author: SHAW, Judge.

text:
    John E. MORROW v. STATE of Alabama.
    CR-01-1619.
    Court of Criminal Appeals of Alabama.
    Aug. 27, 2004.

      Leonard F. Mikul, Bay Minette, for appellant.
    William H. Pryor, Jr., atty. gen., and Jeremy W. Mclntire, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, John E. Morrow, was convicted of three counts of capital murder in connection with the death of Thomas Philyaw. The murder was made capital (1) because it was committed during the course of a kidnapping in the first degree, see § 13A-5-40(a)(l), Ala.Code 1975; (2) because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; and (3) because Philyaw was in a vehicle at the time of his death, see § 13A-5-40(a)(17), Ala.Code 1975. By a vote of 8At, the jury recommended that Morrow be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury’s recommendation and sentenced Morrow to death.

Morrow raises five issues on appeal; however, because of our disposition of this case, we address only two of those issues at this time.

I.

Citing Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), Morrow argues that his death sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution because, he says, he is mentally retarded. (Issue II in Morrow’s brief.) Although Morrow’s sentencing occurred before the Supreme Court released its decision in Atkins, Morrow nevertheless argued at the sentencing hearing before the trial court that the execution of mentally retarded persons constitutes cruel and unusual punishment and that he could not be sentenced to death because he was, in fact, mentally retarded. Therefore, this issue was properly preserved for review.

In Atkins, the United States Supreme Court held:

“We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender. Ford [v. Wainwright], 477 U.S. [399,] 405 [ (1986) ].”

536 U.S. at 317, 122 S.Ct. 2242. The Alabama Legislature has not yet enacted legislation defining mental retardation for purposes of implementing Atkins. However, as this Court recognized in Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2003), Alabama does have the “Retarded Defendant Act,” § 15-24-1 et seq., Ala. Code 1975. Section 15-24-2(3), Ala.Code 1975, defines a mentally retarded person, for purposes of the Act, as “[a] person with significant subaverage general intellectual functioning resulting in or associated with concurrent impairments in adaptive behavior and manifested during the developmental period, as measured by appropriate standardized testing instruments.” Moreover, in upholding the death sentence in Ex parte Perkins, 851 So.2d 453 (Ala.2002) (opinion on remand from the United States Supreme Court), the Alabama Supreme Court applied the broadest definition of mental retardation recognized in those states that prohibit the execution of a mentally retarded defendant. The Court stated:

“Those states with statutes prohibiting the execution of a mentally retarded defendant require that a defendant, to be considered mentally retarded, must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).”

851 So.2d at 456. In Atkins, the Court noted that significant or substantial deficits in adaptive behavior are evidenced by “limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work.” Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242.

At the penalty phase, Morrow presented evidence, through testimony and the introduction of some of his school records, indicating that he is mentally retarded. Specifically, the evidence presented indicates that Morrow repeated the first grade three times; that he had poor grades in school; that when he was 10 years old and in the second grade he was administered the Wechsler Intelligence Scale for Children and determined to be in the “educable mentally retarded range of intellectual functioning,” with a verbal IQ of 65, a performance IQ of 68, and a full-scale IQ of 64; that when he was 13 years old, he was administered the Slosson Intelligence Test and determined to have an IQ of 67, although there were indications of arithmetic errors in the scoring of that test that suggested the score of 67 was “inflated”; that he suffered from “severe to moderate deficiencies” in “all areas and skills tested”; and that he was placed in special-education classes. The presentence report indicates that Morrow dropped out of school after the eighth grade.

Stanley Brodsky, a clinical and forensic psychologist, testified that he evaluated Morrow for trial, when Morrow was 32 years old, and administered the Kaufman Brief Intelligence Test (“the K-BIT”), as well as the Personality Assessment Inventory (“the PAI”). According to Dr. Brod-sky, the K-BIT, although not a full-fledged IQ test, is a “screening” test designed to “estimate” a person’s IQ. (R. 1065.) Dr. Brodsky testified that Morrow’s score on the verbal portion of the K-BIT indicated a verbal IQ of between 53 and 65; that Morrow’s score on the nonverbal portion of the K-BIT indicated a performance IQ of between 56 and 70; and that Morrow’s overall score on the K-BIT indicated a full-scale IQ of between 51 and 63. Although numerically Morrow’s scores fell within the moderate range of mental retardation, Dr. Brodsky said, when viewed in light of Morrow’s IQ scores from the tests administered when he was child, he believed Morrow was not moderately retarded, but was “toward the bottom of the mildly mentally retarded range.” (R. 1078.)

Dr. Brodsky testified that mentally retarded individuals often “learn[] ways of getting along with others, so the others don’t know what’s going on,” such as pretending to understand things that are going on around them and being agreeable. (R. 1087.) During his evaluation, Dr. Brodsky said, Morrow exhibited signs indicating that he was pretending to understand things that were going on around him, when in fact he did not understand them. Dr. Brodsky also testified that people at Morrow’s level of intellectual functioning have “a diminished intellectual appreciation of everything,” including the wrongfulness and consequences of their actions. (R. 1094.) Dr. Brodsky also said that mildly mentally retarded individuals can have a wide range of abilities, depending on the individual person. Such activities as driving a vehicle and learning a trade are not, according to Dr. Brodsky, out of the range of ability for mildly mentally retarded individuals.

Dr. Brodsky testified that it was his opinion that Morrow was “mildly retarded” (R. 1101) and that he did not “have the ability to appreciate what’s going on around him, and to assess what’s going on around him, the way most people of normal intelligence would.” (R. 1106.) According to Dr. Brodsky, Morrow can make statements and talk about doing things and thus appear as if he knows what he is doing, without understanding what he is actually talking about. Dr. Brodsky also testified that, in addition to IQ tests, how a person adapts to the world, i.e., adaptive functioning, is important in determining whether a person is mentally retarded, but that he did not consider or assess Morrow’s day-to-day life as part of his evaluation.

Joanne Terrell, a social worker, testified that she also evaluated Morrow for trial. Terrell said that she performed a “physico-social assessment” of Morrow, which is a comprehensive examination of a person’s life based on records and interviews. (R. 1136.) Terrell testified that records from the Department of Human Resources (“DHR”) indicated that Morrow had eight siblings, three of whom had been removed from the family home by DHR due to “gross neglect and possible sexual abuse” (R. 1139); that Morrow grew up in a “sexually depraved, morally bankrupt, and emotionally bleak” environment (R. 1141); that, before they reached the age of 13, three of Morrow’s sisters had been diagnosed with venereal disease “from open sores of impetigo” that had not been treated (R. 1142); that one of Morrow’s sisters had been sodomized; that Morrow and his siblings were sometimes not fed and had to steal food in order to eat; that both Morrow’s mother and father had been in jail at different points while he was growing up; that there had been several reports to DHR about Morrow and his siblings’ being neglected; and that when DHR attempted to intervene, Morrow’s parents moved. On cross-examination, however, Terrell admitted that the DHR records also showed that there had never been any allegations that Morrow had been abused, only that his sisters had; that although Morrow’s parents moved often, they always cooperated with the DHR investigations; and that Morrow and his siblings reported that they had a loving relationship with their mother.

According to Terrell, because of his upbringing, Morrow did not learn how to relate to other people or how to manage his impulses; that “his ability, cognitively, intellectually, to deal with what was going on around him, was severely limited” (R. 1148); and that his social, moral, cognitive, and intellectual development was inhibited. Terrell testified that, at the age of 33, Morrow functioned at a fourth-grade level. According to Terrell, mental retardation impairs vocational skills and social skills in any situation, but in an environment such as the one in which Morrow grew up, the impairments would be even worse. Terrell said that mildly retarded individuals, such as Morrow, are often immature and unsophisticated, have poor social skills, are unable to engage in abstract thinking, such as evaluating the consequences of their actions, and have poor judgment. Terrell testified that Morrow was capable of forming a plan at about a third- or fourth-grade level, such as a plan to rob somebody to get money, but that he would be unable to engage in the abstract thinking necessary to see past the carrying out of the plan to the consequences of his actions.

The record also reflects that while he was in prison for previous convictions, Morrow had received training as an automobile mechanic; that Morrow had been employed as a chainsaw operator and a farm worker in 1987 and 1988 before being incarcerated on charges unrelated to the present crime; that when Morrow was released from prison on parole in January 2000, his brother got him a job at Friese Gravel; that although Morrow lost the job with Friese Gravel after approximately two months, his brother believed it was because Morrow was “lazy” and not because he was unable to do the job (R. 1167); and that Morrow got married in July 2000, after he was released from prison, to Kathy Jones, who had three children from previous marriages. (C. 167.) In addition, the circumstances surrounding the crime suggest that Morrow is not mentally retarded — the evidence presented indicates that Morrow planned the crime in advance and that he orchestrated the destruction of evidence after the crime.

In upholding the death sentence in Ex parte Perkins, the Alabama Supreme Court, after thoroughly reviewing the record to determine if there was “any inference” that Perkins was mentally retarded, found that Perkins’s full-scale IQ of 76 as an adult was insufficient, without any evidence of deficits in adaptive behavior, to establish mental retardation. 851 So.2d at 455. The Alabama Supreme Court and this Court have come to a similar conclusion in other eases as well. See Ex parte Smith, [Ms. 1010267, March 14, 2003] — So.2d-(Ala.2003) (full-scale IQ of 66 at 12 years of age with full-scale IQ of 72 as an adult and no evidence of any deficits in adaptive behavior not sufficient to warrant a remand); McGowan v. State, [Ms. CR-95-1775, December 12, 2003] — So.2d -(Ala.Crim.App.2003) (full-scale IQ of 76 as an adult with no evidence of any deficits in adaptive behavior not sufficient to warrant a remand); Lee v. State, 898 So.2d 790, 808 (Ala.Crim.App.2003) (opinion on return to remand) (full-scale IQ of 67 as an adult with evidence suggesting the defendant was malingering and no evidence of any deficits in adaptive behavior before the age of 18 was not sufficient to warrant a remand); Peraita v. State, 897 So.2d 1161 (Ala.Crim.App.2003), aff'd, 897 So.2d 1227 (Ala.2004) (full-scale IQ of 75 as an adult and evidence indicating that defendant was in classes for the learning disabled not sufficient to warrant a remand); Lewis v. State, 889 So.2d 623 (Ala.Crim.App.2003) (full-scale IQ of 58 as an adult with evidence indicating that defendant was malingering when he took the test and with evidence that defendant had a full-scale IQ of 109 only a few years earlier, and no evidence of any deficits in adaptive behavior before the age of 18 was not sufficient to warrant a remand); and Stallworth, supra (full-scale IQ of 77 as an adult was not sufficient, by itself, to warrant a remand).

In this case, however, there is more evidence than Morrow’s IQ scores alone. There is some inference from the record that Morrow may, in fact, be mentally retarded under the standards set forth in Atkins and Ex parte Perkins. Morrow not only presented evidence that he had significant subaverage intellectual functioning, i.e., an IQ below 70, and that this low IQ manifested itself before he reached the age of 18, but he also presented the testimony of experts who suggested that Morrow may have had some deficits in his adaptive behavior as a result of his low intellectual functioning and his home environment as he was growing up. Specifically, the testimony indicated that Morrow may have suffered limitations, in, among other areas, his social and vocational skills as well as his ability to engage in abstract thinking and to understand the consequences of his actions. Although this testimony does not conclusively establish that Morrow suffers from significant limitations in his adaptive behavior, and there was no direct testimony that those apparent limitations manifested themselves before Morrow reached the age of 18, it is clear from our review of the record that the testimony was not offered for the purpose of establishing that Morrow was mentally retarded so as to bar imposition of the death penalty, but to establish that Morrow was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, a statutory mitigating circumstance, see § 13A-5-51(6), Aa.Code 1975. Because Morrow was convicted and sentenced before the decision in Atkins was released, his presentation of evidence at the penalty phase of the trial was naturally focused on establishing circumstances in mitigation of the death penalty, not on establishing that he was constitutionally ineligible for the death penalty. In addition, we note that in denying Morrow’s motion to declare unconstitutional the execution of mentally retarded defendants, the trial court specifically found that Morrow was “mildly retarded or educable mentally retarded.” (R. 1285.) Of course, as this Court noted in Tarver v. State, [Ms. CR-00-2267, February 27, 2004] — So.2d-(Ala.Crim.App.2004), this finding is not conclusive on the issue of Morrow’s mental retardation because it was “made ... before the United States Supreme Court issued its decision in Atkins and without the benefit of the United States Supreme Court’s guidelines in that case, see Atkins, 536 U.S. at 308 n. 3, or the Alabama Supreme Court’s guidelines in Ex parte Perkins.” — So.2d at-.

The record before us contains enough evidence to raise an inference that Morrow is mentally retarded, and although the record also contains contrary evidence indicating that Morrow is not mentally retarded, such conflicting evidence is better resolved by the trial court, not this Court. The record in this case is simply not sufficient for us to conclude, as both this Court and the Alabama Supreme Court have done in other cases, that Morrow is not mentally retarded. Neither can we say that Morrow is mentally retarded. Therefore, it is necessary to remand this cause for the trial court to conduct an evidentia-ry hearing to determine whether Morrow is mentally retarded and, thus, whether his death sentence violates the Eighth Amendment;, and to issue specific written findings of fact in this regard.

In its decision in Atkins, the United States Supreme Court left “ ‘to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” 536 U.S. at 317, 122 S.Ct. 2242, quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). As noted above, the Alabama Legislature has not yet enacted legislation defining mental retardation for purposes of implementing Atkins. ' Both this Court and the Alabama Supreme Court, however, have applied in previous cases the following definition, consistent with the definition adopted by the Legislature in the Retarded Defendant Act:

“[A] defendant, to be considered mentally retarded, must have significantly sub-average intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).”

Ex parte Perkins, 851 So.2d at 456. The Legislature has likewise not adopted a procedure for implementing Atkins, and neither this Court nor the Alabama Supreme Court has been faced with a facially meritorious Atkins issue outside the framework of Rule 32, Ala.R.Crim.P., that warranted an evidentiary hearing. We agree with the Alabama Supreme Court that appellate courts should “refrain from making policy' decisions with regard to claims of mental retardation by capital defendants.” Ex parte Perkins, 851 So.2d at 455 n. 1. However, this Court cannot hold death-penalty cases indefinitely; as the State has so often noted in its motions filed with this Court requesting timely disposition of death-penalty cases, justice delayed is justice denied. We must provide the trial court in this case, and trial courts in future cases, with some guidance on how to determine whether a capital defendant is mentally retarded.

Alabama’s Retarded Defendant Act provides no insight as to what procedure the Legislature might adopt for implementing the constitutional restrictions on executing a mentally retarded defendant; it became law in 1985, long before Atkins was decided. However, Rule 32, Ala.R.Crim.P., has a procedure for determining whether a defendant is entitled to postconviction relief, and issues relating to Atkins have been resolved in previous cases under Rule 32. See, e.g., Tarver, supra; Clemons v. State, [Ms. CR-01-1355, August 29, 2003] -So.2d- (Ala.Crim.App.2003); and Wood v. State, 891 So.2d 398 (Ala.Crim.App.2003). Although Rule 32 was adopted by the Alabama Supreme Court as an avenue for postconviction relief, the procedure provided therein is simple and can easily be applied outside the postconviction setting to determine whether a capital defendant is mentally retarded.

Rule 32 places the burden of persuasion on the defendant to establish that he or she is entitled to an evidentiary hearing. See Rule 32.3 and Rule 32.6(b). Once the defendant meets his or her initial burden, an evidentiary hearing must be held, see Rule 32.9, at which the defendant has the burden of proving by a preponderance of the evidence that he or she is entitled to relief, see Rule 32.3. Following the hearing, the trial court is required to issue specific written findings of fact regarding the defendant’s claim for relief. See Rule 32.9(d). Either party may appeal the trial court’s ruling in accordance with the Rules of Appellate Procedure, see Rule 32.10, and this Court will review the ruling to determine whether the trial court abused its discretion. See, e.g., Adkins v. State, 930 So.2d 524, 533 (Ala.Crim.App.2001) (opinion on return to third remand) (“We apply an abuse-of-discretion standard in evaluating the findings made by the circuit court in a Rule 32 proceeding.”); Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003) (“where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992)”); and Slaton v. State, 902 So.2d 102, 107 (Ala.Crim.App.2003) (“When reviewing a circuit court’s denial of a Rule 32 petition, this Court applies an abuse-of-discretion standard.”). The procedure in Rule 32 is currently the only procedure in Alabama that has been used in implementing the Atkins decision, and it provides a suitable framework, for the time being, for addressing Atkins issues. In order to refrain from making the policy decisions necessary to adopting a specific procedure for implementing Atkins — decisions better left to the Legislature — we believe the best course of action, at least until the Legislature acts, is to use the procedure provided in Rule 32 for determining whether a capital defendant is mentally retarded, regardless of when the issue is raised.

We note that the majority of our sister states that have capital punishment have created procedures for determining whether a capital defendant is mentally retarded. Although a few have created those procedures judicially, most have done so through legislation. The procedures vary from state to state in the burden of proof, in the specificity of the procedures, and in whether the determination is made by a court or a jury, but many of the states with such procedures recognize that the issue of mental retardation should be raised as soon as practicable. As the Louisiana Supreme Court aptly noted: “The better practice under Atkins is reflected by the procedure of such states as Indiana and Missouri, where the court makes a pre-trial determination of whether the defendant is mentally retarded and thereby spares both the State and the defendant the onerous burden of a futile bifurcated capital sentencing procedure.” State v. Williams, 831 So.2d 835, 860 (La.2002). Therefore, we encourage defendants to raise, and trial courts to resolve, mental-retardation issues before trial if at all possible in. order to avoid the burden and expense of a bifurcated capital trial.

' We do not attempt to establish today a comprehensive procedure for implementing Atkins; as noted above, the task of implementing such a procedure is better left to the Legislature. This opinion attempts only to provide some guidance to trial courts on how to determine whether a capital defendant is mentally retarded, at least until the Legislature acts. The fact that we are applying the procedure in Rule 32 to those determinations in no way suggests a stance by this Court that the Rule 32 procedure is the best procedure for implementing Atkins. It may be or it may not be; that is not for us to determine. Rather, our application of the procedure in Rule 32 to all Atkins claims, regardless of when they are raised, reflects only a desire by this Court to resolve death-penalty cases as quickly as possible and the recognition that at this time Rule 32 is the only procedure in existence that has been used to implement Atkins.

The procedure in Rule 32 is not exhaustive, and we realize that questions may arise in the future that are not answered in Rule 32 or in this opinion. Although this is the first case that presents on direct appeal from a capital conviction and sentence of death a facially meritorious Atkins claim, it certainly will not be the last. Therefore,- we join the Alabama Supreme Court in urging “the Legislature to expeditiously develop procedures for determining whether a capital defendant is mentally retarded and thus ineligible for execution.” Ex parte Perkins, 851 So.2d at 455 n. 1. Until the Legislature acts, however, we will continue to review Atkins issues on a case-by-case basis and to apply the guidelines that have been judicially developed thus far.

For the reasons stated above, we remand this case for the trial court to determine whether Morrow is mentally retarded and, thus, whether his death sentence violates the Eighth Amendment, and to issue specific written findings of fact in that regard. On remand, the trial court shall conduct an evidentiary hearing and shall allow the parties to present any further evidence regarding Morrow’s intellectual functioning and adaptive behavior that may aid it in making its determination, as well as any other evidence the court deems relevant to this issue. If the court determines that further evaluations of Morrow are necessary, the court may order such evaluations on its own or at the request of either party. In determining whether Morrow is mentally retarded, the court shall consider, and issue specific written findings of fact regarding, the definition of mental retardation set forth in Atkins and Ex parte Perkins. If the court determines that Morrow is mentally retarded, it shall vacate Morrow’s death sentence and resen-tence him to life imprisonment without the possibility of parole.

II.

Morrow also contends that the trial court failed to state in its sentencing order the specific reasons for giving the jury’s recommendation the consideration it did, as required by Ex parte Taylor, 808 So.2d 1215 (Ala.2001). (Issue V in Morrow’s reply brief.) We agree, and we also find other deficiencies in the sentencing order as well.

In Ex parte Taylor, the Alabama Supreme Court stated:

“Under Alabama’s capital-sentencing procedure, the trial judge must make specific written findings regarding the existence or nonexistence of each aggravating circumstance and each mitigating circumstance offered by the parties. § 13A-5-47(d), Ala.Code 1975. In making these findings, the trial judge must consider a jury’s recommendation of life imprisonment without parole. See § 13A-5-47(e), Ala.Code 1975 (‘in [weighing the aggravating and mitigating circumstances] the trial court shall consider the recommendation of the jury contained in its advisory verdict’). Construing subsection (e) together with subsection (d), we conclude that the trial judge must state specific reasons for giving the jury’s recommendation the consideration he gave it. McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378, 1382 (Ala.1986) (stating that subsections of a statute ‘should be construed together to ascertain the meaning and intent of each’).”

808 So.2d at 1219 (emphasis added; footnote omitted). Subsequently, in Ex parte Carroll, 852 So.2d 833 (Ala.2002), the Alabama Supreme Court stated:

“We take this opportunity to further explain the effect of a jury’s recommendation of life imprisonment without the possibility of parole. Such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the ‘triggerman’ or a recommendation of leniency by the victim’s family; the jury’s recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.”

852 So.2d at 836 (footnote omitted).

In its order, the trial court stated the following regarding the jury’s recommendation:

“The Court at this time needs to address the issue of the jury’s recommendation. The Court is mindful of the recommendation of the jury. The jury in this case recommended life in prison without parole by a vote of death, four, life without parole, eight. The Court believes that the jury’s verdict is entitled to due consideration, perhaps even certain deference. But, of course, the Court is not controlled by the recommendation of the jury.
“The Court has found that aggravating circumstances exist in this case and that no statutory mitigating circumstances exist in this case. The Court has additionally found that other mitigating circumstances exist based upon the totality of the evidence presented during this trial, as well as any pretrial hearing or posttrial hearing.
“The Court further finds that the jury’s advisory recommendation for life in prison without parole was not influenced by prejudice or emotion. Upon weighing the aggravating circumstances against what the Court finds to be mitigating circumstances, the Court finds that the aggravating circumstances outweigh the mitigating circumstances in this case, and the jury’s recommendation of Life in Prison without Parole is overridden by the Court and that the proper sentence is death.”

(C. 17.) The trial court’s statements that it was “mindful” of the jury’s recommendation and that that recommendation was entitled to “due consideration, perhaps even certain deference” fail to satisfy Ex parte Taylor and Ex parte Carroll. The court did not state that it considered the jury’s recommendation as a mitigating circumstance nor did it state its specific reasons for giving the jury’s recommendation the consideration it did.

In addition, in its order, the trial court stated the following regarding non-statutory mitigating circumstances:

“The Judge, just as the jury, is entitled to consider anything, any matter that the Court might find in any way to be mitigating in order to consider the same and balance the same with the aggravating circumstances as found by the Court. There was evidence and testimony presented during the trial and sentencing phases of the Defendant’s home life, early family life, lack of education and lack of a functional and traditional family unit. The Court has carefully considered all of the evidence presented during all stages of the trial in this cause, as well as the Court’s observation and evidence admitted during all proceedings, pretrial and posttrial with regard to this case and the Court finds that mitigating circumstances exist with regard to this case.”

(C. 17.) The trial court indicated that it found nonstatutory mitigating circumstances to exist, but it failed to identify which nonstatutory mitigating circumstances it found to exist. As this Court stated in Roberts v. State, 735 So.2d 1244 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.1999):

“In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court.”

735 So.2d at 1269 (emphasis added). See also Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), aff'd, 689 So.2d 951 (Ala.1997). Although “the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating,” Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), in order for this Court to conduct its review of the death sentence, the trial court must specifically identify in its sentencing order those nonstatutory mitigating circumstances that it did find to exist.

Therefore, if the trial court- determines on remand that Morrow is not mentally retarded and that,, therefore, the Eighth Amendment does not bar imposition of the death penalty, the trial court shall also (1) consider the jury’s recommendation of life imprisonment without the possibility of parole as a mitigating circumstance as required by Ex parte Carroll, reweigh the aggravating and mitigating circumstances, and, if necessary, resentence Morrow; (2) amend its sentencing order to reflect its consideration of the jury’s recommendation as a mitigating circumstance and to reflect the specific reasons it gave the jury’s recommendation the consideration it did in light of the Alabama Supreme Court’s opinions in Ex parte Carroll and Ex parte Taylor; and (3) amend its sentencing order to identify the specific non-statutory mitigating circumstances it found to exist.

Based on the foregoing, this case is remanded to the trial court'for proceedings consistent -with this opinion. Due return shall be filed with this Court within 98 days of the date of this opinion. We pre-termit discussion of Morrow’s remaining issues pending the trial court’s return to our remand.

REMANDED WITH DIRECTIONS.

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

      . Morrow was also indicted for three counts of conspiracy to commit capital murder; the jury acquitted him of those charges.

      . The Retarded Defendant Act consists of seven short sections and basically authorizes the defendant or the State to file an affidavit with the trial court establishing that the defendant "is a person who has been identified as mentally retarded and [who] has received or is presently receiving services through the Department of Mental Health and Mental Retardation, a program certified by the Department of Mental Health and Mental Retardation, or the Department of Education.” § 15-24-3, Ala.Code 1975. The affidavit may then be used by the parties and the court “in connection with the decisions relative to bail hearings, determination of place of detention, and ultimate disposition of such case.” § 15-24-4, Ala. Code 1975.

      . We note that the record does not indicate whether Dr. Brodsky prepared a written report of his evaluation. If he did, it is not included in the record on appeal.

      . We note that, in its brief, the State avers that "Morrow boasted to Dr. Brodsky that he completed training as an auto mechanic while in prison.” (State's brief at p. 29.) This statement is not supported by the record. Dr. Brodsky testified that Morrow had told him during the evaluation that he had received training as an auto mechanic while in prison. There was no evidence or testimony, however, that Morrow actually completed the training; in fact, Dr. Brodsky specifically testified that Morrow had only told him that he had "attended the class,” not that he had actually completed the class. (R. 1104.)

      . We note that the State argues in its brief on appeal that Morrow was tested in 1988, while he was incarcerated, and that his IQ was 93, and it attaches to its brief a report from the Alabama Department of Corrections to support that allegation. However, at oral argument, the State conceded that this report could not be considered by this Court because it was not introduced into evidence by the State during the trial, nor is it contained in the record on appeal. It is well settled that "attachments to briefs are not considered part of the record and therefore cannot be considered on appeal.” Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991). This Court is bound by the record on appeal and cannot consider facts not contained in the record. See Smith v. State, 745 So.2d 922, 930 (Ala.Crim.App.1999). Therefore, in deciding this issue we do not consider the State's attachment to its brief.

      . We reject the State’s argument that Morrow’s pro se filing of several pretrial motions "clearly demonstrates his ability to read, write, and process information well above the level required to perform basic academics.” (State's brief at p. 29.) As Morrow’s counsel correctly points out in his reply brief, although Morrow's signature appears on the pro se motions, the record does not indicate whether Morrow drafted those motions on his own, whether he had help in drafting the motions, or whether someone else drafted the motions and Morrow merely signed them. We likewise reject the State's argument that Morrow’s “ability to develop meaningful interpersonal relationships is aptly established by his marriage to Angela Mooney” and that "[b]y marrying [Angela Mooney] and helping to raise a small child, Morrow has demonstrated the ability to maintain close interpersonal relationships” (State's brief at p. 28-29), because this argument is not supported by the record. Although the record indicates that Morrow was living with Angela Mooney "off and on” around the time of the crime (R. 544), there is no indication in the record that Morrow was ever married to Mooney or that he ever helped raise Mooney's child. In fact, as noted above, the record reflects that in July 2000, only four months before the crime, Morrow married Kathy Jones. Mooney was known at the time of the crime as Angela Morrow; however, the record suggests that this was because she had previously been married to Morrow's brother, not because she was married to Morrow.

      . We note that several bills have been introduced, although not passed, in the Alabama Legislature since the Atkins decision. See House Bill 98, 2003 Regular Session; House Bill 670, 2003 Regular Session; House Bill 340, 2003 Regular Session; Senate Bill 288, 2003 Regular Session; Senate Bill 323, 2003 Regular Session; Senate Bill 25, 2004 Regular Session; and Senate Bill 31, 2004 Regular Session. Those bills provided procedures for implementing Atkins, but differ from one another in many respects. Therefore, they also provide no insight as to what procedure the Legislature might eventually adopt.

      . See State v. Williams, 831 So.2d 835 (La.2002); Chase v. State, 873 So.2d 1013 (Miss.2004); State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011 (2002); State v. Bass, 87 P.3d 629 (Okla.Crim.App.2004); Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202 (2003); Franklin v. Maynard, 356 S.C. 276, 588 S.E.2d 604 (2003); and Hall v. State, 160 S.W.3d 24 (Tex.Crim.App.2004).

      . See Ariz.Rev.Stat. § 13-703.02 (2002); Ark. Code Ann. § 5-4-618 (Michie 2003); Cal. Code § 1376 (West 2003); Colo.Rev.Stat. § 18-1.3-1102 (West 2002); Del.Code Ann. tit. 11, § 4209 (2003); Fla. Stat. Ann. § 921.137 (West 2001); Ga.Code Ann. § 17-7-131 (1992).; Idaho Code § 19-2515A (Michie 2003); Ind.Code Ann. § 35-36-9-4 (West 1993); Md.Code Ann. [criminal law] § 2-202 (2002); Mo.Rev.Stat. § 565.030 (West 2001); Neb.Rev.Stat. § 28-105.01 (2002); Nev.Rev.Stat 174.098 (Michie 2003); N.M. Stat. Ann. § 31-20A-2.1 (Michie 1991); N.Y. Law § 400.27 (McKinney 2001); N.C. Gen.Stat. § 15A-2005 (2001); S.D. Codified Laws § 23A-27A-26.3 (Michie 2000); Tenn. Code Ann. § 39-13-203 (1993); Utah Code Ann. § 77-15a-104 (2003); Va.Code Ann. § 19.2-264.3:1.1 (Michie 2003); and Wash. Rev.Code Ann. § 10.95.030 (West 1993).

      .We note that the question whether any burden higher than a preponderance would be constitutional has been raised in other jurisdictions. In Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003), the Georgia Supreme Court found that mental retardation is more akin to the affirmative defense of insanity and, relying on Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), in which the United States Supreme Court held constitutional an Oregon law requiring a defendant to prove insanity beyond a reasonable doubt, held that Georgia's statutory scheme of placing the burden on the defendant to prove beyond a reasonable doubt that he or she is mentally retarded, see Ga.Code Ann. § 17-7-131 (1992), was constitutional. However, in a special concurrence to the order adopting Rule 3.203, Florida Rules of Criminal Procedure, to provide for a more comprehensive procedure for determining whether a capital defendant is mentally retarded than provided in Fla. Stat. Ann. § 921.137, one Justice of the Florida Supreme Court questioned whether the clear-and-convincing burden of proof in § 921.137 was constitutional under Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). In Cooper, the United States Supreme Court held unconstitutional an Oklahoma law providing that a defendant must prove his incompetence by clear and convincing evidence. See Order Adopting Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, 875 So.2d 563 (Fla.2004). Because we apply the procedure in Rule 32 to Atkins claims and because that procedure uses the preponderance standard, we need not determine whether a higher standard would be constitutional.

      . We reject the State's argument that the trial court "implicitly treatfed] the jury's verdict as a mitigating circumstance” because it discussed the jury's recommendation immediately after it discussed the nonstatutory mitigating circumstances. (State's Response to Morrow’s Reply Brief at p. 3.) The trial court's order was issued before the Supreme Court released its decision in Ex parte Carroll. Before that opinion, however, a jury’s recommendation of life imprisonment without the possibility of parole did not have to be considered a mitigating circumstance. Therefore, in this case, without a direct statement by the trial court, we cannot assume that the trial court considered the jury's recommendation as a mitigating circumstance.


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    D.D.C. v. STATE of Alabama.
    CR-04-1460.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.

      Isabell Eaton, Huntsville, for appellant.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   BASCHAB, Judge.

Delinquency petitions were filed in the Juvenile Court of Madison County, charging the appellant, D.D.C., with three counts of first-degree sexual abuse, violations of § 13A-6-66(a)(l), Ala.Code 1975. The juvenile court adjudicated him delinquent based on three counts of harassment, violations of § 13A-ll-8(a)(l)a., Ala. Code 1975, as lesser included offenses of first-degree sexual abuse, and committed him to the Department of Youth Services. The appellant did not file any post-judgment motions. This appeal followed.

The appellant ai'gues that the juvenile court erroneously adjudicated him delinquent based on the charges of harassment because harassment is not a lesser included offense of first-degree sexual abuse. This court addressed a similar situation in Stafford v. State, 873 So.2d 1168, 1168-70 (Ala.Crim.App.2003), as follows:

“On appeal, Stafford contends that his convictions for harassment are due to be set aside because, he argues, harassment is not a lesser-included offense within the offense of sexual abuse in the first degree.
“Section 13A-1-9, Ala.Code 1975, provides:
“ ‘(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“ ‘(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“ ‘(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“ ‘(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“ ‘(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.’
“In Ex parte N.W., 748 So.2d 190 (Ala.1999), the Alabama Supreme Court stated:
“ ‘ “Where all the elements of an offense separate from the offense charged are present in or are included among elements of [the] charged offense, such separate offense is a lesser included offense for which [the] defendant may be convicted, though acquitted of the offense charged. To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser’
748 So.2d at 192, quoting Chambers v. City of Opelika, 698 So.2d 792, 794 (Ala.Crim.App.1996), quoting in turn Sharpe v. State, 340 So.2d 885, 887 (Ala.Crim.App.1976) (emphasis added in Chambers). See also, e.g., Vinson v. State, 601 So.2d 196, 198 (Ala.Crim.App.1992).
“As indicated earlier, the jury found Stafford guilty of two counts of harassment, as a lesser-included offense of the offense of sexual abuse in the first degree charged in count 1 and count 5 of the indictment. For purposes of our analysis in this case, then, sexual abuse in the first degree is the ‘greater’ offense. In count 1 of the indictment, Stafford was charged with sexual abuse in the first degree under § 13A-6-66(a)(3), Ala.Code 1975, which provides: ‘A person commits the crime of sexual abuse in the first degree if ... [h]e, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.’ In count 5 of the indictment, Stafford was charged with sexual abuse in the first degree under § 13A-6-66(a)(l), Ala.Code 1975, which provides: ‘A person commits the crime of sexual abuse in the first degree if ... [h]e subjects another person to sexual contact by forcible compulsion.’ ‘Sexual contact’ is defined in § 13A-6-60(3), Ala.Code 1975, as ‘[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.’ Thus, when prosecuting sexual abuse in the first degree, the State must prove an element of intent, i.e., the intent to gratify sexual desire.
“Harassment, the ‘lesser’ offense for purposes of our analysis, is defined, in pertinent part, in § 13A-ll-8(a)(l)a., Ala.Code 1975, which provides: ‘A person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she ... [sjtrikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact.’ Thus, when prosecuting harassment, the State must prove that a defendant acted with the intent to harass, annoy, or alarm.
“Harassment is not a lesser-included offense of sexual abuse in the first degree, because one does not necessarily have to fulfill the elements of harassment to be guilty of the offense of sexual abuse in the first degree. The crime of harassment requires proof of an element — the intent to harass, annoy, or alarm — that is not required to establish the crime of sexual abuse in the first degree. The intent to gratify sexual desires — which is an element of sexual abuse in the first degree — does not include an intent to harass, annoy, or alarm. Because an additional element or fact must be shown in a case of harassment, that offense may not be said to be included in the crime of sexual abuse in the first degree. Simply put, a defendant can commit the offense of sexual abuse in the first degree without also committing the offense of harassment.
“A trial court lacks jurisdiction to enter a judgment of conviction as to an offense not included in the indictment. E.g., Williams v. State, 591 So.2d 582, 583 (Ala.Crim.App.1991). See also Rules 13.5(a) and 13.2(c), Ala. R.Crim. P. Because harassment may not be considered a lesser-included offense of sexual abuse in the first degree, the trial court was, with respect to count 1 and count 5 of the indictment, without jurisdiction to enter a conviction for the offense of harassment; the convictions and sentences are therefore void.”

(Footnotes omitted.)

Because harassment is not a lesser included offense of first-degree sexual abuse, the juvenile court did not have jurisdiction to adjudicate the appellant delinquent based on the charges of harassment. Therefore, the juvenile court’s judgment is void. Accordingly, we reverse this case and remand it to the juvenile court.

REVERSED AND REMANDED.

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

      . Because of our disposition of this issue, we pretermit discussion of the remaining issue the appellant raises in his brief to this court.


text:
    Edward D. FOUNTAIN v. STATE of Alabama.
    CR-04-1716.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.
    Jeffrey Todd Stearns, Brewton, for appellant.
    Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Edward D. Fountain, appeals from the circuit court’s order revoking his probation. On April 14, 2005, the appellant’s probation officer filed a “Petition for Revocation/Modification of Probation.” After conducting a revocation hearing, the circuit court revoked his probation. This appeal followed.

The appellant argues that the circuit court deprived him of his right to counsel. Specifically, he contends that the circuit court erred by not advising him of his right to request counsel to represent him during the revocation proceedings; that the circuit court did not make a determination as to whether he was entitled to counsel; and that he should have been represented by counsel because he made a colorable claim that he had not committed the alleged probation violations and because he has been in and out.of institutions since he was eleven years old. Rule 27.5(a)(3), Ala. R.Crim. P., provides that, at the initial appearance, the circuit court shall

“[a]dvise the probationer of his or her right to request counsel and appoint counsel to represent an indigent probationer if the requirements of Rule 27.6(b) are met.”

Rule 27.6(b), Ala. R.Crim. P., provides: .

“The probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:
“(1) If the probationer makes a col-orable claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
“(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

In this case, the record does not specifically indicate that the circuit court advised the appellant of his right to request counsel during the revocation proceedings. At most, there is an entry dated April 20, 2005, on the case action summary sheet that states, “Requirements of Rule 27 A.R.Crim. P. complied with and hearing requested.” (C.R. 1.) However, the record does not indicate the specific requirements of Rule 27, Ala. R.Crim. P., to which the circuit court refers. Also, at one point during the revocation hearing, the appellant said, “I guess I need me a lawyer,” but the circuit court did not respond or address the issue. (R. 37.) Finally, in his “Motion for Rehearing,” the appellant asserted that the circuit court “erred in allowing an individual who legally has a mental impairment to represent himself.” (C.R. 12.)

In Evans v. State, 794 So.2d 1234, 1235-36 (Ala.Crim.App.2000), we stated:'

“On appeal, Evans argues that he was denied the assistance of counsel at his probation revocation hearing, because he says, he was not informed that he could be represented by counsel at that proceeding. ...
“We note initially that there is no automatic right to counsel in a probation revocation proceeding, and the right to counsel will be decided by the [circuit] court on a case-by-case basis. Law[ v. State, 778 So.2d 249 (Ala.Crim.App.2000) ].
““[A] [circuit] court’s failure to inform an accused of his right to request counsel is not necessarily fatal to its case. ‘Unless [the probationer’s] revocation proceeding was one wherein the actual appointment of counsel was necessary to satisfy applicable due process requirements of fundamental fairness, then he would not have been entitled to have his request for counsel honored and the mere failure to have informed him of the right to make such a request could not have harmed him.’ ” ’
“Law, 778 So.2d at 251 (quoting Kitchens v. State, 234 Ga.App. 785, 787, 508 S.E.2d 176, 179 (Ga.App.1998)).
“At the revocation hearing in the present case, Evans admitted that he had violated the terms of his probation. In addition, there is nothing in the record to support a'finding that there were substantial reasons justifying or mitigating the violation. Evans, therefore, has failed to show that he was materially 'harmed by the absence of counsel.- The failure to inform Evans that he could be represented by counsel was not reversible error.”

In this case, the appellant’s probation officer filed a “Petition for Revocation/Modification of Probation” in which he alleged that the appellant

“has violated the terms and conditions of his/her probation, in that he/she has committed the following new offense(s) and/or technical violation(s), to wit:
“1. FAILING TO ABIDE BY COMMUNITY . NOTIFICATION ACT (Moving Without Permission)
“2. FAILING TO AVOID INJURIOUS OR VICIOUS HABITS.”

(C.R. 3.) At the conclusion of the revocation hearing, the circuit court stated:

“Based on the evidence presented, the Court is reasonably satisfied that the probationer has violated the terms and conditions of his probation by failing to abide by the Community Notification Act and for failing to avoid injurious and vicious habit[s].”

(C:R. 41.) Finally, in its written revocation order, the circuit court stated:

“The probationer appeared before the court today in response to the probation officer’s petition for revocation/modification of probation. Said petition alleges that the probationer has violated the terms and conditions of his probation by failing to abide by the Community Notification Act (Moving Without Permission) and failing to avoid injurious or vicious habits. According to the testimony and other evidence presented, the court is reasonably satisfied that the probationer has violated the terms and conditions as alleged in said petition.”

(C.R. 7.)

During the revocation hearing, Sergeant Monte McGougin of the Escambia County Sheriffs Department testified that his duties included ensuring compliance with the Community Notification Act; that the appellant had a trailer at Blueberry Hill Trailer Park, but had been staying in an apartment that was inside the Brewton City Limits; that he had spoken to several people who had placed the appellant at the apartment; that he did not check the apartment to determine whether the appellant had any belongings there; that, pursuant to the Community Notification Act, a person changes residence if he stays at a residence approximately five days; that the appellant still had his trailer at Blueberry Hill Trailer Park; and that the appellant did not talk to him about changing his residence.

Voncile Bennett testified that she was the manager of the apartment complex where the appellant’s fiancee, Tara Reed, lived; that she had seen the appellant at the apartment complex; that the appellant was staying overnight at Reed’s apartment and residing there; that she had seen the appellant’s vehicle there; that other tenants had complained about noise coming from Reed’s apartment during the night; that the tenants said that they heard a man’s voice and a woman’s voice; and that the tenants had described the appellant. Also, the appellant’s probation officer, Tim Cook, testified that the appellant told him that he had been smoking crack cocaine for some time. Finally, the State introduced copies of envelopes from the Social Security Administration that were sent to Reed’s apartment and that were addressed to “TERESA DIANE REED FOR EDWARD DARRYL FOUNTAIN.”

During the hearing, the appellant presented evidence that he had not moved in with Reed; that he had visited Reed at her apartment; that Reed sometimes kept his vehicle; that his Social Security checks were sent to Reed’s apartment because she was his “overseer” and was “over [his] check”; and that he had “a sickness” and was not able to do things for himself. (R. 27.) The appellant’s mother also testified that the appellant had been in and out of homes and institutions since he was eleven years old; that she did not know what the appellant’s diagnosis was; and that she had not been able to obtain the appellant’s diagnosis because “[fit’s got to be the judge or lawyer to release your mental health record.” (R. 40.)

Finally, the State’s “Petition for Revocation/Modification of Probation,” the circuit court’s statements at the conclusion of the revocation hearing, and the circuit court’s written revocation order do not indicate what conduct formed the basis for the charge of failing to avoid injurious or vicious habits. The State presented evidence that the appellant had admitted that he had smoked crack cocaine. However, the appellant testified that he did not remember admitting that he had used crack cocaine; that the probation officer had not given him a drug test; and that it was just his probation officer’s word against his. Moreover, based on his statements and questions during the revocation hearing, it appears that the appellant believed that this violation was based on the allegation that he had physically abused Reed.

Based on the record before us, we cannot conclude that the appellant did not have a colorable claim that he did not commit the alleged violations or that he did not have substantial reasons to justify or mitigate the violations. Therefore, we cannot say that not informing him of his right to request counsel to represent him during the revocation proceedings was harmless error. Accordingly, we must reverse the circuit court’s order revoking the appellant’s probation and remand this case to the circuit court for a new revocation hearing. In conducting the revocation hearing, we caution the circuit court to comply with the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27, Ala. R.Crim. P.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and SHAW, JJ., concur; WISE, J., concurs in the result.

      . Because of our disposition of this issue, we pretermit discussion of the remaining issues the appellant raises in his brief to this court,


author: PER CURIAM.

text:
    Brett CLAFLIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3381.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.
    James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., ORFINGER and LAWSON, JJ„ concur.


text:
    Louis F. SELL, Appellant, v. Marilyn R. SELL, Appellee.
    No. 3D04-1185.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2005.
    Edna L. Caruso (West Palm Beach), for appellant.
    Rudolph & Leacock and Howard M. Rudolph (West Palm Beach), for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

In this case, the Husband appeals from an Order Clarifying a Final Judgment of Dissolution. Although the Husband argues that several conclusions of the trial court were erroneous, we agree with him on only one. In the Order on appeal, the trial court valued certain of the parties’ banking accounts at $377,000 and then divided the amount in half between the parties although the husband had already paid the wife $50,000 out of these accounts pursuant to the parties’ prenuptial agreement. Because the Husband had already paid the wife $50,000 from these accounts pursuant to their prenuptial agreement, it was erroneous to value this asset at $377,000 and thus allow the wife to essentially “double dip” from this asset.

On remand, the trial court will need to value the accounts minus the $50,000, and enter an amended final judgment consistent therewith. As to all other points related to the Order, and otherwise, we affirm.


author: ROTHENBERG, Judge.

text:
    Monica Maria ROBINSON, Appellant, v. Trevor Anthony ROBINSON, Appellee.
    No. 3D04-2936.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2006.
    Rehearing Denied May 22, 2006.
    Roland N. Cataldo, for appellant.
    Karen J. Haas; and Paul R. Marcus, Miami, for appellee.
    Before COPE, C.J., and LEVY and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The parties, Monica Maria Robinson (“former wife”) and Trevor Anthony Robinson (“former husband”), divorced in October 1995, after eighteen years of marriage in which three children were born to the marriage, two of whom were still minors at the time. When the marriage was dissolved, the former husband was earning approximately $80,000 per year; whereas the former wife’s annual income was approximately $22,000. Pursuant to the Final Judgment of Dissolution of Marriage (“Final Judgment”), the former husband was ordered to: (1) pay $1,000 per month in child support for the two minor children, which would be reduced to $644 when the eldest minor child turned eighteen years old; (2) pay the former wife $1,500 per month in temporary alimony until the marital residence was sold; (3) pay $1,000 per month in permanent alimony after the marital house was sold for a period of forty-eight months, and thereafter, $1,200 per month; (4) obtain a $300,000 life insurance policy to secure the payment of child support and alimony; and (5) reimburse the former wife for the cost of acquiring health insurance for the minor children through her employer.

On June 20, 2002, the former husband filed a Supplemental Petition for Modification (“Petition”), seeking to modify both child support and alimony, alleging that there had been a substantial change in circumstances since the entry of the Final Judgment in October 1995. This Petition was followed by an Amended Motion for Contempt filed by the former wife in July 2002, requesting that the former husband be held in contempt for failing to comply with the Final Judgment. In her Amended Motion for Contempt, the former wife asserted that her former husband had an alimony arrearage of $12,000, and that he had failed to reimburse her for the minor children’s health insurance premiums, totaling $6,114.

In March 2003, the former husband’s Petition and former wife’s Amended Motion for Contempt were referred to a general master by the trial court. Following a hearing, the general master filed her report in February 2004. The general master found, in part, that: (1) the former husband’s child support obligations terminated in December 2003; (2) the former husband failed to reimburse the former wife for the cost of acquiring health insurance for the minor children; (3) the former wife was unemployed, but actively seeking employment, and is in the need of financial support from the former husband; (4) the former husband is “deliberately under-employed” and currently employed by his present wife’s business; (5) the former husband has a combined outstanding ar-rearage of $22,859 for the unpaid alimony and health insurance premiums; (6) periodic alimony should be reduced to $400 per month effective July 2002, thereby reducing the post-filing arrearage for alimony to $7,200; and (7) as a result of the termination of child support and the reduction in alimony, a life insurance policy in the amount of $100,000 was appropriate. In addition, the general master recommended: (1) that the former husband’s request for a modification of child support from the filing of his Petition in June 2002 to the date of emancipation of the youngest minor child be denied; (2) that effective June 2002, alimony payments be modified to $400 per month; (3) that the former husband maintain a life insurance policy in the amount of $100,000, naming the former wife as the beneficiary; and (4) that the former husband’s total arrearage for unpaid alimony and health insurance premiums was $30,059.

Thereafter, the former husband filed Exceptions to Report of General Master, asserting that the general master erred by: denying his request to retroactively modify child support to the date that he filed his Petition; denying his request to terminate alimony; and requiring the former husband to maintain a life insurance policy in an amount that exceeds the ar-rearage or the present value of his alimony obligation until he reaches age 65.

The trial court entered an Order Granting Exceptions Terminating Alimony and Reducing Child Support (“Order Granting Exceptions”), in which it found and/or ordered that: (1) the evidence presented at the hearing before the general master did not demonstrate that the former husband was “deliberately unemployed;” (2) the former husband’s child support obligation should have been retroactively reduced by $238 per month for eighteen months; (3) alimony should have been terminated as of the filing of the Petition in June 2002; (4) the former husband’s total arrearage should be $18,575, not $30,059, due to the termination of alimony and the retroactive downward modification of child support; (5) the former husband’s obligation to maintain life insurance should be in the amount of $25,000 until the arrearage is paid; and (6) the former husband must pay to the former wife $400 per month until the arrearage is paid in full.

The former wife appeals, contending that the trial court abused its discretion by rejecting both the general master’s finding of fact that the former husband was “deliberately under-employed” and the general master’s recommendation that alimony be reduced, not terminated. We agree.

“Where a general master has been appointed for fact-finding and to recommend disposition of pending issues, the trial court is bound by the general master’s factual findings unless they are not supported by competent substantial evidence or are clearly erroneous.” Garcia v. Garcia, 743 So.2d 1225, 1226 (Fla. 4th DCA 1999); see also Sonson v. Sonson, 815 So.2d 685 (Fla. 3d DCA)(holding that trial court properly ratified general master’s findings of fact where findings were supported by competent, substantial evidence), review denied, 835 So.2d 269 (Fla. 2002); De Clements v. De Clements, 662 So.2d 1276 (Fla. 3d DCA 1995)(en banc)(“[A] Master’s findings of fact and conclusions of law come to the trial court clothed with a presumption of correctness, and the trial court may only reject these findings and conclusions if they are clearly erroneous or if the Master has misconceived the legal effect of the evidence presented.”); Linn v. Linn, 523 So.2d 642, 643 (Fla. 4th DCA)(“A trial court is bound by a master’s factual findings and recommendations unless they are clearly unsupported by the evidence and clearly erroneous.”), review denied, 534 So.2d 400 (Fla.1988). On appeal, this court must determine whether the “trial court abused its discretion when it rejected a general master’s report and recommendation.” Carls v. Carls, 890 So.2d 1135, 1138 (Fla. 2d DCA 2004).

As we conclude that the general master’s findings and recommendations were supported by the evidence, we conclude that the trial court abused its discretion in reweighing the evidence, and supplanting its opinion for that of the master. The trial court’s Order Granting Exceptions provides: “The evidence is clear that Mr. Robinson was not deliberately unemployed; that he went into a new business; it was funded with borrowed funds; the new business failed; Mr. Robinson went bankrupt; and that Mr. Robinson did not go into business to lose money.” This order is confusing because the general master did not find that the former husband was “deliberately unemployed.” Rather, the general master found that the former husband was “deliberately underemployed.” Assuming that the language “unemployed” is a typographical error and not a mistake in the understanding of the evidence presented, as the former husband clearly was employed and the general master found that he was “under-employed,” it is clear that the trial court simply reweighed the evidence and supplanted his opinion for that of the general master. As there was competent, substantial evidence in the record to support the general master’s findings, we find that the trial court erred when it failed to adopt them.

What the general master heard was that in 1995, the former husband left his employment at Xerox to open his own copy machine business. Unfortunately, the former husband’s business was mostly unprofitable, and in order to keep his business afloat, he chose to deplete his savings and retirement accounts and to borrow from his credit cards. Finally, in 2001, the former husband declared bankruptcy. Thereafter, instead of seeking employment with a more secure company, the former husband began to work for his present wife’s company, a copy machine business that was also suffering financially. While employed by his wife’s company, he was earning approximately $3,000 per month. However, oddly enough, after his child support obligations terminated, his present wife reduced his pay to approximately $2,000 per month. The record also reflects that the former husband has a Master’s Degree in Business Administration and was found by the general master to be “extremely well spoken.”

At the conclusion of the hearing, the general master found that the former husband should have abandoned his unsuccessful business earlier, and that he should have sought a better job. As the former husband holds a Master’s Degree in Business Administration and was earning $80,000 in 1995, the general master’s conclusion, that the former husband, who has elected to work in his current wife’s business for $2,000 a month rather than seeking more lucrative employment, was “deliberately under-employed,” is supported by competent, substantial evidence. Additionally, we also conclude that the general master’s recommendation that alimony be reduced, not terminated, was supported by the evidence and not clearly erroneous, see Linn, 523 So.2d at 643, and thus, the trial court abused its discretion by terminating alimony completely. We note that the trial court’s order is devoid of any finding that the former husband’s current financial situation is permanent. Carls, 890 So.2d at 1137-38 (“Florida caselaw is clear that the party seeking to modify the amount of alimony awarded by a final judgment first must show that there has been a substantial, material, permanent change in circumstances which was not contemplated at the time the amount of alimony originally was set.”).

Finally, based on its termination of alimony and the retroactive downward modification of child support, the trial court rejected the general master’s recommendation that the former husband maintain a $100,000 life insurance policy, naming the former wife as the beneficiary, and instead ordered that the former husband maintain a $25,000 life insurance policy until the arrearage was completely satisfied. As noted earlier, the Final Judgment provided that the purpose of the life insurance policy was to secure both child support and alimony. As this court has reinstated the general master’s recommendation that the former husband’s alimony obligation be reduced to $400 per month, not terminated, the general master’s recommendation that the former husband maintain a $100,000 life insurance policy was appropriate in light of his current age and arrearages.

Accordingly, this cause is reversed for entry of an order consistent with this opinion, and remanded for a recalculation of the total arrearages owed by the former husband.

Reversed and remanded.

      . It is interesting to note that in his Exception to Report of General Master, the former husband did not challenge the general master's finding that the former wife was currently unemployed, even though she testified that she was employed, earning approximately $1,200 to $1,300 per month.

      . In this appeal, the former wife does not challenge the portion of the trial court's Order Granting Exceptions in which the trial court retroactively reduced the former husband’s child support obligation. We, therefore, do not address this issue.


author:
SCHWARTZ, Senior Judge.
      SUAREZ, J. CORTEÑAS, Judge

text:
    Sheila V. McCUTCHEON, Appellant, v. Thomas J. TRACY, III, Appellee.
    No. 3D05-2637.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2006.
    Rehearing and Rehearing En Banc Denied May 22, 2006.
    Lisa A. Baird, Miami, for appellant.
    Bette E. Quiat; Jay M. Levy, Miami, for appellee.
    Before SUAREZ and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Because the trial court’s determination that the appellant was in material breach of the parties’ freely-entered-into marital settlement agreement is supported by the record, the judgment below is affirmed on the authority of the principle that the “[provisions of a property settlement agreement are interpreted by courts like any other contract,” Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980); Ospina-Baraya v. Heiligers, 909 So.2d 465 (Fla. 4th DCA 2005); Braswell v. Braswell, 881 So.2d 1193 (Fla. 3d DCA 2004); Coe v. Abdo, 790 So.2d 1276 (Fla. 4th DCA 2001), review denied, 817 So.2d 844 (Fla.2002), and that a court may not deviate from the terms of a voluntary contract either to achieve what it might think is a more appropriate result or “to relieve one of the parties from the apparent hardship of an improvident bargain,” Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955); Windham v. Windham, 152 Fla. 362, 11 So.2d 797 (1943), or ill-advised breach. See Clear Channel Metroplex, Inc. v. Sunbeam Television Corp., 922 So.2d 229 (Fla. 3d DCA 2005); Griffith v. Griffith 860 So.2d 1069 (Fla. 1st DCA 2003); Wood/Fay Realty Group, Inc. v. New Aquarius Corp., 842 So.2d 914 (Fla. 3d DCA 2003); Feldman v. Kritch, 824 So.2d 274 (Fla. 4th DCA 2002); Pol v. Pol, 705 So.2d 51 (Fla. 3d DCA 1997), review denied, 717 So.2d 536 (Fla.1998); Nat’l Health Labs., Inc. v. Bailmar, Inc., 444 So.2d 1078 (Fla. 3d DCA 1984), review denied, 453 So.2d 43 (Fla.1984). The facts and reasoning of the recently decided case of Polezoes v. Bartlett, 921 So.2d 35 (Fla. 4th DCA 2006), seem particularly apt. See also Colucci v. Kar Rare Auto. Group, Inc., 918 So.2d 431 (Fla. 4th DCA 2006).

Affirmed.

SUAREZ, J.

(specially concurring).

I concur and write only to clarify some of the factual issues in this case. The evidence showed that both parties entered into the marital settlement agreement (“MSA”) freely and with full advice of counsel. The MSA, among other things, unambiguously provides for the wife to obtain a commitment for financing to purchase the property in question forty-five (45) days after delivery of appraisal at a value of the appraisal less six percent (6%). It unambiguously provides that if the wife obtains a commitment, she shall be required to close no later than June 30, 2005. It additionally unambiguously states that the parties would agree to extensions relating to the dates in the MSA in the event of any third party’s failure to comply with the June 30, 2005, deadline for closing.

After an extensive evidentiary hearing, the trial court found that the wife was in material breach of the MSA. The trial court’s decision is supported by competent substantial evidence. The evidence showed that the wife obtained a loan commitment at eleven percent (11%) interest. She was unhappy with the commitment and attempted, at first, to have a straw person purchase the property for her, and then attempted to have her father purchase the property for her in order to obtain a better interest rate. The husband refused to enter into contracts with these two other parties as the MSA specifically provided that the wife would be the one to purchase the property under the agreed-upon terms. At the last minute, prior to the June 30, 2005, closing date, the wife attempted to obtain a loan commitment in her own name. The evidence showed that the institution which agreed to give the commitment could not close by June 30, 2005, due to the wife’s delay in applying for the commitment. Therefore, the court correctly concluded that it was not the fault of the third party institution, but was the fault of the wife that the closing was not concluded on June 30, 2005. The trial court was correct in determining that, based on these facts, it did not have the authority to grant the wife’s request for an extension to close and thereby rewrite the contract freely entered into by both parties.

CORTEÑAS, Judge

(dissenting).

Because neither the legal process employed by the trial court nor its holding comports with equity, I must respectfully dissent.

As part of the equitable distribution of assets' between the parties, the -instant marital settlement agreement' provided that the former wife could purchase the husband’s interest in the former marital home after obtaining a timely loan commitment and closing no later than June 30, 2005. The agreement expressly contemplated the possibility of reasonable extensions of time due to potential delays caused by third parties’ performances. Importantly, the agreement did not contemplate any consequences arising out of the former wife’s failure to close by June 30, 2005. Instead, the agreement only addressed certain consequences that would occur if the former wife did not obtain a timely loan commitment, including her need to vacate the premises by June 30, 2005 and the former husband’s right to sell the property to a third party.

The -parties agree that the former wife obtained a timely loan commitment, but it was at an interest rate of more than eleven percent (11-%) due to negative remarks in her credit report arising from various late mortgage payments during the course of the parties’ marriage. In order to obtain a more favorable interest rate, the former wife made arrangements to purchase the property with a co-buyer who could secure a much more favorable interest rate and still close by June 30, 2005. However, nine (9) days before June 80, 2005, the former husband refused to execute a contract for the sale of the property to the former wife and co-buyer, insisting that he would only sell to the former wife. The former wife also attempted to have her father purchase the property on her behalf, also at a more favorable interest rate, but the former husband refused this proposal as well.

On June 29, 2005, the former wife filed a motion requesting additional time to close on the property. The former husband responded by filing a motion to enforce the final judgment, claiming that the former wife was required to close by June 30, 2005 and, because she did not do so, she was required to vacate the property and sign away her interest in the property to the former husband. The trial court denied the former wife’s request for additional time to close on the property, finding that “the delay in this case was because she didn’t like her interest rate” and ordered her to vacate the premises “forthwith.”

The trial court and the majority reason that the settlement agreement contemplated a closing by June 30, 2005 and, because the former wife had the opportunity to close by that date and did not do so, she breached the agreement, thereby forfeiting her right to purchase the former marital home.

As a court of equity, a family court is a “forum into which litigants may come on terms of equality, litigate their differences, have the equities for and against them balanced, and right and justice meted out to them.” Baker v. Baker, 94 Fla. 1001, 114 So. 661 (1927). The former wife’s request for additional time to close on the property arose from the former husband’s refusal to allow the former wife to purchase the property through the assistance of third parties so that she may procure a more favorable interest rate. There is nothing in the marital settlement agreement that prohibited the former wife from assigning her rights under the agreement and, perhaps more importantly, there were no negative consequences to the former husband from any such assignment. As such, the sale proposed by the former wife would have accomplished the parties’ intentions under the agreement. The trial court’s and the majority’s resolution of the matter frustrates those intentions and runs afoul of equitable principles.

It is well-settled that property settlement agreements should be upheld unless fraud, duress, deceit, coercion, or overreaching is alleged and proved. Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Miller v. Miller, 149 Fla. 722, 7 So.2d 9 (1942); Farkas v. Farkas, 426 So.2d 1213 (Fla. 4th DCA 1983); Zakoor v. Zakoor, 240 So.2d 193 (Fla. 4th DCA 1970). As such, in Forte v. Forte, 478 So.2d 460 (Fla. 3d DCA 1985), we held that a portion of a separation agreement and final judgment of dissolution granting the wife the option to purchase the marital home conferred a vested property right which was not subject to modification. See also Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Neal v. Neal, 403 So.2d 621 (Fla. 5th DCA 1981). Thus, I agree with the majority that the parties’ agreement, including the provisions for extensions of time, is not subject to modification.

However, in requesting additional time, the former wife was not seeking to rewrite the parties’ agreement but, rather, obtain a brief extension of time to accomplish the parties’ intentions. Indeed, the agreement provided for the possibility of extensions of time to close on the property. The former wife had hoped that the former husband would have been reasonable and allowed her to purchase the property with the assistance of a third party so that she may obtain a lower interest rate. The trial court and the majority ignore these very real problems faced by real people in the real world. Before a judicial tribunal, a discussion concerning a high mortgage interest rate of eleven percent (11%) can be made to sound academic or, even worse, irrelevant. In the real world, an 11% interest rate on a mortgage determines whether one can meet monthly household expenses.

Here, the clear language of the marital settlement agreement did not include any consequences arising from the former wife’s inability to close by June 30, 2005. The agreement expressly required the former wife to obtain a timely loan commitment and spelled out the consequences of her failing to do so. Those clauses, which formed the basis of relief by the trial court, are simply inapplicable as there is no dispute that the former wife obtained a prior loan commitment.

Recently, the Fourth District correctly distinguished deadlines in commercial contracts and contracts specifying that time is of the essence from deadlines in a marital settlement agreement. In Rose v. Ditto, 804 So.2d 351 (Fla. 4th DCA 2001), the Fourth District considered a former husband’s two-day delay in making the first payment pursuant to the parties’ settlement agreement and found the breach was not material. The Rose court noted that “the modern trend of -decisions concerning brief delays by one party in the performance of a contract or conditions thereunder, in the absence of an express stipulation in the contract that time is of the essence, is not to treat such delays as a failure of a constructive condition discharging the other party unless performance on time was clearly an essential and vital part of the bargain.” Rose, 804 So.2d at 352 (quoting National Exhibition Co. v. Ball, 139 So.2d 489 (Fla. 2d DCA 1962)).

In the instant case, the marital settlement agreement did not provide that time was of the essence. Nor did the agreement provide that the failure to close by June 30, 2005 would discharge the former husband’s obligation to proceed with the sale of the property. As such, a delay of a few days to close on the property did not constitute a material breach of the marital settlement agreement and, certainly, did not eviscerate the former husband’s legal obligation to sell the property to the former wife. See Rose, 804 So.2d at 353.

A brief extension of time would have yielded no negative consequences to the former husband and, more importantly, would have accomplished the parties’ intentions under the agreement. Equity required nothing less.


text:
    Alex BANEGAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1766.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing and Rehearing En Banc Denied May 22, 2006.
    Alex Banegas, in proper person.

      Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000).


author: WELLS, J. SHEPHERD, J.,

text:
    Eric Eugene GRIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-930.
    District Court of Appeal of Florida, Third District.
    March 1, 2006.
    Rehearing Denied April 6, 2006.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SHEPHERD, JJ.
   WELLS, J.

Eric Eugene Grier appeals from a second degree murder conviction claiming that the deadly force instruction read to the jury constituted reversible error. We agree, reverse Grier’s conviction and sentence, and remand for a new trial.

Grier was convicted for the second degree murder of Willie Walls. Walls was married to, but separated from, Grier’s mother. On the day of Walls’ death, Grier, who maintained a cordial relationship with Walls, visited Walls at Walls’ home. The visit was unremarkable until Grier overheard a telephone conversation between Walls and Walls’ former wife. Following this conversation, the two men began to argue when Grier commented on Walls’ continued relationship with his ex-wife. As the day wore on, the argument escalated until Walls finally came at Grier brandishing a kitchen knife.

According to Grier, he managed to wrest the knife from Walls and then repeatedly stabbed him during a violent fight in which Walls, who outweighed Grier by over forty pounds, attempted to reacquire the knife while threatening to seriously harm Grier. After finally subduing Walls, Grier attempted to clean the bloodied home. He also covered a window so that no one could see inside and cut the telephone wires before leaving Walls incapacitated and bleeding profusely on the floor. Walls later died where Grier left him.

Grier was subsequently charged in a single count information with second degree murder. His sole defense was self defense. While the trial court agreed to give the standard jury instruction on self defense, it also decided to give an independent forcible felony instruction:

An issue in this case is whether the defendant acted in self-defense. It is a defense in the offense with which ERIC GRIER is charged if the death of WILLIE WALLS resulted form the justifiable use of force likely to cause death or great bodily harm.
The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting:
1. Another’s attempt to murder him, or
2. Any attempt to commit Manslaughter or Aggravated Battery upon him.
* * * *
However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. ERIC GRIER was attempting to commit, committing or escaping after the commission of Second Degree Murder or Manslaughter or Aggravated Battery.

(Emphasis added).

Grier claims that giving the independent forcible felony instruction mandates reversal. We agree.

The forcible felony exception to self defense is predicated “on section 776.041(1) of the Florida Statutes which is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time.” Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004) (citing Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004), and Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004)). “More specifically, the forcible felony instruction is given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate forcible felony.” Id.

In the instant case, Grier was charged with a single forcible felony. It was therefore error to give the forcible felony instruction. See Cleveland, 887 So.2d at 363 (concluding that giving the forcible felony instruction where the Defendant was charged with only a single forcible felony was error); Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004) (same); Barnes 868 So.2d at 607 (same). More significantly, the error was fundamental because it negated Grier’s sole defense, an error which cannot be viewed as harmless and which we agree mandates reversal irrespective of an objection on Grier’s part:

Where a separate forcible felony is not involved, the giving of the instruction negates the defense of self defense.
... This District, as well as the Second and Fourth Districts, have further held that this error is fundamental in nature and thus can be considered in the absence of an objection below. Fundamental error exists where an inaccurate and misleading instruction negates the defendant’s only defense.

Carter, 889 So.2d at 939 (citations omitted) (emphasis added); see Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) (“where, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant’s only defense, it is fundamental error ... renewable in the complete absence of a request or objection”); Dunnaway v. State, 883 So.2d 876, 879 (Fla. 4th DCA 2004) (“fundamental error results where an inaccurate and misleading instruction negates a defendant’s only defense”).

Accordingly, Grier’s conviction is reversed and this matter is remanded for a new trial.

FLETCHER, J., concurs.

SHEPHERD, J.,

concurring.

I write only to note that there were actually two sets of facts on which Grier could have been convicted of second-degree murder: those arising out of the altercation, and the separate action of leaving a very-much-alive victim in obvious need of medical care to die in an intentionally concealed environment. The latter theory included evidence that Grier (1) cut the telephone lines both inside and outside the house, (2) covered the window to prevent outsiders from viewing the carnage within, and (3) locked the front and side doors. Grier testified that he did these things due to fear of going to jail rather than imminent harm to his person. The State, however, did not argue the second theory as grounds for conviction below. Had the State argued this evidence as an independent basis to convict, I believe the guilty verdict would have been sustainable. See Rayl v. State, 765 So.2d 917 (Fla. 2d DCA 2000); see also State v. Delva, 575 So.2d 643, 645 (Fla.1991)(“Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.”).

The State presented this second theory for the first time on appeal. Because the State presented this theory for the first time on appeal, we must reverse. State v. Foxworth, 757 So.2d 1270 (Fla. 4th DCA 2000). For this additional reason, I join the opinion of the majority.

      . Reed v. State, 837 So.2d 366, 370 (Fla.2002) ("[b]y its very nature, fundamental error has to be considered harmful”).