to prohibit the introduction of irrelevant evidence. Wiley v. State, 516 So.2d 812, 814 (Ala.Crim.App.1986), rev’d on other grounds, 516 So.2d 816 (Ala.1987). The decision to grant or deny such a motion rests within the sound discretion of the trial court and that decision will not be overturned on appeal absent an abuse of discretion. Id. The test for relevancy is whether the evidence “bears any logical relationship to the ultimate inference for which it is offered.” Aetna Life Ins. Co. v. Lavoie, 470 So.2d 1060, 1078 (Ala.1984); see also C. Gamble, McElroy’s Alabama Evidence § 21.01(1) (5th ed.1996); Garner v. State, 606 So.2d 177 (Ala.Crim.App.1992).

The State filed a pretrial motion in li-mine requesting that Jackson be prevented from presenting evidence that the victim was involved in drug activity, because, it argued, such evidence was immaterial and irrelevant to the case. In response, Jackson argued that the victim’s drug activity went to the reason for the confrontation between Jackson, his codefendants, and the victim and that evidence of that activity was, therefore, relevant. After holding a hearing on the motion, the trial court granted the State’s motion. On the day of trial, Jackson’s counsel asked the court to reconsider its ruling because Jackson might decide to testify. The trial court indicated that it would reconsider its ruling if Jackson decided to testify. Jackson did not testify, and his counsel did not raise the issue again and did not later ask the court to reconsider its ruling. Because the trial court stated that it would reconsider its ruling, the ruling on the motion in limine was not a final order and the issue was not preserved for appeal. See Perry v. Brakefield, 534 So.2d 602 (Ala.1988); Evans v. Fruehauf Corp., 647 So.2d 718 (Ala.1994). Therefore, we review this issue under the plain-error rule. Rule 45A, Ala.R.App.P.

Nothing in the record supports Jackson’s contention that the offense was the result of a drug deal gone “bad.” The record indicates that the victim’s wife informed the police that her husband was a small-time dealer of crack cocaine. However, neither Jackson nor the codefendants mentioned a drug deal gone “bad” in their statements to law-enforcement officers after the offense. At the hearing, defense counsel stated that he wanted to cross-examine certain witnesses about the victim’s being a drug dealer to determine if those witnesses would testify that the victim had been killed as the result of a “bad” drug deal. Defense counsel merely speculated that there was a potential for such testimony; nothing in his proffer indicates that evidence existed to support this theory. While the statement of Gerard Bur-dette, a passenger in the automobile with the victim at the time of the murder, did refer to “gang” activity, the statement did not indicate that the murder was related to drug activity. Nothing in the record, other than defense counsel’s speculation, supports Jackson’s theory that the killing was the result of a drug deal gone “bad.” Speculation and conjecture do not establish relevant evidence of the existence of a viable defense. Therefore, we hold that the trial court’s grant of the State’s motion in limine did not constitute error, plain or otherwise.

B.

Jackson contends that the trial court erred in overriding the jury recommendation of life imprisonment without the possibility of parole, which was unanimous, and sentencing him to death.

1.

First, Jackson contends that the trial court erred in considering his juvenile record in overriding the jury’s sentencing recommendation.

Section 13A-5^17(b), Ala.Code 1975, requires that the trial court order and receive a written presentence-investigation report before it determines the sentence in a capital case. Section 13A-5-47(b) further provides that the presentence-investi-gation report and any evidence submitted in connection with it shall be made part of the record in the case.

“Rule 26.3(b), Ala. R.Crim. P., provides for what can be contained in such a presentence report. When a defendant has a significant juvenile record, his or her teenage difficulties will appear as part of the presentence report. However, under the Alabama capital-sentencing scheme, juvenile adjudications are not convictions and cannot be considered as prior criminal activity. Freeman v. State, 555 So.2d 196, 212 (Ala.Crim.App.1988), aff'd, 555 So.2d 215 (Ala.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L.Ed.2d 284 (1990). Only convictions can negate the statutory mitigating circumstance of no significant history of prior criminal activity. § 13A-5-51(1), Ala.Code 1975; Freeman v. State, 651 So.2d 576, 597-98 (Ala.Crim.App.1994).”

Ex parte Burgess, 811 So.2d 617, 623 (Ala.2000).

The record, specifically the sentencing order, reveals that the trial court found one statutory mitigating circumstance— that Jackson was 18 years old at the time of the crime. § 13A-5-51(7), Ala.Code 1975. However, Jackson alleges that the trial court used his juvenile record to negate the statutory mitigating circumstance that he had no significant history of prior criminal activity. § 13A-5-51(l). In fact, the trial court specifically stated that Jackson’s juvenile record could not be considered in determining whether that statutory mitigating circumstance existed. However, the court noted that Jackson had a significant prior criminal history; he had three felony convictions. Error, if any, by the trial court in considering Jackson’s juvenile record was harmless. Ex parte Davis, 718 So.2d 1166, 1178 (Ala.1998). Therefore, the trial court properly assessed the weight it was to assign that mitigating circumstance in light of Jackson’s prior felony convictions.

2.

Jackson contends that the trial court improperly considered his physical characteristics in considering the statutory mitigating circumstance of his age at the time of the offense. See § 13A-5-51(7), Ala. Code 1975. Specifically, he argues that the trial court’s reference to his height and weight at the time of the crime was arbitrary and that it deprived him of a reliable sentencing determination.

In Ex parte Clisby, 456 So.2d 105, 108-09 (Ala.1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 (1985), this Court stated:

“[T]he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific weights be assigned to different aggravating and mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala.Crim.App.l98[3]), rev’d on other grounds, 455 So.2d 72 (Ala.1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.”

The record reflects that in weighing the mitigating circumstance of Jackson’s age at the time of the offense, the trial court noted Jackson’s height, his weight, and his age at the time of the offense, as well as the fact that Jackson was the father of a 3-month-old child, that he had smoked marijuana since he was 14 years old, that he consumed alcohol on a regular basis, and that he had an extensive criminal record. The court also noted that Jackson was “a physically mature adult” at the time of the offense. A trial judge can consider past behavior and prior criminal activity in evaluating a defendant’s maturity and in determining the weight to be given the mitigating circumstance of the defendant’s age. Cf. Ex parte Burgess, supra. The decision whether a particular mitigating circumstance is proven and the weight to be given it rests with the judge and the jury. See Carroll v. State, 599 So.2d 1253 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994). The trial court did not err in its assessment of the weight to assign the mitigating circumstance of Jackson’s age at the time of the offense.

3.

Jackson further contends that the trial court improperly plagiarized the sentencing order from Shellito v. State, 701 So.2d 837, 843-44 (Fla.1997), cert. denied, 523 U.S. 1084, 118 S.Ct. 1537, 140 L.Ed.2d 686 (1998), in its analysis of the mitigating circumstance of Jackson’s age. Specifically, Jackson argues that the trial court used the sentencing order from Shellito as a “fill-in-the-blank” form, thereby depriving him of an individualized sentencing determination.

The record shows that in the sentencing order, the trial court stated that Jackson’s case was similar to Shellito. Upon review of Shellito and of the trial court’s sentencing order, we conclude that the trial court adopted only the analysis used in Shellito. In this case, the trial court’s assessment contains a thorough analysis of the facts and the circumstances involved in this case, thereby providing an individualized sentencing determination. We find no error.

4.

Jackson contends that the trial court failed to make an adequate determination of his culpability by failing to determine whether he' was the actual shooter in the murder.

In its sentencing order, the trial court stated “there is evidence that [Jackson] was the shooter [and] there is evidence that suggests that [one of Jackson’s code-fendants], not [Jackson] fired the shot that killed [the victim].” The record supports the court’s determination of Jackson’s culpability. Therefore, Jackson’s, argument that the trial court failed to determine his culpability is without merit.

5.

Finally, Jackson contends that the trial court’s override of the jury’s unanimous recommendation of life imprisonment without parole was improper, arbitrary, and unconstitutional, and that it wrongfully negated the role of the jury. He argues that § 13A-5-47(e), Ala.Code 1975 — Alabama’s judicial override statute — is stan-dardless, unlike override statutes in other states, and that it fails to give lower courts guidance in rejecting a jury’s recommendation.

This Court in Ex parte Apicella, 809 So.2d 865 (Ala.2001), upheld the constitutionality of having a judge, not the jury, determine the punishment in a capital case. In Ex parte Taylor, 808 So.2d 1215 (Ala.2001), this Court held that the capital-sentencing procedure set forth in §§ 13A-5-47 and 13A-5-53, Ala.Code 1975, provided sufficient guidance to prevent the arbitrary and capricious imposition of a death sentence. Specifically, the Court noted that the capital-sentencing procedure “ensures that the trial judge is given adequate information and sufficient guidance in deciding whether to accept or to reject a jury’s recommended sentence” and that § 13A-5-53, Ala.Code 1975, provided sufficient guidelines for an appellate determination of “whether a trial judge’s override of the jury’s recommendation is appropriate in a particular case.” 808 So.2d at 1219.

We now turn to an analysis of the propriety of the override of the jury’s recommendation of life imprisonment without parole in Jackson’s case.

Section 13A-5-53, Ala.Code 1975, provides, in pertinent part:

“(b) In determining whether death was the proper sentence in the case the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall determine:
“(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
“(2) Whether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence; and
“(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
“(c) The Court of Criminal Appeals shall explicitly address each of the three questions specified in subsection (b) of this section in every case it reviews in which a sentence of death has been imposed.
“(d) After performing the review specified in this section, the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall be authorized to:
“(1) Affirm the sentence of death;
“(3) In cases in which the death penalty is deemed inappropriate under subdivision (b)(2) or (b)(3) of this section, set the sentence of death aside and remand to the trial court with directions that the defendant be sentenced to life imprisonment without parole.”

Thus, reinstatement of a jury recommendation of life imprisonment without parole is appropriate in those circumstances where the trial court has overridden the jury’s recommendation based on bias, passion, or prejudice; where the weighing of aggravating or mitigating circumstances is defective; or where the sentence is disproportionately severe under all of the circumstances. See § 13A-5-53(b), Ala.Code 1975.

In this case, before determining the sentence, the trial court considered all the available evidence; heard arguments on aggravating circumstances and mitigating circumstances; entered written findings of fact summarizing the offense and Jackson’s participation in it; made specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance enumerated in § 13A-5-51, and any additional mitigating circumstance offered pursuant to § 13A-5-52; weighed the advisory verdict of the jury; considered and weighed the presentence-investigation report; considered and independently weighed the mitigating circumstances and the aggravating circumstances; and stated specific reasons for giving the jury’s recommendation the consideration it gave the recommendation, see Ex parte Taylor. After following this procedure, the trial court concluded that the aggravating circumstances outweighed the mitigating circumstance and imposed the death penalty, overriding the jury’s recommendation.

We commend the trial court for its thorough sentencing order and especially for its explanation for its override of the jury recommendation. The trial court found two statutory aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in a robbery or an attempted robbery, and (2) that the capital offense was committed by a person under sentence of imprisonment. The trial court found one statutory mitigating circumstance: that Jackson was 18 years old at the time of the offense. It is evident from the trial court’s sentencing order that it independently weighed the aggravating circumstances and the mitigating circumstance. Additionally, the trial court provided a detailed analysis of its consideration of the jury’s recommendation of a sentence of life imprisonment without the possibility of parole and the reasons it rejected that recommendation and sentenced Jackson to death. There is no evidence in the record before us indicating that bias, passion, or prejudice were factors in the trial court’s imposing the death sentence.

We have independently weighed the aggravating and mitigating circumstances to determine if death is the appropriate sentence; we conclude, as did the Court of Criminal Appeals, that the aggravating circumstances in this case outweighed the mitigating circumstance. Furthermore, we agree with the Court of Criminal Appeals that in this case the punishment of death is not excessive or disproportionate to the penalty imposed in similar cases. Therefore, we hold that the imposition of the death sentence in this case was proper.

The judgment of the Court of Criminal Appeals is affirmed.

OPINION OF FEBRUARY 15, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs in part, concurs in the result in part, and dissents in part as to the opinion and dissents from the denial of rehearing.

LYONS, J., concurs in part and dissents in part as to the rationale and dissents from the judgment and dissents from the denial of rehearing.

JOHNSTONE, Justice

(concurring in part, concurring in the result in part, and dissenting in part as to the opinion and dissenting from the denial of rehearing).

With one exception, I concur in the rationale of the main opinion on the issue of guilt or innocence. The exception is that I do not agree with the trial judge’s rationale, recited in the main opinion, for the conclusion that Detective Signore’s lie did not render the defendant’s statement involuntary and therefore inadmissible. That the statement was not a full confession but was, rather, only an admission of inculpatory relationships is immaterial to the issue whether the statement was voluntary. I agree, however, with the conclusion that the lie in this case did not constitute such a threat or such coercion as would render the statement involuntary and inadmissible.

A caveat is appropriate on an aspect of the opinion of the Court of Criminal Appeals in this case, Jackson v. State, 836 So.2d 915 (Ala.Crim.App.1999). In Part V of that opinion, the Court of Criminal Appeals appears to hold that the facts of this case would not support a jury instruction on the lesser-included offense of robbery. Had the defendant requested such a jury instruction, it would have been due him. The evidence supporting this theory, however, is not so strong that the trial court committed plain error in omitting such an instruction in the absence of a request for one by the defendant.

I respectfully dissent from affirming the Court of Criminal Appeals in its affir-mance of the judgment imposing the death penalty pursuant to the trial judge’s override of the unanimous recommendation of life imprisonment without the possibility of parole returned by the jury. I agree with Justice Lyons’s special writing that the unanimous recommendation of the jury for life imprisonment should be deemed a mitigating circumstance. I further agree with Justice Lyons that the two aggravating circumstances found in this case do not outweigh the combined mitigating circumstances of the life recommendation, the uncertainties in the evidence that the defendant was the triggerman, and the young age of the defendant.

In assigning no weight nor binding effect to a life-imprisonment recommendation by a jury, Alabama law reduces to a sham the role of the jury in sentencing and allows baseless, disparate sentencing of defendants in capital cases. The first of these consequences of Alabama law is a denial of due process of law, and the second is both a denial of due process and a denial of equal protection.

Accordingly, while I agree with the adjudication of the defendant’s guilt, I dissent from affirming the affirmance of the death sentence. I would reverse the judgment of the Court of Criminal Appeals affirming the death sentence and would remand the cause for the defendant to be resentenced to life imprisonment without the possibility of parole.

I also dissent from the denial of rehearing in this case.

LYONS, Justice

(concurring in part and dissenting in part as to the rationale and dissenting from the judgment and dissenting from the denial of rehearing).

I concur in the main opinion’s rejection of Jackson’s contentions concerning the denial of his motion to suppress, the denial of his motion in limine, the trial court’s consideration of his juvenile record and his physical characteristics, and the alleged plagiarism of a sentencing order from another case. However, because I would reinstate the jury’s unanimous recommendation of life imprisonment without parole, I must dissent from the portion of the main opinion that holds otherwise. I also dissent from the denial of rehearing.

The Judicial Article, Amendment No. 328, Alabama Constitution of 1901, confers upon our appellate courts the responsibility for review of all cases, including those in which a sentence of death has been imposed. The Legislature has been more specific. The Court of Criminal Appeals, subject to review by this Court, is authorized by § 13A-5-53, Ala.Code 1975, to review the propriety of a death sentence and, where appropriate, to “set the sentence of death aside and remand to the trial court with directions that the defendant be sentenced to life imprisonment without parole.” § 13A — 5—53(d)(3). Justice Maddox has previously acknowledged that our appellate courts “are especially sensitive to their roles when there is a jury override.” Ex parte Tarver, 553 So.2d 633, 635 (Ala.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 966 (1990) (Maddox, J., concurring specially).

Jackson contends that he is denied due process by the mechanism of the judicial override. His contention should fail in view of the authority of the appellate courts of this State to consider independently the jury recommendation against death and to determine whether death is the appropriate penalty in a given case. It is our duty, upon proper application for certiorari review, to reinstate a jury recommendation against the death penalty where the trial court’s override is grounded in “passion, prejudice, or any other arbitrary factor”; or where there has been a defective weighing of the aggravating circumstances and the mitigating circumstances; or where the penalty is disproportionately severe under all of the circumstances. § 13A-5-53(b).

The trial court is to be commended for its explanation of the reasons for its override of the jury’s advisory verdict. A trial court is required by statute to enter “specific written findings” concerning the existence or nonexistence of the aggravating circumstances and the mitigating circumstances. § 13A~5^47(d). To facilitate the appellate courts of this State in the discharge of their statutory duty to review the propriety of a sentence of death, we should require the trial court to enter specific written findings concerning the propriety of the decision to impose the death penalty over a jury’s recommendation of a sentence of life imprisonment without parole. In making such a determination, the trial court should be mindful of the aforementioned criteria applicable to a determination at the appellate level as to the propriety of the sentence of death; namely, whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether an independent weighing of the aggravating circumstances and the mitigating circumstances at the appellate level would indicate that death was the proper sentence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See § 13A-5-53(b).

The trial court here aptly observed that it did not have any guidance from this Court as to how it should treat the jury’s recommendation in the process of weighing the aggravating circumstances and the mitigating circumstances. I believe this Court should offer additional guidance to the trial court as to the effect of a jury’s recommendation of a sentence of life imprisonment without parole. The Legislature has provided specific aggravating circumstances at § 13A-5-49, preceded by the phrase, “Aggravating circumstances shall be the following.” Such introductory language does not leave room for augmentation of the list through judicial decision-making. In contrast, the legislative catalog of mitigating circumstances is preceded by the phrase, “Mitigating circumstances shall include, but not be limited to, the following.” § 13A-5-51 (emphasis added). So as to guide the trial court in determining the effect of a jury’s recommendation of life imprisonment without parole, this Court should hold that such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the strength of the factual basis for the recommendation based upon information known to the jury — such as conflicting evidence concerning the identity of the “triggerman” or a recommendation made by the victim’s family for leniency' — subject to the jury’s recommendation being undermined based upon information known only to the trial court and not to the jury.

Pursuant to § 13A-5-53(b), Ala.Code 1975, we must weigh the aggravating circumstances and the mitigating circumstances in this case to determine if death is the appropriate sentence. Burdette, a passenger in the victim’s vehicle, stated that he saw a long black “.38 or maybe .357” when Jackson and his codefendants began shooting at the victim and Burdette. Both Burdette and the medical examiner expressed the opinion that the person with the .38 pistol or the .357 handgun fired the bullet that killed the victim. That person would have been Barnes, since Barnes and Rudolph both stated that Barnes was the person who was armed with a .357 handgun at the time of the shooting. Based on this evidence, the jury could have believed that Barnes, not Jackson, fired the fatal shot, giving the jury a basis for its recommendation of a sentence of life imprisonment without parole.

The trial court found two statutory aggravating circumstances: (1) that the capital offense was committed while Jackson was engaged in a robbery or an attempted robbery, and (2) that the capital offense was committed by a person under a sentence of imprisonment. The trial court found one statutory mitigating circumstance: that Jackson was 18 years old at the time of the crime. It is evident by the trial court’s sentencing order that it weighed the aggravating circumstances and the mitigating circumstance. However, in a close case like this one, where the evidence suggests a possibility that Jackson might not have fired the fatal shot, treating the jury’s recommendation of life imprisonment without parole as a mitigating circumstance changes the overall balance of the weighing process.

Independently weighing the aggravating circumstances and the mitigating circumstances and treating the jury’s recommendation as a mitigating circumstance, I would conclude that the trial court’s override of the jury’s recommended sentence and its consequent imposition of the sentence of death were improper under the circumstances of this case. See Ala. Code 1975, § 13A-5-53(a) and (b). Given Jackson’s age at the time of the offense and the fact that the evidence pointed to a code-fendant as the triggerman, the jury s unanimous recommendation of a sentence of life imprisonment without parole tips the scales in favor of following the jury’s recommendation and in sentencing Jackson to life imprisonment without parole.

In this way, we can abide by the Legislature’s command that a jury recommendation is not binding (§ 13A-4>-47(e)); at the same time, I do not understand the Legislature to have commanded that the jury recommendation be given no weight whatsoever. We therefore can give the jury’s recommendation some weight in the sentencing process as a mitigating circumstance. I do not suggest that a trial court can never override a jury’s recommendation of a life-imprisonment sentence, but in order to do so, the aggravating circumstances must be sufficiently egregious to support a sentence of death in light of all mitigating circumstances, including a jury’s recommendation of life imprisonment without parole. Therefore, I respectfully dissent from the judgment.

      . Rule 39, Ala.R.App.P., was amended effective May 19, 2000, as to death-penalty cases.
      "The amendment removes the provision in the former Rule 39(c) that provided that a petition for a writ of certiorari to the Supreme Court in a case in which the death penalty was imposed would be granted as a matter of right. With this amendment, review of death-penalty cases will be at the discretion of the Supreme Court. The Supreme Court retains the authority to notice any plain error or defect in the proceedings under review in those cases.”
      "Court Comment to Amendment to Rule 39, effective May 19, 2000, as to death-penalty cases, etc.” Ala.R.App.P.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The following colloquy occurred:
      "[Defense counsel]: Judge, we would ask the Court to reconsider the ruling on the motion in limine and at least withhold ruling until maybe the sentencing phase. Our client — we have not made a decision as to whether we are going to allow our client to testify or not. His testimony, if he does testify, will be diametrically opposed to the facts — underlying facts as the district attorney had presented them, which creates a conflict and a jury question. His testimony deals with a drug deal. I don’t want to be put in a situation where we can't ask our client questions about what really happened in this case. We would be limited, to have his testimony limited.
      "THE COURT: Well, you know, that’s the first I have heard of that, for the record. It's not a criticism. It's just for the record. You know, I will — you know, if and when you decide whether or not your client is going to testily, I will let you ask me to reconsider it at that point.”

      . Section 13A-5-47(e), Ala.Code 1975, provides:
      "In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict had been waived pursuant to Section 13A-5-46(a) or 13A-5-46(g). While the jury’s recommendation concerning sentence shall be given consideration, it is not binding upon the court.”

      (Emphasis added.)

      . We cannot accept Jackson’s invitation to engraft the rule propounded in Tedder v. State, 322 So.2d 908, 910 (Fla.1975)(stating that for a trial court to impose a death sentence over a jury’s recommendation of life imprisonment without parole, “the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ”). Section 13A-5-47(e) provides an explicit statutory directive that the jury’s recommendation as to the sentence is "not binding upon the court.” Adopting a rule like the one set forth in Tedder would impermissibly rewrite the statute, in violation of our constitutional duty to observe the separation between the powers conferred upon the judiciary and those conferred upon the Legislature. § 43 Constitution of Alabama of 1901.


author: SHAW, Judge.

text:
    Darnell GIPSON, alias Darrell Gipson v. STATE of Alabama.
    CR-00-0997.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.

      Jeffrey C. Robinson, Selma, for appellant.
    Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee.
   SHAW, Judge.

Darnell Gipson appeals the trial court’s order revoking his probation.

On April 5, 1996, Gipson pleaded guilty to two counts of forgery in the second degree and to one count of burglary in the third degree. He was sentenced to imprisonment for one year and one day for each conviction, the sentences to run concurrently. His sentences were suspended and he was placed on probation for one year. On June 29, 1998, the trial court extended Gipson’s probation an additional three years because he had failed to pay court-ordered costs and restitution. On December 7, 2000, A1 Gaston, Gipson’s probation officer, filed a delinquency report alleging that Gipson had violated the terms and conditions of his probation by committing five new offenses, specifically, attempted murder, reckless endangerment, escape, and two counts of giving false information to a police officer. After a revocation hearing on January 5, 2001, the trial court revoked Gipson’s probation.

On appeal, Gipson contends that his due process rights were violated because, he says, the trial court failed to rule on several of his pretrial motions. Specifically, Gipson argues that he filed a “Notice of Appearance and Request for Preliminary Hearing, Motion for Production and Disclosure, Motion to Suppress and Motion to Dismiss Indictment.” (Gipson’s brief at p. 5.) He maintains that the trial court’s failure to rule on those motions denied him due process because, he says, he “did not know what evidence would be used against him” and, therefore, he could not prepare his defense. None of the motions cited above are in the record that is before this Court. “It is the appellant’s duty to provide this court with a complete record on appeal, and we will not predicate error on a silent record.” Gamble v. State, 791 So.2d 409, 418 (Ala.Crim.App.2000). “ ‘[W]here the appellant fails to include pertinent portions of the proceeding in the record on appeal, this court may not presume a fact not shown by the record and make it a ground for reversal.’ ” Id,., quoting Carden v. State, 621 So.2d 342, 345 (Ala.Crim.App.1992). Although Gipson has attached the motions as an exhibit to his brief on appeal, it is well settled that “ ‘attachments to briefs are not considered part of the record and therefore cannot be considered on appeal’ ” Inmin v. State, 654 So.2d 86, 88 (Ala.Crim.App.1994), quoting Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991). In addition, “Allegations in appellant’s brief reciting matters not disclosed in the record cannot be considered.” Moon v. State, 580 So.2d 87, 88 (Ala.Crim.App.1991). Therefore, there is nothing for this Court to review.

Gipson also contends that the trial court’s order revoking his probation was insufficient because, he says, the trial court failed to state the reasons it was revoking his probation or the evidence it relied on in doing so. Although Gipson did not object at trial 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), quoting 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.Crim.App.1994).”

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

The trial court’s order revoking Gipson’s probation stated, in pertinent part:

“On this day, January 5, 2001, came the defendant in his own person along with counsel, Jeffrey Robinson, Esq., both of whom had been served with notice of said hearing and with notice of the evidence against the defendant in support of the claimed probation violation[s]; after the defendant was advised of his rights pursuant to Rule 27.6(b) and (c), said defendant was given an opportunity in open Court to be heard- and present witnesses on his behalf; and upon consideration of the testimony and evidence presented in open court and the Supervisor’s Report on Delinquent Probationer, the Court finds as follows:
“The defendant committed the offense of Escape III in Crenshaw County on or about September 28, 2000; committed the offense of Giving False -Information to Law Enforcement in Crenshaw County on or about September 28, 2000; and committed the offense of Reckless Endangerment in Lowndes County on or about November 10, 2000; all of which are violations of the conditions of his probation.”

(C. 8.)

As the State correctly points out in its brief to this Court, the order properly stated the trial court’s reasons for revoking Gipsonis probation — i.e., that Gipson had committed three new offenses. However, the State concedes, and we agree, that the order failed to adequately state the evidence the court relied -upon in revoking Gipson’s probation. In James v. State, 729 So.2d 364 (Ala.Crim.App.1998), this Court stated:

“Here, although the trial court’s written order adequately recites the reasons for revoking the appellant’s probation, the order fails to adequately specify the evidence it relied upon. We have consistently found general recitations by the trial court to its considerations of the ‘testimony,’ ‘sworn testimony,’ or ‘relevant and competent evidence’ presented at the revocation hearing to be insufficient for purposes of satisfying the ‘statement of the evidence relied upon’ requirement of Armstrong. See McCloud v. State, 736 So.2d 1131 (Ala.Crim.App.1998); Thornton v. State, 728 So.2d 1162 (Ala.Crim.App.1998); Scarbrough v. State, 709 So.2d 82 (Ala.Crim.App.1997); and Hairgrove v. State, 668 So.2d 887 (Ala.Crim.App.1995). Thus, the trial court failed to adequately specify the evidence relied upon in revoking the appellant’s probation by stating only that it had ‘heard testimony and arguments of counsel.’ ”

729 So.2d at 365. The trial court’s order in this case, stating only that it relied on the probation officer’s report and “the testimony and evidence presented in open court” was not adequate.

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 for the trial court to prepare a written statement of the evidence it relied on in revoking Gipson’s probation. 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: PER CURIAM.

text:
    AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS—UCCJA FORMS.
    No. SC02-2320.
    Supreme Court of Florida.
    Dec. 19, 2002.
   PER CURIAM.

The 2002 Florida Legislature enacted chapter 2002-65, Laws of Florida, effective October 1, 2002, which created the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and repealed the Uniform Child Custody Jurisdiction Act (UCCJA). See Ch.2002-65, §§ 5, 7, Laws of Fla. In light of these statutory amendments, this Court has internally reviewed the Florida Supreme Court Approved Family Law Forms pursuant to the procedures established in Amendments to the Florida Family Laiv Rules of Procedure and Family Law Forms, 810 So.2d 1, 12 14 (Fla.2000). We have determined that it is necessary to substitute references to the UCCJEA for references to the UC-CJA. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Accordingly, we retitle Florida Supreme Court Approved Family Law Form 12.902(d) from “Uniform Child Custody Jurisdiction Act (UCCJA) Affidavit” to “Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit.” In the instructions for form 12.902(d), we replace the reference to sections “61.1302-61.1354” with a reference to newly enacted sections “61.501 61.542.” Amended form 12.902(d) is attached as an appendix to this opinion.

Finally, we amend all Florida Supreme Court Approved Family Law Forms that refer to form 12.902(d) by substituting “Uniform Child Custody Jurisdiction and Enforcement Act” and “UCCJEA” for “Uniform Child Custody Jurisdiction Act” and “UCCJA.” There are no other changes to the substance of these forms and thus we do not include these forms in the appendix. The amended forms are as follows:

12.901(b)(1) Petition for Dissolution of Marriage with Dependent or Minor Children)
12.903(a) Answer, Waiver, and Request for Copy of Final Judgment of Dissolution of Marriage
12.903(b) Answer to Petition for Dissolution of Marriage
12.903(c)(1) Answer to Petition and Counterpetition for Dissolution of Marriage with Dependent or Minor Children)
12.903(e) Answer to Supplemental Petition
12.904(a) Petition for Support Unconnected with Dissolution of Marriage with Dependent or Minor Children)
12.905(a) Supplemental Petition to Modify Custody or Visitation and Other Relief
12.940(d) Motion to Modify or Dissolve Temporary Injunction
12.941(a) Verified Motion for Temporary Injunction to Prevent Removal of Minor Child(ren)
12.941(d) Emergency Verified Motion for Child Pick-Up Order
12.941(e) Order to Pick-Up Minor Children)
12.947(a) Motion for Temporary Support with Dependent or Minor Children)
12.980(b) Petition for Injunction for Protection Against Domestic Violence
12.980(d)(1) Temporary Injunction for Protection Against Domestic Violence with Minor Children)
12.980(e)(1) Final Judgment of Injunction for Protection Against Domestic Violence with Minor Children)
12.980(k) Motion for Modification of Injunction for Protection
12.981(a)(1) Petition to Terminate Parental Rights Pending Stepparent Adoption
12.981(b)(1) Joint Petition for Adoption by Stepparent
12.983(a) Petition to Determine Paternity and for Related Relief
12.983(b) Answer to Petition to Determine Paternity and for Related Relief
12.983(e) Answer to Petition and Counterpetition to Determine Paternity and for Related Relief

The amendments discussed herein are effective immediately. We express no opinion as to the correctness or applicability of the forms or on the substance of the amendments. This opinion and the Florida Supreme Court Approved Family Law Forms may be accessed and downloaded from this Court’s website at www. flcourts.org.

It is so ordered.

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

APPENDIX

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.902(d), UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) AFFIDAVIT

When should this form be used?

This form should be used in any case involving custody of or visitation with any minor children). This affidavit is required even if the custody and visitation of the minor ehild(ren) are not in dispute.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or deputy clerk. You should then file the original with the clerk of the circuit court in the county where the petition was filed and keep a copy for your records.

What should I do next?

A copy of this form must be mailed or hand delivered to the other party in your case, if it is not served on him or her with your initial papers.

Where can I look for more information?

Before proceeding, you should read “General Information for Self Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see sections 61.501-61.542, Florida Statutes.

Special notes ...

If you are the petitioner in an injunction for protection against domestic violence case and you have filed Petitioner’s Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980®, you should write “confidential” in any space on this form that would require you to write the address where you are currently living. Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, □ Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

      . Specifically, chapter 2002-65 created sections 61.501 through 61.542, Florida Statutes (2002), and repealed sections 61.1302 through 61.1348, Florida Statutes (2001).


text:
    Jules G. MINKES, D.O., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D01-2328.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2002.
    Daniel C. Minkes, for appellant.
    Garnett W. Chisenhall (Tallahassee), Assistant General Counsel, Agency for Health Care Administration, for appellee.
    Before GREEN, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

We reverse the agency’s final order and remand for an evidentiary hearing on the amount of the overpayment to appellant. As the validity of the agency’s action depends on disputed facts, and there was no hearing regarding the overpayment amount, the final order must be reversed. § 120.68(7)(a), Fla. Stat. (2002); see Foley v. State of Fla. Dep’t. of Health, 27 Fla. L. Weekly D2029 (Fla. 4th DCA Sept. 11, 2002); McIntyre v. Seminole County Sch. Bd., 779 So.2d 639 (Fla. 5th DCA 2001).

Reversed and remanded.


author: PER CURIAM. ERVIN, J.,

text:
    Patricia H. PENDLETON, Appellant, v. Scott WITCOSKI and Garth Witcoski, Appellee.
    No. 1D01-3689.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2002.
    Rehearing Denied Feb. 7, 2003.
    Robert Rivas, Tallahassee, for Appellant.
    Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg; and Luis Prats and Matthew R. Cogburn of Carlton Fields, P.A., Tampa, for Appellees.
   PER CURIAM.

Equitable remedy of rescission lies within the sound discretion of the trial court. See Billian v. Mobil Corp., 710 So.2d 984, 990 (Fla. 4th DCA 1998), rev. denied, 725 So.2d 1109 (Fla.1998). To determine whether the trial court abused its discretion, the appellate court must apply the “reasonableness” test. If reasonable people could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable, and there can be no finding of an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1202-1203 (Fla.1980).

We hold that, under the facts of this case, as shown by the record, reasonable people could differ as to whether there was a mutual mistake of fact going to an essential element of the contract that entitled the parties to rescission of the contract. Therefore, the trial court did not abuse its discretion in ordering rescission, and we affirm the decision below.

BOOTH and DAVIS, JJ., concur; ERVIN, J., dissents with written opinion.

ERVIN, J.,

dissenting.

This is an appeal from a final order of the trial court rescinding a contract for sale and purchase of real property. Appellant, Patricia H. Pendleton, raises several issues, but I consider it necessary only to address the first, which is dispositive of the case: that the trial court erred in finding there was a mutual mistake of fact entitling appellees, Scott and Garth Witeo-ski, to the equitable remedy of rescission. Because I am of the opinion that the parties’ mistake did not relate to a basic assumption on which the contract was made, I would reverse the order and remand the case for further proceedings consistent with this opinion.

During the year 1999, Pendleton entered into oral negotiations for the purchase of certain real property owned by the Wit-coskis. In October 1999, Pendleton tendered an oral offer of $280,000 for the property, which was zoned residential. The parcel included a home, and the parties contemplated that the property would continue to be used for such purpose. On November 23, 1999, after appellees had orally accepted the offer, the county adopted an ordinance changing the zoning to “village mixed use,” which allowed the tract to be used either commercially or residentially. This zoning change became effective in February 2000.

On June 25, 2000, the parties, unaware of the zoning change, signed a contract for the purchase of the property in the amount of $280,000. Shortly after executing the contract, and before the anticipated closing date of September 1, 2000, Scott Witcoski discovered the rezoning change, and that, as a result, the property’s value was significantly higher than he had originally believed. A later appraisal, conducted with knowledge of the zoning modification, estimated the property’s value at $418,000.

Subsequent attempts to renegotiate the sale of the parcel at a greater sum between the parties failed, and Pendleton sought specific performance of the contract and temporary injunctive relief to prohibit appellees from conveying or encumbering the property, or, in the alternative, damages for breach of contract, attorney’s fees and costs. In their answer, appellees relied on the affirmative defense that the agreement was subject to rescission due to a material mistake of fact. Thereafter, as stated, the trial court entered an order in favor of appellees, denying the claim for specific performance and decreeing rescission of the contract.

Our standard of review of an order granting the equitable remedy of rescission is whether the trial court abused its discretion in so deciding. See Billian v. Mobil Corp., 710 So.2d 984, 990 (Fla. 4th DCA 1998). In my judgment, the lower court abused its discretion in reaching its decision on the ground of mutual mistake of fact. Although it is true that the parties were unaware of the zoning change when they entered into their written contract to buy and to sell, such lack of knowledge does not, as a matter of law, equate to a mutual mistake of fact essential to entitle appellees to a rescission of the contract. The term “mutual mistake of fact” is one of law, and the remedy is available only if the mistake is both mutual and the fact is of the essence of the contract. Worsham v. Pierce, 251 So.2d 896, 898 (Fla. 1st DCA 1971). Because the term “essence of contract,” as used in Worsham, appears to be substantially the same as the expression “basic assumption on which the contract was made,” as defined in the Restatement (Second) of Contracts (1979), I consider it helpful to consult pertinent portions of the Restatement regarding just what type of mistake permits avoidance of a contract.

In the case at bar, the lack of knowledge by both parties at the time of the contract as to the change in the zoning regulations appears to comply with the definition of mistake, set out as follows in section 151 of the Restatement: “A mistake is a belief that is not in accord with facts.” The comments to section 151 explain the term as follows:

a. Belief as to facts. In this Restatement the word “mistake” is used to refer to an erroneous belief. A party’s erroneous belief is therefore said to be a “mistake” of that party. The belief need not be an articulated one, and a party may have a belief as to a fact when he merely makes an assumption with respect to it, without being aware of alternatives. The word “mistake” is not used here, as it is sometimes used in common speech, to refer to an improvident act, including the making of a contract, that is the result of such an erroneous belief.

Perhaps an even more significant comment, as applied to the case at bar, than that relating to one’s mistaken belief as to the facts, is comment b, pertaining to a party’s mistake in regard to the law. Comment b provides:

Facts include law. The rules stated in this Chapter do not draw the distinction that is sometimes made between “fact” and “law.” They treat the law in existence at the time of the making of the contract as part of the total state of facts at that time. A party’s erroneous belief with respect to the law, as found in statute, regulation, judicial decision, or elsewhere, or with respect to the legal consequences of his acts, may, therefore, come within these rules.

The Restatement highlights comment b with the following pertinent illustration:

3. A contracts to sell a tract of land to B. Both parties understand that B plans to erect an office building on the land and believe that he can lawfully do so. Unknown to them, two days earlier a municipal ordinance was enacted requiring a permit for lawful erection of such a building. There is a mistake of both A and B. Its legal consequences, if any, are governed by the rule stated in § 152. See Illustration 7 to § 152.

The facts set out in the above example are somewhat similar to those at bar because, at the time of the execution of the contract, a change in the law had occurred that affected the use of the property — a change of which all of the parties were then unaware. As noted in the preceding illustration, the question whether the party seeking to avoid the enforcement of the contract may be entitled to relief turns on a reading of section 152 of the Re statement, which provides:

(1) Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake under the rule stated in § 154.
(2) In determining whether the mistake has a material effect on the agreed exchange of performances, account is taken of any relief by way of reformation, restitution, or otherwise.

As comment a to section 152 explains, the party adversely affected by a mistake of fact must satisfy three conditions:

First, the mistake must relate to a “basic assumption on which the contract was made.” Second, the party seeking avoidance must show that the mistake has a material effect on the agreed exchange of performances. Third, the mistake must not be one as to which the party seeking relief bears the risk.

Consequently, it is not enough to satisfy one or two of the above three prerequisites. Rather, all of them are required to be met before a party is entitled to a discharge of his or her contractual obligations.

Returning to the illustration posed under section 151, regarding the contract to purchase realty for the buyer’s purpose of constructing an office building, that example also referred to illustration 7, provided under section 152, to resolve the question whether the party adversely affected by a change in the law was entitled to avoidance of the contract. The latter illustration explains that when determining whether the mistake has a material effect on the exchange of performances, “the court will consider not only the decrease in its desirability to B [the buyer] but also any exchange to A [the seller] through his receiving a higher price than the land would have brought on the market had the facts been known.”

Superficially, illustration 7 supports the lower court’s decision to rescind in that the order clearly focused upon the advantage which Pendleton would obtain in acquiring a parcel of property whose value — unknown to the parties — was enhanced by a change in the property’s zoning at the time of the contract. It should be understood, however, that illustration 7 was provided only to explain one of the three conditions necessary to avoid enforcement of a contract, that pertaining to material effect on the agreed exchange. The illustration, moreover, implicitly presumed that the party seeking relief had satisfied the first of the three conditions necessary for avoidance of the contract, ie., that the mutual mistake related to a “basic assumption on which the contract was made.” Unlike the facts supplied in the above illustration to the Restatement, the circumstances at bar fail to support any such legal conclusion. In my judgment, the resolution of the issue whether the lower court acted within its discretion in ordering rescission turns on what constitutes the parties’ basic assumption on which the contract was made.

Comment b to section 152 explains that “[t]he term ‘basic assumption’ has the same meaning here as it does in Chapter 11 [of the Restatement ] in connection with impracticability (§§ 261, 266(1)) and frustration (§§ 265, 266(2)). See Uniform Commercial Code § 2-615(a).” Typical of all the above provisions is that contained in section 2-615(a), which excuses a seller’s performance “if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made.” § 672.615(1), Fla. Stat. (1999).

Section 266 of the Restatement, pertaining to impracticability or frustration existing at the inception of a contract, provides that a party adversely affected by the unanticipated occurrence of a contingency may be discharged from his or her contractual obligation under the following circumstances:

(1) Where, at the time a contract is made, a party’s performance under it is impracticable without his fault because of a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty to render that performance arises, unless the language or circumstances indicate the contrary.
(2) Where, at the time a contract is made, a party’s principal purpose is substantially frustrated without his fault by a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty of that party to render performance arises, unless the language or circumstances indicate the contrary.

Id. at 338-39.

Neither the concepts of impracticability nor frustration are applicable to the case before us. The parties’ performance under the contract below was not rendered impracticable by the occurrence of the event in question — a change in the law which permitted the parcel to be used for either a residential or commercial purpose. Indeed, there was no impediment to performance by either party. Following rezoning, the property’s continued use for a residential purpose was not extinguished by the change. For the same reason, the Witcoskis’ principal purpose in selling the property was not substantially frustrated by the amendment. Comment a to section 265, relating to discharge by frustration, sets out the requirements for the discharge of a party’s duty:

First, the purpose that is frustrated must have been a principal purpose of that party in making the contract. It is not enough that he had in mind some specific object without which he would not have made the contract. The object must be so completely the basis of the contract that, as both parties understand, without it the transaction would make little sense. Second, the frustration must be substantial. It is not enough that the transaction has become less profitable for the affected party or even that he will sustain a loss. The frustration must be so severe that it is not fairly to be regarded as within the risks that he assumed under the contract. Third, the non-occurrence of the frustrating event must have been a basic assumption on which the contract was made.

Illustration 1 provided under section 152 is illustrative of the term “basic assumption”:

A contracts to sell and B to buy a tract of land, the value of which has depended mainly on the timber on it. Both A and B believe that the timber is still there, but in fact it has been destroyed by fire. The contract is voidable by B.

Obviously, the parties therein clearly anticipated the nonoccurrence of a fire, which was the basic assumption on which they contracted, i e., that the property would be conveyed with standing timber. Similarly, in the example pertaining to the sale of a tract of land which the buyer intended to be used for the construction of an office budding, it is obvious that neither party anticipated the occurrence of the requirement that the property must first be permitted before an office building could be constructed on it. In each case, the unanticipated events affected the parties’ basic assumption as to how the property would be used.

In the case at bar, however, the basic assumption on which the contract was made, the sale of a residence, was not affected by the change in the zoning regulations. Thus, the property’s altered use had no effect whatsoever on the benefit for which each party bargained. As a consequence, the Witcoskis failed to show that the mutual intention of the parties to sell and buy residential property was frustrated by the mistake that the property could also be used for a commercial purpose. Therefore, the court erred in granting rescission of the contract on the ground of mutual mistake of fact.

Even if it could be said that the above condition had been satisfied, comment a to section 152 further points out: “The rule stated in this Section is subject to that in

§ 157 on fault of the party seeking relief.” Section 157 in turn provides:

A mistaken party’s fault in failing to know or discover the facts before making the contract does not bar him from avoidance or reformation under the rules stated in this Chapter, unless his fault amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.

Comment a to section 157 provides that the failure to act in good faith

bars a mistaken party from relief based on a mistake that otherwise would not have been made. During the negotiation stage each party is held to a degree of responsibility appropriate to the justifiable expectations of the other. The terms “good faith” and “fair dealing” are used, in this context, in much the same sense as in section 205[.]

In comment d to section 205 of the Restatement, relating to the duty of good faith and fair dealing, it is stated: “A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off....” (Emphasis added.)

In the case at bar, the zoning change, permitting the property to be used either commercially or residentially, had been adopted seven months before and made effective four months before the execution of the parties’ written contract; yet appel-lees, although charged with constructive notice of the zoning ordinance, at no time prior to the execution of the contract took it upon themselves to ascertain whether the use of the property had been altered in any degree. In my judgment, appellees’ lack of diligence, even if all conditions essential for the establishment of mutual mistake of fact had been satisfied, precluded them from seeking rescission of the contract. See also Harble v. United States, 22 Cl.Ct. 843 (Cl.Ct.1991) (holding that mutual mistake of law regarding zoning requirements for property did not warrant rescission).

      . This court has specifically followed section 151 in a different context in Barnacle Bill’s Seafood Galley, Inc. v. Ford, 453 So.2d 165, 167 n. 5 (Fla. 1st DCA 1984)(quoting the Restatement, which states that the parties' erroneous belief must exist at time of making of contract).

      . The last element is not applicable to the facts at bar.

      . See Fla. Land Co. v. City of Winter Springs, 427 So.2d 170, 173 (Fla.1983) (noting that sufficient notice was provided for zoning change that was subject to public hearing).


text:
    Lance H. TURNER, Appellant, v. Alice E. McKITTRICK, Appellee.
    No. 5D02-1011.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 2002.
    Rehearing Denied Feb. 5, 2003.
    John R. Hamilton of Foley & Lardner, Orlando, for Appellant.
    M. Diane Checchio of Checchio & Stone, P.A., Maitland, for Appellee.
   PER CURIAM.

AFFIRMED.

SEE G.F.C. v. S.G., 686 So.2d 1382 (Fla. 5th DCA 1997).

COBB, PETERSON and PLEUS, JJ., concur.


text:
    Michael Douglas SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3749.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    Rehearing Denied Feb. 5, 2003.
    Michael Douglas Sanders, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 775.082, Fla. Stat. See and compare Grant v. State, 770 So.2d 655 (Fla.2000).

THOMPSON, C.J., SHARP, W., and HARRIS, JJ., concur.