author: SHAW, Judge.

text:
    Michael D. CARRUTH v. STATE of Alabama.
    CR-03-0327.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Oct. 14, 2005.

      Stephen Willis Guthrie, Birmingham, for appellant.
    Troy King, atty. gen., and Stephen Shows, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, Michael D. Carruth, was convicted of four counts of capital murder in connection with the murder of 12-year-old William Brett Bowyer (“Brett”). 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)(1), 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; (3) because it was committed during the course of a burglary in the first degree, see § 13A-5-40(a)(4), Ala. Code 1975; and (4) because Brett was less than 14 years of age, see § 13A-5-40(a)(15), Ala.Code 1975. Carruth was also convicted of attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala. Code 1975, robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975, and burglary in the first degree, a violation of § 13A-7-5, Ala.Code 1975, with respect to Brett’s father, Forest F. Bowyer (“Bow-yer”). The jury unanimously recommended that Carruth be sentenced to death for his capital-murder convictions. The trial court accepted the jury’s recommendation and sentenced Carruth to death. In addition, the trial court sentenced Carruth to life imprisonment for the attempted-murder, robbery, and burglary convictions.

In its sentencing order, the trial court made the following findings of fact, which are supported by the evidence, regarding the crimes:

“[I]n the evening and early morning hours of February 17 and February 18, 2002, the defendant, Michael David Car-ruth, and another person identified as Jimmy Lee Brooks, Jr., entered the home of Forest F. (Butch) Bowyer and his son William Brett Bowyer, while the home was occupied by both Forest F. (Butch) Bowyer and his son William Brett Bowyer. William Brett Bowyer was twelve (12) years of age.
“[Carruth] and [Brooks] entered the Bowyer home under the guise of being narcotics officers. The Bowyers were handcuffed and taken to a remote road construction site in rural Russell County, the vicinity of the ultimate murder site, where the elder Bowyer was questioned concerning a safe [that, based on Brooks’s former employment with Bow-yer, Carruth and Brooks believed Bow-yer had containing $100,000]. The mode of transportation was a white Ford Crown Victoria that had a security shield between the front and back seats.
“The Bowyers were taken back to their home in order for Forest F. (Butch) Bowyer to get money for [Car-ruth] and [Brooks]. While there, [Car-ruth] slapped the elder Bowyer. [Brooks] found money[, approximately $47,000] and a .38 caliber Smith and Wesson revolver.
“[Carruth] and [Brooks] transported the Bowyers back to the road construction site, this time to the murder site. [Carruth] walked Forest F. (Butch) Bowyer away from the car and cut him on the [right side of his] neck [and he said, ‘that’s sharp, isn’t it?’] [Carruth] shortly thereafter cut Forest F. (Butch) Bowyer’s throat. [Brooks] also cut Bowyer’s throat. [Carruth] then sat on Forest F. (Butch) Bowyer and told him to ‘go to sleep.’ It was during this period of time that the child, William Brett Bowyer, asked [Carruth] and [Brooks] not to hurt his daddy. The response to the child from [Brooks] was that he needed to be concerned about himself, not his dad.
“The defendant, Michael David Car-ruth, told [Brooks] ‘I’ve done one, now you do one.’ At this point, [Brooks] shot the child in the head. When a gurgling sound came from the child, [Brooks] commented ‘the little M.F. doesn’t want to die’ and shot him two (2) more times in the head. The child, William Brett Bowyer, fell into a shallow grave [that Carruth and Brooks had dug earlier]. The father, Forest F. (Butch) Bowyer, was thrown on top of the child-. [Car-ruth] and [Brooks] laughed and joked as they threw dirt on the dead child and his father, covering them in the shallow grave.”

(C. 704-06.) After Carruth and Brooks left the scene, Bowyer dug himself out of the grave and flagged down a passing motorist for assistance. He later identified both Carruth and Brooks as the perpetrators of the crimes.

I.

Carruth contends that the trial judge, Albert L. Johnson, erred in not recusing himself from presiding over Car-ruth’s trial because, he says, Judge Johnson exhibited personal bias toward him when ruling against Tri-County Bonding Company (“Tri-County”), a company for which Carruth worked, in two bond-forfeiture cases. According to Carruth, Judge Johnson’s demeanor and conduct in the forfeiture cases, as well as some off-the-record comments Carruth says Judge Johnson made to him at another time, would lead a reasonable person to question whether Judge Johnson harbored a personal bias against him or lacked impartiality.

In his motion for recusal, Carruth alleged that Judge Johnson had presided over two bond-forfeiture hearings involving Tri-County — one involving Mack Devon Knight and the other involving Keith Allen Butts — and that Judge Johnson improperly forfeited both bonds and told Carruth, who was representing Tri-County at the hearings, that Tri-County would be out of business until the money was paid. Carruth also alleged that Judge Johnson treated another bonding company, Weeks Bonding Company (“Weeks”), differently than he treated Tri-County; specifically, he alleged that Judge Johnson allowed Weeks “to turn a defendant into the Sheriffs custody ninety (90) days after the bond forfeiture was finalized,” commended Weeks for returning the defendant to court, and “never ordered Weeks Bonding Company out of business until the money was paid.” (C. 100.)

Carruth was the only witness to testify at the evidentiary hearing on the recusal motion; he also introduced several documents relating to the bond-forfeiture hearings involving Knight and Butts. The evidence at the hearing indicated that in October 1999 conditional forfeitures were entered against Tri-County when Knight and Butts failed to appear in court. TriCounty filed answers to the conditional forfeitures in November 1999 — Carruth had prepared both answers. In the Knight case, Tri-County alleged in its answer that Knight was incarcerated in Georgia and that a detainer had been lodged against him by the Russell County Sheriffs Department; attached to the answer was a letter to Tri-County from Ruth Hollins, an employee of the Russell County Sheriffs Department, stating that Knight was currently in the Muscogee County jail in Georgia and that Russell County would be notified upon his release. In the Butts case, Tri-County alleged that it had been unable to find Butts. Judge Johnson scheduled bond-forfeiture hearings for both cases for March 7, 2000.

Carruth appeared as a representative of Tri-County at those bond-forfeiture hearings. At the forfeiture hearing for Knight, Carruth told Judge Johnson that Knight was then incarcerated at Hayes State prison in Georgia, but he presented no documentation from the State of Georgia verifying that fact. In response, Judge Johnson stated: “Well, like I just ... told Weeks Bonding, by closing today I’m going to have something in this file saying what you’re telling me ... or by nine o’clock in the morning I’m going to have $5,000 or you’re not going to be operating at 9:01- Simple as that.” (C. 2595.) At the forfeiture hearing for Butts, Carruth told Judge Johnson that Tri-County had been looking for Butts but had been unable to find him. In response, Judge Johnson stated “I want $7,500 by noon today, or I’ll issue an order to stop you from operating.” (C. 2614.) Judge Johnson issued final bond forfeitures against Tri-County in both cases following the hearings on March 7, 2000. Tri-County paid both bonds on March 31, 2000. On April 17, 2000, Carruth located Butts and returned him to jail; no further action was taken in that case to get the forfeiture set aside. However, Tri-County, through its attorney, filed a motion to set aside the forfeiture in the Knight case, and a hearing was held on that motion on June 20, 2000. At the hearing, Carruth again appeared as a representative of Tri-County and told Judge Johnson that Knight was still in prison in Georgia; the prosecutor confirmed that Knight was in prison in Georgia. Judge Johnson then stated:

“All right. I’m going to again show that, let the record reflect, that I have nothing in the file to indicate from any law enforcement agency in the State of Georgia saying that he’s incarcerated, and I think that prudence would require me to have that. But because you filed an answer and the State has verified that Mr. Knight is, indeed, in the State of Georgia, I’m going to set the forfeiture aside at this time.
“But I’m telling you, from this point forward, if I do not have the affidavits, then I’m not going to set them aside.”

(C. 2603-04.) At this point in the hearing, Carruth stated that he had a copy of a certification from the State of Georgia regarding Knight’s incarceration and that he would bring a copy to the court. The clerk then informed Judge Johnson that a copy of the certification was in another file. The case action summary from the Knight case indicates that a copy of the certification from the State of Georgia regarding Knight’s incarceration had been faxed to the court on March 9, 2000, two days after the first bond-forfeiture hearing. On June 28, 2000, Judge Johnson issued an order setting aside the forfeiture in the Knight case and ordering that Tri-County be reimbursed.

At the recusal hearing, Carruth testified on direct examination that he believed Judge Johnson was biased against him based on statements he said Judge Johnson had made to him off-the-record and based on Judge Johnson’s demeanor at the bond-forfeiture hearings. Carruth testified that one time when he applied for recertification for Tri-County, Judge Johnson said “the best news that you’re going to have this year is that I’m no longer in charge of criminal matters, that I’m on the civil side” and that “I may be a son-of-a-bitch, but I’m an equal opportunity son-of-a-bitch.” (R. 174.) Carruth stated that Judge Johnson was “in a good mood” and was “polite” when he made these statements. (R. 173.) Judge Johnson stated at the hearing on Carruth’s recusal motion that he did not specifically recall making these statements to Carruth, but that he had, in the past, said that he “was an equal opportunity S.O.B.” (R. 201.) Carruth also testified that Judge Johnson appeared “unhappy” and even angry at him during the bond-forfeiture hearings. (R. 168.) According to Carruth, “If I spoke to him like he spoke to me, I’d be in contempt of court.” (R. 149.) Car-ruth further testified that Judge Johnson treated Tri-County differently than he treated other bonding companies. He said that Weeks brought in a defendant 60 to 90 days after the final forfeiture had been issued and that Judge Johnson set aside the forfeiture and commended Weeks for its work in returning the defendant. - Car-ruth testified that he never heard-Judge Johnson threaten to shut down Weeks, as he did Tri-County, if it did not pay the bond, and he specifically testified that he was present during a forfeiture hearing involving Weeks on March 7, 2000, and that Judge Johnson was “very cordial” to Cynthia Weeks (R. 175) and that he heard “nothing but admiration” from’ Judge Johnson regarding Weeks (R. 173) at that time. However, on cross-examination, Carruth admitted that Judge Johnson entered final forfeitures against all bonding companies “equally” (R. 187); that he heard Judge Johnson tell Weeks on March 7, 2000, that documentation was necessary just as he had told Tri-County; and that he was aware, long before the forfeiture hearing involving Knight, that documentation from the authorities holding a defendant in another jurisdiction was required to avoid forfeiture.

After Carruth’s testimony, Judge Johnson, without objection, introduced as 'a court exhibit a transcript of a bond-forfeiture hearing he presided over involving Weeks. In doing so, he stated:

“All right. We’re going to mark the exhibit as CC-99-15, and let me say this was done today. When this motion was filed, I began to prepare the record, so to speak, to make sure that everyone was given ample opportunity to see what actually transpired on the date complained of. And when there are allegations of bias, I think the court has an obligation to get to the bottom of it, and, indeed, to determine if there has been instance[s] of bias.
“The foundation of our judicial system is that all parties receive a fair and just ■trial. And even perceived bias, whether it’s intended or not, I think many times can jeopardize that. But to be perceived bias, there must be some rational, must be a reasonable perception, and I would think that’s what the caselaw would show, that there must be a reasonable perception. And I wanted to get a copy of the other hearing concerning Weeks Bonding Company, and I think1 the parties have just read that, and I’m going to label this as court’s exhibit 1 and introduce it into evidence.
“And I do want to read the last paragraph. This is from ‘THE COURT: Okay. Well, like I said, that’s why we’re having this hearing, so we can get it straight. And if they can have it to the clerk by closing today, then I’m going to set it aside.’ We were referring, I think, to a preliminary forfeiture. ‘We will hear these matters — this case number CC-99-14 . and 99-15. These matters are set to determine why final forfeiture should not be entered.’ A preliminary had been entered at that time but no final. If they can — and then well go back. ‘If they can have, it to the clerk by closing today, then I’m going to set it aside. That being the preliminary forfeiture. If the clerk’s office doesn’t have it today, then I [expect] then — what is it, we’re going to do one of two things. By the end of closing today I’m going to set it aside or nine o’clock in the morning I want $30,000. One of those things is going to happen. All right. Thank you.’ ”

(R. 193-95.) After hearing arguments from the parties, Judge Johnson then denied the motion for recusal.

“All judges are presumed to be impartial and unbiased,” Woodall v. State, 730 So.2d 627, 638 (Ala.Crim.App.1997), aff'd in pertinent part, rev’d on other grounds, 730 So.2d 652 (Ala.1998), and “[t]he burden i[s] on the' party making a motion to recuse to establish that the trial judge is biased or prejudiced against the defendant.” Stallworth v. State, 868 So.2d 1128, 1140 (Ala.Crim.App.2001). Canon 3.C.(1), Alabama Canons of Judicial Ethics, provides, in pertinent part:

“C. Disqualification.
“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....”

In Ex parte Duncan, 638 So.2d 1332 (Ala.1994), the Alabama Supreme Court explained:

“Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when ‘facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.’ Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: “Would a person of ordinary prudence in the judge’s position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge’s impartiality?’ Matter of Sheffield, 465 So.2d 350, 356 (Ala.1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality— whether there is an appearance of impropriety. Id.; see Ex parte Balogun, 516 So.2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983).”

638 So.2d at 1334.

“The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge’s impartiality.’ [Ex parte] Cotton, 638 So.2d [870] at 872 [ (Ala.1994) ]. The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question. In In re Sheffield, 465 So.2d 350, 357 (Ala.1984), this Court wrote:
“ ‘[T]he reasonable person/appearance of impropriety test, as now articulated in Canon 3(C)(1), in the words of the Supreme Court of the United States, may “sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). As stated in Canon 1 of the Code of Judicial Ethics, “An independent and honorable judiciary is indispensable to justice in our society,” and this requires avoiding all appearance of impropriety, even to the point of resolving all reasonable doubt in favor of recusal.’
“(Some emphasis original; some emphasis added [in Bryant

Ex parte Bryant, 682 So.2d 39, 41 (Ala.1996).

“Any disqualifying prejudice or bias as to a party must be of a personal nature and must stem from an extrajudicial source.” Ex parte Melof, 553 So.2d 554, 557 (Ala.1989), abrogated on other grounds, Ex parte Crawford, 686 So.2d 196 (Ala.1996).

“ ‘ “The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” ’ ”

Ex parte Duncan, 638 So.2d at 1334, quoting Ex parte Large, 501 So.2d 1208, 1210 (Ala.1986), quoting in turn United States v, Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). As this Court explained in Woodall, supra, in upholding the trial court’s denial of a motion to recuse on the ground that the trial court had previously entered a civil judgment against the defendant:

“To disqualify a judge because of bias, the bias must be personal bias. Ex parte Large, 501 So.2d 1208, 1210-11 (Ala.1986).
“ ‘The bias or prejudice which has to be shown before a judge is disqualified must be “personal” bias, and not “judicial” bias. Personal bias, as contrasted with judicial, is an attitude of extra-judicial origin, or one derived non coram judice. In re White, 53 Ala.App. 377, 300 So.2d 420 (1974). The fact that one of the parties before the court is known to and thought well of by the judge is not sufficient to show bias. Duncan v. Sherrill, 341 So.2d 946 (Ala.1977). Neither is the fact that the judge had previously sentenced the defendant’s partner in crime to the maximum sentence and bemoaned the fact that he could not impose a longer sentence sufficient to constitute proof of bias. Coleman v. State, 57 Ala.App. 75, 326 So.2d 140 (1976). Nor is bias proved simply because the trial judge who presided at the second trial of defendant had also presided at his first trial and heard evidence later found to be inadmissible by an appellate court. Walker v. State, 38 Ala.App. 204, 84 So.2d 383 (1955).’
“McMurphy v. State, 455 So.2d 924, 929 (Ala.Cr.App.[1984]). The only bias attributed to the trial judge in Woodall’s arguments to this court is judicial in nature. Woodall alleges no personal or extra judicial bias on the part of the trial judge. The bare assertions that the trial judge should recuse merely because he is presiding over related cases are meritless.”

730 So.2d at 638. See also Key v. State, 891 So.2d 353 (Ala.Crim.App.2002) (no error in denying motion to recuse on the ground that trial judge had presided over previous criminal proceeding against the defendant), aff'd, 891 So.2d 384 (Ala.2004).

In this case, the only bias on the part of Judge Johnson Carruth alleged is judicial in nature — stemming from Judge Johnson’s presiding over two bond-forfeiture cases involving Carruth’s employer and Judge Johnson’s off-the-record comments when Carruth applied for recertification on behalf of his employer. Carruth has failed to show, or even to allege, any personal bias on the part of Judge Johnson stemming from an extrajudicial source. Moreover, there is no reasonable question as to Judge Johnson’s impartiality or any appearance of impropriety. Merely because Judge Johnson ruled against Tri-County in the bond-forfeiture hearings at which Carruth was Tri-County’s representative does not create an appearance of impropriety and, as Carruth admitted during cross-examination, Judge Johnson entered final forfeitures against all bonding companies “equally.” (R. 187.) Although Car-ruth found Judge Johnson’s demeanor at the forfeiture hearings to be less than cordial, a judge’s demeanor during a judicial proceeding is not sufficient to warrant recusal. “A judge’s ordinary efforts at courtroom administration — even a stern and short-tempered judge’s ordinary efforts at courtroom administration' — -remain immune.” Liteky v. United States, 510 U.S. 540, 556, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Finally, as Judge Johnson noted during the recusal hearing, any comments he made to Carruth when Carruth applied for recertification on behalf of TriCounty were “not ... referenee[s] to anyone else but to [himjself” (R. 205), and, thus, do not create an appearance of impropriety.

There was no basis for Judge Johnson to recuse himself in this case; therefore, he properly denied Carruth’s motion to re-cuse.

II.

Carruth contends that the trial court erred in denying his motion for a change of venue based on pretrial publicity-

“The yardstick by which this court measures the correctness of a trial court’s ruling on a motion for change of venue is whether the trial court ‘abused its discretion’ in denying the motion.
“ ‘The determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial.’
“Nelson v. State, 440 So.2d 1130, 1132 (Ala.Cr.App.1983). See also Trahan v. State, 450 So.2d 1102 (Ala.Cr.App.1984). An appellant must prove a ‘gross abuse of discretion’ before the trial court’s ruling on a motion for change of venue will be reversed on appeal. Anderson v. State, 443 So.2d 1364 (Ala.Cr.App.1983).
“In connection with pretrial publicity, there are two situations which mandate a change of venue: 1) when the accused has demonstrated ‘actual prejudice’ against him on the part of the jurors; 2) when there is ‘presumed prejudice’ resulting from community saturation with such prejudicial pretrial publicity that no impartial jury can be selected. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau[ v. Louisiana, 373 U.S. 723 (1963) ]; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985); Coleman v. Zant, 708 F.2d 541 (11th Cir.1983).
“The ‘actual prejudice’ standard is defined as follows:
“ ‘To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. [717,] 727, 81 S.Ct. [1639,] 1645, [6 L.Ed.2d 751, 758-59 (1961) ]. Second, these jurors, it must be determined, could not have laid aside these preformed opinions and “render[ed] a verdict based on the evidence presented in court.”
Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643 [6 L.Ed.2d at 756].’
“Coleman v. Zant, 708 F.2d at 544.
“... Th[e ‘presumed prejudice’] standard was defined by the Eleventh Federal Circuit Court of Appeals in Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). The court stated: ‘Prejudice is presumed from pretrial publicity when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held.’ 778 F.2d at 1490 (emphasis added). See also Holladay v. State, 549 So.2d 122, 125 (Ala.Cr.App.1988), affirmed, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).
“In determining whether the ‘presumed prejudice’ standard exists the trial court should look at ‘the totality of the surrounding facts.’ Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The presumptive prejudice standard is ‘rarely’ applicable, and is reserved for only ‘extreme situations.’ Coleman v. Kemp, 778 F.2d at 1537. ‘In fact, our research has uncovered only a very few ... cases in which relief was granted on the basis of presumed prejudice.’ Coleman v. Kemp, 778 F.2d at 1490.
“[The defendant has] the burden of showing that ‘prejudicial pretrial publicity’ saturated the community. Sheppard, supra. ‘[T]he burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.’ Coleman v. Kemp, 778 F.2d at 1537. ‘Prejudicial’ publicity usually must consist of much more than stating the charge, and of reportage of the pretrial and trial processes. ‘Publicity’ and ‘prejudice’ are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial.”

Hunt v. State, 642 So.2d 999, 1042-43 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994). “Thus, a change of venue must be granted only when it can be shown that the pretrial publicity has so ‘pervasively saturated’ the community as to make the ‘court proceedings nothing more than a “hollow formality,” ’ Hart v. State, 612 So.2d 520, 526-27 (Ala.Cr.App.), affirmed, 612 So.2d 536 (Ala.1992), cert. denied, [508] U.S. [953], 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993), citing Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963), or when actual prejudice can be demonstrated.” Oryang v. State, 642 So.2d 979, 983 (Ala.Crim.App.1993). Moreover, “the passage of time is a factor that can bring objectivity to a case in which the pretrial publicity has been extensive.” Ex parte Travis, 776 So.2d 874, 878 (Ala.2000).

In support of his motion for a change of venue, Carruth submitted several newspaper articles that had been published about the case; most of those articles were printed within two months of the murder, and all but one of the remaining articles were printed approximately a year later, in February 2003, over seven months before Carruth’s trial began in September 2003. One article appeared in a local newspaper the weekend before jury selection began. We have examined the articles presented to the trial court, and we find that most of the reports were factual and relatively objective rather than accusatory, inflammatory, or sensational. To warrant a change of venue under the presumed prejudice standard, “it must be shown that the pre-trial publicity surrounding the case was inherently prejudicial,” Holladay v. State, 549 So.2d 122, 125 (Ala.Crim.App.1988), aff'd, 549 So.2d 135 (Ala.1989); “the publicity must be both extensive and sensational in nature.” Perkins v. State, 808 So.2d 1041, 1069 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala. 2001), judgment vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), on remand to, 851 So.2d 453 (Ala.2002). “ ‘ “Newspaper articles alone would not necessitate a change of venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible.” ’ ” Oryang, 642 So.2d at 983, quoting Thompson v. State, 581 So.2d 1216, 1233 (Ala.Crim.App.1991), quoting in turn McLaren v. State, 353 So.2d 24, 31 (Ala.Crim.App.1977). “ ‘If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice.’ ” Perkins, 808 So.2d at 1069, quoting United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.1990).

We do not find that the pretrial publicity in this case so “pervasively saturated” the community as to render the court proceedings nothing more than a “hollow formality.” Oryang, 642 So.2d at 983. Nor do we find that the publicity was so inherently prejudicial as to create a presumption of prejudice. Carruth has failed to prove that the media reports so inflamed or saturated the community as to create an emotional tide against him. Thus, he has not shown that the pretrial publicity in this case was so inherently prejudicial as to constitute one of those “extreme situations” that warrant a presumption of prejudice.

In addition, we have thoroughly reviewed the record and we find no evidence of actual prejudice on the part of any juror who sat on Carruth’s jury. The jury veni-re, consisting of 85 prospective jurors, was questioned extensively and thoroughly in an individual, sequestered setting. While the majority of the prospective jurors had read or heard media reports about the case and many had formed opinions about the case based on those reports, only six stated that they had such fixed opinions of Carruth’s guilt based on the media coverage that they would be unable to set aside those opinions and render a decision based solely on the evidence, and those jurors were removed for cause. In addition, although 10 of the 12 jurors who ultimately decided the ease indicated during voir dire that they had read or heard media reports, those 10 jurors also indicated that they could set aside what they had read or heard and base their decision solely on the evidence presented during the trial.

“As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961):
“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....’
“The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 5.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975). Thus, ‘[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.’ Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978).”

Ex parte Grayson, 479 So.2d 76, 80 (Ala.1985).

“[T]he fact that even a majority of the prospective jurors had preconceived notions of the guilt of the accused does not require a change of venue where there is evidence that the jurors would be able to lay aside their impressions or opinions and render a verdict based on the evidence presented in court. Callahan v. State, 471 So.2d 447, 452 (Ala.Cr.App.1983), reversed on other grounds, Ex parte Callahan, 471 So.2d 463 (Ala.1985). ‘The relevant question is not whether the community remembered the case, but whether the jurors at [the accused’s] trial had such fixed opinions that they could not judge impartially the guilt of the defendant.’ Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).”

Fortenberry v. State, 545 So.2d 129, 141 (Ala.Crim.App.1988), aff'd, 545 So.2d 145 (Ala.1989).

Carruth has failed to show either that the community was saturated with such prejudicial pretrial publicity as to create a presumption of prejudice or that actual prejudice existed among the jurors at his trial. The media coverage was not so sensational and inflammatory as to create a presumption of prejudice, and the record contains no indication that any juror who sat on Carruth’s jury had such a fixed opinion of Carruth’s guilt that he or she could not render an impartial verdict based on the evidence presented at trial. Therefore, the trial court did not abuse its discretion in denying Carruth’s motion for a change of venue.

III.

Although the issue was not argued by Carruth on appeal or mentioned by the State in its brief, we are obligated to take notice that Carruth’s convictions for both capital murder during a burglary and burglary in the first degree, as well as his convictions for both capital murder during a robbery and robbery in the first degree, violate the principles of double jeopardy.

Carruth was charged with capital murder during a burglary as follows:

“The Grand Jury of said county further charge that, before the finding of this indictment, Michael D. Carruth, whose true name is otherwise unknown to the Grand Jury than as stated, did intentionally cause the death of William Brett Bowyer, by shooting the said William Brett Bowyer with a pistol, and Michael D. Carruth caused said death during the time that Michael D. Carruth was in the course of knowingly and unlawfully entering or remaining unlawfully in a dwelling with the intent to commit a crime therein[] and in effecting entry or while in the dwelling or in immediate flight therefrom, Michael D. Carruth or another participant in the crime was armed with a deadly weapon, to-wit: a pistol, in violation of Section 13A-5-40(a)(4) of the Code of Alabama, 1975, as amended and against the peace and dignity of the State of Alabama.”

(C. 47.) Carruth was charged with capital murder during a robbery as follows:

“The Grand Jury of said county further charge that, before the finding of this indictment, Michael D. Carruth, whose true name is otherwise unknown to the Grand Jury than as stated, did intentionally cause the death of William Brett Bowyer, by shooting the said William Brett Bowyer with a pistol, and Michael D. Carruth caused said death during the time that Michael D. Carruth was in the course of committing a theft of currency of the United States of America, a further and better description being otherwise unknown to the Grand Jury, the property of Forest [F.] Bowyer, by the use of force against the person of Forest [F.] Bowyer, with intent to overcome his physical resistance or physical power of resistance, while the said Michael D. Carruth was armed with a deadly weapon, to-wit: a knife or other sharp instrument and or a pistol, a further and better description being otherwise unknown to the Grand Jury, in violation of Section 13A-5^40(a)(2> of the Code of Alabama 1975, as amended, and against the peace and dignity of the State of Alabama.”

(C. 47.) Carruth was also charged with burglary in the first degree as follows:

“The Grand Jury of said county charge that, before the finding of this indictment, Michael D. Carruth, whose name is otherwise' unknown to the Grand Jury, did knowingly and unlawfully enter or remain unlawfully in a dwelling of Forest F. Bowyer, with intent to commit a crime therein, to-wit: robbery, and while effecting entry or while in the dwelling or in immediate flight therefrom, said defendant did cause physical injury to Forest F. Bow-yer, in violation of Section 13A-7-5 of the Code of Alabama, 1975, and against the peace and dignity of the State of Alabama.”

(C. 1936.) And Carruth was charged with robbery in the first degree as follows:

“The Grand Jury of said county charge that, before the finding of this indictment, Michael D. Carruth, whose name is otherwise unknown to the Grand Jury than as stated, did, in the course of committing a theft of currency of the United States of America a further and better description being otherwise unknown to the Grand Jury, the property of Forest F, Bowyer, use force or threaten the imminent use of force against the person of Forest F. Bowyer, with the intent to overcome his physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said Michael D. Carruth was armed with a deadly weapon or dangerous instrument, to-wit: a knife or other sharp instrument a further and better description being otherwise unknown to the Grand Jury, in violation of Section 13A-8-41 of the Code of Alabama 1975, against the peace and dignity of the State of Alabama.”

(C. 1365.)

“It is well settled that ‘[a] defendant cannot be convicted of both a capital offense and a lesser offense that is included in the capital charge.’ Adams v. State, [Ms. CR-98-0496, August 29, 2003] — So.2d —, — (Ala.Crim.App.2003). See also Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002). Section 13A-1-8(b), Ala.Code 1975, provides, in pertinent part:
“ ‘(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“ ‘(1) One offense is included in the other, as defined in Section 13A-1-9.’
“Such a double-jeopardy transgression implicates the jurisdiction of the trial court and must be noticed by this Court regardless of whether it was raised. See, e.g., Straughn v. State, 876 So.2d 492 (Ala.Crim.App.2003) (opinion on return to remand and on application for rehearing); Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998); and Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995).”

Buford v. State, 891 So.2d 423, 435-36 (Ala.Crim.App.2004).

The burglary underlying the indictment for capital murder during a burglary was the same burglary that formed the basis for the separate burglary indictment. Although the capital indictment charged that Carruth committed the burglary while armed with a deadly weapon, see § 13A-7-5(a)(l), Ala.Code 1975, and the burglary indictment charged that Carruth caused physical injury to Forest Bowyer, see § 13A-7-5(a)(2), Ala.Code 1975, subsections (a)(1) and (a)(2) of § 13A-7-5 are merely alternative means of proving the crime of burglary in the first degree. See, e.g., Perkins v. State, 897 So.2d 457 (Ala.Crim.App.2004), and the cases cited therein. Likewise, the robbery underlying the indictment for capital murder during a robbery was the robbery of Forest Bow-yer, the same robbery that formed the basis for the separate robbery indictment. See, e.g., Adams v. State, [Ms. CR-98-0496, August 29, 2003] — So.2d — (Ala.Crim.App.2003). Therefore, Car-ruth’s convictions for burglary and robbery violate double-jeopardy principles and must be vacated.

IV.

Because this case involves the death penalty we have, in accordance with Rule 45A, Ala.R.App.P., examined the record for any plain error with respect to Carruth’s capital-murder convictions, whether or not brought to our attention or to the attention of the trial court. We find no plain error or defect in the proceedings during the guilt phase of the trial.

We have also reviewed Carruth’s sentence in accordance with § 13A-5-53, Ala. Code 1975, which requires that, in addition to reviewing the case .for any error involving Carruth’s capital-murder convictions, we shall also' review the propriety of the death sentence. This review shall include our determination of the following: (1) whether any error adversely affecting the rights of the defendant occurred in the sentence proceedings; (2) whether the trial court’s findings concerning the aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we must determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice,. or any other arbitrary factor; (2) whether an independent weighing by this Court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and (3) whéther the sen-tencé of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

After the jury convicted Carruth of the capital offenses charged in the indictment, a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and -46, Ala.Code 1975. After hearing evidence concerning the aggravating and mitigating circumstances; after being properly instructed by the trial court as to the applicable law; and after being correctly advised as to its function in reference to the finding of any aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury unanimously recommended that Carruth be sentenced to death.

Thereafter, the trial court held another hearing, in accordance with § 13A-5^47, Ala.Code 1975, to aid it. in determining whether it would sentence Carruth to life imprisonment without the possibility of parole or to death as recommended by the jury. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b). In its sentencing order, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in. § 13A-5-49, Ala.Code 1975, each mitigating circumstance enumerated in § 13A-5-51, Ala. Code 1975, and any mitigating circumstance found to exist under § 13A-d5-52, Ala.Code 1975, as well as written findings of fact summarizing the offense and Car-ruth’s participation in it.

In its findings, the trial court found the existence of four statutory aggravating' circumstances: (1) that' the murder was committed during the course of a robbery, see §' 13A-5-49(4), Ala.Code 1975; (2) that the murder was committed during the course of a burglary, see § 13A-5^49(4), Ala.Code 1975; (3) that the murder was committed during the course of a kidnapping, see § 13A-6-49(4), Ala.Code 1975; and (4) that the murder was especially heinous, atrocious, or cruel compared to other capital offenses, see § 13A-5-49(8), Ala.Code 1975. -The trial court found the existence of on'e statutory mitigating circumstance: that Carruth had no significant history' of prior criminal activity, see § 13A-5-50(l), Ala.Code 1975. The trial court also heard arguments regarding Carruth’s character and record and any of the circumstances of the offense that Carruth offered as a basis for sentencing him to life imprisonment without parole instead of death, see § 13A-5-52, Ala.Code 1975. In this regard, the trial court found no nonstatutory mitigating circumstances to exist. .

The trial court’s sentencing - order reflects that after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the mitigating circumstance, the trial court found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the trial- court sentenced Car-ruth to death. The trial court’s findings concerning 'the aggravating circumstances and the mitigating circumstances' are supported. by the evidence, and we find no plain error or defect in the penalty phase of the proceedings.

Carruth was convicted of murder committed during the course of a kidnapping, robbery, and burglary, and murder of a victim who was less than 14 years of age. These offenses are defined by statute as capital offenses. See § 13A-5-40(a)(1), (2), (4), and (15), Ala.Code 1975. We take judicial notice that similar crimes have been punished capitally throughout the state. See, e.g., Lewis v. State, 889 So.2d 623 (Ala.Crim.App.2003), and the cases cited therein dealing with murders committed during a kidnapping; Eggers v. State, 914 So.2d 883 (Ala.Crim.App.2004), and the cases cited therein dealing with murders committed during a robbery; Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001), and the cases cited therein dealing with murders committing during a burglary; and Minor v. State, 914 So.2d 372 (Ala.Crim.App.2004), and the cases cited therein dealing with murders of children less than 14 years of age.

After carefully reviewing the record of the guilt phase and of the penalty phase of Carruth’s trial, we find no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The findings and conclusions of the trial court are amply supported by the evidence. We have independently weighed the aggravating circumstances against the mitigating circumstance, and we concur in the trial court’s judgment that the aggravating circumstances outweigh the mitigating circumstance, and we agree that death is the appropriate sentence in this case. Considering the crime committed and Carruth, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.

Based on the foregoing, we affirm Car-ruth’s capital-murder convictions and his sentence of death. We likewise affirm Carruth’s conviction and sentence for attempted murder. However, for the reasons stated in Part III of this opinion, we reverse Carruth’s convictions and sentences for robbery and burglary and remand this case for the trial court to vacate those convictions and sentences.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

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

      1. Brooks was also convicted of attempted murder, burglary, robbery, and four counts of capital murder, and was sentenced to death. Brooks's appeal is currently pending before this Court (case no. CR-03-1113).

      . We note that although the trial court's statements at the recusal hearing suggest that the transcript introduced was a transcript from" a hearing on March 7, 2000, the copy of the transcript contained in the record has the date May 7, 2002. (C. 2629.)

      . Following the denial, Carruth filed a petition for a writ of mandamus in this Court; we denied the petition without an opinion.

      . There were originally 102 prospective jurors on the venire; 17 of those were excused by the court.

      . Although not mentioned by the State in its brief in this case, we note that in its brief filed in the capital-murder case of Carruth's code-fendant, Jimmy L. Brooks, Jr. (CR-03-1113), the State concedes that Brooks’s convictions for burglary and robbery violate double jeopardy. (State's brief in CR-03-1113 at p. 39 n. 6.)

      . Although the indictment did not allege the specific crime Carruth intended to commit inside the dwelling, see, e.g., Lanier v. State, 733 So.2d 931, 936 (Ala.Crim.App.1998), and Popwell v. State, 480 So.2d 41, 45 (Ala.Crim.App.1985) (both holding that a burglary indictment must allege the specific crime the accused intended to commit within the dwelling), the trial court amended the indictment during its jury instructions when it instructed the jury that to find Carruth guilty of capital murder during a burglary it had to find that Carruth intended to commit the crime of theft inside the dwelling. See, e.g., Ash v. State, 843 So.2d 213 (Ala.2002) (a trial court can amend an indictment through its jury instructions), and Hampton v. State, 815 So.2d 571 (Ala.Crim.App.2001) (holding that an indictment that fails to charge a mens rea element but otherwise validly charges a crime may be amended to add the mens rea element).


source: Caselaw Access Project

author: WISE, Judge. SHAW, Judge,

license: Public Domain

text:
    Garrick Ricardo NELSON v. STATE of Alabama.
    CR-04-0214.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Oct. 21, 2005.
    Robert A. Ratliff, Mobile, for appellant.
    Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB, J., concur.

BASCHAB, J., concurs in the result.

SHAW, J., concurs in the result, with opinion.

SHAW, Judge,

concurring in the result.

Based on my review of the record and the briefs, it appears to me that the central issue in this case is whether Garrick Ricardo Nelson voluntarily consented to the search of his motel room. I believe there was evidence presented at the suppression hearing from which the trial court could have concluded that Nelson’s consent was voluntary. Therefore, I concur in the result.


author: McMILLAN, Presiding Judge. BASCHAB, Judge,

text:
    Darren Jerome COLEMAN v. STATE of Alabama.
    CR-04-1218.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Darren Jerome Coleman, pro sé.

      Troy King, atty. gen.,- and Beth Slate Poe, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

Darren Jerome Coleman appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, in which he attacked his 1985 guilty-plea conviction for attempted rape in the first degree and his resulting sentence of life imprisonment. Coleman did not appeal his conviction and sentence.

Coleman filed the present petition on December 7, 2004, claiming that the sentence imposed exceeds the maximum authorized by law. More specifically, Coleman alleged that he was sentenced without any enhancements being applied, and, therefore, that his life sentence exceeds the range of punishment for attempted rape in the first degree. On January 18, 2005, the State filed a motion to dismiss the petition, arguing that the petition was time-barred; that much of the record and the State’s file had been reduced to microfilm and/or microfiche and was unavailable in its entirety; that Coleman was a habitual felony offender with three prior felony offenses, that under then existing law the only sentence Coleman was eligible to receive based on his prior offenses was life imprisonment; and that

“[t]he record as it now exists is silent as to whether [Coleman] possibly objected to being sentenced under the Alabama Habitual Felony Offender Act or whether he admitted to his three prior convictions. We can only look to the case action summary sheet that shows that the court addressed [Coleman] regarding his understanding of his rights, the consequences of his plea and the sentence of life imprisonment.”

(C. 34.) Coleman filed an answer to the State’s motion to dismiss, in which he challenged the State’s assertions that his claim was subject to procedural bars and stated “that there is nothing in the record to indicate him being sentenced as a habitual offender.” (C. 37.) Coleman attached to his answer copies of what are purported to be, among other things, the case action summary, the written and signed plea agreement, and the conviction report from his 1985 conviction. On March 3, 2005, the circuit court issued a written order summarily denying Coleman’s petition. The circuit court indicated that the claim was barred by procedural grounds and stated further:

“[Coleman] was charged and indicted, in the within case, for the crime of Rape First Degree. [Coleman’s] case was scheduled for trial on April 8, 1985 before the Honorable J. Richmond Pearson. At the time the instant case was called for trial, [Coleman] and his attorney, William A. Ellis, Esquire, negotiated a plea agreement with the State of Alabama, whereby [Coleman] would enter a plea of guilty to the amended charge of Attempted Rape First Degree. (It is noted that, as part and parcel of the same agreement, [Coleman] entered a plea of guilty to Burglary Third Degree in companion Case Number CC-84-2826. The Honorable J. Richmond Pearson ordered that the sentences entered in the within case and CC-84-2826 shall each run concurrent with the other.) While [Coleman] correctly states, in his petition, that a sentence of life imprisonment for an Attempted Rape First Degree charge is excessive, he conveniently omits the facts that he was sentenced as a habitual felony offender, with three (3) prior felony convictions from Mobile County, Alabama, i.e., Burglary Third Degree in CC-81-3253, Burglary Second Degree in CC-81-3254 and Burglary Second Degree in CC-81-3255. It is noted that, while the court record is silent as to these specific prior convictions, the record clearly reflects that [Coleman] and his attorney executed ‘Court’s Exhibit A’ (a copy of which is attached hereto, incorporated herewith and marked as Exhibit ‘A’ to this Court’s Order), that [Coleman’s] attorney read and explained to him ‘Court’s Exhibit A, and that [Coleman] understood the charges to which he was pleading, and further, that he would be receiving a sentence of life imprisonment.
“As further evidence that [Coleman] knowingly entered his guilty plea in the within case as a habitual felony offender, attached hereto, incorporated herewith, and marked as Exhibit ‘B’ to this Court’s Order, is a copy of the case action summary sheet from [Coleman’s] companion case, Case Number CC-84-2826, which was set for trial on the same date and at the same time as the instant case. The said case action summary sheet reflects that the Honorable J. Richmond Pearson accepted [Coleman’s] plea of guilty to the amended charge of Burglary Third Degree, subsequently sentenced him to fifteen years’ imprisonment in the penitentiary, and directed that the said fifteen-year sentence will run concurrent with the sentence imposed in the within case. It is noted that Burglary Third Degree is a Class C felony and, without enhancements, carries a sentence range of not more than ten years and not less than one year and one day. In companion Case Number CC-84-2826 [Coleman] was indicted, in a two-count indictment, to Burglary Second Degree (which is a Class B felony and has a sentence range of not more than 20 years and not less than 2 years) and Burglary First Degree (which is a Class A felony and has a sentence range of life or not more than 99 years or not less than 10 years), respectively. Additionally, attached hereto, incorporated herewith, and marked as Exhibit ‘C’ to this Court’s Order, is a copy of the ‘Court’s Exhibit A document, executed in Case Number CC-84-2826, which further exemplifies that [Coleman] was well aware of the charge to which he was pleading and that the sentence he was receiving was enhanced as a result of his habitual felony offender status.
“With respect to the within case, as well as companion Case Number CC-84-2826, [Coleman] had the option of proceeding with a trial before a struck jury and risking guilty verdicts. In the instant case, a conviction of Rape first Degree (Class A Felony) would have netted [Coleman], if sentenced as a habitual felony offender with three prior felony convictions, a sentence of life imprisonment without parole. [Coleman] opted for the ‘sure thing’ and consequently received the best deal possible with his record. Now, almost twenty (20) years later, he is attempting to unreasonably tilt the scales of justice in his favor and escape the remainder of his punishment. [Coleman’s] claim is without merit and he has failed to meet the required burden of proof.
“This Court finds specifically that almost twenty (20) years have passed since [Coleman] was sentenced herein by the Honorable J. Richmond Pearson. [Coleman’s] unreasonable and unexplained delay, in and of itself, is sufficient grounds for dismissal, pursuant to Young v. State, 516 So.2d 858 (1987), and Hamilton v. State, 220 So.2d 267 (1969). Furthermore, due to the unreasonable delay, it would be unlikely, if possible, to recreate the facts in order to make a safe determination of judgment equitable to all parties involved. The Supreme Court, in Butler v. State, 279 Ala. at 314, 184 So.2d at 824 (1966), placed the burden on petitioner to ‘seasonably’ demand any right or entitlement ... and stated, ‘To excuse this would make shipwreck of orderly procedure in the courts. It is axiomatic that a right not seasonably demanded is not a right denied. To excuse the failure to act in this case would make the bare assertion of a breach of right the basis for reopening criminal trial, however long ago determined.’ [Coleman] has provided nothing to this Court, which would excuse his failure to timely request relief from his conviction or sentence. Additionally, the court file no longer exists in its original form, and its image is stored on microfilm. [Coleman] has failed to meet his burden of proof under this claim.”

(C. 3-5.)

Coleman argues on appeal that the circuit court erred in summarily denying his petition. We agree.

With regard to the circuit court’s stating as a ground for summary denial that Coleman failed to prove his claim(s), we note that Coleman had no burden of proof at the pleading stage of a Rule 32 proceeding. As this Court explained in Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001):

“[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala. R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”

831 So.2d at 644. See also Thomas v. State, 908 So.2d 308 (Ala.Crim.App.2004); Borden v. State, 891 So.2d 393 (Ala.Crim.App.2002); and Johnson v. State, 835 So.2d 1077 (Ala.Crim.App.2001). Thus, summary denial on this ground was improper.

With regard to the circuit court’s summary denial pursuant to Rules 32.2(a)(3) and (5) because Coleman could have but did not raise the claim at trial and on appeal, and because the petition was filed beyond the limitations period in Rule 32.2(c), we note that a facially valid challenge to the legality of a sentence presents a jurisdictional issue that can be raised at any time and is not subject to the procedural bars of Rule 32.2, Ala. R.Crim.P. See Adams v. State, 825 So.2d 239 (Ala.Crim.App.2001); Moore v. State, 739 So.2d 530 (Ala.Crim.App.1999); and Barnes v. State, 708 So.2d 217 (Ala.Crim.App.1997). It is well-settled that “jurisdictional claims are not ‘precluded by the limitations period or by the rule against successive petitions.’ ” Grady v. State, 831 So.2d 646, 648 (Ala.Crim.App.2001), quoting Jones v. State, 724 So.2d 75, 76 (Ala.Crim.App.1998). Thus, summary denial on these grounds was improper.

We now look to the denial of Coleman’s claim on the merits. Coleman asserted a facially meritorious claim, i.e., that his sentence of life imprisonment exceeded the maximum authorized by law for his conviction of attempted first-degree rape—a Class B felony—and that he was sentenced without the application of any enhancements. Further, in response to the State’s assertions that he was sentenced pursuant to the Habitual Felony Offender Act (“HFOA”), Coleman stated that the record did not contain any indications that he was sentenced pursuant to the HFOA and attached documents to that response which he contends support his assertion.

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

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

Coleman’s petition is sufficiently specific, is not precluded, and states a valid claim. Thus, the lone remaining question is whether any “material issue of fact or law exists which would entitle the petitioner to relief under this rule and [whether any] purpose would be served by any further proceedings.”

Attempted rape in the first degree is a Class B felony. See §§ 13A-6-61 and 13A-4-2, Ala. Code 1975. Section 13A-5-6(a)(2), Ala.Code 1975, provides that the sentencing range for a Class B felony without the application of any enhancements is “not more than 20 years or less than 2 years.” In 1985, application of the HFOA to a conviction of a Class B felony where the defendant had three or more prior felony convictions resulted in a sentence of life imprisonment.

In Hannon v. State, 861 So.2d 426 (Ala.Crim.App.2003), this Court addressed a similar issue as follows:

“The appellant argues that he is entitled to postconviction relief because his sentence allegedly exceeds the maximum authorized by law. Specifically, he contends that he was not sentenced as a habitual offender and that the record does not indicate that the provisions of the Habitual Felony Offender Act were properly applied in this case. The judge who presided over the guilty-plea proceedings also presided over the Rule 32 proceedings. In his order denying the petition, the judge found:
“ ‘Petitioner makes bland assertion that court was without authority to sentence petitioner to life plus ten years.
“ ‘The sentencing [and] colloquy in collateral case # CC-97-4250.60 is instructive and is attached (marked court’s # one); the three “priors” are also attached and marked court’s “two.”
“ ‘As made abundantly clear petitioner was sentenced to the only possible sentence(s) available at the time.’
“(C.R. 2-3.) Although it would not be appropriate in every case to consider a record in a collateral case to determine whether a defendant was sentenced as a habitual offender in a different case, such a consideration is appropriate in this particular case. The documents the circuit court referenced and attached to its order clearly indicate that the appellant was indicted for both first-degree robbery and unlawful distribution of a controlled substance; that the appellant was convicted after a jury trial of first-degree robbery; that, during the sentencing hearing for the robbery case, the parties discussed the fact that the appellant had three prior felony convictions, and the State introduced certified copies of those convictions; that, during that sentencing hearing, the court and the parties made references to the unlawful distribution charge that was still pending, to the fact that the appellant would decide whether to plead guilty to that charge or go to trial on that charge ‘in the next day or so,’ and to the fact that the only possible sentence for that case would be life in prison plus two five-year enhancements. (C.R. 12.) Furthermore, the record shows that the same circuit judge presided over the proceedings in both cases. Therefore, the documents the circuit court referenced support that court’s conclusion that the appellant was sentenced as a habitual offender in this case.”

861 So.2d at 426-27. Here, however, unlike in Hannon, the documents from the collateral proceeding do not mention prior offenses or the HFOA; rather, the documents in this case lend themselves only to the inference that Coleman was sentenced in either case pursuant to the HFOA.

As the circuit court noted, the written plea agreement in the attempted-rape case indicated that Coleman would receive a sentence of life imprisonment; however, nothing on the face of that document states that that sentence was the result of application of the HFOA. Similarly, the written plea agreement for Coleman’s burglary conviction, i.e., the companion case he pleaded guilty to at the same time as the case here, indicates that Coleman was advised that he faced a sentence of not less than 15 years nor more than 99 years, and the case action summary in that case indicates that he was sentenced to 15 years; however, neither of those documents actually states that he was sentenced in that case pursuant to the HFOA; further, even if he was sentenced under the HFOA in that case, it is possible, albeit unlikely, that he was sentenced pursuant to the HFOA in the burglary case but for some reason not in the attempted-rape case that is the subject of this appeal. Thus, although Coleman’s claims are challenged by the State and called into question by the circuit court, we cannot say that Coleman’s claims have been refuted.

For these reasons, we conclude that summary denial of Coleman’s petition was improper. Thus, we remand this cause to the circuit court for further proceedings and take such evidence as it deems necessary regarding Coleman’s claim that his sentence of life imprisonment is illegal. If the circuit court determines that Coleman was not sentenced under the HFOA and, consequently, that his sentence exceeds the maximum authorized by law, that court is authorized to resentence Coleman within the parameters of a conviction for a Class B felony. Conversely, if the circuit court determines that Coleman was properly sentenced under the HFOA, then Coleman is not entitled to any relief.

The return to remand shall contain a transcript of any proceedings and specific findings of fact pursuant to Rule 32.9, Ala. R.Crim.P. Due return shall be made to this Court within 63 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB and SHAW, JJ., concur.

BASCHAB, J., dissents, with opinion.

WISE, J., joins in dissent.

BASCHAB, Judge,

dissenting.

Normally, it is not appropriate to look to another proceeding to determine whether a defendant was sentenced as a habitual offender. However, the circuit court specifically found that the appellant entered his guilty pleas in case number CC-84-2825 and case number CC-84-2826 “as part and parcel of the same agreement.” Therefore, it was appropriate for the circuit court to look to the proceeding in case number CC-84-2826 to determine that the appellant was sentenced as a habitual offender. In so doing, the circuit court determined that the appellant was sentenced as a habitual offender, and it specifically-listed his prior convictions. Because the circuit court has done everything'that can be done, under the circumstances of this case, to determine whether the appellant was sentenced as a habitual offender, a remand would be futile. Accordingly, I respectfully dissent.

      . This is not to suggest that Coleman is entitled to relief. Our holding today does not reach the actual merits of Coleman’s claims; rather, that determination must be made by the circuit court following further proceedings consistent with this opinion.


author: BLANC, PETER D., Associate Judge.

text:
    Christopher MICHELSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4810.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2005.
    Robert C. Buschel and Sean Jason Gelb of Buschel Carter Schwartzreich <& Yates, Fort Lauderdale, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   BLANC, PETER D., Associate Judge.

Christopher Lee Michelson timely appeals the judgment of conviction of third-degree felony murder and vehicular homicide entered on November 6, 2002. This is the second appeal stemming from a 1998 indictment charging appellant with first-degree felony murder and vehicular homicide. Because the third-degree felony murder conviction and this appeal are the results of our prior decision in Michelson v. State, 805 So.2d 983 (Fla. 4th DCA 2002), we summarize the relevant portions of that decision.

Michelson was initially indicted and tried for the crime of first-degree felony murder. Michelson took part in a scheme that resulted in the prison escape of his friend and accomplice, Jay Junior Sigler. The crime was committed one day after the escape when Michelson, after being spotted, tried to elude police officers, ran a stop sign in the vehicle he was driving, and collided with another vehicle, tragically killing its driver. Felony murder was charged based upon the allegation that Michelson was involved in an escape at the time of the collision. The jury convicted Michelson of the Iesser-included offense of second-degree murder and of vehicular homicide. See § 782.04(2), Fla. Stat. (1997) (“The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree .... ”). In its earlier decision, this court reversed the second-degree murder conviction finding that the evidence did not establish that the defendant acted with ill will, hatred, spite, or evil intent toward the victim. Without that evidence, the State was unable to establish the depraved mind required for the second-degree murder conviction. Pursuant to section 924.34, Florida Statutes (1997), this court remanded the case back to the trial court for entry of a judgment for third-degree felony murder and for re-sentencing.

After rehearing was denied and the supreme court declined to accept jurisdiction, the trial court entered judgment for third-degree felony murder in accordance with this court’s mandate. Judgment was entered over appellant’s renewed objection that the procedure violated his Sixth Amendment right to a trial by jury. The record reflects that the vehicular homicide conviction was merged for sentencing with the third-degree murder conviction and appellant was sentenced as a habitual felony offender to thirty years in prison, with a fifteen-year, minimum mandatory term. He filed a timely notice of appeal.

Appellant now contends that he was denied his constitutional right to a trial by jury when this court remanded with direction to the trial court to. enter a conviction for third-degree murder because third-degree murder requires proof of an essential element, the commission of an underlying felony, which second-degree murder does not. Essentially, appellant argues that the jury did not find the existence of this essential element; therefore, this court’s mandate to the trial court to enter a judgment of conviction for third-degree murder is a denial of his Sixth Amendment right to trial by jury. We agree and reverse.

The State initially argues that review is barred because the third-degree felony murder conviction arose from this court’s prior decision and is, therefore, the law of the case. See Wallace v. P.L. Dodge Mem’l Hosp., 399 So.2d 114 (Fla. 3d DCA 1981). Under the law of the case doctrine, “all points of law which have been previously adjudicated by a majority of this court may be reconsidered only where a subsequent hearing or trial develops material changes in the evidence, or where exceptional circumstances exist whereby reliance upon the previous decision would result in manifest injustice.” Henry v. State, 649 So.2d 1361, 1364 (Fla.1994). However, we are convinced that conviction of a crime under circumstances where a jury has not found that all essential elements of that crime were proven is a manifest injustice, requiring review and consideration.

Having crossed that threshold, we now address the substantive argument raised by appellant. We look to this court’s recent opinion in Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004) (Sigler II) as controlling. Sigler and Michelson were accomplices in the underlying escape. Michelson was the driver and Sigler was the passenger in the vehicle that ran the stop sign and ultimately resulted in the tragic and senseless loss of life. A jury convicted Sigler of second-degree murder and, in the original Sigler opinion, this court reversed the second-degree murder conviction and remanded the ease back to the trial court with direction to enter a judgment for third-degree felony murder as a lesser included offense of that charged in the indictment. See Sigler v. State, 805 So.2d 32 (Fla. 4th DCA 2001), review denied, 823 So.2d 126 (Fla.2002).

Thereafter, Sigler appealed his conviction for third-degree murder and in Sigler II this court found that third-degree felony murder was not a lesser included offense of second-degree murder, and thus, a defendant convicted of second-degree murder following a jury trial could not have his conviction reduced on appeal to third-degree felony murder. A judgment of conviction for third-degree felony murder requires a determination by the jury that the additional element of an underlying felony has been proven, but the Sigler jury’s verdict did not include a determination of guilt beyond a reasonable doubt as to that element. In the instant case, as in Sigler II, the jury never found the existence of an underlying felony, presumably because they found Michelson guilty of second-degree murder, which did not require the existence of an underlying felony as an element of the offense. We do not know and cannot speculate on whether the jury also believed that the State had proven the existence of an underlying felony beyond a reasonable doubt because the verdict returned by the jury did not require that determination.

Appellant argues that section 924.34, Florida Statutes (1997), is unconstitutional because it contains no due process safeguards to preserve the sanctity of appellant’s right to jury trial. Section 924.34, Florida Statutes (1997), states:

When .the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty, but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

If it is reasonably possible to do so, a court is obligated to interpret statutes in such a manner as to uphold their constitutionality. Capital City Country Club, Inc. v. Tucker, 613 So.2d 448 (Fla.1993) (citing State v. Gale Distribs., Inc., 349 So.2d 150 (Fla.1977)). Although we agree it is impermissible for an appellate court to remand for entry of a judgment of conviction for a lesser-included offense or for a lesser degree of offense for which a jury has not found all essential elements, we find no constitutional prohibition against remand for conviction for a lesser degree or lesser included offense where the jury has specifically found the existence of all elements of the offense and where the error causing remand does not disturb those findings.

We previously found that the jury’s conviction for second-degree murder had to be reversed because the record failed to establish ill will, hatred, spite, or evil intent. We did not take issue with the remaining elements of the second-degree murder conviction found to exist by the jury. Specifically, those remaining elements are:

1. The victim is dead.

2. The death was caused by the criminal act of the defendant.

3. The act was imminently dangerous to another.

4. A person of ordinary judgment would know his action is reasonably certain to kill or do serious bodily injury to another.

5. The act is of such a nature that the act itself indicates an indifference to human life.

These jury findings remain intact and untouched by the appellate process. Further, these findings are consistent with the necessary elements for a judgment of conviction for manslaughter by culpable negligence.

The elements necessary for a judgment of conviction for manslaughter by culpable negligence are as follows:

1. The victim is dead.

2. The death was caused by the culpable negligence of the defendant.

The jury instruction goes on to define culpable negligence as follows:

In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

Fla. Std. Jury Inste. (Crim.) Manslaughter.

Although the language used to define the last element in the two separate offenses is not identical, the relevant terms used are synonymous. Consequently, the jury’s findings do support a judgment of conviction for the offense of manslaughter by culpable negligence and ordinarily, under these circumstances, it would not be improper for this court to remand this case back to the trial court for entry of such a judgment.

However, the factual scenario here contains one additional twist. In the instant case, unlike Sigler II, Michelson was also convicted of vehicular homicide. A single death, no matter how tragic, cannot support convictions for both manslaughter and vehicular homicide. See State v. Chapman, 625 So.2d 838 (Fla.1993). Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes. See Houser v. State, 474 So.2d 1193, 1197 (Fla.1985); Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981). Consequently, Michelson cannot be convicted of both manslaughter by culpable negligence and vehicular homicide.

The record before the court is unclear as to the offense for which Michelson was previously sentenced. The sentencing order simply states that the vehicular homicide conviction was merged for purposes of sentencing. It is unclear whether Michelson was actually sentenced on the vehicular homicide offense or on the third-degree murder; however, it is clear that the conviction and sentence can stand for only one offense. If the trial judge has not sentenced on the vehicular homicide, he will have the option of conviction and sentence on that offense, or alternatively, on the offense of manslaughter by culpable negligence, but not both. We, therefore, reverse the conviction for third-degree murder and remand to the trial court. If the trial court has already convicted and sentenced on the vehicular homicide offense, that conviction and sentence will stand and preclude the conviction and imposition of sentence on the charge of manslaughter by culpable negligence. However, if the appellant was previously sentenced for third-degree murder and not vehicular homicide, then the trial judge has discretion to convict and impose sentence on either vehicular homicide or manslaughter by culpable negligence.

REVERSED AND REMANDED.

HAZOURI and MAY, JJ., concur.


author: CORTIÑAS, Judge. SCHWARTZ, Senior Judge

text:
    Norma AGUERO, Individually and as Personal Representative of the Estate of Ambrosio Iglesias, and Ryder Truck Rental, Inc., Appellants, v. FIRST AMERICAN INSURANCE COMPANY, Appellee.
    No. 3D03-223.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2005.
    Rehearing and Rehearing En Banc Denied May 24, 2006.

      Wasson & Associates, Chartered and Roy D. Wasson; Eversole & Associates, P.A. and John F. Eversole, III, Miami, for appellants.
    Kubicki Draper and Caryn L. Bellus, Miami, for appellee.
    Before RAMIREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The . plaintiffs, Ryder Truck Rental, Inc. (“Ryder”) and Norma Agüero (“Agüero”), as personal representative of the Estate of Ambrosio Iglesias (“Iglesias”), appeal from a final summary judgment in favor of the defendant, First American Insurance Company (“First American”), on a claim for coverage and liability insurance proceeds. We reverse.

Iglesias was a tractor trailer driver for Miami Services Express (“MSE”). On September 1, 1995, Iglesias was injured after he exited the tractor trailer to check on a rear tire and the tire exploded. The tractor portion of the truck was owned by MSE and the trailer portion was owned by Ryder.

MSE was listed as a named insured and Ryder was listed as an “additional” insured on a First American liability policy. On September 6, 1995, MSE’s insurance agent sent an auto loss report to First American’s claims adjuster. The auto loss report noted a claim number for Iglesias and also contained an accident report completed by Ryder describing Iglesias as the “injured.”

On December 29, 1995, Iglesias’ attorney sent a letter to First American giving notice of the accident, advising that Iglesi-as was making a personal injuries claim, and requesting a disclosure of the policy information from First American. On that same day, First American sent a certified copy of the policy to Iglesias’ attorney. On January 24, 1996, Iglesias’ attorney requested a personal injury protection (“PIP”) application and First American responded by faxing him an application. Thereafter, First American paid PIP benefits to Iglesias.

Ryder’s claim file for Iglesias contains a computerized telephone message dated July 30, 1996, concerning a conversation between First American’s claims adjuster and Ryder’s claims adjuster. The parties dispute what the telephone conversation entailed. Ryder alleges that First American’s claims adjuster informed Ryder’s claims adjuster that First American would not cover property damages for Ryder’s trailer or provide liability insurance coverage to protect Ryder against any potential claims brought by Iglesias. On the other hand, First American argues that the telephone conversation only concerned coverage for property damages, not liability.

On March 24, 1997, Iglesias filed a personal injury action against Ryder. On December 15, 1997, Ryder subpoenaed First American’s PIP file. First American claims that Ryder and Iglesias mediated the case and eventually reached a settlement agreement in principal and amount by December 1998. However, Ryder claims that the agreement was tentative and “was not consummated,” which is supported by the fact that discovery continued in Iglesias’ case against Ryder and the settlement agreement was not approved by the trial court until March 2000.

On April 26, 1999, Ryder’s attorney sent First American a letter stating that Ryder was an additional insured under the policy and requesting that First American indemnify Ryder in the lawsuit it had to defend against Iglesias. First American subsequently requested that Ryder provide it with a copy of the complaint, which Ryder eventually provided. First American investigated the matter and, on May 19, 1999, mailed a certified letter to Ryder reserving its right to deny or limit coverage on the basis that 1) Ryder was not an insured and, therefore, not entitled to indemnification, 2) an employee exclusion provision in the policy may preclude coverage for Ryder, and 3) Ryder did not provide First American with prompt notice of Iglesias’ lawsuit against Ryder, as the April 26, 1999 letter was the first notice to First American.

On May 20, 1999, Ryder’s attorney replied to First American’s letter and stated, in pertinent part, as follows:

You were given an opportunity to correct your initial mistake as to coverage for Ryder and you have chosen instead to shirk your contractual obligations. Ryder is now left without coverage for this claim although you are contractually bound to cover them for this incident. Ryder will now do what it takes to extinguish its exposure presented by the Iglesias claim and will enforce through the courts the contract, which your company has refused to honor.

On that same day, First American responded by stating, in relevant part, “[a]f-ter reading [your letter dated May 20, 1999], I believe you misunderstood my May 19th, 1999, letter. Please understand, we do agree to defend Ryder Truck, Rental, Inc., subject to our Reservation of Rights.” First American’s letter also requested copies of the complaint, supporting documents, and other records in Ryder’s possession.

On June 17, 1999, Iglesias and Ryder entered into a Coblentz agreement for the entry of a $1,000,000 consent judgment in favor of Iglesias. The Coblentz agreement provided, among other things, that 1) Ryder would assign its rights against First American to Iglesias, 2) Iglesias would release Ryder, and 3) Iglesias and Agüero would reimburse Ryder for the amounts Ryder paid under the settlement in the event that they recovered in an action against MSE, MSE’s insurance agent, or First American. After the consent judgment was entered, Ryder, Iglesias, and Agüero filed a declaratory judgment action against First American for breach of the insurance contract and bad faith failure to settle. While the lawsuit was pending, Iglesias died and Agüero, his widow, was substituted as the personal representative of his estate.

Ryder and Agüero alleged that First American was on notice of the lawsuit and that First American refused to provide a defense or fund the settlement. Ryder and Agüero further alleged that Ryder settled with Iglesias and Agüero in an effort to mitigate its damages. In response, First American alleged that Ryder breached the notice and cooperation clauses contained in the insurance policy.

First American filed a motion for summary judgment on the basis that Ryder breached the insurance contract by entering into a settlement agreement with Igle-sias and Agüero after First American agreed to defend Ryder, and that Ryder failed to provide First American with timely notice of the lawsuit against Ryder. The trial court entered final summary judgment in favor of First American. We reverse.

We review the trial court’s entry of summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). When considering a motion for summary judgment, the trial court must determine that no genuine issue of material fact exists, and that the moving party is entitled to summary judgment as a matter of law. Aberdeen, 760 So.2d at 126. The .court must draw every possible inference in favor of the nonmoving party. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Summary judgment should be denied if there is “even the slightest doubt” that a genuine issue of material fact exists. Carbajo v. City of Hialeah, 514 So.2d 425, 425 (Fla. 3d DCA 1987).

Ryder and Agüero maintain that a genuine issue of material fact exists as to whether the telephone conversation between First American’s claims adjuster and Ryder’s claims adjuster included discussions about liability insurance. Ryder and Agüero claim that, if the telephone conversation discussed liability insurance coverage for Ryder, it would be sufficient for timely notice of the liability claim to First American.

However, First American contends that the telephone conversation is irrelevant to the issue of notice since Iglesias had yet to file a lawsuit against Ryder. According to the cooperation clause in the insurance policy, Ryder was to “immediately” send copies to First American of any complaints made against it, and Ryder was not to make any payment without the consent of First American, except at Ryder’s own cost. First American further contends that Ryder’s failure to notify First American of the lawsuit and Ryder’s execution of a settlement agreement constituted a material failure to cooperate, which would thereby void coverage. See Philadelphia Indem. Ins. Co. v. Kohne, 294 F.Supp.2d 1319, 1325 (M.D.Fla.2003).

However, “[t]he question of whether the failure to cooperate is so substantially prejudicial as to release the insurance company of its obligation is ordinarily a question of fact, but under some circumstances, particularly where the facts are admitted, it may well be a question of law.” Kohne, 294 F.Supp.2d at 1325. Even assuming that Ryder failed to cooperate, a material question of fact still exists as to whether First American was prejudiced by Ryder’s delay in notifying First American, especially where First American received notice of the lawsuit prior to execution of the settlement agreement. We find that the disputed issues of fact in this case preclude the entry of summary judgment in favor of First American.

As to the issue of First American’s defense under a reservation of rights, First American claims that it did not breach its duty to defend Ryder because it offered a defense under a reservation of rights. See First Am. Title Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA., 695 So.2d 475, 476-477 (Fla. 3d DCA 1997). In response, Ryder claims that First American violated its duty because its unilateral defense under a reservation of rights was similar to a refusal to provide any defense at all. See Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999, 1003 (Fla. 4th DCA 2002). Ryder also claims that, because First American breached its duty, First American transferred to Ryder the power to defend itself against Iglesias’ claim. See Beville, 825 So.2d at 1003.

This issue was addressed in Travelers Indem. Co. of Illinois v. Royal Oak Enters., Inc., 344 F.Supp.2d 1358, 1371 (M.D.Fla.2004), which held that “when an insurer offers to defend under a reservation of rights, Florida law provides that the insured may, at its own election, reject the defense and retain its own attorneys without jeopardizing his right to seek indemnification from the insurer for liability.” Travelers, 344 F.Supp.2d at 1370. However, the insured must actually reject that defense. Travelers, 344 F.Supp.2d at 1371 (citing Giffen Roofing Co. v. DHS Developers, Inc., 442 So.2d 396, 397 (Fla. 5th DCA 1983)).

In the instant case, Ryder’s May 20, 1999 letter could be construed as a rejection of First American’s defense under a reservation of rights. If it is determined that Ryder’s letter constituted a rejection of First American’s defense under a reservation of rights, Ryder would have been entitled to retain its own attorney to defend against Iglesias’ claim without jeopardizing its right to seek indemnification from First American. See Travelers, 344 F.Supp.2d at 1370. Therefore, there is also a genuine issue of material fact as to whether Ryder’s letter constituted a rejection of First American’s defense under a reservation of rights.

Reversed and remanded.

RAMIREZ, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I would affirm on the ground that it appears without genuine issue that the insured breached the cooperation clause by unilaterally purporting to “settle” the case despite (and probably because of) the insurer’s good faith offer of an appropriate defense. See Am. Reliance Ins. Co. v. Perez, 712 So.2d 1211 (Fla. 3d DCA 1998).

      . See, e.g., Coblentz v. American Sur. Co., 416 F.2d 1059 (5th Cir.1969).

      . Ryder, Iglesias, and Agüero also named MSE and MSE's insurance agent as defendants but later voluntarily dismissed the action against them.


author: SHAHOOD, J.

text:
    ROSEN BUILDING SUPPLIES, INC., A Florida corporation, Appellant, v. Richard P. KRUPA, Appellee.
    No. 4D03-4060.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.
    Christine L. Welstead of Akerman Sen-terfitt, Miami, for appellant.
    Patrick B. Flanagan of Flanagan, Ma-niotis & Berger, P.A., West Palm Beach, for appellee.
   SHAHOOD, J.

Richard P. Krupa (Krupa) was employed by Rosen Building Supplies, Inc. (Rosen) as a salesman. After his employment was terminated, Krupa filed suit against Rosen seeking unpaid wages pursuant to section 448.08, Florida Statutes. He asserted that he had been terminated without good cause and that he was entitled to past and future unpaid wages through the end of the term of the written employment agreement. In addition, Krupa also sought prejudgment interest, costs, interest, and attorneys’ fees.

Rosen answered the complaint, denying that Krupa was due unpaid wages and asserting that Krupa’s claim was essentially one for breach of contract rather than one for unpaid wages under section 448.08. In addition, Rosen counterclaimed for conversion based on Krupa’s use of the company credit card for his personal expenses. Rosen later amended its counter petition to state a claim for breach of contract rather than conversion.

A three-day trial on the issue of which party breached the employment agreement took place. Rosen asserted that Krupa had breached the agreement by, among other things, making personal charges on the company American Express card. Krupa’s position was that he routinely made personal charges, but each month highlighted the personal charges on the statement so that they could be deducted from the commission owed him by the company. There was evidence that, prior to trial, Krupa had sent a check in the amount of $1,107.42 to the company as reimbursement for personal expenses that Krupa had charged to the company’s American Express account.

Following the trial, the jury returned a verdict finding that Krupa had not been wrongfully terminated, but that Rosen owed him unpaid salary in the amount of $300.00 and unpaid commission in the amount of $1,700.67. The jury rejected Krupa’s wrongful termination claim, and awarded him nothing on his claim for future damages. On Rosen’s counterclaim, the jury found that Krupa breached the employment agreement and awarded Ro-sen $1,107.42.

Subsequently, Rosen filed a motion to tax costs and fees based on Krupa’s prior rejection of a proposal for settlement in the amount of $40,000. Krupa also filed motions to award attorney’s fees based on section 448.08, Florida Statutes, and costs based on sections 57.041 and 57.071, Florida Statutes.

The trial court found that Krupa “prevailed on [his] significant claim for past wages and bonus, but failed on [his] claim for breach of contract.” The court also found that Rosen “prevailed on its significant claim for breach of contract but failed on its claim that it did not owe [Krupa] for past wages and bonuses.” The court found also that the issues were inextricably intertwined, and awarded Krupa costs in the amount of $12,990.28 and attorney’s fees in the amount of $141,500 for time spent in defending as well as prosecuting the claims.

The issue of whether multiple claims within a lawsuit are separate and distinct for purposes of an award of attorney’s fees is a matter of law to be reviewed de novo. See Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). “[C]laims are separate and distinct when they could support an independent action and are not simply alternative theories of liability for the same wrong.” Avatar Dev. Corp. v. DePani Constr., Inc., 883 So.2d 344, 346 (Fla. 4th DCA 2004)(citing Folta v. Bolton, 493 So.2d 440, 442 (Fla.1986)). Upon review, we disagree with the trial court’s conclusion that the claims in this case were inextricably intertwined. Following the Avatar criteria, Krupa’s section 448.08 unpaid wages claim was entirely independent of and distinct from Rosen’s breach of contract claim.

We hold that Krupa was the prevailing party in his claim based on section 448.08. As such, he is entitled to fees incurred in pursuing that claim. At the same time, Krupa did not prevail on his wrongful termination/breach of contract claim, as evidenced by his failure to obtain an award of future unpaid wages; therefore, it was error for the trial court to award Krupa fees incurred in pursuing that latter claim. Accordingly, we reverse the order awarding fees and remand for the trial court to conduct an evidentiary hearing or determine from the record the fees and costs incurred by Krupa in pursuing the claim on which Krupa was not successful, and deduct that amount from the fee award. See Warshall v. Price, 629 So.2d 905 (Fla. 4th DCA 1993)(holding that employee was entitled to fees for unsuccessful claim seeking unpaid wages because it was intertwined with successful claim, but reversing fee award on unsuccessful claim which was separate and distinct, and remanding for fee award to be reduced by amount spent on that claim).

Reversed and Remanded with directions.

STONE and GROSS, JJ., concur.