author: KELLUM, Judge. WELCH, Judge,

text:
    Brent Cody BROWN v. STATE of Alabama.
    CR-07-1958.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 2009.
    Rehearing Denied Jan. 22, 2010.
    Certiorari Quashed Aug. 13, 2010
    Alabama Supreme Court 1090695.

      Kathryn A. King, Cullman, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Brent Cody Brown, was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975. The circuit court sentenced Brown to 99 years’ imprisonment. The court ordered Brown to pay a $20,000 fine, $10,000 to the crime victims compensation fund, and attorney fees.

The evidence presented at trial established the following pertinent facts. On September 8, 2005, Martha McCoy went to the home of her grandson, Joseph Scott Laney, to check on him after he failed to report to work. Once in the home, McCoy discovered Laney’s dead body and immediately contacted the police. Laney' had been shot several times at close range with a small-caliber weapon.

Scott Clay, a criminal investigator with the Cullman County Sheriffs Office, investigated Laney’s murder. During the investigation, Clay learned from James Low-ry, a friend and coworker of Laney’s, that Laney had loaned money to Brown and that Laney and Brown had had an argument regarding repayment of the loan.

Lowry testified at trial that Brown owed Laney money. Lowry testified that he was with Laney on several occasions when Laney had tried to get in touch with Brown about the money Brown owed him. According to Lowry, in early September 2005, he rode with Laney to Brown’s residence. Lowry testified that Laney got out of the automobile, knocked on the front door, and, after receiving no response, returned to the vehicle. Laney then telephoned Brown and left him a message. Lowry testified that Laney was upset and that in the message he told Brown that “he needed to talk about some money that was owed and to quit avoiding him.” (R. 483.) Lowry understood the conversation to be an effort by Laney to collect money Brown owed him.

After speaking with Lowry, Clay went to Brown’s house to question him. Once at the house, Clay observed several spent casings and some live ammunition in plain view in the front yard. When Clay walked up and onto the front porch of the house, he saw more spent casings and live ammunition. Clay testified that the casings and live ammunition looked to be small caliber, possibly .22 caliber rounds. Finding no one at the house, Clay left to look for Brown. Clay testified that after leaving the house he learned from a patrol officer that a vehicle was parked in Brown’s driveway. Clay returned to Brown’s house, where he found Brown and one of Brown’s friends, Amthony Martin.

Clay testified that Brown gave him written consent to search the house. During the search, Clay found a .22 gauge rifle and a .22 Magnum pistol. During a pat-down search of Martin, a law-enforcement officer found a key for a Toyota vehicle later determined to be a key to Laney’s truck. Law-enforcement officers later discovered property that had been stolen from Laney’s house — a computer system, computer printer, two swords, and a shotgun, among other things — on property on which Martin’s mother and grandfather lived, with whom Martin had lived for some period.

Morris Brown, a firearms and tool-marks examiner with the Department of Forensic Sciences, analyzed bullet fragments taken from Laney’s body during an autopsy. Brown testified that the bullet fragments came from a .22 caliber weapon. However, Brown did not know what kind of .22 caliber weapon was used.

Jimmy Morrow, an investigator with the Cullman County Sheriffs Office, testified that Brown came to the sheriffs office on or about September 8, 2009, and asked for protection because “[h]e was afraid that he might be retaliated against because of being a suspect” in the shooting death of Laney. (R. 924.) Morrow testified that Brown mentioned speaking with his attorney and that he then made arrangements for Brown to contact his attorney. Brown’s attorney then came to the sheriffs office at which time, after reading Brown his Miranda, rights, Morrow interviewed Brown. According to Morrow, Brown initially stated that he had been with Martin on September 7, 2009, and that after hanging out with Martin, Brown returned home to be with his wife. Brown stated that he later woke up and saw Martin parked across the street from his house in Laney’s truck. Morrow testified that Brown later changed his story and told Morrow that he and Martin had discussed robbing Laney “because he had some property that they might could sell.” (R. 927.) Brown changed his story a third time and told Morrow that he drove to Laney’s house and let Martin out of the car so that Martin could go and steal a four-wheeler that belonged to Laney. Brown was subsequently arrested and charged with capital murder in Laney’s death.

While in jail, Brown gave a second statement to Morrow. Morrow testified that, after Brown was readvised of his Miranda rights, Brown stated that he dropped Martin off at Laney’s house so that Martin could rob Laney and then met Martin afterwards, at which time Martin was driving Laney’s truck with other stolen property belonging to Laney also in the truck. Brown knew that Martin had a gun. Brown told Morrow that he and Martin then went to Bailey’s Bridge, that Martin handed him the .22 revolver used to kill Laney, and that Brown then threw the gun off the bridge at Martin’s direction. Martin and Brown then returned to Martin’s trailer and Martin unloaded the stolen property. Martin subsequently burned his clothes in a barrel located on Brown’s property.

After both sides had rested and the court instructed the jury on the law applicable to Brown’s case, the jury found Brown guilty of murder. This appeal followed.

I.

On appeal, Brown contends that the circuit court erred in admitting bullets and bullet casings into evidence, over his objection, that were collected from Brown’s house because, he argues, the bullets and bullet casings were irrelevant. Specifically, Brown argues that the bullets and bullet casings were never connected to Laney’s murder and, therefore, were prejudicial and misleading to the jury.

“The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte hoggins, 771 So.2d 1093, 1103 (Ala.2000).

“Rule 402, Ala. R. Evid., provides that ‘[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State.’ Rule 401, Ala. R. Evid., defines ‘relevant evidence’ as ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ‘Alabama recognizes a liberal test of relevancy, which states that evidence is admissible “if it has any tendency to lead in logic to make the existence of the fact for which it is offered more or less probable than it would be without the evidence.’” Hayes [v. State], 717 So.2d [30] at 36 [(Ala.Crim.App.1997)], quoting C. Gamble, Gamble’s Alabama Evidence § 401(b). ‘[A] fact is admissible against a relevancy challenge if it has any probative value, however[] slight, upon a matter in the case.’ Knotts v. State, 686 So.2d 431, 468 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996). Relevant evidence should be excluded only ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ Rule 403, Ala. R. Evid. ‘The general rule is that articles which are properly identified and which tend to show the commission of the crime or the manner in which it was committed or elucidate some matter in issue are admissible in evidence for inspection and observation by the jury.’ Beasley v. State, 408 So.2d 173, 179 (Ala.Crim.App.1981).”

Gavin v. State, 891 So.2d 907, 963-64 (Ala. Crim.App.2003).

In the instant case, the bullets and bullet casings found at Brown’s house were from the same caliber gun as the gun used to kill Laney. Although the State could not directly connect the caliber of bullets and bullet casings found at Brown’s house with the fragments found in the victim’s body, the bullets and bullet casings were of the same caliber as the gun Brown told police Martin used to kill Laney and subsequently asked Brown to throw off of the bridge. Given the liberal test applied to determine the relevancy of evidence, the caliber of the bullets and bullet casings found at Brown’s house, and the type of gun Brown threw over the bridge, we cannot say that the circuit court abused its discretion by allowing the bullets and bullet casings into evidence at trial.

II.

Brown next contends that the circuit court erred in denying his motion in limine in which he sought to prohibit the State from eliciting hearsay testimony to the effect that Brown owed Laney money at the time of his death. Specifically, Brown contends that the State was allowed to elicit hearsay testimony that Laney had telephoned Brown days before the murder and demanded that Brown repay the money he owed. The State contends that the testimony at issue is admissible because, it says, it established motive and is relevant.

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d at 1103.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. A statement that constitutes hearsay may still be admissible under one of the exceptions to the hearsay rule. One such exception is the “state-of-mind” exception, as set out in Rule 803(8), Ala. R. Evid. Rule 803(3), Ala. R. Evid., provides that “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” is admissible as relevant evidence.

In the instant case, the State offered Lowry’s testimony regarding the telephone message Laney left Brown days before Laney’s murder in order to establish motive. The testimony was relevant to establish Brown’s motive to participate in Laney’s murder. Given the foregoing, we conclude that the circuit court did not abuse its discretion in denying Brown’s motion in limine seeking to exclude testimony that Brown owed Laney money.

III.

Brown next contends that the circuit court erred in denying his motion to suppress statements he made to police because, he says, evidence indicated that the statements were induced by the promise of leniency and that Brown suffered from a mental illness at the time he made the statements to police.

At the hearing on Brown’s motion to suppress, the evidence established that Brown gave two statements to law-enforcement officers — one on September 8, 2005, and one on October 28, 2005. At the time he gave those statements, Brown was represented by counsel. Morrow testified that before Brown gave both statements, he advised Brown of his Miranda rights, that Brown waived his rights, and that he gave a statement to law-enforcement officials. Morrow explained that during the interview, he observed Brown’s physical appearance to determine if he was under the influence of an intoxicating substance and concluded that Brown was not under the influence of an intoxicating substance. Morrow testified that Brown was cooperative and that he voluntarily gave his statement.

Morrow testified that he did not have the authority to make any “deals” with Brown for his cooperation, nor did he make any, and that he was not privy to any negotiations between Brown’s counsel and the district attorney’s office. On cross-examination, Morrow testified that he did have a conversation with Brown about what possible deal had been offered to his attorney. The State subsequently stipulated at the suppression hearing that there was an agreement with Brown’s counsel that the district attorney’s office would not seek the death penalty if Brown gave a true and accurate statement on September 8, 2005.

Dr. Cesar Munoz, a psychiatrist who interviewed Brown in June 2007 and February 2008, diagnosed Brown with chronic schizoaffective disorder. Dr. Munoz testified that Brown had suffered from the disorder since he was 18 years old. Dr. Munoz stated that Brown likely had the mental illness during his interviews in 2005 but was hiding his illness, and, at that time, the illness was untreated. According to Dr. Munoz, Brown could not have knowingly and voluntarily given his statement on September 8, 2005.

Dr. John David Toppins, a clinical and forensic psychologist, interviewed Brown in February 2006 and March 2006 to determine Brown’s competency to stand trial and his mental state at the time of the offense. Following his two interviews with Brown in 2006, Dr. Toppins concluded that Brown was competent to stand trial and that Brown did not exhibit any signs of mental illness. In 2008, Dr. Toppins interviewed Brown again and noted that Brown’s condition had deteriorated. Dr. Toppins concluded that Brown suffered from schizoaffective disorder.

Dr. Toppins reviewed tapes of the statements Brown made to police. After reviewing the tape-recorded statements, Dr. Top-pins concluded that Brown did not show any signs of schizoaffective disorder at that time. Dr. Toppins stated that he did not see Brown display any psychotic thinking, blockage, or mood swings — all characteristics of schizoaffective disorder — in the tape-recorded statements. Dr. Toppins testified that he observed no symptoms in Brown that would interfere with Brown’s ability to knowingly and voluntarily give a statement to law-enforcement officers.

When reviewing a ruling on the voluntariness of a confession, we apply the standard articulated by the Alabama Supreme Court in McLeod v. State, 718 So.2d 727 (Ala.1998):

“For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So.2d 443, 445 (Ala.1985). The initial determination is made by the trial court. Singleton, 465 So.2d at 445. The trial court’s determination will not be disturbed unless it is contrary to the great weight of the evidence or is manifestly wrong. Marschke v. State, 450 So.2d 177 (Ala.Crim.App.1984)....
“The Fifth Amendment to the Constitution of the United States provides in pertinent part: ‘No person ... shall be compelled in any criminal case to be a witness against himself.... ’ Similarly, § 6 of the Alabama Constitution of 1901 provides that ‘in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself.’ These constitutional guarantees ensure that no involuntary confession, or other inculpatory statement, is admissible to convict the accused of a criminal offense. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968).
“It has long been held that a confession, or any inculpatory statement, is involuntary if it is either coerced through force or induced through an express or implied promise of leniency. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). In Culombe, 367 U.S. at 602, 81 S.Ct. at 1879, the Supreme Court of the United States explained that for a confession to be voluntary, the defendant must have the capacity to exercise his own free will in choosing to confess. If his capacity has been impaired, that is, ‘if his will has been overborne ’ by coercion or inducement, then the confession is involuntary and cannot be admitted into evidence. Id. (emphasis added).
“The Supreme Court has stated that when a court is determining whether a confession was given voluntarily it must consider the ‘totality of the circumstances.’ Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139-40, 22 L.Ed.2d 433 (1969); Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968); see Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). Alabama courts have also held that a court must consider the totality of the circumstances to determine if the defendant’s will was overborne by coercion or inducement. See Ex parte Matthews, 601 So.2d 52, 54 (Ala.) (stating that a court must analyze a confession by looking at the totality of the circumstances), cert. denied, 505 U.S. 1206, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992); Jackson v. State, 562 So.2d 1373, 1380 (Ala.Crim.App.1990) (stating that, to admit a confession, a court must determine that the defendant’s will was not overborne by pressures and circumstances swirling around him); Eakes v. State, 387 So.2d 855, 859 (Ala.Crim.App.1978) (stating that the true test to be employed is ‘whether the defendant’s will was overborne at the time he confessed’Xempha-sis added).”

718 So.2d at 729 (footnote omitted).

Furthermore,

“ ‘[c]onflicting evidence given at [a] suppression hearing presents a credibility choice for the trial court.’ Atwell v. State, 594 So.2d 202, 212 (Ala.Cr.App.1991), cert. denied, 594 So.2d 214 (Ala.1992). ‘[A] trial court’s ruling based upon conflicting evidence given at a suppression hearing is binding on this Court, and is not to be reversed absent a clear abuse of discretion.’ Jackson v. State, 589 So.2d 781, 784 (Ala.Cr.App. 1991) (citations omitted).”

Rutledge v. State, 651 So.2d 1141, 1144-45 (Ala.Crim.App.1994). “It is true that, absent clear error, the trial court’s credibility choices on issues of fact at suppression hearings are binding on this Court. Powell v. State, 624 So.2d 220 (Ala.Cr.App. 1993).” State v. Hill, 690 So.2d 1201, 1204 (Ala.1996).

In the instant case, the circuit court heard conflicting testimony regarding Brown’s mental state at the time he gave his statements to police. The circuit court was in the best position to resolve the conflicts in the evidence regarding Brown’s mental state at the time he made his statements. Given the conflicts in the evidence regarding Brown’s competency when he gave the statements to police, we decline to second-guess the circuit court, and we conclude that the court did not abuse its discretion in denying the motion to suppress Brown’s statements on the basis that he was mentally ill when he made those statements.

Further, the evidence presented at the suppression hearing established that Morrow did not coerce Brown into making a statement based on a promise of leniency from the district attorney. Although Morrow informed Brown that he believed a possible deal had been offered by the district attorney and presented to Brown’s attorney, Morrow was not privy to the details and did not communicate the details of the deal to Brown. In short, the evidence does not support a conclusion that Brown’s will was overborne at the time of his confession. See McLeod v. State, supra. Therefore, the circuit court did not abuse its discretion in denying Brown’s motion to suppress on the basis that his statements were the result of coercion.

IV.

Brown further contends that the circuit court erred in refusing to give written instructions to the jury regarding the different degrees of murder and erred by informing the jury that the court was not permitted by law to do so. The record indicates that the jury submitted a written question to the court asking for “information of any form that may help us to understand, remember and deliberate all five different charges” from which they had to choose during deliberations. (R. 1129.) The circuit court stated that it answered in the negative. In the presence of the jury, the circuit court informed members of the jury that it could not give any written instructions and that it “is not permitted by law.” (R. 1130.) The record establishes that at no time did Brown object to the circuit court’s decision to decline to give the jury written instructions, much less did Brown object to the circuit court’s purported misstatement of the law.

It is well-settled that issues raised for the first time on appeal are not preserved for appellate review. Woods v. State, 845 So.2d 843, 846 (Ala.Crim.App.2002); Meadows v. State, 773 So.2d 1053, 1054 (Ala.Crim.App.2000). Further,

“No party may assign as error the court’s giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.”

Rule 21.3, Ala. R.Crim. P. Because Brown made no objection regarding the circuit court’s jury instruction, the issue he now raises on appeal is not preserved for appellate review.

Moreover, even if this issue had been properly preserved for review, Brown would not be entitled to relief. Rule 21.1, Ala. R.Crim. P., provides that “[n]either a copy of the charges against the defendant nor the ‘given’ written instructions shall go to the jury room; provided, however, that the court may, in its discretion, submit the written charges to the jury in a complex case.” Rule 21.1 allows the circuit court to exercise its discretion in submitting the written charges to the jury and allows for the submission of written charges only in complex cases. Regardless of the purported complexity of the issues in this case, we can find no abuse of discretion on the part of the circuit court.

V.

Brown also contends that the jury’s verdict was unsupported by the evidence. Specifically, Brown contends that the evidence was insufficient to show that he intentionally caused Laney’s death and that the evidence against him is all circumstantial.

The Alabama Supreme Court addressed the appellate court’s role in reviewing the sufficiency of the evidence in criminal cases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).’ Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978)(emphasis original).”

730 So.2d at 658.

“ ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).”

White v. State, 546 So.2d 1014, 1017 (Ala. Crim.App.1989).

“ ‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.174); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).’”

Bradford v. State, 948 So.2d 574, 578-79 (Ala.Crim.App.2006) (quoting Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App. 1978)).

Under current Alabama law, there is no distinction between principals and accessories. See, e.g., Faircloth v. State, 471 So.2d 485, 489 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985) (“Alabama Code § 13A-2-23 (1975) continues the long recognized abolition of the distinction between principals and accessories in Alabama.”). As we noted in Peraita v. State, 897 So.2d 1161, 1210 (Ala.Crim.App.2003):

“Alabama’s accomplice liability statute provides:
“ ‘A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
‘“(2) He aids or abets such other person in committing the offense....’

“ § 13A-2-23, Ala.Code 1975.

“ ‘The words “aid and abet” encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright [v. State, 494 So.2d 936 (Ala.Crim.App.1986) ]; Sanders v. State, 423 So.2d 348 (Ala.Cr.App.1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. “The jury is to determine whether the appellant’s participation exists and the extent of it from the conduct of the parties and all the testimony presented.” Walls v. State, 378 So.2d 1186, 1191 (Ala.Cr.App. 1979), cert. denied, Ex parte Walls, 378 So.2d 1193 (Ala.1980). Such facts as the defendant’s presence in connection with his companionship, and his conduct at, before and after the commission of the act, are potent circumstances from which participation may be inferred.’

“Henry v. State, 555 So.2d 768, 769 (Ala. Crim.App.1989).

“ ‘Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal.... No particular acts are necessary to make one an aider and abettor; the common enterprise or adventure may have been entered into on the spur of the moment without prearrangement or participation.’
“Scott v. State, 374 So.2d 316, 318-19 (Ala.1979).”

In the instant case, there was sufficient evidence, albeit primarily circumstantial, from which the jury could conclude that Brown aided and abetted Martin in the murder of Laney. Several days before the murder, Laney telephoned Brown asking Brown to pay him back money Brown had borrowed. The day Laney’s body was discovered, law-enforcement officers went to Brown’s house and discovered small-caliber bullets and bullet casings consistent with the type of gun used to kill the victim. That same day, Brown and Martin were found together in Brown’s house. In statements given to police, Brown admitted his involvement in Laney’s murder. Specifically, Brown informed police that he and Martin had discussed robbing Laney because he might have some property that they could sell. Brown then drove Martin to Laney’s house and let Martin out of the car. Martin returned from Laney’s house in Laney’s truck carrying items taken from Laney’s house; those items were found at Martin’s family’s home. Brown later met with Martin and threw the gun used to kill Laney over a bridge. A barrel used to burn Martin’s clothes following the murder was found on Brown’s property. Viewing the evidence in a light most favorable to the prosecution and ascending the prosecution all the inferences from the evidence presented, we conclude that Brown’s actions before and after the shooting evidenced his complicity in the intentional murder of Laney. Accordingly, the evidence was sufficient to sustain Brown’s conviction for murder.

VI.

Brown next contends that the statements he gave to police confessing his involvement in Laney’s murder were uncorroborated by independent evidence and, therefore, insufficient to connect him with Martin and Laney’s murder. It appears that Brown is arguing that the State failed to establish the corpus delicti of murder independent of his statements to police.

“It has been the rule in Alabama that the State must offer independent proof of the corpus delicti of the charged offense to authorize the admission of a defendant’s confession or inculpatory statement. Robinson v. State, 560 So.2d 1130, 1135-36 (Ala.Cr.App.1989); see C. Gamble, McElroy’s Alabama Evidence, 200.13 (5th ed.1996). ‘“The corpus de-licti consists of two elements: ‘(1) That a certain result has been produced, ... and (2) that some person is criminally responsible for the act.’” Johnson [v. State, 473 So.2d 607, 608 (Ala.Cr.App.1985),] (quoting C. Gamble, McElroy’s Alabama Evidence § 304.01 (3d ed.1977)).’ Spear v. State, 508 So.2d 306, 308 (Ala.Cr.App.1987). “‘Positive, direct evidence of the corpus delicti is not indispensable to the admissions of confessions.” ’ Bracewell v. State, 506 So.2d 354, 360 (Ala.Cr.App.1986), quoting Ryan v. State, 100 Ala. 94, 14 So. 868 (1894). ‘The corpus delicti may be established by circumstantial evidence.’ Sockwell v. State, 675 So.2d 4, 21 (Ala.Cr.App.1993), aff'd, 675 So.2d 38 (Ala.1995), cert. denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 67 (1996).”

Maxwell v. State, 828 So.2d 347, 357 (Ala. Crim.App.2000).

Additionally, this Court has stated:

“Further, it is well settled that
“ ‘ “inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti.” ’
“Bush [v. State ], 695 So.2d [70,] 117-18 [(Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997) ], quoting Bridges v. State, 284 Ala. 412, 417, 225 So.2d 821, 826 (1969); see also Bracewell [v. State ], 506 So.2d [354,] 360 [ (Ala.Crim.App.1986) ]; Spear [v. State ], 508 So.2d [306,] 308 [ (Ala.Crim.App.1987) ]. ‘While a confession is inadmissible as prima facie proof of the corpus delicti, it can be used along with other evidence to satisfy the jury of the existence of the corpus delicti.’ Bracewell, supra at 360; see also Howell [v. State ], 571 So.2d [396,] 397 [ (Ala.Crim.App.1990) ].”

Maxwell, 828 So.2d at 357-58.

In this case, we find that the State presented sufficient evidence to raise “‘a reasonable inference of the existence of the corpus delicti of the charged crime’ ”— murder. Bush v. State, 695 So.2d 70, 117 (Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997), quoting C. Gamble, McElroy’s Alabama Evidence § 304.01 (4th ed. 1991). The evidence established that Laney sought the repayment of a loan he had given to Brown shortly before he was killed. The day Laney’s body was discovered, law-enforcement officers found small-caliber bullets and bullet casings at Brown’s house that were consistent with the type of gun used to kill Laney. That same day, Brown and Martin were found together at Brown’s house. Items stolen from Laney’s house were subsequently found at the home of Martin’s family. Thus, contrary to Brown’s claim, proof of the corpus delicti was established independent of his inculpatory statements.

VII.

Finally, Brown contends that because of the cumulative effect of the alleged errors discussed above, his substantial right to a fair trial was probably injuriously affected, and thus, his conviction is due to be reversed.

“ ‘The Alabama Supreme Court has set forth the cumulative-error rule as follows: “[Wjhile, under the facts of a particular case, no single error among multiple errors may be sufficiently prejudicial to require reversal under Rule 45, if the accumulated errors have ‘probably injuriously affected substantial rights of the parties,’ then the cumulative effect of the errors may require reversal.” Ex parte Woods, 789 So.2d 941, 942-43 n. 1 (Ala.2001) (quoting Rule 45, Ala. R.App. P.). Applying this standard to Lewis’s allegation of cumulative error, we have scrupulously reviewed the record and find no evidence that the cumulative effect of any of the individually nonreversible errors in this case affected Lewis’s substantial rights at trial.’ ”

Sharifi v. State, 993 So.2d 907, 946-47 (Ala.Crim.App.2008) (quoting Lewis v. State, 24 So.3d 480, 538 (Ala.Crim.App.2006)).

Applying this standard to Brown’s allegation of cumulative error, we have reviewed the record and find no evidence that the cumulative effect of any of the individually nonreversible errors in this case affected his substantial rights at trial.

Based on the foregoing, the circuit court’s judgment is affirmed.

AFFIRMED.

WINDOM and MAIN, JJ., concur. WISE, P.J., concurs in the result. WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

On appeal from his murder conviction, Brent Cody Brown argues that the trial court erred when it denied the defense’s motion to suppress his inculpatory statements on grounds that the statements were involuntary. The majority affirms, and I disagree. There is no dispute that the district attorney told Brandon Little, one of Brown’s attorneys, that the district attorney’s office would not seek the death penalty if Brown gave a true and accurate statement, and that Brown gave his statement to the police after the promise was made. Brown’s statements were the result of an improper inducement, and his statements were therefore involuntary. Because I believe that the trial court should have granted Brown’s motion to suppress, I respectfully dissent.

The majority has included a correct statement of the relevant rules of law, one of which is that a confession, or any incul-patory statement, is involuntary if it is induced through an express or implied promise of leniency. See Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). “A trial court’s ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala.Crim.App.2000).” State v. Hargett, 935 So.2d 1200, 1204 (Ala.Crim.App.2005). A de novo review of the trial court’s legal conclusion based on the evidence presented in this case leads me to conclude that the district attorney’s promise not to seek the death penalty if Brown gave a true statement was tantamount to an offer to save Brown’s life in exchange for a statement. The coercive impact of such a promise of leniency rendered Brown’s subsequent statements involuntary. Is not the preservation of one’s own life of paramount importance to a man? Can it be doubted that á man’s desire not to have his life taken by the state would overbear any other consideration or reason he might have to remain silent when faced with the decision of whether to give a statement?

Although I acknowledge that Brown was represented by counsel even when he gave the initial statement following the direct promise from the district attorney, that does not preclude a finding that Brown’s will was overborne by the promise of leniency. In fact, it is significant that Brown’s attorney signed Brown’s Miranda waiver as a witness and it was the counsel who apparently conveyed the prosecutor’s direct promise of leniency to Brown. The facts are that the district attorney made the improper inducement and that Brown’s statement was made as a result of that improper inducement.

The majority states that the evidence from the suppression hearing revealed that the sheriffs investigator who interrogated Brown did not coerce Brown based on a promise of leniency. That point is irrelevant. Before Brown was questioned, the direct promise of leniency had already been communicated by the district attorney to Brown. That there is no explicit evidence that the investigator did not reiterate to Brown the promise that his life would be spared if he gave a statement does not support the trial court’s ruling or the majority’s affirmance of that ruling.

The State failed to meet its burden of showing that Brown’s statement was voluntary and not the product of the district attorney’s promise to spare Brown from the possible imposition of the death penalty. Rather, the prosecutor stipulated at the hearing on the motion to suppress that the district attorney had made a direct promise of leniency to Brown’s attorney before Brown made the first of two incul-patory statements. The State illegally induced Brown’s confession, and the trial court erred when it denied the motion to suppress.

For the foregoing reasons, I respectfully dissent.

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


source: Caselaw Access Project

author: POLSTON, J.

license: Public Domain

text:
    Charlie CRIST, et al., Appellants, v. Robert M. ERVIN, et al., Appellees. Alex Sink, Chief Financial Officer, etc., Appellant, v. Robert M. ERVIN, et al., Appellees.
    Nos. SC10-1317, SC10-1319.
    Supreme Court of Florida.
    Nov. 4, 2010.
    As Revised on Rehearing and/or Clarification Jan. 20, 2011.
    Rehearing Denied March 4, 2011.

      Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, Courtney Brewer, Deputy Solicitor General, Jon A. Glogau, Chief, Complex Litigation, Tallahassee, FL; Richard T. Donelan, Jr., Chief Counsel, and Kate M. Pingolt, Florida Department of Financial Services, Tallahassee, FL, for Appellants.
    Sidney L. Matthew of Sidney L. Matthew, P.A., Tallahassee, FL, and Davisson F. Dunlap, Jr. of Dunlap and Shipman, Tallahassee, FL, for Appellees.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, FL, and Clifford C. Higby of Bryant and Higby, Panama City, FL, on behalf of the Trial Lawyers Section of The Florida Bar; and C. Howard Hunter and Landis V. Curry of Hill Ward Henderson, P.A., Tampa, FL, on behalf of the Florida Chapter of the American Board of Trial Advocates, as Amici Curiae.
   POLSTON, J.

Appellants (collectively referred to as the State) argue that the trial court erred by ruling that statutes directing portions of civil filing fees to the general revenue fund are unconstitutional. We agree and reverse the trial court as explained below.

I. BACKGROUND

On June 3, 2010, the trial court granted summary judgment and declared unconstitutional sections of the Florida Statutes that direct portions of civil action filing fees to the general revenue fund. Specifically, the trial court ruled that provisions of sections 28.24(1)(a), 28.241(a)(2)(d), 28.241(2), 34.041(1)(b), and 28.2455, Florida Statutes (2009), are unconstitutional and void.

The trial court concluded that, through these statutes, the Legislature has imposed an unconstitutional tax because litigants’ filing fees are sent to the general revenue fund to be spent on unrelated government activities. The trial court stated that it is of no consequence that the Legislature appropriates to the courts an amount greater than the amount generated by the first $80.00 of the filing fees. The trial court explained that “[t]he Legislature is simply taxing one group of citizens and spending the money on unrelated governmental activities, which is illegal and unconstitutional.” Citing Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928), and Farabee v. Board of Trustees, 254 So.2d 1 (Fla.1971), the trial court determined that depositing a portion of the filing fees into the general revenue fund denies access to the courts. The trial court order also stated that the provisions at issue “deny the citizens of this state the right to have their courts adequately funded, in violation of Article V, Section 14 and the due process, equal protection, [and] right to jury trial guarantees ... accorded under the Florida Constitution.” The trial court severed the offending provisions, enjoined the State from enforcing them, and ordered the State to “ensure that the injunction is reflected in the financial operations of this state.”

II. UNCONSTITUTIONAL TAX DENYING ACCESS TO COURTS

The trial court ruled that statutes directing portions of civil filing fees to the general revenue fund are an unconstitutional tax denying access to courts. The Appellees argue that the trial court’s ruling is correct because the statutes are unconstitutional both facially and as applied. The State asserts that the statutes are facially constitutional because there is a set of circumstances whereby the statutes can be constitutional, namely if the Legislature appropriates more to the costs of the administration of justice than the amount of civil filing fees deposited into the general revenue fund. Moreover, the State argues that the statutes are constitutional as applied because the Legislature has in fact appropriated more to support the administration of justice than the amount of fees deposited into the general revenue fund. We agree with the State. Directing a portion of the filing fees to the general revenue fund for further appropriation is an accounting mechanism reasonably related to the governmental purpose of funding the administration of justice. See Lane v. Chiles, 698 So.2d 260, 262 (Fla.1997) (“Generally, a state statute must be upheld if it meets the rational relationship test; that is, if there is any reasonable relationship between the act and the furtherance of a valid governmental objective.” (quoting trial court’s order)).

A. Facial Constitutional Challenge

The constitutionality of a statute is a question of law subject to de novo review. See City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002). “While we review decisions striking state statutes de novo, we are obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome whenever possible.” Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005) (quoting Fla. Dep’t of Revenue v. Howard, 916 So.2d 640, 642 (Fla.2005)). Further, “in a facial constitutional challenge, we determine only whether there is any set of circumstances under which the challenged enactment might be upheld.” Id. at 265. “If any state of facts, known or to be assumed, justify the law, the court’s power of inquiry ends.” State v. Bales, 343 So.2d 9, 11 (Fla.1977).

Article I, section 21 of the Florida Constitution provides that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” The statutory provisions at issue transfer a portion of civil filing fees paid by litigants in circuit courts, county courts, and appellate courts into the general revenue fund. See §§ 28.241(l)(a)l.a.; 28.241(l)(a)2.d.; 28.241(2), Fla. Stat. (2009) ($80 of each civil litigant’s filing fee in circuit court and appellate courts must be deposited into the general revenue fund); § 34.041(l)(b), Fla. Stat. (2009) (“The first $80 of the filing fee collected [for civil actions in county court] under subparagraph (a)4. shall be remitted to the Department of Revenue for deposit into the General Revenue Fund.”); § 28.2455, Fla. Stat. (2009) (ordering annual transfer of any funds in excess of amount needed for clerks’ budgets from the clerks of court trust fund to the general revenue fund).

In State v. City of Pori Orange, 650 So.2d 1, 3 (Fla.1994) (citing City of Boca Raton v. State, 595 So.2d 25 (Fla.1992)), this Court defined a tax as “an enforced burden imposed by sovereign right for the support of the government, the administration of law, and the exercise of various functions the sovereign is called on to perform.” In contrast, we defined user fees as “charges based upon the proprietary right of the governing body permitting the use of the instrumentality involved. Such fees share common traits that distinguish them from taxes:”

they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner not shared by other members of society; and they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge.

Port Orange, 650 So.2d at 3 (citations omitted).

In Flood, we addressed whether a statute establishing a docket fee to be used for a law library and other general county purposes was an invalid tax on litigants. The statute provided that each plaintiff in a circuit court had to pay a docket fee of $10, which was to be deposited into a special fund for establishing and maintaining a law library in the county. Flood,, 117 So. at 386. The statute also provided that “any balance remaining thereafter [was] to be used and applied as said board [of county commissioners] may from time to time deem best for general county purposes.” Id. (quoting ch. 12004, Laws of Fla. (1927)). We concluded that the fee was a tax repugnant to the right of access to courts contained in Florida’s Constitution, reasoning as follows:

It is clear that to call this a fee is a misnomer. It is a tax levied and collected for a county purpose, if the establishment of a law library may be considered a county purpose. No part of the so-called fee is appropriated for the payment of any services rendered by the clerk rendering the service in the case.
... The act is clearly an attempt to levy a tax on those who must bring their causes into court and to require the payment of such tax for the benefit of the public treasury, and is an abrogation of the administration of right and justice.

Id. at 387.

Thereafter, in Farabee, we addressed a challenge to a statute allocating a portion of a new $10 filing fee to the Lee County Law Library. “Under the statutory formula the Law Library received $3.00 plus 20% of $10.00 or a total allocation of $5.00 out of each filing fee paid to the Clerk.” Farabee, 254 So.2d at 3. This Court in Farabee rejected the Clerk’s argument, which was based upon Flood, that the portion of the filing fee payable to the law library was an unconstitutional tax on litigants. Id. at 5. We concluded that the law library was “essential to the administration of justice today, and it is appropriate that its cost be assessed against those who make use of the court systems of our state.” Id. We distinguished Farabee from our prior decision in Flood, by pointing out in particular that Flood involved a fee that was used to fund general county purposes:

We deem it especially significant in Flood, that the balance of the funds remaining after adequate provision for the law library were to be used for “general county purposes” as directed by the board of county commissioners. Since at least part of the fee was available to the county for the building of roads, schools, and so on, it could not be said that the fee levied was a cost of the administration of justice.

Id. This Court in Farabee also receded from its prior language in Flood that may have indicated that a law library was not essential to the justice system. Id.

Based upon our decisions in Flood and Farabee, a statutory filing fee is not considered an unconstitutional tax repugnant to court access if the fee is used to fund the costs of the administration of justice. There is no requirement in the Florida Constitution that the very money paid for filing fees be used to fund the administration of justice. Money is fungible. See generally 53A Am.Jur.2d Money § 18 (2006) (“Money is in its nature sever-able; one coin or note has the same essential qualities and value possessed by any other of like denomination. In other words, money is fungible or interchangeable.”) (footnotes omitted); Williams Mgmt. Enters., Inc. v. Buonauro, 489 So.2d 160, 164 (Fla. 5th DCA 1986) (“[A]s Blackstone noted, normally money is fungible property, like grain, cotton, etc., which, if commingled with other similar money, is incapable of specific identification-”). Once the filing fees are eom-mingled with other state money in the general revenue fund, the filing fees lose their separate character and become interchangeable with the other state money. Therefore, the Legislature would be using the filing fees to fund the administration of justice if it funds the justice system at a level at least equal to the amount of filing fees that is commingled with other state money in the general revenue fund.

Accordingly, the statutes, on their face, do not constitute an unconstitutional tax. See City of Gainesville, 918 So.2d at 256 (explaining that a statute is only facially unconstitutional if “no set of circumstances exists under which the statute would be valid”).

B. As-Applied Constitutional Challenge

The only portion of Appellees’ challenge that could be considered an as-applied challenge relates to the trial court’s finding that the Legislature in 2008 appropriated over $50 million of the amount generated from the increased civil filing fees to the Department of Corrections for prison operations. However, because the Legislature appropriated more to support the administration of justice than the amount of civil fees deposited into the general revenue fund, the filing fee statutes were applied in a constitutional manner.

According to the trial court’s order, the total cumulative filing fees deposited into the general revenue fund for fiscal year 2008-2009 was $186,961,960.23. In contrast, the Legislature appropriated over $1 billion to support the judicial branch and justice administration for fiscal year 2008-2009. Ch. 2008-152, § 4 (justice administration appropriations), § 7 (judicial branch appropriations), Laws of Fla.; Ch. 2009-1, § 4, § 7 (reductions in 2008-2009 appropriations). For the judicial branch alone, the Legislature appropriated over $433 million for fiscal year 2008-2009, more than $387 million of which was specifically appropriated from general revenue. Ch. 2008-152, § 7 (judicial branch appropriations), Laws of Fla.; Ch. 2009-1, § 7 (reductions in 2008-2009 appropriations), Laws of Fla. Because the Legislature funded the costs of the administration of justice with far more than the amount of filing fees deposited into the general revenue fund, the filing fee statutes are not operating as an unconstitutional tax.

The Alabama Supreme Court rejected a similar argument in Fox v. Hunt, 619 So.2d 1364 (Ala.1993). Based upon the Texas Supreme Court decision in LeCroy v. Hanlon, 713 S.W.2d 335 (Tex.1986), the plaintiff in Fox argued that a statutory jury fee was actually an unconstitutional tax on the right to a jury trial because a portion of the fee was paid into Alabama’s general fund. Fox, 619 So.2d at 1366. However, the Alabama court noted that in 1989-90 the State of Alabama spent over $59 million more on its judicial system than the amount collected from the jury fees. Id. at 1367. As a result, the Alabama Supreme Court held that the jury fee did not constitute an unconstitutional tax, reasoning as follows:

This Court would have to deny the economic reality of the Legislature’s funding the judiciary in favor of an accounting artifice in order to hold that any portion of the jury trial fees collected by the circuit court clerks actually went to programs, other than the judiciary, funded through the state’s general fund.

Id.

In LeCroy, the Texas Supreme Court held that a statute, which directed a portion of filing fees to go to state general revenues, was an unconstitutional tax on the right of access. Because a portion of the filing fees was allocated to Texas’ general revenue fund, the Texas court concluded that “the money goes to other statewide programs besides the judiciary.” 713 S.W.2d at 341. The Texas Supreme Court reasoned as follows:

The $11 million in general revenues raised from the fee flows out of the treasury at random. Since the judiciary accounts for only approximately 1/2 of 1% of state funding, 99.5% of the revenue generated from the fee must go to other programs besides the judiciary.

Id. at 341 n. 9. However, as the dissent in LeCroy pointed out, this logic is quite flawed:

The court holds that “filing fees that go to state general revenues — in other words, taxes on the right to litigate that pay for other programs besides the judiciary — are unreasonable impositions on the state constitutional right of access to the courts.” The court thus implies that if the $50 increase went into a special fund for the benefit of the courts, the act would be constitutional. As the state observes, however, a special fund is no more than an accounting device. Since dollars are fungible and more money will be spent on the court system than will be taken in under Section 32, it is absurd to conclude money collected from fees “will pay for other programs besides the judiciary.” The state’s annual share of the filing fee is expected to be approximately $11,000,000 while the State’s annual cost will be over $52,000,000. See Art. of May 27, 1985, ch. 980, art. IV, 1985 Tex. Sess. Law Serv. 7284 (Vernon). As long as the State pays more in financing the judiciary than the courts receive in user fees, the court’s logic is flawed. This court need not presume that any portion of the fee increase goes to support general welfare programs unrelated to the court system. If any presumption is to be made, it should be in favor of the validity of the statute.

Id. at 345-46 (Gonzalez, J., dissenting). Like the Alabama Supreme Court, we decline to adopt the contrary reasoning of the Texas Supreme Court in LeCroy. See Fox, 619 So.2d at 1366-67.

III. UNCONSTITUTIONAL FUNDING OF COURTS

The trial court ruled that the filing fee statutes “also deny the citizens of this state the right to have their courts adequately funded in violation of article V, section 14, and the due process, equal protection, [and] right to jury trial guarantees ... accorded under the Florida Constitution.” The filing fee statutes at issue are not contrary to article V, section 14 of the Florida Constitution.

Section 14 details the following funding requirements for Florida’s justice system:

(a) All justices and judges shall be compensated only by state salaries fixed by general law. Funding for the state courts system, state attorneys’ offices, public defenders’ offices, and court-appointed counsel, except as otherwise provided in subsection (c), shall be provided from state revenues appropriated by general law.
(b) All funding for the offices of the clerks of the circuit and county courts performing court-related functions, except as otherwise provided in this subsection and subsection (c), shall be provided by adequate and appropriate filing fees for judicial proceedings and service charges and costs for performing court-related functions as required by general law. Selected salaries, costs, and expenses of the state courts system may be funded from appropriate filing fees for judicial proceedings and service charges and costs for performing court-related functions, as provided by general law. Where the requirements of either the United States Constitution or the Constitution of the State of Florida preclude the imposition of filing fees for judicial proceedings and service charges and costs for performing court-related functions sufficient to fund the court-related functions of the offices of the clerks of the circuit and county courts, the state shall provide, as determined by the legislature, adequate and appropriate supplemental funding from state revenues appropriated by general law.
(c) No county or municipality, except as provided in this subsection, shall be required to provide any funding for the state courts system, state attorneys’ offices, public defenders’ offices, court-appointed counsel or the offices of the clerks of the circuit and county courts performing court-related functions. Counties shall be required to fund the cost of communications services, existing radio systems, existing multi-agency criminal justice information systems, and the cost of construction or lease, maintenance, utilities, and security of facilities for the trial courts, public defenders’ offices, state attorneys’ offices, and the offices of the clerks of the circuit and county courts performing court-related functions. Counties shall also pay reasonable and necessary salaries, costs, and expenses of the state courts system to meet local requirements as determined by general law.
(d) The judiciary shall have no power to fix appropriations.

Based upon this plain language, the court-related functions of the clerks’ offices are to be funded entirely from filing fees and service charges unless constitutionally required to be supplemented by other state revenues. Furthermore, section 14 requires state revenues appropriated by general law to fund the court system, state attorneys’ offices, public defenders’ offices, and court-appointed counsel. However, subsection 14(b) gives the Legislature the option of using filing fees to fund “[s]elected salaries, costs, and expenses of the state courts system ... as provided by general law.” There is no language in section 14 of article V (or any provision of the Florida Constitution) that prevents the Legislature from exercising its option to use filing fees to fund the administration of justice by directing certain portions of the filing fees to the general revenue fund before it then appropriates this money to the costs of the administration of justice.

The trial court’s ruling that the statutes violated the due process, equal protection, and right to jury trial provisions of the Florida Constitution appears to be premised upon a determination that Florida’s courts are inadequately funded. But because the trial court’s order does not include any reasoning or additional findings of fact supporting its conclusion, we agree with the State that there is not competent substantial evidence in the record to support the trial court’s determination that Florida courts are unconstitutionally underfunded. The trial judge simply took judicial notice of underfunding based upon the fact that he had recently received a two-percent reduction in his salary. But this is not evidence that the judicial branch is unconstitutionally underfunded. And while this Court has stated that Florida’s court system is operationally underfunded, see e.g., In re Certification of Need for Additional Judges, 29 So.3d 1110 (Fla. 2010), we have not determined that the judiciary is underfunded to the point of it being a violation of the constitution. Moreover, we agree with the State that the trial court’s ruling on this claim is based upon the Appellees’ erroneous position that the cause of underfunding is the existence of the challenged statutes rather than specific appropriations decisions.

IV. CONCLUSION

The filing fee statutes, on their face, do not constitute an unconstitutional tax because the Legislature may appropriate more to the administration of justice than the amount of civil fees deposited into the general revenue fund, and because the Legislature has in fact done so, the statutes are not unconstitutional as applied. The statutes do not conflict with section 14 of article V of the Florida Constitution, and the record in this case does not otherwise support the trial court’s ruling that the courts are unconstitutionally underfunded. Accordingly, we reverse the trial court, lift the injunction, and remand with instructions to dismiss the complaint for declaratory and injunctive relief.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

      . Appellants Governor Crist, et al., and Chief Financial Officer Sink appealed the judgment of the circuit court to the First District Court of Appeal, which certified to this Court that the judgment is of great public importance, affects the proper administration of justice throughout the State, and requires immediate resolution by this Court. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const.

      . It is undisputed that more was spent for the judicial branch and for the administration of justice than was collected as filing fees. Accordingly, there is no issue in the case as to what must be included as administration of justice.


author: QUINCE, J. CANADY, C.J.,

text:
    Santo HERNANDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC08-2321.
    Supreme Court of Florida.
    Dec. 9, 2010.
    Rehearing Denied March 4, 2011.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Timothy R.M. Thomas, Assistant Attorneys General, Miami, FL, for Respondent.
   QUINCE, J.

We have for review the decision of the Third District Court of Appeal in Hernandez v. State, 994 So.2d 488 (Fla. 3d DCA 2008). Petitioner Santo Hernandez argues that the evidence presented at trial was insufficient to prove that he was engaged in the trafficking or attempted trafficking of cocaine where the State failed to present evidence of the quantity of drugs involved in the alleged transaction. Hernandez contends that, in upholding his conviction, the Third District is in express and direct conflict with the decision of the First District Court of Appeal in Williams v. State, 592 So.2d 737 (Fla. 1st DCA 1992), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we vacate Hernandez’s convictions for first-degree felony murder and remand to the district court with instructions to direct the entry of judgments for third-degree felony murder.

FACTS AND PROCEDURAL HISTORY

Hernandez was charged by indictment in February 2003 with two counts of first-degree felony murder in the deaths of victims George Collazo and Michel Ale-man. The indictment alleged that on December 12, 2002, the victims were killed while Hernandez was engaged in the perpetration of, or the attempt to perpetrate, the felony offense of trafficking in cocaine, in violation of section 893.135(1), Florida Statutes (2002). See § 782.04(1)(a)2., Fla. Stat. (2002) (providing that an unlawful killing committed during the perpetration or attempt to perpetrate a trafficking offense under section 893.135(1) is punishable as murder in the first degree). The indictment also charged Hernandez as a principal in the first degree, see § 777.011, Fla. Stat. (2002), making him liable for any actions of his coper-petrator. See generally Hodge v. State, 970 So.2d 923, 927 (Fla. 4th DCA 2008) (explaining that the focus in a felony murder charge is not on the accused’s role in the actual killing, but on his or her participation in the underlying felony). After a three-day jury trial ending on January 12, 2007, Hernandez was found guilty of two counts of first-degree felony murder without personal possession of a firearm.

The evidence at trial demonstrated that on December 12, 2002, officers of the Hialeah Police Department responded to a call alerting them to a burning truck containing two bodies in the rear cargo area. The bodies themselves were partially burned and each body was partially wrapped in a comforter. Identification was found on both corpses, indicating that the men were Michel Aleman and George Collazo. The victims’ identities were later confirmed by dental records. A medical examiner testified that the victims had died as a result of gunshot wounds and that the burning had occurred after death.

Detectives obtained Collazo’s phone records and learned that numerous phone calls had been exchanged between Collazo and a cellular phone belonging to Hernandez between 8:54 a.m. and 11:56 a.m. on the morning of December 12. Based on the phone records, the police were able to link Hernandez to the residence of Vicky Rodriguez. Rodriguez was asked to come to the police station. There, she informed officers that she and Hernandez were in a romantic relationship and that Hernandez had been living at her home for several months. She told the officers that on December 12, Hernandez had called to tell her that he had broken a sliding glass door by falling through it. She became suspicious when Hernandez told her that he was not injured. When she arrived home and discovered a bullet hole in her front door as well as the broken sliding glass door, Hernandez first told her that there had been a drive-by shooting earlier in the day. When she did not believe him, he told her that he had accidentally fired a gun in the house. She then asked Hernandez to move out. She also told the officers that two comforters were missing from her bedrooms. After Rodriguez was shown photographs depicting the comforters in which the victims had been wrapped, she identified them as the ones missing from her home.

When Rodriguez later testified at trial, she also stated that shortly after Hernandez moved out, he asked her to bring him a white box he had left in the house. Rodriguez opened the package and found a substance that appeared to be cocaine. However, she determined that the cocaine was not real and subsequently disposed of it by flushing it down the toilet. On cross-examination, she stated that she tasted the powder and was able to determine based on prior experience that it was not real cocaine. She informed Hernandez that she destroyed the substance, but testified that he did not seem concerned.

Hernandez was taken into custody on January 25, 2003. He subsequently gave a taped statement, which was played for the jury at trial. In Hernandez’s account of the events leading up to the victims’ deaths, Hernandez was asked by Collazo, a childhood friend, whether he knew anyone who might be interested in purchasing cocaine. Hernandez suggested the name of codefendant Ricky Valle. Hernandez subsequently agreed to allow the deal to occur at his girlfriend’s townhome. Although Hernandez stated that he was “like the middleman” in the transaction, he denied having been promised any specific compensation. Hernandez admitted, however, that Collazo had indicated that he would receive some money. When asked during the interrogation whether he was aware of how much money Valle was going to pay for the cocaine, Hernandez responded: “If I’m mistaken [sic] it was thirty thousand dollars.”

On the morning of the intended transaction, Hernandez exchanged phone calls with Collazo and Valle. Hernandez assured both men that “everything [was] okay.” Hernandez stated that he was alone in the townhome when Valle arrived carrying a bag, although Hernandez claimed that he never saw its contents. Valle immediately went upstairs. Hernandez told the interrogating officer that he was in the kitchen when Collazo and Ale-man arrived a few moments later. Collazo was talking on a cell phone and carrying a box approximately two to three feet in height. As Collazo and Aleman entered the house, Valle, wearing gloves and carrying a long-barreled gun, came down the stairs and shot both men in the back. Hernandez recalled hearing the sliding glass door behind him shatter. According to Hernandez, Valle then threatened his life and the life of his family if he did not help clean up the bodies. Hernandez helped Valle mop up the blood and at least one spent bullet casing and helped Valle wrap the bodies in comforters that Valle had retrieved from upstairs. Hernandez told Valle that he had to deliver a suitcase to his girlfriend, Rodriguez, who was in beauty school. Valle accompanied Hernandez to deliver the suitcase. When they returned to the house, Hernandez cleaned up the broken glass in the kitchen. Hernandez then helped Valle load the bodies into a truck, which Valle drove away.

Hernandez was also asked about the box that Rodriguez had found in the town-home. Hernandez told the interrogating officer that the box contained fake cocaine that had been given to him by Collazo long before the planned drug transaction with Valle. Collazo did not tell Hernandez why he wanted him to keep it, but Hernandez said he held on to it as a favor to Collazo. When Rodriguez found the box after Hernandez moved out, Hernandez said, he told her to flush it down the toilet because it was “no good.”

One other account of the events surrounding the murders was presented at trial. According to Cesar Morales, a jailhouse informant, Hernandez told him that he had contacted Collazo and Aleman offering to sell them cocaine. In this account, Hernandez had manufactured ten kilos of false cocaine, which he intended to sell to Collazo for $220,000 to $230,000. After Collazo and Aleman arrived at the townhome, with Valle also present, Hernandez gave a sample of the cocaine to Collazo, then went upstairs to get a gun. After Collazo discovered that the cocaine was fake, Hernandez came downstairs and shot both victims. Hernandez then threatened to kill Valle, who helped him wrap the bodies and clean the house. Finally, Hernandez and Valle loaded the bodies into a truck, which Hernandez drove away. According to Morales, Hernandez told him that he would blame Valle for the murders.

After the State rested, the defense moved for a judgment of acquittal on both counts of felony murder. The defense argued in part that the evidence was insufficient to establish the underlying felony of trafficking in cocaine. Because the State had not submitted any direct evidence that the transaction involved at least 28 grams of cocaine, the defense argued, the defendant could not be found guilty of the felony of trafficking and thus could not be convicted of felony murder. The defense noted that the only testimony involving weight came from Morales, who testified that Hernandez intended to sell ten kilograms of “fake” cocaine. This, in the view of the defense, was insufficient to establish the defendant’s intent to engage in felony trafficking. The court denied the motion. At the end of trial, the jury found Hernandez guilty of two counts of first-degree felony murder without personal possession of a firearm.

Subsequently, Hernandez appealed his conviction to the Third District Court of Appeal, renewing his argument that the evidence was insufficient to establish the predicate offense of trafficking or attempted trafficking in cocaine. See Hernandez, 994 So.2d at 489. The court reviewed the evidence of drug quantity presented at trial. The Third District first noted that Hernandez had placed the price of the cocaine at $30,000 in his pretrial statement and that Collazo had arrived with a box two or three feet in size. With regard to the box, the court stated: “The jurors could fairly conclude that a box would not be used to transport slightly less than an ounce of cocaine.” Id. at 490. Second, the district court noted that Rodriguez had described a box containing what she determined to be fake cocaine. The district court explained that regardless of whether the cocaine was real or fake, “the jury could have concluded that Hernandez thought it was the $30,000 worth of cocaine brought to him by Collazo.” Id.

Third, the district court reasoned that the jury could have concluded that a transaction for $30,000 would have involved an ounce or more of cocaine. The court explained:

Trial judges at the criminal court, prosecutors, defense lawyers — and probably even many jurors — know from other cases and news accounts that the price of an ounce of cocaine was (in 2002) and is far less than $30,000. The “price for quantity” data, though best known by criminals, is also publicized by law enforcement as one metric regarding the efforts to cut the supply chain. The State could have established street values rather easily. The State’s evidence, however, included other facts sufficient to allow the jury to conclude that the quantity was 28 grams or more.

Id. at 490 n. 4.

Finally, the Third District noted that Hernandez had told Morales that he intended to sell 10,000 grams of cocaine for a price of $220,000 to $230,000. The court determined that this evidence “also support[ed] a conclusion that Hernandez was engaged in attempted trafficking.” Id. at 490 (citing Brown v. State, 959 So.2d 146, 150 (Fla.2007)). The Third District concluded: “For his part, Hernandez has not shown a reasonable doubt that the transactions described by the witnesses were for less than 28 grams.” Id. (citing Madruga v. State, 434 So.2d 331 (Fla. 3d DCA 1983)). Accordingly, the district court affirmed Hernandez’s convictions for first-degree felony murder. Id. We granted review on September 11, 2009, based on conflict with Williams, 592 So.2d at 737, dispensing with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. See Hernandez v. State, 15 So.3d 580 (Fla.2009).

ISSUES ON APPEAL

On appeal, we review Hernandez’s contention that there was insufficient evidence to affirm his convictions for felony murder where neither underlying felony offense — trafficking or attempted trafficking in cocaine — was supported by evidence of a specific drug quantity. In Williams, the First District overturned the conviction of a similarly charged defendant where the only evidence of attempted trafficking was the defendant’s statement agreeing to participate in a “big deal.” See 592 So.2d at 739. The First District found that, although other testimony “indicate[d] that appellant’s co-defendant was told the buyer wished to purchase an ounce or more of cocaine, no specific amounts were discussed on the two occasions when appellant was present, nor did appellant agree to furnish a specific amount of cocaine.” Id. We find that because here, as in Williams, no evidence of a specific amount of cocaine was presented to the jury, Hernandez’s convictions for first-degree felony murder based on trafficking or attempted trafficking must be reversed.

When reviewing the sufficiency of evidence presented to a trier of fact, our task is not to retry the case or reweigh the evidence. “Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the [decision].” Brown, 959 So.2d at 149 (alteration in original) (quoting Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981)). Questions relating to the weight of the evidence and the credibility of witnesses are reserved exclusively to the trial court. See Brown, 959 So.2d at 150; see also Porter v. State, 788 So.2d 917, 923 (Fla.2001) (“We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.”).

Under Florida law, a person commits the first-degree felony of trafficking in cocaine when that person knowingly sells, purchases, manufactures, delivers, brings into this state, or actually or constructively possesses 28 grams or more of cocaine or any mixture containing cocaine. See § 893.135(l)(b)l.a., Fla. Stat. (2002). The State bears the burden of proving the following elements beyond a reasonable doubt: (a) the accused knowingly sold, purchased, manufactured, brought into the state, or actively or constructively possessed a certain substance; (b) the substance was cocaine; and (c) the quantity of the substance was 28 grams or more. See Snell v. State, 939 So.2d 1175,1179,1179 n. 1 (Fla. 4th DCA 2006). A person commits the crime of attempted trafficking when that person (a) intends to commit each element of the actual offense, and (b) commits an overt act toward the completion of the offense. See Brooks v. State, 762 So.2d 879, 897 (Fla.2000) (citing § 777.04(1), Fla. Stat. (1995)).

Initially, we note that because Hernandez was charged with attempted trafficking as well as actual trafficking, “[t]he State was not required to prove that the substance involved was actually cocaine or a mixture thereof.” Id. When a defendant has been charged with attempted trafficking, there is no need to prove that the defendant in fact bought or sold 28 grams or more of cocaine, or even that actual cocaine existed. Instead, it is sufficient that the defendant intended to be a party to a transaction involving at least 28 grams of cocaine, and committed an overt act toward the completion of that offense. See id.

In Kocol v. State, 546 So.2d 1159, 1159-60 (Fla. 5th DCA 1989), for example, the defendant was charged with trafficking in cocaine after selling to another party what the defendant claimed was a full ounce of cocaine. In fact, the amount delivered was determined by police to be only 27.58 grams of cocaine, just short of the 28 grams required to convict for actual trafficking. See id. at 1160. Regardless, it was held that the deficiency did not defeat the defendant’s conviction for conspiracy to traffic. Instead, where there was evidence that the defendant had explicitly agreed to deliver an ounce of cocaine, the district court found competent, substantial evidence of his intent to sell a trafficking quantity. See id. Similarly, in Spera v. State, 656 So.2d 550, 552 (Fla. 2d DCA 1995), the Second District upheld a conviction for conspiracy to traffic, despite the defendant’s delivery of only 26.8 grams of cocaine, where the evidence established that the defendant had previously agreed with his coconspirators to deliver a full ounce.

Even the existence of actual cocaine is not necessary to convict a defendant for conspiracy or attempt to traffic. More recently, in Campbell v. State, 935 So.2d 614 (Fla. 3d DCA 2006), the Third District upheld a conviction for attempted trafficking despite the absence of any actual cocaine. There, the defendant had agreed to participate in a plot to steal cocaine from the boss of a disgruntled drug courier. In actuality, the courier was an undercover police officer and the plot was a sting operation orchestrated by the Miami-Dade Police Department. See id. at 615-16. Even though the cocaine, too, was fictional, the defendant’s attempted trafficking conviction was upheld where he agreed to participate in the drug transaction and committed an overt act toward that objective. See id. at 617.

In this case, Hernandez admitted in his pretrial statement that he had agreed to 'act as a middleman in a transaction involving cocaine. According to his statement, Hernandez placed George Collazo, the seller, in touch with Ricky Valle, the purchaser. He exchanged multiple phone calls with both parties in order to facilitate the transaction on the morning the sale was to occur. He admitted Valle, Collazo and Aleman into his residence for the purpose of conducting the transaction. We find that this testimony clearly provides competent, substantial evidence that the defendant intended to commit an offense involving the sale and purchase of cocaine. See Brooks, 762 So.2d at 897. Hernandez’s statement indicates that he intended to facilitate the sale and purchase of a certain substance, and that he intended the substance to be cocaine. He also described numerous overt acts toward the completion of that objective. See id. Thus, this admission provides competent, substantial evidence that Hernandez attempted to commit the first two elements of the crime of trafficking in cocaine. See Snell, 939 So.2d at 1179, 1179 n. 1 (setting out the three elements of trafficking in cocaine for offenses occurring after the enactment of section 893.101).

As to the remaining element of the offense, the questions that must be resolved are whether sufficient evidence was presented to prove the intended weight of the drug and whether the weight proven was a trafficking amount. In upholding the petitioner’s conviction, the district court cited the following evidence in finding that Hernandez believed the transaction would involve at least 28 grams of cocaine: First, Hernandez expressed his belief that the cocaine would be sold for $30,000. Second, Hernandez stated that Collazo arrived with a box two to three feet in height. Third, Hernandez later asked his girlfriend to remove a package containing a white powder from the townhome. Fourth, a jailhouse informant testified that Hernandez intended to sell Collazo ten kilograms of false cocaine for $220,000 to $230,000. See Hernandez, 994 So.2d at 490. On review, we find that these items of evidence, alone or in combination, were insufficient to prove the defendant’s intent to buy, sell, manufacture, deliver, bring into the state, or possess at least 28 grams of cocaine.

Regarding the jailhouse informant’s testimony, we find that this statement does not provide competent, substantial evidence in support of the intended weight of the drug. While it is not necessary to prove the existence of actual cocaine in order to establish a defendant’s intent to engage in drug trafficking, see, e.g., Campbell, 935 So.2d at 617, the State must still submit evidence showing that the defendant intended to traffic in actual cocaine. In the version of the events related by the jailhouse informant, Hernandez stated only that he intended to sell ten kilograms of false cocaine to Collazo for $220,000 to $230,000. This testimony might have provided competent, substantial evidence that Hernandez intended to engage in the sale of a counterfeit controlled substance, had that offense been charged. See § 817.563, Fla. Stat. (2002) (making it “unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance ... and then to sell to such person any other substance in lieu of such controlled substance”); see also Carruthers v. State, 636 So.2d 853 (Fla. 1st DCA 1994) (discussing the offense of attempted sale of a counterfeit controlled substance). Where an accused’s only assertion, however, is that he or she intended to sell a substance that was not the controlled substance whose possession, sale, or purchase is prohibited by statute, that statement alone provides no evidence of the suspect’s intent to engage in the trafficking of the actual substance.

Similarly, we reject the district court’s conclusion that attempted trafficking was supported by Vicky Rodriguez’s account of finding a box of false cocaine in her home. Again, Rodriguez testified only that the substance was false cocaine, and she did not give any statement regarding its quantity. Like Rodriguez, Hernandez stated only that the substance was false cocaine. In the absence of any evidence that the contents of the box included 28 grams or more of cocaine or that the substance inside was actual cocaine, rather than counterfeit cocaine, we find this evidence insufficient to support the charge that Hernandez was guilty of trafficking or attempting to traffic in at least 28 grams of cocaine.

As to Hernandez’s specific statement that the box carried by Collazo was two or three feet in height, this evidence likewise fails to support the element of quantity where there was no evidence indicating that the box in fact contained cocaine. While it is possible to infer, as the district court concluded, that Hernandez believed the box contained the $30,000 worth of cocaine Collazo was expected to bring to the transaction, see Hernandez, 994 So.2d at 490, Hernandez did not make any statement indicating that he believed this to be true. Further, there was no discussion of the quantity of cocaine that might have been contained in the box. In the absence of such testimony, the box alone provides no evidence of Hernandez’s intent to buy or sell a specific quantity of cocaine of at least 28 grams.

The remaining item of evidence was Hernandez’s statement that he believed the cocaine would be sold for the price of $30,000. We find this evidence comparable to that reviewed in our decision in Brooks, 762 So.2d at 879. In that case, the only evidence supporting the defendant’s intent to engage in a transaction involving at least 28 grams of cocaine was his statement agreeing to purchase thirty “jugglers” of crack cocaine. See id. at 898. Alone, this evidence would not have been sufficient to support the conviction, since it is doubtful, to say the least, that the specific meaning of the term “juggler,” as it is used in a drug transaction, was within the common knowledge of the jury pool. However, we found sufficient evidence of the defendant’s intent where another witness, an experienced drug dealer, testified that “juggler” was a common term for a one-gram rock of crack cocaine. See id. Based on this testimony, we found that “this evidence was sufficient to establish that Brooks intended to obtain a specific amount of crack cocaine — 28 or more grams — that was above the requisite amount to prove trafficking.” Id.

Just as “juggler” was used as a proxy for drug quantity in Brooks, we are asked in this case to apply the dollar value of the cocaine as a proxy for quantity in the transaction between Collazo, Aleman, and Valle. Price may clearly be used as evidence of drug quantity (or intended drug quantity) under certain circumstances. As the New York Court of Appeals has noted: “Where there is evidence of the price paid for a quantity of drugs, then there is evidence [a] defendant knew its weight, since value is based on weight.” People v. San chez, 86 N.Y.2d 27, 629 N.Y.S.2d 179, 652 N.E.2d 925, 929 (1995). Similarly, under federal law, courts are permitted to take the general price of a drug into account when estimating the quantity of drugs involved in an illicit enterprise or conspiracy. The application notes to the Federal Sentencing Guidelines provide:

Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance. In making this determination, the court may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.

U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n. 12 (2010) (emphasis added).

In United States v. Paulino, 996 F.2d 1541, 1546 (3d Cir.1993), for example, the defendants were charged with conspiring to distribute over five kilograms of cocaine over a period of thirty months. Examining the evidence relied on by the trial court in calculating the defendants’ sentences under the Sentencing Guidelines, the federal appellate court explained that “[t]he most specific evidence of volume” presented by the government was a statement by one of the defendants’ employees that the defendants’ drug business had grossed $12,000 in a single night. Id. Following the presentation of this evidence, the government called an agent of the Drug Enforcement Agency to testify that cocaine sold at a price of $1,000 per ounce during the period of the conspiracy. Id. The appellate court determined that this testimony constituted “quantifiable trial evidence” on which the sentencing judge was permitted to estimate the amount of cocaine involved in the conspiracy. Id. at 1548.

In the present case, however, there was no evidence on which the jury could have reasonably connected the price of $30,000 to a specific quantity of at least 28 grams. As the district court noted, the State could have submitted evidence that $30,000 was greater than the value of one ounce of cocaine. See Hernandez, 994 So.2d at 490 n. 4. However, no such evidence was presented at trial. And although it may be true that “[tjrial judges at the criminal court, prosecutors, defense lawyers — and probably even many jurors — know ... that the price of an ounce of cocaine was (in 2002) and is far less than $30,000,” id., we do not believe the price of cocaine is sufficiently known to the public at large that a jury can be left to infer on its own that a dollar value alone proves that a trafficking quantity of cocaine was involved in a particular transaction.

As in Williams, where the First District found the defendant’s statement agreeing to participate in a “big deal” insufficient to establish his intent to purchase a trafficking quantity of cocaine, see 592 So.2d at 739, there was no evidence in this case from which the jury could reasonably infer that Hernandez intended to participate in a transaction involving at least 28 grams of cocaine. Accordingly, we find that the State failed to establish each element of trafficking or attempted trafficking, and conclude that Hernandez’s convictions for felony murder in the first-degree must be reversed.

REMEDY

Having concluded that Hernandez’s convictions must be vacated, we consider the remedy to be applied. Under section 924.34, Florida Statutes (2010):

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

In I.T. v. State, 694 So.2d 720, 724 (Fla.1997), we interpreted section 924.34 to allow an appellate court to modify the trial court’s verdict and to enter a judgment either for a necessarily lesser included offense or for a permissive lesser included offense where supported by the allegations in the charging document and the proof at trial. See also State v. Sigler, 967 So.2d 835, 842 (Fla.2007) (explaining that in order for an appellate court to direct a verdict for a lesser included offense, the jury must have found every element of that lesser offense beyond a reasonable doubt).

In this case, the allegations in the charging document and the proof at trial support the entry of a judgment for third-degree felony murder as a permissive lesser included offense of first-degree felony murder. Hernandez was charged with first-degree felony murder pursuant to section 782.04(1), Florida Statutes (2002), with the underlying felony of trafficking or attempted trafficking in 28 or more grams of cocaine as prohibited by section 893.135(1). Section 782.04(1) defines first-degree murder as any unlawful killing committed by a person engaged in any felony listed in that section, including any trafficking offense under section 893.135(1). See § 782.04(l)(a)2.a., Fla. Stat. (2002). Under section 782.04(4), however, an unlawful killing committed by a person engaged in any felony not listed in section 782.04(1) is felony murder in the third degree. See § 782.04(4), Fla. Stat. (2002).

Even without evidence that Hernandez intended to engage in a transaction involving at least 28 grams of cocaine, then, the jury verdict supports a finding that Hernandez committed a qualifying felony under section 782.04(4). Under section 893.13(l)(a)l., Florida Statutes (2002), possession with the intent to sell, manufacture, or deliver a schedule II controlled substance, regardless of weight, is a felony of the second degree. See § 893.03(2)(a)4., Fla. Stat. (2002) (classifying cocaine as a Schedule II controlled substance). Further, an attempt to commit a second-degree felony is classified as a felony in the third degree. See § 777.04(4)(d)l., Fla. Stat. (2002). In the present case, sufficient evidence was presented to prove that Hernandez attempted to engage in a transaction involving an unspecified quantity of cocaine. See Ross v. State, 528 So.2d 1237, 1241 (Fla. 3d DCA 1988) (reducing a conviction for trafficking in cocaine to mere possession where the evidence was insufficient to establish the defendant’s possession of at least 28 grams of cocaine). Accordingly, because Hernandez was charged and convicted in a manner encompassing each element of third-degree felony murder, this Court may direct a verdict for the lesser included offense pursuant to section 924.34. See Sigler, 967 So.2d at 842.

CONCLUSION

For the reasons expressed above, we quash the decision below affirming Hernandez’s convictions for first-degree felony murder and remand to the district court with instructions to vacate the convictions and direct the entry of judgments for third-degree felony murder.

It is so ordered.

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

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

CANADY, C.J.,

dissenting.

I would discharge jurisdiction because there is no basis for this Court to exercise conflict jurisdiction. The majority errs in concluding that there is express and direct conflict between the decision of the Third District Court of Appeal on review and the First District Court of Appeal’s decision in Williams v. State, 592 So.2d 737 (Fla. 1st DCA 1992).

In Williams, the First District concluded that the defendant’s agreement “to participate in ‘a big deal’ ” was not sufficient to establish that he “contemplated a transaction involving an ounce or more of cocaine.” 592 So.2d at 739. Here, the evidence concerning the amount of the drugs to be involved in the transaction contemplated by Hernandez was based on his statement that the transaction was to be for $30,000 and that the sellers “arrived with a box two or three feet in size.” Hernandez v. State, 994 So.2d 488, 490 (Fla. 3d DCA 2008).

The nature of the evidence at issue in the case on review thus is entirely distinct from the type of evidence in Williams. There is no express and direct conflict.

POLSTON, J., concurs.

      . Morales reported several conflicting statements that Hernandez had also allegedly made about the crime. Initially, when Hernandez learned that Valle was accusing him, Hernandez indicated that it was Valle who had committed the murders. In another account, Hernandez told Morales that he had been paid $300,000 by a group called Casa Romero for a contract killing on Collazo and Aleman.

      . Hernandez also argued that the jailhouse statements to Morales should have been suppressed by the trial court. See Hernandez, 994 So.2d at 489-90. However, this claim was rejected by the Third District and Hernandez has not renewed the argument here.

      . The trafficking statute requires slightly less than one ounce of cocaine (28 grams) to support a conviction. See § 893.135(l)(b). When converted into metric units, one ounce equals 28.35 grams. See Merriam-Webster’s Collegiate Dictionary 1341 (10th ed. 1999).

      . In finding that Hernandez failed to show a "reasonable doubt” that the transaction was for less than 28 grams, Hernandez, 994 So.2d at 490, the district court did not apply the correct standard of review. The issue is not whether Hernandez can demonstrate a reasonable doubt as to his guilt, but whether competent, substantial evidence was presented at trial in support of the jury's verdict.

      . Previously, the State was also required to prove that an accused had knowledge of the illicit nature of the substance — i.e., knowledge that the substance was in fact cocaine — as an additional element of the offense of trafficking in cocaine. See State v. Dominguez, 509 So.2d 917 (Fla.1987). In 2002, the Legislature enacted section 893.101, Florida Statutes, eliminating knowledge of a controlled substance’s illicit nature as an element of any offense under chapter 893. Instead, the lack of such knowledge may be raised as an affirmative defense. See § 893.101(2), Fla. Stat. (2010).
      We observe that although several provisions of the Florida Standard Jury Instructions were amended to conform to section 893.101, the instruction on the offense of trafficking in cocaine was left unchanged. See In re Standard Jury Instructions in Criminal Cases (No.2005-3), 969 So.2d 245, 262-63 (Fla.2007). Indeed, in this case the jury was instructed that trafficking in cocaine was a four-element offense, even though Hernandez committed his crime after May 13, 2002, the date the new statute became effective. See
        ch.2002-258, § 2 Laws of Fla. There appears to be some confusion among the district courts as to whether knowledge of the illicit nature of the substance remains an element of trafficking in cocaine. Compare Leigh v. State, 967 So.2d 1102, 1105 (Fla. 4th DCA 2007) (listing “the defendant knew the substance was cocaine” as an element of trafficking, when the appellant’s offense occurred after the enactment of section 893.101), with Barrientos v. State, 1 So.3d 1209, 1216-17 (Fla. 2d DCA 2009) (upholding the trial court’s decision to remove knowledge of the illicit nature of the substance from an instruction on trafficking in cocaine, and noting that, "for offenses occurring after section 893.101 became effective, the standard jury instruction is inaccurate”). We direct the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to consider whether the instruction on this offense must be altered in light of section 893.101.

      . As we noted in Brooks, ”[t]he fact that Kocol involved conspiracy, rather than attempt, does not render that case inapplicable here.” Brooks, 762 So.2d at 897 n. 23. Brooks, Ko-col, and the present case all concern the same issue, namely, a defendant’s intent to traffic in cocaine.

      . Additionally, although in the informant's account Hernandez himself was the one who shot the victims, the jury necessarily rejected this testimony by finding Hernandez guilty of first-degree felony murder without personal possession of a firearm.

      . The distinction between necessarily and permissive lesser included offenses was explained by this Court in Sanders v. State, 944 So.2d 203 (Fla.2006):
      Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. State v. Paul, 934 So.2d 1167, 1176 (Fla.2006). A permissive lesser included offense exists when "the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been." State v. Weller, 590 So.2d 923, 925 n. 2 (Fla.1991).

        Id. at 206 (alterations in original).

      . The jury was in fact instructed on third-degree felony murder as a lesser included offense. The trial court's instruction stated that the jury should find Hernandez guilty of third-degree felony murder if it determined that he was engaged in the commission of or attempt to commit the offense of possession with the intent to sell, manufacture, or deliver less than 28 grams of cocaine.