source: Caselaw Access Project

author: WINDOM, Judge.

license: Public Domain

text:
    Jason Michael GREEN v. STATE of Alabama.
    CR-08-0352.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.
    Rehearing Denied July 23, 2010.
    Certiorari Denied Oct. 8, 2010 Alabama Supreme Court 1091507.

      Jeffery C. Duffey, Montgomery; and Susan Graham James, Montgomery, for appellant.
    Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.

      . Retired Associate Justice Hugh Maddox was appointed on January 15, 2010, to be a Special Judge in regard to this appeal. See § 12-3-17, Ala.Code 1975.

   WINDOM, Judge.

Jason Michael Green appeals his convictions for three counts of second-degree arson, violations of § 13A-7-42, Ala. Code 1975, and one count of second-degree theft of property, a violation of § 13A-8-4, Ala. Code 1975.

A Montgomery County grand jury issued an indictment charging Green with six counts of second-degree arson and one count of second-degree theft of property. Count I charged Green with second-degree arson for a fire that burned a barn belonging to John McNeil (“the McNeil arson”). Count II charged Green with second-degree arson for a fire that burned a mobile home belonging to Henry Pickett (“the Pickett arson”). Count III charged Green with second-degree arson for a fire that burned part of a house belonging to Marietta Russell (“the Russell arson”). Count IV charged Green with second-degree theft of property for the theft of two shotguns and a camera from a house belonging to Wayne and Joanne Currie (“the Currie theft”). Count V charged Green with second-degree arson for a fire that burned property belonging to Mike Darnell (“the Darnell arson”). Count VI charged Green with second-degree arson for a fire that burned property belonging to Reggie Du-bose (“the Dubose arson”). Count VII charged Green with second-degree arson for a fire that burned a house belonging to Wayne and Joanne Currie (“the Currie arson”).

After hearing all of the evidence and being instructed by the circuit court on the applicable law, the jury found Green guilty on the following four counts: 1) count I, the McNeil arson; 2) count III, the Russell arson; 3) count IV, the Currie theft; and 4) count VII, the Currie arson. The circuit court sentenced Green to concurrent terms of: 3 years in prison for McNeil arson (count I); 20 years in prison for the Russell arson (count III); 10 years in prison for the Currie theft (count IV); and 20 years in prison for the Currie arson (count VII).

At trial, the State’s evidence tended to establish that on June 1, 2005, Green, Patrick Brassell, and Jason Wilhite attended a meeting for Pike Road volunteer firefighters at the fire station located on Wallahat-chee Road. Each of these men was a volunteer firefighter for the Pike Road Volunteer Fire Department. According to Wilhite and Brassell, after this meeting, Green suggested they set a fire because there had not been many recent fires. (R. 130-31, 170.) Green, Wilhite, and Brassell then rode in Green’s truck to John McNeil’s barn, which was located on Wal-lahatchee Road. When they arrived at the barn, Wilhite and Green got out of the truck and entered the barn. So that no one would see Green’s truck at the barn, Brassell got into the driver’s seat and drove down the road. Once inside the barn, Green placed a bottle containing flammable liquid under some hay and ignited it. (R. 132-33.)

After the barn was ablaze, Brassell returned and picked up Green and Wilhite. The three men then drove back to the fire station where they each departed in their own vehicles. Shortly after leaving, the three men received an alarm call regarding the fire at the barn and returned to the fire station to help fight the fire. (R. 133— 36.) The firefighters, however, were not able to extinguish the fire, and the barn was a total loss.

On November 16, 2006, Green and Justin Gorman, another volunteer fireman, were at the Pike Road fire station. The two men decided to go across the street to Joanne Currie’s house at 3504 Wallahat-chee Road and set it on fire. According to Gorman, the two broke in the front door and entered the house. While in the house, Gorman stole two guns and Green stole a camera. (R. 263-64.) Thereafter, Green used gas and candle oil that he found on the Curries’ back porch to set the Curries’ bedroom on fee. (R. 263, 298, 311-14.) After setting the Currie house on fee, Green and Gorman left with the Curries’ two shotguns and camera.

Later that morning, Joanne Currie received a telephone call from a real estate agent informing her that her house was on fee. Currie and her husband, who were 55 miles away at the time, drove to their house and found “fire trucks everywhere.” (R. 234.) Currie described the state of her house after the fire as “a total disaster.” (R. 235.) While examining the fire damage, Currie noticed that her front door had been kicked in and that two shotguns and a camera were missing. (R. 231-35, 238, 245^49.) Subsequently, while executing a search warrant, law-enforcement officers recovered the Curries’ camera from inside Green’s truck. At trial, Mrs. Currie testified that the camera seized from Green’s truck belonged to her. Further, the camera seized from Green’s truck contained pictures of the Currie family. (R. 249-51.)

Mrs. Currie also testified that she kept a gas can and a bottle of candle oil on her back porch. After the fire, fire and insurance investigators came to the house to examine the damage. At some point during the investigation, Green arrived and went directly to the bedroom and retrieved the gas can and candle-oil bottle. Green then gave those items to the investigators. (R. 311-14.)

On November 30, 2006, two weeks after the Currie fire, Green and Gorman went to a vacant house that Marietta Russell inherited from her mother, which was located at 4107 Old Pike Road. (R. 207, 209, 267.) Once there, Green and Gorman broke down the back door and entered the house. They then got a couch from one of the front rooms and moved it into a bedroom. At that point, they poured lantern oil on the couch and set it on fire. After setting the couch on fee, Green and Gor-man went back to the fire station and “waited for the call to come in.” (R. 267.) When the fire call came in, the two responded to the fee.

Later that day, Mrs. Russell received a call from a neighbor informing her that her mother’s house was on fire. (R. 208.) Although the house had been vacant since her mother’s death, Russell and her sister checked on it daily to make sure the doors were locked and everything was secure. (R. 208.) Upon learning that her childhood house was burning, Russell immediately drove to the house, where she found the City of Montgomery Fire Department and the Pike Road Volunteer Fire Department fighting the fire. (R. 209.) According to Mrs. Russell, the couch from the living room had been moved into the bedroom, a flammable liquid had been poured over it, and it had been set on fire. (R. 212.)

I.

On appeal, Green first argues that the circuit court erred in denying his motion to suppress evidence in the form of the Curries’ camera, which law-enforcement officers found in his truck while executing a search warrant. Specifically, he argues that the stolen camera should have been suppressed because it was not listed in the search warrant as an item to be seized; therefore, the warrant failed to satisfy the particularity requirement contained in the Fourth Amendment to the United States Constitution.

The purpose of the Fourth Amendment particularity requirement is to prevent “[gjeneral exploratory searches.” Palmer v. State, 426 So.2d 950, 952 (Ala.Crim.App.1983). “General exploratory searches and seizures, with or without a warrant, can never be justified and are forbidden and condemned.” Id. (citing Matron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). In Ex parte Jenkins, 26 So.3d 464, 474 (Ala.2009), the Alabama Supreme Court explained that “the requirements of particularity [of a search warrant] are met if the substance to be seized is described with reasonable particularity which, in turn, is to be evaluated in light of the rules of practicality, necessity, and common sense.” (internal citations and quotations omitted).

Here, the search warrant authorized the officers to search for and to lawfully seize “weapons and any and all illegal items or substances used in the commission of burglary, theft, arson or any other felonies or proceeds thereof.” (C. 73.) (Emphasis added.) The search warrant also defined the area to be searched “to encompass the main building, any vehicles, storage buildings, and curtilage located at 47 Honeysuckle Lane, Cecil, Alabama, 36103.” (C. 73.) (Emphasis added.) The stolen camera clearly was a proceed of Green’s illegal activity, i.e., the theft from the Curries. Because the officers discovered the camera in the course of conducting a search pursuant to a valid warrant that adequately described with reasonable particularity what was being sought, the circuit court did not abuse its discretion in denying Green’s motion to suppress the camera.

Moreover, even if one were to presume that the warrant was insufficiently particular as to the camera, the circuit court’s denial of Green’s motion to suppress was proper under the plain-view doctrine. “The plain-view seizure of the items not listed in a search warrant is justified where the officer’s intrusion into the residence is pursuant to a valid search warrant and the item seized is of an incriminating nature.” Rowe v. State, 662 So.2d 1227, 1229 (Ala.Crim.App.1995) (internal citations and quotations omitted). When the police, while conducting a lawful search under a warrant, find evidence of another offense not related to the crime for which the warrant was issued, they may lawfully seize that evidence under the plain-view doctrine. Zumbado v. State, 615 So.2d 1223, 1239 (Ala.Crim.App.1993); Baty v. State, 401 So.2d 308, 310 (Ala.Crim.App.1981).

Here, before the search warrant was executed, Gorman told Investigator Griffith about the camera he and Green had stolen. (R. 55.) Later, while executing the warrant, Investigator Griffith lawfully entered Green’s truck pursuant to the warrant. (R. 56.) Inside the truck, Investigator Griffith discovered the camera that Gorman had described to her earlier. (R. 53-57.)

Because Investigator Griffith was legally in Green’s truck pursuant to a search warrant when she discovered the camera, which she knew to be stolen property based on Gorman’s description, the circuit court did not abuse its discretion by allowing the camera to be admitted at trial under the plain-view doctrine. Therefore, this issue does not entitle Green to any relief.

II.

Green next argues that the circuit court erred in denying his motion for a judgment of acquittal. Specifically, Green argues that the State failed to present evidence corroborating the testimony of his accomplices; therefore, there was insufficient evidence to sustain his convictions.

Initially, this Court notes that “ ‘[i]n determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998) (quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985)). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997) (quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992)). “‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998) (quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990)). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Further, pursuant to § 12-21-222, Ala.Code 1975, a felony conviction “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.” “ ‘The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense.’” Ex parte Bullock, 770 So.2d 1062, 1067 (Ala.2000) (quoting Andrews v. State, 370 So.2d 320, 321 (Ala.Crim.App.1979), citing in turn Miller v. State, 290 Ala. 248, 275 So.2d 675, 677 (1973)).

“The term ‘corroborate,’ when used in this connection, has been said to mean, in its legal significance, to strengthen, not necessarily the proof of any specific fact as to which the accomplice has testified, but the probative, criminating force of his or her testimony.” 23 C.J.S. Criminal Law § 1364 (2006) (footnotes omitted). See also Kuenzel v. State, 577 So.2d 474, 518 (Ala.Crim.App.1990) (defining corroborate as “to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminat-ing force of his testimony”) (citations and quotations omitted). “While corroborating evidence need not be strong, it ‘... must be of substantive character, must be inconsistent with the innocence of a defendant and must do more than raise a suspicion of guilt.’ ” Booker v. State, 477 So.2d 1388, 1390 (Ala.Crim.App.1985) (quoting McCoy v. State, 397 So.2d 577 (Ala.Crim.App.1981)). See also McGowan v. State, 990 So.2d 931, 987 (Ala.Crim.App.2003) (explaining that although evidence corroborating an accomplice’s testimony need only be slight, it must tend to connect the defendant to the crime and be inconsistent with innocence). Although the corroboration must tend to connect the defendant to the crime, it “need not be sufficiently strong by itself to warrant a conviction.” Miles v. State, 476 So.2d 1228, 1234 (Ala.Crim.App.1985). See also Gavin v. State, 891 So.2d 907, 976 (Ala.Crim.App.2003) (explaining that corroborating evidence by itself need not be sufficient to sustain a conviction). Stated differently, “[cjorrobo-rative evidence need not directly connect the accused with the offense but need only tend to do so.” Pace v. State, 904 So.2d 331, 347 (Ala.Crim.App.2003) (quoting Ware v. State, 409 So.2d 886, 891 (Ala.Crim.App.1981), quoting in turn State v. Canada, 107 Ariz. 66, 481 P.2d 859 (1971)). See also Miles, 476 So.2d at 1234 (citing Lambert v. State, 55 Ala.App. 669, 318 So.2d 364 (1975), and Peoples v. State, 56 Ala.App. 290, 321 So.2d 257 (1975)) (“The only requirement is that it tend to connect the accused with the offense.”). Indeed, as this Court has repeatedly explained, accomplice “ ‘[cjorroboration need only be slight to suffice,’” Stoinski v. State, 956 So.2d 1174, 1182 (Ala.Crim.App.2006) (quoting Ingle v. State, 400 So.2d 938, 940 (Ala.Crim.App.1981)), and the plain language of § 12-21-222, Ala.Code 1975, requires only “other evidence tending to connect the defendant with the commission of the offense.... ” (emphasis added).

Additionally, “it is not necessary that the accomplice should be corroborated with respect to every fact as to which he or she testifies, nor is it necessary that corroboration should establish all the elements of the offense.” 23 C.J.S. Criminal Law § 1369 (2006) (footnotes omitted). See also Arthur v. State, 711 So.2d 1031, 1059 (Ala.Crim.App.1996) (citations omitted) (“Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice.”); Ferguson v. State, 814 So.2d 925, 952 (Ala.Crim.App.2000) (same). “If the accomplice is corroborated in part, or as to some material fact or facts tending to connect the accused with the crime, or the commission thereof, this is sufficient to authorize an inference by the jury that he or she has testified truly even with respect to matters as to which he or she has not been corroborated, and thus sustain a conviction.” 23 C.J.S. Criminal Law § 1369 (2006) (footnotes omitted). See also Dykes v. State, 30 Ala.App. 129, 133, 1 So.2d 754, 756-57 (1941) (citations omitted) (explaining that “[i]t has been repeatedly held, and advisedly so, that the corroboration of the testimony of an accomplice need not go to every material fact to which he testifies. If corroborated in some of such facts the jury may believe that he speaks the truth as to all.”). Further, circumstantial evidence may be sufficient to corroborate the testimony of an accomplice. Arthur, 711 So.2d at 1059 (citing Jackson v. State, 451 So.2d 435, 437 (Ala.Crim.App.1984)). See also Steele v. State, 911 So.2d 21, 28 (Ala.Crim.App.2004) (explaining that accomplice testimony may be corroborated by circumstantial evidence).

“Whether such corroborative evidence exists is a question of law to be resolved by the trial court, its probative force and sufficiency being questions for the jury.” Caldwell v. State, 418 So.2d 168, 170 (Ala.Crim.App.1981) (citations omitted). With these principles in mind, this Court turns to Green’s argument that the circuit court erred in submitting the charges to the jury due to a lack of evidence corroborating the accomplices’ testimony.

A.

Reviewing the evidence presented at trial relating to the Currie theft and arson (counts IV and VII), the State presented sufficient evidence corroborating Justin Gorman’s testimony to allow these counts to be submitted to the jury. Excluding Gorman’s testimony, the State presented evidence indicating that on November 16, 2006, individuals broke in the front door and entered the Curries’ house. While in the house, the individuals stole two firearms and a digital camera. During this time, the individuals removed gas and candle oil containers found on the Curries’ back porch and took the containers to the Curries’ bedroom. The individuals then set fire to the gas and candle oil, left the containers in the Curries’ bedroom, and left the house with the stolen property.

Later, after insurance investigators came to the house to examine the damage, Green arrived and went straight to the bedroom, retrieved the gas can and candle-oil bottle, and gave those items the investigators. (R. 311-14.) The fact that Green immediately went to the room where the fire was started and retrieved the accelerant canisters used to start the fire suggests a familiarity with the crime likely reserved for an individual responsible for it. As this Court has held, “[a]n accused’s consciousness of guilt as shown by the evidence may be corroborative.” Jacks v. State, 364 So.2d 397, 405 (Ala.Crim.App.1978). Consciousness of guilt may be inferred from an accused’s actions after the offense and such actions “may be considered as corroborative evidence.” Arthur, 711 So.2d at 1061. See Ballard v. State, 767 So.2d 1123, 1130 (Ala.Crim.App.1999) (“The post-crime conduct of the defendant shows his or her state of mind which has been characterized by our courts as consciousness of guilt, and may be admitted as circumstantial evidence of guilt.”); Jacks, 364 So.2d at 405 (“Additionally, sufficient corroboration of the testimony of an accomplice may be furnished ... by the suspicious conduct of the accused .... ”); 23 C.J.S. Criminal Law § 1380 (2006) (footnotes omitted) (explaining that “[sjufficient corroboration of the testimony of an accomplice to warrant a conviction may be furnished by the suspicious conduct of the accused”). Green’s suspicious conduct during the fire investigation tends to connect him with the Cur-rie theft and arson. See generally, Pace, 904 So.2d at 347.

In addition to Green’s suspicious conduct, a law-enforcement officer found the Curries’ stolen camera in Green’s truck. “The possession by the accused of the fruits of the crime, of itself[,] generally tends to connect him or her with the commission of the crime, and [is] sufficient to satisfy the corroboration requirement for accomplice testimony.” 23 C.J.S. Criminal Law § 1376 (2006) (footnotes omitted); see also Bradley v. State, 450 So.2d 173, 176 (Ala.Crim.App.1983) (holding that a defendant’s possession of the fruits of the crime is sufficient to corroborate an accomplice’s testimony). Further, Green acknowledged that the camera found inside his truck was corroborating evidence for the Currie theft and arson. (R. 362.) Additionally, when law enforcement found the camera, Green falsely stated that the camera belonged to the fire department. Green’s attempt- to conceal from law enforcement the fact that the camera was stolen property also tends to connect him with the Currie arson and theft. See Leonard v. State, 459 So.2d 970, 972 (Ala.Crim.App.1984) (holding that a defendant’s attempt to conceal a crime may corroborate an accomplice’s testimony); 23 C.J.S. Criminal Law § 1377 (2006) (footnotes omitted) (explaining that “[statements made by accused which are contradictory, inconsistent, evasive, or false have been found to be corroborative”).

Based on the foregoing, the State presented evidence corroborating Gorman’s testimony. Evidence establishing Green’s post-crime suspicious conduct, his possession of fruits of the crime, and his attempt to conceal the crime sufficiently connected Green to the Currie theft and arson. Accordingly, the circuit court correctly submitted those charges to the jury.

B.

Next, reviewing the evidence presented at trial relating to the Russell arson (count III), the State also presented sufficient evidence corroborating Gorman’s testimony to allow this charge to be submitted to the jury. The State’s evidence tended to show that the Currie theft and arson and the Russell arson were committed in a similar manner and were part of a common plan or scheme. (R. 100) (arguing that there is a “common vein” throughout all of the crimes, i.e., the fires were set in bedrooms); (R. 318)(the circuit court recognized that all of the crimes were connected).

“[E]vidence corroborating an accomplice’s testimony on one crime charged can be used to provide the required corroboration on other crimes charged where a common plan or scheme is involved.” 23 C.J.S. Criminal Law § 1369 (2006) (footnotes omitted). See People v. Adams, 222 A.D.2d 1093, 1094, 636 N.Y.S.2d 242 (1995) (holding that “evidence corroborating the accomplice’s testimony on one crime charged may be used to provide the required corroboration on other crimes charged [when those crimes are part of] a common plan or scheme”); People v. Mensche 276 A.D.2d 834, 835, 714 N.Y.S.2d 377, 379 (2000) (holding that when there is evidence of a “common plan or scheme with respect to [a] series of [crimes], evidence corroborating an accomplice with respect to one offense is sufficient to provide the required corroboration with respect to the other similar crimes”); People v. Spencer, 272 A.D.2d 682, 684, 708 N.Y.S.2d 488, 491 (2000) (same); People v. Glanda, 5 A.D.3d 945, 952, 774 N.Y.S.2d 576, 582-83 (2004) (same); see also People v. Goldfeld, 60 A.D.2d 1, 400 N.Y.S.2d 229 (1977) (removing the burden of showing corroboration for every count if there is sufficient evidence of a common scheme or plan). “[S]imilarity in the commission of [multiple] crimes in a given locality is itself a circumstance tending to corroborate the testimony of an accomplice.” People v. Blackwell, 257 Cal.App.2d 313, 320-21, 64 Cal.Rptr. 642, 647 (1967) (citing People v. Robinson, 184 Cal.App.2d 69, 77, 7 Cal.Rptr. 202, 207 (1960)). Cf. McConnell v. State, 166 Ga.App. 530, 531-32, 304 S.E.2d 733, 735 (1983) (holding that past crimes may corroborate an accomplice’s testimony regarding a current crime when the modus operandi of the crimes are similar). It is axiomatic that when an individual and an accomplice commit a series of crimes as part of a common scheme or plan, evidence corroborating the accomplice’s testimony regarding one of the offenses “tend[s] to connect the accused with the [other] offense[s],” Miles, 476 So.2d at 1234, that were committed in a similar manner and as part of the common scheme or plan. Cf. Pace, 904 So.2d at 347 (quoting Ware, 409 So.2d at 891, quoting in turn Canada, 107 Ariz. 66, 481 P.2d 859) (holding that “[corroborative evidence need not directly connect the accused with the offense but need only tend to do so”). By presenting evidence corroborating an accomplice’s testimony regarding one crime in a series of crimes that were part of a common scheme or plan, the State has presented circumstantial evidence establishing “some material fact or facts tending to connect the accused with the crime [that are] sufficient to authorize an inference by the jury that [the accomplice] has testified truly even with respect to matters as to which he or she has not been corroborated.... ” 23 C.J.S. Criminal Law § 1369 (2006) (footnotes omitted). See also Dykes, 1 So.2d at 756-57 (explaining that “[i]t has been repeatedly held, and advisedly so, that the corroboration of the testimony of an accomplice need not go to every material fact to which he testifies. If corroborated in some of such facts the jury may believe that he speaks the truth as to all”); Arthur, 711 So.2d at 1059 (citations omitted) (“Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice.”).

Excluding Gorman’s testimony, the evidence presented at trial indicated that the Currie theft, the Currie arson, and Russell arson were committed in a similar manner and were part of a common scheme or plan. The State presented evidence indicating that Green’s motive for starting the fires was his desire, as a fireman, to respond to fires. (R. 131, 170.) The Cur-rie theft and arson and the Russell arson were only four miles apart. Both houses were in the same area as the Pike Road Volunteer Fire Station on Wallahatchee Road where both Green and Gorman were volunteer firefighters. Furthermore, a mere two weeks lapsed between the Currie arson and the Russell arson.

In addition to the common motive, the common locale, and the short time frame, the manner in which the two arsons were committed was very similar. In each fire, the individuals who set the fire broke in a door to gain access to the house. In each case, the individuals used an accelerant to set the fires. And, in each case, the individuals set the fire specifically in the bedrooms. In fact, because the Russell house was vacant, the individuals had to drag a couch from another room into the bedroom in order to have an item in the bedroom that could be saturated with the accelerant and set on fire.

With evidence indicating a common motive for the crimes and evidence indicating that the crimes were committed in a similar manner, in a common locale, and within a short time frame, the State presented sufficient evidence to establish that the Currie arson and the Russell arson were part of a common scheme or plan. See Blackwell, 257 Cal.App.2d at 320-21, 64 Cal.Rptr. at 647 (“[Similarity in the commission of [multiple] crimes in a given locality is itself a circumstance tending to corroborate the testimony of an accomplice.”); Ex parte Bullock, 770 So.2d at 1067 (ruling that although “[p]roof of a defendant’s motive, alone, is no sufficient to corroborate an accomplice’s testimony and to connect the defendant to the crime[,] ... proof of a defendant’s motive coupled with other facts connecting the defendant to the crime may be sufficient to corroborate an accomplice’s testimony”). As discussed above, the State presented sufficient evidence corroborating Gorman’s testimony relating to the Currie theft and arson. Because the Currie theft, the Cur-rie arson and the Russell arson were part of a common scheme or plan, the “evidence corroborating [Gorman’s] testimony on [the Currie theft and arson] provide[d] the required corroboration on [the Russell arson].” Adams, 222 A.D.2d at 1094, 636 N.Y.S.2d at 242. Therefore, the circuit court did not err in submitting the Russell arson count to the jury.

C.

In regard to the evidence presented at trial relating to the McNeil arson (count I), the State failed to present any evidence, aside from the accomplice testimony, that would tend to connect Green to the crime. Excluding James Wilhite’s and Patrick Brassell’s testimony, the State’s evidence merely established that the McNeil barn burned to the ground and that arson could not be ruled out as a cause of the fire. Evidence establishing that the McNeil barn burned and that arson could not be ruled out as the cause of the fire falls far short of the type of evidence necessary to connect Green to the arson. Cf. Ex parte McCullough, 21 So.3d 758, 762 (Ala.2009) (holding that the State presented insufficient evidence to corroborate an accomplice’s testimony when without the accomplice’s testimony, the State’s evidence merely established that a burglary occurred and that the burglars were male).

Moreover, the State did not present sufficient evidence to connect the McNeil arson with a common scheme or plan. Although the motive for the fires was the same, i.e., the desire of the volunteer firefighters to respond to fires, almost one and one-half years lapsed between the McNeil arson and the Currie arson. Further, the McNeil arson involved a barn while the Currie arson involved a house. Finally, Green did not use the same accomplices in the McNeil arson and the Currie arson.

In short, excluding Wilhite’s and Bras-sell’s testimony, the State failed to present any “ ‘incriminating evidence tending to connect [Green] with the commission of the [McNeil arson].’ ” Ex parte Bullock, 770 So.2d at 1067 (quoting Andrews, 370 So.2d at 321, citing in turn Miller, 275 So.2d at 677). Therefore, the State failed to present sufficient evidence to sustain Green’s conviction for the McNeil arson, and the circuit court erred in denying Green’s motion for a judgment of acquittal on that charge. See § 12-21-222, Ala. Code 1975.

Based on the foregoing, the circuit court’s judgment is affirmed as to counts III, IV, and VII (the Currie theft, the Currie arson, and the Russell arson). However, because the evidence was insufficient under § 12-21-222, Ala.Code 1975, to corroborate Wilhite’s and Brassell’s testimony regarding the McNeil arson (count I), as to that count, the judgment of the circuit court is reversed and a judgment of acquittal is rendered for Green. See Ex parte McCullough, 21 So.3d at 764.

AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED IN PART.

WISE, P.J., and WELCH and KELLUM, JJ., and MADDOX, Special Judge, concur. MAIN, J., recuses himself.

      . The jury acquitted Green on count II, the Pickett arson; count V, the Darnell arson; and count VI, the Dubose arson.

      . It is undisputed that Gorman was Green’s accomplice in the Currie theft and arson and the Russell arson. Therefore, this court need not address the evidence establishing Gor-man's complicity in those crimes.

      . This Court notes that allowing "evidence corroborating an accomplice’s testimony on one crime charged [to be] used to [corroborate the accomplice’s testimony] on other crimes charged where a common plan or scheme is involved," 23 C.J.S. Criminal Law § 1369 (2006), does not run afoul of the language in § 12-21-222, Ala.Code 1975, stating that "merely showing] the commission of the offense or the circumstances thereof [ ] is not sufficient.” Evidence establishing a series of crimes connected by a common scheme or plan and evidence corroborating an accomplice's testimony regarding one of those crimes establishes more than merely the circumstances of the crime. Instead, such evidence tends to connect the defendant to each of the crimes. Cf. Adams, 222 A.D.2d at 1094, 636 N.Y.S.2d at 242.

      . James Wilhite and Patrick Brassell provided testimony relating to Green's motive. These two individuals were not accomplices in the Currie theft and arson or the Russell arson.

      . The Currie arson occurred at 3504 Walla-hatchee Road, Pike Road, Alabama. The Russell arson occurred at 4107 Pike Road, Pike Road, Alabama. This Court takes judicial notice that the distance between these two addresses is roughly four miles. See State v. Green, 992 So.2d 82, 85, n. 1 (Ala.Crim.App.2008).

      . It is undisputed that Wilhite and Brassell were Green's accomplices during the McNeil arson. Therefore, it is unnecessary for this Court to discuss the evidence establishing their complicity in that crime. Gorman, however, was not an accomplice in the McNeil arson.


author: CANADY, C.J.

text:
    STATE of Florida, Petitioner, v. Christian FLEMING, Respondent.
    No. SC06-1173.
    Supreme Court of Florida.
    Feb. 3, 2011.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Christine Ann Guard, Assistant Attorneys General, Tallahassee, FL, for Petitioner.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.
   CANADY, C.J.

In this case, we consider the application in resentencing proceedings of the constitutional right to a jury determination of facts that are essential to the sentence imposed. We have for review Fleming v. State, — So.3d-, 2006 WL 1041164, 31 Fla. L. Weekly D1112 (Fla. 1st DCA 2006), in which the First District Court of Appeal certified conflict with Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Following our disposition of Galindez v. State, 955 So.2d 517 (Fla.2007), approving the Third District Court of Appeal’s decision on other grounds, we granted the State’s petition to review this case and resolve the ongoing conflict in the district courts regarding the applicability of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to resentencing proceedings that became final after Apprendi and Blakely issued, where the conviction and the original sentence were final before they issued. Because resentencing is a de novo proceeding in which the decisional law effective at the time of the resentencing applies, we approve the decision in Fleming holding that Apprendi and Blakely apply to such resentencings conducted after Ap-prendi and Blakely issued.

I. BACKGROUND

A jury found Fleming guilty as charged of aggravated battery with great bodily harm, permanent disability, or permanent disfigurement (Count I); shooting within a dwelling (Count II); and false imprisonment (Count III). On June 30, 1997, the trial court sentenced Fleming to an upward departure sentence of consecutive ten-year sentences on the first two counts and a consecutive five-year term for the third. The trial court found four departure bases for the sentence: (1) the crime was committed in a heinous, atrocious, or cruel manner; (2) the victim suffered permanent physical injury; (3) the offense was committed to avoid arrest; and (4) the primary offense was scored at level seven or higher, and a prior conviction scored at level eight or higher. The conviction and sentence became final when affirmed by the district court in 1999. Fleming v. State, 740 So.2d 531 (Fla. 1st DCA 1999). Apprendi was decided the following year.

Subsequently, the district court reversed the denial of Fleming’s postconviction motion, in which Fleming alleged his sentence was illegal under Heggs v. State, 759 So.2d 620, 627 (Fla.2000), and remanded for re-sentencing. See Fleming v. State, 808 So.2d 287 (Fla. 1st DCA 2002). At Fleming’s 2003 resentencing, the circuit court scored forty points on the scoresheet for severe victim injury and again departed upward from the guidelines range of fifty-five and a half months to ninety-two and a half months upon finding the same four departure reasons. The court sentenced Fleming to twenty years’ imprisonment: consecutive sentences of ten years for aggravated battery and five years each for shooting in a dwelling and false imprisonment.

A year after Blakely was decided, see 542 U.S. 296, 124 S.Ct. 2531, the First District granted Fleming a belated appeal from the 2003 resentencing order. Fleming v. State, 895 So.2d 538, 539 (Fla. 1st DCA 2005) (“Petitioner has shown that he was not advised of his right to appeal at the time of resentencing, and we therefore grant the petition”). During the pen-dency of the belated appeal, Fleming filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his new sentence violated Apprendi and Blakely. The State did not respond to the motion, and the circuit court did not rule on it. Accordingly, on appeal Fleming argued that the forty victim injury points and three of the departure reasons were invalid under Apprendi and Blakely because a judge, not a jury, made these findings. Fleming also contended that the fourth departure reason was invalid on its face because he had no convictions at level eight or higher, an issue the State conceded. Applying its prior decision in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review granted, 4 So.3d 677 (Fla. 2009), which held that Apprendi applies to resentencings held after Apprendi issued, the First District addressed Fleming’s claims. The district court found no error regarding the trial court’s scoring of forty points for victim injury after determining they were supported by the jury’s verdict. Fleming, — So.3d at -, 31 Fla. L. Weekly at 1112. The First District, however, determined — and the State conceded — that under Isaac the trial court’s finding of the other three upward departure grounds did violate Apprendi and Blakely. Accordingly, the court reversed and remanded for resentencing. Id.

The First District subsequently granted the State’s motion to certify conflict and stay the mandate in the case. By order, the district court certified conflict with the Third District’s Galindez decision and two decisions from the Fourth District to the extent they “suggest that Blakely and Ap-prendi do not apply to resentencing proceedings.” The State then petitioned this Court for review. We postponed our decision on jurisdiction and stayed the case pending our decision in Galindez, 955 So.2d 517, which presented the conflict issue but which we ultimately decided on harmless error grounds. Finally, we granted the State’s request to review this case and resolve the extant conflict.

II. ANALYSIS

The question we address here is whether — in cases in which the convictions were final before Apprendi issued — Apprendi and Blakely apply to resentencing proceedings held after Apprendi issued where the resentencing was not final when Blakely issued. As stated above, the First District has held that Apprendi and Blakely do apply in such resentencing proceedings. As explained below, however, the other four district courts of appeal disagree, reasoning that this would constitute an improper retroactive application of these United States Supreme Court decisions.

To provide context for our analysis, we begin by (A) outlining the holdings of Ap-prendi and Blakely and the determinations regarding their retroactive application to final cases. Next, we (B) explain the conflict in the district courts regarding their applicability in resentencings. Finally, we (C) resolve the conflict and hold that because resentencing proceedings are de novo in nature, Apprendi and Blakely necessarily apply to resentencings held after Apprendi and Blakely issued, even where the conviction was final before they issued.

A. Apprendi and Blakely and Retroactivity to Final Cases

In its decisions in Apprendi and Blakely, the United States Supreme Court altered the rules of procedure regarding fact-finding in criminal sentencing based on the Court’s interpretation of the requirements of the Sixth Amendment right to trial by jury and the Due Process Clause of the Fourteenth Amendment.

As part of a plea agreement, Apprendi pleaded guilty to, among others, a second-degree firearms offense for which the statutory maximum sentence was ten years. Apprendi 530 U.S. at 468, 120 S.Ct. 2348. Under the state’s “hate crime” statute, however, the trial court could impose a sentence of up to twenty years for the crime upon making an additional finding by a preponderance of the evidence. Id. at 468-69, 120 S.Ct. 2348. After an evi-dentiary hearing, the trial court found that Apprendi’s crime was motivated by racial bias and imposed an enhanced sentence of twelve years. Id. at 469-71, 120 S.Ct. 2348. The question before the Supreme Court was “whether Apprendi had a constitutional right to have a jury find [the sentencing factor of] bias on the basis of proof beyond a reasonable doubt.” Id. at 475-76, 120 S.Ct. 2348. After reviewing the history of criminal sentencing, the Supreme Court stated that “nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute” and that “judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Id. at 481, 120 S.Ct. 2348. In contrast, the New Jersey sentencing scheme provided the trial court with the power to find additional facts and impose a sentence beyond the prescribed penalty for that crime. Accordingly, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,120 S.Ct. 2348.

In light of the holding in Apprendi, Florida courts determined that trial courts were still empowered to find additional facts in imposing lengthier sentences, but they were limited by the maximum punishment provided by the statute for the specific crime. See Hall v. State, 823 So.2d 757, 764 (Fla.2002) (“Because the sentence for each of Hall’s offenses did not exceed the statutory maximum, we conclude that Apprendi is inapplicable.”); Isaac v. State, 826 So.2d 396 (Fla. 1st DCA 2002) (“The rule of [Apprendi ] ... does not apply when the sentence does not exceed the statutory maximum permitted by section 775.082, Florida Statutes.”).

Four years after Apprendi, the Supreme Court in Blakely addressed the application of the principles of Apprendi to guidelines sentencing schemes. In Blakely, the defendant entered a guilty plea, “admitting the elements of second-degree kidnaping and the domestic-violence and firearm allegations, but no other relevant facts.” Blakely, 542 U.S. at 299, 124 S.Ct. 2531. Under a Washington statute, the kidnapping charge was a second-degree felony punishable by a term not exceeding ten years, but another statute provided a “standard range” sentence for second-degree kidnapping with a firearm of forty-nine to fifty-three months. Id. A judge, however, could impose a departure sentence exceeding the standard range up to the statutory maximum for the crime based on one or more aggravating factors. Upon finding that Blakely committed the crime with “deliberate cruelty,” the trial court imposed a sentence of ninety months, which exceeded the standard range by more than three years. Id. at 300, 124 S.Ct. 2531. The Supreme Court rejected the state’s argument that Blakely’s sentence fell within the statutory maximum of ten years, determining that the sentence “could not have [been] imposed ... solely on the basis of the facts admitted in the guilty plea.” Id. at 304, 124 S.Ct. 2531. Accordingly, the Supreme Court held as follows:

Our precedents make clear, however, that the “statutory maximum” for Ap-prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.

Id. at 303-04, 124 S.Ct. 2531 (citations omitted).

When the Supreme Court announces “a new rule for the conduct of criminal prosecutions,” the rule must be applied to “all cases, state or federal, pending on direct review or not yet final.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Similarly, when this Court “announce[es] a new rule of law, or merely appl[ies] an established rule of law to a new or different factual situation,” the decision applies “in every [Florida] case pending on direct review or not yet final.” Smith v. State, 598 So.2d 1063, 1066 (Fla.1992); see Wuornos v. State, 644 So.2d 1000, 1007 n. 4 (Fla.1994) (“We read Smith to mean that new points of law established by this Court shall be deemed retrospective with respect to all non-final cases unless this Court says otherwise.”).

To determine whether a new rule applies retroactively to final cases in postcon-viction proceedings, however, courts in Florida conduct a retroactivity analysis under Witt v. State, 387 So.2d 922 (Fla.1980). In Hughes v. State, 901 So.2d 837, 838 (Fla.2005), we analyzed Apprendi under the Witt factors and concluded that the new Apprendi rule of procedure did not apply retroactively to cases that were final when it issued. At the same time, we determined in Johnson v. State, 904 So.2d 400, 405 (Fla.2005), that the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which applied the reasoning of Ap-prendi to death penalty cases, also did not apply retroactively to death-sentenced defendants “whose convictions already were final when that decision was rendered.” We have not directly addressed Blakely’s retroactive application to final cases. See Galindez, 955 So.2d at 524 (Cantero, J., specially concurring) (“We already have held that Apprendi does not apply retroactively. Presumably, neither does its offspring, Blakely.” (citation omitted)). Florida’s district courts of appeal, however, have concluded that Blakely, like Appren-di, does not apply retroactively to cases that were final before it issued. See, e.g., Thompson v. State, 949 So.2d 1169, 1173 (Fla. 1st DCA 2007) (“Florida courts, including this one, have generally agreed that Blakely has no application to cases that were already final when Blakely was handed down.”), quashed on other grounds, 990 So.2d 482, 482 (Fla.2008); Thomas v. State, 914 So.2d 27, 28 (Fla. 4th DCA 2005) (concluding on the basis of Hughes that Blakely does not apply retroactively).

B. Conflict in the District Courts

Despite their agreement regarding the nonretroactivity of Apprendi and Blakely, the district courts differ regarding the applicability of Apprendi and Blakely in certain resentencing proceedings. ' As explained below, the First District alone has held that Blakely and Apprendi apply to resentencings held after those decisions

issued where the conviction was final before they issued.

In this case, Fleming’s conviction was final in 1997, as was his sentence. Fleming’s sentence, however, did not remain so; he was successful in obtaining postconviction relief from his sentence. He was resentenced in 2003, and that new sentence was not final when Apprendi and Blakely were decided. The First District held that Apprendi and Blakely applied to Fleming’s resentencing under its prior decision in Isaac, 911 So.2d at 815, and reversed and remanded for resentencing. Fleming, — So.3d at -, 31 Fla. L. Weekly at 1112. In Isaac, the majority specifically acknowledged that “Apprendi is not retroactive” but did not find this relevant. Isaac, 911 So.2d at 814. Without elaboration, the First District held that “the trial court was bound” by Apprendi because Apprendi was decided before Isaac’s resentencing. Id. The First District applied this same reasoning in Fleming’s case and others. See McGriff v. State, - So.3d -, -, 32 Fla. L. Weekly D520, D521 (Fla. 1st DCA 2007) (“Because Apprendi and Blakely were decided prior to Appellant’s resentencing becoming final, Apprendi and Blakely apply to Appellant’s case.”), review granted, 4 So.3d 677 (Fla.2009).

The First District in Isaac certified conflict with the Third District’s decision in Galindez, in which — as in Fleming— the defendant’s conviction was final before Apprendi issued, but he was resentenced afterwards, and Blakely issued during the pendency of his resentencing appeal. Galindez, 910 So.2d at 284-85. The Third District held that Apprendi and Blakely did not apply to Galindez’s resentencing because this constituted their retroactive application to a conviction that was final before those decisions issued. Galindez, 910 So.2d at 285. In so holding, the Third District adopted the reasoning of the dissent in Isaac: “[A]s clearly and correctly stated by Judge Kahn in Isaac v. State, Apprendi and Blakely, which have no retroactive application, cannot be applied to alter the effect of a jury verdict and conviction ... rendered prior to those decisions, notwithstanding that further re-sentencing proceedings are pending after-wards.” Galindez, 910 So.2d at 285 (citations omitted). Citing our decision in Hughes, Judge Kahn in Isaac had concluded that the finality of a conviction pre-Apprendi is determinative of Appren-di’s applicability in a case and that resen-tencing was of no consequence to the issue:

[E]ven though appellant was resen-tenced in June 2001, Apprendi does not apply because his conviction became final in 1998. Apprendi, of course, involves a right under the Sixth and Fourteenth Amendments of the United States Constitution for state criminal defendants to have certain facts determined by a jury beyond a reasonable doubt, rather than by a judge. As the Hughes retroactivity analysis instructs, the rule of Apprendi is not “of sufficient magnitude as to require retroactive application.” 901 So.2d at 840. Here, because Isaac’s jury was obviously discharged after the original criminal trial on January 15, 1997, the factual matters underlying the guidelines departure sentences may not be submitted to a jury. Accordingly, Hughes’ focus on finality of the conviction is very important, and I would follow that rule until it is altered. Because these convictions were final long before announcement of the Ap-prendi rule, I would let the twenty-year sentences stand.

Isaac, 911 So.2d at 816 (Kahn, J., dissenting). The Second, Fourth, and Fifth Districts agreed with the Third District and Judge Kahn’s dissent that Apprendi and Blakely do not apply to convictions final before the Supreme Court decisions issued and thus do not apply to any subsequent resentencings in such cases. See Cutts v. State, 940 So.2d 1246, 1247 (Fla. 2d DCA 2006), quashed on other grounds, 976 So.2d 579 (Fla.2008); Lester v. State, 923 So.2d 596, 597 (Fla. 5th DCA 2006), quashed on other grounds, 976 So.2d 577, 577 (Fla.2008); Hamilton v. State, 914 So.2d 993, 994 (Fla. 4th DCA 2005), quashed on other grounds, 976 So.2d 575, 576 (Fla.2008).

C. Resolving the Conflict

In holding that Apprendi and Blakely apply to resentencings regardless of the finality of the defendant’s conviction before they issued, the First District implicitly followed longstanding precedent of this Court regarding the nature of resentenc-ing. As we explain below, two principles support our holding that these two United States Supreme Court cases apply to all resentencing proceedings held after they issued: (1) resentencing proceedings are de novo; and (2) the decisional law in effect before an appeal is final applies to the proceeding. Further, our holding in no way contravenes our prior decision in Hughes, holding that Apprendi does not apply retroactively as a basis for relief in postconviction proceedings.

First, this Court has long held that where a sentence has been reversed or vacated, the resentencings in all criminal proceedings, including death penalty cases, are de novo in nature. See Morton v. State, 789 So.2d 324, 334 (Fla.2001). (reasoning that in a new penalty phase “resen-tencing should proceed de novo on all issues bearing on the proper sentence” (quoting Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986))); see also Preston v. State, 607 So.2d 404, 408 (Fla.1992) (referring to new penalty phase proceeding as a “clean slate” and stating that “a resentencing is a completely new proceeding”). This means that when a defendant is resentenced, “the full panoply of due process considerations attach.” State v. Scott, 439 So.2d 219, 220 (Fla.1983) (“[0]nce the court has determined that the sentence was indeed illegal and the prisoner is entitled to a modification of the original sentence or the imposition of a new sentence, the full panoply of due process considerations attach.”); see Trotter v. State, 825 So.2d 362, 368 (Fla.2002) (“We agree with the district courts of appeal that a resentencing pursuant to Heggs is a de novo sentencing proceeding that must comport with constitutional requirements.”).

Because the resentencing is de novo, we have held that both parties may present new evidence bearing on the sentence. For example, in State v. Collins, 985 So.2d 985, 994 (Fla.2008), we held “that when a habitual offender sentence is reversed because of insufficient evidence, on remand for resentencing the State may again attempt to prove that the defendant meets the criteria for such sentencing.” See Mann v. State, 453 So.2d 784, 786 (Fla.1984) (rejecting appellant’s argument that the state was not permitted to present new evidence at his resentencing and stating that “[o]ur remand directed a new sentencing proceeding, not just a reweighing” at which “both sides may, if they choose, present additional evidence”); see also Rich v. State, 814 So.2d 1207, 1208 (Fla. 4th DCA 2002) (holding that at resentenc-ing, the State must present evidence on an enhanced sentencing factor despite having done so at the prior sentencing hearing).

The trial court has discretion at resentencing — within certain constitutional confines — to impose sentence using available factors not previously considered. See Scott, 439 So.2d at 221 (“Nor has the plight of the trial court seeking to impose a new sentence been an easy one, fraught as it is with constitutional challenges and considerations of post-sentencing infractions which would allow a material increase in the sentence, pursuant to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).”). In Trotter, the defendant’s original 83.2-month guidelines sentence was illegal under our decision in Heggs. We held that, “[i]n an attempt to reach what the trial court originally considered to be an appropriate sentence,” the trial judge at resentencing had discretion to apply a drug trafficking multiplier not employed at the prior sentencing to impose a sentence of seventy-two months. Trotter, 825 So.2d at 367-68. Similarly, in Roberts v. State, 547 So.2d 129, 130 (Fla.1989), the original trial judge imposed the maximum guidelines sentence of concurrent terms of twenty-seven years using an improperly calculated scoresheet. At resentencing, the new trial court imposed the same sentence by departing upward from the guidelines maximum of twenty-two years under the new score-sheet. We approved, holding “that it is proper for the judge to reconsider whether a departure from the guidelines is appropriate when the corrected guidelines score-sheet is before him on remand.” Roberts, 547 So.2d at 131; see Roberts v. State, 644 So.2d 81, 81-82 (Fla.1994) (holding that at resentencing on violation of probation, trial court may revise guidelines scoresheet to reflect prior convictions “mistakenly omitted from the original through no fault of the defendant”).

We have already referred to the attendant principle underpinning our decision here — that the decisional law in effect before an appeal is final applies in that proceeding. When the United States Supreme Court announces a new rule applicable to criminal proceedings, the rule applies to all federal and state cases pending on direct appeal or not yet final, Griffith, 479 U.S. at 328, 107 S.Ct. 708, and any decision from this Court applies to all of this state’s cases pending review or nonfinal cases, Smith, 598 So.2d at 1066. Thus, because resentencing is de novo, the decisional law in effect at the time of the resentencing or before any direct appeal from the proceeding is final applies. See Wheeler v. State, 344 So.2d 244, 245 (Fla.1977) (“The decisional law in effect at the time an appeal is decided governs the issues raised on appeal, even where there has been a change of law since the time of trial.”); cf. Harris v. State, 645 So.2d 386, 388 (Fla.1994) (stating where State cross-appealed sentence because trial court determined as matter of law that no habitual offender sentence could be imposed, such a sentence could be imposed at resentencing because a decision issued during pendency of the appeal clarified the issue).

Moreover, this Court has applied these two principles in a context on all fours with the question presented here. In Parker v. State, 476 So.2d 134, 140 (Fla.1985), we affirmed a death-sentenced defendant’s conviction and sentence. In 1998, however, we affirmed the trial court’s grant of Parker’s postconviction request for a new penalty phase. State v. Parker, 721 So.2d 1147, 1152 (Fla.1998). At the conclusion of the new penalty phase, the trial court followed the jury recommendation and sentenced Parker to death. Parker v. State, 873 So.2d 270, 276 (Fla.2004). Before the new penalty phase was held, however, Parker filed a motion in the circuit court to suppress one of his statements made to police in 1982, relying on the United States Supreme Court’s later decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Parker, 873 So.2d at 277, 279. The trial court denied the motion, and Parker raised this issue on appeal. The State argued that this Court need not address the merits of Parker’s suppression issue for two reasons: (1) Jackson did not apply since it was decided after his original trial was held and his conviction was final; and (2) this Court had held in Henderson v. Dugger, 522 So.2d 835, 837 (Fla.1988), that Jackson did not apply retroactively. Parker, 873 So.2d at 280 n. 6. We rejected both arguments: “[A]s previously explained, because the new penalty phase was a new proceeding, neither the trial court nor this Court is precluded from applying case law rendered after the original sentencing.” Parker, 873 So.2d at 280 n. 6; see id. at 278 (“Further, it is the law at the time of Parker’s new penalty phase that determines the admissibility of the evidence during that proceeding”). Accordingly, we affirmed the trial court’s denial of the motion on the merits, not on the basis of any of the State’s claims of procedural bar. See id. at 281.

Just as applying Jackson at Parker’s new penalty phase did not constitute a retroactive application of Jackson, neither does applying Apprendi and Blakely to the resentencing of a defendant such as Fleming constitute their retroactive application. In Hughes, we concluded that “Apprendi does not affect the determination of guilt or innocence.” 901 So.2d at 841. Instead, “Apprendi affects only the procedure for enhancing the sentence.” Id. at 843 (some emphasis added). Thus, we made it clear that Apprendi did not affect convictions-only sentences. After applying the factors of Witt, we then determined that Apprendi did not require that we undo sentences final before it issued and hold new sentencing proceedings in order to apply Ap-prendi. Hughes, 901 So.2d at 845-46.

In cases such as Fleming’s, the basis for granting postconviction relief to vacate original final sentences was not the violation of Apprendi and Blakely. That would be the retroactive application of those cases to provide postconviction relief. Rather, in Fleming’s case, for example, the district court vacated his pre-Apprendi original final sentence because that sentence was illegal under Heggs. Fleming, 895 So.2d at 539. As a result, Fleming had to be and was resentenced in a de novo resentencing proceeding. See Trotter, 825 So.2d at 368 (“We agree with the district courts of appeal that a resentenc-ing pursuant to Heggs is a de novo sentencing proceeding that must comport with constitutional requirements.”). Apprendi issued before the resentencing was held and was not final when Blakely issued. Accordingly, the constitutional procedural rules for sentencing established in Appren-di and Blakely were current law and applicable to Fleming’s resentencing, just as the United States Supreme Court’s decision in Jackson was current law applicable at the time the defendant in Parker was resentenced — despite the fact that his conviction was final before Jackson issued and remained final when the new penalty phase was held.

As explained above, (1) when a sentence is vacated, the defendant is re-sentenced at a new proceeding subject to the full panoply of due process rights, and (2) the decisional law in -effect at the time of a de novo resentencing or before that resentencing is final applies to those proceedings and the issues raised on appeal. Consonant with these two principles, we hold that Apprendi and Blakely apply to all de novo resentencings that were not final when Apprendi and Blakely issued regardless of when the conviction or original sentence was final.

III. CONCLUSION

Under the decisions in Apprendi and Blakely, except for the fact of a prior conviction, a judge may impose sentence based solely on the facts reflected in a jury verdict or admitted by the defendant. Regardless of whether a defendant’s conviction and sentence were final before Ap-prendi and Blakely issued, we hold that where a defendant’s resentencing was not final when Apprendi and Blakely issued, the rules established in these cases apply to that de novo proceeding. Accordingly, we approve the decision of the First District Court of Appeal in this case determining that Apprendi and Blakely apply to Fleming’s resentencing. Because we disallowed briefing on harmless error in this case so that we could resolve the conflict in the district courts, however, we have not conducted such an analysis. Accordingly, we remand this matter to the First District Court of Appeal for application of a harmless error analysis under our decision in Galmdez.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, J., recused.

      . In Heggs, we held the 1995 amendments to the 1994 sentencing guidelines unconstitutional as a result of a single subject violation. 759 So.2d at 627.

      . The court reasoned as follows:
      Although the jury must make a finding of severe victim injury pursuant to Apprendi, in this case severe victim injury was found by the jury when it convicted appellant of aggravated battery by causing great bodily harm, permanent disability, or permanent disfigurement. Cf. Arrowood v. State, 843 So.2d 940, 941 (Fla. 1st DCA 2003) (stating, "[t]he jury’s findings of DUI manslaughter and DUI serious bodily injuries support the imposition of the death and severe victim injury points”). Accordingly, the trial court’s assessment of 40 points for severe victim injury was not error in this case.

        Fleming, — So.3d at-, 31 Fla. L. Weekly at 1112 (footnote omitted).

      . In its initial brief, the State sought review of the conflict issue but also argued that the Court need not address it. The State contended that Fleming’s rule 3.800(b) motion could not preserve the Apprendi/Blakely issue for review in the district court. The State, however, did not preserve this argument in the district court, and as Fleming points out, the district courts have held that such claims are properly preserved by such a motion and no cases hold to the contrary. See Arrowood v. State, 843 So.2d 940, 941 (Fla. 1st DCA 2003) (''[The defendant] properly filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to raise his Apprendi claim.”). To the extent the State argues that our decision in Jackson v. State, 983 So.2d 562 (Fla.2008), controls this issue, we note that Jackson does not directly address or even mention Apprendi error.

      . The United States Supreme Court previously had determined under a different analysis that Ring does not apply retroactively under federal law. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). The Supreme Court has not addressed the question of Blakely’s retroactive applicability.

      . As stated previously, the State conceded in Fleming’s appeal that under Isaac, Apprendi, and Blakely, error occurred in Fleming’s sentence.

      . When Isaac was resentenced in 2001, the trial court again imposed four concurrent twenty-year sentences, but it was an upward departure sentence rather than a guidelines sentence. Isaac, 911 So.2d at 814-15.

      . Our holding in Shull v. Dugger, 515 So.2d 748, 750 (1987), “that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court,” merely “precludefd] the possibility of a judge providing an after-the-fact justification for a previously imposed departure sentence,” Jones v. State, 559 So.2d 204, 206 (Fla.1990). This rather singular, prophylactic exception did not, as the State argues, tacitly negate this Court’s numerous and longstanding precedents regarding the de novo nature of resentencing.

      . Jackson held that when police initiate interrogation after a defendant asserts the right to counsel, any waiver of that right for that interrogation is invalid and the resulting statement is inadmissible as substantive evidence against the defendant. 475 U.S. at 636, 106 S.Ct. 1404.


author: LaROSE, Judge.

text:
    Myreon HARRISON, Appellant, v. STATE of Florida, Appellee. Joshua McClendon, Appellant, v. State of Florida, Appellee.
    Nos. 2D09-3556, 2D09-3869.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2010.
    Rehearing Denied Sept. 30, 2010.
    Daniel J. Fernandez, Tampa, for Appellant Myreon Harrison.
    Frances Martinez of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant Joshua McClendon.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Myreon Harrison and Joshua McClen-don each want a new trial. A jury convicted them for improper exhibition of a firearm and attempted second-degree murder. They argue that the State impermissibly bolstered its case with extensive collateral crimes evidence. We agree that the trial court erred in allowing the admission of this evidence. But, any error was harmless. Accordingly, we affirm.

Harrison, McClendon, and a third defendant, Myron Phillips, went to trial on charges of attempted first-degree murder. The charges stemmed from a shooting in a St. Petersburg neighborhood allegedly rife with illegal drug activity. Fortunately, no one was hurt, but bullet holes were found in two homes and in two vehicles. Eyewitnesses identified Harrison, McClendon, Phillips, and others as the culprits. They allegedly drove to the area and shot at or near two local residents. The jury returned its verdict on lesser charges for Harrison and McClendon. The jury found that Harrison, but not McClendon, actually possessed and discharged a firearm. The jury acquitted Phillips.

Instead of focusing on the straightforward facts, the State sought to admit extensive collateral crimes evidence. This evidence included Harrison’s and McClendon’s involvement in drug deals occurring in the neighborhood two weeks prior to the shooting and in a high-speed chase and subsequent stand-off with a SWAT team two months after the shooting. The State argued that this evidence was “inextricably intertwined” with the pending charges. Harrison and McClen-don unsuccessfully objected to the evidence.

The trial court ruled that evidence that the defendants were engaged in drug or illegal activities was admissible, but evidence that the defendants were drug dealers was not.

The State argued that the high-speed chase and stand-off evidence should be admitted based on a “consciousness of guilt” theory. Apparently, there were outstanding warrants for Harrison and McClendon before the chase. Neither Harrison nor McClendon drove the car that sped from the police. The trial court allowed admission of this evidence without elaboration.

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. § 90.403, Fla. Stat. (2008); Steverson v. State, 695 So.2d 687, 688 (Fla.1997). A trial court must weigh the danger of unfair prejudice against the probative value of the evidence in determining its admissibility. Under this balancing test, the trial court necessarily exercises its discretion. The same item of evidence may be admissible in one case and not in another, depending upon the relation of that item to the other evidence. Id. (citing State v. McClain, 525 So.2d 420, 422 (Fla.1988)).

The trial court found the collateral crimes evidence relevant but failed to balance its prejudicial effect. The evidence was not altogether relevant and was highly prejudicial. Much of the State’s case focused on the collateral crimes, especially the car chase and SWAT team encounter. Indeed, the jury heard an exhaustive and unnecessarily detailed blow-by-blow recounting of the four-hour stand-off. The State stressed this evidence in closing argument to paint Harrison and McClendon as drug dealers who would do a “planned execution.” The State characterized the car chase and stand-off as “that’s your fingerprint and that’s your DNA.”

We fail to see why the State seems to maintain that collateral evidence automatically renders it relevant to establish guilt for the charged offenses. The State actually jeopardizes its cases when it does so and ignores the appropriate balancing between relevance and undue prejudice. The State’s case at trial should have been simple and straightforward. Several eyewitnesses identified Harrison and McClendon as the shooters. Eschewing simplicity, the State interjected numerous irrelevant and prejudicial facts. We are mindful that some evidence of the neighborhood setting and dynamics was relevant. Even some evidence related to the traffic stop was admissible to show that a gun belonging to Harrison, which matched casings found at the shooting scene, was recovered at that time. Beyond that, the collateral crimes evidence should have been excluded.

Despite the evidentiary error, in light of the quality and quantity of the evidence, we are convinced beyond a reasonable doubt that the error was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The jury was able to focus on the evidence and testimony about the charged offenses. We cannot conclude that the error infected the trial or verdicts.

Affirmed.

CASANUEVA, C.J., and SILBERMAN, J., Concur.


author: WHATLEY, Judge.

text:
    In the Interest of A.C. and A.S., children, V.S., Petitioner, v. Department of Children and Family Services, and Guardian Ad Litem Program, Respondents.
    No. 2D10-4048.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.
    John E. Hendry, Regional Counsel, Second District, and Cynthia Cholmondeley, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Amie K. Patty, New Port Richey, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian Ad Litem Program.
   WHATLEY, Judge.

The Father, V.S., petitions this court for a writ of certiorari quashing the circuit court’s order entered after a status check hearing which, among other things, denied his request to reinstate visitation with his daughter, A.S. A.S. had been adjudicated dependent and placed with a family member, and the Father’s one-hour per week of supervised visitation had been suspended. The Father argues that the circuit court departed from the essential requirements of law by continuing the suspension of his visitation rights without clear and convincing evidence that his visits with A.S. were not in her best interest. The Department of Children and Families concedes error, and we agree with the Father’s argument.

Accordingly, we grant the Father’s petition and issue a writ of certiorari quashing the order denying the Father’s motion to reinstate his visitation rights. We remand for further proceedings.

CASANUEVA, C.J., and ALTENBERND, J., Concur.


author: PER CURIAM.

text:
    Jesse KOZLOWSRI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0807.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Rehearing Denied May 13, 2011.
    Jesse Kozlowski, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, WETHERELL, and ROWE, JJ., concur.


text:
    Barbara KIGHT, Appellant, v. Allyn E. KIGHT, Appellee.
    No. 5D09-4254.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    Rehearing Denied May 26, 2011.
    Robert Bruce Snow, of Robert Bruce Snow, P.A., Brooksville, for-Appellant.
    James R. Jones, Jr., of James R. Jones, Jr., P.A., Spring Hill, for Appellee.
   PER CURIAM.

We affirm the final judgment of dissolution of marriage in all respects, save two. The trial court correctly treated the former wife’s Simplified Employee Pension IRA as a marital asset. However, the former wife made a $6,000 deposit in that account after the dissolution proceedings were filed. That amount is non-marital and should be treated as such on remand. The parties also agree that the trial court should have awarded at least nominal permanent alimony to the former wife, to preserve the issue for future consideration. On remand, the trial court shall award nominal permanent alimony to the former wife. Finally, on remand, the trial court shall enter an amended final judgment correcting the scrivener’s and other errors it identified consistent with the trial court’s order denying the former wife’s motion for new trial and rehearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN, ORFINGER and TORPY, JJ., concur.


author: CRENSHAW, Judge.

text:
    William E. CLARK, Appellant, v. The ESTATE OF Johnie Vaden ELROD and H. Vernon Davids, Appellees.
    No. 2D09-5480.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.
    Rehearing Denied May 31, 2011.
    Bernard H. Dempsey, Jr., and Thomas Wade Young of Dempsey & Associates, P.A., Winter Park (withdrew after briefing); Robert L. Sirianni, Jr., and Paetra T. Brownlee of Brownstone, P.A., Winter Park (substituted as counsel of record), for Appellant.
    No appearance by Appellee The Estate of Johnie Vaden Elrod.
    H. Vernon Davids, pro se.
   CRENSHAW, Judge.

William E. Clark appeals a final judgment enforcing a charging lien filed by his former attorney, H. Vernon Davids, and awarding Davids $57,921.76 in attorney’s fees. Davids represented Clark in a probate proceeding from September 1999 to November 2000 (Stint I), May 2001 to January 2002 (Stint II), and March 2005 to May 2005 (Stint III). However, Davids did not seek payment for the entirety of his services for Stint II until 2005, after Clark had received a distribution from the underlying probate case. And, Davids did not seek to be paid for what he argued was the total amount owed for Stint I until 2008, well after the statute of limitations on his breach of contract action had passed. Because we find Davids’ breach of contract action accrued when he ended the attorney-client relationship in November 2000, we reverse the trial court’s award as to Stint I. However, we find the trial court’s award of attorney’s fees for Stint II under quantum meruit was supported by competent, substantial evidence. Accordingly, we affirm the final judgment as to Stint II, but reverse and remand for the trial court to enter a final judgment in favor of Clark as to Stint I.

In September 1999, Clark and Davids entered into a written fee agreement in which Clark agreed to pay Davids at a rate of $130 per hour, plus sixteen percent of any gross recovery from the estate distributions. The agreement also contained a clause providing that in the event either Clark or Davids severed their attorney-client relationship, the sixteen percent contingency clause would be void and Clark would be responsible for paying Davids an additional $70 per hour. This amount was the difference between Davids’ normal hourly rate of $200 and the agreed-upon hourly rate of $130. In November 2000, Davids moved to withdraw from his representation of Clark, citing irreconcilable differences. The trial court granted Davids’ motion. Throughout Stint I, Clark paid Davids at a rate of $130 per hour, but Davids did not bill Clark for the additional early termination fee of $70 per hour after he withdrew as counsel.

In May 2001, Clark contacted Davids and asked that he serve as local counsel. Davids agreed and Clark faxed a letter to Davids discussing the terms of their new arrangement. The letter, which was neither prepared by Davids nor signed by him, stated that Davids would charge Clark at a rate of $130 per hour and would receive ten percent of any net recovery from the estate distributions. In January 2002, Davids, again citing irreconcilable differences, moved to withdraw as counsel, and the trial court granted Davids’ motion. Davids sent Clark a bill charging him for the services rendered during Stint II at a rate of $130 per hour, which Clark paid.

In 2005, Davids discovered that Clark had received a large distribution from the original probate action. Hence, he filed a notice of charging lien on May 23, 2005, and motion to enforce the charging lien on June 2, 2005, claiming Clark owed him attorneys’ fees for Stint II totaling ten percent of the net estate distributions that Clark received after he withdrew as Clark’s counsel. Davids subsequently filed an amended motion to enforce the charging lien on June 23, 2008, reasserting his claim for fees rendered in Stint II and asserting, for the first time, a claim for unpaid fees earned in Stint I. Specifically, Davids sought the $70 difference between his normal $200 hourly rate and the charged $130 hourly rate, plus prejudgment interest incurred from November 2000 — an amount he alleged was owed under the terms of the contract entered into by the parties in September 1999.

The trial court determined that the statute of limitations did not bar Davids’ claim for fees for Stint I because Davids’ claim was tolled until the filing of his amended motion. As for Stint II, the trial court found that although the parties’ verbal agreement did not constitute a valid and enforceable contract, Davids was entitled to recovery under quantum meruit at a rate of $300 per hour, which was $170 more per hour than what Clark had initially paid Davids.

The trial court's determination as to Stint I

“A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.” Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007). Under section 95.11(2)(b), Florida Statutes (2000), an action on a contract founded on a written instrument shall be commenced within five years. Though we agree that Davids properly sought relief as a breach of contract claim, “Florida case law consistently holds that a cause of action for breach of contract accrues and the limitations period commences at the time of the breach.” Technical Packaging, Inc. v. Hanchett, 992 So.2d 309, 313 (Fla. 2d DCA 2008); see also § 95.031(1) (“A cause of action accrues when the last element constituting the cause of action occurs.”). Therefore, Davids’ breach of contract action accrued when Davids ended the attorney-client relationship with Clark in November 2000, not when Davids filed his amended motion to enforce the charging lien in June 2008. Further, we fail to find any exception under section 95.051 that would toll the statute of limitations. Accordingly, we find the trial court erred by awarding Davids any unpaid fees for Stint I because his action was barred by the statute of limitations.

The trial court’s determination as to Stint II

Next, the trial court’s determination that the parties did not have a valid contract during Stint II is a question of law subject to de novo review. See Country Place Cmty. Ass’n, Inc. v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010); Cushman & Wakefield of Fla., Inc. v. Williams, 551 So.2d 1251, 1254 (Fla. 2d DCA 1989). We find the trial court properly found that there was no enforceable contract between Clark and Davids. See, e.g., Orbit Constr. Co. v. Trail Dev. Corp., 198 So.2d 341, 343 (Fla. 2d DCA 1967) (explaining the lack of a valid contract due to “[t]he lack of mutuality and definiteness of obligations between the parties”). Nonetheless, Davids was still entitled to an award under quantum meruit, and there is competent, substantial evidence in the record supporting the trial court’s conclusion that Davids was entitled to recover additional attorney’s fees at a rate of $300 per hour. Accordingly, we find no error as to the trial court’s award of attorney’s fees for Stint II.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and KHOUZAM, JJ., Concur.

      . The circumstances surrounding Stint III are not pertinent to our opinion and will not be discussed.

      . See Cross v. Strader Constr. Corp., 768 So.2d 465, 466 (Fla. 2d DCA 2000) ("Quantum me-ruit is the antithesis of matters contracted for.”).