author:
SHAW, Judge.
      BASCHAB, Judge,

text:
    Lasalle MINNIFIELD v. STATE of Alabama.
    CR-04-0171.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Oct. 14, 2005.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050138.
    Alaric Olaf May, Birmingham, for appellant.
    Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.
   SHAW, Judge.

Lasalle Minnifield appeals the circuit court’s denial of what he styled as a petition for a writ of habeas corpus, in which he attacked his 1980 conviction for rape and his resulting sentence of 50 years’ imprisonment. This Court affirmed Min-nifield’s conviction and sentence on direct appeal without an opinion on October 28, 1980. See Minnifield v. State (No. 6 Div. 362). This Court issued a certificate of judgment on November 17,1980.

Minnifield filed the present petition on August 3, 2004. In his petition, Minnifield claimed (1) that the indictment was void because, he said, it did not include the phrase “against the peace and dignity of the State of Alabama”; (2) that the indictment was void because, he said, it did not state the time or place of the offense; (3) that the indictment was void because, he said, it did not charge an offense; and (3) that the trial court lacked jurisdiction to sentence him because, he said, he was entitled to jury sentencing pursuant to Title 14, § 395, Code of Alabama 1940 (Recompiled 1958). After receiving a response from the State, the circuit court, properly treating Minnifield’s petition as a Rule 32, Ala.R.Crim.P., petition for post-conviction relief, conducted evidentiary hearings on September 9, 2004, October 4, 2004, and October 15, 2004. The circuit court then denied the petition on October 20, 2004.

I.

Before addressing the claims in Minni-field’s petition, we first address Minni-field’s argument regarding the law in effect at the time of his crime. Citing Hogan v. State, 748 So.2d 222 (Ala.Crim.App.1999), Minnifield argues that Act No. 77-607, Ala. Acts 1977, adopting the Alabama Criminal Code now codified in Title 13A and repealing former Title 13, Ala.Code 1975, took effect May 16, 1978; that his crime occurred after May 16, 1978; and that, therefore, his case is governed by Title 13A. We disagree.

It is well settled that the law in effect at the time of the commission of the offense controls the prosecution. See Davis v. State, 571 So.2d 1287, 1289 (Ala. Crim.App.1990) (“A defendant’s sentence is determined by the law in effect at the time of the commission of the offense.”); Hardy v. State, 570 So.2d 871 (Ala.Crim.App.1990) (unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the offense); and Jefferson v. City of Birmingham, 399 So.2d 932 (Ala.Crim.App.1981) (law in effect at the time of the offense governs prosecution). A review of the transcript from Minnifield’s trial reveals that the incident giving rise to the rape charge in this case was committed on June 18, 1979. Therefore, we must determine what law was in effect on June 18, 1979.

Act No. 20, Ala. Acts 1977, adopted the 1975 Alabama Code. That Act was passed by the Legislature in February 1977, and became effective in October 1977. See, e.g., Ex parte Coker, 575 So.2d 43 (Ala.1990), and Ex parte Beverly, 497 So.2d 519 (Ala.1986). Act No. 20 included former Title 13, Ala.Code 1975, including §§ 13 — 1— 130 and 13-1-131, dealing with rape, which were essentially recodifications of Title 14, §§ 395 and 396, Code of Alabama 1940 (Recompiled 1958).

Act No. 77-607, Ala. Acts 1977, commonly referred to as the Alabama Criminal Code and codified in Title 13A, was also passed by the Legislature in 1977; it was approved by the Governor on May 16, 1977. Sections 9901 and 9902 of that Act repealed various provisions of former Title 13, including §§ 13-1-130 and 13-1-131. Section 9910 of that Act established the effective date of the Act as May 16, 1978. However, on January 10,1978, at the regular session of the legislature, House Bill (“H.B.”) 10, was introduced as follows: “To amend Section 9910 of Act No. 607, S. 33, 1977 Regular Session of the Alabama Legislature, commonly known as the ‘Alabama Criminal Code’ so as to delay the effective date one additional year.” Vol. 1, p. 9, House Journal, 1978 Regular Session. On April 5, 1978, H.B. 10 was amended to substitute June 1, 1979, as the effective date of the Act. See Vol. II, House Journal, 1978 Regular Session. The Alabama Senate approved a substituted version of H.B. 10, establishing the June 1, 1979, effective date and amending several other sections of Act No. 77-607. See Vol. Ill, pp. 2574-89, House Journal, 1978 Regular Session. H.B. 10 was passed by the legislature as Act No. 78-770, Ala. Acts 1978, and the Governor approved that Act on May 2, 1978. In 1979, the legislature passed Act No. 79-125, Ala. Acts 1979, which the Governor approved on May 29, 1979. That Act further amended Section 9910 of Act No. 607, Ala. Acts 1977, to change the effective date of the Act from June 1, 1979, to January 1, 1980. See Act No. 79-125, Ala. Acts 1979, Vol. I, p. 230 (“To further amend Section 9910 of Act No. 607, S. 33 of the 1977 Regular Session (Acts 1977, Vol. II, p. 812), as amended, so as to further provide for the effective date.”). See also Vol. I, House and Senate Journals, 1979 Regular Session.

Act No. 78-770, Ala. Acts 1978, postponed the effective date of Act No. 77-607, Ala. Acts 1977, from May 16, 1978, to June 1, 1979, and Act No. 79-125, Ala. Acts 1979, further postponed the effective date from June 1, 1979, to January 1, 1980, at which time Act No. 77-607, Ala. Acts 1977, went into effect. Although this Court stated in Hogan that Act No. 77-607 became effective on May 16, 1978, and, thus, that §§ 13-1-130 through -136, Ala.Code 1975, were repealed on that date, that statement was erroneous, and to the extent that Hogan is inconsistent with this. opinion, it is hereby overruled.

We note our disagreement with Judge Baschab’s special writing, in which she questions the propriety of looking to the House and Senate Journals to ascertain legislative intent, points out that there are no quotation marks in Act No. 78-770 before the reference to § 9910 and after the reference to the June 1, 1979, effective date, and then concludes that § 9910, as referenced in Act No. 78-770, established the effective date of Act No. 78-770 rather than the effective date of Act No. 77-607. The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. See the cases collected at 45 Ala. Digest 2d Statutes § 181(1) (1995). In Henry v. McCormack Bros. Motor Car Co., 232 Ala. 196, 167 So. 256 (1936), the Alabama Supreme Court stated:

“There are recognized canons of statutory construction that will be observed. In construing statutes, they are: (1) “Where the language of a statute is clear and the intent obvious, there is no room for construction; but where the meaning and intent are not obvious the court must attempt to arrive at the legislative intent.’ City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159, headnote 1 [(1909) ]. (2) The legislative intent will be sought from the whole subject, where the language is not clear or obvious. Hamilton et al. v. Pullman Car & Mfg. Corporation of Alabama (Ala.Sup.) [231 Ala. 7,] 163 So. 329 [(1935) ]; Davis v. State ex rel. County Board of Equalization of Cherokee County, 16 Ala.App. 397, 78 So. 313 [(1918) ]. (3) In determining the intent and purpose of an enactment, courts will look to the context and all of its provisions, and, if possible, give the act effect according to the legislative intent so expressed. Edwards v. Doster-Northington Drug Co., 214 Ala. 640, 108 So. 862 [(1926) ]; Armstrong v. Sellers et al., 182 Ala. 582, 62 So. 28 [(1913)]. (4) Any apparent mistakes in the wording of the statute will be corrected, where the other provisions of the act or the legislative journals famish such means of correcting such apparent mistakes as will fairly carry out the intent of the Legislature. State ex rel. Leslie et al. v. Bracken et al., 154 Ala. 151, 45 So. 841 [(1908) ]; Louis Pizitz Dry Goods Co. v. Fidelity & Deposit Co. of Maryland, 223 Ala. 385, 136 So. 800 [(1931) ]; State ex rel. Norquist et al. v. Glennon, 227 Ala. 208, 211, 149 So. 257 [(1933) ]; Dauphin & LaFayette Streets Railway Co. v. Kennerly, 74 Ala. 583 [(1883)]. (5) Where there is doubt as to the meaning and intent of a statute by reason of the language employed, or arising from the context, courts may look to the history, conditions which led to that enactment, the material surrounding circumstances, the ends to be accomplished, and evils to be avoided or corrected, in order that the legislative intent be ascertained and given effect, if possible. McCreless v. Tennessee Valley Bank, 208 Ala. 414, 94 So. 722 [(1922) ]; Prowell v. State ex rel. Hasty et al., 142 Ala. 80, 39 So. 164 [(1905)].”

232 Ala. at 197-98, 167 So. at 257 (footnote omitted; emphasis added). See also County Bd. of Educ. of Jefferson County v. State, 239 Ala. 276, 279, 194 So. 881, 883 (1940); and Guy H. James Constr. Co. v. Boswell, 366 So.2d 271, 273 (Ala.1979), (“An obvious error in the language of a statute is self-correcting.... In such an instance, the Court may substitute the correct word when it can be ascertained from the context of the act.”).

The House and Senate Journals mentioned above clearly indicate that the legislative intent in enacting Act No. 78-770 was to postpone the effective date of Act No. 77-607 from May 16, 1978, to June 1, 1979. It is apparent to us from our reading of Act No. 78-770 that the references to § 9910 and the June 1, 1979, effective date should have been within quotation marks so as to designate § 9910 as one of the sections of Act No. 77-607 being amended. Those quotation marks were apparently inadvertently omitted. To conclude otherwise would be to ignore the stated purpose of H.B. 10 and to accept the rather nonsensical division of Act No. 78-770 into “Section 1” and “Section 9910,” instead of the more logical “Section 1” and “Section 2.” In addition, it seems probable that the legislature intended for Act No. 78-770 to take effect upon its approval by the Governor on May 2, 1978, rather than over a year later on June 1, 1979. It is also significant, we think, that when enacting Act No. 79-125, the legislature specifically noted that its purpose was to “further amend Section 9910 of Act No. 607, S. 33 of the 1977 Regular Session (Acts 1977, Vol. II, p. 812), as amended, so as to further provide for the effective date.” (Emphasis added.) This indicates that the legislature understood that § 9910 of Act No. 77-607 had already been amended by Act No. 78-770. Finally, we think that it is significant that Act No. 80-753, Ala. Acts 1980, which codified all of the amendments to the Code enacted during the 1979 session of the Alabama Legislature, specifically noted, as part of the changes to the Criminal Code effected during the 1979 session, the corrections to § 13A-5-1 and § 13A-1-7, changing the effective date of the Criminal Code to January 1, 1980. See also the Code Commissioner’s Note preceding the table of repealed sections on p. 1 of Vol. 12 of the Alabama Code 1975.

From the analysis set forth above, it is clear that Title 13, Ala.Code 1975, was . the law in effect at the time of the commission of the offense in this case, June 18, 1979, and, thus, that §§ 13-1-130 and 13-1-131 govern the prosecution and sentencing in this case. With this in mind, we now turn to the claims in Minnifield’s petition.

II.

Minnifield contends that the indictment against him was void because, he says, it did not conclude with the phrase “against the peace and dignity of the State of Alabama.” However, a review <of the record from Minnifield’s direct appeal reveals that the indictment did conclude with the aforementioned phrase. (Record on Direct Appeal, C. 151.) Therefore, this claim is without merit and was properly denied by the circuit court.

III.

Minnifield contends that the indictment against him was void because, he said, it did not allege the time or place of the crime.

Section 15-8-30, Ala.Code 1975, which has been in effect in its current state since the adoption of the 1940 Code of Alabama, and which was in effect at the time of the crime, provides, in pertinent part, that “[i]t is not necessary to state the precise time at which an offense was committed in an indictment ... unless time is a material ingredient of the offense.” Time is not a material ingredient of the offense of rape. Section 15-8-31, Ala.Code 1975, which also has been in effect since at least the adoption of the 1940 Code and which was in effect at the time of the crime, provides, in pertinent part, that “[i]t is not necessary to allege where the offense was committed in an indictment....” Therefore, the indictment did not have to allege the time or place of the offense. Because neither the time nor place of the offense was required to be charged in the indictment, Minni-field’s claim does not implicate the jurisdiction of the trial court. Thus, it is time-barred by Rule 32.2(c), Ala.R.Crim.P., and was properly denied by the circuit court.

IV.

Minnifield contends that the indictment against him was void because, he says, it failed to charge an offense. Specifically, he maintains that the indictment did not allege that he engaged in sexual intercourse or otherwise apprise him of the essential elements of the offense of rape. The indictment charged that Minnifield “did forcibly ravish [the victim], a woman....” (Record on Direct Appeal, C. 151.)

Section 13 — 1—131, Ala.Code 1975, set forth the requirements for proof of rape as follows: “To sustain an indictment for rape, proof of actual penetration is suffi-dent, when the act is shown to have been committed forcibly and against the consent of the person on whom the offense was committed.” Section 15-8-150(80), Ala. Code 1975, which was also in effect at the time of the commission of this offense, provides that an indictment charging that “A.B. forcibly ravished C.D., a woman, etc.” was sufficient to charge rape; historically, the appellate courts of this state have held that an indictment such as the one in this case is sufficient to charge the offense of rape under Title 13. In Powell v. State, 224 Ala. 540, 141 So. 201 (1932), rev’d on other grounds, 287 U.S. 45, 53 5.Ct. 55, 77 L.Ed. 158 (1932), the Alabama Supreme Court specifically upheld an indictment that charged that “ ‘[the defendants] forcibly ravished [the victim],’ ” stating:

“The indictment in the present ease is not subject to the criticism that it is vague, indefinite, and uncertain. The nature and cause of the accusation are definitely stated, and the name of the woman, the subject of the crime, is set forth in the indictment. The form here used was approved by this court in the case of Leoni v. State, 44 Ala. 110 [(1870) ]. This decision was rendered by this court in 1870, and its correctness has not since been questioned, nor its soundness doubted. There is no merit in this contention of the appellants.”

224 Ala. at 544, 141 So. at 204. See also McQuirk v. State, 84 Ala. 435, 4 So. 775 (1888) (indictment following Crim.Code 1886, p. 275, form No. 69, charged that defendant “forcibly ravished” the victim); and Liner v. State, 350 So.2d 760, 761 (Ala.Crim.App.1977) (“Count one was in statutory form and charged forcible ravishment. Title 14, § 395, Code of Alabama 1940, Recompiled 1958; Title 15, § 259(89), Code.”).

Therefore, Minnifield’s indictment was valid and the circuit court properly denied this claim.

V.

Minnifield contends that his sentence is illegal because, he says, the jury, rather than the trial court, was required to sentence him. Minnifield’s argument in this regard appears to be as follows: Act No. 77-607, which repealed § 13-1-130, became effective May 16, 1978; although § 13-1-130 provided for sentencing by the court instead of a jury, Act No. 77-607 was silent on the issue of the proper sentencing authority; because Act No. 77-607 was silent on the issue of the proper sentencing authority and because § 13-1-130 was repealed by Act No. 77-607, former Title 14, § 395 Ala.Code 1940 (Recompiled 1958), which provided for jury sentencing, was “the only controlling statute and/or code in effect at the time of the offense” dealing with the proper sentencing authority and, thus, is applicable to his case. (Minni-field’s brief at p. 20.)

Because we have already determined that Title 13, not Title 13A as adopted by Act No. 77-607, was in effect at the time of the offense in this case, Minnifield’s argument is meritless. Section 13-1-130 contained no provision for jury sentencing. That section provided that “[a]ny person who is guilty of the crime of rape shall, on conviction, be punished by imprisonment in the penitentiary for not less than 10 years, or as otherwise specified by law.” In Lawson v. State, 377 So.2d 1115 (Ala.Crim.App.1979), this Court, addressing a challenge to the constitutionality of § 13-1-130, explained:

“Appellant asserts that § 13-1-130, Code of Ala.1975, unconstitutionally deprived him of a protected aspect of the right to trial by jury through its omission of language bestowing upon the jury the right to fix punishment.
“Title 14, § 395, Code of Ala.1940, Recompiled 1958, states:
“‘Any person who is guilty of the crime of rape shall, on conviction, be punished, [a]t the discretion of the jury, by death or imprisonment in the penitentiary for not less than ten years.’ (Emphasis added.)

“Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), rape was considered a capital offense punishable, at the discretion of the jury, by death. Furman held such discretion, either in the judge or jury, violative of the Eighth Amendment’s guarantee against cruel and unusual punishment. Consequently, our 1975 codification of this statute (§ 13-1-130) necessarily omitted the death penalty as punishment as well as the discretionary authority placed in the jury to fix punishment. The new Code did not adopt the 19W Code’s sentencing authority provision. This modification occurs throughout the related sexual offenses statutes. Sections 13-1-133, -135, Code of Ala.1975. Consequently, § 13-1-130 must be read in conjunction with § 15-18-20, Code of Ala.1975, which states:

“ ‘When an offense is punishable by imprisonment in the penitentiary or hard labor for the county, the court must impose the term of punishment, [ujnless the power is expressly conferred on the jury.’ (Emphasis added.)
“The trial court has also been granted the authority to impose a life sentence. Section 15-18-23, Code of Ala.1975.
“Therefore, unless the jury is expressly invested with the authority to sentence, the power lies exclusively in the trial judge. The jury is not authorized to fix punishment for rape under § 13-1-130, supra. That authority rests in the trial judge alone. Thus, appellant’s argument is without merit. See: Trone v. State, Ala.Cr.App., 366 So.2d 379 (1979); Burton v. State, 364 So.2d 394, cert. denied, Ala., 364 So.2d 397 (1978); Taylor v. State, Ala. Cr.App., 361 So.2d 1189 (1978).”

377 So.2d at 1120 (some emphasis original; some emphasis added).

Minnifield’s sentence was properly imposed by the trial court instead of the jury and, thus, was not illegal. Therefore, this claim was properly denied by the circuit court.

VI.

Finally, Minnifield contends that the claims in his petition should have been “recognized as grounds for the issuance of a writ of habeas corpus.” (Minnifield’s brief at p. 9.) However, Minnifield’s petition challenged the validity of his conviction and sentence; therefore, the circuit court’s treatment of the petition as a Rule 32 petition was proper. See Magouirk v. State, 682 So.2d 507 (Ala.Crim.App.1996).

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

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

BASCHAB, J., concurs in the result.

BASCHAB, Judge,

concurring in the result.

I disagree with the majority’s conclusion regarding the effective date of Act No. 77-607, Ala. Acts 1977. As the majority notes in its opinion, the original effective date of Act No. 77-607, Ala. Acts 1977, was May 16, 1978. Relying on the 1978 House Journals, the majority states that House Bill 10 was enacted as Act No. 78-770, Ala. Acts 1978; that House Bill 10 amended § 9910, Act No. 77-607, Ala. Acts 1977, which set forth the effective date for that act; and that the effective date of Act No. 77-607, Ala. Acts 1977, was changed to June 1, 1979. Initially, I question the propriety of relying on house bills and house journals to determine that, in Act No. 78-770, Ala. Acts 1978, the legislature amended the effective date of Act No. 77-607, Ala. Acts 1977, because such an amendment is not apparent based on the text of the actual act that was passed.

Moreover, it is not entirely clear what law was in effect at the time of the offense in this case. The title of Act No. 78-770, Ala. Acts 1978, stated:

“To amend Sections 130, 1230, 2611, 2612, 3202, 3203, 3204, 3207, 3208, 3210, 3250, 3280, 4045, 4115, 4601, 4608, 4705, 5511, 5530, and 9901 of Act No. 607, S. 33, Regular Session 1977 (Acts of Alabama 1977, p. 812), entitled ‘An Act To provide an entirely new criminal code for the State of Alabama; defining offenses, fixing punishment; repealing numerous specific code sections and statutes that conflict herewith as well as all other laws that conflict with this act.’ ”

Further, Act No. 78-770, Ala. Acts 1978, provides, in pertinent part:

“Be it Enacted by the Legislature of Alabama:
“Section 1. Sections 130, 1230, 2611, 2612, 3202, 3203, 3204, 3207, 3208, 3210, 3250, 3280, 4045, 4115, 4601, 4608, 4705, 5511, 5530, and 9901 of Act No. 607, S. 33, Regular Session 1977 (Acts of Alabama 1977, p. 812), the Alabama Criminal Code, are hereby amended to read as follows:”

Section 9910 of Act No. 77-607, Ala. Acts 1977, is not listed as one of the sections being amended. Immediately thereafter, the amended provisions of Act No. 77-607, Ala. Acts 1977, appear in quotation marks and the various section numbers are not in bold print. After the last enumerated amended provision, the following language appears:

“Section 9910 Time of Taking Effect.
“This Act shall take effect at 12:01 A.M. o’clock on June 1,1979.”

Unlike the sections of Act No. 77-607, Ala. Acts 1977, that were specifically being amended, § 9910 in Act No. 78-770, Ala. Acts 1978, was not in quotation marks, and its section number was set forth in bold print. Finally, Act No. 78-770, Ala. Acts 1978, does not include any other section setting forth the effective date of that act. Therefore, it appears that § 9910 in Act No. 78-770, Ala. Acts 1978, actually established the effective date of that act rather than the effective date for Act No. 77-607, Ala. Acts 1977.

Moreover, the legislature subsequently enacted Act No. 79-125, Ala. Acts 1979. The title and the text of that act specifically stated that it was amending § 9910 of Act No. 77-607, Ala. Acts 1977. Further, the amended text of § 9910, Act No. 77-607, Ala. Acts 1977, is in quotation marks, and the section number is not set forth in bold print. Therefore, we presume that, if the legislature had intended to amend the effective date of Act No. 77-607, Ala. Acts 1977, in Act No. 78-770, Ala. Acts 1978, it knew how to do so. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).

Based on the title of Act No. 78-770, Ala. Acts 1978, and the actual text of the act, it is not clear that that act actually amended § 9910, Act No. 77-607, Ala. Acts 1977, and changed the effective date of Act No. 77-607, Ala. Acts 1977. Therefore, Act No. 77-607, Ala. Acts 1977, may have become effective on May 16,1978.

Further, although Act No. 79-125, Ala. Acts 1979, specifically changed the effective date of Act 77-607, Ala. Acts 1977, to January 1, 1980, that act did not become effective until May 29, 1979, more than one year after Act No. 77-607, Ala. Acts 1977, was originally scheduled to take effect. Therefore, based on the legislative history regarding these various acts, it is not clear what law was actually in effect between May 16, 1978, and May 29, 1979, and what law governed offenses that occurred during this time. Accordingly, I do not agree with the majority’s holding that Title 13, Ala.Code 1975, was clearly the law in effect at the time the appellant committed the offense in this case and its holding that the statement in Hogan regarding the effective date of Act No. 77-607, Ala. Acts 1977, was clearly erroneous and due to be overruled.

For the above-stated reasons, I respectfully concur in the result.

      . Minnifield also filed Rule 32, Ala.R.Crim.P., petitions challenging three other rape convictions from the same period on the same grounds as raised in this petition. On April 22, 2005, this Court, in an unpublished memorandum, affirmed the circuit court's denial of one of those petitions. See Minnifield v. State (No. CR-04-0167), 926 So.2d 1082 (Ala. Crim.App.2005) (table). In unpublished memorandums released today, we affirm the circuit court's denial of the other two Rule 32 petitions (no. CR-04-0172) and (no. CR-04-0173).

      . Minnifield also argued in his petition that he did not receive effective assistance of counsel at trial or on appeal and that he was innocent of the charges against him. However, he does not pursue those claims on appeal. Thus, those claims are deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) ("We will not review issues not listed and argued in brief.”).

      . This court may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992).

      . Sections 13-1-132 through -136 also dealt with various forms of what is now termed rape but at that time was referred to as carnal knowledge. Those sections have no applicability to this case.

      . We note that despite our erroneous statement in Hogan, that case was ultimately decided correctly.

      . Section 13-1-131, Ala.Code 1975, mirrored Title 14, § 396, Code of Ala.1940 (Recompiled 1958). Similarly, § 15-8-150(80), Ala.Code 1975, is identical to Title 15, § 259, Form 89, Code of Ala.1940 (Recompiled 1958).

      . Unlike Act No. 78-770, Ala. Acts 1978, Act No. 79-125, Ala. Acts 1979, included a separate section that established the effective date of that act.


source: Caselaw Access Project

author: BASCHAB, Judge. SHAW, Judge,

license: Public Domain

text:
    James Edward WELLS v. STATE of Alabama.
    CR-04-2173.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.
    Rehearing Denied Dec. 16, 2005.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050448.
    James Edward Wells, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On October 11, 1996, the appellant, James Edward Wells, was convicted of attempted murder. On November 22, 1996, the trial court sentenced him, as a habitual offender, to imprisonment for life without the possibility of parole. See § 13A-5-9(c)(3), Ala.Code 1975. On November 8, 2004, the appellant filed a motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975. The circuit court summarily denied the motion, and the appellant appealed that denial to this court. We affirmed the circuit court’s judgment in an unpublished memorandum and issued a certificate of judgment on May 11, 2005. See Wells v. State, (CR-04-0818, April 22, 2005) 926 So.2d 1088 (Ala.Crim.App.2005) (table). On June 14, 2005, the appellant filed a second motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala. Code 1975. The circuit court summarily denied the motion, and this appeal followed.

The appellant argues that the circuit court abused its discretion in denying his motion for reconsideration of his sentence. Because this is the second motion for reconsideration of sentence the appellant has filed, we must determine whether the circuit court was required to consider the motion at all.

At the outset, we note that neither § 13A-5-9.1, Ala.Code 1975, nor Kirby v. State, 899 So.2d 968 (Ala.2004), specifically mentions the filing of more than one such motion. We further note that, in Kirby, 899 So.2d at 971, the Alabama Supreme Court stated:

“By requiring in § 13A-5-9.1 that the provisions of § 13A-5-9 are to be applied retroactively, however, the Legislature vested jurisdiction in the sentencing judge or the presiding judge to reopen a case more than 30 days after a defendant has been sentenced.”

(Emphasis added.) Thus, as we explained in Prestwood v. State, 915 So.2d 580 (Ala.Crim.App.2005), a § 13A-5-9.1 motion involves reopening an existing case. Requiring that a circuit court consider a second or successive motion for reconsideration of sentence would not only waste the scarce resources of an already overburdened judicial system, but also would preclude finality of judgment in a case. We are aware that

“we must strike a proper balance between our interest in preserving the finality of judgments, and, thus, promoting the efficient administration of criminal justice, and our interest in safeguarding the rights of the accused. A careful balancing of these concerns is, in our view, necessary to foster stability and confidence in the judicial system.”

Ex parte Frazier, 562 So.2d 560, 569 (Ala.1989). See also Rule 1.2, Ala. R.Crim. P. (stating that “[tjhese rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.”). Nevertheless, we conclude that, once a circuit court has considered one motion for reconsideration of sentence filed by a defendant in a particular case, the defendant’s rights with regard to that case will have been sufficiently safeguarded. Thereafter, the circuit court will not have jurisdiction to consider any second or successive motions for reconsideration filed by that defendant in that particular case. Instead, it should summarily deny any such motion.

In this case, the circuit court did not have jurisdiction to consider the appellant’s second motion for reconsideration of his sentence. Because it could have properly summarily denied the motion on this ground, we affirm the circuit court’s judgment. See Sumlin v. State, 710 So.2d 941 (Ala.Crim.App.1998) (noting that we will affirm a circuit court’s denial of a Rule 32 petition if it is correct for any reason); Kilgore v. State, 643 So.2d 1015, 1018 (Ala.Crim.App.1993) (noting that “we will affirm a lower court if the court’s ruling is correct for any reason, even if the lower court based its ruling on a wrong reason”).

AFFIRMED.

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

SHAW, Judge,

concurring specially.

In Kirby v. State, 899 So.2d 968 (Ala.2004), the Alabama Supreme Court held that “the Legislature has the power to vest circuit courts with the authority to reopen a case that had previously been deemed closed and in which the court’s decision was deemed final.” 899 So.2d at 971 (emphasis added). The Court further stated:

“Section 6.04(b) of Amendment No. 328, Ala. Const, of 1901, recognizes the authority of circuit courts to exercise the power conferred by § 13A-5-9.1:
“ ‘The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law. The circuit court may be authorized to review decisions of state administrative agencies and decisions of inferior courts. It shall have authority to issue such units as may be necessary or appropriate to effectuate its powers,
and shall have such other powers as may be provided by law.’
“(Emphasis added.) Section 6.11 of Amendment No. 328 grants this Court the authority to promulgate rules of procedure, including criminal procedure, but it prohibits this Court from enacting a rule that alters the jurisdiction of a court. Only the Legislature, within constitutional limits, has the authority to alter the jurisdiction of the circuit courts. Henderson v. State, 616 So.2d 406, 407-10 (Ala.Crim.App.1993). By passing a general act of statewide application, the Legislature can change the rules this Court has promulgated governing the administration of all courts. Ex parte Kennedy, 656 So.2d 365, 367 (Ala.1995). Section 13A-5-9.1 is an act of statewide application that confers jurisdiction upon the sentencing judge or the presiding judge to apply the 2000 amendment to the HFOA retroactively.”

899 So.2d at 971-72.

Neither the legislature nor the Alabama Supreme Court has addressed the issue whether § 13A-5-9.1, Ala.Code 1975, vests circuit courts with the authority to reconsider a case more than once. It goes without saying that § 13A-5-9.1 “is not a model of clarity,” 899 So.2d at 974. However, based on what I understand the legislature was trying to accomplish by taking the rather extraordinary step of allowing the provisions of § 13A-5-9, Ala.Code 1975, to be applied retroactively by the circuit courts, i.e., to allow for the reconsideration of certain sentences and the possible parole of certain offenders, I do not believe that the legislature intended to authorize the reconsideration of a case more than once. “Normally, a trial court loses jurisdiction to modify a sentence in a criminal case if a request for modification is not filed within 30 days of sentencing.” 899 So.2d at 971. As the majority notes, requiring a circuit court to evaluate multiple § 13A-5-9.1 motions would not only waste valuable judicial time, but would also preclude finality of judgments. I must assume that the legislature was aware of that when it enacted the statute.

Trial and appellate courts have struggled for some time now with frivolous and abusive filings made pursuant to Rule 32, Ala. R.Crim. P. Construing § 13A-5-9.1 to authorize the reconsideration of a case more than once would, in my view, be illogical and would have the undesired, but consequential, effect of inviting the same kind of frivolous and abusive filings that the courts are now seeing in the Rule 32 context.

Therefore, I concur with the conclusion reached by the majority that, once a circuit court has considered one motion for reconsideration of sentence filed by a defendant in a particular case, the defendant’s rights with regal’d to that case will have been sufficiently safeguarded and, thereafter, the circuit court must summarily deny any further motions.

      . In a similar vein, this Court recently held in Sanders v. State, 934 So.2d 432 (Ala.Crim.App.2005), that, based on the plain language of § 13A-5-9.1, a circuit court has no jurisdiction to resentence a violent offender.


author: COBB, Judge.

text:
    J.C. v. STATE.
    CR-04-0496.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.
    Deanie C. Allen, Montgomery, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   COBB, Judge.

J.C. appeals the trial court’s October 24, 2003, denial of his motion to review and reconsider the trial court’s denial of his right to apply for youthful-offender status under § 15-19-1, Ala.Code 1975. On November 2, 2004, J.C. pleaded guilty to first-degree burglary, in violation of § 13A-7-5, Ala.Code 1975, and he was sentenced to 10 years in prison; that sentence was split and he was ordered to serve one year in the custody of the Department of Corrections, to attend boot camp, and to serve 3 years on supervised probation. He was also ordered to pay $55 in restitution, to pay court costs, and to pay $50 to the crime victims compensation fund.

The record reveals that on January 20, 2003, J.C. was arrested and charged as an adult with unlawful breaking and entering a motor vehicle, second-degree theft of property, third-degree theft of property, and first-degree burglary. At the time of the arrest, he was 16 years of age, and was therefore eligible to seek youthful-offender status under § 15-19-1, Ala.Code 1975. On appeal, J.C. argues that the trial court abused its discretion in denying him the opportunity to apply for youthful-offender status. In its brief, the State agreed that J.C. was improperly denied the right to seek youthful-offender status and argued that the case should be remanded for the trial court to make a determination as to whether J.C. should be treated as a youthful offender.

On June 10, 2003, J.C. filed an application for youthful-offender status. On July 10, 2003, July 24, 2003, and August 12, 2003, and August 28, 2003, the trial court held hearings to determine whether he had the right to apply for youthful-offender status. On October 24, 2003, the trial court denied J.C. the opportunity to apply for youthful-offender status.

The trial judge denied J.C. the opportunity to apply for youthful-offender status because she believed that § 12-15-34(h), Ala.Code 1975, prohibited the trial court from treating him as a youthful offender because the trial court believed that he had been automatically transferred from the juvenile court to the Montgomery Circuit Court. Section § 12-15-34(h), Ala. Code 1975, states in pertinent part:

“(h) A child whose case is transferred for criminal prosecution shall not be granted youthful offender status and, if convicted, shall be sentenced as an adult if the act which if committed by an adult would constitute any of the following:
“(1) A capital offense.
“(2) A Class A felony.
“(3) A felony which has as an element the use of a deadly weapon.”

J.C., however, was not transferred from the juvenile court to the circuit court; therefore, § 12-15-34(h), AIa.Code 1975, is inapplicable. Rather, J.C. was charged as an adult under the provisions of § 12-15-34.1, Ala.Code 1975, which states that a 16-year-old must be charged as an adult if he or she is charged with, among other crimes, a Class A felony.

This Court has held that when a juvenile is charged with a crime as an adult under § 12-15-34.1, Ala.Code 1975, the defendant has the right to apply for youthful-offender status under § 15-9-1, Ala.Code 1975.

“Section 12-15-34.1, Ala.Code 1975, provides that a minor 16 years or older is not subject to the jurisdiction of juvenile court but is to be tried as an adult if the minor is charged with an act that would constitute a capital offense, a Class A felony, a felony involving the use of a deadly weapon, a felony involving death or serious physical injury, a felony involving the use of a dangerous instrument against certain officials, trafficking in drugs, or any lesser included offense of the above, or lesser felony offense arising from the same facts and circumstances and committed at the same time as the above offenses. However, a person to be tried as an adult under § 12-15-34-1 rnay apply for youthful offender status under § 15-19-1, Ala.Code 1975.”

J.F.B. v. State, 729 So.2d 355, 358 (Ala.Crim.App.1998) (emphasis added). Accordingly, we find that the trial court erred in denying J.C. the right to seek youthful-offender status.

Therefore, we remand this case for the trial court to make findings of fact consistent with this opinion. If the trial court determines that J.C. qualifies for youthful-offender treatment, his conviction should be reversed, and he should be afforded youthful-offender treatment. If the trial court, in its discretion, determines that J.C. is not qualified to be treated as a youthful offender, then the failure of the trial court to consider youthful-offender treatment before his conviction was harmless error and his conviction should be affirmed.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.

       Note from the reporter of decisions: On May 26, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: SHAW, Judge. BASCHAB, Judge,

text:
    Michael LANDRUM v. STATE of Alabama.
    CR-04-2314.
    Court of Criminal Appeals of Aabama.
    April 28, 2006.
    Michael Landrum, pro se.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

COBB and WISE, JJ., concur.

BASCHAB, J., dissents, with opinion, which McMILLAN, P.J., joins.

BASCHAB, Judge,

dissenting.

Because the appellant filed a premature notice of appeal in this case, this court should dismiss this appeal. Accordingly, I respectfully dissent.

The following dates and events are relevant to an understanding of the procedural posture of this case:

August 17, 2004 The appellant filed his Rule 32 petition.
September 14, 2004 The State filed its response to the petition.
October 7, 2004 The circuit court signed a separate order dismissing the petitioft.
March 23, 2005 The appellant filed a motion to amend his petition.
April 26, 2005 The State responded to the appellant’s motion to amend.
May 9, 2005 The circuit court signed a separate order denying the appellant’s motion to amend as moot.
May 10, 2005 The circuit clerk stamped as filed the circuit court’s order dated May 9,2005.
June 23, 2005 The appellant filed a notice of appeal “from the judgment rendered against him on the 20th day of June, 2004, denying relief on his Rule 32 petition”; a reporter’s transcript order indicating that he was appealing an order dated May 9, 2005; and a docketing statement indicating that he was appealing an order dated May 9, 2005. (C.R. 96, 97, 98.) Also, on the docketing statement, under the section entitled “Nature of the Case,” the appellant stated: “Rule 32 Petition Denial without notification to Petitioner until June ... 2005 when the Petitioner received denial of Rule 32 petition order from the Circuit court. Petitioner is due out of time appeal because he was not notified.” (C.R. 99.)
August 4, 2005 The circuit clerk filed a notice of appeal with this court in which it indicated that it had not received the order the appellant was appealing.
August 19, 2005 The circuit clerk filed an amended notice of appeal with this court in which it indicated that the order the appellant was appealing was dated October 7, 2004, but was received in that office on August 11, 2005.

In Miles v. State, 822 So.2d 468, 468 (Ala.Crim.App.2000), the question before this court was whether “a premature notice of appeal — filed before a judgment has been entered on a postconviction petition — [is] effective to confer appellate jurisdiction on this Court.” In Miles, we found that a premature notice of appeal was not effective, explaining as follows:

“Miles filed a Rule 32 petition in the circuit court of Colbert County on November 1, 1999. His petition was accompanied by a notice marked ‘Standing Notice of Appeal.’ The trial court denied the Rule 32 petition on November 18, 1999. Pursuant to Miles’s formerly filed standing notice of appeal the circuit clerk processed the case and sent the notice of appeal to this Court....
“Miles in his ‘standing notice of appeal’ stated:
“ ‘Pursuant to attached petition for postconviction relief by Rule 32 A.R. Cr. P. remedy petitioner hereby submits a “Standing Notice of Appeal.”
“‘Comes “Bobby Gene Miles” the pro-se petitioner, and hereby makes known that he wishes to appeal to the Alabama Court of Criminal Appeals any denial, dismissal or adverse ruling by this court for the attached petition for posteonviction relief by way of Rule 32, A.R. Cr. P. remedy. Appeal in this cause is authorized by Rules 3-4 Alabama Rules of Appellate Procedure and Rule 32.10 Alabama Rules of Criminal Procedure. Appellate Forms: A.R.A.P. 26 front-back and A.R.A.P. 1-C are attached hereto.’

“This Court has never had occasion to speak to the specific issue presented in this case. However, the Alabama Court of Civil Appeals in McCoy v. Garren, 384 So.2d 1113, 1114-15 (Ala.Civ.App.1980), has stated the following concerning a premature notice of appeal:

“ ‘Appeals are of statutory origin, and, unless so provided, no appeal will lie. Johnson v. Barnes, 250 Ala. 292, 34 So.2d 144 (1948)....
“ ‘Section 18-1-20, Code of Alabama 1975 is the only provision in the Code authorizing appeals from condemnation orders entered by probate courts. State v. Pettis, 275 Ala. 450, 156 So.2d 137 (1963). Therefore, the probate court order of November 27, 1978, not the September 22, 1978 order, was the order that triggered the running of the thirty day appeal period for appeals to the circuit court. Consequently defendants’ notice of appeal, which was filed on November 8, 1978, was filed before the order of condemnation from which an appeal could be taken. The result is a premature taking of an appeal.
“ ‘Defendants’ failure to perfect their appeal in accordance with § 18-1-20 deprives the circuit court of jurisdiction to hear the appeal. Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854 (1954). Not having jurisdiction to hear defendants’ appeal, the circuit court properly dismissed it. State v. King, 271 Ala. 16, 122 So.2d 158 (1960).’
“Followed by Ex parte City of Irondale, 686 So.2d 1127 (Ala.1996). See also Jenkins v. Jenkins, 112 Md.App. 390, 685 A.2d 817 (1996) (‘Premature notices of appeal are generally of no force and effect.... They have no effect because premature appeals are a jurisdictional defect.... We may not confer appellate jurisdiction on our own initiative.’).
“Rule 4(a)(1), Ala. R.App. P., states: ‘Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ’ The only provision in the rules that speaks to filing a premature notice of appeal is contained in Rule 4(b)(1). This rule states: ‘A notice of appeal filed after the announcement of a decision or order, but before pronouncement of the sentence, shall be treated as having been filed after the pronouncement of the sentence and on the day thereof.’
“Clearly, the wording of the Rule states that notice of appeal must be filed within 42 days ‘after a judgment’ has been entered in a case. There is nothing from which to appeal until a ruling has been entered in a case. When Miles filed his notice of appeal there was no judgment entered on the Rule 32 petition.
‘We suggest that when a district or circuit court clerk receives a postconviction petition that is accompanied by a premature notice of appeal, that the clerk return the notice of appeal so that the petitioner is placed on notice that he/she will have to submit a written notice of appeal to the circuit clerk when a judgment is made on the petition.
“Here, the ‘standing notice of appeal’ filed prior to the entry of judgment was not effective to invoke the jurisdiction of this Court. No written notice of appeal was filed after the entry of judgment; therefore, this Court has no jurisdiction to consider this appeal. Barfield v. State, 703 So.2d 1011 (Ala.Crim.App.1997).”

822 So.2d at 468-70 (footnote omitted).

Although the circuit court dated its order dismissing the petition October 7, 2004, the record establishes that the order was not filed in the circuit clerk’s office, and thereby officially entered, until August 11, 2005. See Ex parte Potts, 814 So.2d 836, 838 n. 1 (Ala.2001) (noting that “the date of entry by the clerk, rather than the date the judgment is rendered, should be used when computing the time within which the notice of appeal must be filed”). Also, as was the situation in State v. Wilson, [Ms. CR-04-1598, November 23, 2005] — So.2d - (Ala.Crim.App.2005), and State v. Woodall, [Ms. CR-04-1599, November 23, 2005] — So.2d - (Ala. Crim.App.2005), the record does not affirmatively indicate that the circuit court in any way announced its decision to the parties before the order was officially entered. Therefore, it is not appropriate to rely on Rule 4(a)(4), Ala. R.App. P., treat the notice of appeal the appellant filed on June 23, 2005, as having been filed on August 11, 2005, when the circuit court’s ordered was entered.

Because the appellant filed his notice of appeal in the circuit court on June 23, 2005, before the circuit court entered its order on August 11, 2005, that notice was premature and was not effective to invoke the jurisdiction of this court. Also, the appellant did not later file a notice of appeal in the circuit court after the circuit court entered its order dismissing the petition. Therefore, the appellant did not file an effective notice of appeal, and this court does not have jurisdiction to consider this appeal. See Miles, supra. Accordingly, I respectfully dissent.

McMILLAN, P.J., concurs.


author: PER CURIAM.

text:
    Jason LOONEY, Appellant, v. STATE of Florida, Appellee.
    No. SC05-159.
    Supreme Court of Florida.
    June 22, 2006.
    Rehearing Denied Oct. 27, 2006.

      Baya Harrison, III, Monticello, Florida and Frank E. Sheffield, Tallahassee, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   PER CURIAM.

Jason Brice Looney, a prisoner under sentence of death, appeals the circuit court’s order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the denial of relief.

FACTS AND PROCEDURAL HISTORY

Jason Brice Looney was convicted of the first-degree murders of Melanie King and Robin Keith Spears, burglary of a dwelling while armed with a firearm, armed robbery with a firearm, arson of a dwelling, and use of a firearm in the commission of a felony. See Looney v. State, 803 So.2d 656, 664 (Fla.2001). The jury, by a vote of ten to two, recommended the death penalty. See id. Following that recommendation, the trial judge sentenced Looney to death for each murder. In its opinion affirming the convictions, this Court detailed the facts surrounding the murders of King and Spears, as follows:

At approximately 11 p.m. on July 26, 1997, Looney and his codefendants [Gu-erry Wayne Hertz and Jimmy Dempsey] left an acquaintance’s house on foot within walking distance from the victims’ home. All three men were armed with guns. A resident who lived about 500 yards from the victims testified that Hertz appeared at her door at about 2 a.m. asking to use her phone because “his truck had broken down.” When she refused, the trio continued down the road towards the victims’ home and, upon seeing the victims’ black Mustang, Looney said, “There’s my car right there. That’s the one I want.”
Dempsey and Hertz went to the victims’ front door as a decoy and asked if they could use the phone. King provided them with a cordless phone, and Dempsey feigned making a phone call. When Dempsey attempted to return the phone, Hertz pointed his gun at King and forced his way in. Looney then entered and pointed his rifle at Spears. Spears and King were bound and gagged with duct tape and placed face down on their bed. Looney and his codefendants removed a significant amount of the victims’ property, including a YCR, a television, jewelry, furniture, and CDs, and loaded the victims’ belongings into the victims’ two vehicles. Looney also found approximately $1500 of the victims’ money in an envelope, which was ultimately divided equally among the three.
Looney and Hertz concluded that they could leave no witnesses and informed Dempsey of their decision. Dempsey said Looney and Hertz then poured ac-celerants throughout the victims’ home. All three men, still armed, went to the bedroom where the victims were bound, side-by-side, face down on their bed. When they entered the back bedroom, King said that she would “rather die being burnt up than shot.” She stated, “Please, God, don’t shoot me in the head.” Hertz replied, “Sorry, can’t do that,” and then he proceeded to open fire; Looney followed and then Dempsey. The victims died as a result of the gunshot wounds.
Subsequent to the shootings, the victims’ home was set ablaze. Hertz drove away in the victims’ white Ford Ranger, and Looney drove the victims’ black Ford Mustang, with Dempsey as a passenger. According to Dempsey, the whole episode at the victims’ home lasted about two hours. The trio proceeded to Hertz’s house and unloaded the stolen items and divided up the money. Two employees at the Wal-Mart in Tallahassee testified that the three men made purchases at the store at around 5 a.m. the morning of the murders, before “showing off’ their new vehicles, i.e., a black Mustang and a white Ford Ranger, to both of the employees. A Wal-Mart receipt for a clothing purchase was later found in the victims’ Mustang, corroborating the employees’ testimony.
Looney and his codefendants made their way to Daytona Beach Shores where, later that day, they were involved in a pursuit and shootout with police. Looney and Dempsey were arrested after abandoning and fleeing from the victims’ black Mustang. Hertz abandoned the victims’ Ford Ranger after being shot, and he paid a cabdriver $100 to drive him to his aunt’s house in St. Augustine. Hertz was arrested that same day in St. Augustine, and victim Spears’ .9mm gun was recovered from Hertz’s bag.

Id. at 662-63.

The Guilt Phase

The evidence presented during the guilt phase of Looney’s trial was summarized in this Court’s opinion affirming his convictions on direct appeal, as follows:

A firearms expert with FDLE testified that one of the bullets recovered from the area of the victims’ burned bed was fired from the .380 Lorcin handgun recovered from Looney at the time of his arrest in Daytona Beach, i.e., the same handgun owned by Keith Spears and used, according to Dempsey, by Hertz to shoot the victims. The other bullet was fired from a .30 caliber carbine rifle, not inconsistent with [the] .30 caliber rifle used by Looney to shoot the victims, and later recovered in the victims’ Mustang. A roll of duct tape, Looney’s wallet with $464, and Dempsey’s wallet with $380 were also found in the Mustang. A fingerprint analyst with FDLE analyzed latent fingerprints taken from the Mustang and concluded that Hertz and his codefendants had all touched the car. The chemist found evidence of various accelerants on items of clothing found in the Mustang. In addition, a law enforcement investigator with the State Fire Marshal’s Office testified that the kind of damage that was done by the fire does not happen unless an accelerant is used.
The state medical examiner testified that the bodies were severely burned. He graphically detailed the condition of the bodies as depicted in the photographs: the legs were burned off below the knees, the hands were burned to nubs, the bones of the arms were fractured by the fire, and the skulls were burned partially away. The victims had to be positively identified by dental records. The medical examiner also testified that there could have been other injuries that were not detected due to the extensive burns.
King was shot at least two times in the head, which caused her death. However, the medical examiner was not able to trace the path of the bullet because the skull was burned away. He testified that it was possible that other bullets struck the body, which could not be determined because of the fire. King lived one to two minutes after she was shot. However, there was no soot in the trachea, indicating that she was not alive when the fire started. Spears was shot at least one time in the head, which caused his death. The bullet went in the back of the neck and exited above the right eye. Spears also lived one to two minutes after he was shot, and again, no soot was discovered in his trachea, meaning that he was dead at the time of the fire.
The defense did not present any evidence.

Id. at 663-64.

The Penalty Phase

At the penalty phase, the State presented two witnesses relevant to defendant Looney. Karen King and Janet Spears, the mothers of victims Melanie King and Keith Spears, respectively, both read previously prepared victim impact statements into the record.

The defense presented four witnesses: Robert Kendrick, Looney’s probation officer, Andrew Harris, an incarcerated felon, and Looney’s birth mother and grandmother. Robert Kendrick testified that Looney was an average probationer and was not in violation of his probation on the date of the murders. Andrew Harris testified that in conversations in jail with Jimmy Dempsey, the third codefendant, Dempsey stated that Looney was only the lookout during the murders and that Dempsey should have shot Looney because he was the one most likely to testify against the other two. Looney’s birth mother and grandmother presented evidence related to the circumstances surrounding Looney’s birth, his removal from their care and placement with his eventual adoptive family at the age of eighteen months, and the limited contact with his grandmother from that point forward.

In sentencing Looney to death, the trial judge found six individual aggravating factors: (1) that the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (substantial weight); (2) that the murders were committed while the defendant was engaged in the commission of a burglary, arson, and robbery (great weight); (3) that the murders were committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody (great weight); (4) that the murders were committed for financial gain (merged with second aggravator); (5) that the murders were especially heinous, atrocious or cruel (“HAC”) (great weight); and (6) that the murders were committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification (great weight). See id. at 664.

In mitigation, the trial court found only-one statutory mitigator, based on Looney’s age at the time of the murders, which was given moderate weight. See id. With respect to nonstatutory mitigation, the trial court found: (1) Looney’s troubled childhood (significant weight); (2) Looney had no significant criminal history (marginal weight); (3) Looney was remorseful (moderate weight); (4) that society would be adequately protected by the imposition of a life sentence (some weight); and (5) that codefendant Dempsey was given a life sentence (significant weight). See id.

In imposing the sentence of death, the trial judge noted that “[a] review of all the evidence causes the evidence of mitigation to pale into insignificance considering the enormity of the proven and appropriately considered aggravating factors.”

Direct Appeal

On direct appeal, this Court affirmed Looney’s murder convictions and death sentences, denying all of Looney’s claims, none of which are relevant to the instant postconviction appeal. See Looney, 803 So.2d 656. In June 2002, certiorari was denied by the United States Supreme Court. See Looney v. Florida, 536 U.S. 966, 122 S.Ct. 2678, 153 L.Ed.2d 850 (2002).

Rule 3.851 Proceedings

On June 30, 2003, Looney filed a rule 3.851 motion for post conviction relief. On March 9, 2004, Looney filed an amended rule 3.851 motion which elaborated on his original ineffectiveness claim and alleged that penalty phase counsel was ineffective for failing to present all available mental health mitigation. On March 11, 2004, the trial court held a Huff hearing to determine whether an evidentiary hearing on any of Looney’s claims was warranted.

At a July 28, 2004, evidentiary hearing, Looney presented Dr. Bill Mosman, a forensic psychologist, who, among other points, testified that there was extant statutory and nonstatutory mental health mitigation which was either not presented or was presented in an ineffective manner during the penalty phase at trial. Dr. Mosman’s testimony focused on the failure of Looney’s defense counsel to use a mental health expert as a witness during the penalty phase. However, cross-examination revealed that Dr. Mosman had neither reviewed the guilt phase trial transcripts nor contacted Looney’s trial counsel to determine why trial counsel chose not to use a mental health expert witness during the penalty phase. Subsequent to the evi-dentiary hearing, the trial court denied Looney’s claims for postconviction relief based in large part on credibility factors that the' trial court did not find Dr. Mos-man to be a convincing witness. This appeal followed.

ANALYSIS

Following the United States Supreme Court’s requirements outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that

[a] claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984); Downs v. State, 453 So.2d 1102 (Fla.1984). A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the' test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). The alleged ineffective assistance of counsel claim is a mixed question of law and fact, subject to plenary review based on Strickland. See Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999). Under this standard, the Court conducts an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings. See id. at 1032-33.

The deference given to the trial court’s factual findings when undertaking an ineffective assistance of counsel analysis in this context is related to the trial court’s determination of the credibility of witnesses and the weight to give the evidence. This Court recently explained that “[s]o long as the [trial court’s] decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence.” Arbelaez v. State, 898 So.2d 25, 32 (Fla.2005) (quoting Sochor v. State, 883 So.2d 766, 781 (Fla.2004)). This deference is a recognition of “the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.” Porter v. State, 788 So.2d 917, 923 (Fla.2001).

There is a presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A fair assessment of attorney performance requires that efforts be made to eliminate the distorting effects of hindsight, to reasonably reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The defendant carries the burden to overcome the presumption of effective assistance: “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id.

The Additional Statutory Mitigation

Looney asserts that Cummings was ineffective because he failed to properly present the statutory age mitigator because Cummings did not emphasize that the mitigator is intended to encompass a defendant’s emotional and mental age as well as chronological age. Dr. Mosman testified at the evidentiary hearing that although he could not give a specific number to Looney’s mental age, he was of the opinion that Looney’s mental and emotional age was somewhere in the early- to mid-teen years. In its order denying Looney’s postconviction motion, the trial court stated:

With respect to the asserted nonpre-sented statutory mitigation of the defendant’s emotional and social age deficits that he felt were not presented in the appropriate manner, apart from his chronological age, Dr. Mosman testified vaguely and without any specific delineation of any emotional or social deficits of the defendant. On cross examination, although he acknowledged that his IQ testing of the defendant reflected a full scale IQ of 120, in the upper ten percent, Dr. Mosman was reticent to give any specific mental, emotional or social age for the defendant preferring a band of “mid adolescence.”

Looney additionally asserts that Cummings was ineffective because he failed to present evidence of the statutory mitigator of extreme emotional disturbance. Dr. Mosman testified that there was data that could have been presented on the extreme emotional disturbance miti-gator which was part of the context of these particular crimes. He proceeded to discuss the traumatic abuse that Looney suffered at the hands of his natural grandfather as a baby and the subsequent revelation to him of that incident at age sixteen, the rigidity of Looney’s adoptive home, and the depression and other emotional factors that were in play at the time of the crime. In the order denying Looney’s motion for postconviction relief, the trial Court stated with regard to this subject matter:

There is no evidence in the record to support that any emotional or cognitive disturbance mental health mitigator asserted by Dr. Mosman, as either statutory or nonstatutory, contributed to the defendant’s actions in committing his crimes.

With respect to both lines of testimony, the trial court stated:

[Dr. Mosman’s] asserted additional statutory mitigators are without basis in the record and clearly conflict with the evidence of defendant’s conduct and behavior presented during trial. He was not familiar with the significant facts and circumstances or the evidence presented during the guilt phase and his parsing and teasing of the mitigation was strained and conjectural. Dr. Mosman’s testimony likely would have been entitled to insignificant weight had it been presented in the penalty phase.

This Court has established that it will not substitute its judgment for that of a trial court on the credibility of witnesses if the trial court’s judgment is supported by “competent, substantial evidence.” Arbelaez, 898 So.2d at 32 (quoting Sochor, 883 So.2d at 781). The trial court’s order describes that the cross-examination of Dr. Mosman revealed that he

had not talked to trial counsel concerning the presentation of defendant’s mitigation .... He also admitted that he had not read the guilt phase trial transcripts, but had read only the penalty phase.... Dr. Mosman had no knowledge of the details of the criminal events or the episode or the interactions between the criminal participants involved in the crimes.

These circumstances support the trial court’s determination that Dr. Mosman’s testimony would have been given insignificant weight even if it had been presented at trial.

Further, there is no indication in the record that defense counsel Cummings was ever alerted to the fact that either Looney’s mental age or his extreme emotional disturbance were potential mitigating factors in the instant matter. The mental health expert at the time of trial never mentioned these subjects to trial counsel. This Court has stated that “[cjounsel cannot be deemed ineffective ... simply because he relied on what may have been less than complete pretrial psychiatric evaluations.” State v. Sireci, 502 So.2d 1221, 1223 (Fla.1987). Therefore, even if Dr. Mosman’s finding as to Looney’s mental age and emotional disturbance were undeniable truths, Cummings still would not have been ineffective for relying on Dr. Partyka’s assessment which did not include such findings.

Cummings relied on the evaluation by the mental health expert at the time of trial, which did not include findings of either of the alleged additional statutory mitigators. Additionally, the trial Court found Dr. Mosman’s testimony unconvincing and concluded that there was not evidence in the record to support these miti-gators. Based on the foregoing, we find that defense attorney Cummings was not ineffective for failing to present this alleged additional statutory mitigation and that Dr. Mosman’s unconvincing testimony does not undermine our confidence in the proceedings below.

Non statutory Mitigation

Looney asserts that Cummings was also ineffective because he failed to present evidence of available and relevant nonstat-utory mitigation. Specifically, Looney alleges that Cummings failed to present evidence on the following twelve issues: (1) Looney’s natural mother was a teenager at the time she conceived him, was a runaway, abused drugs and alcohol, earned money as a stripper, and left Looney with her parents at eighteen months of age; (2) Looney was removed from the custody of his natural mother and grandparents at age eighteen months based on allegations of sexual and physical abuse; (3) the grandparents’ home was dysfunctional, the grandfather was an alcoholic, there were allegations of sexual abuse of two other children, and the grandfather later committed suicide; (4) there were problems with abuse in Looney’s adoptive home; (5) the environment in the adoptive home led Looney into severe depression and the exhibition of self-destructive behavior; (6) when Looney was fifteen, his adoptive mother informed him that his natural grandfather had committed suicide, and that when he was a baby he had been raped by his natural grandfather; (7) Looney began self-medicating with alcohol; (8) the only support Looney was given during this period was a brief period in alcohol rehabilitation, which failed; (9) Looney ran away to escape the environment of his adoptive home; (10) at the time of the offense, Looney was on his own, depressed, lonely, and angry about his upbringing; (11) clinical testing revealed that Looney did not have an antisocial personality disorder but, instead, suffered from significant clinical depression, anxiety, and self-destructive behavior; and (12) the crimes in the instant matter occurred while Looney was under a great deal of stress. As the State correctly asserts, Cummings presented evidence on virtually all of these issues, and those for which no evidence was presented were unknown to him at the time of trial.

With respect to the traumatic incidents surrounding Looney’s removal from the custody of his natural mother and grandparents by a child services department in Texas, defense counsel did in fact present evidence of these events at trial. Looney’s natural mother, Susan Podgers, testified at trial that Looney was born when she was seventeen and that she lost custody of him at the age of eighteen months based on allegations of sexual and physical abuse. Glenda Podgers, Looney’s natural grandmother, testified that Looney was raped at the age of eighteen months, was subsequently removed from her custody, and that she had discovered the rape after leaving Looney alone with her husband for the day while she went shopping. She also revealed that Looney’s adoptive home was a very rigid and controlling environment. She testified that Looney had been informed by his adoptive mother at the age of fifteen that his grandfather had raped Looney when he was a baby, and later committed suicide. She testified that after this information was related to Looney, he was given no support by his adoptive family to deal with these emotionally difficult issues. She confirmed that Looney stopped visiting with her after the traumatic circumstances surrounding his removal from the custody of his natural mother and grandparents were revealed to him.

Looney argues extensively that Cummings was ineffective for failing to present evidence that his adoptive home was an abusive environment. Dr. Mosman testified that the adoptive home was once investigated for possible abuse when marks were discovered on one of the girls in the home, but that the investigation was not pursued. He also mentioned that there were allegations of physical abuse made by a brother, Mark Looney, an adoptive sibling of defendant Looney whom Dr. Mosman had contacted. Although the trial judge sustained a hearsay objection to Dr. Mosman’s testimony regarding Mark Looney’s statements, and the precise content of the conversation between Dr. Mos-man and Mark Looney cannot be determined from the record, Looney asserts on appeal that Cummings was ineffective for failing to locate Mark Looney to present a full background of Looney’s life for fifteen years in his adoptive home.

Evidence of the controlling, rigid environment in the adoptive home was presented through the testimony of Glenda Podgers, Looney’s natural grandmother. She testified that Looney’s adoptive mother, Mrs. Looney

was extremely controlling. She had to control everything.... [S]he had it planned from the time he [defendant Looney] was three that he was going to be the next Billy Graham and nothing, nothing, was going to change that.

Cummings testified at the evidentiary hearing that he did not have Looney’s adoptive mother testify because when he had contacted her during his investigation

[s]he was very angry at what [Looney] had done and been charged with, and almost seemed like a reflection on her. She didn’t give a darn about what happened to [Looney] from that point on.

Cummings also established that Mrs. Looney gave every indication that Looney’s adoptive family would not cooperate in assisting Looney at trial. The trial mental health expert, Dr. Partyka, testified that Looney provided no indication during any interview that he had suffered abuse at'the hands of his adoptive parents. Additionally, Cummings received no indication from Looney nor did his own investigation reveal that Looney was ever abused in his adoptive home. Cummings also testified that Looney never identified his adoptive siblings as possible witnesses, although Looney had directed Cummings to other potential witnesses. Based on Mrs. Looney’s indication that the adoptive family was not going to assist or testify on Looney’s behalf and that Cummings had absolutely no indication that the adoptive home was abusive, it was not unreasonable that Cummings did not attempt to locate other members of the adoptive household for assistance during the penalty phase.

Looney further asserts that Cummings was ineffective because he failed to present evidence as to his “self-medicating” with alcohol starting at the age of sixteen. Cummings testified that although there was an indication of alcohol abuse at an earlier date, there was no indication that the use of alcohol by Looney or his codefendants was related to any behavior or conduct or with regard to the crimes. Thus, it does not appear that Looney’s “self-medication” is truly relevant to mitigation in the instant matter.

As to the mitigation with regard to Looney’s mental state at the time of the crimes, which Looney asserts Cummings was ineffective for failing to present, Cummings was given no indication by the trial mental health expert that these circumstances were present. Dr. Mosman testified at the evidentiary hearing that Looney was depressed, lonely, feeling adrift and angry at the way he had been raised at the time of these murders. Dr. Partyka testified during the evidentiary hearing, contrary to Dr. Mosman’s conclusion with regard to Looney’s flight from his adoptive home, that defendant Looney had left his prior home as an impulsive act, a need for change, an indication of an issue of boredom and a need for stimulation more than anything else. Dr. Partyka added that Looney’s impulsivity and the desire to travel the country was typical behavior for psychopaths and consistent with his conclusion that defendant Looney was a psychopath. This Court has established that defense counsel is entitled to rely on an evaluation conducted by a mental health expert for trial, even if, in retrospect, that evaluation is less than perfect. See Sireci, 502 So.2d at 1223. Even if Dr. Mosman’s conclusion that Looney was in a state of emotional disturbance at the time of these crimes is accurate, Cummings still would not have been ineffective for relying on Dr. Partyka’s assessment, which did not reach a similar conclusion.

Cases Looney advanced to support his assertion that Cummings was ineffective because he failed to discover and present extant mitigation are factually distinguishable because defense counsel in those cases conducted far less thorough investigations into mitigation than did Cummings in the present case. See State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002) (“[Counsel did not spend sufficient time to prepare for mitigation.... ”); Rose v. State, 675 So.2d 567, 572 (Fla.1996) (“[C]ounsel never attempted to meaningfully investigate mitigation....”); Hildwin v. Dugger, 654 So.2d 107, 109 (Fla.1995) (“Trial counsel’s sentencing investigation was woefully inadequate.”); Heiney v. State, 620 So.2d 171, 172 (Fla.1993) (concluding that counsel “totally fail[ed] to investigate potential mitigating factors”). Here, on the other hand, the trial court stated in the order denying post conviction relief that

[c]ounsel did conduct a reasonable investigation of mental health mitigation prior to trial and made a strategic and reasonable decision not to present this information through a mental health expert. He did not fail to investigate potential mitigating evidence and he did not fail to obtain an adequate mental health evaluation.

Failure to Use a Mental Health Expert

Looney alleges that Cummings was ineffective for failing to present the testimony of a mental health expert during the penalty phase to, in Dr. Mosman’s words, “[tie] all of the disparate pieces of information in the record together through a mental health lens.” With regard to the conclusions of Dr. Partyka, a mental health expert consulted by defense counsel, the trial court stated that

[f]rom his battery of testing, extensive interviews and review of the Texas records, he concluded that the defendant had no schizophrenia or psychotic illnesses, had some antisocial tendencies and an IQ full scale of 114. His ultimate diagnosis was that the defendant was a psychopath who typically display social maladjustments or socially unacceptable behavior traits such as lack of remorse, criminal behavior, superficial charm, grandiose sense of self worth, the need for stimulation, pathological lying, manipulativeness, shallow emotions, difficulty with lasting relationships, im-pulsivity, poor behavior control, lack of empathy, etc. When asked for an example of a person who was a psychopath he responded “the one that comes to most peoples’ mind would be Ted Bundy.”
... Dr. Partyka further noted that the defendant’s crimes were impulsive but not panic or anxiety driven....

During the evidentiary hearing, Dr. Party-ka testified that Cummings chose not to have Dr. Partyka testify during the penalty phase because:

My recommendation was basically that Mr. Looney has had a very difficult life; however, that I was not going to be able to bring that out without bringing out information that would hurt Mr. Looney, such as my view that he was a psychopath. So it would be more advantageous for Mr. Looney to not have me testify, but to have other people testify as to other mitigating issues in this case.

Defense counsel testified at the evidentiary hearing that he did not present the testimony of Dr. Partyka at the penalty phase because he did not want Dr. Partyka’s finding that defendant Looney was a psychopath with antisocial tendencies to be revealed to the jury. This Court has noted that a diagnosis as a psychopath is a mental health factor viewed negatively by jurors and is not really considered mitigation. See Dufour v. State, 905 So.2d 42, 57-58 (Fla.2005) (holding that defense counsel made a reasonable strategic decision not to present mental health mitigation testimony at the penalty phase because it would have opened the door to mental health expert’s finding that defendant was a sociopath); Reed v. State, 875 So.2d 415, 437 (Fla.2004) (“[Tjhis Court has acknowledged in the past that antisocial personality disorder is ‘a trait most jurors tend to look disfavorably upon.’ ”) (quoting Freeman v. State, 852 So.2d 216, 224 (Fla.2003)). Trial counsel’s strategic decision on this point is endorsed even by Looney, whose brief acknowledges that “[n]ot calling Dr. Partyka would have been wise.”

Despite this acknowledgment, Looney asserts that Cummings was ineffective for not finding another mental health expert to testify during the penalty phase. Cummings revealed at the evidentiary hearing that he intentionally did not call some other psychiatric expert because in his view if another expert testified it would open the door to the opinions of other experts who had examined Looney, which would have included Dr. Partyka. This Court has stated that “[tjrial counsel is not deficient where he makes a reasonable strategic decision not to present mental health mitigation testimony during the penalty phase because it could open the door to other damaging testimony.” Griffin v. State, 866 So.2d 1, 9 (Fla.2003); see also Dufour, 905 So.2d at 57 (citing Griffin). Therefore, Cummings was not ineffective for failing to, find another mental health expert.

Cummings simply was not ineffective for failing to seek another mental health expert’s evaluation of defendant Looney after Dr. Partyka concluded that Looney was a psychopath. This Court has held that defense counsel is not ineffective for deciding not to seek an additional mental health evaluation after receiving an extremely unfavorable evaluation such as occurred here. See Dufour, 905 So.2d at 56 (“[Tjrial counsel was not ineffective simply because after receiving an initial unfavorable report from Dr. Gutman they did not proceed further to seek additional experts for mental mitigation evidence.”). Cummings was not ineffective in relying on Dr. Partyka’s assessment of the defendant and in choosing not to present a mental health expert at the penalty phase in light of that assessment.

As recognized by the trial court, defense counsel Cummings “made a strategic and reasonable decision not to present [mitigation] through a mental health expert.” Therefore, Cummings was not ineffective in failing to present the testimony of a mental health expert at the penalty phase, and his decision not to do so does not undermine our confidence in the proceedings below.

Failure to Present Mitigation Convincingly

Looney asserts that Cummings was ineffective for failing to present the available mitigation in an effective manner. He argues that Cummings did not specifically mention any statutory mitigator in his opening or closing statements to the jury at the penalty phase. Looney also stresses that the State enumerated six aggravating factors during its opening statement at the penalty phase that it intended to present to the jury. Looney alleges that Cummings should have enumerated each mitigator individually and secured a jury instruction on each of them in that manner so as to have presented a picture of more mitigators than the aggravators advanced by the State.

In the order denying postconviction relief, the trial court addressed the issue of enumerating the mitigators and concluded:

Even if the mitigation evidence presented had been enumerated as argued on postconviction relief, it has been repeatedly held by appellant [sic] majorities that a laundry list of enumeration of mitigation aspects or factors relating to a defendant’s character, record and background is not required to supplant the standard Section 941.141(6)(h) approved jury instruction form. As has been indicated such a specific enumeration may create real risk of misleading a jury into not considering some mitigation aspect with respect to a defendant’s background, character, or record that it has heard because it has not been included in any enumeration. The mitigation presented would not have been provided any more impact or weight for its consideration if it had been teased or parsed into tiny bits and given multiple enumeration for multiplicative matching purposes against the State’s aggrava-tors. The jury was not left with the impression that the mitigation they could consider was limited nor that mitigation not specifically designated as statutory could not impact or be weighed against the State’s statutory aggravators. Contrary to defendant’s assertions that his case went to the jury with no statutory mitigators and only a grouping of nonstatutory mitigation, his case went to the jury with two statutory mitigators and a host of further nonstat-utory mitigation. Furthermore, counsel made it clear and ably argued that any mitigator could outweigh all of the ag-gravators argued by the State.

With respect to Looney’s general argument regarding the method in which trial counsel presented mitigation, the methods Cummings selected would be considered trial strategy. This Court has established that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Howell v. State, 877 So.2d 697, 703 (Fla.2004) (quoting Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000)). Cummings testified at the evidentiary hearing that he attempted to convey Looney’s sad background through the witness testimony available to him. Explaining his decision to present Looney’s background in this manner, Cummings testified that he presented the mitigation as he did “[t]o try to paint the picture the best we could of what Jason had been through with the individuals that were willing to cooperate.” After weighing all the postconviction testimony, the trial court did not find Cummings’ performance ineffective and we agree.

CONCLUSION

Looney has failed to meet his burden under Strickland. All of the additional mitigators that Looney asserts were not presented during the penalty phase were either presented or not presented because defense counsel had no indication that the mitigating factor might apply to Looney’s case. Defense attorney Cummings reasonably relied on the evaluation of the mental health expert in making a strategic decision not to call a mental health expert as a witness. Additionally, even if the mitigation had been presented in the manner proposed by Dr. Mosman during his testimony at the evidentiary hearing, the trial court found Dr. Mosman to be an unconvincing witness. Based on the foregoing, Cummings provided effective assistance of counsel and none of the testimony presented by Looney at the postconviction evidentiary hearing undermines our confidence in the proceedings below. Therefore, we affirm the denial of Looney’s post-conviction motion under rule 3.851.

It is so ordered.

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

      . The State’s first witness, Reginald Byrd, was a probation officer who testified that co-defendant Hertz was in violation of his probation on the date of the murders.

      . In its opinion affirming the convictions, this Court detailed Looney’s direct appeal claims as follows:
      (1) The trial court improperly excused for cause a venire member whose opposition to the death penalty did not prevent or substantially impair her ability to perform her obligations as a juror; (2) the details of the collateral crimes in Volusia county became a feature of the trial causing prejudice that substantially outweighed the probative value of the evidence; (3) the trial court erred by admitting gruesome photographs of the bodies at the crime scene and the autopsy; (4) the trial court erred by refusing to grant a mistrial after the State's witness testified about the hearsay statement by a nontestify-ing codefendant which incriminated Looney; (5) the evidence was insufficient as a matter of law to sustain the convictions; (6) the trial court erred in denying the defense motion to require a unanimous verdict; (7) the statute authorizing the admission of victim impact evidence is an unconstitutional usurpation of the Court’s rulemaking authority under article V, section 2, of the Florida Constitution, making the admission of such testimony unconstitutional and reversible error; (8) four of the seven aggravating factors upon which the jury was instructed and which the trial court found are legally inapplicable and their consideration was not harmless error; and (9) the death sentence in this case is disproportionate.

        Looney, 803 So.2d at 664 n. 2.

      . This motion raised the following claims: (1) Florida’s death penalty violates the sixth and fourteenth amendments to the United States Constitution and the corresponding provisions of the Florida Constitution because of principles announced in the United States Supreme Court decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) penalty phase counsel was ineffective for asserting as nonstatutory mitigation issues which should have been asserted as statutory mitigation; (3) trial counsel failed to object to inadmissible evidence, allowed damaging evidence to be introduced by hearsay, allowed damaging evidence and testimony to be introduced without proper foundation, failed to present relative and critical testimony during the guilt phase, failed to prepare and properly preserve argument for a directed verdict, failed to consult with and advise the defendant of his trial rights, and was generally ineffective in his representation; and (4) counsel was ineffective for failing to proceed with a motion for a venue change of a high profile case in a small county.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . Looney withdrew his original claim four, regarding the venue change. Looney and the State stipulated that the only claim requiring an evidentiary hearing was the issue raised in the amended rule 3.851 motion pertaining to the ineffectiveness of trial counsel during the penalty phase for failing to present extant mental health mitigation. In the order-denying the rule 3.851 motion, the trial court summarily denied all of Looney’s claims except the claim relating to the mental health mitigation presented during the penalty phase, which is the subject of the current appeal.