author: WISE, Judge. McMILLAN, Presiding Judge, COBB, Judge,

text:
    J.F.C. v. CITY OF DAPHNE.
    CR-99-0596.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Daniel Prescott Mitchell, Bay Minette, for appellant.
    James M. Scroggins, Daphne, for appel-lee.
   After Remand from the Alabama Supreme Court

WISE, Judge.

J.F.C. was convicted in the Daphne Municipal Court of criminal surveillance, a violation of Daphne City Ordinance No. 1987-8, adopting § 13A-11-32, Ala.Code 1975. Following a trial de novo in the Baldwin Circuit Court, he was adjudicated a youthful offender, based on that court’s finding that he was guilty of criminal surveillance. The trial court sentenced J.F.C. to 6 months’ imprisonment; that sentence was split and he was ordered to serve 60 days in the Daphne municipal jail, followed by 2 years’ supervised probation. This Court affirmed J.F.C.’s conviction and sentence. J.F.C. v. City of Daphne, 844 So.2d 597 (Ala.Crim.App.2001).

On February 15, 2002, the Alabama Supreme Court reversed this Court’s judgment affirming J.F.C.’s conviction for criminal surveillance, holding that the evidence was insufficient to convict J.F.C. of criminal surveillance because the evidence failed to establish that J.F.C. engaged in the “ ‘ “[sjecret observation of the activities of another person.’”” Ex parte J.F.C., 844 So.2d 604 (Ala.2002) (quoting Judge Cobb’s dissent in J.F.C., quoting in turn § 13A-ll-30(3), Ala.Code 1975). However, that Court ordered this Court to determine whether the evidence elicited at trial was sufficient to sustain a conviction of attempted criminal surveillance against J.F.C. 844 So.2d at 607.

“A person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.” § 13A-ll-32(a), Ala.Code 1975. Section 13A-4-2(a), Ala.Code 1975, states: “A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”

Rule 13.2(c), Ala.R.Crim.P., provides that “[sjpecification of an offense in an indictment or information shall constitute a charge of that offense and of all lesser offenses necessarily included therein.” Section 13A-l-9(a)(2), Ala.Code 1975, likewise defines an “included offense” as “an attempt or solicitation to commit the offense charged.” Thus, from the outset J.F.C. was on notice that he was charged with criminal surveillance and all lesser offenses included within that offense and that he could be convicted of attempted criminal surveillance, as well as the charged offense of criminal surveillance. Moreover, given that J.F.C. presented an alibi defense — namely, that at the time of the offense he was visiting his father in Milton, Florida — we fail to see how his right to present a defense would be adversely affected or how his legal rights would be eviscerated if he were to be found guilty of attempted criminal surveillance based on the complaint charging criminal surveillance.

Here, the evidence established the following facts. On May 3, 1999, Baldwin County Deputy Sheriff Jimmy Milton was serving as an off-duty “courtesy officer” at the Lake Forest apartment complex in Daphne. Sometime after 10:00 p.m., Deputy Milton secured the grounds of the complex for the evening. This involved checking the common areas, locking the pool area, and turning out lights in several areas. As he checked to see that nothing was amiss in the complex, Deputy Milton’s attention was drawn to two males outside of building 13. He recognized one of the males as J.F.C., a resident of the complex who lived in building 3. Deputy Milton was aware that people walked between building 13 and the adjacent building as a shortcut to Jackson Street. However, Deputy Milton’s attention was drawn to J.F.C. and his companion because they were not in that portion of the common area used as a shortcut to the street. Instead, they were crouched directly below the window of a ground-floor apartment in building 13. As Milton approached them, he noticed that they appeared to be looking in the window of the apartment. Milton identified himself as a law enforcement officer, and he instructed the two men to stand up and turn around; however, the men fled. Milton gave chase, but he lost the two suspects. He subsequently went to J.F.C.’s apartment and knocked on his door; no one answered. Milton reported the incident to the complex manager and to the Daphne Police Department. J.F.C. was arrested and charged with criminal surveillance on May 4,1999.

In Hubbard v. State, 562 So.2d 580, 581 (Ala.Crim.App.), aff'd, 562 So.2d 583 (Ala.1989) (quoting Ex parte Edwards, 452 So.2d 508, 510 (Ala.1984)), this Court recognized that we have the authority to reverse a conviction and, at the same time, order the entry of a judgment of guilty on a lesser offense included within the offense the defendant was convicted of. Based on the evidence presented by the prosecution, there was sufficient evidence from which the trial court (this was a bench trial) could reasonably conclude that J.F.C. was attempting to intentionally engage in surveillance while trespassing in a private place. See § 13A-11-32, Ala.Code 1975.

Judge Cobb, in her special writing, maintains that J.F.C., because he was a resident of the complex, could not be trespassing. Nor, she maintains, was J.F.C. in a private place, because he was in a common area, a part of which was used as a shortcut to Jackson Street. Her rationale is premised on the idea that with the exception of the apartments themselves, every other area of an apartment complex is a “common area.” Certainly, many areas of any apartment complex are common areas: the parking lot, the laundry room, the swimming pool and various recreation areas, and other places. However, not every area of such a complex is readily or lawfully accessible by residents of that complex or is accessible 24 hours a day. Indeed, Deputy Milton testified that part of his duties was to secure the complex for the night, including locking up the swimming pool area. Thus, based on this evidence, even a resident of the complex did not enjoy 24-hour access to every common area of the complex. Moreover, it should be noted that while J.F.C. was in an area owned by the complex, whether he was in a place that could be truly termed a “common area” is questionable. Although there was evidence indicating that a portion of the common area outside building 13 was used as a shortcut, J.F.C. was not in that area. Rather, he was seen crouching directly below a window to an apartment, peering inside. Indeed, he was in a place where shrubbery or other ornamental plantings might be found — arguably not an area where people would regularly walk. Logically, no one should have been close enough to the building to look inside a window in an attempt to see into the area where the resident enjoyed a legitimate expectation of privacy. Apartment dwellers understand that by virtue of living in such close proximity to others they will have less privacy than they would if they lived in a single-family house. However, living in an apartment does not mean that an individual gives up the right to reasonably expect that he will be protected from the activities of “peeping Toms” who would peer inside his private space with either criminal intent or prurient interest. This is precisely what the Legislature was attempting to prevent when it enacted § 13A-11-32, Ala.Code 1975. Moreover, J.F.C. was aware that he was in a place where he should not have been. Once Deputy Milton spotted J.F.C. and decided to investigate further, J.F.C. ran away— conduct clearly evidencing a consciousness that he was engaged in wrongful behavior.

Based on the rationale in Judge Cobb’s special writing, an apartment dweller would have no recourse against a “peeping Tom” so long as the “peeping Tom” was in a “common area” of the complex and was not a trespasser. Therefore, using the logic espoused by Judge Cobb, no individual who is a resident of the complex — or an invitee of a resident or of the complex management — can ever be convicted of criminal surveillance based on his or her surveillance of another resident of the complex. This could not have been what the Legislature intended when it enacted § 13A-11-32. If so, then a resident of an apartment, townhouse, condominium, or other similarly situated dwelling located in close proximity to another dwelling would enjoy less protection under the law than the owner of a private residence enjoys. There was ample evidence elicited at trial from which the trial court could have concluded that J.F.C. was guilty of attempted criminal surveillance.

Therefore, in accordance with the directive of the Alabama Supreme Court, J.F.C.’s conviction for criminal surveillance is reversed and set aside. However, we conclude that the State clearly proved each and every element of attempted criminal surveillance, which is a lesser included offense of criminal surveillance. See § 13A-l-9(a)(2), Ala.Code 1975. J.F.C.’s presence outside the window of an apartment into which he was peering, constituted an overt act toward the commission of the offense of criminal surveillance. Thus, we are authorized to apply the doctrine of Edwards v. State, 452 So.2d 506 (Ala.Crim.App.1983), aff'd, 452 So.2d 508 (Ala.1984). See also Bohannon v. State, 564 So.2d 859 (Ala.Crim.App.1988); Borden v. State, 523 So.2d 508 (Ala.Crim.App.1987). Accordingly, this cause is remanded with directions that the trial court set aside J.F.C.’s adjudication as a youthful offender based on its finding that he was guilty of criminal surveillance. The trial court is further instructed to enter an order adjudicating J.F.C. a youthful offender, based upon the finding that he was guilty of attempted criminal surveillance, and to sentence him accordingly.

REVERSED AND REMANDED WITH DIRECTIONS.

BASCHAB and SHAW, JJ., concur. McMILLAN, P.J., and COBB, J., concur in part and dissent in part, each with opinion.

McMILLAN, Presiding Judge,

concurring in part and dissenting in part.

I agree with the conclusion in Judge Cobb’s special writing that the main opinion points out the need for revising the laws concerning privacy and trespass where communal living is involved, and I further agree that it is a matter for the Legislature to address, rather than the courts. I do not agree with Judge Cobb’s conclusions concerning Ex parte Edwards, 452 So.2d 508 (Ala.1984), and any impact that the dissenting opinion may have as to this case.

COBB, Judge,

concurring in part and dissenting in part.

As the lone dissenter when this case was initially before this Court, I was pleased to learn of the Alabama Supreme Court’s reversal of the affirmance which prompted my dissent. Unfortunately, I find myself once again in disagreement with portions of majority’s opinion in this matter.

I concur in that part of the majority’s opinion that, in compliance with the directive of the Alabama Supreme Court, reverses J.F.C.’s conviction for criminal surveillance. I disagree with the majority’s conclusion that the prosecution proved the elements of attempted criminal surveillance. Therefore, I dissent from that portion of the majority’s opinion which directs the trial court to enter an order adjudicating J.F.C. a youthful offender based on the finding that he was guilty of that offense.

Section 13A-ll-32(a), Ala.Code 1975, provides, “A person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.” Contrary to the majority’s assertion, the State utterly failed to establish that J.F.C. was trespassing in a private place.

The testimony at trial established that J.F.C. was a resident at the apartment complex where he was accused of criminal surveillance. J.F.C. was alleged to have been peering into a ground-floor window of an apartment building. The side of the building where the apartment window was located was next to Jackson Street, which connects to Main Street, a main thoroughfare. The security officer testified that people walk between the buildings to reach Jackson Street.

As a resident of the apartment complex, J.F.C. had a right to access the common areas of property. The City presented no testimony or other evidence indicating that J.F.C. had been directed to remain off the property. Because J.F.C. was legally on the property, he was not trespassing. Furthermore, J.F.C. was not in a “private place,” as that term is defined in the statute. Section 13A-ll-30(2), Ala.Code 1975, defines a prívate place as, “A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but such term does not include a place to which the public or a substantial group of the public has access.” (Emphasis added.) The area outside the apartment was a common area; logic and the relevant law dictate that a common area to which members of the public have access cannot also be considered a private area.

Because the City did not, in fact, establish the elements of attempted criminal surveillance, I dissent from that portion of the majority’s opinion holding that it did. While I agree with the practical impact of the majority’s decision, and while I agree that the statutes as they are written and as I believe they must be construed seem to afford residents of apartments or similar dwellings less protection under the law than the owners of private residences, the problem is one for the Legislature to address. The Legislature has specifically defined a “private place” to exclude places to which the public or a substantial group of the public has access. Moreover, J.F.C. was a resident of the apartment complex and had access to the common areas. The conduct presented in this case does not violate any criminal statute. Modification of the law is necessary, as the facts in this case demonstrate. But that is a matter for the Legislature, not this Court, to address.

Finally, I am compelled to state that I believe that the precedent established in this case is a dangerous one. J.F.C. was charged with criminal surveillance. Although J.F.C. successfully appealed his adjudication on that charge and the Alabama Supreme Court determined that the evidence was insufficient to support the conviction, the Supreme Court nonetheless directed this Court to determine whether the elements of attempted criminal surveillance had been established. While I am aware of Ex parte Edwards, 452 So.2d 508 (Ala.1984), and its progeny, I believe that their application in this case is inappropriate. The Supreme Court,' in Edwards, held that, even though the defendant’s conviction for capital murder was reversed on grounds of insufficient evidence, the cause could be remanded for entry of judgment on the lesser-included offense of manslaughter, noting that the jury had been instructed on the lesser-included offense. Id. at 509-10. Justices Jones, Almon, Shores, and Adams dissented in Edwards. The dissenting Justices noted that, while the majority’s resolution of the case might promote judicial economy, it was legally incorrect, because it ordered the trial judge to enter a judgment of conviction without affording the defendant a trial on that charge, and without the fact-finder rendering a guilty verdict.

Like the dissenting Justices in Edwards, I am deeply troubled by any procedure that leads to a judgment of conviction in the complete absence of a trial on, and defense against, the charge for which the defendant is ultimately convicted. Such a procedure is completely at odds with the constitutional provisions that guarantee a fair trial and a right of defense. Not only is this a dangerous precedent because it eviscerates the defendant’s rights, I believe it is a precedent that cannot withstand further legal scrutiny. This procedure utterly fails to comport with longstanding constitutional principles, and I believe that it will not stand. Therefore, I urge the Alabama Supreme Court to reconsider the principle announced in Ex parte Edwards.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge.

license: Public Domain

text:
    D.A.R. v. STATE.
    CR-00-0740.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.
    Rehearing Denied Oct. 19, 2001.
    Certiorari Denied March 22, 2002 Alabama Supreme Court 1010252.
    Donald L. Colee, Jr., Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On November 2, 1992, the appellant, D.A.R., was charged in a delinquency petition with assault in the first degree. The petition alleged that the appellant had violated § 13A-6-20, Ala.Code 1975, by driving 66 miles per hour in a 35 mile-per-hour zone, striking and causing serious physical injury to the victim. On February 18, 1993, the appellant admitted the allegations, and the juvenile court adjudged him delinquent. The court suspended the appellant’s commitment to the Department of Youth Services and placed him on probation until February 19, 1995. The court also ordered him to perform 500 hours of community service and suspended his driver’s license until he reached the age of 21. The court’s order stated that the amount of restitution was “[t]o [b]e [l]eft [ojpen.” On April 20, 1995, the juvenile court entered an “Amended Order,” which reiterated the terms of the 1993 order, including the provision that the amount of restitution was to be left open. On January 6, 2000, the victim requested a restitution hearing, and the court granted the request. The appellant then moved to quash the hearing, arguing that the juvenile court lost jurisdiction over him when he became 21 years old. The court heard the parties’ arguments concerning jurisdiction and then conducted a restitution hearing. In a written order, the court found that it retained jurisdiction for the purpose of determining the amount of restitution and enforcing compliance with any order entered. The court ordered the appellant to pay restitution of $50 per month for 120 months — a total of $6,000 in restitution. The appellant’s objection to the restitution order and motion for new trial were denied. Section 12-15-32, Ala.Code 1975, provides, in pertinent part:

“(a) For the purposes of this chapter, jurisdiction obtained by the juvenile court in any case of a child shall be retained by it until the child becomes 21 years of age unless terminated prior thereto by order of the judge of the juvenile court except that the juvenile court shall retain jurisdiction until the child complies with any order of the juvenile court requiring the payment of fines, costs, restitution, or other court ordered monies.
“(b) If a person already under the jurisdiction of the juvenile court is convicted or adjudicated a youthful offender in a criminal court of a crime committed after the age of 18, the conviction or adjudication shall terminate the jurisdiction of the juvenile court except that the juvenile court shall retain jurisdiction until the child complies with any order of the juvenile court requiring the payment of fines, costs, restitution, or other court ordered monies.”

(Emphasis added.)

The provisions permitting the court to retain jurisdiction for the payment of court-ordered monies were added by an amendment that became effective on August 1, 1997. This court stated the following with regard to the jurisdiction of the juvenile court prior to the amendment:

“[I]t should be noted that a juvenile court that has adjudicated a juvenile delinquent retains continuing jurisdiction over the juvenile’s case. This jurisdiction does not terminate until the juvenile reaches the age of 21, the juvenile court terminates its jurisdiction by court order, or the juvenile is convicted in criminal court of a crime committed after the juvenile turns 18.”

D.J.W. v. State, 705 So.2d 521, 528 (Ala.Crim.App.1996).

The State argues that, because the appellant’s case was pending when the Legislature passed the amendment to § 12-15-32, the amendment applies in the present case. However, the appellant turned 21 years old on April 30, 1996, approximately 15 months before the effective date of the amendment.

“When the jurisdiction of the juvenile court terminates, for whatever reason, this jurisdiction is completely terminated. M.C. v. State, 600 So.2d 387, (Ala.Crim.App.1991). In a juvenile case where the court orders restitution, the provisions and conditions of the restitution order terminate at the moment the juvenile court no longer retains jurisdiction over the matter.”

705 So.2d at 528. Because the jurisdiction of the juvenile court had completely terminated on April 30, 1996, the court had no authority to enter its order of restitution on November 14, 2000.

The State also argues that the appellant waived his right to challenge the § 12-15-32 “statute of limitation” by agreeing to leave the amount of restitution open. Section 12-15-32 is not a statute of limitation; it addresses jurisdiction rather than a limitation on prosecution. Furthermore, a statute of limitation should be waived in a writing that is included in the record, or the record should reveal an express oral waiver made in open court. Hall v. State, 497 So.2d 1145, 1149 (Ala.Crim.App.1986). No evidence of an effective waiver appears in the record on appeal.

While this court takes no pleasure in seeing the appellant avoid payment of restitution, we nevertheless must conclude that the juvenile court lost its authority to order restitution on April 30, 1996. The court’s order of November 14, 2000, therefore must be set aside. This cause is hereby remanded to the juvenile court for further proceedings consistent with this opinion.

RESTITUTION ORDER SET ASIDE; REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . See § 12-15-32, Ala.Code 1975, “Retention and termination of jurisdiction generally.”


author: PER CURIAM. COBB, Judge SHAW, Judge PER CURIAM.

text:
    John A. SPOONEY v. STATE of Alabama.
    CR-00-1493.
    Court of Criminal Appeals of Alabama.
    Dec. 21, 2001.
    Opinion on Return to Remand May 31, 2002.

      Johannes T. Rech II, Montgomery, for appellant.
    John A. Spooney, pro se.
    William H. Pryor, Jr., atty. gen., and Melissa K. Atwood, asst. atty. gen., for appellee.
   PER CURIAM.

On March 27, 2001, John A. Spooney pleaded guilty to the unlawful distribution of a controlled substance (marijuana) and to the failure to affix tax stamps, violations of §§ 13A-12-211 and 40-17A-9, Ala.Code 1975, respectively. On April 17, 2001, the trial court sentenced Spooney, as a habitual offender, to 15 years’ imprisonment on the distribution charge and enhanced the sentence pursuant to § 13A-12-250, Ala. Code 1975, for a total of 20 years. The trial court also ordered that he serve 20 years’ imprisonment on the tax-stamp count. The sentences were to run concurrently. On May 17, 2001, Spooney filed a pro se “Motion in Arrest of Judgment and New Trial,” which the trial court summarily denied on May 25, 2001. This appeal followed.

On August 24, 2001, appellate counsel filed a brief and a motion to withdraw in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In his brief, counsel stated that, after a thorough review of the record, he maintained that it would be more appropriate to file a brief in accordance with Anders, rather than to present an appeal without merit. On September 10, 2001, Spooney filed his pro se claims, challenging the sufficiency of the unlawful distribution indictment and the enhancement of his sentence pursuant to § 13A-12-250. On October 5, 2001, Spooney’s counsel filed a supplemental brief, wherein he argued the merits of one of Spooney’s pro se claims.

Spooney’s claim challenging the sufficiency of the unlawful distribution indictment is nonspecific. Moreover, we have reviewed both indictments in this case, and they are sufficient.

As for Spooney’s argument regarding the enhancement of his sentence, he contends that the State failed to prove by a preponderance of the evidence that the drug sale occurred within three miles of a school. Initially, we point out that the standard of proof on this issue is beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). More importantly, Spooney stipulated that the drug sale occurred within three miles of Dozier Elementary School. (R. 17.) Therefore, his argument is without merit.

We must, however, remand this cause to the trial court for resentencing. At the sentencing hearing, Spooney stipulated to having three prior felony convictions. The trial court then sentenced Spooney to 15 years for the conviction for the unlawful distribution of a controlled substance and enhanced that sentence by 5 years pursuant to § 13A-12-250, so that he was sentenced to a total of 20 years in prison. This is incorrect. The base sentence was only 15 years. The unlawful distribution of a controlled substance is a Class B felony. See § 13A-12-211(b), Ala. Code 1975. According to the Habitual Felony Offender Act, the sentence for a Class B felony with three prior felony convictions is “for life or any term not less than 20 years.”

We therefore remand this cause for the trial court to resentence Spooney to a minimum sentence of 20 years’ imprisonment (before any enhancements) on his distribution conviction. The trial court is also to assess the mandatory Drag Demand Reduction Assessment fine pursuant to § 13A-12-211, Ala.Code 1975, according to the number of prior drug offenses Spooney has, and to assess the Alabama Forensic Sciences Trust Fund fíne pursuant to § 36-18-7(a), Ala.Code 1975. Additionally, the trial court is to indicate on the record that Spooney’s driving privileges should be suspended by the Department of Public Safety, as provided by § 13A-12-290, Ala.Code 1975. Finally, the trial court is to clarify its entry on the case action sheet that Spooney’s sentence was enhanced pursuant to the housing zone enhancement; the record indicates that his sentence was actually enhanced pursuant to the school zone enhancement. Due return shall be made to this Court within 35 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB and WISE, JJ„ concur. COBB and SHAW, JJ., concur in part and dissent in part, with opinions.

COBB, Judge

(concurring in part and dissenting in part).

I concur in affirming the appellant’s conviction; however, I would reverse his sentence and remand the case for resen-tencing in accordance with Judge Shaw’s special writing in Poole v. State, 846 So.2d 370, 389 (Ala.Crim.App.2001), with which I concurred as to this issue. As to those points on which I disagree with Judge Shaw, see my special writing in Poole, 846 So.2d at 398.

I believe that these sentence enhancements must be charged in the indictment and proved to the jury beyond a reasonable doubt, and that the failure to charge these sentence enhancements in the indictment is a jurisdictional defect which this Court should notice and remedy on appeal. Therefore, as to the sentencing issue, I dissent.

SHAW, Judge

(concurring in part and dissenting in part).

I concur to affirm John A. Spooney’s conviction for the unlawful distribution of a controlled substance and I concur with the majority opinion that Spooney’s 15-year base sentence was improper and that this case must be remanded for the trial court to resentence Spooney to a sentence of not less than 20 years’ imprisonment, pursuant to the Habitual Felony Offender Act. However, because neither the enhancement provision of § 13A-12-250, Ala.Code 1975, nor the enhancement provision of § 13A-12-270, Ala.Code 1975, was charged in Spooney’s indictment, I also believe that Spooney’s original sentence was improperly enhanced and that on resentencing no enhancement provision should be applied. See my special writing in Poole v. State, 846 So.2d 370, 389 (Ala.Crim.App.2001) (Shaw, J., concurring in the result). Because the majority opinion, by specifically requiring the trial court to increase Spoo-ney’s base sentence, to impose certain fines, to note on the record that Spooney’s driving privileges should be suspended, and to clarify whether the enhancement provision of § 13A-12-250 or § 13A-12-270 was applied to his sentence, appears to leave intact the five-year enhancement, whether it be under § 13A-12-250 or § 13A-12-270, I must respectfully dissent as to the sentencing issue.

On Return to Remand

PER CURIAM.

On December 21, 2001, this Court remanded this cause for the trial court to resentence John A. Spooney in accordance with the Habitual Felony Offender Act and to impose certain mandatory fines. We also asked the trial court to clarify the case-action sheet to indicate whether the public-housing enhancement or the school-zone enhancement had been used to enhance Spooney’s sentence. See §§ 13A-12-250 and -270, Ala.Code 1975.

On remand, the trial court imposed the mandatory fines and clarified the case-action sheet, finding that Spooney had distributed a controlled substance within 1.2 miles of an elementary school, rather than a public-housing project. However, the trial court has not attached a copy of the corrected case-action sheet.

More troubling to this Court is the fact that, although the trial court sentenced Spooney to 20 years in prison, the minimum sentence mandated by the Habitual Felony Offender Act for a defendant convicted of a Class B felony, with three prior convictions, see § 13A-5-9(c)(2), Ala.Code 1975, the court merely “t[ook] into consideration that the school enhancement applies.” The trial court apparently did not. want to enhance Spooney’s 20-year sentence by an additional 5 years, as mandated by § 13A-12-250.

The circuit court acknowledged that Spooney had distributed a controlled substance within three miles of a public school. Therefore, application of the sentencing enhancement in § 13A-12-250 is mandatory. Bryant v. State, 638 So.2d 1389 (Ala.Crim.App.1993).

We remand this cause a second time in order for the circuit court to enhance Spooney’s 20-year sentence by 5 additional years, resulting in a total sentence of 25 years in prison. Because the application of this enhancement is mandatory, Spoo-ney’s presence at the hearing is not required. The circuit court is also directed to provide a corrected case-action sheet reflecting that Spooney’s sentence enhancement is pursuant to § 13A-12-250, rather than § 13A-12-270. Due return shall be made to this Court within 14 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB and WISE, JJ„ concur. COBB and SHAW, JJ., dissent on the basis of improper application of sentence enhancements.


author: COBB, Judge.

text:
    Homer BALLARD v. STATE.
    CR-00-1629.
    Court of Criminal Appeals of Alabama.
    Dec. 21, 2001.

      Leonard F. Mikul, Bay Minette, for appellant.
    William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appel-lee.
   COBB, Judge.

On March 6, 2001, Homer Ballard was convicted of one felony count of driving under the influence of alcohol (“DUI”), a violation of § 32-5A-191(a) and -191(h), Ala.Code 1975. On May 7, 2001, Ballard was sentenced to 10 years’ imprisonment, and was ordered to pay a fine of $4,100, $50 to the Alabama Crime Victims Fund, and court costs. This appeal followed.

On October 3, 2000, Ballard was arrested and charged with driving under the influence of alcohol. In November 2000, the Baldwin County grand jury indicted Ballard for: (1) felony DUI, in violation of § 32-5A-191(a) and -191(h), Ala.Code 1975, in that he was driving under the influence and had three or more prior DUI convictions; (2) DUI, in violation of § 32-5A-191(a), Ala.Code 1975; (3) reckless driving, in violation of § 32-5A-190, Ala. Code 1975; and (4) driving while his license was revoked or suspended, in violation of § 32-6-19. During a pretrial proceeding, Ballard contested the existence his prior DUI convictions. The trial court found that three or more prior DUI convictions existed, and that the pending DUI charge was therefore a felony.

The jury found Ballard guilty of count I of the indictment, and the trial court adjudged Ballard guilty of felony DUI. At the sentencing hearing, Ballard objected to the introduction of three of the four prior DUI convictions the State presented. Ballard contended that the three were not properly certified, because they were certified by the Department of Public Safety, instead of by the court clerk. The trial court overruled Ballard’s objection, and sentenced him, in accordance with § 32-5A-191(h), as having three or more prior DUI’s, to serve 10 years’ imprisonment and to pay the above-mentioned fines.

On appeal, Ballard argues that the trial court erred in admitting into evidence copies of prior DUI convictions that were certified by the Department of Public Safety, and not the clerk of the court of original jurisdiction. The State contends that proof of the prior convictions was properly submitted. The admission of copies of computer printouts has been held admissible to prove charges of driving with a suspended license. e.g., Farmer v. Town of Daphne, 782 So.2d 808 (Ala.Crim.App.2000). See also Snavely v. City of Huntsville, 785 So.2d 1162 (Ala.Crim.App.2000). However, the issue whether copies of court records, certified by the director of the Department of Public Safety, are admissible to prove prior DUI convictions has yet to be addressed by any published Alabama cases.

Under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, “[rjeeords showing prior convictions are properly admitted if they are certified by the clerk or deputy clerk of the court in which those convictions were obtained.” Ex parte Hagood, 777 So.2d 214, 216 (Ala.1999). However, as specifically stated in § 32-5A-191(h), DUI convictions do not fall under the auspices of the HFOA. See Adamson v. State, 779 So.2d 1286 (Ala.Crim.App.2000).

The State, in its brief, citing Snavely, argues that, “[a] certified copy of a public record is one that is signed and certified as a true copy by the officer having lawful custody of the original.” (State’s brief, p. 11.) In Snavely, the document presented to the court was a certified copy of that defendant’s driving history. This Court stated, “The most common method of proving a driving offense is through the admission of a certified copy of the defendant’s driving history as maintained by the State Department of Public Safety.” Snavely, 785 So.2d at 1168.

In an unpublished memorandum, Hicks v. State, (No. CR-00-1144) 837 So.2d 890 (Ala.Crim.App.2001) (table), this Court addressed this issue:

“Section 32-5A-195(h), Ala.Code 1975, provides, in pertinent part: ‘Every court having jurisdiction over offenses committed under this article or any other law of this state ... regulating the operation of motor vehicles on highways, shall forward to the Director of Public Safety within 10 days a record of the conviction of any person in said court for a violation of any said laws.’ The ticket and record of conviction in the hand of DPS is a public record. See § 32-6-14, Ala. Code 1975; Ex parte Wright, 586 So.2d 901, 903 (Ala.1991); cf. Snavely v. City of Huntsville, 785 So.2d 1162, 1168 (Ala.Crim.App.2000); Farmer v. Town of Daphne, 782 So.2d 808, 809 (Ala.Crim.App.2000). Rule 902(4) of the Alabama Rules of Evidence provides that ‘[ejxtrinsic evidence of authenticity ás a condition precedent to admissibility is not required with respect to ... (4) ... [a] copy of an official record ... or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office.’

(Emphasis added in Hicks.)

The Alabama Supreme Court, in Ex parte Wright, 586 So.2d 901, 903 (Ala.1991), held that § 32-5A-195(h), Ala.Code 1975, provides that the Department of Public Safety is to maintain a record of convictions for moving violations or driving violations. The Court held that the Department of Public Safety could not maintain a record of a conviction for a pedestrian under the influence or a DUI charge. Id. Therefore, as a public record, copies of court records maintained in the Department of Public Safety’s files would be admissible in court to prove a prior DUI under § 32-5A-195, Ala.Code 1975.

Evidence of one prior DUI, CC-85-5118, was certified by the court clerk and admitted into evidence, without objection. The State provided copies of court records, certified by Roscoe Howell, Major, Driver’s License Division of the Alabama Department of Public Safety, to prove Ballard’s remaining DUI convictions. The documents provided by the Department of Public Safety, as public records, were properly admitted.

Additionally, this Court notes that § 32-5A-191(h), Ala.Code 1975, requires the Director of Public Safety to suspend or revoke Ballard’s driving privilege or driver’s license. The record does not indicate that the trial court seized Ballard’s driver’s license to forward to the Department of Public Safety to enforce this suspension. The trial court is directed to note for the record that Ballard’s driving privileges should be suspended by the Director of the Department of Public Safety as provided in § 32-5A-191(h), Ala.Code 1975. See Harris v. State, 826 So.2d 897 (Ala.Crim.App.2000). A return to remand shall be filed with this Court within 21 days of the date of this opinion.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

McMILLAN, PH., and BASCHAB, SHAW, and WISE, JJ., concur.

      . The documents from the Department of Public Safety which the State relied upon to prove Ballard's prior convictions contained the following certification: "I hereby certify that this is a true and correct copy of the records of the Drivers License Division of the Alabama Department of Public Safety, Roscoe Howell, Major, Drivers License Division.” On appeal, Ballard contends that these documents were improper because the certification did not indicate that Howell was authorized to certify the documents, or that he was the custodian of the originals. Ballard failed to raise this issue before the trial court, and, thus, did not preserve this issue for our review. See Owens v. State, 825 So.2d 861, 863 (Ala.Crim.App.2001). Therefore, we will examine the documents without considering the questions of whether Howell was authorized to certify the documents or whether Howell was the custodian of the originals.


author: LYONS, Justice. JOHNSTONE, Justice HARWOOD, Justice

text:
    Ex parte Homer BALLARD. (In re Homer Ballard v. State of Alabama).
    1011866.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Leonard F. Mikul, Bay Minette, for petitioner.
    Submitted on petitioner’s brief only.

       Justice Stuart was the circuit court judge in Baldwin County to whom this case was assigned during the initial proceedings in the case.

   LYONS, Justice.

WRIT DENIED. NO OPINION.

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

JOHNSTONE and HARWOOD, JJ., dissent.

STUART, J., recuses herself.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the denial of Ballard’s petition for a writ of certiorari. The issue is whether Department of Public Safety (“DPS”) records, certified only by an officer of that department, are admissible as evidence of prior convictions in a felony DUI trial.

They should not be. They are not records of convictions. Instead, they are only records of reports of convictions. The records of the convictions themselves are the court records. These DPS records are not within the ambit of the hearsay exception provided by Rule 803(8), Ala.R.Evid., for no one at DPS has “observed” these convictions: the DPS personnel have, at best, only received reports of the convictions. These DPS records of reports of convictions are too unreliable to be allowed as evidence in a criminal trial.

HARWOOD, Justice

(dissenting).

I dissent. I would grant the petition, but only as to the specific ground of “first impression” asserted by the petitioner, as framed in his brief by the following “Statement of the Issues”:

‘Whether the DUI convictions, certified as Public Records of the Alabama Department of Public Safety, were properly admitted to be used as enhancement for sentencing on a Felony DUI, when such records were not certified by the lower court that entered the judgment of conviction.”

All other aspects of the admissibility of the records in question, as, for example, authentication and sufficiency of the content of the records, would not be an issue for review by this Court.


text:
    Mack Arther ADAMS, Jr. v. STATE.
    CR-00-2353.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Donald Duane Doerr, Jr., Bay Minette, for appellant.

      William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, Mack Arther Adams, Jr., appeals from the Baldwin Circuit Court’s revocation of his probation. He argues that the trial court failed to comply with the minimum due process standards set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). He contends (1) that the trial court did not provide him notice of the alleged violations of the terms of his probation; (2) that the trial court did not hold a revocation hearing; and (3) that the order of revocation did not contain a written statement of the evidence relied on and the reasons for the revocation. The State has requested that we remand this matter to the trial court for that court to amend its revocation order and to determine whether the appellant timely raised his claim of lack of notice.

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

In the instant case, the record on appeal contains only an order of commitment to jail, which states that the appellant’s probation was revoked. There is no revocation order in the record. Further, the record does not contain a transcript of a revocation hearing, and it is not clear whether a hearing was, in fact, held. This matter is therefore remanded to the Baldwin Circuit Court for that court to issue a sufficient order of revocation. The trial court should also either make findings as to whether a revocation hearing was held and whether the issue of notice was preserved for appellate review or conduct further proceedings to determine the validity of the appellant’s claims. Due return shall be made to this Court within 60 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, SHAW, and WISE, JJ„ concur.

BASCHAB, J., concurs in the result.


text:
    Donna FOWLER v. STATE.
    CR-01-0546.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.

      Roger Dale Centers, Albertville; and Mark Timothy Hopper, Albertville, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Donna Fowler, appeals her conviction for unlawful distribution of a controlled substance. She was sentenced, as an habitual offender with one prior felony conviction, to 10 years’ imprisonment. The trial court suspended Fowler’s sentence, ordering her to serve 18 months in the custody of the Department of Corrections, after which she is to be placed on supervised probation for a period of four years.

On January 25, 2002, Fowler’s appointed counsel on appeal filed a “no-merit” brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On March 7, 2002, appellate counsel filed a supplemental brief, stating that Fowler had requested that he argue two issues on appeal: (1) the fact that a partially incorrect presentence report was presented to the judge, and (2) Fowler’s record since being released from jail on this charge. His brief addresses only Fowler’s claim regarding the presen-tence report.

Fowler contends that because she was not provided a copy of the presentence report until the day of her sentencing hearing, she did not have adequate time to review the report and was thereby deprived of her due-process rights. The record indicates that Fowler did not object to the introduction of the presentence report at her sentencing hearing. Therefore, this claim has not been preserved for appellate review. Weaver v. State, 682 So.2d 488 (Ala.Crim.App.1996).

However, the State has requested this Court to remand this matter for clarification regarding the fíne imposed under the Demand Reduction Act, § 13A-12-281(a), Ala.Code 1975. The act requires that a $2,000 fine be imposed. Although the sentencing order states the correct amount of this fine, the transcript of Fowler’s sentencing hearing indicates that the trial court imposed a fine of $10,000. Moreover, the trial court neglected to impose the $100 fine for the Alabama Forensic Sciences Trust Fund. See § 36-18-7(a), Ala.Code 1975.

This cause is therefore remanded to the Marshall Circuit Court for that court to clarify its order regarding the fíne imposed under § 13A-12-281(a), Ala.Code 1975, and to impose the penalty mandated by § 36-18-7(a), Ala.Code 1975. Due return shall be made to this Court within 60 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: PER CURIAM. SHAW, Judge, COBB, Judge,

text:
    Bernard FOSTER v. STATE of Alabama.
    CR-01-0744.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Bernard Foster, pro se.
    William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   PER CURIAM.

Bernard Foster appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his April 17, 2000, guilty-plea conviction for unlawful distribution of a controlled substance. He was sentenced, on May 23, 2000, as a habitual offender with one prior felony conviction, to 15 years’ imprisonment, enhanced by an additional 5 years’ imprisonment pursuant to § 13A-12-250, Ala.Code 1975, and an additional 5 years’ imprisonment pursuant to § 13A-12-270, Ala.Code 1975. The 15-year base sentence was suspended, and Foster was placed on 2 years’ probation. He did not appeal.

Foster filed the present petition on July 17, 2001. In his petition, Foster alleged (1) that, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the trial court lacked jurisdiction to enhance his sentence pursuant to §§ 13A-12-250 and 13A-12-270 because, he said, the enhancements had not been charged in the indictment, and (2) that his guilty plea was involuntary because, he said, the trial court and the prosecutor promised him that he would earn good time while serving the 10-year enhanced portion of his sentence. After receiving a response from the State, the circuit court summarily denied Foster’s petition on October 31, 2001.

The circuit court properly denied Foster’s first claim, as set out above, because it lacks merit. This Court has held that Apprendi does not require that the enhancement provisions in §§ 13A-12-250 and 13A-12-270 be charged in the indictment. See Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001). This Court has also held that Apprendi does not apply retroactively to cases on collateral review. See Sanders v. State, 815 So.2d 590 (Ala.Crim.App.), cert. denied, 534 U.S. 956, 122 S.Ct. 358, 151 L.Ed.2d 271 (2001). Therefore, the circuit court properly denied this claim.

The second claim, as set out above, was also properly denied because it is refuted by the transcript of the guilty-plea colloquy and sentencing hearing, which the State attached to its motion to dismiss Foster’s petition. Although Foster argues that the trial court and the prosecutor promised that he would earn good time while he was serving the 10-year enhanced portion of his sentence, which § 14-9-41, Ala.Code 1975, prohibits, see State v. Corley, 831 So.2d 59 (Ala.Crim.App.2001), and that the promise that he would earn good time induced him to plead guilty, the transcript reflects that neither the State nor the trial court promised Foster anything. Although there was a discussion regarding the possibility of Foster earning good time (it is clear from that discussion that both the prosecutor and the trial court mistakenly believed that Foster would be eligible to earn good time), that discussion did not include any promises, and it did not take place until the sentencing hearing, which was held over a month after Foster had pleaded guilty. The transcript reflects that good time was never mentioned before or during the guilty-plea colloquy. Clearly, Foster’s guilty plea could not have been improperly induced by a discussion that occurred over a month after he had already pleaded guilty. Therefore, Foster’s claim that his guilty plea was involuntary because he was promised good time is meritless; the circuit court properly denied it.

Although we find that summary denial of Foster’s Rule 32 claims was proper, we also find that Foster’s sentence was illegal. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999). As noted above, Foster was sentenced to 15 years’ imprisonment, enhanced by an additional 5 years’ imprisonment pursuant to § 13A-12-250, and an additional 5 years’ imprisonment pursuant to 13A-12-270. The trial court suspended the 15-year base sentence and ordered Foster to serve the 10-year enhanced portion of his sentence. However, the trial court did not have jurisdiction to split Foster’s sentence pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975. “This Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.” Corley, 831 So.2d at 61. Foster’s sentence was a single sentence of 25 years’ imprisonment and, thus, could not be split pursuant to § 15-18-8. See Kirkland v. State, [Ms. CR-00-2494, February 1, 2002] — So.2d - (Ala.Crim.App.2002). Therefore, we must remand this case to the circuit court for it to conduct another sentencing hearing and to resentence Foster.

Based on the foregoing, the circuit court did not err in summarily denying Foster’s Rule 32 claims; however, this case is remanded to the circuit court for resentenc-ing. Due return should be filed with this Court no later than 42 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, PH., and BASCHAB and WISE, JJ., concur. SHAW, J., concurs in part and dissents in part, with opinion. COBB, J., dissents, with opinion.

SHAW, Judge,

concurring in part and dissenting in part.

I agree that the circuit court properly denied Bernard Foster’s claim in his Rule 32 petition that his guilty plea was involuntary. I also agree with the general proposition that a trial court lacks jurisdiction, under § 15-18-8, Ala.Code 1975, to split a sentence exceeding 20 years. However, I would not reach that issue because Foster’s conviction and sentence were not final at the time Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was decided and, therefore, I would reverse Foster’s sentence and remand the case for resentencing without application of the sentence enhancements in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, in accordance with my special writing in Poole v. State, 846 So.2d 370, 389 (Ala.Crim.App.2001) (Shaw, J., concurring in the result).

COBB, Judge,

dissenting.

Foster’s sentence was enhanced pursuant to §§ 13A-12-250 and -270, Ala.Code 1975. Because I believe that the circuit court did not properly adhere to the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and because I believe that those requirements are jurisdictional, I would reverse Foster’s sentence and remand this cause for the circuit court to resentence Foster without applying those enhancements. See Poole v. State, 846 So.2d 370, 398 (Ala.Crim.App.2001) (Cobb, J., dissenting). Therefore, because I believe the circuit court should have granted the relief requested in the petition as to this issue, I respectfully dissent,

      . Section 2 of Act No. 2000-759, Ala. Acts 2000, effective May 25, 2000, amended § 15-18-8 to increase the maximum sentence subject to being split from 15 years to 20 years. Section 3 of the Act provides, in part, that the provisions in Section 2 "shall be applied prospectively only and shall apply only to any case in which the sentence is not final at the trial court on the effective date of this act.” Although Foster was sentenced on May 23, 2000, two days before the effective date of the Act, his sentence was not final until 30 days after it was imposed. See, e.g., State v. Williams, 819 So.2d 79 (Ala.Crim.App.2000). Therefore, the amended version of § 15-18-8 applies in Foster’s case.


author: PER CURIAM. HARDING, Senior Justice,

text:
    Daniel O. CONAHAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC00-170.
    Supreme Court of Florida.
    Jan. 16, 2003.
    Rehearing Denied April 24, 2003.

      James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
    Charlie J. Crist, Jr., Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

This is an appeal from convictions for first-degree murder and kidnapping. The appellant was sentenced to death for the first-degree murder conviction and sentenced to fifteen years’ imprisonment for the kidnapping conviction. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm both convictions and sentences.

FACTS

On April 16, 1996, Richard Montgomery, who lived with his sister, was with Bobby Whitaker, Gary Mason, and other friends when he mentioned that he was going out to make a few hundred dollars and would be back shortly. When asked whether it was legal, he smiled. Montgomery also told his mother that someone had offered to pay him $200 to pose for nude pictures, but he did not tell her who made the offer. In the same conversation, Montgomery mentioned that he had recently met the defendant Daniel 0. Conahan, Jr., who lived in Punta Gorda Isles and was a nurse at a medical center. The last time friends saw Montgomery alive was on April 16 between 4 p.m. and 7 p.m.

The next day, April 17, Thomas Reese and Michael Tish, who were storm utility engineers for Charlotte County, discovered a human skull in a remote, heavily wooded area off of Highway 41 and immediately notified the police department. While searching the scene, deputies found the nude body of a young, white male that was later identified as Richard Montgomery. He had visible signs of trauma to the neck, waist, and wrists, and the genitalia had been removed. The forensic lab personnel arrived and collected various items from the scene, including a rope found on the top of a nearby trash pile, carpet padding that covered the victim’s body, a skull and a torso (neither of which belonged to the victim), a gray coat, and various combings from the victim’s arms, hands, chest, pubic area, and thighs. On the following day, Deputy Todd Terrell arrived on the scene with a K-9 dog which showed significant interest in a sabal palm tree, specifically the side of the tree which was somewhat flattened and damaged.

An autopsy revealed that Montgomery died as a result of strangulation. He had two ligature marks on the front of his neck, two horizontal marks on the right side of his chest, and abraded grooves around his wrists. All of the grooves were of similar width, did not extend to Montgomery’s back, and were consistent with marks that would be left on an individual who had been tied to a tree.

Due to the unique nature of the homicide (being tied to a tree naked and then strangled), police reviewed a similar assault reported on August 15, 1994. The victim, Stanley Burden, was a high school drop-out who, like Montgomery, had difficulty keeping a steady job and had physical features similar to those of Montgomery. The report indicated that Burden met Conahan, who offered to pay him $100 to $150 to pose for nude photographs. Burden agreed and Conahan drove him to a rocky dirt road in a secluded area where Conahan pulled out a duffle bag with a tarp and a Polaroid camera. The two men headed into the woods where Conahan laid the tarp out and asked Burden to take off his shirt and show a little hip. After taking numerous pictures of Burden, Conahan then took out a new package of clothesline so he could get some bondage pictures. He asked Burden to step close to a nearby tree and then clipped the clothesline in several pieces, draping them over Burden to make it look like bondage. Conahan moved behind Burden, snapped the rope tightly around him, pulled his hands behind the tree, placed ropes around his legs and chest, and wrapped the rope twice around Burden’s neck. Conahan then performed oral sex on Burden and attempted to sodomize him. Burden fought to position himself in the middle of the tree while Conahan tried to pull him to the side to have anal sex. After many unsuccessful attempts, Conahan snapped the rope around Burden’s neck, placed his foot against the tree, and pulled on the rope in an attempt to strangle Burden, who tried to slide around the tree to keep his windpipe open. Conahan hit Burden in the head and unsuccessfully attempted to strangle him for thirty minutes. Conahan asked Burden why he would not die and finally gave up, gathered his possessions, and left. Burden freed himself, went to a local hospital, and received treatment for his injuries. The police located the crime scene and found that one of the melaleuca trees had ligature indentions that corresponded with Burden’s injuries.

Based on this information, the police began an undercover investigation of Co-nahan. On May 24, 1996, Deputy Scott Clemens was approached by Conahan at Kiwanis Park, and Conahan offered Clemens $7 to show his penis or $20 if Clemens would allow Conahan to perform fellatio. Clemens refused the offer and the next day returned to the park where he again encountered Conahan, who offered him $150 to pose for nude photos.

On May 31, 1996, pursuant to a warrant, the police searched Conahan’s residence and vehicles and obtained paint samples from his father’s Mercury Capri, which Conahan occasionally used. The police then compared paint samples from the Capri with a paint chip from the victim’s body and found that they were indistinguishable.

On February 25, 1997, Conahan was indicted for first-degree premeditated murder, first-degree felony murder, kidnapping, and sexual battery of Richard Montgomery. In the guilt phase of his trial, Conahan waived his right to trial by jury. The State presented evidence of the manner in which the victim’s body was found and evidence obtained from the autopsy and the searches of Cona-han’s residence and vehicles. The State also presented evidence that on the day of Montgomery’s disappearance, April 16, 1996, at 6:07 p.m., Conahan’s credit card was used to purchase clothesline, Polaroid film, pliers, and a utility knife from a Wal-Mart store in Punta Gorda. Still photos showed that minutes later, at 6:12 p.m., Conahan withdrew funds from an ATM which was located close to the Wal-Mart.

The trial court permitted the State to introduce Williams rule evidence of Burden’s attempted murder and sexual battery, ruling that the evidence was sufficiently similar to the evidence leading up to Montgomery’s death so as to constitute a unique modus operandi sufficient to establish the identity of Montgomery’s murderer. After the guilt phase of the trial was completed, the trial court found and adjudicated Conahan guilty of first-degree premeditated murder and kidnapping.

On November 1, 1999, the penalty phase of Conahan’s trial was conducted before a jury at which time photos taken at the crime scene of the victim’s body were published, and Deputy Gandy testified relative to the crime scene and how the body was found. Gandy further testified that during an interview Conahan told him that he had a fantasy involving bondage and sex.

The medical examiner, Dr. Carol Huser, testified regarding the autopsy report prepared by Dr. Imami. After examining Dr. Imami’s report and viewing the autopsy photographs, Dr. Huser concluded that Montgomery died by ligature strangulation. The autopsy photographs were published to the jury. Dr. Huser also testified that being killed in such a manner required applying pressure for a length of time notwithstanding the fact that the victim loses consciousness after only a few seconds. She further opined that to be killed by strangulation would be terrifying.

Conahan’s aunt, Betty Wilson, testified on behalf of the defense that Conahan was a jovial, personable individual who participated in family activities and cared for his ailing mother before she died. Robert Lindy and his daughter Nancy Thomson, the father and sister of Hal Lindy, who was Conahan’s roommate and lover when he lived in Chicago, testified that Conahan was like another son and brother to them. Conahan was instrumental in helping Hal and Nancy overcome alcoholism, was considered one of the family, and was included in many family functions. Thereafter, the defense rested its case.

Before the jury deliberated, the trial court gave instructions relative to the following aggravators: (1) the murder was heinous, atrocious, or cruel (HAC); (2) the murder was cold, calculated, and premeditated (CCP); and (3) the murder was committed during the course of a kidnapping. By a vote of twelve to zero, the jury recommended the death penalty. A Spencer hearing was held on November 5, 1999, and on December 10, 1999, Conahan was sentenced to death for the first-degree murder of Richard Montgomery and to fifteen years’ imprisonment for kidnapping.

APPEAL

A Motion for Judgment of Acquittal

On appeal Conahan raises five issues. In his first two issues, he contends that the trial court erred in denying his motion for judgment of acquittal because the State’s circumstantial evidence was legally insufficient. We disagree.

As a general rule with regard to a motion for judgment of acquittal, “[t]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, [this Court] will not reverse.” State v. Law, 559 So.2d 187, 188 (Fla.1989). In addition,

[t]he court’s view of the evidence must be taken in the light most favorable to the state. The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.

Perry v. State, 801 So.2d 78, 84 (Fla.2001) (citing State v. Law, 559 So.2d 187, 189 (Fla.1989)). “The trial court’s finding denying a motion for judgment of acquittal will not be reversed on appeal if there is competent substantial evidence to support the jury’s verdict.” Id.

1. Premeditation

“Premeditation is defined as ‘more than a mere intent to kill; it is a fully formed conscious purpose to kill.’ ” Green v. State, 715 So.2d 940, 943 (Fla.1998) (quoting Coolen v. State, 696 So.2d 738, 741 (Fla.1997)). This purpose to kill must exist for sufficient time before the homicide “to permit reflection as to the nature of the act to be committed and the probable result of that act.” Id. at 944 (quoting Coolen, 696 So.2d at 741). However, premeditation may also “be formed in a moment and need only exist ‘for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.’ ” DeAngelo v. State, 616 So.2d 440, 441 (Fla.1993) (quoting Asay v. State, 580 So.2d 610, 612 (Fla.1991)). Premeditation can be demonstrated by circumstantial evidence. See Woods v. State, 733 So.2d 980, 985 (Fla.1999). As this Court has stated:

Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.

Green, 715 So.2d at 944 (quoting Holton v. State, 573 So.2d 284, 289 (Fla.1990)); see Gore v. State, 784 So.2d 418, 429 (Fla.2001).

In applying the abovementioned principles, the State presented competent, substantial evidence supporting Conahan’s conviction for first-degree premeditated murder. The official cause of Montgomery’s death was asphyxiation, secondary to ligature strangulation. Dr. Imami testified that there were two ligature marks on the victim’s neck and groove marks around his lower chest area and across his abdomen. Because the groove marks were only across the front and sides of the victim and not on his back, they were consistent with being tied to a tree. Montgomery also suffered extensive crisscross scratches and abrasions on his back which were consistent with an individual squirming or moving while being tied to a tree.

The State’s Williams rule evidence demonstrated that Conahan killed Montgomery in the same manner in which he attempted to kill Stanley Burden. Montgomery and Burden were similar physically; neither one completed high school; both had difficulty in maintaining employment and were in need of money when Conahan solicited them to pose nude for money in a secluded wooded area. Both were tied to a tree and suffered similar abrasions and ligature wounds.

Because the circumstantial evidence standard does not require the fact-finder to believe the defense’s version of the facts on which the State has produced conflicting evidence, the factfinder, in this case the trial judge, properly concluded that Conahan’s hypothesis of innocence was rebutted by competent, substantial evidence. See Woods v. State, 733 So.2d 980, 986 (Fla.1999); Crump v. State, 622 So.2d 963, 971 (Fla.1993). Based upon the manner of Montgomery’s death, his ante-mortem injuries, and the Williams rule evidence relative to the attempted sexual battery and attempted murder of Stanley Burden, the State presented sufficient evidence to prove premeditation. Accordingly, we affirm the trial court’s denial of the motion for judgment of acquittal.

2. Kidnapping

In his second issue, Conahan contends that the trial court erred in denying his motion for judgment of acquittal on the kidnapping charge because the State’s circumstantial evidence was legally insufficient to establish that the victim did not consent to being tied to a tree for the purpose of posing for nude bondage photos. We disagree.

On April 17, 1996, the day after Montgomery’s death, his body was found in a secluded, wooded area. Dr. Imami, the medical examiner who conducted Montgomery’s autopsy, testified during the guilt phase to the following injuries that Montgomery sustained: (1) ligature wounds or well-depressed grooves to the neck which appeared to be caused by some type of rope; (2) ligature wounds to the lower portion of the chest; (3) crisscrossed abrasions on the back which Dr. Imami believed were inflicted after death or at the time of death; and (4) ligature marks on Montgomery’s wrists and lower legs. Dr. Imami opined that the ligature wounds on Montgomery’s neck and chest area occurred before death.

The trial court made the following finding in its sentencing order:

1. The crime was committed while the defendant was engaged in the commission of kidnapping. The indictment in this case charged the defendant with kidnapping the victim as well as the first-degree murder of the victim. As noted above, the Court found the defendant guilty of both offenses. While the victim apparently went willingly with the defendant to the crime scene to participate in something of a nude photographic bondage session, it is ludicrous to conclude that he consented to the lethal form of bondage made apparent by the wounds to his body prior to his death. The pre-mortem wounds to his body reflect a struggle for his life. His wrists and lower body all bore ligature wounds; his back bore criss-cross scratchings produced by his struggle while being tied to a tree or other such rough surface. It is obvious that during his ordeal he was confined or imprisoned against his will. Such confinement against his will was for the obvious purpose of inflicting bodily harm upon the victim or terrorizing him.

We conclude that the State presented competent, substantial evidence to prove a prima facie case of kidnapping. Based upon the victim’s extensive antemortem ligature wounds and abrasions on his back, the victim was confined against his will at some point and apparently struggled for his life. See Sochor v. State, 619 So.2d 285 (Fla.1993); Gore v. State, 599 So.2d 978 (Fla.1992); Bedford v. State, 589 So.2d 245 (Fla.1991); Mines v. State, 390 So.2d 332 (Fla.1980). Furthermore, Burden’s testimony relative to his nearly fatal encounter with the defendant established a common scheme of luring young men into a secluded, wooded area for sexual pleasure and murdering them under the guise of posing for nude bondage pictures. See Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1318 n. 14 (1995) (finding that circumstantial evidence of prior kidnapping established pattern of behavior constituting a common scheme). Accordingly, we affirm the trial court’s denial of Conahan’s motion for judgment of acquittal relative to the kidnapping charge.

B. Jury Instructions

In his third issue, Conahan contends that the trial court erred by instructing the jury on the following two aggravating factors: (1) the murder was cold, calculated, and premeditated (CCP); and (2) the murder was committed during the course of a kidnapping. Again, we disagree.

This Court defined the CCP aggravating factor as follows:

[I]n order to find the CCP aggravating factor under our case law, the jury must determine that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification.

Jackson v. State, 648 So.2d 85, 89 (Fla.1994) (citations omitted). In order to prove the existence of the CCP aggravating factor, the State must demonstrate a heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill. See Bell v. State, 699 So.2d 674, 677 (Fla.1997).

In finding the CCP aggravator, the trial court ruled as follows in its sentencing order:

2. The crime was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. Shortly before picking up the victim, the defendant purchased rope, side-cutter pliers, and a sharp utility knife. The rope was the same type and size as that used to strangle Richard Montgomery; it was remarkably similar to the type used roughly two years earlier by the defendant in his attempt to strangle Stanley Burden. The evidence of the attempted strangulation of Burden was admitted into the guilt phase trial before the court as Williams rule evidence—Williams v. State, 110 So.2d 654 (Fla.1959)—but it was not admitted in the penalty phase trial before the jury. The implements of bondage, strangulation, and cutting were the same in both instances; the pretense of posing for bondage photos was the same; the ligature wounds to the neck and throat of Stanley Burden, who managed to survive, and Richard Montgomery, who did not, were strikingly similar. The court discusses these similarities in the context of the sentencing issue only because of the relevance to this aggravator. The method, techniques, and other similarities evidence a cold, calculated, systematic approach to luring Richard Montgomery to the area where he was killed after being tricked into a bondage situation, from which he could not escape. The purchases and methodology employed by the defendant in preparing for this crime manifest the same type of heightened premeditation found in Jennings v. State, 718 So.2d 144 (Fla.1998), and Bell v. State, 699 So.2d 674 (Fla.1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1067, 140 L.Ed.2d 127 (1998). The State has proven this aggravating factor beyond a reasonable doubt.

Based upon the evidence presented by the State, we agree with the trial court’s findings and conclusion that the CCP aggravating factor was established, and the trial court properly instructed the jury relative to that aggravator. See Ford v. State, 802 So.2d 1121, 1133 (Fla.2001) (“A trial court may give a requested jury instruction on an aggravating circumstance if the evidence adduced at trial is legally sufficient to support a finding of that aggravating circumstance.”).

Conahan’s claim that the jury should not have been instructed regarding murder committed during the course of a kidnapping is procedurally barred. Because Conahan failed to object to the jury instruction, he did not properly preserve it for appellate review. Thus, this Court will not review its merits. See Bell v. State, 699 So.2d 674, 678 (Fla.1997) (concluding that the defendant’s issue relative to the trial court’s error in instructing the jury on the CCP aggravating circumstance was procedurally barred because he failed to preserve the issue); Geralds v. State, 674 So.2d 96, 98 (Fla.1996) (holding that defendant’s issue regarding the constitutionality of two jury instructions was not preserved because defendant failed to object with specificity in the trial court below).

C. Prosecutorial Comments

In his fourth claim, Conahan contends that the prosecutor violated his right to a fair trial by making improper comments in both his opening and closing statements to the jury in the penalty phase of the trial.

1. Prosecutor’s Opening Statement

“The purpose of an opening statement is for counsel to outline the facts expected to be proved at trial. It is not the appropriate place for argument.” First v. State, 696 So.2d 1357, 1358 (Fla. 2nd DCA 1997). Moreover, although “the rule against inflammatory and abusive argument by a state’s attorney is clear, each case must be considered upon its own merits and within the circumstances pertaining when the questionable statements were made.” Muehleman v. State, 503 So.2d 310, 317 (Fla.1987) (quoting Bush v. State, 461 So.2d 936, 941 (Fla.1984)).

In his opening statement to the jury during the penalty phase, the prosecutor stated:

[PROSECUTOR]: The evidence will further show that the motive, the why that this crime occurred, again, to move from the mind of the Defendant Daniel Conahan to actually say that is he began to put it into plan, put the plan into effect in 1994, that is he moved beyond a reasonable doubt thinking about this fantasy to attempting to act it out.
The evidence will show in 1994, the Defendant while cruising Lyons Park in South Fort Myers—
[DEFENSE COUNSEL]: May we approach the bench, Your Honor.
[COURT]: Yes.

Defense counsel objected to the prosecutor’s statement relative to Conahan’s seduction and attempted strangulation of Stanley Burden. The Williams rule evidence was the subject of Conahan’s motion in limine which the trial court had not ruled upon. Defense counsel argued that it would be appropriate for the State to approach the bench and obtain permission to elicit Williams rule testimony in light of the trial court’s reserved ruling. Defense counsel believed that the court’s reserved ruling also applied to comments about Williams rule evidence in the opening statement. The State argued that it was only commenting upon the evidence it would present to support one of the three aggravating circumstances that would be proved during the penalty phase: that the murder was cold, calculated, and premeditated (CCP). The trial court ruled as follows:

[COURT]: Well, I don’t know. We’re not talking about Burden. Yet, I’m not telling you that I’m going to admit Burden, but I’m going to rule the State is entitled to make a case of cold, calculated premeditation, to that extent. I’m going to allow it. All right. Please proceed.

During the penalty phase, the State called witness Deputy Pedro Soto to the stand. Before Soto was questioned about the Williams rule evidence, the prosecutor requested a ruling from the trial court regarding its admissibility. The trial court finally ruled that the Williams rule evidence was inadmissible in the penalty phase due to its overwhelming prejudicial effect.

Even though the State is entitled to present its version of the facts in its opening statement, see Rhodes v. State, 638 So.2d 920 (Fla.1994), we find that the trial court abused its discretion when it allowed the State to comment upon Cona-han’s attempted murder and attempted sexual battery of Stanley Burden in its opening statement to the penalty phase jury. The trial court had the admissibility of that very evidence under advisement. Accordingly, it was improper for the State to comment in its opening statement upon evidence that was under advisement and which was ultimately determined to be inadmissible in the penalty phase of the trial.

The next inquiry is whether the prosecutor’s comments were so prejudicial as to vitiate the entire trial. See Woodel v. State, 804 So.2d 316, 323 (Fla.2001). The State’s improper remarks relative to the Burden incident in the penalty phase cannot be “presumed harmful” regarding Conahan’s guilt or innocence because he had already been found guilty of first-degree premeditated murder in the guilt phase of the trial. See Gore v. State, 719 So.2d 1197, 1199 (Fla.1998). Second, before the parties gave their opening statements in the penalty phase, the trial court instructed the jury that opening remarks were not evidence and again reiterated those instructions at the end of closing arguments. See Massachusetts v. Simpson, 434 Mass. 570, 750 N.E.2d 977, 992 (2001) (finding that defendant’s substantial rights were not affected where the trial court twice instructed the jury that the attorneys’ opening and closing statements were not evidence); Barnes v. Arkansas, 346 Ark. 91, 55 S.W.3d 271, 279 (2001) (same). Furthermore, “the purpose of opening argument is to outline what an attorney expects to be established by the evidence,” Occhicone v. State, 570 So.2d 902, 904 (Fla.1990), and our review of the record reveals the prosecutor’s good faith attempt to do that. For these reasons, we hold that the prosecutor’s opening comments relative the Williams rule evidence in the penalty phase constituted harmless error.

2. Prosecutor’s Closing Statement

In closing argument, counsel is permitted to review the evidence and fairly discuss and comment upon properly admitted testimony and logical inferences from that evidence. See Mann v. State, 603 So.2d 1141, 1143 (Fla.1992) (“The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.”); Bertolotti v. State, 476 So.2d 130 (Fla.1985). A prosecutor may refer to the evidence as it exists before the jury and comment on the un-contradicted or uncontroverted nature of it during closing argument so long as it is not susceptible to being interpreted as a comment on the defendant’s failure to testify. See Rodriguez v. State, 753 So.2d 29, 37-38 (Fla.2000).

One of the two preserved prosecu-torial comments that Conahan challenged was as follows:

Clearly, early in his life, he was capable of and did do some good and commendable things. And yet, he makes this choice to do evil later in his life so hard to understand. He wasn’t abused. He wasn’t mistreated. There was no evidence of mental difficulties or substance abuse or drug abuse. No financial—

Conahan timely objected and complained that the prosecutor remarked upon the lack of certain mitigating factors. The trial court overruled the objection.

The record reflects that in light of Cona-han’s presentation of mitigating evidence, the prosecutor commented in his closing argument that there was no evidence presented regarding other possible mitigators. He pointed out that Conahan did not show that he suffered from prior child abuse or drug abuse, or had a history of mental difficulties and mistreatment. In making such a remark, the prosecutor was commenting upon the lack of certain mitigating evidence. His comment did not implicate the defendant’s right to remain silent; rather, it concerned the dearth of mitigating evidence. See People v. Lewis, 25 Cal.4th 610, 106 Cal.Rptr.2d 629, 22 P.3d 392, 433 (2001) (holding that the prosecutor’s reference to the nonexistence of mitigating evidence was not a comment on the defendant’s failure to testify). We find that the assistant state attorney’s remark was not improper and affirm the trial court’s ruling.

The other preserved prosecutorial comment was provided as follows:

As I was going home last night I thought about this case and I thought about the remarks that I might make to you today and actually stopped and wrote some things down. I have found that when I get these ideas, if I don’t write them down, I often forget them. Here’s what I wrote down and I’ll close with this: Mercy for a defendant means nothing if we do not also honor justice for the victim. The statutory scheme in Florida attempts to strike a balance between the equally important values in our society of mercy to a defendant and justice to a victim. It attempts—

This Court has consistently held that it is improper during closing argument for the prosecutor to encourage the jury to show a defendant the same amount of mercy as he showed his victim because such argument tends to unnecessarily appeal to the sympathies of the jury. See Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992) (finding that the prosecutor committed error in asking the jury to show the defendant as much pity as he showed his victim); Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989) (finding that the prosecutor’s argument that jury show defendant same mercy shown to the victim on the day of her death was “an unnecessary appeal to the sympathies of the jurors, calculated to influence their sentence recommendation”).

In the present case, the prosecutor spoke of mercy; however, he did not urge the jury to show the defendant as much mercy as he showed his victim. The prosecutor made the statement that there is a balancing act between mercy for a defendant and justice for the victim. We find that the prosecutor’s remark did not inflame or unnecessarily evoke the sympathies of the jury. Accordingly, we affirm the trial court’s ruling.

In regard to other prosecutorial comments that Conahan raised on appeal, he failed to object to them in the trial below; thus, he failed to properly preserve those comments for appellate review. See Chandler v. State, 702 So.2d 186, 191 (Fla.1997); Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). The only exception to this procedural bar “is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Brooks v. State, 762 So.2d 879, 899 (Fla.2000) (quoting McDonald v. State, 743 So.2d 501, 505 (Fla.1999)); see Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998); Bonifay v. State, 680 So.2d 413, 418 n. 9 (Fla.1996). Having reviewed the prosecutor’s entire closing argument in light of the unobject-ed-to comments, none of the comments, individually or collectively, rose to the level of fundamental error. Furthermore, we conclude that the unobjected-to comments, when viewed in conjunction with the objected-to comments, did not deprive Cona-han of a fair penalty phase hearing. See Evans v. State, 808 So.2d 92 (Fla.2001), cert. denied, — U.S. -, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002).

D. Admissibility of Autopsy Photographs

In his fifth issue, Conahan contends that the trial court violated his right to a fair trial by admitting inflammatory autopsy photos and certain photos from the crime scene. Admissibility of photographic evidence of a murder victim is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent abuse. See Gudinas v. State, 693 So.2d 953 (Fla.1997).

Relevancy, not necessity, is the test for admissibility of photographic evidence of a murder victim. See Ruiz v. State, 743 So.2d 1, 8 (Fla.1999); Pope v. State, 679 So.2d 710 (Fla.1996). Such photographs are relevant where they are used to “explain a medical examiner’s testimony, to show the manner of death, the location of wounds, and the identity of the victim.” Larkins v. State, 655 So.2d 95, 98 (Fla.1995). Admission of allegedly offensive photographs is appropriate where they are independently relevant or corroborative of other evidence. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990).

Based upon the State’s arguments, the photos of the crime scene and the autopsy were relevant for the following reasons: (1) to prove the proposed aggra-vator, CCP; (2) to explain the medical examiner’s testimony; and (3) to show the nature and circumstances of the crime. See Mansfield v. State, 758 So.2d 636, 648 (Fla.2000), cert. denied, 532 U.S. 998, 121 S.Ct. 1663, 149 L.Ed.2d 644 (2001); Rutherford v. Moore, 774 So.2d 637, 647 (Fla.2000); Willacy v. State, 696 So.2d 693, 695 (Fla.1997). Thus, we find that the trial court properly admitted the photos into evidence. See Halliwell v. State, 323 So.2d 557, 560 (Fla.1975) (“Those who create crimes of violence often must face the record of their deeds in court.”).

PROPORTIONALITY

This Court performs proportionality review to prevent the imposition of “unusual” punishments contrary to article I, section 17 of the Florida Constitution. See Tillman v. State, 591 So.2d 167, 169 (Fla.1991). In deciding whether death is a proportionate penalty, this Court must consider the totality of the circumstances of the case and compare the case with other capital cases. See Urbin v. State, 714 So.2d 411, 416-17 (Fla.1998). It is not a comparison between the number of aggravating and mitigating circumstances. See Rogers v. State, 783 So.2d 980, 1002 (Fla.2001); Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Therefore, this Court must determine whether the imposition of the death penalty in this case is proportionate when compared to similar crimes.

The trial court found three aggravating factors beyond a reasonable doubt: (1) that the murder was committed during the course of a kidnapping; (2) that the murder was cold, calculated, and premeditated (CCP); and (3) that the murder was heinous, atrocious, or cruel (HAC). The trial court rejected Conahan’s only statutory mitigating factor, consent of the victim. Conahan collectively presented five non-statutory mitigating factors, and the trial court gave the first three some weight, rejected the fourth one, and gave the fifth one little weight.

After reviewing the circumstances in the instant case, we find that the death penalty is proportionate when compared to other cases in which death was found to be the appropriate penalty. See Hauser v. State, 701 So.2d 329 (Fla.1997) (finding death sentence proportionate where the victim was strangled and the trial court found the three aggravators of heinous, atrocious, or cruel; cold, calculated, and premeditated; and pecuniary gain balanced against one statutory mitigator and four nonstatutory mitigators); Arbelaez v. State, 626 So.2d 169 (Fla.1993) (affirming imposition of the death penalty where trial court found the three aggravators of heinous, atrocious, or cruel; cold, calculated, and premeditated; and murder committed during a kidnapping balanced against one statutory miti-gator and one nonstatutory mitigator); Mann v. State, 603 So.2d 1141 (Fla.1992) (upholding death sentence for murder where the trial court found the aggravating circumstances of prior violent felony, murder during the commission of a felony, and the murder was heinous, atrocious, or cruel and several nonstatutory mitigating circumstances, including remorse).

Accordingly, we affirm the convictions and sentences, including the sentence of death.

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., and SHAW, Senior Justice, concur.

HARDING, Senior Justice, concurs in part and dissents in part with an opinion, in which WELLS, J., concurs.

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

HARDING, Senior Justice,

concurring in part and dissenting in part.

I disagree with the majority’s conclusion that “it was improper for the State to comment in its opening statement upon evidence that was under advisement and which was ultimately determined to be inadmissible in the penalty phase of the trial.” Not only is this conclusion reached without citing to any specific authority, it departs from the reasonable latitude permitted counsel during opening statements to discuss what evidence counsel intends to present during trial and the reasonable inferences that can be drawn therefrom.

Opening remarks are not evidence, and the purpose of opening argument is to outline what the attorney expects to be established by evidence. See Occhicone v. State, 570 So.2d 902, 904 (Fla.1990) (citing Whitted v. State, 362 So.2d 668 (Fla.1978)). Indeed, the relevant part of the Florida Standard Jury Instruction in Criminal Cases governing pretrial instructions and the instruction specifically given in this case provides:

At the beginning of the trial the attorneys will have an opportunity, if they wish, to make an opening statement. The opening statement gives the attorneys a chance to tell you what evidence they believe will be presented during the trial. What the lawyers say is not evidence, and you are not to consider it as such.

Fla. Std. Jury Instr. 2.1 (emphasis added).

Frequently, attorneys make statements in opening that they reasonably expect the evidence to support, only to have witnesses change their testimony or become unavailable. Such comments are not reversible error....
... It cannot be error in opening statement to outline the case which counsel anticipates proving through the evidence and witnesses, even though circumstances change before the end of the trial.

Goutis v. Express Transport, Inc., 699 So.2d 757, 763 (Fla. 4th DCA 1997).

Here the issue was raised by defense counsel, and after deliberation at sidebar, the trial judge permitted the prosecutor to refer to evidence which was the subject of a pending motion in limine during the prosecutor’s opening statement. I cannot say that the judge abused his discretion. It was my experience as a trial judge that counsel makes an opening statement at his or her own peril. That is, if counsel fails to present evidence as promised during the opening statement, opposing counsel is free to expose this omission to the trier of fact and, in effect, undermine the credibility of counsel’s presentation. Indeed, the practice of pointing out “undelivered” promises of evidence has been a tactic for attorneys for time untold, and counsel who speaks of potentially inadmissible evidence during opening statement therefore runs the risk of such exposure by opposing counsel.

Finally, although the majority cites to no specific authority supporting its conclusion, appellant contends that the instant case is similar to Gore v. State, 719 So.2d 1197 (Fla.1998), and requires reversal. Quite unlike Gore, however, where the prosecutor blatantly disregarded a specific pretrial ruling concerning extremely prejudicial information, here the prosecutor had every reason to believe that testimony by and about the victim in the Burden incident would be admissible since it had been allowed following the trial court’s admission of it in the guilt phase. There was- no specific prior adverse ruling. Moreover, unlike counsel in Gore, here the prosecutor complied with the trial court’s ruling by approaching the bench prior to introducing the evidence at issue.

Given the above analysis and the broad discretion afforded trial courts in controlling opening statements, see Fernandez v. State, 730 So.2d 277, 281 (Fla.1999), I would therefore conclude, contrary to the majority’s position, that the trial court did not abuse its discretion when it permitted the State to refer to evidence which was the subject of a pending motion in limine during its opening statement.

WELLS, J., concurs.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Dr. Imami, the medical examiner who conducted the autopsy of Richard Montgomery, was out of the country and unavailable to testify at the penalty phase.

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

      . In the present case, the trial judge was the trier of fact in the guilt phase.

      . Section 787.01(l)(a), Florida Statutes (1995), defines kidnapping as follows:
      The term "kidnapping" means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
      1. Hold for ransom or reward or as a shield or hostage.
      2. Commit or facilitate commission of any felony.
      3. Inflict bodily harm upon or to terrorize the victim or another person.
      4. Interfere with the performance of any governmental or political function.

      . Dr. Imami noted that the ligature marks appeared only on the front portion of Montgomery's body. They did not appear on his back, which was consistent with Montgomery being tied to a tree or post.

      . The trial court ruled as follows on the admissibility of the Williams rule evidence in the penalty phase:
      So I’m just going to resolve that issue on any Williams rule evidence by requiring the State before it makes an offer or asks a question that would elicit Williams rule testimony to approach the bench with defense counsel and let us argue at that point the admissibility on the proffered Williams rule evidence.

      . Conahan waived his right to a jury during the guilt phase; however, a jury was present during the penalty phase.

      . In supplemental briefing and a notice of supplemental authority, Conahan asserts that he is entitled to relief pursuant to the United States Supreme Court’s recent opinions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693,(Fla. 2002), cert. denied, 123 S.Ct. 662(2002), and King v. Moore, 831 So.2d 143 (Fla.2002), cert. denied, 123 S.Ct. 657 (2002), and denied relief. We therefore find that Conahan is likewise not entitled to relief.

      . Conahan’s collective nonstatutory miti-gators were as follows: (1) loyalty, affection, and service to his parents; (2) self-improvement by enrolling in nursing school; (3) ability to maintain good familial relationships; (4) open, unselfish, polite personality; and (5) hardworking character.

      . The trial court certainly did not react as if there had been a blatant disregard of an earlier ruling, and in fact there was not. At a hearing prior to the penalty phase proceeding the trial court reserved ruling on Williams rule evidence "by requiring the state before it makes an offer or asks a question that would. elicit Williams rule testimony to approach the bench with defense counsel and let us argue at that point the admissibility of the proffered Williams rule evidence.” (Emphasis added.) The trial court did not state or intend to so limit opening statements.


author: STERN, KENNETH D„ Associate Judge.

text:
    RADIOLOGY CONSULTANTS OF PALM BEACH, INC., a Florida corporation, Appellant, v. X-RAY EQUIPMENT COMPANY, INC., a Florida corporation and Advanced Imaging Network, Inc., a Florida corporation, Appellees.
    No. 4D02-949.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.
    Rehearing Denied May 28, 2003.
    Mariano R. Gonzalez of Mariano R. Gonzalez, P.A. and Leonardo G. Renaud of Leonardo G. Renaud, P.A., Miami Lakes, for appellant.
    James J. Hurehalla of James J. Hurchal-la & Assoc., P.A., Fort Lauderdale, for appellee X-Ray Equipment Company, Inc., a Florida corporation.
   STERN, KENNETH D„ Associate Judge.

We affirm the Final Judgment rendered in favor of appellee, X-Ray Equipment Co., Inc. in all respects but one: the calculation of the monetary award. We remand this cause with directions to the trial court to enter a revised Final Judgment amending the monetary award in at least two respects: First, as the record clearly indicates that the CT scan machine was not included in the contract at issue, the $19,500.00 in lost profit attributable to the prospective sale should be deducted from the award. Second, the amount of cost for the two fluoro rooms should have been $24,000.00, not $12,000.00. Accordingly, the trial court shall recalculate the monetary award, and make the appropriate adjustments thereto.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

STONE and GROSS, JJ., concur.