author: WOODALL, Justice. MURDOCK, Justice SEE, Justice STUART, Justice

text:
    Ex parte Lacy Ray BUTLER. (In re Lacy Ray Butler v. State of Alabama).
    1051636.
    Supreme Court of Alabama.
    March 16, 2007.

      Lacy Ray Butler, pro se.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and J. Thomas Lever-ette, asst. atty. gen., for respondent.
   WOODALL, Justice.

In 1984, Lacy Ray Butler was convicted of first-degree rape and first-degree robbery and was sentenced for each offense, as a habitual felony offender, to life imprisonment without the possibility of parole. See § 13A-5-9, Ala.Code 1975. In March 2005, Butler filed a motion pursuant to § 13A-5-9.1, Ala.Code 1975, asking the trial court to reconsider his sentences and to resentence him to life imprisonment with the possibility of parole.

“[T]he trial court had jurisdiction pursuant to § 13A-5-9.1 to consider [Butler’s] motion to reconsider his sentence.” Kirby v. State, 899 So.2d 968, 972 (Ala.2004). In Kirby, this Court discussed the classes of habitual offenders eligible for resentenc-ing, as well as the factors to be considered by the trial court in determining whether an inmate is a nonviolent offender, stating, in pertinent part:

“Reading § 13A-5-9.1 in conjunction with § 13A-5-9 [the Habitual Felony Offender Act (‘HFOA’) ], it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders.
“We conclude that the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender and that those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC [Department of Corrections] and the Parole Board concerning the inmate’s behavior while incarcerated. It is axiomatic that only the sentencing judge or the presiding judge should evaluate the inmate’s crime and his or her conduct associated with that crime in deciding whether the inmate is a nonviolent offender, just as the judge evaluated those factors at the time the inmate was originally sentenced. Another factor in determining whether the inmate is a nonviolent offender, however, should be a consideration of the inmate’s conduct while incarcerated, which knowledge is within the purview of the DOC. Section 13A-5-9.1 provides that the DOC will conduct an evaluation of the inmate’s performance while incarcerated and submit its evaluation to the court so the judge can take that information into account in determining whether the inmate is eligible for reconsideration of his or her sentence.”

899 So.2d at 974 (emphasis added).

On July 13, 2005, Judge John Bush, the presiding judge of the Autauga Circuit Court, granted Butler the relief he sought, stating, in pertinent part:

“This matter is before the Court upon [Butler’s] Motion for Reconsideration of Sentence pursuant to Section 13A-5-9.1 and the Kirby decision.
“In determining whether [Butler] is a non-violent offender this Court is to look to the nature of [Butler’s] underlying conviction, [Butler’s] prison record, information submitted concerning [Butler’s] behavior while incarcerated, and other factors in the record of the case.
“Since [Butler] was tried and convicted in October, 1984 before the Hon. Walter C. Hayden, Jr., prior to this Judge coming to the bench, this Court has very little information concerning the underlying conviction. The District Attorney did provide information to the Court at the hearing from his file that indicated that [Butler] abducted a 17-year-old female from a convenience store when she got off of work and took her off and raped her and then returned to the store and forced her to open the safe and took some $3000.00.
“The Court has reviewed the records submitted by the Department of Corrections. [Butler] has received ten (10) behavior citations and twenty (20) disci-plinaries over the almost 21 years that he has been incarcerated. None of those contained any violence. [Butler] did receive a positive report from his work-supervisor indicating that he was a good worker, was respectful to others and did not create a problem.
“[Butler’s] prior felonies upon which his sentence was enhanced were all class C, breaking and entering convictions out of North Carolina. These convictions would be the equivalent of burglary[-in-the-third-degree] convictions in Alabama. Upon reviewing the North Carolina records of [Butler’s] prior convictions, the Court also located a 1982 case where [Butler] was convicted of assault on a female, a misdemeanor.
“Based upon the foregoing, the Court finds in weighing all of the factors that [Butler] may be considered a ‘non-violent’ offender and that the sentence previously imposed upon him is due to be modified.”

On July 26, 2005, the State filed a motion asking the trial court to reconsider its ruling on Butler’s motion. The State requested that the trial court give greater weight to the violent nature of the offenses of which Butler had been convicted. On August 2, the State supplemented its motion to include a statement from the victim.

On September 2, 2005, the trial court entered an order purporting to set aside its July 13 order and to reinstate Butler’s sentences of life imprisonment without the possibility of parole. In its September 2 order, the trial court stated: “Although the defendant meets the criteria for being a non-violent offender based upon his prior felony convictions and his prison record, the facts underlying his convictions in this case establish that he is a violent offender who is not eligible for a reduced sentence under Kirby.” Thus deprived of the relief he had sought, and initially obtained, Butler appealed to the Court of Criminal Appeals.

The Court of Criminal Appeals affirmed the trial court’s September 2, 2005, order denying Butler’s motion for reconsideration of his sentences. Butler v. State, 972 So.2d 817 (Ala.Crim.App.2006). The Court of Criminal Appeals acknowledged the “general rule [that] a court retains jurisdiction to modify its ruling for 30 days after the ruling being modified was issued.” Butler, 972 So.2d at 818 (citing State v. Monette, 887 So.2d 314 (Ala.Crim.App.2004)). However, according to the Court of Criminal Appeals, the 30-day rule is inapplicable where the challenged judgment is void, because “[a] void judgment has no legal effect on later proceedings in a case.” Butler, 972 So.2d at 818.

Although the September 2 order was entered more than 30 days after the July 13 order, the Court of Criminal Appeals held that the September 2 order was valid because “the July 13, 2005, order was void for lack of jurisdiction. Accordingly, the [trial] court retained jurisdiction to substitute its September 2, 2005, legal order.” Butler, 972 So.2d at 821. According to the Court of Criminal Appeals, the July 13 order was void because “the circuit court ... exceeded its discretion in initially granting Butler’s motion for reconsideration.” Butler, 972 So.2d at 821.

Butler petitioned this Court for certiora-ri review, arguing that the Court of Criminal Appeals’ decision conflicts with its pri- or decisions in Loggins v. State, 910 So.2d 146, 148 (Ala.Crim.App.2005)(“It is well settled that a circuit court generally retains jurisdiction to modify a judgment for only 30 days after the judgment is entered.”); and Ex parte Bishop, 883 So.2d 262, 264 (Ala.Crim.App.2003) (“We can find no case that holds that a timely filed motion to reconsider, filed at the end of a criminal case, extends the jurisdiction of the lower court beyond 30 days.”). Relying upon these prior decisions, Butler argues that the trial court was without jurisdiction to enter its September 2, 2005, order denying his motion for sentence reconsideration and reinstating the original sentences. We agree with Butler; thus, we reverse the judgment of the Court of Criminal Appeals.

“[A] trial court derives its jurisdiction from the Alabama Constitution and the Alabama Code.” Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006). Subject-matter jurisdiction concerns a court’s power to adjudicate a case, not the merits of the court’s decision in the case.

“Jurisdiction is ‘[a] court’s power to decide a case or issue a decree.’ Black’s Law Dictionary 867 (8th ed.2004). Subject-matter jurisdiction concerns a court’s power to decide certain types of cases. Woolf v. McGaugh, 175 Ala.299, 303, 57 So. 754, 755 (1911)(‘ “By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.” ’ (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316 (1870))). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31 (2002)(subject-mat-ter jurisdiction refers to a court’s ‘statutory or constitutional power’ to adjudicate a case).”

Seymour, 946 So.2d at 538.

Faced with this Court’s decision in Kirby, the State concedes, as it must, that “the [trial court] possessed subject-matter jurisdiction to adjudicate Butler’s Kirby motion under Section 13A-5-9.1.” State’s supplemental brief, at 3. Necessarily included within the trial court’s power was “the authority under the statute to determine whether a defendant is a nonviolent offender.” Kirby, 899 So.2d at 974. Consequently, the trial court had subject-matter jurisdiction to enter its July 13 order regardless of any alleged error in its decision. Thus, the Court of Criminal Appeals erred in holding that the July 13 order was void for lack of jurisdiction. Consequently, the premise for the Court of Criminal Appeals’ holding that the trial court retained jurisdiction to enter its September 2, 2005, order fails as a matter of law.

The State argues that an alternative rationale supports the Court of Criminal Appeals’ conclusion that the trial court’s July 13 order was void. Specifically, the State contends that “Butler’s modified sentence — following the grant of his Kirby motion — was an illegal sentence.” State’s supplemental brief, at 5. This argument, however, is without merit.

“[A] trial court does not have [subject-matter] jurisdiction to impose a sentence not provided for by statute.” Hollis v. State, 845 So.2d 5, 6 (Ala.Crim.App.2002). However, in this case, the trial court did not “impose a séntence not provided for by statute.” Instead, after exercising its authority to determine whether Butler is a nonviolent offender, the trial court resentenced Butler to life imprisonment, a sentence provided for by the Habitual Felony Offender Act as amended in 2000. See § 13A-5-9(e)(3), Ala.Code 1975 (applied retroactively pursuant to § 13A-5-9.1). At its core, the State’s illegal-sentence argument is “based on [its contention] that, because Butler was a ‘violent offender,’ the trial court did not possess jurisdiction to modify his sentence.” State’s supplemental brief, at 4. Thus, the State’s alternative rationale and the rationale of the Court of Criminal Appeals share a fundamental flaw. Each rationale improperly focuses on the merits of the trial court’s initial decision instead of only the jurisdictional issue, namely, the trial court’s authority to make that decision.

For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS and BOLIN, JJ., concur.

MURDOCK, J., concurs specially.

SEE, SMITH, and PARKER, JJ., concur in the result.

STUART, J., dissents.

COBB, C.J., recuses herself.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. In so doing, I do not find it necessary to express, and I do not intend by my vote to express, any view as to whether an inmate’s eligibility for relief under § 13A-5-9.1 may turn solely on the nature of the offense of which he or she was convicted.

In concurring in the main opinion, I conclude that the “sentencing judge and the presiding judge” have jurisdiction to decide the cases of inmates asserting that they are nonviolent convicted offenders within the contemplation of § 13A-5-9.1, as opposed to only those cases where it is ultimately determined that the inmate is a nonviolent convicted offender. Even if the latter interpretation were correct, however, I do not see how the result in this case would change.

The trial judge entered a judgment on July 13, 2005, in which he determined that Butler was a nonviolent convicted offender. This issue was fully and fairly litigated by the parties, and the determination of the issue was necessary to the judgment entered by the trial judge. The trial court in the present case, i.e., the circuit court, is a court of general jurisdiction and has “exclusive original jurisdiction of all felony prosecutions.” Ala.Code 1975, § 12-11-30(2). As such, the circuit court “has the judicial power to determine the question of its own jurisdiction. This does not mean that the decision may not be erroneous, but it does mean that such a decision stands until [properly] set aside by the court of last resort.” Ex parte Textile Workers Union of America, 249 Ala. 136, 141, 30 So.2d 247, 250 (1947) (citations omitted). As this Court stated in Carter v. Mitchell, 225 Ala. 287, 292, 142 So. 514, 518 (1932):

“When a court has the right to decide as to its own jurisdiction, its decision in favor of that jurisdiction, if within its ordinary powers, will have the same effect and conclusiveness as would its decision on any other matter, especially when dependent on a fact which it is required to ascertain.”

In his July 13 judgment, the trial judge determined that Butler was a nonviolent convicted offender. Thus, even if § 13A-5-9.1 gave the trial judge jurisdiction only in those cases in which it is ultimately determined that the inmate seeking sentence reconsideration is a nonviolent convicted offender, the July 13 judgment was tantamount to a decision by the trial judge that Butler’s case met the jurisdictional requirements of that statute. Furthermore, that decision and the concomitant relief ordered by the trial judge constituted a final judgment, which, after 30 days, the trial court no longer had jurisdiction to alter, amend, or vacate. As the main opinion recognizes, “ ‘[i]t is well settled that a circuit court generally retains jurisdiction to modify a judgment for only 30 days after the judgment is entered.’ ” 972 So.2d at 824 (quoting hoggins v. State, 910 So.2d 146, 148 (Ala.Crim.App.2005)); see also Ex parte Bishop, 883 So.2d 262, 264 (Ala.Crim.App.2003).

The Court of Criminal Appeals reasoned in this case that “a void judgment has no legal effect upon later proceedings in a case,” 972 So.2d at 818; however, for that rule to operate there must in fact be proper “later proceedings.” Here, there were not. The State argues that its motion to reconsider the July 13 judgment should be treated as a motion under Rule 24, Ala. R.Crim. P. See Rule 24.4, Ala. R.Crim. P. (generally extending to 60 days the time within which the trial court has jurisdiction to consider a Rule 24 motion filed within 30 days after the pronouncement of sentence). By its terms, however, Rule 24 is not available to the State. The State does not argue that the motion it filed following the entry of the July 13 judgment constitutes any other recognizable motion or petition that would have served to extend the trial court’s jurisdiction beyond 30 days from its July 13 judgment. Nor does this case involve an effort by the State to seek some form of appellate relief directly from the July 13 judgment.

SEE, Justice

(concurring in the result).

I concur in the result; some of the language of the main opinion might be taken as contrary to the view I expressed in my special writing in Holt v. State, 960 So.2d 740, 741 (Ala.2006) (See, J., dissenting).

STUART, Justice

(dissenting).

Because I disagree with the conclusion in the main opinion that the circuit court had jurisdiction to entertain Butler’s motion for sentence reconsideration and to enter its July 13 order, I must respectfully dissent.

In my dissent in Holt v. State, 960 So.2d 740, 748 (Ala.2006), I stated: “[I]f an inmate has been convicted of a violent offense, he is a violent offender and is not eligible for sentence reconsideration under § 13A-5-9.1, Aa.Code 1975.” Thus, in my opinion, a court does not have jurisdiction to entertain a motion for sentence reconsideration filed by an inmate who has been convicted of an offense that is statutorily defined as a violent offense.

Section 13A-5-9.1, Aa.Code 1975, provides:

“The provisions of Section 13A-5-9 [the Habitual Felony Offender Act] shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

(Emphasis added.)

This Court applied a strict construction to this statute in Kirby v. State, 899 So.2d 968 (Ala.2004), to determine the issue whether a court had jurisdiction to entertain a motion for sentence reconsideration filed pursuant to § 13A-5-9.1, Ala.Code 1975. This Court stated:

“Normally, a trial court loses jurisdiction to modify a sentence in a criminal case if a request for modification is not filed within 30 days of sentencing. Massey v. State, 587 So.2d 448 (Ala.Crim. App.1991). By requiring in § 13A-5-9.1 that the provisions of § 13A-5-9 are to be applied retroactively, however, the Legislature vested jurisdiction in the sentencing judge or the presiding judge to reopen a case more than 30 days after a defendant has been sentenced.... Clearly, the Legislature has the power to vest circuit courts with the authority to reopen a case that had previously been deemed closed and in which the court’s decision was deemed final. See Ex parte Jenkins, 723 So.2d 649, 660 (Ala.1998).”

899 So.2d at 971 (emphasis added). Thus, the Court strictly construed § 13A-5-9.1 to mean that jurisdiction to consider a motion for sentence consideration filed pursuant to § 13A-5-9.1 vests only in the “sentencing judge or presiding judge.” See also Ex parte Sandifer, 925 So.2d 290 (Ala.Crim.App.2005)(holding that because the Court of Criminal Appeals was bound by this Court’s decision in Kirby, that court had to conclude that a presiding judge of a circuit court did not have the authority to appoint a special presiding judge to entertain motions for sentence reconsideration filed pursuant to § 13A-5-9.1).

I maintain that a consistent strict construction of § 13A-5-9.1 also requires that jurisdiction vests in “the sentencing judge or presiding judge” to consider motions for sentence. reconsideration only when the motion is filed by a “nonviolent convicted offender.” Therefore, if an inmate has been convicted of an offense that is defined by statute as a violent offense, he is a violent offender, and the sentencing judge or the presiding judge does not have jurisdiction to entertain the motion. To the extent this statement conflicts with Kirby, I would overrule Kirby.

Here, Butler wag convicted of first-degree rape and first-degree robbery, which are both violent, offenses as defined by the legislature, see §§ 12-25-32(12) and 12-25-32(13)a.l0. and a.28., Ala.Code 1975. Butler is a violent offender as a matter of law; consequently, neither the sentencing judge nor the presiding judge had jurisdiction to consider Butler’s motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975. Because in my opinion the court never acquired jurisdiction to consider Butler’s motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975, the court did not have'jurisdiction to enter its July 13 order, and that order is void.

Therefore, I respectfully dissent.

      . Because the trial court’s July 13 order is not void, we need not consider the procedure, if any, by which a party may challenge a void judgment.


source: Caselaw Access Project

author: WISE, Judge. WISE, Judge

license: Public Domain

text:
    Lacy Ray BUTLER v. STATE of Alabama.
    CR-05-0189.
    Court of Criminal Appeals of Alabama.
    May 25, 2007.
    Lacy R. Butler, pro se.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

WISE, Judge.

In accordance with the Supreme Court’s holding in Ex parte Butler, 972 So.2d 821 (Ala.2007), the judgment of the circuit court is reversed and this cause is remanded to the Circuit Court of Autauga County for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN, SHAW, and WELCH, JJ., concur.

WISE, J., concurs specially, with opinion.

WISE, Judge

(concurring specially).

This Court is bound by decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “is without authority to overrule the decisions of [that] court.” Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972). Thus, we have no choice; we must reverse the circuit court’s order granting the State’s motion to reconsider its order entered on July 13, 2005, in which it granted Lacy Ray Butler’s motion for sentence reconsideration based on its finding that Butler was a nonviolent convicted offender. In light of the Supreme Court’s decision in Ex parte Butler, 972 So.2d 821 (Ala.2007), it appears that the appropriate course of action to be taken by the State when it is dissatisfied with the circuit court’s ruling on an inmate’s motion for sentence reconsideration is to petition this Court for a writ of mandamus, rather than file a motion for reconsideration. Because, however, the State failed to do so in this case, the circuit court’s resentencing of Butler in its July 13, 2005, order remains valid.

However, I write specially to urge the Supreme Court to revisit its holding in Ex parte Butler, and to express my agreement with Justice Stuart’s dissent in that case. In her dissent, Justice Stuart noted:

“In my dissent in Holt v. State, 960 So.2d 740, 748 (Ala.2006), I stated: ‘[I]f an inmate has been convicted of a violent offense, he is a violent offender and is not eligible for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975.’ Thus, in my opinion, a court does not have jurisdiction to entertain a motion for sentence reconsideration filed by an inmate who has been convicted of an offense that is statutorily defined as a violent offense.

972 So.2d at 827 (emphasis added).

Justice Stuart further stated in her dissent that her interpretation of § 13A-5-9.1 was consistent with the strict construction applied by the Supreme Court in Kirby v. State, 899 So.2d 968 (Ala.2004), when it held that only the sentencing judge or presiding judge had jurisdiction to consider a motion for sentence reconsideration, noting:

“I maintain that a consistent strict construction of § 13A-5-9.1 also requires that jurisdiction vests in ‘the sentencing judge or presiding judge’ to consider motions for sentence reconsideration only when the motion is filed by a ‘nonviolent convicted offender.’ Therefore, if an inmate has been convicted of an offense that is defined by statute as a violent offense, he is a violent offender, and the sentencing judge or the presiding judge does not have jurisdiction to entertain the motion. To the extent this statement conflicts with Kirby, I would overrule Kirby.
“Here, Butler was convicted of first-degree rape and first-degree robbery, which are both violent offenses as defined by the legislature, see §§ 12-25-32(12), 12-25-32(13)a.l0. and a.28., Ala. Code 1975. Butler is a violent offender as a matter of law; consequently, neither the sentencing judge nor the presiding judge had jurisdiction to consider Butler’s motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975. Because in my opinion the court never acquired jurisdiction to consider Butler’s motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975, the court did not have jurisdiction to enter its July 13 order, and that order is void.”

972 So.2d at 828.

Although I originally concurred with this Court’s opinion in Holt v. State, 960 So.2d 726 (Ala.Crim.App.), writ quashed, 960 So.2d 740 (Ala.2006), and joined Judge Baschab’s special concurrence, I am now persuaded by Justice Stuart’s dissents both to the order quashing the writ in Holt v. State and to the opinion in Ex parte Butler, supra, that this Court’s decision in Holt was an overly broad construction of both § 13A-5-9.1 and the Alabama Supreme Court’s opinion in Kirby v. State. Here, just as in Butler, the circuit court— relying, at least in part, on this Court’s rationale in Holt v. State — granted Butler’s motion for sentence reconsideration despite the fact that Butler had been convicted of a violent offense. In my opinion, the circuit court lacked jurisdiction to find that Butler was a nonviolent convicted offender, given that he had been convicted of first-degree rape and first-degree robbery — both of which are statutorily defined violent offenses. See § 12-25-32(13)a.l0. and a.28., Ala.Code 1975. The record further established that as the victim was leaving her place of employment— a convenience store — Butler forced her into her car at gunpoint, drove her to a deserted dirt road and raped her, while still holding the gun on her. Butler then took the victim back to her workplace, where — at gunpoint — he forced her to open the safe and give him the money inside. As he fled, Butler told the victim that he had her driver’s license, that he knew where she lived, and that he would find her and kill her if she reported the incident to the police — conduct totally inconsistent with a “nonviolent convicted offender.” Indeed, the victim set out her feelings regarding the circuit court’s re-sentencing Butler to a sentence allowing Butler to. become eligible for release from prison in her written statement accompanying the State’s supplement to its motion to reconsider. Although more than 20 years had passed since the offense, even the mere possibility of Butler’s release terrified the victim:

“I fear for my life to this day. I at least can live knowing he is behind bars, but not if he is out. This is a violent man. I thought he was going to kill me in those woods and [no one would ever] know what happened to me. I was terrified. Anyone that would rape, rob, and kidnap someone in my opinion should never be given a chance to be out in a normal lifestyle. T pray that someone give me a chance to keep this animal where he belongs. I feel I will be the one he will be looking for because I am the one that put him [in prison]. Every time I think about him it brings back all the awful events of that horrible night. I am scared to death of this man.”

(C. 98-99.)

Given these circumstances, it could not have been the'intent of the Alabama Legislature, when it enacted § 13A-5-9.1, Ala. Code 1975, to allow overtly violent recidivists like Butler ever to be classified as nonviolent and, as a result, to be eligible for parole. Accordingly, to the extent that this Court’s decision in Holt v. State allows violent convicted offenders such as Butler relief from the sentence imposed as a result of their violent conduct, that decision should be revisited to prevent an injustice such as this one from occurring in future cases.

      . We note that the State has only a limited right to appeal an adverse ruling. The State may appeal a ruling holding a statute unconstitutional, a pretrial ruling suppressing evidence, a pretrial ruling dismissing the charges, a ruling granting a habeas corpus petition and ordering an individual’s release from custody, or a ruling granting a petition for postconviction relief. See §§ 12-12-70, 12-22-90, and 12-22-91, Ala.Code 1975; Rule 15.7, Ala.R.Crim.P.; and Rule 32.10, Ala.R.Crim.P. In situations where the circuit court has granted a § 13A-5-9.1 motion, there appears to be no provision under Alabama law for the State to seek appellate review of that ruling. Accordingly, the State's only remedy would be by petitioning this Court for a writ of mandamus filed within seven days from the date of the circuit court's ruling, see Ex parte Thomas, 828 So.2d 952 (Ala.2001), because a motion to reconsider does not toll the time for filing a petition for a writ of mandamus. See Ex parte Sharp, 893 So.2d 571, 575 (Ala.2003). Thus, although the State could file a motion for reconsideration, and the circuit court would have the authority to modify its order within 30 days of its entry, the State would have no recourse if the court denied the motion for reconsideration more than seven days after the entry of its original order.


author: COBB, Judge. BASCHAB, Judge,

text:
    Joseph Carl FLEMING v. STATE of Alabama.
    CR-05-0164.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.
    Rehearing Denied Dec. 8, 2006.
    Mark David Erdberg, Birmingham, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   COBB, Judge.

Joseph Carl Fleming pleaded guilty to and was convicted of attempting to elude a police officer, § 32-5A-193, Ala.Code 1975, and reckless endangerment, § 13A-6-24, Ala.Code 1975. As to each conviction, he was sentenced to 60 days in jail and was ordered to pay court costs and a $25 victim assessment. The 60-day sentences were ordered to run concurrently. Fleming moved to withdraw his guilty pleas, and the trial court denied the motion. We reverse and remand for further proceedings.

On February 2, 2005, Fleming was convicted in the district court of Lamar County of the two charges; he appealed to the Lamar Circuit Court. On October 12, 2005, Fleming pleaded guilty to both charges. The record on appeal contains forms styled “Explanation of Rights and Plea of Guilty” for each charge, but it contains no transcription of a plea colloquy or an indication that one was conducted. On November 4, 2005, Fleming filed a motion to withdraw his guilty pleas, alleging that he pleaded guilty only because he was pressured by trial counsel to do so. (C. 24-25.) The trial court denied the motion on that date.

I.

Fleming first argues that his convictions must be reversed because the record does not contain a guilty-plea colloquy.

Rule 14.4(a), Ala. R.Crim. P., provides, in relevant part, that in minor misdemean- or cases, the execution of a guilty-plea form will be sufficient and that no colloquy is required. Rule 1.4(r), Ala. R.Crim. P., defines a “minor misdemeanor” as one for which the defendant will not be punished by a sentence of imprisonment. Thus, Fleming argues, he was not convicted of a minor misdemeanor as that term is defined in the Alabama Rules of Criminal Procedure, and the lack of a plea colloquy in the record requires a reversal of his convictions. The State notes that Fleming is not arguing that the trial court failed to conduct a colloquy, only that the transcript of the colloquy is not in the record. Thus, the State contends, Fleming has not preserved this issue for review. The State also argues that Verzone v. State, 841 So.2d 312 (Ala.Crim.App.2002), which Fleming cited, is distinguishable. We disagree with the State.

Rule 14.4(a), Ala. R.Crim. P., provides in relevant part that in “minor misdemeanor cases,” the execution of a form advising the defendant of his rights and indicating his desire to plead guilty will be adequate and that no colloquy is required. The rule further provides: “In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court....” Rule 1.4(r), Ala. R.Crim. P., defines “minor misdemeanor” as one “for which the defendant will not be punished by a sentence of imprisonment.” Fleming pleaded guilty to two Class A misdemeanors and was sentenced to 60 days in jail on each conviction. Thus, by definition, he was not convicted of minor misdemeanors, and Rule 14.4(a) required a colloquy on the record. There is no indication in the record that the trial court held a colloquy, and even if the court held a colloquy, the court reporter has stated that no transcript exists.

This Court has considered a virtually identical issue in the context of a felony case. In Verzone v. State, supra, the appellant pleaded guilty to third-degree robbery, a Class C felony. She filed no post-trial motions, but she appealed and argued that the lack of a colloquy in the record raised questions about the jurisdiction of the court and the voluntariness of the plea. This Court agreed. We stated:

“The Committee Comments to Rule 14.4, Ala. R.Crim. P., provide, in pertinent part:
“ ‘Section (a) adopts the requirement that the court address the defendant personally in open court in the presence of counsel (unless counsel has been waived pursuant to Rule 6.1(b)) and is applicable in all cases except those involving minor misdemeanors and offenses where the defendant is a corporation.... This procedure is called for by ABA, Standards for Criminal Justice, Pleas of Guilty 14-1.4 (2d ed.1986), and is widely practiced by Alabama trial judges. See, e.g., Johnson v. State, 52 Ala.App. 94, 289 So.2d 662 (1973). The record should affirmatively reflect the questions asked and the defendant’s responses. This practice will protect the courts by providing an adequate basis for review on appeal.
‘Section (c) requires that the court keep a verbatim record of pleas of guilty to felonies. In Jarman v. State, 54 Ala.App. 557, 310 So.2d 481 (1975), the appellant pleaded guilty to a misdemeanor and was sentenced to 90 days’ imprisonment. The court reversed and remanded, since the “record [was] completely devoid of any colloquy between the trial judge and the appellant and his attorney, which is necessary to show compliance with Boykin [v. Alabama, 395 U.S. 238 (1969) ],” pointing out that “[t]he record itself or the minute entry must affirmatively reflect the questions asked and answers given at the time of taking the guilty plea” quoting Allen v. State, 50 Ala.App. 310, 278 So.2d 758 (1973), citing McGullion v. State, 49 Ala.App. 248, 270 So.2d 680 (Ala.Crim.App.1972).
“ ‘Section (d) is included to accommodate the current Alabama practice of informing the defendant of his rights through a form similar to that approved in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), and subsequent cases. The rule, however, specifically retains the requirement that the trial judge personally address the defendant in order to determine that he understands the contents of the form and that the judge specifically question the defendant concerning the information contained in each item. Thus, in every case, the record should affirmatively show a colloquy between the trial judge and the defendant concerning all such matters. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), held that where the record affirmatively shows that the defendant was informed of and understood his rights, the record need not include a full transcript of the colloquy. Subsequent cases in the Court of Appeals have held that while a full colloquy is not required where the form is used, the record must show that the trial judge made inquiry as to the defendant’s understanding of the rights set out in the form. This rule requires such a colloquy and requires that specific inquiry be made with regard to the rights set out in Rule 14.4(a)(1) and (2). Such procedure will ensure that the form herein approved does not “become so commonplace and perfunctory that [it fails] to serve the purpose for which [it is] intended.” See Twyman v. State, 293 Ala. 75, 83, 300 So.2d 124, 131 (1974) (Heflin, C.J., dissenting).’
“(Emphasis added.)
“The appellant raises arguments challenging the voluntariness of her guilty plea and the trial court’s jurisdiction to accept her plea. Without a transcript of the guilty plea colloquy, if the trial court conducted one, we cannot determine whether the appellant preserved any of these arguments for our review, and we cannot determine whether the trial court had jurisdiction to accept the appellant’s guilty plea. Cf. Jones v. State, 727 So.2d 889 (Ala.Crim.App.1998) (holding that, because the prosecutor did not dispute the assertion that the trial court had incorrectly advised the appellant of the maximum and minimum sentences she faced by pleading guilty, this court had an adequate record upon which to base a review of the appellant’s argument); Harris v. State, 563 So.2d 9 (Ala.Crim.App.1989) (holding that reversal was not required because, by pleading guilty, the appellant had waived the argument he raised on appeal). Because the trial court has indicated that a transcript of the guilty plea colloquy, if any, is not available, we must reverse the trial court’s judgment and remand this case to the trial court for new guilty plea proceedings or for a jury trial. See Wesson v. State, 594 So.2d 238 (Ala.Crim.App.1991); Daughtry v. State, 587 So.2d 1285 (Ala.Crim.App.1991).”

841 So.2d at 313-15 (footnote omitted).

The State contends that Verzone does not apply here because Fleming did not challenge the jurisdiction of the court to accept his plea and because he failed to raise this issue in the trial court. The State has not recognized, however, that Verzone also did not raise the lack of a colloquy in the trial court, but raised it for the first time on appeal. Furthermore, as in Verzone, because we have no transcript of the colloquy, if one was held, we cannot determine whether Fleming preserved for review his claim regarding the voluntariness of his plea.

Therefore, our decision in Verzone compels us to reverse the trial court’s judgment and to remand the cause to the trial court for new guilty-plea proceedings or for a trial.

REVERSED AND REMANDED.

WISE, J., concurs.

McMILLAN, P.J., and SHAW, J., concur in the result.

BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

I agree that there are cases, such as Verzone, in which a reversal is warranted because there is not a colloquy in the record on appeal. However, because this case is distinguishable from Verzone, and because defense counsel made only bare assertions in an unverified motion to withdraw the appellant’s guilty plea, a reversal is not warranted in this case.

In Verzone, the appellant filed a motion to supplement the record on appeal with a transcript of the guilty plea colloquy. In this case, the appellant did not file a motion to supplement the record on appeal. In fact, in the reporter’s transcript order, he did not even request a transcript of the guilty plea. Rather, he checked the portion of the form that indicated that the appeal would not have a court reporter’s transcript.

Also, in Verzone, in addition to a volun-tariness claim, the appellant raised a challenge to the trial court’s jurisdiction to accept her guilty plea. Without a record of the colloquy, we could not review that challenge to the trial court’s jurisdiction. In this case, the appellant raises only an argument that he did not voluntarily enter his guilty plea. Defense counsel presented this argument to the trial court in an unverified motion to withdraw the appellant’s guilty plea.

“ ‘Assertions in an unverified motion are bare allegations and cannot be considered as evidence or proof of the facts alleged.’ Blount v. State, 557 So.2d 1333 (Ala.Crim.App.1989); see also, Similton v. State, 672 So.2d 1363 (Ala.Crim.App.1995).”

McCollum v. State, 678 So.2d 1210, 1213 (Ala.Crim.App.1995). Thus, defense counsel’s assertions in the motion to withdraw the appellant’s guilty plea did not constitute evidence, and this court could con-elude that the trial court properly denied the motion on that basis.

For these reasons, I respectfully dissent.


author: STUART, Justice. LYONS, Justice

text:
    Ex parte State of Alabama. (In re Joseph Carl FLEMING v. STATE of Alabama).
    1060461.
    Supreme Court of Alabama.
    May 25, 2007.
    Troy King, atty. gen.; Kevin C. New-som, deputy atty. gen.; and Andy Scott Poole, asst. atty. gen., for petitioner.
    Submitted on petitioner’s brief only.
   STUART, Justice.

Joseph Carl Fleming pleaded guilty in the circuit court to two misdemeanors: attempting to elude a police officer, a violation of § 32-5A-193, Ala.Code 1975, and reckless endangerment, a violation of § 13A-6-24, Ala.Code 1975. The trial court sentenced him to 60 days in jail on each conviction, the sentences to run concurrently. Fleming moved to withdraw his guilty pleas because, he said, he had not entered his pleas voluntarily. Specifically, he maintained:

“[Fleming] was represented by attorney Joel Sogol .... Attorney Sogol informed [Fleming] that he had spoken with the District Attorney and, if [Fleming] ‘walked a straight line’ until the trial date, that the charges would be dismissed. Despite having no further difficulties with law enforcement, the District Attorney only offered to allow [Fleming] to plead guilty and serve 60 days in jail. [Fleming], only twenty-three (23) years old, did not want to plead guilty but was instead pressured into doing so by Sogol and only did so under duress.”

The trial court denied Fleming’s motion.

Fleming appealed to the Court of Criminal Appeals. Before that court, Fleming argued that his convictions should be reversed because the record did not contain a colloquy of the guilty-plea proceeding and that the trial court exceeded the scope of its discretion in summarily denying his motion to withdraw his pleas of guilty. Fleming v. State, 972 So.2d 831 (Ala.Crim.App.2006). The Court of Criminal Appeals, relying on its decision in Verzone v. State, 841 So.2d 312 (Ala.Crim.App.2002), held that because a transcript of the colloquy was not included in the record, the court could not determine whether Fleming had preserved- for review his claim regarding the voluntariness of his pleas, and it reversed Fleming’s convictions.

The State petitioned this Court for a writ of certiorari to address a conflict between the decision of the Court of Criminal Appeals that the absence in the record on appeal of a transcript of the guilty-plea proceeding requires reversal of the conviction and this Court’s decision in Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974). We granted the writ.

Initially, we observe that neither Fleming nor the State contends that the trial court did not address Fleming to determine the voluntariness of Fleming’s pleas. Thus, the issue presented is whether the record in a guilty-plea proceeding must contain a transcript of the trial court’s colloquy with the defendant determining the voluntariness of the plea to permit appellate review of the conviction based on the guilty plea.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that before a trial court can accept a defendant’s plea of guilty, the trial court must determine that the defendant is entering the plea voluntarily. See Rule 14.4(a), Ala. R.Crim. P. (providing that the court, in all cases except cases involving minor misdemeanors, must personally address a defendant who is pleading guilty and ask certain questions to ascertain that the defendant is entering the plea voluntarily); see also Rule 14.4(d), Ala. R.Crim. P. (providing that the court may determine the volun-tariness of a defendant’s plea and satisfy the requirements of Boykin and Rule 14.4(a) by personally addressing the defendant and ascertaining that the defendant has read, or has had read to him, and understands each item contained in the “Explanation of Rights and Plea of Guilty” form the defendant executed). The United States Supreme Court stated in Boykin that the trial court’s determination that the defendant voluntarily entered his plea of guilty must be affirmatively reflected in the record.

In Twyman, this Court held that the Boykin requirement that a record affirmatively reflect that the trial court determined that the defendant entered his plea of guilty voluntarily can be satisfied by either a transcript of the colloquy or written documents or entries in the record indicating that the trial court personally addressed the defendant and determined that the guilty plea was entered voluntarily. We stated:

“In Boykin, the court said the affirmative showing must be made, but the court did not say that the showing must be made by the transcript and certificate of the court reporter. There is no rule of law that requires or even suggests that it must be presumed that the trial judge, the defendant, the defendant’s attorney, or the judgment entry do not speak the truth.... The presumption that the judgment speaks the truth must prevail under the rule quoted above from Honeycutt [v. State, 47 Ala.App. 640[, 641], 259 So.2d 846[, 847] (1972)(stating ‘[i]t is well settled that the recitals in the judgment import absolute verity, unless contradicted by other portions of the record’) ].”

293 Ala. at 82, 300 So.2d at 131. Therefore, Twyman establishes that an appellate record is sufficient if it reflects that the trial court determined that a defendant voluntarily entered his guilty plea either by a transcript of the colloquy or by written documents in the record indicating that the trial court addressed the defendant to determine that the defendant entered his plea voluntarily. The holding in Twyman is the law of this State, and unless Twyman is overruled or abrogated by this Court or the United States Supreme Court or unless this Court has promulgated a rule to the contrary, the Court of Criminal Appeals is bound by it. See § 12-3-16, Ala.Code 1975, and Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972)(observing that in light of § 12-3-16, the appellate courts are without authority to overrule the decisions of this Court).

In 1991, this Court promulgated Rule 14.4(c), Ala. R.Crim. P., which requires that “[a] verbatim record of the proceedings at which the defendant enters a plea of guilty to a felony shall be made.” Therefore, with regard to a plea of guilty to a felony offense, the rule set forth in Twyman has been superseded by Rule 14.4, Ala. R.Crim. P. Rule 14.4, however, does not require a verbatim record of the proceedings at which a defendant enters a plea of guilty to a misdemeanor for which the defendant will be punished by a sentence of imprisonment. Therefore, the rule set forth in Twyman applies in such eases, and in such cases the requirements of Boykin will be satisfied by either a transcript of the colloquy or an affirmative showing through written documents that the trial court addressed the defendant and determined the voluntariness of the plea. The Court of Criminal Appeals is bound to apply the holding in Twyman when evaluating appeals from guilty-plea convictions for misdemeanors.

In this case, Fleming pleaded guilty to two misdemeanors. As the Court of Criminal Appeals correctly noted, because Fleming was convicted of misdemeanors for which he was sentenced to a term of imprisonment, the trial court was required to address Fleming to determine the voluntariness of his pleas. Fleming, 972 So.2d at 834. The Court of Criminal Appeals held that, because the record did not contain a transcript of the colloquy, Fleming’s convictions must be reversed. The decision of the Court of Criminal Appeals rested upon the reasoning set forth in its decision in Verzone. The defendant in Verzone pleaded guilty to third-degree robbery, a Class C felony. See § 13A-8-43, Ala.Code 1975. Therefore, the facts in Verzone are distinguishable from the facts in this case, and Verzone is inapplicable here.

In accordance with Twyman, the record in this case is sufficient if it contains either a transcript of the colloquy or an affirmative entry or documents in the record showing that the trial court personally addressed Fleming and determined that Fleming entered the guilty pleas voluntarily. Therefore, to the extent that the Court of Criminal Appeals held otherwise, it erred.

A review of the record, however, establishes that although the Court of Criminal Appeals erred in holding that reversal of the trial court’s judgment was required because the record did not contain a transcript of the colloquy, the reversal of the trial court’s judgment is nonetheless proper. The record does not affirmatively establish that the trial court addressed Fleming and determined that Fleming entered his guilty pleas voluntarily. See Boykin, 395 U.S. at 244, 89 S.Ct. 1709 (holding that “there was reversible error ‘because the record does not disclose that the defendant voluntarily and understanding^ entered his pleas of guilty’ ” (quoting Boykin v. State, 281 Ala. 659, 663, 207 So.2d 412, 415 (Ala.1968))). Although the record does contain “Explanation of Rights and Plea of Guilty” forms for the two misdemeanors, which are signed by Fleming, the forms are not signed by the trial court. Therefore, these forms do not establish that the trial court personally addressed Fleming. Additionally, neither the sentencing order nor the entries on the case-action summary indicate that the trial court addressed Fleming and determined that Fleming entered his pleas voluntarily. Therefore, the record does not satisfy the requirements of Boykin and Twyman and is not sufficient to permit appellate review.

Fleming appealed the trial court’s denial of his motion to withdraw his guilty pleas, which was based on his allegation that he did not voluntarily enter his pleas. Although the record need not contain a transcript of the colloquy to establish that Fleming entered his pleas voluntarily, to permit appellate review the record must establish affirmatively that the trial court addressed Fleming and determined that Fleming entered his pleas voluntarily and not as a result of “force, threats, or coercion.” The record before us does not so affirmatively establish; therefore, the Court of Criminal Appeals’ reversal of the judgment of the trial court is correct.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

SEE, WOODALL, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

LYONS, J., concurs in part and concurs in the result.

COBB, C.J., recuses herself.

LYONS, Justice

(concurring in part and concurring in the result).

I concur in all aspects of the main opinion except note 2, as to which I express no opinion.

      . "The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328 [now § 139 et seq., Ala. Const. 1901 (Off.Re-comp.) ]:"

      . Because the State did not ask this Court to overrule Verzone or to address the propriety of the holding in Verzone, that determination must await another day.


author: PER CURIAM.

text:
    Harold A. BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. SC05-1302.
    Supreme Court of Florida.
    Dec. 13, 2007.

      Robert A. Norgard and Andre M. Nor-gard of Norgard and Norgard, Bartow, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Harold Blake appeals his convictions of first-degree murder, attempted armed robbery, and grand theft of a motor vehicle, as well as his sentence of death. He raises three issues: (A) that the trial court erred in denying the motion to suppress his recorded statement; (B) that the trial court erred in failing to advise him of his right to self-representation; and (C) that his death sentence is not proportionate. As explained below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

On the morning of August 12, 2002, Ma-heshkumar “Mike” Patel was shot and killed as he stood inside the glass doors of a convenience store, called Del’s Go Mart, that he owned and operated in Winter Haven, Florida. The store’s video surveillance camera partially captured the shooting. The cause of death was a gunshot wound to the chest.

Witnesses testified that on August 12, 2002, at about 6 a.m., they heard a gunshot and saw a black male run and enter a light-colored car parked in front of the store. A detective found the car abandoned a little over a mile away. A K-9 tracked a scent from the car to a building in the Lake Deer Apartments. At the time, Teresa Jones was living in that complex with her children and her boyfriend, Richard Green.

At about 7:00 or 7:10 that morning, Richard Green, Kevin Key, and Blake came to Teresa’s home. She took Key to a store and Blake to the Scottish Inn, where he was staying. On the way, they stopped by a light-colored car on the side of the road, and Blake removed two guns from it. Blake told Teresa he had shot someone. Blake took the guns with him. Later the same day, Blake told Demetrius Jones that he, Green, and Key were attempting a robbery and someone was shot. Blake asked Demetrius to dispose of a gun, and Demetrius agreed to attempt to sell it. However, Blake did not give Demetrius the gun. At around 6 or 7 p.m. that night, Green gave Demetrius a 9 mm handgun and they attempted to sell it, but no one bought it. Later that night or early the next morning, Green threw the gun in a nearby lake.

On August 14, Detectives Louis Giampa-volo and Ivan Navarro interviewed Richard Green. Green took the officers to the apartment where Blake was located, and Blake was arrested without incident. Blake began talking as soon as Giampavolo and Deputy Sheriff Kenneth Raczynski placed him in Giampávolo’s car. Giampa-volo read Blake his Miranda rights on the way to the station. When they arrived, they placed Blake in an interview room with hidden audio and video equipment. They did not reread his Miranda rights or have him sign a waiver.

Giampavolo , and Raczynski interviewed Blake. Blake said he stole a vehicle and then met Green and an unknown black male. He initially said he sold the car and was not involved with the Patel shooting. Blake then said “all three of us will get charged,” made a statement about the death penalty, and began to cry. He admitted that they went to the store to commit a robbery. Blake said he was in the backseat and had a 9 mm handgun and a .38 caliber revolver. All three of the men got out of the car. Blake had the 9 mm handgun. When Patel made a sudden movement and tried to lock the door, Blake shot him. Giampavolo then asked Blake to give an audiotaped statement. Blake did not agree to taping the statement, but said he would detail the events one more time. The officers decided to videotape the statement anyway.

As seen on the videotape, Blake said he stole a car and picked up Richard Green, who was with an unknown male. Green drove to the store. The men walked up to the door of the store. Blake carried a gun with his finger on the trigger. As they approached, Patel scared him and Blake shot him with the ,9 mm handgun. Blake claimed that it was an accident, however— it was intended to be a warning shot. Blake acknowledged he had been treated well and that Giampavolo had read him his rights in the car.

Blake was indicted for first-degree murder, attempted armed robbery, and grand theft of an automobile. At trial, he testified in his own defense. He admitted that he stole the car, but claimed that when the trio arrived at the store, he stayed in the car and heard gunshots. He claimed the entire incident was against his will.

The jury found Blake guilty of first-degree murder, attempted robbery (with a finding that he discharged a firearm resulting in death), and grand theft of a motor vehicle. At the penalty phase, the jury unanimously recommended that he be sentenced to death. After a Spencer hearing, the trial court followed the jury’s recommendation, finding three aggravating factors: (1) previous conviction of another capital felony or of a felony involving the threat of violence to the person — first-degree murder and attempted robbery with a firearm (great weight); (2) commission by a person previously convicted of a felony and under sentence of imprisonment, or placed on community control, or on felony probation (some weight); and (3) commission while the defendant was engaged in an attempt to commit the crime of armed robbery (merged with commission for financial gain) (moderate weight). The court found one statutory mitigator— age of the defendant at the time of the offense (moderate weight) — and seven nonstatutory mitigators: (1) appropriate courtroom behavior (some weight); (2) never displayed violence in the presence of his family, was a good son, and formed a loving relationship with his family (moderate weight); (3) remorseful for his conduct (some weight); (4) cooperated with the deputies at the time of arrest (some weight); (5) the co-participant Richard Green was sentenced to life imprisonment (very little weight); (6) no prior violent felony convictions, except the capital felony committed two weeks prior to the death of Patel (little weight); and (7) adjustment to confinement and institutional living and no danger to the community at large if incarcerated for life (some weight). This appeal followed.

II. DISCUSSION OF LAW

Blake raises three issues: (A) that the trial court erred in denying the motion to suppress his recorded statement; (B) that the trial court erred in failing to advise him of his right to self-representation; and (C) that his death sentence is not proportionate. We address these issues below, as well as (D) sufficiency of the evidence.

A. Admissibility of the Videotaped Statement

Blake first argues that the trial court erred in denying his motion to suppress his recorded statement. The relevant facts are undisputed. Blake acknowledges that he “made two statements to law enforcement after his arrest, the second of which was video tape recorded,” and that “[i]n the videorecording Mr. Blake provided essentially the same factual recitation of the incident.” The State agrees that Blake’s statement was recorded secretly after he refused to give a taped statement.

Blake argues that by asking him to agree to a taped statement, the detective implicitly promised that his refusal would be honored, rendering the recording involuntary. Therefore, the trial court should have granted his motion to suppress his videotaped statement. In reviewing the trial court’s ruling on a motion to suppress, we accord a presumption of correctness to the determination of historical facts, but “independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” Nelson v. State, 850 So.2d 514, 521 (Fla.2003) (quoting Connor v. State, 803 So.2d 598, 608 (Fla.2001)).

Many courts have held it permissible to record a confession without the defendant’s knowledge or consent. See, e.g., Lester v. Wilson, 363 F.2d 824, 826 (9th Cir.1966) (“[P]olice secrecy and deception in obtaining a tape recording of incriminating statements, unassociated with a right to counsel problem or other circumstance which would render such statements inadmissible, do not present a constitutional violation.”); Bell v. State, 802 So.2d 485, 485 (Fla. 3d DCA 2001) (rejecting a claim that a videotaped statement must be suppressed because the defendant was not aware that his statement was being videotaped); Davis v. State, 271 Ga. 527, 520 S.E.2d 218, 219 (1999) (finding that the failure to inform defendant that his statement was being videotaped did not render the statement involuntary); State v. Wilson, 755 S.W.2d 707, 709 (Mo.Ct.App.1988) (“Secret recordation of in-custody questioning of an accused, standing alone, is not unconstitutional.”). Therefore, Blake acknowledges that the detectives could have simply recorded the statement without his consent. Nevertheless, he argues that because the detective asked him for permission and he refused, the videotaped confession was a result of an implied promise that it would not be taped.

This is a question of first impression in this Court. In fact, our research has revealed only two cases addressing this issue: Woods v. McDonough, No. 8:03-CV2336-T-27MAP, 2007 WL 1017666 (M.D.Fla. Mar.30, 2007), a recent case from the United States District Court for the Middle District of Florida; and Wilson, 755 S.W.2d at 709, a Missouri appellate court case. Although it involved an audio rather than a video recording, the circumstances in Woods are nearly identical to those here. In that case, the defendant gave oral post -Miranda statements regarding his involvement in the crime. Woods, 2007 WL 1017666, at *9. A detective asked if he would give a taped statement, but the defendant said he preferred that it not be taped. Id. at *7. Another detective nevertheless recorded the defendant’s statement secretly with a small hand-held recorder. Id. The recorded portion of the interview was a summary of what the defendant already had told detectives. Id. Rejecting essentially the same argument made here, the federal district court found that the Florida trial court properly denied the defendant’s postcon-viction claim:

At best, Petitioner alleges that he thought the detective’s acceptance of his negative response when asked to give a recorded statement was an “implied promise” not to record the remainder of the interview. Standing alone, this is not sufficient to rise to the level of inducement or coercion warranting suppression of .the taped interview.... Having knowingly and voluntarily waived his Fifth Amendment rights, and having agreed to the interview, Petitioner was not in a position to . dictate the manner in which the detectives memorialized his statements.

Id. at *9. Similarly, in Wilson, the defendant argued that his confession was involuntary because an officer told him the interrogation was not being recorded when in fact it was. 755 S.W.2d at 709. A Missouri appellate court rejected the claim, stating, ‘We do not find this brand of trickery so offensive as to render defendant’s confession involuntary.” Id. at 709. For the reasons explained below, we likewise reject this claim.

In Florida, “[i]t is well established that a confession cannot be obtained through direct or implied promises. In order for a confession to be voluntary, the totality of the circumstances must indicate that such confession is the result of free and rational choice.” Johnson v. State, 696 So.2d 326, 329 (Fla.1997). “[PJolice misrepresentations alone do not necessarily render a confession involuntary.” Fitzpatrick v. State, 900 So.2d 495, 511 (Fla.2005). “[T]o establish that a statement is involuntary, there must be a finding of coercive police conduct.” Schoenwetter v. State, 931 So.2d 857, 867 (Fla.), cert, denied,. — U.S. - — , 127 S.Ct. 587, 166 L.Ed.2d 437 (2006); see also Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (“We hold that coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”). “[T]he salient consideration in an analysis of the voluntariness of a confession is whether a defendant’s free will has been overcome.” Black v. State, 630 So.2d 609, 614-15 (Fla. 1st DCA 1993).

For example, confessions induced by promises not to prosecute or promises of leniency may render a confession involuntary. -See, e.g., Samuel v. State, 898 So.2d 233, 237 (Fla. 4th DCA 2005) (finding a promise not to prosecute other fictional crimes rendered confession involuntary); Walker v. State, 771 So.2d 573, 575 (Fla. 1st DCA 2000) (“Where there is an express quid pro quo, i.e., a promise of protection from prosecution for cooperation, the promise of leniency alone is sufficient to render a confession or inculpatory statement involuntary”); see also Brewer v. State, 386 So.2d 232, 235 (Fla.1980) (finding a confession involuntary where the officers “raised the spectre of the electric chair, suggested that they had the power to effect leniency, and suggested to the appellant that he would not be given a fair trial.”). Similarly, a confession made in return for a promise of release is involuntary. See Brockelbank v. State, 407 So.2d 368, 369 (Fla. 2d DCA 1981). However, not all police statements that arguably could be considered “promises” render a confession involuntary. For example, “[t]he fact that a police officer agrees to make one’s cooperation known to prosecuting authorities and to the court does not render a confession involuntary.” Maqueira v. State, 588 So.2d 221, 223 (Fla.1991). Similarly, “a confession is not rendered inadmissible because the police tell the accused that it would be easier on him if he told the truth.” Bush v. State, 461 So.2d 936, 939 (Fla.1984).

Further, a promise alone is not sufficient to render a confession involuntary. There must also be a causal connection between the police conduct and the confession. See, e.g., Connelly, 479 U.S. at 164, 107 S.Ct. 515 (“Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”). Before finding the confession inadmissible, Florida courts have repeatedly required that the alleged promise “induce,” be “in return for,” or be a “quid pro quo”, for the confession. See, e.g., Bruno v. State, 574 So.2d 76, 79-80 (Fla.1991) (“Statements suggesting leniency are only objectionable if they establish an express quid pro quo bargain for the confession.”); Evans v. State, 911 So.2d 796, 800 (Fla. 1st DCA 2005) (finding admissible a confession following a statement that the agent was not there to arrest the defendant because the “statement was not made with an intent to deceive” or “to induce a confession” and “was not the cause of the defendant’s eventual confession” where there was “no quid pro quo for the alleged promise”); Green v. State, 878 So.2d 382, 385 (Fla. 1st DCA 2003) (“The comments here never rose to the level of an express quid pro quo bargain in return for appellant’s confession.”).

Even if, as Blake argues, the request to tape was an implied promise not to tape without his permission, the totality of the circumstances do not suggest that the request constituted coercive police activity or that Blake’s free will had been overcome. Before giving his initial statement — which he concedes is “essentially the same factual recitation of the incident” reflected on the video — Blake was read his Miranda rights. Asking for consent to tape a subsequent recitation of the same facts is not coercive or outrageous police conduct. While it would have been better to obtain a written waiver of his Miranda rights, see Traylor v. State, 596 So.2d 957, 966 (Fla.1992) (recognizing that “where reasonably practical, prudence suggests” a Miranda waiver should be in writing), Blake acknowledges on the video that he had been read his Miranda rights. Further, a review of the videotape reveals nothing in the demeanor of either Blake or of the detectives that suggests coercive conduct. Blake acknowledged that he had been treated well and that he told the truth because it was the right thing to do.

Finally, we find no causal connection between the request to tape and the confession. Again, Blake already had confessed. Although he declined to have his statement recorded, he agreed to repeat the statement to the detectives knowing that the detectives would be able to testify about it. In fact, Blake testified at trial, “I kn[e]w if I did get charged with anything it was my word against theirs.” Therefore, the request to tape did not overcome Blake’s will and induce his confession. For these reasons, we reject Blake’s claim.

B. Trial Court’s Failure to Advise of the Right to Self-Representation

Blake next argues the trial court erred in failing to advise him of his right to self-representation. We reject this claim as well.

Blake filed two pro se motions to dismiss counsel and appoint new counsel. He withdrew the first motion. The second motion alleged that counsel ignored his requests to interview witnesses and sound advice, that counsel was unwilling to pursue an “adversarial role,” and that Blake lacked confidence in counsel. At a hearing on the motion, the judge asked Blake and defense counsel about the grounds alleged. He took the motion under advisement, indicating a written order would follow. The issue of self-representation did not arise. The next day, the court denied the motion “without prejudice to re-file the motion if new grounds become available.”

Blake does not challenge the trial court’s denial of the motion. Instead, he argues that Nelson v. State, 274 So.2d 256, 259 (Fla. 4th DCA 1973), cited with approval in Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988), required the trial court, after denying the motion, to inform the defendant of his right to self-representation. We reject this claim.

A motion to discharge counsel does not automatically require a Faretta inquiry or notice of the right to self-representation. State .v. Craft, 685 So.2d 1292, 1295 (Fla.1996) (holding that Nelson and Hardwick do not require the trial court to inform a defendant of the right to self-representation after the denial of a motion to discharge counsel based on incompetence). A Faretta inquiry is triggered only by an “unequivocal assertion of the right to self-representation.” Craft, 685 So.2d at 1295; see also Gamble v. Sec’y, Fla. Dep’t of Corr., 450 F.3d 1245, 1249 (11th Cir. 2006) (“[I]n order for there to be a Faretta violation, the defendant must have indicated that he wishes to conduct his own defense.”), cert, denied, — U.S. -, 127 S.Ct. 510, 166 L.Ed.2d 381 (2006). Blake did not at any time indicate a desire to represent himself. Therefore, the trial court was not required to inform Blake of his right to self-representation or to conduct a Faretta inquiry.

Blake’s claim that the trial judge erred in failing to make his findings on the record is likewise without merit. Blake apparently interprets the phrase “[i]f no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record,” Nelson, 274 So.2d at 259 (emphasis added), as requiring an oral pronouncement from the bench. Here, the trial court took the motion under advisement and the next day entered a written order denying the motion. A written order is a ruling “on the record.” Blake has not cited any cases requiring an oral ruling from the bench. For these reasons, we affirm.

C. Proportionality

In his final claim, Blake argues that his death sentence is disproportionate. “Proportionality review is not simply a comparison between the number of aggravating and mitigating circumstances. This Court’s function in a proportionality review is not to reweigh the mitigating factors against the aggravating factors; that is the function of the trial judge.” Connor, 803 So.2d at 612 (citation omitted). Instead, we consider the totality of the circumstances and compare them to similar capital cases where a death sentence was imposed. Id. We find Blake’s death sentence proportional.

The trial court followed the jury’s unanimous death recommendation and sentenced Blake to death for the first-degree murder of Mike Patel, finding three aggra-vators: (1) prior violent felony (great weight); (2) commission while on felony probation (some weight); and (3) commission during the course of an armed robbery merged with commission for financial gain (moderate weight). The trial court found one statutory mitigator — -age of the defendant at the time of the offense (“almost 23”) (moderate weight), and seven nonstatutory mitigators.

Blake does not argue that the trial court improperly found any of the aggravators, but argues that consideration of the facts underlying the factors makes them less serious. To the extent Blake is challenging the weight the trial court assigned to the aggravators, we review for an abuse of discretion. E.g., Buzia v. State, 926 So.2d 1203, 1216 (Fla.), cert, denied, — U.S. -, 127 S.Ct. 184, 166 L.Ed.2d 129 (2006). We affirm the weight given an aggravator if based on competent substantial evidence. Id.

The first aggravating factor — pri- or violent felony — is supported by Blake’s previous conviction for first-degree murder and attempted robbery with a firearm arising out of the shooting death of Kelvin Young. The jury in that case found that Blake “personally possessed a firearm,” but did not find that he “personally discharged a firearm resulting in death.” Like the murder of Patel, Young’s murder occurred during the course of an attempted robbery with a firearm. The two men were killed with the same gun less than two weeks apart. Blake’s willingness to rob Patel less than two weeks after his participation in an attempted robbery resulting in the death of Young, using the same firearm that killed Young, undermines his argument that the prior violent felony aggravator is “less significant.” The weight given this aggravator is supported by competent, substantial evidence, and trial court did not abuse its discretion in assigning great weight to the prior violent felony conviction.

At oral argument, Blake’s counsel argued that in establishing the prior violent felony aggravator, the State improperly suggested that Blake shot Young, contrary to the jury’s verdict in that case. To the extent the State suggested that Blake could have been Young’s shooter, we certainly do not condone such conduct. However, defense counsel did not object to the evidence presented below and did not raise this issue in his briefs on appeal. Moreover, any error is not fundamental.

We further find that any inappropriate suggestion that Blake was the shooter in the prior murder was adequately rebutted in several ways. First, the jury’s verdict in the prior case was attached to the judgment and sentence the State itself introduced in evidence during the penalty phase. Second, defense counsel repeatedly pointed to the verdict and noted that the jury found Blake did not discharge the firearm. Thus, the jury in this case was clearly informed of the verdict in Blake’s trial for the first-degree murder and attempted robbery of Young. Finally, the trial judge expressly stated in the sentencing order that the jury in the former case found that Blake did not personally discharge the firearm. Therefore, we are confident that any inappropriate suggestion that Blake could have been the shooter in that case did not affect the jury’s recommendation.

The second aggravating factor, commission while on felony probation, is based on evidence that at the time of the murder Blake was on probation for four felony offenses — three involving driving while license suspended and one involving grand theft of an automobile and driving with license suspended. Blake argues that this case is “distinguishable from those defendants who are on supervision from prior prison sentences or for violent offenses against persons.” While it is true that none of Blake’s prior offenses involved violence, it is also true that section 921.141(5)(a) does not require violence for this aggravator to apply. See § 921.141(5)(a), Fla. Stat. (2002) (“The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.”). The trial court gave this aggra-vator only “some weight.” Competent, substantial evidence supports the weight given.

The final aggravating factor was that the crime was committed while Blake was attempting to commit armed robbery, which was merged with the financial gain aggravator. The trial court gave this ag-gravator moderate weight. Blake argues that this aggravator will be found in every case of a robbery resulting in death. To the extent he argues that this is an automatic aggravator where a person is convicted of felony murder, we have repeatedly rejected that argument. See, e.g., Dufour v. State, 905 So.2d 42, 69 (Fla.2005) (“This Court has repeatedly rejected the argument that the murder in the course of a felony aggravator is an unconstitutional automatic aggravator.”).

Blake also argues that this was not a violent confrontation. Indeed, the surveillance video shows that the shooting happened quickly and the victim was shot through the glass door. However, Patel was shot and killed. Therefore, the encounter was necessarily violent. The trial court did not abuse its discretion in assigning this aggravator moderate weight.

Blake also argues that his sentence is disproportionate because the shooting was the result of a “robbery gone bad.” He argues this case is like Urbin v. State, 714 So.2d 411 (Fla.1998), Livingston v. State, 565' So.2d 1288 (Fla.1988), and Terry v. State, 668 So.2d 954 (Fla.1996) — all robbery-murder cases where we have reversed death sentences on proportionality grounds. For the reasons explained below, we disagree.

This case is unlike Urbin and Livingston. First, the defendants in both of those cases were minors at the time of the murders. See Urbin, 714 So.2d at 417 (comparing Urbin to Livingston and finding “the fact that both Urbin and Livingston were seventeen years old at the time of the murders to be particularly compelling”). Blake, on the other hand, was almost 23 years old. See Shellito v. State, 701 So.2d 837, 845 (Fla.1997) (distinguishing Livingston where the defendant was 19 years old); Mendoza v. State, 700 So.2d 670, 679 (Fla.1997) (distinguishing Livingston where the defendant was 25 years old). In addition, both Urbin and Livingston involved two aggravators and relatively strong mitigation. See Urbin, 714 So.2d at 418 (finding the death sentence disproportionate where it was supported by two aggravators — prior violent felony and commission during the course of a robbery/pecuniary gain — and strong mitigation,' including age, substantial impairment of the capacity to appreciate the criminality of conduct, and parental abuse and neglect); Livingston, 565 So.2d at 1292 (finding the death sentence disproportionate where it was supported by two aggravators — prior violent felony and commission during an armed robbery — and “several mitigating factors,” including the defendant’s age (17), severe childhood beatings and neglect, marginal intellectual functioning, and extensive use of cocaine). Here, the trial court found three aggravators and only weak mitigation. For these reasons, Urbin and Livingston are' not comparable.

This case is also unlike Terry, 668 So.2d 954. In Terry, the defendant was sentenced to death in connection with a robbery-murder at a gas station. 668 So.2d at 957. The trial court found two aggrava-tors: prior violent felony and capital felony committed during the course of an armed robbery/pecuniary gain. Id. at 965. The trial court rejected the defendant’s age (21) as a statutory mitigator and also rejected the “minimal nonstatutory mitigation.” Id. We found Terry to be like other “robbery-murder cases” (citing Sinclair v. State, 657 So.2d 1138 (Fla.1995), and Thompson v. State, 647 So.2d 824 (Fla.1994)) where we had vacated death sentences. Terry, 668 So.2d at 966.

However, this case involves the same two aggravators at issue in Terry, plus an additional felony probation aggravator. More importantly, the prior violent felony in Terry was a contemporaneous conviction for acting as a principal to the aggravated assault committed by the codefen-dant. See Terry, 668 So.2d at 965-66 (“While this contemporaneous conviction qualifies as a prior violent felony and a separate aggravator, we cannot ignore the fact that it occurred at the same time, was committed by a codefendant, and involved the threat of violence with an inoperable gun.”). Blake’s prior violent felony conviction is for first-degree murder in connection with a separate attempted robbery with a firearm. We rejected a similar claim in Mendoza, 700 So.2d at 679:

In Terry and Jackson [v. State, 575 So.2d 181 (Fla.1991)], ... the trial court found two aggravating circumstances and no mitigating circumstances in imposing the death penalty. In both of those cases, we vacated the death sentences on proportionality grounds. However, in Terry and Jackson, the trial courts based prior-violent-felony aggravating circumstances upon armed robberies which were contemporaneous with the murders. By contrast, the trial court in this case based the prior-violent-felony circumstance upon appellant’s previous armed robbery conviction.... Thus, appellant’s prior conviction of an entirely separate violent crime differs from the aggravation found in Terry and Jackson.

Blake’s death sentence is likewise not comparable to that vacated in Terry.

Blake also suggests that death is not proportional because the trial court did not find the heinous, atrocious, or cruel (HAC) or cold, calculated, and premeditated (CCP) aggravators. The absence of these aggravators is relevant, but is not controlling. See Larkins v. State, 739 So.2d 90, 95 (Fla.1999). We have upheld many death sentences where neither HAC nor CCP was present. See, e.g., Bryant v. State, 785 So.2d 422, 436-37 (Fla.2001); Mendoza, 700 So.2d at 673; Melton v. State, 638 So.2d 927, 928 (Fla.1994); Freeman v. State, 563 So.2d 73, 75 (Fla.1990); Carter v. State, 576 So.2d 1291, 1293 (Fla.1989).

We conclude that Blake’s sentence is proportional to other death sentences this Court has upheld. See, e.g., Bryant, 785 So.2d at 436-37 (citing Mendoza, 700 So.2d at 673, in rejecting a “robbery gone awry” argument where the trial court found three aggravators: (1) prior violent felony — sexual battery, grand theft, robbery with a weapon, and aggravated assault with a mask; (2) commission during a robbery; and (3) avoid arrest); Mendoza, 700 So.2d at 679 (rejecting a “robbery gone awry” argument where the trial court found two aggravators: a prior violent felony — armed robbery in connection with a separate case — and commission during a robbery); Melton, 638 So.2d at 930 (upholding a death sentence in connection with a robbery-murder, where the sentence was supported by two aggravators, including prior first-degree murder and robbery convictions); Carter, 576 So.2d at 1293 (rejecting a “robbery gone bad” argument where the trial court found three aggravators: (1) under sentence of imprisonment; (2) prior violent felonies — armed robbery and murder; and (3) commission during a robbery); Freeman, 563 So.2d at 75 (upholding a death sentence supported by two aggravators — prior convictions for first-degree murder, armed robbery, and burglary of a dwelling with assault, all committed three weeks prior — and commission during a burglary and commission for pecuniary gain (merged)).

Finally, Blake argues that his death sentence is disproportionate because Richard Green, who was convicted as a principal, received a life sentence. “In cases where more than one defendant is involved, the Court performs an additional analysis of relative culpability guided by the principle that ‘equally culpable co-defendants should be treated alike in capital sentencing and receive equal punishment.’ ” Brooks v. State, 918 So.2d 181, 208 (Fla.2005) (quoting Shere v. Moore, 830 So.2d 56, 60 (Fla.2002)). We have rejected relative culpability arguments where the defendant sentenced to death was the “triggerman.” See, e.g., Ventura v. State, 794 So.2d 553, 571 (Fla.2001) (finding codefendants not equally culpable where a codefendant hired Ventura to kill the victim, but Ventu-ra was the triggerman); Downs v. State, 572 So.2d 895, 901 (Fla.1990) (“[Evidence in the record supports the trial court’s conclusion that Downs was the triggerman and thus was more culpable than Johnson.”). Blake admitted he shot Patel. The jury specifically found that Blake “personally discharged a firearm resulting in death.” Therefore, we reject Blake’s relative culpability argument.

D. Sufficiency of the Evidence

Blake does not contest the sufficiency of the evidence at trial, but we have an independent obligation to review the record for sufficiency of the evidence. See Fla. R.App. P. 9.142(a)(6); Rodgers v. State, 948 So.2d 655, 673-74 (Fla.2006), cert, denied, — U.S.-, 128 S.Ct. 59, 169 L.Ed.2d 50 (2007). The jury found Blake guilty of first-degree murder on a general verdict form. “A general guilty verdict rendered by a jury instructed on both first-degree murder alternatives may be upheld on appeal where the evidence is sufficient to establish either felony murder or premeditation.” Crain v. State, 894 So.2d 59, 73 (Fla.2004). The evidence in this case is detailed above. Upon review, we find competent, substantial evidence to support Blake’s first-degree felony murder conviction. The evidence showed that Blake admitted that the men went to the store to commit a robbery. He further admitted that he took a 9 mm handgun to the front of the store, Patel scared him, and he shot Patel. His confession is consistent with evidence that Patel was killed by a bullet from a 9 mm handgun recovered from a nearby lake.

III. CONCLUSION

Based on the foregoing, we affirm Blake’s convictions and sentence of death.

It is so ordered.

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

      . Teresa Jones is not related to Demetrius Jones. To avoid contusion, we refer to both by their first names.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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

      . Blake made various arguments below about the voluntariness of his confession, and also claimed that the officers did not read him his Miranda rights. The trial court found that he was read his Miranda rights, and also found "no evidence of coercion or promise.” Blake has not challenged these findings on appeal, nor has he raised any other claims concerning his confession.

      . Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).