source: Caselaw Access Project

author: MAIN, Judge.

license: Public Domain

text:
    Barbara Ann ROBERTS v. STATE of Alabama.
    CR-08-1229.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.

      Angela Cochran Morgan, Fort Payne, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   MAIN, Judge.

Barbara Ann Roberts appeals her convictions for two counts of murder made capital because the murder occurred during a kidnapping, see § 13A-5-40(a)(l), Ala.Code 1975; for intentional murder, see § 13A-6-2, Ala.Code 1975; and for first-degree robbery, see § 13A-8-41, Ala.Code 1975. She was sentenced, as to the capital-murder convictions, to life imprisonment without the possibility of parole, the sentences to run concurrently; to life imprisonment as to the intentional-murder conviction, the sentence to run concurrently to the sentences for capital murder; and to life imprisonment as to the first-degree-robbery conviction, the sentence also to run concurrently to the other sentences.

I.

Roberts argues that the trial court erred in refusing to continue the jury trial, because, she claims, she was not competent to assist her counsel in preparing her defense or to understand and to consider any plea offers made by the State.

The record indicates that a pretrial hearing was held on Roberts’s motion for a continuance, in which defense counsel argued that he was not disputing Roberts’s competence to stand trial but was disputing her competence to consider and either accept or reject the State’s offer of a plea arrangement or settlement. Defense counsel argued that physicians had changed the medication Roberts was taking for mental problems and that he did not believe that she could appreciate or understand the ramifications of the plea offer or a guilty plea. The prosecutor responded that because defense counsel was “not sure [Roberts] appreciate^] the situation she [was] in,thoroughly, ... the State would be prepared to leave the offer on the table, and if [defense counsel] wishe[d] to have continued dialog with [the State] over the next couple of days or whatever, [the State] would be more than happy to do that.” (R. 89.)

The trial court determined that the case would remain set for trial unless defense counsel presented further reasons for a continuance. Defense counsel stated that if the doctors were of the opinion that “because of the bottlenecking of the facts or the change in the medicines or whatever reason, that we’re unable to get viable communication at the crucial time, then I feel that a continuance would be in order.” (R. 91.) The trial court then stated to defense counsel that decisions concerning competency to stand trial are governed by Rule 11, Ala.R.Crim.P., and that the court had reviewed the forensic psychiatrist’s report finding Roberts competent to stand trial.

Defense counsel then stated that Roberts was apparently being nonresponsive to Dr. Jason Junkins, who had been treating her, so the family called in Dr. Richard Grant. Defense counsel stated that Roberts told him that “Dr. Grant says there are some issues [with] her bipolar disorder that’s causing things to be taken out of context.... [H]e’s got to get that regulated, not that she can’t stand trial, we’re not using that as our guidepost, we’re talking about the last part of our negotiations stage.” (R. 94-95.)

The trial court postponed any further ruling, stating:

“THE COURT: Well, if I understand it, then, there is not an issue of her competence to stand trial. And while I have not seen a report from either Dr. Junkins or Dr. Grant, given the current state of the file, the argument you’ve made, the motion that’s on the table, I think the case needs to remain scheduled for trial. Now, if you get a report from Grant or Junkins or the two of them and the D.A. wants to cross-examine either or both of those doctors, then I’ll try to schedule some time to do that.”

(R. 95.) Finally, just before the close of the hearing, the prosecutor stated:

“[Prosecutor]: Just based on what we read in the file and what we know of the defendant, we do not anticipate there will be any issues of competency that will need to be addressed by the Court, I think if I hear [defense counsel] right, correctly, there are issues about whether or not she’s really able to significantly comprehend what the offer is and what the ramifications of that offer are, and it might be that it’s more along those lines and as I’ve told the Court and the defense, we will seek to continue to work through those issues with them if they wish and try to get that issue off the table quickly, either resolve it by a clear rejection or an understanding that we’ll have a plea, and we’ll let the Court know either way.”

(R. 97-98.)

Three days later, another hearing was held, and neither doctor nor any witness was presented by the defense concerning Roberts’s competency or her ability to understand and appreciate the guilty-plea offer. An unsigned and undated letter was produced that “purport[ed]” to be from Dr. Junkins. The prosecutor responded that Dr. Doug McKeown, a certified forensic examiner, found that Roberts was competent, that she could appreciate the consequences involved in the case, and that she could assist her counsel in the trial. The prosecutor also argued that while Dr. McKeown was a certified forensic examiner, Dr. Junkins was a doctor of internal medicine and was not qualified to give an opinion concerning competency. Finally, the prosecutor argued that Dr. Junkins was not present and available to be cross-examined concerning his qualifications or opinions. Moreover, Dr. Grant was not present and had presented no evidence. Finally, the prosecutor stated that the offense had occurred over two years before the hearing and that the alleged change in medication apparently occurred approximately 10 to 14 days before the hearing; thus, the prosecutor argued, the trial, which was set for 11 days after the hearing, should not be continued. The trial court stated that it saw nothing in the letter from Dr. Junkins that “addresses the question of competency to stand trial within the meaning of Rule 11 of the Alabama Rules of Criminal Procedure.” (R. 106.)

Defense counsel responded that as a result of the change in Roberts’s medication, he was unable to have “meaningful conversation with her.” (R. 106.) He stated that his concern was that “at some point later [Roberts] may come back and say, well, that’s not exactly what I understood.” (R. 107.) He did not believe that she could knowingly participate in a guilty plea. Defense counsel argued: “I’m not a doctor or professional psychologist or anything, I’m just basing it on what they have told me and my personal experience with her. So I’m not challenging the competency, I’m just saying we’ve not had any ability in the past, in my opinion, the past couple of weeks, to have meaningful conversation. That’s strictly what this is about. Not about competency.” (R. 107.) The trial court determined:

“The question, then, for me to decide is whether to grant a continuance to give you an opportunity to try to work out a settlement of this case. The case has been pending a long time. I think in many cases, lawyers forget how cruel it is for the families of a victim when cases are postponed and postponed again and postponed yet another time. I don’t think that the mere — that merely because a defendant lacks the competency to enter a plea of guilty rises to the level of incompetency to stand trial, and because I don’t have anything before the Court which satisfies me that she is incompetent to stand trial, I don’t feel like I have any reasonable basis to postpone the case.”

(R. 108-09.) The trial court further informed defense counsel that defense counsel could speak to the prosecutor as to any agreement as to a continuance.

The trial commenced 11 days later. Following the jury trial, at the hearing on the motion for a new trial, Roberts raised as error the trial court’s failure to grant her continuance based on her incompetency. The prosecutor noted during the hearing that “[tjhere was no last minute plea offer from the State,” but rather the State had been attempting to discuss a settlement with her for a year and a half. (R. 1491-92.) The prosecutor stated:

“One of the things I think the Court commented on when this issue was actually before the Court right before trial was the observations the Court made of the defendant during the pretrial hearings. And it was clear, I believe to the Court in those comments, from what I recall and I recall from my own participation in them, that Ms. Roberts was a full participant in those proceedings, providing assistance to her counsel, tugging on his sleeve, telling him what to say, feeding him arguments. I think that is contrary to the view that she was incompetent during that time and, of course, the Court will remember on its own the Court observed, but those are my recollections.”

(R. 1502-03.)

The record indicates that Roberts’s motion for continuance was prefaced on her alleged inability to understand or to appreciate the State’s plea offer and to participate in any guilty plea.

“Due process requires that an accused be legally competent to plead guilty. Chavez v. United States, 641 F.2d 1253, 1255-56 (9th Cir.1981). The plea must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). ‘Courts generally have held that the standard of competence to stand trial parallels the standard of competence to plead guilty.’ Twelfth Annual Review of Criminal Procedure, 71 Geo. L.J. 339, 540, n. 1348 (1982). See also Annot. 31 A.L.R. Fed. 375 (1977). That test is whether the accused has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).”

Eathorne v. State, 448 So.2d 445, 448 (Ala.Crim.App.1984). Thus, the same guidelines or standard applies to determining competency to stand trial as does to determining competence to plead guilty.

“ ‘A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.’ Rule 11.1, Ala.R.Crim.P. ‘The defendant bears the burden of persuading the court that a reasonable and bona fide doubt exists as to the defendant’s mental competency, and this is a matter within the discretion of the trial court.’ Cliff v. State, 518 So.2d 786, 790 (Ala.Crim.App.1987). ‘In order to overturn the trial judge’s competency determination, we must find that the judge abused his or her discretion.’ Tankersley v. State, 724 So.2d 557, 565 (Ala.Crim.App.1998). ‘“In the absence of any evidence, the mere allegations by counsel that the defendant is incompetent to stand trial do not establish reasonable grounds to doubt the defendant’s sanity and warrant an inquiry into his competency.” ’ Id., quoting Cliff, 518 So.2d at 791.”

Hodges v. State, 926 So.2d 1060, 1068-69 (Ala.Crim.App.2005). Roberts’s claim concerned her understanding of the consequences of accepting the State’s plea offer and thereby pleading guilty should, therefore, be evaluated by the same guidelines as her competency to stand trial.

As argued by the prosecutor and stated by the trial court, the only evidence going to Roberts’s competency, other than defense counsel’s professions that Roberts was incompetent and difficult to communicate with, was a letter from a doctor of internal medicine that made no direct assertion of her ability to assist counsel in her defense or to understand basic legal proceedings.

“Generally, defense counsel’s remarks concerning his inability to communicate with his client are not entitled to any conclusive effect with respect to the issue of whether the defendant is competent to stand trial, although they should be considered by the court along with any other evidence of incompetency. Thibodeaux v. State, Tex.Cr.App., 505 S.W.2d 260 (1974); Drope v. Missouri, 420 U.S. 162, 175, 95 S.Ct. 896, 906, 48 L.Ed.2d 103 (1975); People v. Laudermilk, 67 Cal.2d 272, 61 Cal.Rptr. 644, 481 P.2d 228 (1967); Brown v. State, 346 N.E.2d 559 (Ind.1976). See also Goulden v. State, 53 AlaApp. 276, 299 So.2d 321 (1974); Moore v. State, 52 Ala.App. 179, 290 So.2d 246 (1974).”

Atwell v. State, 354 So.2d 30, 36 (Ala.Crim. App.1977) (holding that despite counsel’s continuing opinion that the defendant was insane, there was no evidence to indicate that the defendant’s mental condition at the time of the trial was different from what it was at the time of the sanity inquisition, citing United States v. Ives, 504 F.2d 935 (9th Cir.1974)). See Nicks v. State, 783 So.2d 895, 912-14 (Ala.Crim.App.1999).

The letter confirmed that Roberts’s medications for her mental illness had been changed and needed to be regulated and that she may have difficulty understanding the complexities of her decision. ‘“[T]he law is clear that “[pjroof of the incompetency of an accused to stand trial involves more than simply showing that the accused has mental problems or psychological difficulties.” ’ Thomas v. State, 766 So.2d 860, 881 (Ala.Crim.App.1998), aff'd, 766 So.2d 975 (Ala.2000), overruled on other grounds by Ex parte Taylor, 10 So.3d 1075 (Ala.2005), quoting Bailey v. State, 421 So.2d 1364, 1366 (Ala.Cr.App. 1982).” Connally v. State, 33 So.3d 618, 621-22 (Ala.Crim.App.2007). “Even a claim of present drug use does not, per se, render a defendant incompetent to stand trial. See United States v. Robinson, [530 F.2d 677 (5th Cir.1976) ]; United States v. Williams, 468 F.2d 819 (5th Cir.1972); Eathorne [v. State, 448 So.2d 445 (Ala.Crim.App.1984)].” Stephens v. State, 512 So.2d 782, 785 (Ala.Crim.App.1986), re versed on other grounds, Ex parte Stephens, 512 So.2d 786 (Ala.1987). See also Eathorne v. State, 448 So.2d at 449 (“The mere fact that Eathorne was suffering from feelings of guilt or worthlessness at the time he pled guilty is not sufficient in and of itself to render the plea involuntary. ‘(T)he mere presence of mental illness or other mental disability at the time (the defendant) entered his plea does not necessarily mean that he was incompetent to plead under the Dusky [v. United States, 362 U.S. 402 (1960),] test.’[] Bolins v. Wainwright, 597 F.2d 986, 990 (5th Cir. 1979). ‘The mental illness or disability-must have been so debilitating that (the defendant) was unable to consult with his lawyer and did not have a rational and factual understanding of the proceedings.’ Bolius, 597 F.2d at 990.”).

Here, Roberts had filed a “Motion to Continue Arraignment and Motion for Psychological Testing” approximately five months before the hearing on the motion for a continuance of the jury trial, alleging that she lacked sufficient ability to assist in her defense. In response that motion, the trial court continued the case to provide an opportunity for Roberts to be psychologically evaluated. (C. 179.) Subsequently, the trial court also ordered an evaluation of her competency to stand trial and her mental state at the time of the offense. (C. 2329.) The report filed pursuant to this evaluation indicated that Roberts was competent to stand trial:

“Ms. Roberts has a reasonable ability to appraise available legal defenses understanding the consequences for a guilty and not guilty plea and she also understood a mental state defense when that was explained to her. She demonstrated an understanding of legal strategies such as a plea bargain when those were explained to her as well. The Defendant appears fully capable of relating to defense counsel and also providing assistance in challenging prosecution witnesses. Based on current assessment there does not appear to be a likelihood of unmanageable behavior in the courtroom but that would not preclude the possibility of becoming somewhat emotional at times. The Defendant does appear capable of testifying in a relevant fashion if the need arises. All in all, the Defendant appears capable of assisting defense counsel and also assuming the role of a Defendant in a judicial proceeding.”

(C. 2868-69.)

This report was dated approximately nine months before the hearing on the motion to continue and was available to the trial court. Based on the evidence Roberts presented at the hearing, she did not prove that her condition had significantly changed since that earlier evaluation. As stated in Eathorne v. State, supra:

“Here, Eathorne did not prove that his condition had significantly deteriorated between the time he was found competent to stand trial and the time he pled guilty. Unless the circumstances change, an accused is not entitled to a separate determination of his competence to plead guilty after being found competent to stand trial because the same standard applies. United States ex rel. Heral v. Franzen, 667 F.2d 633, 638 (7th Cir.1981). See also Atwell v. State, 354 So.2d 30 (Ala.Cr.App.1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978); Annot. 37 A.L.R. Fed. 356 (1978).”

Eathorne v. State, 448 So.2d at 448. See also White v. State, 346 So.2d 22, 25 (Ala.Crim.App.1977)(holding that “the trial judge did not err in finding that, based on the previous verdict of competency, the assertions of the appellant’s counsel did not raise a bona fide doubt as to the appellant’s competency to stand trial”).

“In order to overturn the trial judge’s competency determination, we must find that the judge abused his or her discretion.” Tankersley v. State, 724 So.2d 557, 565 (Ala.Crim.App.1998). Reviewing the entire record, including the reports and hearings, we cannot say that the trial court abused its discretion. Compare Eathorne v. State, 448 So.2d at 449 (“In reviewing Eathorne’s mental capacity, we have examined the totality of the circumstances surrounding the plea. ‘Determination of the defendant’s state of mind is certainly critical in determining the vol-untariness of a plea. Ford v. United States, 418 F.2d 855 (8th Cir.1969). See Griffith v. Wyrick, 527 F.2d 109 (8th Cir.1975). However, to a large extent, it is to be determined by examining the totality of the circumstances surrounding the plea instead of solely on the basis of the defendant’s subsequent testimony. United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir.1975); Calabrese v. United States, 507 F.2d 259 (1st Cir.1974); Ford v. United States, supra. Otherwise every plea would be subject to successful attack.’ Toler v. Wyrick, 563 F.2d 372, 373-74 (8th Cir.1977).”).

II.

Roberts argues that her trial counsel was ineffective for failing to provide sufficient evidence to support her motion for a continuance and for failing to pursue a defense of not guilty by reason of mental disease or defect.

A.

Roberts’s trial counsel was not ineffective for failing to present the testimony of two doctors in support of the motion for a continuance. Roberts is referring to the doctors who had examined her and who had allegedly determined that she was incompetent to consider and participate in the plea negotiations and plea offer. She further alleges that her counsel should have requested that she be reassessed as to her competency. Had her counsel done so, she argues, the result of the proceedings might have been different. Specifically, she contends that had her reassessment shown that she was incompetent to consider the plea offer, she could have been sentenced to life imprisonment with the possibility of parole pursuant to the plea. Moreover, if she had been found incompetent to stand trial and the proceedings had been undertaken with her full participation, “the evidence as a whole would have been different, leading to a different verdict by the jury.” (Roberts’s brief, at 52.)

At the hearing on the motion for a new trial, Roberts raised the issue of ineffectiveness concerning her counsel’s alleged failure to provide the evidence necessary to support the motion for a continuance. The prosecutor argued that the contention was

“predicated on the idea that but for [defense counsel] not doing X, Y, and Z, Roberts would have pleaded guilty.... Understand or communicate or cooperate on perhaps a last minute plea offer from the State. There was no last minute plea offer. For a year and a half we were prepared to discuss some settlement that may arise from her remorse, acceptance of responsibility. And what has never changed from the moment of her arrest until today is that she has shown not one iota of remorse for the death of Darlene Roberts. It is her obstinanee that causes her to keep not having things done. Because she’s competent, it’s hard to find a doctor to come up here and say that she isn’t. Because she’s obstinate, it’s hard for people to communicate with her.”

(R. 1491-92.) The prosecutor then read from a letter Roberts wrote to the trial court praising her counsel’s performance. As to the claim that counsel should have had her competency reassessed, the prosecutor stated that Roberts was clearly “in full possession of [her] facilities” and that her problem was obstinanee. (R. 1506.)

The record reveals that trial counsel argued that he had wanted to present the testimony of the two doctors — Dr. Junkins and Dr. Grant at the hearing on the motion for a continuance but indicated that it might be difficult to do so due to their schedules. The trial court acquiesced in that comment. The letter from Dr. Jun-kins explained that he was unable to be present for the hearing because his daughter was having surgery. Trial counsel was able to present the letter from Dr. Junkins and fully argued his claim of Roberts’s alleged incompetency.

The record fails to disclose that Roberts’s trial counsel was ineffective in his attempts to present the testimony of the doctors to support the motion for a continuance. Further, there is no indication that Roberts was prejudiced by this failure. The trial court reviewed the letter sent by Dr. Junkins, which also implied that the other doctor, Dr. Grant, would most likely draw the same conclusions concerning Roberts’s medication. Nor is there any indication from the transcript of the trial proceedings that Roberts was unable to participate in her defense. The prosecutor stated that she visibly assisted and conferred with her counsel. Moreover, the trial did not commence until the week following the hearing, so there was time for the new medications to be regulated.

“The United States Supreme Court, in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established a two-pronged test to determine whether counsel was ineffective.
“‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.’
“Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish the prejudice component, ‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ 466 U.S. at 694, 104 S.Ct. at 2068.
“ ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after a conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-34, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, 350 U.S. [91] at 101, 76 S.Ct. [158] at 164, [100 L.Ed. 83 (1955) ].’
466 U.S. at 689, 104 S.Ct. at 2065. [Roberts] is required to ‘affirmatively prove prejudice’ in making claims that his attorney’s performance was deficient. 466 U.S. at 693, 104 S.Ct. at 2067.”

Nicks v. State, 783 So.2d 895, 918-919 (Ala.Crim.App.1999).

Here, Roberts has failed to prove that her counsel was ineffective in that he allegedly provided insufficient evidence to support the motion for a continuance. See Herring v. Secretary, Dep’t of Corr., 397 F.3d 1338, 1348-50 (11th Cir.2005) (rejecting ineffective-assistance claim that Herring’s counsel did not conduct a meaningful investigation into his mental condition where Herring’s mother was only the mitigation witness and counsel did not introduce evidence from hospital records in counsel’s possession showing defendant’s brain damage and mental retardation or call psychologist who evaluated defendant pretrial as having dull normal intelligence; these were tactical decisions).

B.

Roberts has also failed to meet her burden of proof under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to support her claim that her trial counsel was ineffective for failing to pursue a defense of not guilty by reason of mental disease or defect.

The record indicates that trial counsel withdrew Roberts’s plea of not guilty by reason of mental disease or defect after she was evaluated pursuant to a motion that he had filed. The forensic psychiatrist determined that, although she had a long history of mental-health-related issues and particularly suffered from bipolar disease and depression, she showed no signs that her cognitive skills were impaired. As to her mental state at the time of the offense, the report from the examiner stated:

“The Defendant at this time is able to provide extensive details and information associated with events and behaviors leading up to the index crime and also her relationship with the victim. She reports that the victim had been calling and harassing her for a long period of time. She is able to provide extensive details and information about her activities and behavior in the time frame contiguous with the. index crime. No impairment of reality contact is noted and no aberrations of thought or cognitive impediments are noted that would have interfered with her ability to appreciate the nature and quality of her actions at that time.”

(C. 2370.)

The record indicates that Roberts stalked the victim and, at the time of the offense, laid in wait for the victim to drive by, concealed her identity with sunglasses, a hooded sweat-shirt, and a baseball hat with her hair pulled up under the hat. She also wore a surgical mask to conceal her nose and mouth. She remained in the vehicle while her accomplice stood outside with the hood of the vehicle raised, pretending to need assistance. When the victim stopped to render aid, Roberts’s accomplice attempted to bind and gag her, but she escaped. Roberts chased the victim on foot, while her accomplice took up chase using the victim’s vehicle. Roberts jumped into the vehicle, and the victim was eventually found and shot.

“ ‘ “A distinction must be made between a failure to investigate the mental history of an accused and the rejection of insanity as a defense after proper investigation. ‘An attorney with considerable experience in criminal matters and, therefore, in dealing with a wide range of people ... may be presumed to have some ability to evaluate the mental capacity of his client.’ United States ex rel. Rivera v. Franzen, 594 F.Supp. 198, 202 (N.D.Ill.1984). ‘As a practical matter, when deciding whether to present an insanity defense, the criminal defendant’s lawyer is truly the final psychiatrist. It is not the role of a court to doubt his judgment.... Trial counsel may not reject the insanity defense ‘ “without pursuing the basic inquiries necessary to evaluate its merits intelligently.” ’ Rivera, 594 F.Supp. at 203. See also Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983), rehearing denied, 739 F.2d 184 (5th Cir.), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984); Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983) (‘It is only after a full investigation of all the mitigating circumstances that counsel can make an informed, tactical decision about which information would be the most helpful to the client’s case’).”
‘Dill v. State, 484 So.2d 491, 498 (Ala.Cr.App.1985) (emphasis original). See also Roy v. State, 680 So.2d 936 (Ala.Cr.App.1996).’ ”

Payne v. State, 791 So.2d 383, 401 (Ala.Crim.App.1999), affirmed, Ex parte Payne, 683 So.2d 458 (Ala.1996), quoting, Samra v. State, 771 So.2d 1108, 1120 (Ala.Crim.App.1999).

Here, although Roberts had a history of mental problems, her actions did not indicate that she was legally insane at the time of the offense and a report by a forensic psychiatrist confirmed this assessment. Defense counsel introduced expert testimony as to her mental illness for purposes of mitigation during the penalty phase of her trial, and the trial court found the existence of the mitigating factor that her capacity to appreciate the criminality of her conduct or to conform it to the requirements of law was substantially impaired. § 13A-5-51(6), Ala.Code 1975. The trial court also found the existence of the mitigating factor that the capital offense was committed while she was under the influence of extreme mental or emotional disturbance. § 13A-5-51(2), Ala.Code 1975. The trial court noted that these findings did not dispute or contradict the expert’s finding in his report concerning Roberts’s mental condition at the time of the offense, as the latter is based on the legal standard for insanity, which is different. Thus, the trial court ultimately determined that, despite the jury’s recommendation of a sentence of death, the mitigating factors outweighed the aggravating factors and sentenced Roberts to life imprisonment without the possibility of parole. Roberts’s trial counsel was thus effective in presenting sufficient evidence to persuade the judge that the lesser sentence was appropriate to her case.

“‘When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel’s conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985).’ Hallford v. State, 629 So.2d 6, 9 (Ala.Cr.App.1992).” State v. Tarver, 629 So.2d 14,17 (Ala.Cr.App.1993). Here, in light of the evidence and expert opinion, trial counsel made a tactical decision to withdraw the plea of not guilty by reason of mental disease or defect. The evidence against Roberts was overwhelming, and trial counsel was able to use the evidence concerning her history of mental disease to reduce her sentence from the advisory jury verdict of death to life imprisonment without parole. Thus, Roberts has failed to show that she suffered prejudice as the result of trial counsel’s performance.

III.

Although not raised as an issue on appeal, Roberts’s convictions and sentences violate the principles of double-jeopardy and affected the trial court’s jurisdiction. She was convicted of two counts of capital murder, as charged in Counts 2 and 3 of her indictment, for the murder of Darlene Roberts during a kidnapping. Count 2 charged that she caused Darlene Roberts’s death by shooting her with a shotgun during her abduction or attempted abduction with the intent to inflict injury upon her or to violate her sexually. Count 3 charged that she caused Darlene Roberts’s death by shooting her with a shotgun during her abduction or attempted abduction with the intent to terrorize her. These convictions are based on the same offense committed by alternative means.

In Davis v. State, 42 So.3d 162, 169 (Ala.Crim.App.2009), Davis was charged with, convicted of and sentenced for two counts of kidnapping as to each of three victims and this court determined that his right to be free from double jeopardy was violated. This Court stated:

“As previously noted, a kidnapping is complete when a victim is abducted with the intent to secrete the victim or deadly force is used or the perpetrator threatens to use such force. Commentary, § 13A-6-43, Ala.Code 1975. ‘The prime ingredient is the taking or detaining of a person against his will and without authority of law.’ Id.
“Because multiple punishments were imposed under separate subsections of § 13A-6-43, Ala.Code 1975, ‘when the actions described in each of those subsections [were] based on the same conduct of the accused against the same victim,’ double-jeopardy principles were violated. Egbuonu v. State, 993 So.2d 35, 43 (Ala.Crim.App.2007). See also Ex parte Robey, 920 So.2d 1069, 1070 (Ala.2004); and Ex parte Rice, 766 So.2d 143, 148 (Ala.1999).”

Davis v. State, 42 So.3d at 169. Thus, Davis’s convictions for multiple counts of the same offense by alternate means violated his rights to be free from double jeopardy.

Here, Roberts’s convictions for the murder of Darlene Roberts during her kidnapping by alternate means of kidnapping violated her rights to be free from double jeopardy.

Moreover, Roberts’s conviction for intentional murder, a lesser-included offense of capital murder under count 1 of the indictment, was based on the same murder. Therefore, her conviction for intentional murder also violated her rights under the Double Jeopardy Clause because they were convictions for both a greater and a lesser-included offense. See Deardorff v. State, 6 So.3d 1205, 1215 (Ala.Crim.App.2004) (convictions for capital murder for murder during a robbery and for first degree theft of property based on the same theft underlying the robbery in the capital offense violated double-jeopardy principles).

“Since the decision in Rolling [v. State, 673 So.2d 812 (Ala.Crim.App.1995) ], this Court has continued to hold that certain double-jeopardy claims implicate the jurisdiction of the trial court and, therefore, are not subject to waiver. See, e.g., Powell v. State, 854 So.2d 1206 (Ala.Crim.App.2002); Deas v. State, 844 So.2d 1286 (Ala.Crim.App.2002); Hale v. State, 831 So.2d 639 (Ala.Crim.App.2001); Peterson v. State, 842 So.2d 734, 735 (Ala.Crim.App.2001) (opinion on return to remand); Grayson v. State, 824 So.2d 804 (Ala.Crim.App.1999), aff'd, 824 So.2d 844 (Ala.2001); Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999); Loggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000); Lorance v. State, 770 So.2d 644 (Ala.Crim.App.1999); Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998); and Dozier v. State, 706 So.2d 1287 (Ala.Crim.App.1997). Like Rolling, most of those decisions involved simultaneous convictions for both a greater and a lesser-included offense.”

Straughn v. State, 876 So.2d 492, 508 (Ala.Crim.App.2003). See also, Ex parte Benefield, 932 So.2d 92, 93 (Ala.2005) (Bene-field’s claim that he could not be convicted of both first-degree rape and the lesser-included offense of first-degree sexual abuse arising out of the same act presented a jurisdictional issue).

‘ “Section 13A-l-8(b)(2), Ala.Code 1975, establishes:

“ ‘ “When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ... [o]ne offense is included in the other, as defined in Section 13A-1-9 [the lesser-included offense statute]....”
“ ‘As we stated in Adams v. State, 955 So.2d 1037 (Ala.Crim.App.2003):
““‘A defendant cannot be convicted of both a capital offense and a lesser offense that is included in the capital charge. See Mangione v. State, 740 So.2d 444 (Ala.Crim.App.1998); Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998). As this Court stated in Mangione:
“ ‘ “ ‘While the appellant was properly charged with the two capital offenses, see Borden, 711 So.2d at 503-04, n. 3, and both offenses were properly submitted to the jury, the prohibition against double jeopardy was violated when the appellant was convicted of the capital offense of murder during the course of a kidnapping under Count I of the indictment and also was convicted of the lesser-included offense of intentional murder under Count II of the indictment, because the “same murder was an element of the capital offense and the intentional murder conviction.” Borden, 711 So.2d at 503. See also Coral v. State, 628 So.2d 954, 958 (Ala.Cr.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994) (holding that the defendant’s conviction of the lesser-included offense of intentional murder under a count alleging the capital offense of murder-robbery and his conviction of the capital offense of murder-burglary violated the principles of double jeopardy where the same murder was an element of both convictions).’
“ ‘ “740 So.2d at 449.” ’ ”

Lewis v. State, 57 So.3d 807, 819 (Ala.Crim.App.2009), quoting White v. State, 900 So.2d 1249, 1270 (Ala.Crim.App.2004).

For this reason, this cause must be remanded for the entry of a new order. See Ex parte Rice, 766 So.2d 143, 152-53 (Ala. 1999)(“[A]n appellate court’s vacating one of [the defendant’s] convictions and its corresponding sentence would have the effect, albeit unintended, of nullifying a part of the jury’s verdict. We think the better approach is for the Court of Criminal Appeals to remand the case to the trial court for the entry of a new order — an order that adjudges [the defendant] guilty of [the victim’s] murder and sentences him for that single offense.”).

Thus, this cause is remanded for the trial court to enter a new order adjudging Roberts guilty of a single count of capital murder for the murder during a first-degree kidnapping of Darlene Roberts and of first-degree robbery as found by the jury and included in count one of the indictment. Due return shall be filed with this Court within 35 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

KELLUM, J., concurs. WISE, P.J., and WELCH and WINDOM, JJ., concur in the result.

      . The State offered Roberts the opportunity to plead guilty to murder and kidnapping and to be sentenced to concurrent sentences of life imprisonment in exchange for testimony against her accomplice.

      . Subsequently, during the guilt phase of the trial, Roberts presented the testimony of Dr. Junkins and, during an in camera discussion, authenticated the letter as having been written by Dr. Junkins. (R. 1092-96.)

      . The letter from Dr. Junkins states that Roberts "is most likely unable to make any meaningful decisions, understand or appreciate the severity of the decision and appears to be completely unable to appreciate the complexities of that decision.” (C. 2817.)

      . The Dusky test requires that an accused has sufficient ability to consult with his or her counsel with rational understanding and that the accused has a rational and factual understanding of the proceedings against him or her.

       Note from the reporter of decisions: On August 13, 2010, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On September 24, 2010, that court denied rehearing, without opinion. On November 12, 2010, the Supreme Court denied certiorari review, without opinion (1100039).


author: PER CURIAM.

text:
    CUSTER MEDICAL CENTER a/a/o Maximo Masis, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. SC08-2036.
    Supreme Court of Florida.
    Nov. 4, 2010.
    Rehearing Denied May 18, 2011.

      Marlene S. Reiss, Miami, FL, for Petitioner.
    Michael J. Neimand, Miami, FL, for Respondent.
   PER CURIAM.

Custer Medical Center seeks review of the decision of the Third District Court of Appeal in United Automobile Insurance Co. v. Custer Medical Center, 990 So.2d 633, 685 (Fla. 3d DCA 2008), on the basis that it expressly and directly conflicts with the decisions of this Court in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003), U.S. Security Insurance Co. v. Cimino, 754 So.2d 697 (Fla.2000), and Dorse v. Armstrong World Industries, Inc., 513 So.2d 1265 (Fla.1987). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We quash the decision below and remand for reinstatement of the decision of the circuit court appellate division. The Third District’s decision misapplied the standard of review for second-tier certiora-ri review and in doing so erroneously created new appellate jurisdiction that expressly and directly conflicts with multiple decisions involving various areas of Florida law.

FACTS AND PROCEDURAL HISTORY

On January 4, 2002, the insured, Maxi-mo Masis, was injured in an automobile accident in Miami. Masis was a passenger in a vehicle that was involved in a collision with a second vehicle that had failed to halt at a stop sign. He sought treatment from Custer Medical Center (Custer) for pain in his neck, shoulder, and lower back. Masis received medical treatment at Custer from January 8 through March 1, 2002, for which he incurred $4,250 in charges.

On January 8, 2002, Masis also completed and submitted an application for personal injury protection (PIP) benefits. Subsequently, on January 11, 2002, a law firm submitted an attorney representation letter to Masis’s insurer, United Automobile Insurance Company (United), which notified United that Masis would be making a claim for PIP benefits under his policy. In response, United established a claim file.

Upon the termination of Masis’s treatment on March 1, 2002, Custer submitted a final bill of $4,250 to United which was admittedly received by United on March 26, 2002, according to a United internal claim register and also reflected on an acknowledgment of claim letter from United dated March 26, 2002. After all medical treatment had been completed and all the respective bills submitted, United sent certified letters to Masis and his counsel dated March 27, 2002, which notified them that United had scheduled a medical examination of Masis for April 11, 2002, a date long after completion of both treatment and submission of all bills. Masis did not appear for the medical examination or answer United’s letter. United sent another request on April 12, 2002, for Masis to attend a medical examination scheduled for April 29, 2009. Masis also did not appear or answer United’s letter. As a result, on May 10, 2002, United suspended or denied Masis’s PIP benefits, effective as of April 11, 2002.

In June of 2002, Masis’s attorney notified United that the firm had withdrawn from representation of Masis. Thereafter, as Masis’s assignee, Custer filed an action in the County Court of Miami-Dade County for reimbursement of the $1,250 in medical treatment expenses that were in excess of Masis’s policy deductible. United asserted the affirmative defense that Ma-sis’s failure to appear for the scheduled medical examination was “unreasonable” as a matter of law under section 627.736(7), Florida Statutes (2001). The relevant portion of this statute provides:

If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.

§ 627.736(7)(b) (emphasis supplied). There were no claims for “subsequent” PIP benefits. All treatment was completed by March 1, 2002, and all bills and claims for benefits for this treatment were submitted before any exams were scheduled and long before the purported denial date of April 12, 2002, established by United.

During the jury trial, Custer presented the testimony of (1) a person who was in the vehicle with Masis when the accident occurred; (2) a doctor who treated Masis at Custer Medical Center; (3) the corporate representative and litigation adjuster for United; and (4) the corporate representative and records custodian for Custer. After Custer rested its case, United moved for a directed verdict without having presented any evidence on its affirmative defense.

The trial court granted United’s motion on the basis that (1) two failures to appear for medical examinations without excuse or objection to the notices constituted an unreasonable refusal to submit to the requested medical examination, and (2) in U.S. Security Insurance Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA 1997), the Third District held that an insurer is not liable for subsequent benefits after the time of an insured’s unreasonable refusal to appear at a medical examination. Moreover, the trial court stated that the only basis upon which United prevailed was Masis’s failure to appear at a medical examination, and that judgment would otherwise have been rendered in favor of Custer because it had satisfied all the elements of its claim (i.e., reasonable, related, and necessary medical expenses). The trial court discharged the jury in light of its ruling on the motion for directed verdict. Thereafter, the trial court entered a final judgment in favor of United.

Custer appealed the judgment to the Circuit Court of the Eleventh Judicial Circuit. The circuit court appellate division reversed the judgment entered pursuant to the directed verdict and remanded for a trial on the merits by reasoning that

[m]otions for directed verdict should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. Perry v. Red Wing Shoe Co., 597 So.2d 821, 822 (Fla. 3d DCA 1992). The trial judge is authorized to grant such a motion only if there is no evidence or reasonable inferences to support the opposing position. 7A[;] see also Sal[a]m v. Benmelech, 590 So.2d 1008 (Fla. 3d DCA 1991). The evidence must be considered in the light most favorable to the nonmoving party. Id.
In this case, the trial judge failed to consider the evidence in a light most favorable to the non-moving party. There is no legal authority supporting United’s position that failure to appear is “unreasonable” as a matter of law. United claimed the affirmative defense that the failure to appear was unreasonable. United therefore had the burden to show, by evidence, that the failure to attend the [medical examination] was unreasonable. Nor does the simple showing of failure to appear shift the burden of proof to the Plaintiff to prove why the insured failed to appear.... Therefore, in the absence of evidence supporting the affirmative defense, the directed verdict is premature.

Custer Med. Ctr. v. United Auto. Ins. Co., No. 04-520 AP, at 2-3 (Fla. 11th Cir.Ct. Feb. 14, 2006) (amended opinion) (emphasis supplied).

On March 1, 2006, United petitioned the Third District Court of Appeal for a writ of certiorari, contending that the circuit court appellate division violated clearly established principles of law, resulting in a miscarriage of justice. On September 5, 2007, the district court issued an initial opinion that quashed the circuit court’s decision based solely on the authority of Griffin v. Stonewall Insurance Co., 346 So.2d 97 (Fla. 3d DCA 1977), and Goldman v. State Farm General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995). In Griffin, the Third District considered the 1975 version of the PIP statute, which did not include the “unreasonable refusal ” provision, and held that an insured’s failure to comply with the condition precedent of attendance at a medical examination constituted grounds to enter judgment for the insurer. See 346 So.2d at 98. Goldman involved a homeowner’s insurance policy and the insured’s failure to attend an examination under oath pursuant to the contractual terms of the policy, which has no application in the statutorily required coverage context. See 660 So.2d at 301. The Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms. Consequently, Custer filed a motion for rehearing or rehearing en banc on the grounds that (1) the decision rested on inapplicable authority (i.e., the distinction in the earlier statute at issue in Griffin)-, (2) the district court shifted the burden to the plaintiff to disprove the defendant’s affirmative defense; and (3) the district court exercised certio-rari jurisdiction despite United’s failure to demonstrate any departure from the essential requirements of law.

Thereafter, the district court ordered the parties to supplement the record with the trial exhibits, specifically the insurance policy, and the appendix to the initial brief filed in the circuit court. In a corrected opinion, the Third District denied the motion for rehearing and rehearing en banc and elaborated on its basis for review. See United Aut. Ins. Co. v. Custer Med. Ctr., 990 So.2d 633, 635 (Fla. 3d DCA 2008) (Custer II). The Third District (1) granted the petition for writ of certiorari, (2) quashed the decision by the circuit court appellate division, and (3) remanded with directions to reinstate the directed verdict in favor of United. See id. In so holding, the Third District stated that the circuit court appellate division had departed from the essential requirements of law, but did not state the manner in which the circuit court had violated a clearly established legal principle by requiring United to present some proof of its affirmative defense before it could obtain a directed verdict in its favor on an affirmative defense. In addition, the district court considered and relied upon, for the first time, a “Conditions” provision in the policy, which had not been advanced by the parties or analyzed in any prior decision or ruling in this matter. See id. at 634.

Custer invoked this Court’s discretionary jurisdiction based on conflict between the decision below and this Court’s decisions in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003), U.S. Security Insurance Co. v. Cimino, 754 So.2d 697 (Fla.2000), and Dorse v. Armstrong World Industries, Inc., 513 So.2d 1265 (Fla.1987).

ANALYSIS

This Court has continually applied certain fundamental principles for the use of certiorari to review decisions rendered by the circuit court acting in its appellate capacity from the time common-law certiorari jurisdiction was first recognized in 1855. See, e.g., Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983); Halliday v. Jacksonville & Alligator Plank Rd. Co., 6 Fla. 304 (1855). We have consistently observed that “[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader.” Haines, 658 So.2d at 530. Therefore, when a district court considers a petition for second-tier certiorari review, the “inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,” or, as otherwise stated, departed from the essential requirements of law. Id.; see also Kaklamanos, 843 So.2d at 889-90. The departure from the essential requirements of the law necessary for granting a writ of certiorari is something more than a simple legal error. See Kaklamanos, 843 So.2d at 889 (citing Ivey, 774 So.2d at 682). Rather, a district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice. See id. (citing Ivey, 774 So.2d at 682; Heggs, 658 So.2d at 528). In Haines City Community Development v. Heggs, this Court clarified and narrowed the scope of common law certiorari jurisdiction by clearly stating that

[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.

658 So.2d at 525 (quoting Basnet v. City of Jacksonville, 18 Fla. 523, 526-27 (1882)).

Furthermore, the district courts should consider the nature of the error and grant a petition for writ of certiorari “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs, 436 So.2d at 96 (emphasis supplied). Thus, the district court’s exercise of its discretionary certiorari jurisdiction should

depend on the court’s assessment of the gravity of the error and the adequacy of other relief. A judicious assessment by the appellate court will not usurp the authority of the trial judge or the role of any other appellate remedy, but will preserve the function of this great writ of review as a “backstop” to correct grievous errors that, for a variety of reasons, are not otherwise effectively subject to review.

Heggs, 658 So.2d at 581 n. 14 (emphasis supplied) (quoting William A. Haddad, The Common Law Writ of Certiorari in Florida., 29 U. Fla. L.Rev. 207, 228 (1977)). In other words, this Court has definitively expressed that certiorari cannot be used to grant a second appeal to correct the existence of mere legal error. See, e.g., Ivey, 774 So.2d at 682-88. This is necessary because, unlike an appeal, common-law certiorari is an entirely discretionary exercise of jurisdiction by the court and is not taken as a matter of right. See G-W Dev. Corp. v. Village of N. Palm Bch. Zoning Bd. of Adjustment, 317 So.2d 828, 830 (Fla. 4th DCA 1975). A reviewing court on appeal may correct any and all errors below, whether jurisdictional, procedural, or substantive, and may modify, reverse, or remand a judgment. See Haines, 658 So.2d at 526 n. 3. In contrast, a district court cannot correct just any error that may have occurred below through a second-tier certiorari proceeding. This proceeding is considered original in the sense that the subject-matter of the action or proceeding before the court is not to be reinvestigated, tried, and determined upon the merits generally as upon appeal at law or writ of error. See id. at 525-26 (quoting Basnet v. City of Jacksonville, 18 Fla. 523, 527 (1882)). Hence, a circuit court appellate decision made according to the forms of law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as to what the law is as applied to facts, is not a departure from the essential requirements of law remediable by certiorari. See Ivey, 774 So.2d at 682 (quoting Haines City, 658 So.2d at 525).

The policy behind prohibiting certiorari to function as a second appeal is that the circuit court possesses final appellate jurisdiction in cases originating in the county court. See art. V, § 5, Fla. Const. As this Court articulated in Haines, if the role of certiorari were expanded to review the correctness of the circuit court’s decision, it would amount to a second appeal that usurps the final appellate jurisdiction of the circuit court in contravention of the Florida Constitution. See id. at 526 n. 4. This would deprive litigants of final judgments obtained in the circuit court and ignore “societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals.” Id. A more expansive review would also afford a litigant two appeals from a court of limited jurisdiction, while limiting a litigant to only one appeal in eases originating in a trial court of general jurisdiction. See id. (citing Flash Bonded Storage Co. v. Ades, 152 Fla. 482, 12 So.2d 164, 165 (1943)).

In Ivey, this Court expressed that before a district court may exercise certio-rari jurisdiction to review a decision of a circuit court acting in its appellate capacity, the district court must analyze and develop “why the [relevant] circuit court’s decision constituted a denial of procedural due process, application of incorrect law, or a miscarriage of justice.” Ivey, 774 So.2d at 683; see also Kaklamanos, 843 So.2d at 889-90 (reaffirming Ivey). Here, a three-judge panel of the circuit court issued a well-reasoned, written opinion that relied on well-established principles of law which mandate that a motion for directed verdict should only be granted if there is no evidence or reasonable inference to support the opposing position, and that the evidence must be considered in a light most favorable to the nonmoving party. See Custer Med. Ctr. v. United Auto. Ins. Co., No. 04-520 AP, at 2-3 (Fla. 11th Cir.Ct. Feb. 14, 2006) (citing Perry v. Red Wing Shoe Co., 597 So.2d 821, 822 (Fla. 3d DCA 1992)); see also Salam v. Benmelech, 590 So.2d 1008, 1009 (Fla. 3d DCA 1991). The circuit court also thoroughly supported its analysis with appropriate reference to Florida decisions. Cf. Ivey, 774 So.2d at 683. In addition, the circuit court’s opinion did nothing more than reverse a county court’s final judgment entered following a directed verdict and remand for a new trial based on well-established law with regard to directed verdicts and burdens of proof for affirmative defenses. Cf. Haines City Community Dev. v. Heggs, 647 So.2d 855, 856 (Fla. 2d DCA 1994), approved 658 So.2d 523 (Fla.1995). Hence, the decision of the circuit court did not deprive the parties of their day in court, and did not foreclose United from proving its affirmative defense on remand. See id. Accordingly, to quash the decision on review, the Third District was required to determine and support that this is one of “those few extreme cases where the appellate court’s decision is so erroneous that justice requires that it be corrected.” Combs, 436 So.2d at 95.

The Third District premised its exercise of certiorari jurisdiction on the assertion that the circuit court appellate division “departed from the essential requirements of the law.” However, similar to its decision in Ivey, the district court did not supply any correct requisite analysis or sufficient rationale with regard to the manner in which the circuit court departed from the essential requirements of law in its application of the law with regard to directed verdicts. The Third District neither clarified what the circuit court held below nor did it analyze or address why this holding departed from the essential requirements of the law. The district court opinion contains no determination that a denial of procedural due process occurred, and the district court did not express the manner in which the circuit court applied an incorrect principle of law or that the decision constituted a miscarriage of justice, “as required by this Court’s precedents.” Ivey, 774 So.2d at 683; see also Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd., 541 So.2d 106, 108-09 (Fla.1989).

Instead, the decision below conveys that the district court of appeal simply disagreed with the circuit court’s determination and interpretation of the applicable law. See Ivey, 774 So.2d at 683; Educ. Dev. Ctr., Inc., 541 So.2d at 108-09. This disagreement is evidenced by the district court’s reliance on clearly distinguishable and inapposite precedent to hold that an insured’s attendance at a medical examination is a condition precedent to the existence of an auto insurance policy that provides PIP benefits and that, consequently, the insured rather than the insurer has the burden of proof on this issue. See Custer II, 990 So.2d at 634-35. Logically, the circuit court could not have violated the essential requirements of law when that principle of law had never existed.

In addition, the district court improperly considered and incorrectly relied on language in United’s policy which was contrary to existing statutory provisions, had not been advanced by the parties below, and was never involved in the consideration of the lower tribunals in the prior proceedings. After issuing an initial opinion that lacked any reference to the conditions provision in United’s policy, the Third District ordered the record to be supplemented on rehearing with the trial transcript and evidence. The district court specifically requested that the parties provide the relevant insurance policy. The Third District then altered the fundamental underpinnings of its analysis to include a contractual provision which had not been advanced as dispositive to any issue in the proceedings below. Moreover, to support its analysis that attendance at a medical examination was a condition precedent to coverage, the district court incorrectly characterized a letter concerning Masis’s failure to attend a testimonial examination under oath in August, not a medical exam, as referencing Masis’s failure to attend the medical examinations scheduled in April. Of note, the letter does not support the Third District’s condition precedent analysis because the relevant quote in the letter is from the policy, which designates attendance at a testimonial examination under oath, not a medical examination, as a condition precedent to receiving PIP benefits.

In contrast, the medical examinations provision, which immediately precedes the verbal exam provision, does not contain any reference to a “condition precedent,” as follows:

Proof of Claim; Medical Reports and Examinations; Payment of Claim Withheld. A soon as practicable, the person making claim, (including any assignees of the injured party) shall give to “us” written proof of claim, under oath. Such person shall submit to mental or physical examinations at “our” expense when and as often as “we” may reasonably require. A copy of the medical report shall be forwarded to such a person if requested in writing. If the person unreasonably refuses to submit to an examination “we” will not be liable for subsequent personal injury protection benefits.

(Emphasis supplied.) Moreover, the letter relied upon by the Third District was not advanced by the parties as relevant to consideration of the circuit court’s decision and is contrary to the statutory provisions of mandatory PIP coverage.

Thus, the district court’s actions and analysis are simply an improper de novo review in a “second appeal” rather than the limited review permitted on second-tier certiorari and incorrect in both substance and approach. By expanding its scope of review, the Third District again

created a new category of appellate review never before recognized under Florida law and in express and direct conflict with authority to the contrary. District courts have never been allowed to review decisions, under the guise of certiorari jurisdiction, simply because they are dissatisfied with the result of a decision of a circuit court sitting in its appellate capacity. Certiorari relief should not be afforded so differently in our various appellate courts.

Ivey, 774 So.2d at 683.

In sum, the Third District did not consider or set forth a sufficient correct legal basis and analysis with regard to the manner in which the relevant circuit court decision denied procedural due process or departed from the essential requirements of the law resulting in a miscarriage of justice, which is a jurisdictional prerequisite to review a circuit court’s appellate decision through a petition for writ of cer-tiorari. Instead, the Third District merely disagreed with the result of the circuit court without supplying a proper and sufficient legal basis for second-tier certiorari review under Haines, Ivey, and Kaklama-nos. Accordingly, the district court misapplied the standard of review for second-tier certiorari review and therefore inappropriately exercised its discretionary jurisdiction.

As in Ivey, the Third District not only “incorrectly expand[ed] the scope of certio-rari by permitting what, in essence, amounted to a second appeal,” but also rendered a result that is “contrary to well established and recognized principles of existing PIP law” and general civil procedure. Ivey, 774 So.2d at 683. Specifically, the Third District held that attendance at a medical examination and testimonial exam without counsel are conditions precedent to coverage not merely benefits. This is contrary to the general principles of law concerning affirmative defenses and conditions precedent, as well as the principles underlying the PIP statute.

The purpose of the no-fault statutory scheme is to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey, 774 So.2d at 683-84 (quoting Gov’t Emps. Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)). To this end, section 627.736(4)(b) provides that PIP insurance benefits “shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” After an insurance company receives notice of a claim, the insurer has the opportunity to evaluate a claim through procedures such as a medical examination. In pertinent part, section 627.736(7), Florida Statutes (2001), provides:

(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians.... Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal injury protection insurance benefits....
(b) ... If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.

(Emphasis supplied.) If an insured unreasonably refuses to submit to a medical examination under this statute, the insurer is no longer liable for subsequent PIP benefits. See De Ferrari v. Gov’t Emps. Ins. Co., 613 So.2d 101,103 (Fla. 3d DCA 1993). The medical reports and medical examination provision of Masis’s policy tracked the statutory language but the testimonial exam without counsel provision did not. Further, the Third District relied on a conditions provision in the personal injury protection section of the policy which is in conflict with the PIP statute and the medical exam provisions of both the PIP statute and the policy.

An affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action and the plaintiff is not bound to prove that the affirmative defense does not exist. See Langford v. McCormick, 552 So.2d 964, 967 (Fla. 1st DCA 1989); see also Storchwerke, GMBH v. Mr. Thiessen’s Wallpapering Supplies, Inc., 538 So.2d 1382, 1383 (Fla. 5th DCA 1989); Black’s Law Dictionary 482 (9th ed. 2009). The defendant has the burden of proving an affirmative defense. See Hough v. Menses, 95 So.2d 410, 412 (Fla.1957). Specifically, a defending party’s assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense, for which the defensive pleader has the burden of pleading and persuasion. See, e.g., United Auto. Ins. Co. v. Rousseau, 682 So.2d 1229, 1230 (Fla. 4th DCA 1996) (identifying “failure to comply with conditions precedent” as an affirmative defense); United Auto. Ins. Co. v. Zulma, 661 So.2d 947, 948 (Fla. 4th DCA 1995) (similar); see also Fla. R. Civ. P. 1.120(c) (“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”). Furthermore, in Dorse v. Armstrong World Industries, Inc., 513 So.2d 1265, 1269 n. 5 (Fla.1987), this Court recognized that the burden of proving each element of an affirmative defense rests on the party that asserts the defense. See also Hough v. Menses, 95 So.2d 410, 412 (Fla.1957); Cullum v. Packo, 947 So.2d 583, 536 (Fla. 1st DCA 2006); Braid Sales & Mktg., Inc. v. R & L Carriers, Inc., 838 So.2d 590, 592 (Fla. 5th DCA 2003); Pierson v. State Farm Mut. Auto. Ins. Co., 621 So.2d 576, 578 (Fla. 2d DCA 1993); Henderson Dev. Co. v. Gerrits, 340 So.2d 1205, 1206 (Fla. 3d DCA 1976).

Based on the above, under Florida law, the circuit court was correct that United clearly had the burden of pleading and proving its affirmative defense; therefore, it was required to present evidence to the fact-finder that Masis unreasonably failed to attend a medical examination without explanation after having received proper notice. Initially, a failure to attend a medical examination is not automatically considered a “refusal” under the statute. See Lamora v. United Auto. Ins. Co., No. 00-031 AP, 8 Fla. L. Weekly Supp. 542, 542 (Fla. 11th Cir. Ct. June 19, 2001) (“Assuming arguendo that her failure to appear could be determined as a matter of law to be a ‘refusal’ ....”). In addition, there are scenarios in which an insured could reasonably refuse to submit to an examination. See § 627.736(7)(b), Fla. Stat. (2001); Cimino, 754 So.2d at 701-02. Thus, the failure to attend a medical examination may or may not be unreasonable depending upon the evidence presented by the insurer. Additionally the status of both prior and subsequent benefits must be considered. See Tindall v. Allstate Ins. Co., 472 So.2d 1291, 1293-94 (Fla. 2d DCA 1985) (summary judgment limited to only subsequent benefits). United concedes that it has the burden of proving its affirmative defense, but contends that it did so through the evidence presented during Custer’s case-in-chief. ' United advances an incorrect principle that once it presented evidence of notice and the insured’s failure to attend the medical examination without explanation or objection, the burden of proof allegedly shifted to Custer to demonstrate a reasonable reason for Masis’s failure to attend. Further, even if correct, which it is not, an unreasonable refusal would apply to only subsequent benefits, not the facts of this case.

During the examination of United’s litigation adjuster, a letter sent by United on May 10, 2002, to Masis’s attorneys was placed in evidence. The letter notified the attorneys that United was suspending or terminating benefits as of April 11, 2003, based on Masis’s failure to attend the medical examinations scheduled for April 11, 2002, and April 29, 2002. This is the only evidence concerning the failure to attend a medical examination that was in evidence prior to United’s motion for directed verdict after Custer rested. Thus, there was no evidence of a “refusal,” which has been characterized as distinct from evidence that establishes only that an insured failed to attend a medical examination. See La-mora, 8 Fla. L. Weekly Supp. at 542. In addition, the trial court reviewed, and the record contains, two notices scheduling medical examinations. However, these documents were neither in evidence nor used for identification purposes during trial. Accordingly, the trier of fact was not presented with affirmative evidence that Masis actually received notice of the scheduled medical examinations or that any failure was unreasonable. Consequently, the Third District affirmed the grant of a directed verdict in favor of a defendant based upon an affirmative defense for which the defendant had not presented any evidence whatsoever and with regard to benefits sought in connection with medical expenses incurred and claims submitted prior to the medical examination at issue.

Even if United could prove its affirmative defense through evidence presented during Custer’s case-in-chief, the record does not establish that United presented sufficient evidence to support a directed verdict based on its affirmative defense. As correctly articulated by the circuit court, motions for direct verdict should only be granted when there is no evidence or reasonable inference to support the opposing position. See Perry, 597 So.2d at 822. Moreover, it is the function of the jury to weigh and evaluate the evidence. See id. “Unless the evidence as a whole with all reasonable deductions to be drawn therefrom points to only one possible conclusion, the trial judge is not warranted in withdrawing the case from the jury and substituting her own evaluation of the weight of the evidence.” Id. As the movant, United had the burden of demonstrating the absence of any material issue of fact. -See Lamora, 8 Fla. L. Weekly Supp. 542 (reversing directed verdict that was based solely on the trial court’s determination that an insured’s failure to appear to two scheduled medical examinations constituted an unreasonable refusal as a matter of law). In Lamora, the circuit court held that the reasonableness of an insured’s conduct is a question of fact for the jury, not a question of law for the court. See id.; see also Montero v. Oak Cas. Ins. Co., Nos. 99-35 AP & 00-008 AP, 8 Fla. L. Weekly Supp. 601, (Fla. 11th Cir.Ct. July 24, 2001) (holding that where the insured presented substantial evidence from which the jury could have concluded that he had not received notification of the medical examination, and therefore did not unreasonably fail to attend, it was error for “the trial judge to ‘sit as a seventh juror’ and set aside the jury’s verdict”) (quoting Perry, 597 So.2d at 822). Consequently, the directed verdict was premature because United had not demonstrated the absence of any material issue of fact for the jury (i.e., the reasonableness of the failure or application to prior benefits).

Lastly, the Third District held that an insured’s attendance at a medical examination is a condition precedent to the existence of an auto insurance policy that provides PIP benefits and that, consequently, the insured rather than the insurer has the burden of proof on this issue. To support this holding, the district court misapplied clearly distinguishable and in-apposite precedent. For example, the primary case that the Third District relied upon below was Griffin v. American General Life & Accident Insurance Co., 752 So.2d 621 (Fla. 2d DCA 1999), which involved a life insurance policy. The context of life insurance is materially distin guishable from the PIP context because medical examinations are actually conditions precedent to the issuance and existence of life insurance policies. In other words, a life insurer may not enter into an insurance contract with a prospective insured until the insured submits to a medical examination to explore whether there exists any disqualifying pre-existing medical conditions.

In contrast, medical examinations in the context of PIP benefits are not scheduled prior to the existence of a policy or prior to an injury but instead occur only after an insured has sustained an accident and submits notice to an insurer after a policy has been issued and injuries have been sustained. Attendance at a medical examination may be a condition precedent to the payment of subsequent PIP benefits or, perhaps more accurately, an “unreasonable ” failure to attend a requested medical examination may be a condition subsequent that divests the insured’s right to receive further subsequent PIP benefits. See U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 699, 701-02 (Fla.2000) (indicating that attendance at a PIP medical examination is a condition precedent to the receipt of subsequent PIP benefits and that section 627.736 contemplates “a situation ... where the insured ‘reasonably refuses to submit’ ” to a medical examination). The plain text of section 627.736(7)(b), Florida Statutes (2001), supports the analysis presented in Cimino: “If a person unreasonably refuses to submit to an examination, the [PIP] carrier is no longer liable for subsequent [PIP] benefits.” § 627.736(7)(b), Fla. Stat. (2001) (emphasis supplied). Accordingly, when parties to an auto insurance policy dispute attendance at a medical examination, neither the insurer nor the insured is contesting the policy’s existence, as the Third District incorrectly stated in its decision below. See Custer II, 990 So.2d at 635 (quoting and relying upon Griffin, 752 So.2d at 623). To the contrary, these parties are simply in a dispute with regard to the insured’s continued right to receive subsequent PIP benefits under an existing insurance policy.

In addition, United Automobile Insurance Co. v. Zulma, 661 So.2d 947 (Fla. 4th DCA 1995), and De Ferrari v. Government Employees Ins. Co., 613 So.2d 101 (Fla. 3d DCA 1993), which the Third District relied upon below, do not support the decision in Custer II. First, in Zulma, the Fourth District stated that attendance at a medical examination is a condition precedent to the receipt of subsequent PIP coverage or benefits (not a condition precedent to the policy’s existence) and that pleading the failure to attend a PIP medical examination is an affirmative defense, which the defensive pleader must establish if the case progresses to trial. See 661 So.2d at 948-49. Interestingly, United was also the insurer in Zulma and, in that case, this same insurer conceded that under section 627.736(7), Florida Statutes, “[the insurer] would have to prove that [the insured] unreasonably refused to submit to an examination,” which is contrary to the position later adopted by the Third District in Custer II. See Zulma, 661 So.2d at 948. Second, De Ferrari is inapposite because in that decision (a) the district court expressly limited its holding to “uninsured motorist benefits,” and did not address PIP coverage, (b) the decision involved a summary judgment based upon undisputed facts, not a directed verdict entered immediately following the plaintiffs case, and (c) the insurer pled the unreasonable failure to attend a medical examination as an affirmative defense (not as a condition precedent to the policy’s existence). See 613 So.2d at 102-03.

Lastly, Cimino does not support the Third District’s assertion in Custer II that attendance at a medical examination is a condition precedent to the existence of an auto insurance policy. See Custer II, 990 So.2d at 635 (quoting and relying upon Griffin, 752 So.2d at 623). First, Cimino primarily established that an insured was entitled to have counsel present and a recording made during a PIP medical exam. Second, Cimino established that attendance at a medical examination is a condition precedent to the receipt of only subsequent PIP benefits under an existing auto insurance policy or, perhaps more accurately, that the failure to “reasonably” attend a requested medical examination is a condition subsequent, which divests the insured of the right to receive subsequent PIP benefits. See 754 So.2d at 701-02.

In Tindall v. Allstate Ins. Co., 472 So.2d 1291, 1293 (Fla. 2d DCA 1985), the district court reasoned that an unreasonable refusal of a claimant to submit to an examination would relieve the insurer only of future liability for PIP benefits, not medical expenses already incurred. The court in Tindall specifically reversed a summary judgment in favor of an insurer and ordered that the trial court consider the benefits due before the failure to appear for a requested medical exam. The failure to attend impacted only medical expenses incurred after the date of the requested exam. Thus, contrary to the Third District’s analysis in Custer II, Tin-dall and Cimino establish under a different statutory provision the principles that (1) because an insured may reasonably refuse to attend a medical examination, a mere allegation or demonstration of simple failure to attend is insufficient to prove that an insured unreasonably refused to submit to the medical examination, and (2) attendance at a medical examination is not a condition precedent to the payment of benefits for prior antecedent PIP benefits under an existing auto insurance policy. More importantly, Cimino is completely inapplicable to the circumstances of the decision below because Cimino considered the requirements for attendance at a medical examination when the

insured is claiming an entitlement to continued benefits and the insurer is questioning the necessity for same. In order to continue receiving benefits the insured must comply with the requirements of the insurance contract and section 627.736. The insured is required to comply with a PIP examination in order to continue to receive the contractual benefits.

752 So.2d at 701 (emphasis supplied). Here, Custer sought reimbursement for medical treatment that had already been completed and claims submitted before United requested a medical examination. Moreover, the medical examination was scheduled for a date long after completion of treatment and submission of all bills. Thus, this is not in any way analogous to the factual circumstances of Cimino because the claim in the present case did not seek continued benefits, but rather benefits related to previously completed services and claims submitted.

Accordingly, the district court relied on inapposite and distinguishable authority to incorrectly hold that an insured’s attendance at a medical examination is a condition precedent to the existence of an auto insurance policy that provides PIP benefits and that, consequently, the insured rather than the insurer had the burden of proof on this issue. In addition, the evidence does not establish that United proved its affirmative defense, and consequently, United failed to establish that no material fact existed as to its affirmative defense, which was necessary to support a directed verdict on that defense. The circuit court in its appellate capacity afforded due process, applied the correct law, did not depart from the essential requirements of the law, and was eminently correct in the decision rendered.

CONCLUSION

Accordingly, we quash the decision below and remand for reinstatement of the circuit court’s decision.

It is so ordered.

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

POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs.

POLSTON, J., dissenting.

I would not exercise jurisdiction.

CANADY, C.J., concurs.

      . Although the district court of appeal mentions a letter of September 9, 2002, that letter is related to a purported verbal examination under oath with a prohibition of the presence of counsel for an insured, not a medical exam. The concept of a verbal examination under oath is not relevant due to the posture of this case and positions of the parties. The only argument in this case at the trial court, circuit court, and district court of appeal was based upon medical exams and the failure to attend medical exams. A purported verbal exam under oath without counsel in the PIP context is invalid and more restrictive than permitted by the statutorily mandated coverage and the terms and limitations permitted under the statutory provisions. The prohibition of policy exclusions, limitations, and non-statutory conditions on coverage controlled by statute is clear. See Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002) (noting that courts have an obligation to invalidate exclusions on coverage that are inconsistent with the purpose of the statute that mandates the coverage); Salas v. Liberty Mut. Fire. Ins. Co., 272 So.2d 1, 5 (Fla.1972) (recognizing that insurance coverage that is a creature of statute is not susceptible to the attempts of the insurer to limit or negate the protection afforded by the law); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 232-34 (Fla.1971) (stating that automobile liability insurance and uninsured motorist coverage obtained to comply with or conform to the law cannot be narrowed by the insurer through exclusions and exceptions contrary to the law); Diaz-Hernandez v. State Farm Fire & Casualty Co., 19 So.3d 996, 1000 (Fla. 3d DCA 2009) (concluding that a provision in a policy was invalid because it was against the public policy of the statute); Vasques v. Mercury Cos. Co., 947 So.2d 1265, 1269 (Fla. 5th DCA 2007) (stating that restrictions on statutorily mandated coverage must be carefully examined because exclusions that are inconsistent with the purpose of the statute are invalid) (citing Flores, 819 So.2d at 745). PIP insurance is markedly different from homeowner’s/tenants insurance, property insurance, life insurance, and fire insurance, which are not subject to statutory parameters and are simply a matter of contract not subject to statutory requirements.

      . The trial court attempted to apply Silva, which is not applicable to these facts. Silva addressed a claim based on bills submitted only “subsequent” to a medical examination. Here, it is clear that all bills were incurred and submitted prior to the request for a medical examination, the date of such examination, and the date of denial established by United. There were no bills to submit "subsequent” to that date.

      . In Haines, this Court concluded that " 'applied the correct law' is synonymous with ‘observing the essential requirements of law.' " 658 So.2d at 530.

      . The parties advance multiple arguments concerning factual issues and the underlying merits of this action. However, the trial court is in the best position to determine the underlying merits during a new trial. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) ("When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”).