author: BURKE, Judge.

text:
    Andere JACKSON v. STATE of Alabama.
    CR-10-1269.
    Court of Criminal Appeals of Alabama.
    Feb. 10, 2012.
    Rehearing Denied April 20, 2012.
    Certiorari Denied June 15, 2012 Alabama Supreme Court 1110978.

      Mary W. Craig, Roanoke, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   BURKE, Judge.

Andere Jackson was convicted of felony murder, pursuant to § 13A-6-2(A)(3), Ala. Code 1975. Jackson was sentenced to 35 years’ imprisonment; the sentence to be served concurrently with any other sentences he was serving, and he was given credit for 784 days in jail. The circuit court also ordered Jackson to pay restitution of $2,500 to Melissa Russell and $5,000 to the Alabama Crime Victims Compensation Fund, as well as pay a victim’s compensation fund award of $200. Jackson was also ordered to pay court costs and attorney fees. Jackson filed a motion for judgment of acquittal or, in the alternative, for a new trial. Jackson’s postjudgment motion was denied. This appeal follows.

Jackson was arrested on March 19, 2009, and was charged with two counts of capital murder resulting from the death of Derrick Reynolds. On January 19, 2010, Jackson was indicted by the Tallapoosa County grand jury for capital murder for killing Reynolds during a robbery and for capital murder for killing Reynolds during a kidnapping. On March 26, 2010, Jackson was arraigned, and he entered a plea of not guilty. Jackson’s trial commenced on April 4, 2011. After the conclusion of the State’s evidence, Jackson moved for a judgment of acquittal on the ground that the State failed to present sufficient corroborative evidence of the testimony of his alleged accomplices. After both sides rested, Jackson orally renewed his motion for a judgment of acquittal, which was denied. On April 7, 2011, the jury returned its verdict, finding Jackson guilty of the lesser-ineluded offense of felony murder. On April 11, 2011, Jackson filed a motion for a judgment of acquittal or, in the alternative, for a new trial. Jackson was sentenced on May 2, 2011, and Jackson’s postjudgment motion was denied on May 3, 2011. On May 9, 2011, Jackson filed a notice of appeal.

At trial, the State presented evidence from accomplices that tended to show the following.

On or about March 10, 2009, Rodriquez Jackson (“Rodriquez”) telephoned Shakila Brisker and told her he wanted to rob someone in Alexander City. Brisker and Jasmyne Gilbert suggested Derrick Reynolds as a victim because he had a lot of money. Between February 4, 2009, and March 16, 2009, Jackson and Cornelius Harris discussed robbing Reynolds with Brisker at her cousin Rhonda Dunn’s house in Wetumpka. There was no plan to kill Reynolds during the robbery.

On March 17, 2009, Brisker, Gilbert, Jackson, Harris, and Rodriquez met at Gilbert’s apartment in Alexander City to plan the robbery of Reynolds. The plan was for Jackson to subdue Reynolds and bind him with tape. Harris was to put the gun to his head and escort him into an empty apartment next door to Gilbert’s apartment; Rodriquez would be in the apartment with Jackson. Brisker testified that she and Jackson had previously gone to the Russell Do-It Center building supply store and that Jackson purchased duct tape and a pair of gloves. Gilbert told Brisker that Reynolds was on his way to the apartment, and everyone then took their positions. When Reynolds pulled up to the apartment, he was forced at gunpoint to enter the apartment, where Jackson was waiting with the duct tape. Harris testified that he was outside the apartment but looked through the door and saw Rodriquez holding a gun against Reynolds’s head and Jackson looking through Reynolds’s pockets. Rodriquez stated that he was about to shoot Reynolds, despite Harris and Jackson’s telling him not to shoot. Brisker, who was still in Gilbert’s apartment next door, heard fighting and struggling in the apartment and then she heard a gunshot. At that point, everyone left the apartment in Reynolds’s truck. The truck was later found abandoned and the stereo system was missing. The next day, Gilbert went to the empty apartment and discovered Reynolds’s body. Brisker then called emergency 9-1-1.

The State presented nonaccomplice testimony that included the following:

Stewart Cummings, an Alexander City Fire Department paramedic, and Lt. Fred Roth of the Alexander City Police Department testified regarding their response to an emergency call on March 18, 2009, in which they found a body in an empty apartment, its hands and feet wrapped with duct tape. Once they identified the body as Reynolds, agents and investigators collected evidence at both the crime scene and in Reynolds’s truck to search for fingerprints, DNA, footprints, and any other identifying evidence. Alabama Bureau of Investigation agent Casey Ott testified that despite the fact that the condition of the apartment indicated a struggle, no fingerprints were found at the crime scene. At least three shoe impressions were made at the crime scene from footprints left by three different length tennis shoes; however, the record does not indicate that any identification was made from any of the evidence collected.

Dr. 'Stephen Boudreau, senior state medical examiner for the Department of Forensic Sciences and the director of the Montgomery laboratory, performed the autopsy of Reynolds’s body. Dr. Bou-dreau testified that a small piece of a cloth work glove was found sticking out of Reynolds’s palm, stuck to the duct tape around his wrists.

Kanisha Mullins had known Reynolds for approximately two months when Reynolds was killed. Mullins stated that she brought Reynolds to her birthday party, where he met Gilbert, Brisker, Jackson, Harris, and Rodriquez. Shortly after March 17, 2009, Mullins was at her aunt’s home, and Harris came there. At that time, Mullins’s aunt told Harris to get out of her house because she had heard a rumor that Jackson, Rodriquez, Harris, Brisker, and Gilbert were involved in the killing of Reynolds.

Randall Lynn Causey, an employee of the Russell Do-It Center, testified that on March 17, 2009, a young black male came into the store and purchased two pairs of brown cloth work gloves, like ones used for gardening, and a roll of duct tape. However, Causey did not identify Jackson as the individual who made the purchase.

On appeal, Jackson argues that the circuit court erred in denying his motion for a judgment of acquittal. Specifically, Jackson argues that the State failed to present evidence corroborating the testimony of his alleged accomplices; therefore, he says, there was insufficient evidence to sustain his convictions. In Jackson’s reply brief, Jackson contends that Mullins’s testimony that her aunt ordered Harris out of her house because she had heard that Harris and several others, including Jackson, were involved in Reynolds’s murder was nothing more than mere speculation and conjecture and thus was not sufficiently corroborative of accomplice testimony.

The State argues that the accomplice testimony was corroborated by nonac-complice evidence tending to connect Jackson to the crime. The State contends that it provided testimony from 14 witnesses who were not accomplices; however, the State admits that only 4 of the individuals gave testimony “tending” to connect Jackson to the crime. (State’s brief, at 21-23.) Particularly, the State claims that there was sufficient corroborating evidence provided in Mullins’s testimony that Mullins’s aunt ordered Harris out of her house because she had heard a rumor that Harris and several others, including Jackson, were involved in Reynolds’s murder. Because this evidence tends to show the likelihood of Jackson’s involvement, the State says, it is different than mere conjecture, surmise, or speculation, and therefore it can be corroborative of accomplice testimony. Further, the State contends that the fact that Jackson was included in the rumor evidence tends to illustrate the small likelihood of Rodriquez and Harris’s “ever going anywhere with beer drinking in mind and not taking along -with them their lifelong friend, and fellow Copeland Road crew member, Andere Jackson.” (State’s brief, at 26.)

In Alabama, the statutory definition of felony murder is as follows:

“(a) A person commits the crime of murder if he or she does any of the following:

“(3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.”

§ 13A-6-2(a)(3), Ala.Code 1975. Further, in regard to a felony conviction, Alabama law states the following:

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

§ 12-21-222, Ala.Code 1975.

Accomplice testimony must be corroborated with more than a recitation of the facts of the offense. Section 12-21-222, Ala.Code 1975, states that “[a] conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

“The reason for such a rule is obvious. The accomplice knows the details of the crime because he was present and a participant and can recite those details whether or not the accused was a participant in the offense.
“... ‘This is why it is incumbent upon the State to present evidence independent of the accomplices’ which connects the defendant to the commission of the crime. Else, any guilty party is apt to implicate an innocent party in exchange for a grant of immunity from prosecution.’ Lindhorst v. State, Ala.Cr.App., 346 So.2d 11, at 15 (1977), cert. denied, Ala., 346 So.2d 18.
“Our legislature recognized a fact which has never been recognized in federal law — that a guilty party, when offered immunity from prosecution, will point an accusing finger in any direction to avoid prosecution. The more serious the penalty, the more likely a false accusation will occur. Thus, our legislature, in order to protect the innocent and to preserve the presumption of innocence, has required additional evidence for a conviction in such cases via § 12-21-222, [Ala.Code 1975].”

Reed v. State, 407 So.2d 153, 158 (Ala. Crim.App.1980), reversed on other grounds, 407 So.2d 162 (Ala.1981). See Hergott v. State, 639 So.2d 571, 573 (Ala. Crim.App.1993) (“The purpose of § 12-21-222 was to ensure that the testimony of a guilty party testifying in return for leniency from the state would not alone be sufficient to convict another. An accomplice’s testimony must be corroborated before a conviction of felony could be had.”).

“ ‘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)).

To corroborate has been defined by this Court 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, criminating force of his testimony.’ ” Kuenzel v. State, 577 So.2d 474, 518 (Ala. Crim.App.1990) (citations 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)). The corroboration does not need to be sufficiently strong on its own to warrant a conviction, but it must tend to connect the defendant to the crime. Miles v. State, 476 So.2d 1228, 1234 (Ala.Crim.App.1985). As this Court has repeatedly explained, “ ‘[e]orroboration 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)).

This Court has stated the following regarding the necessary accomplice corroboration:

“ ‘[I]t 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).”

Green v. State, 61 So.3d 386, 392 (Ala. Crim.App.2010).

Additionally, the minimum requisites of the corroborative testimony are as follows:

“a) Fact (or circumstance) of substantive character;
“b) Fact (or circumstance) tending to prove guilt;
“c) Fact (or circumstance) which is unequivocal (and certain) in character (i.e., inconsistent with the innocence of accused);
“d) Fact (or circumstance) tending legitimately to connect defendant with crime (must do more than raise a suspicion of guilt);
“e) Semble, opinion evidence alone to corroborate must concern itself with some object or fact (i.e., an opinion, standing by itself, of a trait or likelihood of human conduct would be not of substantive character).
“See also McElroy, Law of Evidence in Alabama (2d Ed.), § 300.01.”

Evans v. State, 42 Ala.App. 587, 591, 172 So.2d 796, 800 (Ala.App.1965).

“Corroborating evidence need not refer to any particular statement or fact testified to by an accomplice, but if it strengthens the probative criminating force of the accomplice’s testimony and tends to connect the defendant with the commission of the offense, it is sufficient to warrant the submission of the case to the jury.” White v. State, 48 Ala.App. Ill, 117, 262 So.2d 313, 319 (Ala.Crim.App. 1972) (citations omitted). This Court has repeatedly held that “ ‘evidence which merely raises a conjecture, surmise, speculation, or suspicion that [the] accused is the guilty person is not ... sufficiently corroborative of the testimony of an accomplice to warrant a conviction.’ 23 C.J.S. Criminal Law, Section 812(5)(b).” Steele v. State, 512 So.2d 142, 143-144 (Ala.Crim.App.1987) (quoting Staton v. State, 397 So.2d 227, 232 (Ala.Crim.App. 1981)). Furthermore, this Court has held that “non-accomplice evidence confirmatory of the way and manner in which the crime was committed but which is colorless and neutral insofar as the defendant’s connection with the crime is concerned, is not sufficient corroboration to warrant submission of the case to the jury.” Bowdoin v. State, 444 So.2d 911, 912 (Ala.Crim.App. 1984) (quoting Lindhorst v. State, 346 So.2d 11,13-14 (Ala.Crim.App.1977)).

Guided by these principles and applying the rule that requires us to subtract the testimony of Jackson’s accomplices, and examine the remaining evidence in the present case, the record does not support a finding that there was sufficient evidence to corroborate the accomplice’s testimony that Jackson was involved in the commission of the felony murder. There was no evidence presented through the testimony of the four individuals that the State contends connects Jackson to the crime that indicated more than a mere speculation of Jackson’s involvement.

In Ex parte McCullough, 21 So.3d 758, 761 (Ala.2009), the Alabama Supreme Court, in applying the principles set forth above, held that a witness’s testimony that the two male perpetrators might have been black or might have been wearing ski masks did nothing more than identify the burglars as males, possibly black or possibly wearing ski masks, and did nothing more than raise a speculation of the defendant’s guilt. Id. Therefore, the McCullough Court found that the testimony was insufficient to corroborate the testimony of the defendant’s accomplices. Id. In the present case, the nonaccomplice testimony from Causey that a young black male purchased duct tape and gloves from a building-supply store, even if taken along with the fact that it was apparent to the jury that Jackson was a black male, does nothing but raise a mere speculation of Jackson’s guilt. See Ex parte McCullough, 21 So.3d at 761. Causey’s testimony does not identify Jackson as the purchaser of the duct tape and gloves. Therefore, this evidence is insufficient corroboration of the accomplice testimony and does not establish a connection between the defendant and the commission of the offense.

Additionally, testimony given by agent Casey Ott that the condition of the crime scene indicated a struggle, despite no finding of fingerprints, does not connect Jackson to the crime. Similarly, the testimony of Dr. Stephen Boudreau that a small piece of work glove was found stuck to the duct tape around Reynolds’s wrist does not connect Jackson to the crime. These particular facts tend to indicate only that gloves were used during the commission of the crime and do not connect any specific individual, including Jackson, to the crime. As such, this evidence is nonaccomplice evidence that confirms the way and manner in which the crime was committed but that is colorless and neutral insofar as Jackson’s connection with the crime is concerned. See Bowdoin v. State, 444 So.2d 911, 912 (Ala.Crim.App.1984). Thus, this evidence is not sufficient corroboration of accomplice testimony.

Furthermore, the State most heavily relied on Kanisha Mullins’s testimony — that Mullins’s aunt ordered Harris out of her house because of a rumor she had heard circulating that Harris, along with Jackson, Rodriquez, Brisker, and Gilbert were involved in Reynolds’s murder — and attempted to show that because Jackson was included in the rumor and because of their pattern and practice of hanging around together, there was a “high and very real likelihood that it would have been Andere Jackson, and no one else, who would have been in Alexander City with Rodriquez Jackson and Cornelius Harris at Shakila Brisker’s apartment on the day of the murder.” State’s brief, at 28. However, although corroborating evidence need only be slight and can be circumstantial, it still must tend to connect the accused with the commission of the crime. See McGowan v. State, 990 So.2d 931, 987 (Ala.Crim.App. 2003). It is not enough to show that Jackson was rumored to be involved in the crime or that Jackson and other accomplices often socialized together. This testimony creates only conjecture, speculation, or suspicion that Jackson is the guilty person and, thus, is not sufficiently corroborative of accomplice testimony to warrant a conviction.

Therefore, the State failed to present evidence in accordance with § 12-21-222, Ala.Code 1975, that tends to connect Jackson to the crime of felony murder; thus, we conclude that the trial court erred when it denied Jackson’s motion for a judgment of acquittal.

Based on the foregoing, the judgment of the trial court is reversed and a judgment is rendered for Jackson.

REVERSED AND JUDGMENT RENDERED.

WINDOM, P.J., and WELCH, KELLUM, and JOINER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terance VALENTINE, Appellant, v. STATE of Florida, Appellee. Terance Valentine, Petitioner, v. Kenneth S. Tucker, etc., Respondent.
    Nos. SC10-1463, SC11-427.
    Supreme Court of Florida.
    May 17, 2012.
    Rehearing Denied Sept. 14, 2012.

      Bill Jennings, Capital Collateral Regional Counsel, Ali Andrew Shakoor, Richard Edward Kiley, and James Viggiano, Jr., Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Carol Marie Dittmar, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Terance Valentine appeals an order of the circuit court denying his motion to vacate his conviction for first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.850. He also petitions this Court for a writ of habe-as corpus. For the reasons that follow, we affirm the denial of his motion and deny his habeas petition.

I. BACKGROUND

Terance Valentine met and married Livia Romero prior to emigrating with her to the United States from their native Costa Rica. Valentine v. State, 616 So.2d 971, 972 (1993) (Valentine I). In New Orleans, the couple adopted a child, but eventually divorced in 1986. Id. Romero later “married” Ferdinand Porche and moved with him to Tampa to start a family. Id. After learning of the couple’s “marriage” and relocation, Valentine began placing telephone threats to the couple’s home. Id. In September of 1988, Valentine brutally attacked Romero and Porche in their home, drove the couple to a remote location, and shot them both in the head. Id. The trial court’s sentencing order describes Valentine’s attack as follows:

On September 9, 1988, Ferdinand Porche returned to his home in mid-afternoon expecting to meet his pregnant wife and small child. Instead he was greeted by a bullet in the back which [severed his spinal cord and] rendered him paralyzed from the waist down. Mr. Porche was then confronted by Mr. Valentine who announced “this is my revenge.” Mr. Porche was forced to crawl into a bedroom where he found his wife nude, bound, and gagged and his baby crying and covered in blood. Mr. Valentine then pistol whipped Mr. Porche. Mr. Porche’s face was lacerated, his jaw was broken, and several teeth were knocked out. According to the medical examiner there were at least three separate blows to Mr. Porche’s face. After administering this beating Mr. Valentine made his purpose clear, announcing, “I’m gonna kill you, but you’re gonna suffer. This is not going to be easy.” Further tortuous acts included stabbing Mr. Porche in the buttocks — the knife stopping only because it struck bone, kicking Mr. Porche in the chest, and dragging him after he was bound hand and foot with [baling] wire. The medical examiner testified that all of the above injuries occurred while Mr. Porche was alive, that none was immediately life threatening, and none would immediately result in a loss of consciousness. Mrs. Porche testified that Mr. Porche told her he was in so much pain that he did not know why he did not lose consciousness. Mrs. Porche testified she could feel him touch her as if to reassure her while they were in the back of the Blazer being transported [to an isolated area].
While the fatal gunshot resulted in near instantaneous loss of consciousness and death, the ordeal leading up to his death was quite lengthy. Mr. Porche was beaten and degraded in his home. Trussed like an animal he was kidnapped and taken on a nine-mile trip to his slaughter. Either due to the gunshot wound to his spine or through the stress of the ordeal Mr. Porche lost control of this bowels and was covered with his own excrement.
Paralyzed and bound hand and foot with wire there was nothing Mr. Porche could do to save himself. Nor was there anything he could do to protect his wife, who he knew was the ultimate object of Mr. Valentine’s barbarous intent. Nor could he know what would happen to his ten-month-old daughter or what would become of Mrs. Porche’s adopted child. The horror, terror and helplessness that Ferdinand Porche experienced prior to being shot in the eye at point blank range are evident.

Valentine v. State, 688 So.2d 313, 314-16 (Fla.1996) (Valentine II).

Somehow, Romero survived the attack and identified Valentine as her attacker. Valentine I, 616 So.2d at 972. After being released from the hospital, Romero received another series of threatening phone calls from Valentine, which she recorded with a telephone and recorder supplied by the police. Id. Valentine was later apprehended and was charged with armed burglary, two counts of kidnapping, grand theft, first-degree murder for the death of Porche, and attempted first-degree murder for the shooting of Romero. Id.

“Valentine was convicted on all counts, the jury recommended death on the first-degree murder charge by a ten-to-two vote, and the judge imposed a sentence of death, finding three aggravating circumstances and three mitigating circumstance[s]. This Court reversed the conviction and vacated the sentence due to a jury selection error under State v. Neil 457 So.2d 481 (Fla.1984). On retrial, Valentine was again convicted on all counts but this time he waived the jury advisory sentence and presented mitigating evidence directly to the judge.” Valentine II, 688 So.2d at 315.

During the penalty phase, Valentine presented the testimony of three lay witnesses, one of whom was his older sister, and a joint stipulation that Dr. Gamache, a forensic psychologist, found Valentine to be able to adjust well to prison life and make a positive contribution if he were to receive a life sentence. The sentencing court found four aggravators and four mitigators and sentenced Valentine to death. After Valentine was again convicted on all charges and resentenced to death, this Court, on direct appeal, reversed Valentine’s conviction for attempted first-degree murder but affirmed his death sentence because the commission in the course of a violent felony aggravator was still supported by Valentine’s armed burglary and kidnapping convictions. Id. at 317-18.

Valentine’s postconviction motion, as amended, raised* fourteen claims and numerous subclaims. A Huff hearing was held, and Valentine was granted an eviden-tiary hearing on multiple claims of ineffective assistance of counsel. Following the evidentiary hearing, the trial court denied all of Valentine’s claims. Valentine now appeals the denial of his postconviction motion and petitions this Court for a writ of habeas corpus.

II. POSTCONVICTION MOTION

Valentine raises the following arguments: (A) counsel was ineffective for failing to object or otherwise prevent Livia Romero from being referred to or portrayed as divorced from Valentine and married to Ferdinand Porche; (B) counsel was ineffective for failing to adequately investigate and uncover mental health mitigation; and (C) the postconviction court erred in summarily denying three ineffective assistance of counsel claims. As explained below, we affirm the trial court’s denial of relief.

A. Failure to Object to the Portrayal of Livia Romero as Divorced from Valentine and Married to Porche

Valentine claims that counsel was ineffective for failing to object or otherwise prevent Livia Romero from being referred to and or portrayed as being divorced from Valentine and married to Ferdinand Porche throughout his trial. We disagree.

During the guilt phase, Romero testified that she divorced Valentine and married Ferdinand Porche in Louisiana. However, during Romero’s cross-examination, defense counsel demonstrated that no record existed of either the divorce or the subsequent marriage to Porche. At Valentine’s postconviction evidentiary hearing, the prosecutor who tried Valentine’s case explained that there “was a big issue of whether or not [Valentine and Romero] had a valid divorce” and that she never fully resolved the issue because “Louisiana records and laws were very difficult to get to the bottom of.” The prosecutor also explained that Romero held herself out as Livia Porche and believed herself married to Porche and that Romero was addressed accordingly at trial. Valentine’s guilt phase counsel also testified at the hearing and explained that he had determined that Valentine and Romero had never actually become divorced. He then explained that he had proven this fact to the jury by impeaching Romero through the introduction of Louisiana records which showed that no divorce or marriage involving Romero had occurred.

Based on the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has explained that an ineffective assistance of counsel claim must satisfy a two-pronged test to succeed:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

Under Strickland’s deficiency prong, there is a strong presumption that counsel’s performance was not ineffective. Strickland, 466 U.S. at 690,104 S.Ct. 2052. Further, “[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.” Id. at 689,-104 S.Ct. 2052. We have also explained that, regarding deficiency, “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). It is the defendant’s burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689,104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158,100 L.Ed. 83 (1955)).

Because each prong of Strickland presents a mixed question of law and fact, this Court uses a mixed standard of review whereby it defers to factual findings of the trial court that are supported by competent, substantial evidence, but reviews the trial court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

Here, Valentine has not demonstrated deficiency under Strickland. Defense counsel’s decision to impeach Romero through the introduction of documents that proved that she was still married to Valentine and had not married Porche was a reasonable strategic decision that would have undermined Romero’s credibility in the eyes of the jury. See Charles W. Ehrhardt, Florida Evidence § 608.6 (2012 ed.) (“[T]he credibility of a witness may be attacked by evidence tending to contradict a material fact stated in the testimony of the witness.”); see also Eaton Corp. v. Votour, 895 So.2d 466, 468 (Fla. 1st DCA 2005) (explaining that a witness’s credibility is called into question when that witness is impeached by contradiction). Indeed, defense counsel testified at the evidentiary hearing that the use of the name Livia Porche and the portrayal of Romero as being married to Porche would not have confused the jury because the jurors would have understood that Romero could not be married to Valentine and Porche at the same time. Counsel made a strategic decision to impeach Romero and was not, therefore, .deficient in his performance. See Occhicone, 768 So.2d at 1048.

Accordingly, because Valentine has not demonstrated deficiency under Strickland, we affirm the trial court’s denial of relief. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[Tjhere is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one”).

B. Failure to Adequately Investigate Mental Health Mitigation

Next, Valentine claims that penalty phase counsel was ineffective for failing to adequately investigate and uncover mental health mitigation. We disagree.

Defense counsel had Valentine examined by Dr. Gamache, a forensic psychologist. During his consultation for Valentine’s defense, Dr. Gamache reviewed documents and records from Valentine’s prior incarceration, met with Valentine for a three-hour interview and examination, and also consulted with Valentine’s attorneys regarding his findings. Dr. Gamache did not find any evidence of a mental health issue with Valentine, and ultimately was only able to conclude that Valentine would adapt well to prison and would be able to make a positive contribution if he were given a life sentence.

At his evidentiary hearing, Valentine presented the testimony of Dr. Dee, a clinical psychiatrist. Dr. Dee testified that, based on the recordings of the phone calls that Valentine placed to Romero prior to his arrest and the penalty phase testimony of Valentine’s sister, he believed that Valentine could have a mental disease or defect. Dr. Dee then conducted a lengthy battery of interviews and testing with Valentine. Based on the results, Dr. Dee testified that he believed that Valentine was brain-injured and was operating under an extreme mental or emotional disturbance at the time of the crime. Notably, however, Dr. Dee also testified that Valentine was “tight lipped” about his mental and emotional history, kept potentially useful information to himself, and even lied to his attorneys and investigators about any potential mental or emotional infirmity. Dr. Dee explained that Valentine was a proud man who would do everything he could to appear intelligent and capable.

This Court has stated that “an attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” State v. Riechmann, 777 So.2d 342, 350 (Fla.2000). And “investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence.’ ” Blackwood v. State, 946 So.2d 960, 974 (Fla.2006) (quoting Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). This duty to investigate and prepare mitigation exists even where the client objects. See Henry v. State, 937 So.2d 563, 573 (Fla. 2006).

And, where experts are used to investigate and prepare mental health mitigation, “defense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.” Darling v. State, 966 So.2d 366, 377 (Fla.2007). Further, the presentation of more favorable testimony in postconviction proceedings does not render counsel’s investigation into mitigation deficient. See Davis v. State, 875 So.2d 359, 372 (Fla.2003); Rivera v. State, 859 So.2d 495, 504 (Fla.2003); see also Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir.1997) (“[T]he mere fact a defendant can find, years after the fact, a mental health expert who will testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that expert at trial.”).

Here, Valentine’s defense counsel was not deficient. Defense counsel conducted a thorough investigation of Valentine’s background in preparation for both the guilt and penalty phases of his trial. Valentine’s counsel and an investigator made multiple trips to Costa Rica to locate witnesses for both the guilt and penalty phases. Trips were also made to Louisiana and Texas as part of the investigation into Valentine’s background. Defense counsel actively conferred with Valentine regarding his defense and trial strategies. And, even though Valentine never indicated to defense counsel, verbally or otherwise, that he could even potentially have a mental health issue, defense counsel had Valentine examined by a mental health expert. We cannot conclude that Valentine’s counsel, based on these efforts, failed to adequately investigate “all reasonably available ” mitigation evidence. Black-wood, 946 So.2d at 974 (quoting Wiggins, 539 U.S. at 524,123 S.Ct. 2527).

We similarly reject any argument that counsel was somehow deficient for failing to uncover the mental deficiencies from which Valentine now claims to suffer. Valentine’s attorneys diligently had him examined by a forensic psychologist despite the fact that they did not have any indication that Valentine could potentially suffer from any mental infirmity. Indeed, Valentine’s attorneys testified that, had there been any indication that Valentine had a mental issue, they would have had him evaluated to an even greater extent by a mental health expert. Following Dr. Ga-mache’s evaluation of Valentine, Dr. Ga-mache could only determine that Valentine could do well and make a positive contribution in prison. This finding is entirely consistent with the impressions that Valentine’s attorneys already had formed regarding Valentine’s mental health. Defense counsel was “entitled to rely on the evaluations conducted by [his] qualified mental health expert! ].” Darling, 966 So.2d at 377.

We also reject Valentine’s argument that defense counsel was ineffective for failing to provide Dr. Gamache with the recordings of the phone calls that Valentine made to Romero. ' Defense counsel made a reasonable strategic decision by opting not to provide Dr. Gamache with the recordings of the phone calls because the recordings would have reflected negatively on Valentine. See Bradley v. State, 33 So.3d 664, 678-79 (Fla.2010) (“We conclude that trial counsel’s decision not to provide his experts with one page of mental health records suggesting that Bradley might be prone to violence without his medications ... [was a] strategic choice! ] based on an informed and reasoned plan of action.”). During the postconviction proceedings, Dr. Dee admitted that Valentine’s phone calls to Romero, in which Valentine threatened Romero and demanded that Romero have the charges against him dropped, could have been Valentine’s rational attempt to scare Romero or intimidate her into not testifying. Defense counsel’s decision to withhold the phone calls reasonably avoided providing detrimental materials to his mental health expert. See id.

Finally, we reject Valentine’s argument that defense counsel was deficient for failing to provide Dr. Gamache with the penalty phase testimony of Valentine’s sister because the penalty phase had not taken place when Dr. Gamache examined Valentine and because Valentine failed to present any evidence that defense counsel even knew what the sister’s penalty phase testimony would ultimately be.

Because Valentine has not demonstrated deficiency under Strickland, we affirm the trial court’s denial of this claim.

C. Summary Denial of Ineffective Assistance of Counsel Subclaims

Valentine next argues that the trial court erred by summarily denying three ineffective assistance of counsel subclaims in which he argued that his counsel should have objected to prosecutorial misconduct during the course of the prosecution’s guilt-phase closing arguments. Because the postconviction motion and the record in this case conclusively demonstrate that Valentine is entitled to no relief, we affirm the trial court’s summary denial.

We have previously stated that, in postconviction proceedings, “a movant is entitled to an evidentiary hearing unless the [postconviction] motion and record conclusively show that the movant is entitled to no relief.” Valle v. State, 705 So.2d 1331, 1333 (Fla.1997). Upon review of a trial court’s summary denial of a postconviction claim, the factual allegations raised, to the extent that they are not refuted by the record, must be accepted as true. Franqui v. State, 59 So.3d 82, 95 (Fla.2011). A defendant is normally entitled to an evidentiary hearing on a post-conviction motion “unless (1) the motion, files, and records in the case conclusively show that the movant is entitled to no relief, or (2) the motion or particular claim is legally insufficient.” Id. Further, a defendant may not merely make conclusory allegations because it is the defendant who bears the burden of establishing “a prima facie case based on a legally valid claim.” Id. at 96. The postconviction court’s decision as to whether to grant an evidentiary hearing on a postconviction motion is tantamount to a pure question of law and is therefore reviewed de novo. Id. at 95.

1. First Alleged Instance of Prosecuto-rial Misconduct.

Valentine first alleges that the prosecutor argued facts not in evidence during closing arguments by stating: “[Defense Counsel] says that the shooting didn’t happen in the back seat of the Blazer, but he ignores the testimony of Dr. Miller that said that there is blood spatter on this Blazer” and that defense counsel’s failure to object to this statement denied him the effective assistance of counsel.

We have previously explained that counsel cannot be deemed ineffective for failing to object to a fair comment which is based on the evidence presented during the trial. Spann v. State, 985 So.2d 1059, 1068 (Fla.2008) (citing Mungin v. State, 932 So.2d 986, 997 (Fla.2006)). Here, the officer who photographed the Chevy Blazer in which Porche’s body was found testified that the photos he took showed blood spatter throughout the Blazer. The forensic pathologist who autopsied Porche’s body also noted that the photos showed that there was blood spatter in the Blazer. Because the prosecutor’s comment was supported by the evidence, counsel cannot be deemed ineffective for failing to object. See Schoenwetter v. State, 46 So.3d 535, 546 (Fla.2010) (“[C]ounsel cannot be deemed ineffective for failing to make a meritless objection.”) (quoting Hitchcock v. State, 991 So.2d 337, 361 (Fla.2008)).

2. Second Alleged Instance of Prosecu-torial Misconduct.

Second, Valentine argues that the prosecution improperly attacked the defense’s case, improperly expressed personal belief as to the validity of Valentine’s alibi defense, and improperly bolstered the prosecution’s case by stating:

Now, [defense counsel] wants you to believe that [Romero] is lying and to have you believe that she is lying, he has to provide you with a motivation for why she was lying and so her motivation is this Costa Rican divorce. He somehow wants you to believe and wants to suggest to you that it is this woman, as she was laying there, bound, bloodied, naked, wondering if she was going to live or die, not knowing if she would ever see her children again, she thought, “Hey, if I say [Valentine] did it, maybe he has got some property in Costa Rica and I will get an attorney, and we will do a property search, and maybe I will get half.”

Valentine claims that his attorney’s failure to object to this comment denied him the effective assistance of counsel.

“[T]his Court [has] held that an attorney’s role in closing arguments is to simply assist the jury in analyzing, evaluating, and applying the evidence, including the attorney’s suggestions as to what conclusions can be drawn from the evidence.” Williamson v. State, 994 So.2d 1000, 1012 (Fla.2008). “Except to the extent [the prosecutor] bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses.” Ruiz v. State, 743 So.2d 1, 4 (Fla.1999) (emphasis added) (quoting United States v. Garza, 608 F.2d 659, 662 (5th Cir.1979)). Similarly, a prosecutor may not ridicule a defendant or his theory of the case, nor may a prosecutor express personal belief in the accused’s guilt in a case. See Ruiz, 743 So.2d at 4; see also Riley v. State, 560 So.2d 279 (Fla. 3d DCA 1990). However, “prosecutorial comments are not improper where, incident to evaluating a witness’ credibility, jurors are told to ask themselves what motive the [witness] would have to deceive them.” Johnson v. State, 801 So.2d 141, 142 (Fla. 4th DCA 2001).

In context, the challenged comment was not improper. The prosecutor did not ridicule or otherwise improperly attack the defense’s theory of the case; she merely described the defense’s theory of the case and stated that the defense wanted the jury to “somehow” believe that theory. Compare Ruiz, 743 So.2d at 5-6 (finding that the prosecutor improperly ridiculed the defense by stating “[tjhere’s no way, no stretch of the imagination because let me tell you one thing, if [the defendant] were Pinoechio, his nose would be so big none of us would be able to fit in this courtroom”) (emphasis omitted), with Craig v. State, 510 So.2d 857, 865 (Fla. 1987) (finding that the prosecutor’s references to the defendant testifying untruthfully and being a “liar” were not improper because “[w]hen counsel refers to a witness or a defendant as being a ‘liar,’ and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence”). Indicating to the jury that, based on the evidence of the case, they should question the plausibility of the defense’s theory of the case is within a prosecutor’s role of assisting the jury to consider and to evaluate the evidence presented. See Hildwin v. State, 84 So.3d 180, 191 (Fla.2011) (“Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.”) (quoting Merck v. State, 975 So.2d 1054, 1061 (Fla.2007)). It is also proper for a prosecutor to ask the jury to consider what motive a witness would have to lie. See Johnson, 801 So.2d at 142. Further, the prosecutor’s comments did not improperly express her personal belief as to Valentine’s guilt. Any objection to these comments would have been merit-less, and trial counsel cannot be deemed ineffective for failing to make a meritless objection. See Schoenwetter, 46 So.3d at 546.

3. Third Alleged Instance of Prosecuto-rial Misconduct.

Lastly, Valentine argues that trial counsel was ineffective for failing to object to the following comment, which he claims improperly bolstered the prosecution’s case:

What motive does anybody in the world have to do this to Livia Proche [sic] except the man who so hated her and who thought that she was keeping him from his child and who thought that she had his belongings and that they were rightfully his? What other person in the world would do this to Livia Porche and Ferdinand Porche and, before taking them out of the scene, would take the time and the trouble to subject her to the degradation [of] having photos of her mother and having photos of her husband [and] children shredded and dropped over her body? Who else would do this commando raid into that house and really not take anything except the life of her husband? Who else was calling her and telling her to disappear? No one. No one in this world.

“Improper bolstering occurs when the State places the prestige of the government behind the witness or indicates that information not presented to the jury supports the witness’s testimony.” Williamson, 994 So.2d at 1013 (quoting Hutchinson v. State, 882 So.2d 943, 954 (Fla.2004)). But “[m]erely arguing a conclusion that can be drawn from the evidence is permissible fair comment.” Griffin v. State, 866 So.2d 1, 16 (Fla.2003).

The challenged comment was not improper. In this context, comments of this sort are properly within the prosecutor’s role in presenting evidence to the jury and suggesting what conclusions can be drawn from that evidence. See Williamson, 994 So.2d at 1012. Fairly read, this comment is the state’s argument that, based on the evidence adduced at trial and contrary to the defense’s alibi theory, no other person than Valentine would have had a motive to act in the way that Romero and Porche’s assailant acted. See Hild-win, 84 So.3d 180. At no point did the prosecution make any comment that could be seen as placing the government’s credibility or prestige behind a witness. Nor did the prosecutor indicate that there was additional, undisclosed evidence that was indicative of Valentine’s guilt. The record clearly demonstrates that these were “permissible fair comment[s]” made by the State. Griffin, 866 So.2d at 16. Accordingly, defense counsel was not ineffective for failing to object. See Sehoenwetter, 46 So.3d at 546.

Because the record conclusively demonstrates that Valentine is entitled to no relief, we affirm the trial court’s summary denial of Valentine’s ineffective assistance of counsel subclaims.

III. HABEAS PETITION

In his petition for writ of habeas corpus, Valentine claims that (A) appellate counsel was ineffective for failing to argue on direct appeal that he was denied a fair trial as a result of prosecutorial misconduct, and (B) and that his Eighth Amendment right against cruel and unusual punishment may be violated because he may not be competent at the time of his execution.

A. Ineffective Assistance of Appellate Counsel

Valentine first argues that he was denied the effective assistance of appellate counsel because appellate counsel failed to argue on direct appeal that Valentine was denied a fair trial as a result of prosecuto-rial misconduct. We disagree; Valentine’s claim is both procedurally barred and without merit.

Ineffective assistance of appellate counsel claims are properly brought in a petition for a writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). In order for habeas relief to be granted for ineffective assistance of counsel, this Court must determine

first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). “[I]f a legal issue would in all probability have been found to be without merit had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Wyatt v. State, 71 So.3d 86, 112-13 (Fla.2011) (quoting Walls v. State, 926 So.2d 1156, 1175-76 (Fla.2006)). “In fact, appellate counsel is not necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivolous issue.” Valle v. Moore, 837 So.2d 905, 908 (Fla.2002) (citing Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), and Provenzano v. Dugger, 561 So.2d 541, 549 (Fla.1990)). Unpreserved errors cannot successfully be raised on appeal unless they amount to fundamental error. See Poole v. State, 997 So.2d 382, 890 (Fla.2008).

Valentine’s habeas petition attempts to reargue substantive claims of prosecutorial misconduct that were already raised in his postconviction motion and addressed above. See Spencer v. State, 842 So.2d 52, 60 (Fla.2003) (“We conclude that [the defendant’s] substantive claims of prosecutorial misconduct could and should have been raised on direct appeal and thus are procedurally barred from consideration in a postconviction motion.”). This Court has repeatedly stated that motions for habeas corpus relief may not be used as a second appeal for substantive issues that have already been raised or that are procedurally barred. Swafford v. Dugger, 569 So.2d 1264, 1266 (Fla.1990) (“Allegations of ineffective assistance of appellate counsel may not be used to evade the rule against using habeas corpus as a second appeal.”).

Moreover, Valentine is not entitled to relief because he has not demonstrated deficiency. Only one of the prosecutor’s comments that Valentine argues was improper was objected to at trial and preserved for review on direct appeal, and Valentine has not identified any additional rulings from his trial that amount to fundamental error. See Patton v. State, 878 So.2d 368, 379 (Fla.2004) (“In the absence of fundamental error, appellate counsel cannot be deemed ineffective for failing to raise [an] unpreserved issue.”). The lone comment to which Valentine objected at trial was the prosecution’s statement that Valentine’s sister had been called the day after the crime but did not give information as to Valentine’s location. Valentine’s objection was properly overruled as being a fair comment based on evidence that had been adduced at trial, specifically the testimony of a police officer who had called Valentine’s sister the day after the crime in an effort to find Valentine and who did not hear back from her until after Valentine had been apprehended. See Griffin, 866 So.2d at 16 (“Merely arguing a conclusion that can be drawn from the evidence is permissible fair comment.”). Valentine’s remaining grounds of alleged prose-cutorial misconduct were addressed above in Section II-A and are meritless. Because the record clearly demonstrates that the challenged comments were not improper, appellate counsel cannot be ineffective for failing to raise a meritless argument. See Wyatt, 71 So.3d at-114-15.

Accordingly, we deny relief on Valentine’s claim of ineffective assistance of appellate counsel.

B. Competency at Time of Execution

Finally, Valentine contends that his Eighth Amendment right against cruel and unusual punishment will be violated because he may be incompetent at the time of his eventual execution. Valentine acknowledges that this claim is not ripe for review since a death warrant has not been issued and asserts that he raises this issue for preservation purposes only. We have repeatedly held that no relief is warranted under similar circumstances. See, e.g., Gonzalez v. State, 990 So.2d 1017, 1035 (Fla.2008) (rejecting claim that defendant may not be competent at the time of execution where defendant acknowledges that claim is not ripe for review and was being raised only for preservation purposes) (citing State v. Coney, 845 So.2d 120,137 n. 19 (Fla.2003)); see also Jones v. State, 845 So.2d 55, 74 (Fla.2003); Hall v. Moore, 792 So.2d 447, 450 (Fla.2001). Valentine, therefore, is not entitled to relief on this claim.

IV. CONCLUSION

For the reasons set out above, we affirm the denial of postconviction relief and also deny Valentine’s habeas petition.

It is so ordered.

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

CANADY, C.J., concurs in result.

QUINCE, J., recused.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . As will be discussed below, this divorce never legally took place.

      . As will be discussed below, Romero never legally married Porche.

      . In aggravation, the sentencing court found: (1) Valentine was convicted of a prior violent felony; (2) Valentine committed murder in the course of a burglary and kidnapping; (3) the murder of Ferdinand Porche was heinous, atrocious, or cruel; and (4) the murder of Ferdinand Porche was committed in a manner that was cold, calculated and premeditated. Valentine, 688 So.2d at 316 n. 4. The trial court’s sentencing order stated, without specifying what weight was given to which aggra-vators, that "the aggravating circumstances present in this case outweigh the mitigating circumstances present."

      . In mitigation, the sentencing court found and gave slight weight to each of the following: (1) the crime was out of character for Valentine and occurred in the course of a single period of aberrant behavior; (2) Valentine is a skilled worker who can be expected to contribute to the prison system; (3) Valentine has a large family that will love and support him while he is in prison; (4) Valentine did not resist arrest, has adapted well to incarceration, is likely to function well in prison, has been a model inmate without disciplinary problems, and has behaved appropriately in court and in jail. Valentine, 688 So.2d at 316 n. 5.

      . On direct appeal, Valentine claimed that the trial court erred by (1) finding that the husband and wife privilege did not bar Romero's testimony about Porche’s murder; (2) denying Valentine's motion to suppress post-arrest statements that Valentine had made to the police; (3) denying Valentine's motion to strike testimony by the state’s footprint expert on the ground that the testimony was too speculative; (4) declining Valentine’s motion to appoint a jury selection expert; (5) not allowing Valentine to have the concluding argument before the jury even though Valentine had presented alibi witnesses during his defense; (6) giving the jury the standard jury instruction on reasonable doubt; (7) convicting Valentine of attempted first-degree murder because the conviction could rest on attempted felony murder, which is a nonexistent offense; (8) finding the murder to have been cold, calculated, and premeditated; and (9) failing to find several mitigators. Valentine, 688 So.2d at 316 n. 6.

      . The jury was instructed on two possible theories, attempted first-degree felony murder and attempted first-degree premeditated murder, and the verdict did not state on which ground the jury relied. Valentine, 688 So.2d at 317. After Valentine was sentenced, this Court held in State v. Gray, 654 So.2d 552 (Fla. 1995), that attempted first-degree felony murder does not exist in Florida. Because the jury may have relied on an improper theory, Valentine’s conviction for attempted first-degree murder was reversed. Valentine, 688 So.2d at 317.

      . Valentine claimed: (1) his conviction could not be sustained because the alleged name of the victim was “Livia Porche” and the only proof offered showed that the victim’s name was “Livia Maria Romero”; (2) the trial court erred by denying his motion to sever all counts in the indictment relating to Ferdinand Porche; (3) the trial court erred in allowing the introduction of inculpatory recorded communications that were deliberately elicited from Valentine after he had been indicted; (4) "fruit of the poisonous tree” should not have been introduced at trial because it resulted from Valentine’s illegal arrest; (5) law enforcement failed to advise the Costa Rican consulate of Valentine’s arrest and also failed to advise Valentine of his rights to contact the consulate under the Vienna Convention on Consular Relations; (6) he was denied a fair trial due to prosecutorial misconduct during closing argument which rendered the guilty verdicts fundamentally unfair and unreliable; (7) he was improperly convicted of grand theft because the property that was allegedly stolen was a marital asset acquired during Valentine’s marriage to Romero; (8) he was improperly sentenced to death because his vacated conviction for attempted murder was the sole support for the prior violent felony aggravator found by the sentencing court; (9) the trial court erred in failing to file written reasons for its departure from the sentencing guidelines; (10) the prosecutor directed an illegal search of Valentine’s jail cell and improperly ■ seized Valentine’s personal papers; (11) that, as explained in fifteen subclaims, he was denied effective assistance of counsel; (12) he was denied effective assistance of counsel by penalty phase counsel’s failure to investigate and uncover mental health mitigation and by penalty phase counsel's failure to otherwise prepare for the penalty phase of the trial; (13) he was deprived of a fair trial due to cumulative procedural and substantive error; (14) his right to be free from cruel and unusual punishment will be violated because he may not be competent at the time of his execution.

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

      . Valentine also claims that cumulative error warrants relief. However, Valentine is not entitled to such relief because each alleged instance of error is procedurally barred or meritless or both. See Bradley v. State, 33 So.3d 664, 684 (Fla.2010).


text:
    WCI COMMUNITIES, INC., a Florida corporation, Appellant, v. Colin STAFFORD, Appellee.
    No. 2D07-3724.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2009.
   The parties’ joint motion for dismissal of the appeal is granted and the appeal is dismissed. Accordingly, the opinion dated November 13, 2009, is hereby withdrawn.


author: ALTENBERND, Judge.

text:
    Michael Eugene AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-161.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    Rehearing Denied April 22, 2010.
    Michael Eugene Akins, pro se.
   ALTENBERND, Judge.

Michael Eugene Akins appeals an order in a postconviction proceeding that denied his motion to correct an illegal sentence. Since his original sentence in 1991, he has filed more than thirty such appeals. Nevertheless, the argument that he raises is supported by Ashley v. State, 850 So.2d 1265 (Fla.2003), and Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996), as well as by discussion in this court’s opinion in Barron v. State, 827 So.2d 1063 (Fla. 2d DCA 2002), and by the outcome in White v. State, 892 So.2d 541 (Fla. 1st DCA 2005). Although we disagree with at least part of the analysis in Evans, it was approved by the supreme court in Ashley. We are not convinced that we can distinguish these cases. Accordingly, we reverse the order on appeal and hold that Mr. Akins’ sentence is illegal because the trial judge inadvertently failed to announce that the sentence imposed on violation of probation remained a habitual offender sentence. At the conclusion of this opinion, we certify a question to the Florida Supreme Court.

I.

When Mr. Akins was sentenced in 1991 for a sale of cocaine that occurred in 1990, he was designated a habitual felony offender. As a result, the maximum legal sentence he could receive for this second-degree felony was thirty years’ imprisonment. See §§ 775.084(4)(a)(2), 89S.13(l)(a)(l), Fla. Stat. (1989). The trial court imposed a true split sentence of thirty years’ imprisonment, suspended after twenty years, with the remainder of the sentence served on probation. No one argues that the sentence imposed in 1991 was incorrect, unlawful, or illegal.

After approximately twelve years in prison, Mr. Akins was released in early 2003 to serve the remainder of his sentence on probation. Thus, he had received gain time or other credits allowing him to be released approximately eight years earlier than the full twenty-year term of imprisonment.

Mr. Akins violated his probation in 2004. He admitted the violation in November 2004. As a result, the trial court had the option of revoking his probation and sentencing him to prison for the remaining term of the true split sentence. The trial judge realized that any new sentence would cause a substantial loss of gain time for Mr. Akins. The trial court did not wish to impose a term of imprisonment that could result in Mr. Akins serving another eighteen years in prison. Accordingly, after a lengthy discussion of jail credit and other issues, the trial court imposed a sentence of five years’ imprisonment with no term of probation thereafter.

During this discussion, no one suggested that Mr. Akins did not retain his status as a habitual offender. It is obvious that the judge and both lawyers were working on the assumption that Mr. Akins retained his status as a habitual offender and they were trying to ameliorate the severity of the true split sentence for Mr. Akins’ benefit. Nevertheless, when the trial court finally announced the sentence of five years’ imprisonment, it did not orally announce that the earlier determination that Mr. Akins qualified and would be sentenced as a habitual offender remained the status of his case.

When the sentence on revocation was reduced to writing, it did not indicate that Mr. Akins was serving his sentence as a habitual felony offender. In 2005, Mr. Akins challenged the calculation of jail credit in his new sentence. While adding additional jail credit to benefit Mr. Akins, the court added language explaining that the sentence was imposed as a habitual felony offender sentence. Since that clarification, Mr. Akins has attempted to convince the courts that his “guidelines” sentence imposed upon revocation of probation in 2004 could not lawfully be transformed into a habitual offender sentence in 2005.

II.

As explained later in this opinion, this court and the trial court have previously assumed that Mr. Akins’ issue was not a double jeopardy issue because he was declared to fall within the status of a habitual offender when his original true split sentence was imposed. In light of the holding in Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996), which was approved by the supreme court in Ashley v. State, 850 So.2d 1265 (Fla.200S), we conclude that we must treat the modification of the sentence in 2005 as a violation of double jeopardy.

In Evans, the defendant received a forty-year term of imprisonment as a habitual offender in 1993. 675 So.2d at 1013. That sentence was fully suspended, and he was placed on probation. In other words, he appears to have received a true split sentence with no initial time in prison. When the defendant violated his probation, similar to this case, there was a hesitancy to give the defendant a full forty-year term of imprisonment. Thus, the court expressly vacated the true split sentence and resen-tenced the defendant to a total of twenty years in prison. Id. During that resen-tencing, the court did not announce that the sentence was imposed under the defendant’s status as a habitual offender. Id. at 1014. Two days later, the defendant was returned to court, and the court attempted to clarify that the twenty-year sentence was imposed as a habitual offender sentence. Id. On appeal, the Fourth District recognized that the failure to state that the defendant remained a habitual offender was probably a mere oversight, but it nevertheless ruled that it was “unequivocally a violation of double jeopardy.” Id.

In Ashley, the supreme court considered a case in which there was an inadvertent failure to announce a defendant’s status as a habitual violent felony offender during his initial sentencing. 850 So.2d 1265. The case did not involve a violation of probation. Nevertheless, the supreme court concluded that the First District’s opinion conflicted with the Fourth District’s decision in Evans. 850 So.2d at 1267. The supreme court quashed the First District’s decision in Ashley, relying on the analysis in Evans. Id. at 1267-69.

We have considered whether we can distinguish Evans because the defendant in that case had not already served a term in prison as a habitual offender and had only been on probation. Evans may also have involved a more formalized abandonment of the earlier true split sentence. In light of the supreme court’s decision that Evans conflicted with the First District’s opinion in Ashley, we conclude that we cannot distinguish Evans from this case.

Accordingly, we hold that the sentence entered in 2005 violated double jeopardy and is an illegal sentence. On remand, the trial court must resentence Mr. Akins. Whether the trial court may just reimpose the five-year term of imprisonment without the habitual offender status or must impose a lesser sentence so that the total of the prior prison time actually served and the new sentence does not exceed fifteen years in prison is unclear. It would appear to us, however, that the issue of what legal sentence to impose on remand is sufficiently complex that the trial court would be well advised to conduct a hearing and appoint counsel to assist Mr. Akins.

III.

But for the decisions in Ashley and Evans, we would think that Mr. Akins’ issue distills down to the question of whether a defendant’s habitual offender status in a specific case, once determined and relied upon for the imposition of an extended split sentence, must be orally redetermined and reannounced at any subsequent sentencing on violation of probation. His status as a habitual offender would not appear to us to be a matter that would require redetermination at a proceeding on a violation of probation.

Under the applicable sentencing law in 1991, “habitual felony offender” was a defined status that permitted the trial court to sentence the defendant to “an extended term of imprisonment.” § 775.084(l)(a). The habitual felony offender status was then, and remains now, a distinct determination by the trial court that takes place after the jury’s verdict and prior to the imposition of sentence. Although the proceeding is often resolved as part of the sentencing hearing, this determination technically occurs “[i]n a separate proceeding,” governed in part by procedures specific to such proceedings. § 775.084(3). Once a defendant is designated to fall within this status, his or her sentence can be essentially doubled in length. See § 775.084(4).

It has long been established that a sentence of imprisonment as a habitual offender can be suspended after a term of years and replaced with a term of probation. In other words, one’s status as a habitual offender does not prohibit the trial court from imposing a split sentence. See McKnight v. State, 616 So.2d 31 (Fla. 1993); Allen v. State, 599 So.2d 996 (Fla. 1992) (holding that maximum sentences in habitual felony offender statutes are permissive, affirming split sentence). Mr. Akins is arguing that when a trial court revokes probation in such a case, the revocation also rescinds the earlier determination that the defendant is a habitual felony offender for whom an extended sentence is warranted. We find nothing in the relevant statutes that supports this theory. Once the trial court has determined that a defendant qualifies as a habitual felony offender and has announced a split sentence pursuant to that determination, we would think that the defendant’s status as a habitual felony offender subject to an extended sentence remained his status without need of additional determinations or announcements at later proceedings. While the defendant might better understand the sentence if the trial court explained that the defendant remained a habitual offender, it is not entirely clear to this court why double jeopardy requires the trial court to repeat this predicate determination for the sentence imposed on violation of probation any more than the judge would have an obligation to repeat the earlier announcement of adjudication on the conviction. In addition to Ashley and Evans, we recognize that the First District, in White v. State, 892 So.2d 541, 542 (Fla. 1st DCA 2005), held that “[t]o effectuate a habitual felony offender sentence upon revocation of probation, a trial court must orally pronounce habitual felony offender status, even when the appellant was initially sentenced as a habitual felony offender for the substantive offense and the designation has not been set aside.” This court reached a similar outcome in Barron v. State, 827 So.2d 1063 (Fla. 2d DCA 2002).

This issue in this case appears most similar to that which arose with a split sentence in Mann v. State, 851 So.2d 901 (Fla. Sd DCA 2003). In Mann, the defendant was designated a habitual violent felony offender at the original sentencing. Id. at 902. When he violated his probation, the court orally imposed his sentence on violation of probation as a “habitual offender” sentence, omitting the word “violent.” Id. The trial court thereafter entered a written sentence retaining the defendant’s status as a habitual violent felony offender. Id. Thus, in Mann, the issue was not a scrivener’s error, but rather a slip of the tongue by the trial judge. Id. at 903. The Third District held that the defendant’s status was not altered by this omission and that considerations of double jeopardy did not prevent the sentence from being treated as a sentence imposed under the status of habitual violent felony offender. Id. We would follow this case, but we are not convinced that it is consistent with Evans.

It seems to this court that the determination of a status such as habitual felony offender or habitual violent felony offender, in many ways, is not a portion of either the proceedings resulting in an adjudication of guilt or the proceedings resulting in a sentence. Although this status determination often occurs at the hearing scheduled for sentencing, it is a predicate decision based on fact and law that is distinct from either the adjudication or the sentence. For purposes of double jeopardy, once this status has been formally determined and the trial court has announced that it will rely on this status for purposes of imposing a split sentence, we do not entirely understand why the trial court violates double jeopardy when it relies on that determination and announcement without repeating it at a sentencing on revocation of probation.

The issue in our case is not identical to that in Ashley and our holding appears to conflict with Mann. Given that we would not wish an inadvertent omission at sentencing to be given the sanctity of constitutional protection unless required by binding precedent, we certify the following question of great public importance:

IF A DEFENDANT HAS BEEN DECLARED TO BE A HABITUAL OFFENDER BEFORE THE IMPOSITION OF HIS INITIAL SPLIT SENTENCE, WHEN THE DEFENDANT LATER VIOLATES PROBATION AND HAS HIS PROBATION REVOKED, DOES THE DEFENDANT LOSE HIS STATUS AS A HABITUAL OFFENDER IF THE TRIAL COURT DOES NOT REPEAT THIS STATUS AT THE SENTENCING HEARING ON VIOLATION OF PROBATION?

Reversed and remanded.

VTLLANTI and WALLACE, JJ., Concur.

      . The transcript of the sentencing hearing in 2004 indicates that he violated probation on an earlier occasion between 2001 and 2004 and received an extension rather than a revocation of probation.

      . Ashley v. State, 772 So.2d 42 (Fla. 1st DCA 2000), quashed by 850 So.2d 1265 (Fla.2003).

      . We recognize that the initial trial judge can determine that a defendant qualifies for habitual felony offender treatment but decline to impose a habitual offender sentence. See King v. State, 681 So.2d 1136 (Fla.1996), receded from on other grounds by Carter v. State, 786 So.2d 1173 (Fla.2001). Just as a subsequent judge cannot impose a habitual offender sentence on violation of probation after the initial judge imposed a guidelines sentence, we would think that a subsequent judge by his or her silence could not transform a defendant’s habitual offender sentencing into sentencing under the guidelines.


text:
    FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Appellant, v. Danny Edwin MICHAEL and Sharon Michael, as parents and natural guardians of Danny Edwin Michael, II, a minor, Appellees.
    No. 2D09-585.
    District Court of Appeal of Florida, Second District.
    March 3, 2010.
    Rehearing Denied June 7, 2010.

      Wilbur E. Brewton, Kelly B. Plante and Tana D. Storey of Brewton Plante, P.A., Tallahassee, and Ronald A. Labasky of Young Van Assenderp, P.A., Tallahassee, for Appellant.
    Richard A. Gilbert, David M. Caldevilla, Michael R. Bray and Jeremy S. Clark of de la Parte & Gilbert, P.A., Tampa, for Appellees.
   ALTENBERND, Judge.

The Florida Birth-Related Neurological Injury Compensation Association (NICA) appeals a final judgment entered in favor of Danny Edwin Michael and Sharon Michael, as parents and guardians of Danny Edwin Michael, II. This case stems from a failed attempt to settle the final issues involved in a claim concerning birth-related neurological injuries to the Michaels’ son, Danny. That claim had already been resolved in an administrative proceeding in favor of the Michaels.

This lawsuit was initiated as an attempt to seek breach of contract damages for the failure of NICA to execute specific settlement documents. The trial court determined on a motion for summary judgment, as a matter of law, that NICA had breached an agreement to settle this dispute. Thereafter, it conducted nonjury trials to determine damages, attorneys’ fees, and costs. We conclude that the trial court erred in granting the summary judgment. There is, at least, a question of fact as to whether the parties had reached a settlement in this case that required NICA to sign the documents necessary for a specific structured settlement and to avoid reporting the settlement as potential income to the Internal Revenue Service.

NICA has also raised issues on appeal concerning the award of damages, including the award of attorneys’ fees and costs. Because we reverse this case on the issue of liability, we decline to address the remaining issues except to note that the trial court is not bound by the final judgment on remand concerning the award of fees and costs, which will undoubtedly change as a result of our ruling. Originally, the parties had agreed to have attorneys’ fees determined by the administrative law judge following the contemplated settlement. We are inclined to believe that such a method to determine fees, at least through the time of the proposed settlement, would achieve a more accurate measure of that award.

The Michaels are parents of a boy, born in 1995, who has birth-related neurological injuries within the meaning of section 766.302(2), Florida Statutes (1995). In 1996, the Michaels filed a claim for benefits under the NICA statutes. Such claims are resolved administratively, and the administrative law judge issued a final order in favor of the Michaels in 1997. That order required NICA to make immediate payment of all expenses incurred and to pay for all future expenses. It also authorized an award of attorneys’ fees. The Michaels were represented by other counsel at that time.

Between 1997 and 2008, it appears that NICA and the Michaels were unable to agree on whether the Michaels were entitled to be compensated for the value of their time when they were providing care to Danny and, if so, how much compensation they should receive. The law firm currently representing the Michaels began that representation in October 2003. Thus, that firm’s primary task was to seek compensation for this contested benefit. At that time, the issue was still pending as an administrative matter before the administrative law judge. The law firm filed a petition to enforce the final administrative order. NICA contested the issue, and the matter was set for a final hearing in October 2005. The parties cancelled that hearing at a point when they believed a settlement had been achieved.

The basic elements of that settlement are not in dispute. As alleged in the Mi-chaels’ Second Amended Complaint, the parties agreed as follows:

a. To settle the Michaels’ claim for residential or custodial care and services from the date of the Minor Child’s birth on October 16, 1995 to June 7, 2002 for $384,640;
b. To settle the Michaels’ claim for residential or custodial care and services from June 7, 2002 to the present for $5,056.13;
c. To settle the Michaels’ claim for future residential or custodial care and services in accordance with paragraphs 2 and 3 of Mr. Gilbert’s October 13, 2005 letter to Mr. Labasky (Exhibit E);
d. The Michaels’ attorney’s fees and costs claims would be left to be determined by the DOAH ALJ; and
e. NICA would consider any suggestions so as to minimize the tax consequences that the Michaels may incur as a result of a lump sum payment.

NICA actually delivered a check in the amount of $384,640 to settle this claim. The sticking point arose because the $384,640 was compensation for services rendered by the Michaels between 1995 and 2002. It was income subject to immediate federal taxation. The Michaels wished to devise a method to avoid or defer payment of taxes on this income. As accurately described in the pleadings, NICA only agreed that it “would consider any suggestions so as to minimize the tax consequences.”

The Michaels’ advisors suggested that they structure the settlement using a non-qualified assignment and annuity to avoid immediate taxation. Such an annuity would earn tax-free interest and the Mi-chaels would be required to pay income tax only on the amount that they received each year. Their advisors suggested a method that provided for an immediate payment of $29,696.13, monthly payments of $2000 over ten years, and a final payment of $256,260 in 2016. This amount totals more than $520,000.

The Executive Director of NICA is Ms. Kenney Shipley. She was the person responsible for making settlement decisions for NICA. It appears that most of her claims experience was governmental, and she had never been involved in a structured settlement. On November 11, 2005, the Michaels’ attorneys forwarded a settlement document to NICA’s attorney that was not, on its face, a settlement for $384,640, but rather a settlement describing NICA’s obligation to make these payments over ten years. The document contained language allowing NICA to enter into a non-qualified assignment with NAB-CO Assignments, Ltd. and allowing NAB-CO to assume this liability. Ms. Shipley objected to this document because she was concerned that it created potential long-term liabilities for NICA and she thought it was improper.

Following more discussions, the parties attended a hearing before the administrative law judge on January 4, 2006. The administrative judge ruled that he did not have jurisdiction to enforce a settlement. A few days later, the Michaels’ attorneys provided a revised settlement document that more expressly states that the Mi-chaels are releasing NICA in exchange for a payment of $384,640 and explains that NICA will pay $360,000 of the settlement to NAB CO to fund the stream of periodic payments. The document contains language of a nonqualified assignment, but it also contains language indicating that NICA will not be liable in the event that NAB CO fails to make the payments. Ms. Shipley apparently was still concerned about her authority to execute this agreement and testified that she had been advised that she would still need to issue a 1099 form showing the payment as income in the year that NICA provided the payment.

NICA is an unusual legal entity. It is an “association” that is either authorized or created by statute. See § 766.302(1). Its directors are appointed by the Chief Financial Officer of the State of Florida. It supposedly is not a state agency, but it is authorized to use the state seal. See § 766.315(1). Whether its Executive Director could sign binding documents obligating NICA to make periodic payments over many years, as contemplated in the November document, is unclear in this record. Nothing in this record establishes, as a matter of undisputed fact or law, that Ms. Shipley was acting in bad faith when she balked at these settlement proposals.

In hindsight, at this point, it would have been useful for the lawyers, Ms. Shipley, and the necessary experts to sit down together in one room and determine whether there was a way for NICA lawfully to assist the Michaels with a structured settlement that deferred income tax obligations. That did not happen.

Instead, on January 12, 2006, the Mi-chaels filed this lawsuit to enforce a settlement. They maintained that NICA was compelled to enter into a structured settlement that deferred tax payment. The complaint alleged both breach of contract and specific performance. For whatever reason, the lawsuit thereafter focused on the claim for breach of contract.

Both sides eventually moved for summary judgment, each side arguing that they were entitled to judgment on the issue of liability on the claim for breach of contract. The parties relied on the contents of the settlement correspondence and the deposition of Ms. Shipley.

We review orders granting or denying motions for summary judgment de novo. See Volusia County v. Aberdeen at Or mond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment is appropriate only “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. “The moving party carries the heavy burden of showing conclusively that the non-moving party cannot prevail.” Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

Here, simply stated, NICA never expressly agreed that it would execute any specific structured settlement. The Mi-chaels needed to establish that, before they filed this lawsuit, Ms. Shipley or NICA was obligated to enter into a specific structured settlement agreement because NICA had agreed to consider suggestions to minimize tax consequences and the Michaels’ proposed structured settlement was so straightforward that NICA’s agreement to consider such suggestions compelled them to actually agree to the specific structured settlement. When the summary judgment was granted in this case, the record contained no undisputed evidence establishing as a matter of uncontested law that Ms. Shipley negotiated in error or bad faith when she balked at the various settlement proposals and that her agreement to consider such suggestions compelled her to execute any specific document. Accordingly, the trial court erred in granting this summary judgment.

Because the trial court erred in granting this summary judgment, we must reverse the final judgment, including the award of attorneys’ fees and costs. It is obvious that the parties nearly settled this case without judicial involvement. When the settlement collapsed, the dispute mushroomed and took on a new life of its own. In reversing this final judgment, we encourage the parties, on remand, to return to the settlement table and, perhaps with the assistance of an experienced mediator, attempt to resolve this dispute.

Reversed and remanded for proceedings not inconsistent with this opinion.

CASANUEVA, C.J., and KHOUZAM, J., Concur.


author: WALLACE, Judge.

text:
    Andrew MANSURI-MASON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3449.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.

      Andrew Mansuri-Mason, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   ORDER ON MOTION FOR REVIEW OF ORDER DISMISSING MOTION FOR DEFENDANT’S SUPERSE-DEAS BOND

WALLACE, Judge.

Andrew Mansuri-Mason seeks review of the trial court’s order entered January 4, 2010, that dismissed his motion for order setting supersedeas bond filed in accordance with Florida Rule of Criminal Procedure 3.691. We review the order under Florida Rule of Appellate Procedure 9.140(h) and reverse and remand for the trial court to review the motion on its merits.

Following his conviction, sentencing, and transfer to prison, Mansuri-Mason filed a motion requesting posttrial release in the trial court. The trial court dismissed the motion, reasoning that because the record had been transmitted to the appellate court, the trial court was without concurrent jurisdiction to address the motion. The court based the dismissal on Taylor v. State, 401 So.2d 811, 812 (Fla. 5th DCA 1981). In Taylor, the Fifth District relied on rule 9.600(a) to hold that the trial court’s concurrent jurisdiction terminates when the record is transmitted to the appellate court. The trial court also cited to Peacock v. State, 798 So.2d 909, 911 n. 1 (Fla. 5th DCA 2001), in which the court in a footnote recited the ruling of Taylor.

However, rule 9.600(d), which became effective on January 1, 1997, see Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, 777, 830 (Fla. 1996), supersedes the principle stated by the court in Taylor in 1981. Rule 9.600(d) provides that in criminal appeals, “[t]he lower tribunal shall retain jurisdiction to consider motions pursuant to Florida Rules of Criminal Procedure 3.800(b)(2) and in conjunction with post-trial release pursuant to rule 9.140(h).” To the extent that posttrial release is properly subsumed under the broad category of “any ... procedural matter” over which the trial court retains concurrent jurisdiction before transmission of the record to the appeals court, see rule 9.600(a), the subsequent amendment specifically addressing posttrial release motions was intended to permit the trial court to entertain such motions without regard to the procedural stage of the appeal. See Fla. R.App. P. 9.600(d) (Comm. Notes, 1996 Amend.) (“New rule 9.600(d) recognizes the jurisdiction of the trial courts, while an appeal is pending, to rule on motions for post-trial release, as authorized by rule 9.140(g) [now rule 9.140(h).]”). The State agrees that the trial court has jurisdiction to rule on the motion.

Therefore, we reverse the trial court’s Order Dismissing Defendant’s Motion for Supersedeas Bond and remand the matter for the trial court to address the appellant’s Motion for Order Setting Supersede-as Bond on its merits.

Reversed and remanded with instructions.

DAVIS and MORRIS, JJ., Concur.

      . Although Mansuri-Mason is represented by the Public Defender for the Tenth Judicial Circuit, we accepted, his pro se filing because the Public Defender does not handle superse-deas-related motions when the appeal arises from a circuit other than the Tenth Circuit.

      . Rule 9.600(a) (1980) reads as follows:
      Concurrent Jurisdiction. Prior to the time the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the court to render orders on any procedural matter relating to the cause, subject to the control of the court on its own motion or that of a party.

        The Florida Bar. In re Florida Rules of Appellate Procedure, 387 So.2d 920, 921-22 (Fla. 1980). The subsection currently reads:
      Concurrent Jurisdiction. Only the court may grant an extension of time for any act required by these rules. Before the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the court to render orders on any other procedural matter relating to the cause, subject to the control of the court.
      Fla. R.App. P. 9.600(a) (2010).


author: PER CURIAM. MORRIS, Judge.

text:
    Edwin ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5380.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2010.
    Order on Reconsideration Nov. 10, 2010.
    Robin H. Stevenson, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

DAVIS, CRENSHAW, and MORRIS, JJ., Concur.

ORDER GRANTING APPELLANT’S MOTION FOR RECONSIDERATION AND STRIKING PRO SE MOTION FOR REHEARING

MORRIS, Judge.

On September 1, 2010, this court issued its opinion affirming the trial court’s denial of Ortiz’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On September 7, 2010, Ortiz filed a pro se motion for rehearing. At all relevant times during the pendency of this appeal, Ortiz has been represented by counsel. Accordingly, his pro se motion was stricken by this court in accordance with our opinion in Benjamin v. State, 32 So.3d 131 (Fla. 2d DCA 2009).

Subsequent to the filing of his motion for rehearing, Ortiz wrote to the chief judge of this court requesting that this court review (and presumably recede from) Benjamin. Ortiz’s letter will be treated as a motion for reconsideration of his earlier motion for rehearing.

Having considered Ortiz’s arguments, we decline to recede from Benjamin and we approve the striking of Ortiz’s pro se motion for rehearing.

DAVIS and CRENSHAW, JJ., Concur.


text:
    In re Commitment of Johnny KOCIS. Johnny Kocis, Appellant, v. State of Florida, Appellee.
    No. 2D09-4172.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Kocis’s right, if any, to file a petition for writ of habeas corpus in the circuit court.

CASANUEVA, C.J., and NORTHCUTT and LaROSE, JJ., Concur.