author: LYONS, Justice. LYONS, Justice.

text:
    Ex parte Louise HARRIS. (In re Louise Harris v. State of Alabama).
    1041332.
    Supreme Court of Alabama.
    Oct. 21, 2005.
    Opinion Quashing Writ in Part and Affirming May 12, 2006.
    Rehearing Denied July 21, 2006.

      William R. Blanchard, Montgomery; and Stuart W. Gold of Cravath, Swaine & Moore, LLP, New York, New York, for petitioner.
    Troy King, atty. gen., and Cheryl Ann Schuetze, asst. atty. gen., for respondent.
   On Rehearing Ex Mero Motu

LYONS, Justice.

The opinion of August 19, 2005, is withdrawn, and the following is substituted therefor.

In Ex parte Pierce, 576 So.2d 258 (Ala.1991), this Court was presented with the following question: “Should this Court grant a petition for certiorari to review a decision of the Court of Criminal Appeals that affirmed the petitioner’s conviction but also remanded the cause to the trial court for a new sentencing hearing?” 576 So.2d at 258. The Court answered that question as follows:

“When the Court of Criminal Appeals remands a case for some action to be performed by the trial court, as it has in this case, it retains jurisdiction of the case....
“The Court of Criminal Appeals has not yet affirmed the petitioner’s sentence of death, and there remains an issue concerning that sentence. The petition for the writ of certiorari, therefore, is premature and is due to be denied.”

576 So.2d at 259. See also Ex parte Charest, 854 So.2d 1101 (Ala.2002), in which this Court denied a petition for the writ of certiorari because it had been filed prematurely, i.e., before the Court of Criminal Appeals had made a final decision in the case, which it had remanded to the trial court to allow the State to respond to the merits of certain Rule 32, Ala. R.Crim. P., claims raised by the petitioner and the trial court had not yet filed its return to remand.

In this case, in reviewing a Rule 32 petition filed by Harris, the Court of Criminal Appeals affirmed Harris’s conviction but remanded the cause for the trial court to conduct a new sentencing hearing. Both Harris and the State petitioned for a writ of certiorari. It appeared initially that these petitions were premature because the Court of Criminal Appeals had ordered a new sentencing hearing in the case; however, this case is distinguishable from Pierce. Here, the Court of Criminal Appeals did not order a return to its remand order, and that court, therefore, did not retain jurisdiction over the case. Therefore, the judgment of the Court of Criminal Appeals in this case is a final decision from which a petition for a writ of certiorari is proper.

In order to clarify for the State and the criminal defense bar what constitutes a final decision of the Court of Criminal Appeals from which a petition for a writ of certiorari can be filed in this Court pursuant to Rule 39, Ala. R.App. P., we hold that when the Court of Criminal Appeals remands a case, unless the Court of Criminal Appeals has expressly directed a return to its remand order, we will treat its decision as final and a petition for a writ of certiorari will lie as to both the State and the defendant. To the extent that Ex parte Pierce holds otherwise, it is hereby overruled. In so holding, we expressly do not abrogate the exception to the final-decision requirement in those cases in which the Court of Criminal Appeals has “set out a holding that [is] applicable to all cases as a matter of legal principle.” McCoo v. State, 921 So.2d 450, 457 (Ala.2005); see Bishop v. State, 608 So.2d 345 (Ala.1992).

Turning to the merits of Harris’s petition for the writ of certiorari, we have examined the grounds raised by Harris, and we grant the petition as to Harris’s claim regarding a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); her claim that her trial counsel failed to maintain continuity in representation; and her claim that several of her ineffective-assistance-of-counsel arguments were not precluded by findings of no plain error on direct appeal.

OPINION OF AUGUST 19, 2005, WITHDRAWN; OPINION SUBSTITUTED; WRIT GRANTED AS TO SPECIFIED ISSUES.

NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

Opinion on the Merits

LYONS, Justice.

I. Facts and Procedural History

On July 13, 1989, Louise Harris was convicted of capital murder. The facts underlying that conviction are set out in the Alabama Court of Criminal Appeals’ opinion affirming Harris’s conviction and sentence. Harris v. State, 632 So.2d 503, 508-09 (Ala.Crim.App.1992). The jury recommended by a vote of 7-5 that Harris be sentenced to life in prison without the possibility of parole, but the trial court rejected the jury’s recommendation and sentenced Harris to death. This Court affirmed the Court of Criminal Appeals’ judgment. Ex parte Harris, 632 So.2d 543 (Ala.1993). On certiorari review from this Court’s affirmance of Harris’s conviction and sentence on direct appeal, the United States Supreme Court considered the constitutionality of Alabama’s death-penalty statute and ultimately affirmed the judgment of this Court. Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).

On June 22, 1995, Harris filed in the Montgomery Circuit Court a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. The circuit court denied Harris’s petition. On appeal, the Court of Criminal Appeals reversed the circuit court’s judgment in part, affirmed it in part, and remanded the case for a new sentencing hearing. Hams v. State, 947 So.2d 1079 (Ala.Crim.App.2004) (“Hams I”). Harris then filed a petition for the writ of certiorari with this Court, challenging that portion of the Court of Criminal Appeals’ judgment affirming in part the circuit court’s denial of Harris’s Rule 32 petition. We granted certiorari review to consider the following issues: 1) whether the Court of Criminal Appeals erred in rejecting Harris’s argument that the prosecutor impermissibly exercised peremptory strikes against black venire members in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); 2) whether the Court of Criminal appeals erred in holding that several of Harris’s ineffective-assistance-of-counsel claims were precluded by its determination on direct appeal that there was “no plain error”; and 3) whether the Court of Criminal Appeals erred in rejecting Harris’s ineffective-assistance-of-counsel claim based on the alleged failure of her counsel to maintain “continuity of representation.”

II. Standard of Review

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). However, where the facts in a post-conviction proceeding are disputed and the circuit court has resolved those disputed facts, “[t]he standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition. Ex parte Heaton, 542 So.2d 931 (Ala.1989).” Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992).

III. Analysis

A. Harris’s Batson Claim

In her Rule 32' petition, Harris contends that, in exercising its peremptory strikes of members of the venire, the prosecutor in Harris’s trial violated Batson by purposefully discriminating against potential black jurors. The Court of Criminal Appeals held that Harris’s Batson claim was procedurally barred under Rules 32.2(a)(2) and (4), Ala. R.Crim. P., as a ground that had been raised and addressed at trial and on direct appeal. Harris I, 947 So.2d at 1091. We note that Rules 32.2(a)(3) and (5), Ala. R.Crim. P., also preclude relief based on any ground that could have been, but was not, raised at trial or on appeal, with an exception not applicable here for grounds questioning the trial court’s jurisdiction.

Indeed, Harris’s Batson claim was raised at trial and on direct appeal, but was rejected based on the following language set forth in Harrell v. State, 571 So.2d 1270, 1271 (Ala.1990): “When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created.” See Harris v. State, 632 So.2d at 513. However, in Ex parte Thomas, 659 So.2d 3, 7 (Ala.1994), a case decided after Harris’s direct appeals at the state level had been exhausted, but before the United States Supreme Court had disposed of her case on certiorari review, this Court held:

“We disapprove the statement in Harrell [v. State, 571 So.2d 1270 (Ala.1990),] indicating that ‘[w]hen the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created,’ 571 So.2d at 1271, to the extent that it has been construed to preclude a finding of a prima facie Batson violation where the attorney engaged in a pattern of striking blacks from the venire.”

In her appeal from the circuit court’s denial of her Rule 32 petition, Harris argued to the Court of Criminal Appeals that, even though she had made a Batson claim at trial and on direct appeal, she was entitled to have that claim reviewed in light of Thomas, which she contended had a “retroactive” effect and was applicable to convictions not yet final when Thomas was announced.' In effect, she argued that such retroactivity was an exception to the procedural bars of Rule 32.2. The Court of Criminal Appeals held that Thomas did not “establish a new rule of criminal procedure,” and therefore did not apply retroactively to Harris’s Batson challenge. Hams I, 947 So.2d at 1094. Therefore, the court concluded, Harris’s Batson claim was proeedurally barred. We granted Harris’s petition for the writ of certiorari in order to determine if the Court of Criminal Appeals’ ruling that Harris’s Batson claim was proeedurally barred conflicts with that court’s prior cases indicating that Thomas should be applied retroactively to convictions not yet final when Thomas was decided.

In support of her argument in favor of retroactive application of Thomas, Harris cites Gorum v. State, 671 So.2d 761, 764 (Ala.Crim.App.1994), a case decided on December 29, 1994, in which the Court of Criminal Appeals held:

“The Alabama Supreme Court issued an opinion in Ex parte Thomas on May 20, 1994. On September 2, 1994, the Supreme Court withdrew the May 20, 1994, opinion and substituted another one. We note that the appellant was tried on February 28, 1994, before the Alabama Supreme Court issued its original opinion in Ex parte Thomas on May 20, 1994. Nevertheless, Thomas controls.”

(Emphasis added.) Harris contends that the above-emphasized language in Gorum reveals that this Court’s decision in Thomas should be applied retroactively in considering her Batson claim. Thus, Harris contends, the Court of Criminal Appeals’ decision in the instant case conflicts with Gorum. However, the Court of Criminal Appeals in Gorum was considering a Batson claim presented on direct appeal. Gorum did not involve postcon-viction collateral review under Rule 32, Ala. R.Crim. P. Harris cites several other decisions by the Court of Criminal Appeals that she contends also indicate that Thomas should be applied retroactively. However, like Gorum, those decisions all involved direct appeals. See, e.g., Stargell v. State, 672 So.2d 1359 (Ala.Crim.App.1994); Drake v. State, 668 So.2d 877 (Ala.Crim.App.1995); and McClain v. State, 659 So.2d 161 (Ala.Crim.App.1994). None of the cases Harris cites held that Thomas must be applied under the circumstance here presented, i.e., a postconviction collateral attack in a case in which the Thomas decision followed unsuccessful direct state appeals attacking the original judgment of conviction, but preceded the United States Supreme Court’s decision on certiorari review.

Harris contends that she is nevertheless entitled to the retroactive benefit of Thomas. This is so, Harris argues, because certiorari review of this Court’s affirmance on direct appeal of Harris’s conviction and sentence was still pending in the United States Supreme Court when this Court decided Thomas. In other words, Harris argues that, as in the Gorum line of cases making Thomas available to other eases on direct appeal, her conviction, pending on certiorari review in the United States Supreme Court, was not “final” when Thomas was decided. Harris cites Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), in which the United States Supreme Court held that Batson should be applied retroactively to cases not yet final when Batson was decided. The Griffith Court defined a final case as “a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [to the United States Supreme Court] elapsed or a petition for certiorari finally denied.” 479 U.S. at 321 n. 6, 107 S.Ct. 708. Because certiorari review of her conviction and sentence was still pending in the United States Supreme Court when this Court decided Thomas, Harris contends that her conviction was not yet final and that therefore Thomas should be retroactively applied to her Batson claim. We disagree.

The United States Supreme Court in Griffith was dealing with the retroactive application of its own earlier decision (Bat-son ) to a conviction, still subject to review by certiorari in that Court, that had been affirmed by a state supreme court and where the petition for the writ of certiorari to the United States Supreme Court challenged that affirmance. Griffith did not, nor do any other cases cited by Harris, involve the retroactive application of a state court’s interpretation of United States Supreme Court precedent, expressly overruling a prior interpretation of that state court, to a conviction that had been upheld by the state court on direct appeal, yet was, at the time of the new pronouncement, subject to further review only by certiorari in the United States • Supreme Court. And we do not construe Griffith as requiring such retroactive application.

Harris contends that the United States Supreme Court’s reasons for applying its most current interpretation of the United States Constitution to cases still subject to that court’s direct review compel this Court to apply Thomas retroactively to cases that had been finally reviewed by our Court on direct appeal yet were still pending in the United States Supreme Court when Thomas was announced. We disagree. In Teague v. Lane, 489 U.S. 288, 304, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the United States Supreme Court restated its reasons for applying its most current interpretation of federal constitutional law to only those cases that are still subject to that Court’s direct review, either on certiorari review of state-court proceedings affirming a judgment of conviction on direct appeal or directly from a United States Circuit Court of Appeals:

“In Griffith v. Kentucky, 479 U.S. 314 (1987), we rejected as unprincipled and inequitable the Linkletter [v. Walker, 381 U.S. 618 (1965),] standard for cases pending on direct review at the timé a new rule is announced, and adopted the first part of the retroactivity approach advocated by Justice Harlan [in Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J., concurring in judgments in part and dissenting in part); and Desist v. United States, 394 U.S. 244, 256 (Harlan, J., dissenting) ]. We agreed with Justice Harlan that ‘failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.’ 479 U.S., at 322. We gave two reasons for our decision. First, because we can only promulgate new rules in specific cases and cannot possibly decide all cases in which review is sought, ‘the integrity of judicial review’ requires the application of the new rule to ‘all similar cases pending on direct review.’ Id., at 323. We quoted approvingly from Justice Harlan’s separate opinion in Mackey, supra, 401 U.S., at 679:
“ ‘ “If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to ■ see why we should so adjudicate any case at all.... In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.” ’ 479 U.S., at 323.”

(Emphasis added.) Thus, the United States Supreme Court has determined that, as a judicial body, it must consider its most current interpretation of federal constitutional law in disposing of cases arising from direct review, as opposed to collateral review of a postconviction petition, i.e., it considers its most current interpretation in cases petitioning for the writ of certiorari to the lower appellate court seeking review of the affirmance of a conviction by such court on direct appeal. That is precisely what this Court did when we decided Harris’s Batson claim on direct appeal from the judgment of conviction based on Harrell, which was our most current interpretation of what federal constitutional law required at the time.

The United States Supreme Court continued in Teague:

“Second, because ‘selective application of new rules violates the principle of treating similarly situated defendants the same,’ we refused to continue to tolerate the inequity that resulted from not applying new rules retroactively to defendants whose cases had not yet- become final. [Griffith v. Kentucky, 479 U.S. 314], at 323-324 [(1987)3 (citing Desist [v. United States], 394 U.S. [244], at 258-259 [ (1969) ] (Harlan, J., dissenting)).”’

489 U.S. at 304, 109 S.Ct. 1060. The “similarly situated defendants” the United States Supreme Court considers itself bound to treat the same are defendants who can still come before that Court on certiorari review of an appeal from a final judgment of conviction or from a decision of a United States Court of Appeals. The term does not include petitioners whose judgments of conviction have previously been affirmed or have otherwise become final and who are now collaterally attacking the conviction in a postconviction proceeding. In fact, the United States Supreme Court refused, in Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), to apply Batson retroactively to a petitioner appearing before that Court on collateral review of a previous final judgment of conviction. The procedural posture of the postconviction petitioner in relation to the United States Supreme Court in Allen is analogous to Harris’s posture in relation to this Court in the instant case. Neither the United States Supreme Court’s rationale in Griffith for applying its most current interpretation of federal constitutional law to cases pending before it, nor the definition of a “final” case in Griffith compels the application of Thomas to Harris’s Batson claim. Rather, for purposes of Harris’s argument that Thomas applies, we conclude that her conviction was final when this Court decided Thomas. Therefore, Harris’s case is distinguishable from those cases she cites indicating that Thomas should apply retroactively only to convictions not yet final.

Harris does not argue that, even if her conviction became final before Thomas was released, Thomas should nevertheless apply to her. Therefore, we do not address that issue. Because the Court of Criminal Appeals’ ruling that Thomas does not apply retroactively to Harris’s Batson claim does not conflict with the cases Harris cites, we affirm its judgment. However, we express no opinion as to the Court of Criminal Appeals’ conclusion that Thomas did not “establish a new rule of criminal procedure.” Harris I, 947 So.2d at 1094.

We note that in Ex parte Floyd, 571 So.2d 1234 (Ala.1990), a postconviction petitioner argued that he was due a new trial based on an alleged violation of Batson, which was decided after his direct appeals at the state-court level had been exhausted but while his petition for the writ of certio-rari was pending before the United States Supreme Court, which ultimately denied that petition. This Court ignored the fact that the petitioner, in his direct appeal, had failed to argue in both the Court of Criminal Appeals and in this Court that the prosecutor had discriminated in exercising peremptory strikes. The Court’s action in ignoring what appears to have been a failure to preserve error was based on its conclusion that it was bound to apply Batson pursuant to the United States Supreme Court’s decision in Griffith that Batson should apply to cases not yet “final” when Batson was decided, because that is what the Court in Floyd concluded the United States Supreme Court should have done when Floyd’s certiorari petition was pending before it, but inexplicably failed to do. Nothing in Floyd requires this Court in this collateral proceeding to apply Thomas, which effected a change in our construction of United States Supreme Court precedent and which was announced after Harris’s direct appeals in the state-court system had been exhausted.

B. Harris’s Ineffective-Assistance-of-Counsel Claims

In Thomas v. State, 766 So.2d 860, 953 (Ala.Crim.App.1998), the Court of Criminal Appeals held that, because the trial court’s failure in that case to give a jury instruction on manslaughter did not amount to plain error, i.e., it did not or probably did not adversely affect the substantial rights of the defendant, the defendant also could not show on postconviction review that he was prejudiced, within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by his counsel’s failure to object to the failure to give a manslaughter instruction. However, in Ex parte Taylor, [Ms. 1040186, Sept. 30, 2005] — So.2d - (Ala.2005), we expressly rejected the reasoning that “a petitioner in a Rule 32, Ala. R.Crim. P., proceeding cannot, as a matter of law, establish prejudice under Strickland, when on direct appeal the Court of Criminal Appeals has found no plain error with respect to the substantive claim.” — So.2d at -. In her petition for the writ of certiorari, Harris contended that the Court of Criminal Appeals incorrectly rejected several of -Harris’s ineffective-assistance-of-counsel claims based on findings of “no plain error” on Harris’s direct appeal. Harris contends that, in light of Taylor, we should reverse that court’s judgment and remand the case to the Court of Criminal Appeals for consideration of whether Harris was actually prejudiced by certain acts or omissions of her trial counsel that she contends amounted to ineffective assistance. Upon further reflection, we conclude that we improvidently granted the writ of certiorari as to Harris’s no-plain-error issue.

Harris contends that her counsel were ineffective 1) in failing to request and obtain appropriate jury instructions regarding accomplice testimony, 2) in failing to object to or to challenge by rebuttal several allegedly erroneous and prejudicial statements made by the prosecution during closing arguments, and 3), in failing to object to the admission of a photograph of the victim while he was alive.

Harris argued to the Court of Criminal Appeals that her trial counsel were ineffective because, she said, they “failed to request a jury charge stating that accomplice testimony must be corroborated by independent evidence that connects the defendant with the offense.” Harris I, 947 So.2d at 1111. The Court of Criminal Appeals considered the merits of that claim and held that the instruction actually given by the trial court followed the substance of § 12-21-222, Ala.Code 1975, which provides:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

Thus, the Court of Criminal Appeals held, Harris’s counsel had no ground upon which to base an objection. Therefore, the Court of Criminal Appeals’ ruling on this issue was not based solely on a finding of no plain error on direct appeal.

The Court of Criminal Appeals also rejected Harris’s claim regarding her counsel’s failure to object to the introduction of a photograph of the victim before his death based on the court’s determination that Harris had failed to meet her burdens under Rules 32.3 and 32.6(b), Ala. R.Crim. P.:

“Harris presented nothing at the Rule 32 hearing suggesting error or prejudice in trial counsel’s failure to object to the pre-death photograph of Isaiah Harris. Thus, the record supports the circuit court’s ruling that this claim is unsupported by any factual basis; accordingly, it fails to satisfy either the burden of proof requirements of Rule 32.3, Ala. R.Crim. P., or the specificity requirements of Rule 32.6(b), Ala. R.Crim. P.”

Harris I, 947 So.2d at 1110. The Court of Criminal Appeals also noted that, on direct appeal, it had held that a photograph of the victim before his death was relevant and admissible to identify the victim. Harris I, 947 So.2d 1104. Because the photograph was admissible, the Court of Criminal Appeals held that Harris had failed to demonstrate how her counsel’s failure to object to its introduction was error or how counsel’s failure to object prejudiced Harris. Therefore, the Court of Criminal Appeals’ ruling was clearly based on a ground other than a finding of no plain error on direct appeal.

As to Harris’s claims that her counsel failed to object to or to challenge by rebuttal several statements made by the prosecution during closing arguments, the Court of Criminal Appeals held that Harris had failed to meet her burden of proof under Rule 32.3, Ala. R.Crim. P., and her burden of pleading under Rule 32.6(b), Ala. R.Crim. P. Thus, again, the Court of Criminal Appeals’ ruling on that issue was not based solely on a finding of no plain error on direct appeal.

We granted Harris’s petition for the writ of certiorari to consider her claim that “several of her ineffective-assistance-of-counsel arguments were not precluded by findings of no plain error on direct appeal.” Ex parte Harris, 947 So.2d 1139, 1142 (Ala.2005). The Court of Criminal Appeals made alternative findings, which it concluded supported the circuit court’s denial of Harris’s ineffective-assistance-of-counsel claims in her Rule 32 petition. The presence of those independent, alternative grounds pretermit consideration of the effect of the finding of no plain error on direct appeal. Because we did not grant certiorari review to consider the validity of the Court of Criminal Appeals’ alternative justifications for denying Harris relief, the issue of the inconsistency of the Court of Criminal Appeals’ decision with Taylor is moot, and we conclude that we improvidently granted Harris’s petition for the writ of certiorari on that issue. Accordingly, we quash the writ of certiora-ri to the extent it was granted to consider whether the Court of Criminal Appeals erred in rejecting Harris’s ineffective-assistance-of-counsel claims on the basis that there was no finding of plain error on direct appeal.

C. Failure of Harris’s Counsel to Maintain Continuity of Representation

We granted Harris’s certiorari petition to consider her claim that the Court of Criminal Appeals erred in rejecting, based on procedural grounds, her argument that her trial counsel were ineffective in that they failed to maintain continuity of representation. The Court of Criminal Appeals held that that claim was procedurally precluded under Rule 32.2(a)(3), Ala. R.Crim. P., because it could have been, but was not, raised at trial. Harris I, 947 So.2d at 1133-34. Harris argues that her claim could not realistically have been raised at trial, because, she contends:

“To do so would have required one of • Mrs. Harris’s nine assigned attorneys to appreciate and articulate — amid the revolving door of attorney dismissals, withdrawals and appointments that forms the basis of this claim — their inability to form the necessary bond' with a client facing the gravest of charges, and their resulting ineffective assistance.”

(Harris’s brief in support of petition at 51.) Harris concedes in her brief that, while she was represented by 11 different attorneys before her trial started, 1 of those attorneys was appointed approximately 9 months before her trial started and another was appointed approximately 3 months before her trial started. Those two attorneys represented Harris throughout the guilt and sentencing phases of trial. Harris’s trial counsel had at least nine months in which to consider whether the fact that Harris had been represented by so many different pretrial attorneys amounted to ineffective assistance. Therefore, we agree with the Court of Criminal Appeals that that claim is procedurally barred because it could have been, but was not, raised at trial.

TV. Conclusion

To the extent we granted Harris’s petition for the writ of certiorari in order to consider Harris’s argument that the Court of Criminal Appeals erred in concluding that her ineffective-assistance claims were precluded by the finding of no plain error on direct appeal, we quash the writ. In all other respects, we affirm the judgment of the Court of Criminal Appeals.

WRIT QUASHED IN PART; AFFIRMED.

NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . As noted, the United States Supreme Court, after considering the constitutionality of Alabama's capital-sentencing statute, ultimately affirmed the judgment of this Court effectively affirming Harris's conviction and sentence.

      . Harris listed several other specific ineffective-assistance claims in her petition for cer-tiorari review and in her brief in support of that petition, but she abandoned all but these three in her reply to the State’s brief.


source: Caselaw Access Project

author: BASCHAB, Judge. BASCHAB, Judge.

license: Public Domain

text:
    STATE of Alabama v. Maurice STOVALL.
    CR-04-2268.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Opinion on Return to Remand June 30, 2006.

      Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellant.
    Stacy Lott Reed, Montgomery, for ap-pellee.
   BASCHAB, Judge.

The State appeals from the trial court’s order granting a motion to dismiss the indictment against the appellee, Maurice Stovall.

The State argues that the trial court erroneously granted the appellee’s motion to dismiss an indictment against him for unlawful possession of a controlled substance. Specifically, it contends that the appellee did not establish that he was denied his right to a speedy trial; that the record does not indicate that the trial court considered and weighed the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); and that the trial court erroneously granted the motion to dismiss without making specific findings of fact. In Barker, the United States Supreme Court set forth the following factors that must be weighed when reviewing a speedy trial claim: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of his right to a speedy trial; and (4) the degree of prejudice the accused suffered due to the delay. In Ex parte Walker, 928 So.2d 259 (Ala.2005), the Alabama Supreme Court provided guidance as to the proper application of those factors.

The record before this court is sparse and does not include all of the dates and information relevant to the appellee’s speedy trial claim. Also, although the trial court conducted a hearing on the appel-lee’s motion to dismiss on August 1, 2005, the record does not appear to include a transcript of the entire hearing. Rather, it appears that the transcript begins in the middle of the hearing. Further, the portion of the hearing that is included in the record is confusing, includes only vague assertions by the people present at the hearing, and does not include evidence about each of the Barker factors. Finally, the trial court did not make any findings regarding each of the factors set forth in Barker.

Because the relevant dates and events in this case are not clear from the meager record before us, we cannot properly review the propriety of the trial court’s ruling on the appellee’s motion to dismiss in light of Ex parte Walker, supra, and Barker, supra. Cf. Ex parte Walker, supra (noting that review was possible because the relevant dates and events were not in dispute). Accordingly, we remand this case to the trial court with instructions that that court conduct an evidentiary hearing during which it takes evidence concerning each Barker factor. Thereafter, it shall make specific, written findings of fact as to each Barker factor with reference to the principles set forth by the Alabama Supreme Court in Ex parte Walker, supra. If possible, the trial court shall also provide this court with a complete transcript of the August 1, 2005, hearing. On remand, the trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include a transcript of the new evidentiary hearing; the trial court’s specific, written findings of fact; and a copy of the complete transcript of the August 1, 2005, hearing, if one is available.

REMANDED WITH INSTRUCTIONS.

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

On Return to Remand

BASCHAB, Judge.

The State appealed from the trial court’s order granting a motion to dismiss the indictment for unlawful possession of a controlled substance against the appellee, Maurice Stovall.

In its brief to this court, the State argued that the trial court erroneously granted the appellee’s motion to dismiss an indictment against him for unlawful possession of a controlled substance. Specifically, it contended that the appellee did not establish that he was denied his right to a speedy trial; that the record did not indicate that the trial court considered and weighed the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); and that the trial court erroneously granted the motion to dismiss without making specific findings of fact. Based on the sparse record before us on appeal, on February 3, 2006, we remanded this case to the trial court with instructions that that court conduct an evi-dentiary hearing to take evidence concerning each Barker factor and that it make specific, written findings of fact as to each Barker factor with reference to the principles set forth by the Alabama Supreme Court in Ex parte Walker, 928 So.2d 259 (Ala.2005). On April 6, 2006, the trial court submitted its return to remand.

The State argues that the trial court erroneously granted the appellee’s motion to dismiss and that the trial court’s findings of fact on return to remand “failed to fully encompass and balance all of the facts presented at the hearing under the four factors found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).” (State’s brief at p. 2.) In Barker, the United States Supreme Court set forth the following factors that must be weighed when reviewing a speedy trial claim: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of his right to a speedy trial; and (4) the degree of prejudice the accused suffered due to the delay. In Ex parte Walker, supra, the Alabama Supreme Court provided guidance as to the proper application of those factors.

The pertinent dates and events in this case were as follows:

March 4, 2002: The appellee was arrested.

April 17, 2002: The appellee waived a preliminary hearing and consented to his case being bound over to the Montgomery County Grand Jury.
April 11, 2003: The certificate of analysis was issued by the Alabama Department of Forensic Sciences.
May 9, 2003: The appellee was indicted for unlawful possession of a controlled substance.
April 8, 2004: An initial attempt was made to serve the indictment on the appellee at the address listed on the indictment, which was the appellee’s grandmother’s residence. At that time, the appellee’s grandmother told officers that the appellee lived there “off and on.” (R. 3.)
May 10, 2004: A second attempt was made to serve the indictment on the appellee at his grandmother’s residence. At that time, there was no answer at that residence.
June 2, 2005: The indictment was served on the appellee after he was arrested on unrelated charges.
July 29, 2005: The appellee filed a motion to dismiss the indictment against him based on the denial of this right to a speedy trial.
August 1, 2005: The trial court conducted a hearing on the appellee’s motion to dismiss and granted the motion.

A. LENGTH OF THE DELAY

Unless the delay is sufficiently lengthy to be presumptively prejudicial, it is not necessary to consider the remaining Barker factors. See Barker, supra; Zumbado v. State, 615 So.2d 1223 (Ala.Crim.App.1993). The length of the delay is measured either from the date of the formal indictment or from the date of arrest, whichever occurred first. See Nickerson v. State, 629 So.2d 60 (Ala.Crim.App.1993). Accordingly, the length of delay in this case is measured from the date the appel-lee was arrested on March 4, 2002, until the date the trial court conducted the hearing on his motion to dismiss, which was approximately 41 months. This court has previously found that shorter delays than this were presumptively prejudicial and required an examination of the remaining Barker criteria. See, e.g., Vincent v. State, 607 So.2d 1290 (Ala.Crim.App.1992) (holding that a 31-month delay was presumptively prejudicial). Therefore, we will examine the remaining Barker factors.

B. REASONS FOR THE DELAY

In Walker, 928 So.2d at 259, the supreme court set forth the following standard for evaluating the reasons for the delay:

“Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531. Courts assign different weight to different reasons for delay. Deliberate delay is ‘weighted heavily’ against the State. 407 U.S. at 531. Deliberate delay includes an ‘attempt to delay the trial in order to hamper the defense’ or ‘ “to gain some tactical advantage over (defendants) or to harass them.” ’ 407 U.S. at 531 & n. 32 (quoting United States v. Marion, 404 U.S. 307, 325 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531; Ex parte Carrell, 565 So.2d [104,] 108 [ (Ala.1990) ]. Justified delay — which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible — is not weighted against the State. Barker, 407 U.S. at 531; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (‘ “Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.” ’) (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).”

With regard to the reasons for the delay, the trial court found as follows:

“Defendant was initially arrested on March 4, 2002. There was a delay of approximately one year between his initial arrest and indictment. The delay between his arrest and indictment was a direct result of the time lapse between sending evidence to the Department of Forensic Sciences and receiving the lab results. The State of Alabama must have lab results before it presents a case to the Grand Jury. Therefore, the initial delay between his arrest and indictment was beyond the control of the State of Alabama.”

(Remand C.R. 8.) With regard to the delay between the date the indictment was returned and the date the appellee was served with the indictment, the trial court found as follows:

“Evidence in the present case shows that law enforcement officers made no attempts to serve the indictment on Defendant for a period of eleven months. During that eleven month period, Defendant was on probation with the Montgomery County Probation and Parole office and residing at his grandmother’s residence. The second attempt was made on May 10, 2004. No other attempts were made and the indictment was ultimately served on Defendant when he was arrested on June 2, 2005 on unrelated charges. It was later determined that the June, 2005 arrest was a result of mistaken identity.
“The address on the warrant jacket was Defendant’s grandmother’s address. Officers spoke to the grandmother and were advised that Defendant lived there ‘off and on.’ There is no evidence that officers questioned her regarding alternate contact information or made additional efforts to locate Defendant. Further, Officer McCoy testified that his office does not, as a matter of procedure, attempt to determine if a person is on probation or incarcerated in the Department of Corrections. Further, they do not contact the local utility companies to determine if the individual in question has an account with any of these companies which might provide a current address.”

(Remand C.R. 6-7.)

As the trial court found, the delay between the date the appellee was initially arrested and the date he was indicted was caused by a delay in testing by the Alabama Department of Forensic Sciences. This is a neutral reason. Neutral reasons for delay do not ordinarily require a dismissal of the case based on a violation of the right to a speedy trial. See Pierson v. State, 677 So.2d 830, 831 (Ala.Crim.App.1996). Because the appellee has not shown that the State deliberately caused any delay, this Barker factor does not weigh in his favor.

With regard to the delay between the date the appellee was indicted and the execution of the indictment, the trial court apparently found that the State was negligent in not serving the indictment on the appellee. Even assuming that the State was negligent in this regard, “the precise weight afforded the delay and its effect on [the appellee] are dependent upon the prejudice to [the appellee] caused by the delay.” State v. Wooten, [Ms. CR-04-2323, May 26, 2006] - So.2d -, - (Ala.Crim.App.2006).

C. THE APPELLEE’S ASSERTION OF RIGHTS

In Walker, 928 So.2d at 265, the supreme court set forth the following guidelines for evaluating this prong of the Barker test:

“An accused does not waive the right to a speedy trial simply by failing to assert it. Barker, 407 U.S. at 528. Even so, courts applying the Barker factors are to consider in the weighing process whether and when the accused asserts the right to a speedy trial, 407 U.S. at 528-29, and not every assertion of the right to a speedy trial is weighted equally. Compare Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App.1990) (‘Repeated requests for a speedy trial weigh heavily in favor of an accused.’), with Clancy v. State, 886 So.2d 166, 172 (Ala.Crim.App.2003) (weighting third factor against an accused who asserted his right to a speedy trial two weeks before trial, and stating: ‘ “The fact that the appellant did not assert his right to a speedy trial sooner ‘tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date.’ ” ’) (quoting Benefield v. State, 726 So.2d 286, 291 (Ala.Crim.App.1997), additional citations omitted), and Brown v. State, 392 So.2d 1248, 1254 (Ala.Crim.App.1980) (no speedy-trial violation where defendant asserted his right to a speedy trial three days before trial).
“In this case, Walker asserted her right to a speedy trial one time — less than five months after she was arrested. The Court of Criminal Appeals did not explicitly weigh this factor against the State. But the trial court found — and the State conceded — that this factor weighs against the State. We also find that this factor weighs in Walker’s favor.
‘We note, however, that the record does not show whether Walker knew of the pendency of the indictment during the three years between her indictment and her arrest. Although the accused has no obligation to bring herself to trial, Barker, 407 U.S. at 527, Smith v. State, 409 So.2d 958, 962 (Ala.Crim.App. 1981), in determining whether to presume prejudice under the fourth Barker factor, courts have emphasized the accused’s ignorance of outstanding charges during the period from indictment until arrest. See, e.g., Doggett [v. United States], 505 U.S. [647,] 653-54 [ (1992) ] (holding that where there was unrebut-ted evidence that the accused was ignorant of the charges against him during the 8 1/2 years between his indictment and arrest, the accused was ‘not to be taxed for invoking his speedy trial right only after his arrest’); [Ex parte] Clopton, 656 So.2d [1243,] 1244 [ (Ala.1995) ] (recognizing that before his arrest, the accused’s ignorance of the indictment was ‘undisputed’). Accordingly, in a case involving delay caused by negligence on the part of the state, the third factor usually will weigh more heavily in the accused’s favor when there is affirmative proof of the accused’s ignorance of the charges against her during the delay. See Doggett, 505 U.S. at 653-54; Clopton, 656 So.2d at 1244. In Walker’s case, however, there is no conclusive proof one way or the other regarding her knowledge of the charges during the delay between her indictment and her arrest. Consequently, this factor weighs in Walker’s favor, but not as heavily as it would if the record affirmatively showed that she did not know of the charges during the time from her indictment until her arrest.”

(Footnotes omitted.)

In this case, the appellee asserted his right to a speedy trial approximately one month after the indictment was served on him. Although he was not aware that an indictment had been returned against him, the record indicates that he was aware of the charges against him and that he had actually consented to the case being bound over to the grand jury. Further, he testified only that he thought the case had been dismissed because his probation officer did not say anything about the case. Therefore, this factor weighs in the appellee’s favor, but not as heavily as if the appellee had been completely unaware of the charges pending against him during the delay.

D. PREJUDICE TO THE APPELLEE

In Wooten, — So.2d at -, we applied the prejudice guidelines set forth in Walker as follows:

“With regard to a prejudice claim, the United States Supreme Court has recognized three types of prejudice associated with a denial of a speedy trial: ‘ “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence.’ Doggett, 505 U.S. at 654.
“Here, there was no oppressive pretrial incarceration. Additionally, although Wooten testified at trial, he did not present any evidence indicating that he suffered any anxiety or concern over the delay. Wooten claimed, however, that the 29-month delay caused him to suffer an impairment of his defense, by preventing him from calling witnesses to testify in his behalf. When the trial court inquired as to any proof of prejudice, Wooten testified that he ‘vaguely’ recalled the events ‘that happened or allegedly happened.’ When defense counsel asked him if he knew ‘the names, addresses or anything that if you needed those people to come and testify that you would be able to get in contact with them’; Wooten replied, ‘No.’ On cross-examination, however, Wooten conceded that he had not tried to contact ‘those people’ that might be needed at his trial. Additionally, he testified that ‘most’ of the witnesses he thought he might need were ‘friends of [his] brother,’ and he had not tried in any way to locate them.
“Although our Supreme Court in Walker noted that ‘[p]retrial delay certainly may be so lengthy as to relieve the accused of demonstrating actual prejudice,’ 928 So.2d at 277, that Court did not hold that a lengthy delay automatically relieved the accused of proving prejudice. In rejecting Walker’s argument that a 50-month delay caused by the State’s negligence in her case relieved her of the burden of establishing prejudice, the Court held that Walker had failed to prove prejudice because she had presented no evidence showing that she was unaware of the charges against her during that 50-month delay between the issuance of the indictment in her case and her arrest. Additionally, the Walker Court found that there was no indication from the record that either the State’s negligence or the resulting length of the delay adversely affected the evidence so as to undermine the fairness of a trial.
“Here, Wooten failed to prove that he was actually prejudiced by the delay. Although he contends that he was unaware of the indictment returned against him for a period of approximately 24 months, he failed to present any evidence indicating that the delay on the part of the State, be it justified or negligent, would undermine the fairness of his trial. Here, based on the authority of Ex parte Walker, supra, the trial court erred in dismissing the indictment on the basis that Wooten had been denied his right to a speedy-trial. Although the trial court found, at the conclusion of the hearing, that the State had not made ‘sufficient effort to try to serve that indictment on [Wooten],’ Wooten failed to prove actual prejudice as a result of the delay. Again,, in considering the balancing of the Barker factors, the precise weight and effect to be accorded the delay is dependent upon any prejudice suffered by Wooten.”

In its order on return to remand, the trial court made the following findings regarding prejudice in this case:

“Defendant was indicted in May, 2003 and was served with the indictment in this case in June, 2005. Defendant testified that, at the time of the offense in question, he was using illegal narcotics. Since that time, he completed drug treatment and is now clean and sober. However, Defendant testified that based on the length of time that has elapsed since his initial arrest, his memory has dimmed significantly. He testified that his attorney reviewed the facts of the case with him following his arrest in June, 2005, but he has only a vague recollection of being arrested and can offer no information regarding the accuracy of the facts as alleged by the State of Alabama.. Further, he no longer associates with the same circle of friends who might be able to testify in his defense. Since he has completed drug treatment, he testified that he is now a family man, works and-stays at home. Defendant testified that his ability to adequately defend himself against the present charges has diminished substantially based on the fact that his memory of events has dimmed and his access to exculpatory evidence which would acquit him of the charges is no longer readily available to him.”

(Remand C.R. 8-9.)

Although the appellee testified that he had problems remembering the events surrounding the offense, he also admitted that he remembered being at the address in question on March 4, 2002; that he remembered law enforcement officers coming to that address; and that he remembered being arrested. Further, during the State’s cross-examination of the appellee, the following occurred:

“[THE PROSECUTOR:] Do you remember giving them a statement?
“[THE APPELLEE:] Statement?
“[THE PROSECUTOR:] If you were provided a copy of that statement, would that refresh your memory?
“[THE APPELLEE:] Yes.”

(Remand R. 14.) Finally, although the appellee made general allegations that, at the time of the hearing on return to remand, he did not associate with the same people, he did not testify that he could not remember the names of the people with whom he had previously associated or that he would not be able to contact or locate the people with whom he had previously associated.

In this case, there was a delay in indicting the appellee due to a backlog at the Alabama Department of Forensic Sciences. Also, there was a delay in serving the indictment upon the appellee caused, in part, by the fact that the appellee had changed residence and, in part, by the limited number of officers available to execute the number of indictments and warrants received by the Montgomery County Sheriffs Department. Further, although the appellee made general allegations of dimmed recollection, he also conceded that reviewing his statement to law enforcement officers would refresh his memory. Finally, although the appellee testified that he no longer associated with the same people, he did not assert that he could not remember the names of those people or that he would not be able to contact or locate those people.

For these reasons, the appellee did not establish that he was prejudiced by the delay. Also, he did not present any evidence indicating that the delay on the part of the State, be it justified or negligent, would undermine the fairness of his trial. After weighing the Barker factors, it does not appear that the appellee was denied his right to a speedy trial. Therefore, the trial court erroneously dismissed the indictment against him. Accordingly, we reverse the trial court’s judgment and remand this case to that court for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

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

      . Because the record on appeal is sketchy as to the facts surrounding this case, we have not attempted to discuss the facts of this case.

      . If we remanded this case only for the trial court to make specific, written findings of fact regarding each of the Barker factors, we still would not be able to properly evaluate the trial court’s ruling on the motion to dismiss because the record includes very little relevant information.


author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (2006-3).
    No. SC06-2436.
    Supreme Court of Florida.
    Jan. 25, 2007.
    The Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (the Committee) petitions this Court to amend the Florida Standard Jury Instructions in Criminal Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On December 14, 2006, the Committee filed Report No. 2006-03, proposing an amendment to Standard Jury Instruction in Criminal Cases 3.6(g) — Justifiable Use of Non-Deadly Force. Along with the report, the committee filed a Motion to Expedite Report 2006-3. The Committee asks the Court to expedite the review and consideration of the amendments proposed to jury instruction 3.6(g) — Justifiable Use of Non-Deadly Force.

The proposed instruction was published in The Florida Bar News on November 15, 2006. One comment was received, from Judge Angel Cortiñas of the Third District Court of Appeal. Judge Cortiñas suggested that the aggressor portion of the instruction should be clarified to advise the trial judge that this portion should only be given when the defendant has been charged with an independent forcible felony other than the one for which the defendant claims self-defense. The committee amended its proposal in accordance with Judge Cortiñas’ comments.

The Committee recommends the following changes: (1) to delete the words “beyond a reasonable doubt” where they appear in two places in the instruction; (2) to add language to the directions as to when the part of the instruction concerning when the use of nondeadly force is not justified, so as to clarify that it should be given only when the defendant has been charged with more than one forcible felony, pursuant to the decision in Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002); and (3) to update the instruction’s history contained in the “Comment” section of the instruction. As noted by the Committee, the Court last amended this instruction in In re Standard Jury- Instructions in Criminal Cases (No.2005-4), 930 So.2d 612 (Fla.2006). Although our opinion authorized the publication and use of the instruction, amended as proposed by the Committee, which did not include the words “beyond a reasonable doubt,” the appendix attached to our opinion contained these words and the error was not discovered until the Committee’s submission of the report in this case.

Upon consideration of the Committee’s report and motion to expedité, we hereby grant the motion and authorize the publication and use of the revised instructions, with only minor modification to the proposed amendments to the “Comment” portion of the instruction, as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that the notes and comments associated with the instructions reflect only the opinion of the Committee, and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final. New language is indicated by underlining, and deletions are indicated by struck-through type.

It is so ordered.

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

APPENDIX

3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE

Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

Read in all cases.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force.

Definition.

“Non-deadly” force means force not likely to cause death or great bodily harm.

In defense of person. § 776.012, Fla. Stat. Give if applicable.

(Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved beyond-a

1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force against the [defendant] [another person].

2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.

In defense of property. § 776.081, Fla. Stat. Give if applicable.

(Defendant) would be justified in using non-deadly force against (victim) if the following three facts are proved beyond a reasonable doubt:

1. (Victim) must have been trespassing or otherwise wrongfully interfering with land or personal property.

2. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect.

3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior.

No duty to retreat (dwelling, residence, or occupied vehicle). Give if applicable.

If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle] [he] [she] is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself] [herself] [another] if (victim) as [unlawfully and forcibly entered] [has removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give if applicable.

If the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Definitions.

As used with regard to self defense,

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Define applicable forcible felony that defendant alleges victim was about to commit.

Give in all cases.

A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be.

Aggressor. § 776.04.1, Fla. Stat.

The use of non-deadly force is not justified if you find:

Give if applicable.only if the defendant is charged with more than one forcible felony. See Giles v. State, 8S1 So.2d 1263 (Fla. 4th PGA 2002).

1. (Defendant) was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony).

Define applicable forcible felony.

2. (Defendant) initially provoked the use of force against [himself] [herself], unless:

a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on (assailant).

b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of non-deadly force, but (assailant) continued or resumed the use of force.

Force in resisting arrest. § 776.051(1), Fla. Stat.

A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be or reasonably appears to be a law enforcement officer.

Give the following instruction if applicable.

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, U63 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776M1, Fla. Stat, may need to be given in connection with this instruction.

Read in all cases.

In deciding whether the defendant was justified in the use of non-deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

Reputation of victim. Give if applicable.

If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities. Read in all cases.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

Read in all cases.

If, in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find [him] [her] guilty if all the elements of the charge have been proved.

Comment

This instruction was adopted in 1981 and was amended in 1985, 1992, and 2006, and 2007.


text:
    Christopher MOORE, Appellant, v. COUNTY OF MADISON, et al., Appellees.
    No. 1D04-2372.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Christopher Moore, pro se, Appellant.
    Barbara C. Fromm of Jolly & Peterson, P.A. Tallahassee, for Appellee Madison County Sheriffs Office and the Sheriff of Madison County, FL.
    Charlie Crist, Attorney General, and Pamela Lutton-Shields, Special Counsel, Tallahassee for Appellee State Attorney Jerry M. Blair, Public Defender Dennis Roberts and Judge Thomas J. Kennon, Jr.
   PER CURIAM.

Affirmed. See Fox v. Harris, 773 So.2d 107, 107 (Fla. 1st DCA 2000) (“We reject [the appellant’s] claim that reversal is warranted because the circuit court did not grant him leave to amend, since he fails to show that he asked for and was denied the opportunity to amend his complaint.”). See also Palm AFC Holdings, Inc. v. Minto Cmtys., Inc., 766 So.2d 436, 437 (Fla. 4th DCA 2000) (holding “that the words ‘with prejudice’ are” unnecessary to make “a dismissal for failure to state a cause of action ... [a final] adjudication on the merits”).

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Nick Joe MASSIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3786.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Nick Joe Massie, pro se, Appellant.
    Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Nick Joe Massie, challenges the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse for further proceedings.

Following a guilty plea, appellant was sentenced to thirty years’ imprisonment on three counts of lewd molestation of a child as a prison releasee reoffender (“PRR”) and on count I also as a habitual violent felony offender (“HVFO”). In the instant rule 3.850 motion, appellant alleged that his attorney was ineffective for failing to object to an illegal sentence. He claimed that his sentence is illegal on count I because he was sentenced to equal concurrent PRR and HVFO sentences. A PRR may also be sentenced as a habitual offender, and the PRR sentence serves as a minimum mandatory. See Grant v. State, 770 So.2d 655 (Fla.2000). However, the HVFO sentence must be longer than the PRR sentence, as equal concurrent sentences are in violation of the PRR Act. Id. at 659; Alvarez v. State, 789 So.2d 479 (Fla. 4th DCA 2001).

The trial court did not provide record attachments refuting appellant’s claim. The summary denial of the motion was, therefore, improper. See Tompkins v. State, 872 So.2d 230, 238 (Fla.2003); Fla. R.Crim. P. 3.850(d).

We, accordingly, reverse the summary denial of appellant’s motion and remand to the trial court for an evidentiary hearing or to refute appellant’s claim with record attachments.

REVERSED and REMANDED.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Richard Earl BROCK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3998.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Richard Earl Brock, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By timely petition, Richard Earl Brock seeks a belated appeal of a June 8, 2006, order denying his motion for postconviction relief after evidentiary hearing. He alleges that upon receipt of the trial court’s order, he timely mailed a letter to his counsel of record requesting that she file a notice of appeal. In response to his subsequent notice of inquiry, however, the circuit court clerk informed Brock that a notice of appeal had not been filed.

The state opposes the petition for belated appeal, relying on an affidavit of Brock’s counsel stating that she has no record of receiving Brock’s letter requesting that an appeal be initiated. Based on counsel’s affidavit, the state asserts that the petition for belated appeal should be denied inasmuch as counsel denies being requested to file an appeal, or in the alternative, an evidentiary hearing should be conducted.

We conclude that Brock is entitled to a belated appeal, and that there is no need for an evidentiary hearing. If Brock’s timely letter did not reach counsel, this exceptional circumstance is sufficient to warrant the granting of a belated appeal. See Rumph v. State, 746 So.2d 1249 (Fla. 1st DCA 1999). An evidentiary hearing would be required only if the state established a good faith basis for disputing Brock’s sworn allegation that he timely mailed the letter requesting an appeal. See Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998). The state has not done so, and Brock is therefore entitled to the relief he seeks.

Accordingly, the petition seeking a belated appeal of the June 8, 2006, order denying Brock’s motion for postconviction relief in Escambia County Circuit Court case numbers 1996-CF-001141A, 1996-CF-004898A, 1996-CF-004899A, 1996-CF-005065A, and 2002-CF-002589A, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION FOR BELATED APPEAL GRANTED.

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.


text:
    Carrie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4354.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Carrie Williams, pro se, Appellant.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Carrie Williams, challenges the trial court’s summary denial of her six claims of ineffective assistance of counsel brought pursuant to Florida Rule of Criminal Procedure 3.850. We find no error with the trial court’s summary denial of claims three and six. However, the record does not conclusively refute claims one, two, four, and five, a fact which the State conceded in its response to this Court’s order to show cause why relief should not be granted. Accordingly, we reverse the trial court’s summary denial of these facially sufficient claims and remand with instructions to either attach portions of the record that conclusively refute the claims or conduct an evidentiary hearing. See Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (explaining that a summary denial of a rule 3.850 claim may be upheld only if a claim is facially invalid or conclusively refuted by the record).

REVERSED and REMANDED for further proceedings.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Jahzwah JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1353.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Jahzwah Johnson, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GREEN, WELLS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The appellant, Jahzwah Johnson (“Johnson”), appeals the denial by the Eleventh Judicial Circuit Court of a petition for writ of habeas. As we conclude that the petition was filed in the incorrect court, we affirm the trial court’s order denying the petition without prejudice, thereby providing Johnson with the opportunity of raising the instant claims in the Twentieth Judicial Circuit Court in Charlotte County, Florida.

On March 2, 2005, Johnson entered a plea of nolo contendere to robbery with a deadly weapon, was adjudicated guilty, and duly sentenced. Johnson, who is currently incarcerated in Miami-Dade County, seeks to attack the validity of the judgment and sentence imposed. While a defendant is required to file a petition for writ of habeas corpus in the circuit where the defendant is incarcerated when the petition involves an issue regarding the prisoner’s incarceration, the converse is true when the petition is based upon the legality of the conviction imposed in another circuit. See Calloway v. State, 699 So.2d 849, 849-50 (Fla. 3d DCA 1997)(ex-plaining that a circuit court has no jurisdiction to review the legality of a conviction in another circuit); Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996)(holding that a court from one county does not have jurisdiction to hear a petition collaterally attacking a judgment and sentence from another county).

In affirming the denial of Johnson’s petition filed in the Eleventh Judicial Circuit without prejudice to allow Johnson to seek the appropriate relief in the Twentieth Judicial Circuit, this court does not address nor does it intend to infer that habeas corpus relief is the proper mechanism to raise the claims Johnson has raised herein. To the contrary, it appears that Johnson’s claims are, in fact, claims seeking postcon-viction relief which must be raised pursuant to Rule 3.850, Florida Rules of Criminal Procedure.

Affirmed.


text:
    Billy COONEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-727.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Billy Cooney, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, for appel-lee.
    Before, COPE, C.J., and GREEN and LAGOA, JJ.
   PER CURIAM.

We affirm the order denying defendant’s post-conviction relief motion in all respects. However, we hereby correct the written sentencing order to reflect the correct date from which defendant is to receive credit for time served. The plea colloquy reflects that defendant was to receive credit from July 23, 2003.

Affirmed.


text:
    David Lee BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2804.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.

      David Lee Brown, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994).


author: FLETCHER, Judge.

text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee.
    No. 3D05-2232.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Walton Lantaff Schroeder & Carson and Robert L. Teitler and Wayne T. Gill, West Palm Beach, and Jane Anderson, Miami, for appellant.
    Clark, Robb, Mason, Coulombe, Busch-man & Cecere and James K. Clark, Miami, for appellee.
    Before FLETCHER and WELLS, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

Fidelity & Casualty Company of New York [Fidelity] appeals from a summary judgment entered in favor of State Farm Fire & Casualty Company [State Farm] in this action for declaratory judgment on the issue of coverage. We reverse.

Fidelity issued an insurance policy to Mark Arnold providing motor vehicle and excess liability coverage for the policy period of September 15, 1999 to September 15, 2000. Arnold subsequently applied to State Farm for motor vehicle and excess liability coverage specifically requesting that the State Farm policy commence on September 13, 2000. Accordingly, State Farm issued a binder as of that date. Fidelity’s policy provided for coverage to be afforded on a pro-rata basis where other excess policies applied. However, it also contained an automatic termination provision which stated: “If you obtain other insurance, any similar insurance provided by this policy will terminate on the effective date of the other insurance.” Arnold was involved in a serious accident on September 14, 2000 as a result of which he was sued. Without consulting with Fidelity, State Farm settled the action against Arnold for $5,000,000, the full amount of its excess coverage. Fidelity then commenced the instant declaratory judgment action seeking a determination that it owes no coverage for the loss and has no obligation to reimburse State Farm for any part of the settlement. State Farm counterclaimed for equitable subrogation. Upon motions for summary judgment, the trial court determined that Fidelity is liable for a pro rata share of the settlement.

Insurance contracts are interpreted according to the plain language of the policy, and, where a policy provision is clear and unambiguous, it should be enforced according to its terms. Taurus Holdings, Inc. v. United States Fid. & Guar. Co., 913 So.2d 528 (Fla.2005). Here the clear and unambiguous terms of the automatic termination provision in the policy issued by Fidelity apply to preclude coverage. The provision effectively terminated Fidelity’s coverage one day prior to the subject accident.

We, therefore, reverse the judgment entered in favor of State Farm and remand for entry of a final judgment in favor of Fidelity.

Reversed and remanded.


author: MAY, J.

text:
    E.I. DUPONT DE NEMOURS AND COMPANY, Appellant, v. Joseph BASSETT, Appellee.
    No. 4D06-2950.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Jack Reiter and Jay S. Blumenkopf of Adorno & Yoss, LLP., Miami, for appellant.
    Devand A. Sukhdeo of Ogletree, Dea-kins, Nash, Smoak & Stewart, P.C., Miami, for appellee.
   MAY, J.

The employer, E.I. DuPont de Nemours and Company, appeals a non-final order denying its motion for a temporary injunction to compel a former employee, Joseph Bassett, to comply with a non-compete agreement. The employer requests this court to reverse and remand the case for entry of a temporary injunction. We decline and affirm.

The standard of review of trial court orders on requests for temporary injunctions is a hybrid. Colucci v. Kar Kare Automotive Group, Inc., 918 So.2d 431, 436 (Fla. 4th DCA 2006). “To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Id.

Here, the trial court stated:
I’m not satisfied with the quantum of proof at this hearing. I’m not satisfied that there has been a demonstration of a likelihood of irreparable harm and the unavailability of an adequate remedy at law.
I have a problem also that with respect to the elements that the threatened injury to the petitioner outweighs any possible harm to the respondent in this case. But it is real close. Real close.
I’m not convinced by your argument that the fact that non-compete agreement is not universally employed shows that this is less than proprietary or confidential information.
They may have some good sound business reasons that the employees that have been there for a long period of time have demonstrated their loyalty. And that might be a very good reason why the non-compete provision hasn’t been required of them later on in their employment.
But I have some — I’m just not convinced, and it is your burden to prove.

We cannot say that these factual findings were those no reasonable person would make. The trial court simply was not convinced by the evidence at the hearing on the motion for temporary injunctive relief and neither are we.

Affirmed.

POLEN and KLEIN, JJ., concur.


text:
    Arron LEMMER, Appellant, v. URBAN ELECTRICAL, INC. and The Hartford, Appellees.
    No. 1D05-6098.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.

      Patrick J. Deese, Melbourne; Bill McCabe, Longwood, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

Claimant, Arron Lemmer, seeks review of an order of the judge of compensation claims (“JCC”) in which the JCC denied each of his claims for benefits. On appeal, claimant raises five issues, only three of which merit discussion. In his first issue, claimant argues that the JCC’s finding that he reached overall maximum medical improvement (“MMI”) is not supported by competent, substantial evidence. In his second issue, claimant challenges the JCC’s denial of his claim for temporary partial disability (“TPD”) benefits. In his fifth issue, claimant contends that the JCC erred in denying his claim for attorney’s fees, costs, interest, and penalties. For the reasons expressed herein, we reverse the JCC’s order and remand for further proceedings.

Claimant was injured in a compensable car accident on January 14, 2003, while working for the employer, Urban Electrical, Inc., as an electrician. Claimant sought, among other things, TPD benefits for the periods between June 17, 2004, and September 6, 2004, and December 13, 2004, through August 9, 2005. Another issue to be decided by the JCC was the correct determination of MMI. In the Final Merit Order, the JCC accepted Dr. Desai’s MMI date of February 25, 2004. It is undisputed that Dr. Desai, an orthopedic surgeon, treated claimant for his compensable right knee injury. With respect to when claimant reached MMI for his compensable back condition, the JCC noted that claimant had not sought any remedial care for his back, that he had not returned to see his authorized treating physician since March 7, 2005, and that “[o]ne can only assume the claimant’s condition was fairly stable, that he had neither the inclination nor the need for remedial care during that time, and had for a prolonged period of time had reached MMI.”

With regard to claimant’s entitlement to TPD benefits, the JCC determined that claimant failed to establish the requisite causal connection between his wage loss and his injuries and denied the claim. In support of this ruling, the JCC found in part, “For the last 1 1/2 to 2 years of his treatment, Dr. Cohen did not document any work restrictions.” The JCC also found, “There was no testimony that the claimant had been fired or laid off due to his inability to perform the job, or that the claimant had been forced to decrease hours or leave work early during the time periods in question.” The JCC also denied claimant’s claim for attorney’s fees, costs, interest, and penalties. This appeal followed.

As to the JCC’s MMI determination, claimant acknowledges that his orthopedic surgeon placed him at MMI for his right knee condition on February 25, 2004. He argues, however, that the JCC’s determination that he reached overall MMI is not supported by competent, substantial evidence. We agree.

MMI constitutes “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” § 440.02(10), Fla. Stat. (2002). A finding of MMI is precluded where treatment is being provided with a reasonable expectation that it will bring about some degree of recovery, even if treatment ultimately proves ineffective. Rolle v. Picadilly Cafeteria, 573 So.2d 94, 97 (Fla. 1st DCA 1991). The question of whether a claimant has reached MMI is a medical question and should be based on a clear, explicit expression in the medical records or medical opinion testimony. Kilboume & Sons v. Kilboume, 677 So.2d 855, 859 (Fla. 1st DCA 1995). Because the question of whether a claimant has reached MMI is essentially a medical question, it should be answered by medical experts. Scotty’s, Inc. v. Sarandrea, 645 So.2d 121, 122 (Fla. 1st DCA 1994).

Here, the JCC made an assumption based upon his review of the medical evidence that claimant “had for a prolonged period of time had reached MMI” for his back condition. This was error. See Kilbourne, 677 So.2d at 859 (holding that the JCC’s determination of MMI, which was based on his own review of the medical records, did not comport with the legal definition of MMI). Therefore, we reverse the order as to this finding.

Turning to claimant’s second argument, that the JCC erred in ruling that he was not entitled to TPD benefits, claimant is correct that two of the JCC’s findings in support of his ruling are erroneous. While the JCC found that Dr. Cohen had not documented any work restrictions for the last 1 1/2 to 2 years of his treatment, Dr. Cohen’s medical reports, which were admitted into evidence, showed that claimant’s work restrictions were continued at least through June 29, 2004, which was during the first claimed TPD period. The JCC also found there was no testimony that claimant had been fired or laid off due to his inability to perform his job. Yet, claimant testified during his deposition that he was fired from his job at Ken Electric, a subsequent employer, on December 13, 2004, because his back pain kept him from performing his duties in a timely matter. This testimony, which the JCC did not expressly reject, was undisputed. Given these two erroneous findings, which the JCC relied upon in denying claimant’s TPD claim, we reverse the order as to the TPD denial and remand the case with instructions that the JCC reconsider the evidence. See Stanifer v. Lynne Precast, Inc., 695 So.2d 786, 786 (Fla. 1st DCA 1997) (reversing because it appeared that the JCC may have overlooked or ignored critical evidence and remanding for the JCC to reconsider his erroneous findings and the evidence he overlooked). Due to our disposition with respect to the JCC’s MMI determination and denial of claimant’s TPD claim, we also reverse the order as to the denial of attorney’s fees, costs, interest, and penalties as that issue may need to be readdressed on remand.

REVERSED and REMANDED for further proceedings.

ALLEN, PADOVANO, and LEWIS, JJ., concur.

       Notably, the carrier’s claim specialist testified during his deposition that the employer/carrier (''E/C”) paid claimant TPD benefits from September 25, 2003, through June 16, 2004. The benefits were stopped because, according to the specialist, claimant reached overall MMI in February 2004.


text:
    Rubin E. PALM, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4120.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.

      Rubin E. Palm, pro se, Appellant.
    Bill McCollum, Attorney General, for Appellee.
   ORDER ON RESPONSE TO SHOW CAUSE

PER CURIAM.

Appellant seeks review of an order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.853. Because it appeared that Appellant’s notice of appeal was untimely filed, this court issued an order directing Appellant to show cause why the appeal should not be dismissed. For the reasons expressed below, we discharge the September 12, 2006, show cause order and direct the State to show cause within 10 days of the date of this order why the appeal should not be allowed to proceed.

The order on appeal was filed by the clerk of the circuit court on March 9, 2006; however, the order contains no indication of the date of service, as required by Florida Rule of Criminal Procedure 3.853(e), which permits the movant to file a motion for rehearing within 15 days of the date of service of an order denying a 3.853 motion for postconviction relief. See also Fla. R.Crim. P. 3.800(b)(1)(B); 3.850(g). Consequently, when an order fails to certify the date of service, courts are unable to determine whether the motion for rehearing was timely filed, thus delaying rendition of the order for the purpose of timely filing an appeal.

The Fifth District addressed a similar problem in Jones v. State, 642 So.2d 121 (Fla. 5th DCA 1994), wherein the appellant argued that, because he had never been served with the order denying his 3.850 motion, his right to appeal had been frustrated by State action. The court noted that “without a certificate of service, it cannot be presumed that prompt notice of the order denying relief was given,” and remanded the case to the lower tribunal for an evidentiary hearing to determine, among other things, whether the appellant failed to receive prompt notice of the denial of his 3.850 motion. See id. at 122; Dubose v. State, 906 So.2d 1230 (Fla. 2d DCA 2005) (reversing dismissal of motion for rehearing where order did not contain certificate of service and there was no other record evidence indicating order had been served, as required by rule 3.850(g)); cf. Ortiz v. Moore, 741 So.2d 1153 (Fla. 1st DCA 1999) (remanding cause to circuit court to determine date of rendition where DOC order disposing of inmate grievance did not bear date stamp or any other indication of order’s rendition date).

Although we considered the utility of remanding this case for an evidentiary hearing to determine the date of actual service of the order denying Appellant’s motion, we are doubtful that such an exercise would be fruitful under these circumstances. We, therefore, hold that where the timeliness of the 3.800, 3.850, or 3.853 appeal cannot be determined due to the order on appeal lacking a date of service, this court will presume that the motion for rehearing was timely filed. The State, however, shall be given the opportunity to rebut that presumption by presenting evidence that the motion for rehearing was in fact not timely filed.

Accordingly, Appellee shall show cause within 10 days from the date hereof why this appeal should not be considered timely filed. Appellant shall have 10 days from service of Appellee’s response to reply.

ALLEN, WEBSTER and THOMAS, JJ., concur.


author: THOMAS, J.

text:
    N.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2591.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals his delinquency adjudication for sexual battery and raises three issues on appeal. We affirm without discussion the first issue regarding whether the child victim was competent to testify during the hearing; however, because the trial court improperly admitted the child victim’s hearsay statement under section 90.803(23), Florida Statutes (2005), we must reverse Appellant’s adjudication of delinquency and remand for a new adjudicatory hearing.

Appellant was charged with committing sexual battery, in violation of section 794.011(2)(b), Florida Statutes (2005), “by placing his penis in or upon the victim’s anus.” At the adjudicatory hearing, the seven-year-old child victim testified that Appellant touched her buttocks with his hand. The only evidence to establish that Appellant placed his penis in or upon the child victim’s anus was Appellant’s verbal confession and the child victim’s out-of-court statement to a child protection team member, which was inconsistent with her trial testimony; however, the State also introduced Appellant’s mother’s properly admitted hearsay statement in which she said to the officer who responded to the scene, “I can’t deal with this anymore, I need this to stop, I caught him in the room with her, behind her with no pants on.”

Six days prior to the hearing, the State filed a Notice of Hearsay Evidence, seeking to introduce into evidence the child victim’s out-of-court statement under section 90.803(23), Florida Statutes (2005). Appellant filed a motion to exclude these statements and sought a hearing pursuant to State v. Townsend, 635 So.2d 949 (Fla. 1994).

Section 90.803(23), Florida Statutes (2005), provides:

HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.—
(a)Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with ... [an] age of 11 or less describing ... any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2. The child either:
a. Testifies; or
b. Is unavailable as a witness....
(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as- evidence at trial. The notice shall include a written statement of the content of the child’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

The State conceded that it failed to comply with the notice requirement contained in section 90.803(23); however, failure to strictly comply with the notice requirement is not fatal to admission of the statement when “the party against whom the statement is offered suffered no harm and was given a fair opportunity to meet the statement....” Distefano v. State, 526 So.2d 110, 114 (Fla. 1st DCA 1988), disapproved on other grounds by State v. Davis, 630 So.2d 1059 (Fla.1994). Here, Appellant received the State’s Notice of Hearsay Evidence six days before the hearing and three days before Appellant announced he was ready for trial. Appellant could not explain how he was prejudiced by the untimely Notice, and acknowledged that he knew the child victim had made a statement to the child protection team member. We conclude that the State’s failure to strictly comply with the notice requirement did not prevent the trial court from admitting the child victim’s statement into evidence.

Appellant’s further argument that the trial court did not comply with the other procedural requirements of section 90.803(23), however, requires us to reverse his adjudication of delinquency. Section 90.803(23), Florida Statutes (2005), requires that the statement “meet two specific reliability requirements: (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability.” Townsend, 635 So.2d at 954 (emphasis in original). Because a trial court must make specific record findings indicating the basis for its determination of reliability, it is reversible error for a trial court to merely conclude that a child victim’s statement is reliable-or to list the hearsay statements, without an explanation of their reliability. Id. at 957; Griffin v. State, 526 So.2d 752, 759 (Fla. 1st DCA 1988).

Here, the trial court concluded that the child victim’s statement was reliable, but made no findings to indicate the basis for its decision. After our review of the record, we conclude this was not harmless error. Cf. Salter v. State, 500 So.2d 184, 186 (Fla. 1st DCA 1986) (explaining that although the trial court erred in admitting a child victim’s hearsay statement, it was harmless when the child testified at trial that the appellant touched her and the child’s mother testified that the child told her immediately following the incident).

Other than Appellant’s verbal confession, the child victim’s statement was the only evidence introduced to establish that Appellant committed a sexual battery. Because corpus delicti must be established independently of a defendant’s confession, before the confession is admitted into evidence, there must be evidence presented showing that the crime was committed and that all elements of the crime existed. See Bradley v. State, 918 So.2d 337, 339 (Fla. 1st DCA 2005). We note that the State did not attempt to admit Appellant’s confession into evidence under section 92.565, Florida Statutes (2005), and does not assert that it is admissible as such on appeal; therefore, without first admitting the child victim’s hearsay statement, Appellant’s verbal confession could not have been admitted. Thus, admission of the child victim’s hearsay statement was not harmless error.

We reject Appellant’s next argument regarding the trial court’s denial of his motion for judgment of dismissal. When determining whether the evidence is sufficient to withstand a motion for a judgment of dismissal, the reviewing court must consider all evidence adduced at the delinquency hearing, even evidence that is erroneously admitted. See State v. Brockman, 827 So.2d 299, 303 (Fla. 1st DCA 2002); Barton v. State, 704 So.2d 569, 573 (Fla. 1st DCA 1997). In considering the erroneously admitted evidence, along with Appellant’s mother’s statement and the victim’s testimony, we find that the State introduced sufficient evidence to withstand Appellant’s motion for judgment of dismissal. Accordingly, we reverse Appellant’s adjudication of delinquency and remand for the trial court to conduct a new adjudicatory hearing.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

KAHN and HAWKES, JJ., concur.