author: KELLUM, Judge. WELCH, Judge,

text:
    Montana Jordan WINDSOR v. STATE of Alabama.
    CR-11-0154.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.

      William Terry Bullard, Sr., Dothan (withdrew 06/08/2012); and Trant Bullard, Dothan, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Montana Jordan Windsor, was convicted of robbery in the first degree, a violation of § 13A-8-41, Ala. Code 1975. The circuit court sentenced Windsor as a habitual felony offender with two prior felony convictions to 120 years’ imprisonment. The circuit court ordered Windsor to pay a fine of $18,000, restitution in the amount of $32,000, and court costs.

The record indicates the following pertinent facts. On April 3, 2010, Windsor entered a CVS Pharmacy retail store in Dothan wearing a beanie and gloves, which CVS staff found suspicious because “nobody dresses that warm in the middle of Spring.” (R. 30.) Windsor walked quickly down an aisle of the store toward the pharmacy department. As he approached the pharmacy, the pharmacy technician on duty at that time saw that Windsor was carrying a handgun. Windsor jumped over the front counter of the pharmacy and demanded OxyContin. Windsor was in the store for approximately two minutes, during which time numerous employees of the pharmacy were able to see and identify Windsor. After Windsor secured the OxyContin he fled the store. The police estimated the value of the OxyCon-tin in his possession to be between $35,000 and $40,000, with a street value of over $100,000.

At the request of the Dothan Police Department, a local television station aired a videotape of the robbery recorded by the CVS Pharmacy store’s security cameras during the evening news as a “Crime Stoppers” segment. Dewey Emflnger saw that video of the robbery on the news and recognized that the robber had a similar physical appearance to Windsor, who had worked as an employee at Emfinger’s business for three months. Emflnger testified that he thought Windsor was the person in the video from “the way [Windsor] moved, the outline of his face, you know, and his build, size.” (R. 78.) Emflnger telephoned the Crimestoppers tip line and reported this information to authorities.

Shortly after Emfinger’s telephone call, Cp. Chris Barbaree of the Dothan Police Department brought a photographic lineup card that contained a picture of Windsor to the CVS store. One of the pharmacy technicians, Megan Ferry, identified Windsor as the person who had robbed the store. Ferry was able to pick Windsor out “immediately.” This led to Windsor’s arrest.

During the trial, several CVS employees who were present at the time of the robbery identified Windsor as the person who had robbed the store. The first CVS employee to testify was Megan Ferry, who testified that once she saw Windsor enter the store with a gun she “was trying to get a description of [Windsor]... and trying to pay attention to any details I could relay to the officers once they got on the scene.” (R. 33.) Ferry further testified that she picked Windsor out of a photographic lineup as the person that robbed the store, and she also identified Windsor in court as the perpetrator of the robbery.

Brittany Hutt, another pharmacy technician on duty at the time of the robbery, testified that at approximately 4:30 p.m. Windsor jumped over the counter of the pharmacy and that she was “face-to-face” with Windsor. Hutt stated that Windsor’s physical appearance was “clear as day, no mask or anything.” (R. 58.) She then pointed to Windsor in the courtroom and identified him as the “person that jumped the counter.” (R. 59.) Hutt testified that Windsor demanded OxyContin and was behind the pharmacy counter for two or three minutes. Hutt further testified that when shown a photographic lineup, she told Cpl. Barbaree that she was “a hundred percent” sure that Windsor was the person who had robbed the CVS store.

Jarrod Tidwell was a pharmacist at CVS and was working at the time Windsor robbed the pharmacy. Tidwell testified that he had an unobstructed view when Windsor climbed over the counter of the pharmacy department with a gun in his hand. Tidwell was asked how sure he was that Windsor was the person who had robbed the CVS store, leading to the following response:

“I got a great look at him. I mean, it was well lit. I had, you know, two, three minutes to look at him. There was nothing between me and him. He wasn’t wearing a mask. Just like looking at anybody in here today. If I looked at you for two minutes, and you had a gun pointed at me, I’m going to remember what you looked like.”

(R. 105.) Tidwell further testified that he was “100 percent sure” that Windsor was the person who had robbed the CVS store when he was presented with a photographic lineup by Cpl. Barbaree. Tidwell also made an in-court identification of Windsor.

In addition to the testimony of the employees present at the CVS store at the time of the robbery, the surveillance-camera video of the robbery was played for the jury.

The State also presented evidence regarding a prior incident in which Windsor jumped over the counter of the pharmacy department at a Walgreens store. The State presented the testimony of Jennifer Bradshaw and Frances Crumwell, employees of Walgreens. The State also presented testimony from Tanja Walker, who witnessed Windsor’s flight from the Wal-greens store. The incident at Walgreens occurred on July 16, 2008, when Windsor jumped over the counter of the pharmacy department and demanded OxyContin. Crumwell was a pharmacist on duty, and her description of the events is indicative of the testimony of the other two witnesses. Crumwell testified as follows:

“[Crumwell]: It was about 9:45, because I was working until 10:00 that night. We were getting ready to close. We was doing our closing procedures. And one of my techs, I heard her say, you don’t — you are not supposed to be back here. And at that point in time I walked over to see what was going on. And I saw someone standing there. And they said, I want Oxycontin. And I said, well, if you’ll go back out front, I’ll get your prescription. He said, I don’t have a prescription. I want your Oxycontin.
“At that point I said, you need to get out of my pharmacy. He took a step toward me. And one of my other techs came between us. And then he jumped over the counter
“[PROSECUTOR]: Did he leave at that point?
“[Crumwell]: Yes, Sir.
“[PROSECUTOR]: Did the individual, did [he] ever give you a name for a prescription?
“[Crumwell]: No. The only thing that [he] said was that [he] wanted Oxycontin.
“[PROSECUTOR]: And you asked [him] if [he] would give you the prescription and you would get it?
“[Crumwell]: Correct. Because we have a waiting area, which we take, and we counsel people and whatnot. And he said he didn’t have a prescription. He wanted the Oxycontin.
“[PROSECUTOR]: And did he ever tell you a name or anything for a prescription that may have been dropped off earlier?
“[Crumwell]: No, sir, not to my recollection.
“[PROSECUTOR]: All right. Now, do you know who that individual was, or do you see them in the courtroom today? I know it’s been a couple of years.
“[Crumwell]: Yes, it certainly resembles the person that was back in the pharmacy.
“[PROSECUTOR]: And can you point out the person that you recognize?
“(Witness complies [Crumwell pointed toward Windsor].)”

(R. 137-38.)

In addition to the testimony from the Walgreens employees and Walker, Cpl. Barbaree — who also investigated the prior incident at Walgreens — testified that after Windsor was apprehended, Windsor voluntarily stated that he had jumped the counter at Walgreens in an unsuccessful attempt to steal some OxyContin and subsequently fled the scene. Cpl. Barbaree charged Windsor with obstruction of justice for using a false identity, because Windsor identified himself to police as Jeremy Windsor, not Montana Windsor. However, Cpl. Barbaree did not charge Windsor with any other crime stemming from the Walgreens incident.

Windsor testified in his own defense at trial. Windsor denied that he was the person who had robbed the CVS store. Windsor testified, however, regarding the events at the Walgreens store. Windsor admitted that he jumped over the pharmacy counter and demanded OxyContin.

Windsor’s case was tried before a jury. After both sides had rested and the circuit court had instructed the jury on the applicable law, the jury found Windsor guilty of robbery in the first degree. This appeal followed.

I.

Windsor first contends that the circuit court erred in allowing evidence of prior bad acts in violation of Rule 404(b), Ala. R. Evid. Specifically, Windsor argues that it was improper for witnesses to testify that in 2008 Windsor committed a similar crime when he jumped over the counter of the pharmacy department at a Walgreens and demanded OxyContin. During the trial, Windsor objected to all four of the witnesses who testified regarding the incident at the Walgreens store to the extent that those witnesses testified that Windsor jumped over the pharmacy counter at the Walgreens store and demanded OxyCon-tin.

“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), aff'd, 808 So.2d 1215 (Ala.2001). “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 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-bad-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998). See also Irvin v. State, 940 So.2d 331, 344-46 (Ala.Crim.App.2005).

Generally, “[ejvidence of any offense other than that specifically charged is prima facie inadmissible.” Bush v. State, 695 So.2d 70, 85 (Ala.Crim.App.1995) (citing Nicks v. State, 521 So.2d 1018 (Ala.Crim.App.1987)). However, the exclusionary rule operates to exclude only evidence of other crimes that is offered as proof of the defendant’s bad character. See Tyson v. State, 784 So.2d 328, 346 (Ala.Crim.App.), aff'd, 784 So.2d 357 (Ala.2000). Specifically, Rule 404(b), Ala. R. Evid., states, in pertinent part:

“(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....”

In Irvin v. State, 940 So.2d 331 (Ala.Crim.App.2005), this Court explained:

“In Robinson v. State, 528 So.2d 343 (Ala.Crim.App.1986), this Court discussed the purpose of the exclusionary rule, stating:
“ ‘ “ ‘On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.’ ” Pope v. State, 365 So.2d 369, 371 (Ala.Crim.App.1978), quoting C. Gamble, McElroy’s Alabama Evidence 69.01 (3d ed.1977). “ ‘This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.’ ” Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting McElroy’s supra, 69.01(1). Thus, the exclusionary rule serves to protect the defendant’s right to a fair trial. “‘The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.’ ” Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983); Terrell v. State, 397 So.2d 232, 234 (Ala.Cr.App.1981), cert. denied, 397 So.2d 235 (Ala.1981); United States v. Turquitt, 557 F.2d 464, 468 (5th Cir.1977).
“ ‘ “If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by showing of bad character, then proof of such other act is admissible.” Saffold v. State, 494 So.2d 164 (Ala.Crim.App.1986). The well-established exceptions to the exclusionary rule include: (1) relevancy to prove identity; (2) relevancy to prove res gestae; (3) relevancy to prove scienter; (4) relevancy to prove intent; (5) relevancy to show motive; (6) relevancy to prove system; (7) relevancy to prove malice; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes. Willis v. State, 449 So.2d 1258, 1260 (Ala.Crim.App.1984); Scott v. State, 353 So.2d 36 (Ala.Crim.App.1977). However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify its admission. “ ‘Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.’” Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985), quoting United States v. Turquitt, supra at 468-69. “ ‘ “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.’ [Citation omitted.] ‘Of course, “prejudice, in this context, means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” ’ ” Averette v. State, supra, at 1374.’
528 So.2d at 347. See also Hocker v. State, 840 So.2d 197, 213-14 (Ala.Crim.App.2002).”

940 So.2d at 345-46.

Two of the above mentioned exceptions to the exclusionary rule — identity and motive — are present in the instant case. With regard to Rule 404(b) evidence used to prove identity, the Alabama Supreme Court has held: “[E]vidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime ‘exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.’ ” Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985)(quoting Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983)). See also Irvin v. State, 940 So.2d 331, 345-52 (Ala.Crim.App.2005). With regard to Rule 404(b) evidence used to prove motive, this Court has stated: “[I]t is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense.” Estes v. State, 776 So.2d 206, 210-11 (Ala.Crim.App.1999).

The record indicates that the circuit court did not abuse its discretion when it allowed testimony regarding Windsor’s actions at the Walgreens store because that evidence tended to prove both identity and motive. Windsor’s defense placed at issue his identity as the perpetrator of the crime at the CVS store. Windsor’s actions at the Walgreens store — namely, jumping over the pharmacy counter and demanding Ox-yContin — exhibited a very high degree of similarity to the robbery he later committed at the CVS store.

The evidence also demonstrated Windsor’s motive — as he demanded OxyContin and appeared to be under the influence of drugs during both incidents. This tended to show that Windsor’s motive for jumping over the pharmacy counter in both instances was because of his need for OxyContin. Because the Rule 404(b) evidence admitted against Windsor was not entered against him to prove his bad character, but was admitted in order to show identity and motive, the circuit court did not abuse its discretion when it allowed the State to present testimony about the 2008 incident at the Walgreens store.

II.

Windsor next contends that the circuit court erred when it failed to give the jury a limiting instruction with regard to the evidence of Windsor’s prior bad acts. Specifically, Windsor argues that the jury should have been instructed that the testimony about Windsor’s actions at the Wal-greens store should have been considered only to prove motive, opportunity, intent, preparation, knowledge, identity,' or absence of mistake or accident, and not to prove that Windsor acted in conformity with that character when he robbed the CVS Store.

As discussed in Part I, supra, Windsor objected to the testimony about the incident at the Walgreens store. Although Windsor did not request a limiting instruction with regard to that evidence at the time of the testimony, he did request prior to the jury beginning deliberations that the circuit court provide the jury with a limiting instruction:

“[Defense Counsel]: May I approach, Judge?
“THE COURT: Yes.
“(Whereupon, the following occurred at the bench out of the hearing of the jury.)
“[Defense Counsel]: We are entitled to 404—
“THE COURT: You didn’t give it to me. Mr. Bullard, you didn’t ask for it.
“[Defense Counsel]: I don’t have to ask for it.
“THE COURT: I’ll look at it. Do you wish to look at this [requested limiting instruction to be provided to the jury]?
“[PROSECUTOR]: I’ve seen it.
“THE COURT: Any objections?
“[PROSECUTOR]: I object to it.
“THE COURT: I will not offer it. You may make an exception.
“[Defense Counsel]: Let the record know that I requested it.
“THE COURT: And I asked you for what you wanted before I began this charge and it was not brought forth at that time.
“[Defense Counsel]: I didn’t hear that, Judge.
“THE COURT: I understand. But it’s now denied. All right.
“(Whereupon, the following occurred in the hearing and presence of the jury.)
“THE COURT: So now is the time for you to begin your work. And if you will go on into the jury room and make your determination. The evidence will be gathered up and given to you.
“(Whereupon, the jury was excused to begin deliberations.)
“THE COURT: Any exception to the charge?
“[PROSECUTOR]: The State is satisfied.
“[Defense Counsel]: Yes, your Honor.
“THE COURT: You may give your exceptions.
“[Defense Counsel]: We would request the 404 charge and I’d like it to be made part of the record that we requested that charge. And we are entitled to a 404 charge. I’ve got it marked.
“THE COURT: Let me mark the denial on it. And we’ll make it for your record purposes. And in the future, Mr. Bullard, when I ask if there is anything further for the Court, I would expect any charges that you want to go to be given.
“[Defense Counsel]: All I can do is apologize.
“THE COURT: You don’t have to apologize. It interrupts the flow.
“[Defense Counsel]: I was sure you were going to give the charge anyway.
“THE COURT: Well, you’ve made your objections on the record in regard to the 404 ruling.
“[Defense Counsel]: Thank you, Your Honor.”

(R. 288-85.) As the above exchange indicates, Windsor has preserved this issue for review on appeal.

Windsor is correct in his assertion that the circuit court abused its discretion by failing to provide the requested limiting instruction. As the Alabama Supreme Court discussed in Ex Parte Billups, 86 So.3d 1079, 1085 (Ala.2010):

“In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the United States Supreme Court stated that, when evidence of a defendant’s other crimes, wrongs, or acts is introduced under Rule 404(b), Fed.R.Evid., ‘the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.’ 485 U.S. at 691-92, 108 S.Ct. 1496 (citing United States v. Ingraham, 832 F.2d 229, 235 (1st Cir.1987)(emphasis added)).”

Here, the circuit court erred in refusing to instruct the jury as to the limited purpose for which the evidence of Windsor’s prior bad acts was admitted after such an instruction was requested by Windsor.

Nevertheless, we conclude that the admission of the testimony regarding the 2008 incident at the Walgreens store without a limiting instruction, although error, was harmless error. The harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P.

In Lewis v. State, 889 So.2d 623 (Ala.Crim.App.2003), this Court stated:

“ ‘The United States Supreme Court has recognized that most errors do not automatically render a trial unfair and, thus, can be harmless.’ Whitehead v. State, 777 So.2d 781, 847 (Ala.Crim.App.1999), aff'd, 777 So.2d 854 (Ala.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001), citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
“ ‘After finding error, an appellate court may still affirm a conviction or sentence on the ground that the error was harmless, if indeed it was. Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)]; Sattari v. State, 577 So.2d 535 (Ala.Crim.App.1990), cert. denied, 577 So.2d 540 (Ala.1991); [Ala.] R.App. P. 45 .... In order for a constitutional error to be deemed harmless under Chapman, the state must prove beyond a reasonable doubt that the error did not contribute to the verdict and/or sentence. In order for a non-constitutional error to be deemed harmless, the appellate court must determine with “fair assurance ... that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). See Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Vines v. United States, 28 F.3d 1123, 1130 (11th Cir.1994).... In order for the error to be deemed harmless under Ala. RApp. P. 45, the state must establish that the error did not or probably did not injuriously affect the appellant’s substantial rights_The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.’
“Davis v. State, 718 So.2d 1148, 1164 (Ala.Crim.App.1995), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999).”

889 So.2d at 666.

Our review of the record in the instant case indicates that beyond the testimony regarding the Walgreens incident, the State presented overwhelming evidence of Windsor’s guilt. Three CVS employees who were present at the time of the robbery clearly and unequivocally identified Windsor as the man who robbed the CVS store. Video taken by a surveillance camera in the store depicted Windsor, whose appearance was not obscured, robbing CVS. Finally, Windsor’s former employer identified Windsor from the same video surveillance footage as the perpetrator of the crime. Therefore, in light of the evidence presented at trial and the totality of the circumstances, we conclude that the circuit court’s failure to instruct the jury on the limited purposes for which it could consider the evidence of the 2008 incident at the Walgreens store was harmless beyond a reasonable doubt.

III.

Finally, Windsor contends that the circuit court abused its discretion in sentencing him to 120 years’ imprisonment. Specifically, Windsor argues that his sentence is excessive because the maximum sentence under § 13A-5-9(b)(3), Ala.Code 1975, is “not less than 99 years or a maximum of life imprisonment.” (Windsor’s brief, p. 34.)

“ ‘Review on appeal is restricted to questions and issues properly and timely raised at trial.’ Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989). ‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). ‘“[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.” ’ McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation omitted) .... ‘The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.’ Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994).”

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala.2003).

In the instant case, Windsor raises his argument that his sentence is excessive for the first time on appeal. At the time of his sentencing, the following exchange occurred:

“THE COURT: I’m going to sentence you to a hundred and twenty years in the State penitentiary. There is a case that allows that. Do you have anything to say before the Court before I reaffirm this sentence?
“[Windsor]: May God’s will be done.
“THE COURT: That is all you have to say?
“[Windsor]: Yes, sir.”

(R.S. 6.) In his motion for a new trial, Windsor asserted the above-discussed claims under Rule 404(b), Ala. R.Crim. P., but Windsor made no objection to the length of sentence imposed by the circuit court. Because Windsor did not raise his excessive-sentence claim with the circuit court, this claim is not preserved for review on appeal.

Moreover, even if Windsor had preserved this claim for appeal, he would not be entitled to relief. Section 13A-5-9(b), Ala.Code 1975, provides, in pertinent part:

“In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he or she must be punished as follows:
“(3) On conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not less than 99 years.”

The Alabama Supreme Court interpreted the meaning of “by imprisonment for life or for any term not less than 99 years” in Lane v. State, 66 So.3d 824 (Ala.2010), holding:

“[W]e conclude that the phrase ‘for any term of not less than 99 years’ means that the sentencing options for a defendant with two prior felony convictions who is sentenced pursuant to the HFOA are a minimum sentence of 99 years, a maximum sentence of life imprisonment, and any term of years between the minimum and the maximum, i.e., any term in excess of 99 years. Lane was sentenced to 120 years; therefore, his sentence is within the prescribed statutory range of punishment.”

66 So.3d at 829-30.

In the instant case, as in Lane, Windsor was sentenced under § 13A-5-9(b), Ala.Code 1975, to 120 years’ imprisonment because Windsor was a habitual felony offender who had committed a Class A felony after having committed two prior felonies. As such, Windsor’s sentence is indistinguishable from the sentence imposed in Lane, a sentence that was upheld as within the permissible statutory range by the Alabama Supreme Court. “When a sentence imposed by the trial court is within the minimum and maximum range provided by our statutory law, this court will not overturn the sentence unless there is clear abuse by the trial court.” Sparks v. State, 665 So.2d 996, 997 (Ala.Crim.App.1995).

At sentencing, the circuit court explained its basis for the sentence imposed on Windsor as follows:

“Mr. Windsor, it’s because of people like you that we have plexi-glass shields between merchants and their customers to prevent injury to their employees and to the general public.
“You demonstrated that drugs are your obsession. And I don’t see that stopping. I’m going to sentence you to a hundred and twenty years in the State penitentiary.”

(R.S. 6.) Because the record indicates that the circuit court did not abuse its discretion in imposing this sentence, and because the sentence imposed on Windsor was within the statutory range of punishment, Windsor is not entitled to relief on his claim that his sentence is excessive.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

WINDOM, P.J., and BURKE and JOINER, JJ., concur.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

The majority affirms Montana Jordan Windsor’s conviction for first-degree robbery at a CVS pharmacy. I disagree with the majority’s resolution of Issue I, regarding the trial court’s admission of collateral-bad-act evidence, and Issue II, regarding the trial court’s failure to give the jury a limiting instruction about that evidence.

The State’s testimony established that on April 3, 2010, a man armed with a handgun and wearing a hat and gloves jumped across the counter at a CVS pharmacy and asked where the drugs were located. The robber demanded that the pharmacist, Jason Tidwell, put drugs in a zippered bag he brought with him. As Tidwell took prescription drugs from the pharmacy’s safe and put them into the robber’s zippered bag, the robber stated he wanted Oxycontin and he began putting drugs into the bag, too. After the bag was filled, the robber jumped over the counter and ran from the store. He took a variety of prescription drugs with him, Tidwell said: “Morphine sulfate, various strengths. Oxycontin. I think he got every bottle of Oxycontin we had. Duragesic patches, liquid morphine, you know. Demerol.” (R. 105.)

A videotape of the CVS robbery was shown on the television news. A former employer of Windsor’s contacted authorities after he saw the videotape, and he told them that the robber on the video looked like Windsor. Tidwell and two other CVS employees identified Windsor from photographic lineups, and Windsor was arrested.

In addition to the foregoing testimony the State presented substantial evidence regarding a collateral bad act. Specifically, the State presented testimony that on July 16, 2008, Windsor jumped the counter at a Walgreens pharmacy and demanded Oxycontin. He appeared to be under the influence of drugs, and dazed; he was not armed. Pharmacy employees refused to comply with his demand for Oxycontin, and he jumped back across the counter and fled from the store. The State presented additional testimony that, after Windsor fled from the store on foot, he ran into a car and fell. The driver of the car testified that she turned her car around after the man struck it; she said that a bystander was urging the dazed man to go to the hospital. The driver further testified:

“And I used to work next door as a security officer at the Houston County Corrections Work Release. And, I guess, when he saw me in uniform, because I was in uniform, I was on my way to work, he started off to run. And I said, ‘[Wlhere he at?’ And about that time he was trying to get his little run going on.”

(R. 148.) She further stated that she caught Windsor, “slammed him on the ground,” and detained him until the police arrived. (R. 143-44.)

Windsor was not charged with attempted theft at Walgreens. However, the officer who investigated the CVS robbery testified that he had also investigated the Walgreens incident, and he said Windsor was charged with obstruction of justice after the Walgreens incident because Windsor initially gave the officer an incorrect name during that investigation.

In spite of the fact that the trial court permitted substantial evidence about the Walgreens incident, including testimony about Windsor’s flight from Walgreens, and about the police investigation of the incident, the trial court refused Windsor’s request that it give the jurors any instruction to limit their consideration of that collateral testimony. The trial court’s actions resulted in reversible error.

First, I do not agree with the majority that the collateral-act evidence was admissible. Collateral-act evidence is generally prohibited, Rule 404(b), Ala. R. Evid., and the well established rule is that a defendant’s guilt or innocence is to be based on evidence relevant to the crime with which he is currently charged. Evidence of collateral bad acts is “presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged — thus, it draws the jurors’ minds away from the main issue.” Ex parte Drinkard, 111 So.2d 295, 296 (Ala.2000). The general rule prohibiting collateral-act evidence protects a defendant’s right to a fair trial because the prejudicial effect of evidence of bad acts or other crimes is likely to far outweigh any probative value that might be gained from admitting the evidence. E.g., Irvin v. State, 940 So.2d 381 (Ala.Crim.App.2005). “Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of jurors.” C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1996). See also Ex parte Billups, 86 So.3d 1079 (Ala.2010).

The majority holds that evidence about the Walgreens incident was admissible as an exception to the general rule of exclusion because it tended to prove both identity and motive. However, when Windsor objected to the admission of the evidence at trial, the State did not argue that the evidence was relevant to prove motive, it argued only that the evidence was relevant to prove identity:

“But they have invoked an identity issue. And I need to know about this prior bad acts [sic]. And it is the robbery of Walgreens. And he was asking for Oxycontin in both cases. It helps prove identity that he has done this before. He has a habit of doing this. And it is relevant. They are very, very similar. And the prior bad acts show the identity can be established through prior bad acts. And identity has been challenged by them, the defense. It is proper.”

(R. 125.)

The majority sets out the relevant legal principles regarding admissibility of evidence to show identity:

“With regard to Rule 404(b) evidence used to prove identity, the Alabama Supreme Court has held: ‘evidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime “exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.’” Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985)(quoting Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983)).”

Windsor v. State, 110 So.3d at 882.

I do not believe that the majority applies those principles correctly in this case. In 2008 Windsor climbed over the counter at a Walgreens pharmacy and asked for Oxycontin. That is the only similarity between the Walgreens incident and this robbery. The robber in this case was armed, while Windsor was not armed at Wal-greens; the robber in this case brought a bag with him and demanded “drugs” initially, later demanded Oxycontin, and left with a variety of controlled substances, while Windsor demanded Oxycontin at Walgreens and left empty-handed when Walgreens employees refused to give him anything; Windsor was under the influence of drugs at Walgreens, but there was no testimony that the robber at CVS was intoxicated or impaired. The only similarity between the two incidents is that Windsor and the CVS robber both jumped the pharmacy counter and demanded Oxycontin, but that, alone, hardly satisfies the requirements for the admission of the collateral-act evidence to prove identity — that the two crimes be unique and exhibit a high degree of similarity. To the contrary, as the pharmacist at CVS testified, the controlled substances the robber took from CVS were kept in a safe, in part, as a deterrent for robbery; Tidwell said, “Usually when pharmacies are robbed, those are the things they are after.” (R. 106.) Another pharmacy employee testified that CVS employees are trained about how to react if the pharmacy is robbed. (R. 33.) Pharmacy robberies, obviously, are not unique, and nothing about the circumstances of this robbery and the Walgreens incident were so similar that anyone viewing the two crimes would assume automatically that they had been committed by the same person. In fact, when the trial court sentenced Windsor, it stated: “Mr. Windsor, it’s because of people like you that we have plexi-glass shields between merchants and their customers to prevent injury to their employees and to the general public.” (Sent. R. 6.) Therefore, I believe that Rule 404(b), Ala. R. Evid., precluded admission of the testimony about the Wal-greens incident and that the trial court abused its discretion when it admitted that evidence.

Even if the collateral-act evidence was correctly admitted, I believe reversible error occurred nonetheless because the trial court failed to instruct the jury so as to limit the jury’s consideration of the evidence. The majority agrees that the trial court erred when it failed to instruct the jury about the proper uses for the collateral evidence, but it holds that the error was harmless because, it says, evidence of Windsor’s guilt was overwhelming. I disagree.

Rule 45, Ala. R.App. P., provides, in relevant part, that no judgment may be reversed on the ground of improper instruction of the jury unless, after an examination of the entire cause, it appears to the reviewing court that the error has probably injuriously affected substantial rights of the parties. Windsor presented substantial alibi evidence in this case, and the defense thoroughly called into question the validity of the witnesses’s identification of Windsor as the robber. In light of the conflicting evidence, my review of the entire cause leads me to conclude that the jurors might have had a reasonable doubt about Windsor’s guilt if it had not also been presented with the substantial collateral evidence about the Walgreens incident diverting their minds from the issues and evidence relevant only to this case. Instead, the jurors were erroneously permitted to consider a vast amount of evidence unrelated to the CVS robbery, and they were instructed to consider all the evidence in deciding Windsor’s guilt. For example, the trial court instructed the jury:

“Once evidence has been admitted by the Court, only the jury can consider two essential things about this evidence: First, whether it should be believed; and, second, how important it is to your decision. You make these two decisions with each part of the evidence by using your own common sense as reasonable men and women.”

(R. 279.)

The trial court’s failure to give the jury a limiting instruction as to the collateral-act evidence unquestionably affected Windsor’s substantial rights, as the jurors here were free to consider the collateral-act evidence as proof of Windsor’s bad character, as substantive evidence of Windsor’s guilt in this crime, and for any other purpose the jurors’ “common sense” dictated. Alabama courts have reversed convictions when the limiting instructions given by a trial court did not sufficiently limit a jury’s consideration of collateral-act evidence. See Ex parte Billups, 86 So.3d 1079 (Ala.2010); Marks v. State, 94 So.3d 409 (Ala.Crim.App.2012). Here, the trial court did not limit the use of the collateral evidence at all. Collateral-act evidence is “presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged,” Ex parte Drinkard, 777 So.2d 295, 296 (Ala.2000), and the jury was actually encouraged to evaluate that evidence just as it did the substantive evidence of Windsor’s guilt. The prejudice to Windsor was actual and substantial, and the error cannot be considered harmless.

Therefore, I believe that Rule 404(b), Ala. R. Evid., was violated and that the trial court abused its discretion when it allowed evidence about the Walgreens incident. But even if the evidence had been properly admitted, the trial court’s failure to give any instruction to the jury regarding the permissible use of that collateral-act evidence resulted in reversible error. The errors seriously undermined the fairness of the trial. Windsor’s conviction should be reversed.

For all of the foregoing reasons, I respectfully dissent.

      . Jeremy is Montana Windsor's brother.

      . The transcript of the sentencing hearing is separately paginated, and is designated "(Sent. R.)” in this dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James NELSON, Petitioner, v. Michael D. CREWS, etc., Respondent.
    No. SC11-2482.
    Supreme Court of Florida.
    March 21, 2013.
    James Nelson, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

James Nelson, an inmate in state custody, filed a pro se petition for writ of mandamus with this Court. We denied the petition in this case by way of an unpublished order, determining that Nelson had failed to show a clear legal right to the relief requested, pursuant to Huffman v. State, 813 So.2d 10, 11 (Fla.2000). In disposing of the petition in this case, we expressly retained jurisdiction to pursue possible sanctions against Nelson. See Fla. R.App. P. 9.410(a).

Nelson was convicted of attempted murder, among other crimes, in Duval County, Florida (circuit court case number 98-14227), and was sentenced to various terms of imprisonment, including a fifty-five-year term. Nelson appealed his convictions and sentences to the First District Court of Appeal, which affirmed the judgments of guilt and the sentences imposed. Nelson v. State, 816 So.2d 1177 (Fla. 1st DCA 2002).

Since his criminal convictions and sentences became final, Nelson has filed sixteen cases in this Court, a number of which sought relief in connection with his convictions and sentences in circuit court case number 98-14227. These filings consisted of extraordinary writ petitions as well as filings seeking to invoke this Court’s discretionary jurisdiction. Moreover, Nelson has filed voluminous amounts of paperwork in various cases, and this Court has stricken many of his pleadings as untimely, as unauthorized, or for failure to comply with the appropriate rules. Nelson has not received any relief from this Court in connection with any of the petitions he has filed here. Nelson’s filings were either devoid of merit or inappropriate for review in this Court.

Because the petition filed in this case was without merit, and because Nelson has submitted multiple other meritless filings seeking relief relating to his criminal case, we issued an order directing Nelson to show cause why he should not be prohibited from filing any further pro se filings in this Court related to circuit court ease number 98-14227. After considering Nelson’s response to the order to show cause, we conclude that it fails to show cause why sanctions should not be imposed. We further conclude that Nelson’s mandamus petition in the instant case (including his supplement), which consists of over ninety pages of rambling allegations, is a frivolous proceeding brought to this Court by a prisoner. See § 944.279, Fla. Stat. (2012).

Accordingly, in light of Nelson’s ongoing pattern of abuse of the judicial process, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by James Nelson that are related to circuit court case number 98-14227, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Nelson’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, since we have found Nelson’s petition to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where Nelson is incarcerated.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . See id. ("In order to be entitled to a writ of mandamus the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.”).

      . Nelson v. Tucker, 90 So.3d 272 (Fla.2012) (table) (denying the petition and ordering Nelson to show cause why he should not be prevented from filing further pro se pleadings and other papers pertaining to his criminal conviction and sentence in circuit court case number 98-14227, unless signed by a member in good standing of The Florida Bar).

      . One of these cases, case number SC 12-2428, is currently pending before the Court.

      . See Nelson v. Tucker, 90 So.3d 272 (No. SCI 1-2482) (Fla.2012) (table) (mandamus petition — denied); Nelson v. State, 34 So.3d 2 (No. SC09-1774) (Fla.2010) (table) (mandamus petition — dismissed); Nelson v. McNeil, 992 So.2d 820 (No. SC08-1439) (Fla.2008) (table) (habeas corpus petition — dismissed); Nelson v. Fla. Dept. of Corr., 975 So.2d 1134 (No. SC07-280) (Fla.2008) (table) (mandamus petition — denied); see also Nelson v. State, 99 So.3d 944 (No. SC12-134) (Fla.2012) (table) (notice to invoke the Court’s discretionary jurisdiction — review denied); Nelson v. State, 45 So.3d 461 (No. SC10-1728) (Fla.2010) (table) (notice to invoke the Court's discretionary jurisdiction — dismissed for lack of jurisdiction); Nelson v. State, 44 So.3d 107 (No. SC 10-1605) (Fla.2010) (table) (notice to invoke the Court’s discretionary jurisdiction— dismissed for lack of jurisdiction).

      . See State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999) (stating that prior to the imposition of sanctions, a court must afford the litigant a meaningful opportunity to show cause why the sanctions are inappropriate).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for the scarce judicial resources of this Court. See, e.g., James v. Tucker, etc., 75 So.3d 231 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla. 2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Tate v. McNeil, 983 So.2d 502 (Fla.2008).

      . See, e.g., James, 75 So.3d at 232; Johnson, 59 So.3d at 1082; Steele, 14 So.3d at 224.


author: PER CURIAM. PARIENTE, J., CANADY, J.,

text:
    Martin J. McCLAIN, Appellant, v. Hon. Jeffrey H. ATWATER, etc., Appellee.
    No. SC11-1452.
    Supreme Court of Florida.
    March 21, 2013.
    See also, 701 So.2d 545, 820 So.2d 199.

      Martin J. McClain of McClain & McDer-mott, P.A., Wilton Manors, FL, for Appellant.
    Lori L. Jobe and Richard T. Donelan, Jr., Florida Department of Financial Services, Tallahassee, FL, for Appellee.
   PER CURIAM.

This case arises from the denial of a motion for reimbursement of investigative fees in a capital postconviction proceeding, where the investigative fees exceeded the statutory cap for investigative expenses by an additional $1,844. The Florida Department of Financial Services (DFS) denied payment based solely on the fact that the expenses exceeded the statutory cap for investigative expenses. DFS takes the position that it is without authority to pay the amount in excess of the statutory cap unless authorized by court order. Neither DFS nor the State objects to the payment of the expenses, and there is no contention that the investigative expenses were unnecessary or unreasonable.

We reverse the trial court’s order because the trial court improperly focused on whether this was an “ordinary” capital case, as opposed to reviewing whether there were “extraordinary or unusual circumstances” that required defense counsel to exceed the statutory cap for investigative expenses. Based on a review of the record, we conclude that counsel’s actions and the expenses incurred were reasonable and necessary and that the case presented “extraordinary or unusual circumstances” that required defense counsel to exceed the statutory cap for investigative services.

FACTS

Because the investigative expenses at issue were incurred in investigating new facts that counsel claimed established doubt about the defendant’s guilt, we briefly review the facts. The defendant, Thomas James Moore, was convicted of robbing and killing Johnny Parrish, with whom he was friends, based on the following:

On January 21, 1993, at about 3 p.m., Moore sat outside Parrish’s house drinking with the victim. Moore claims that two other youths, Clemons and Gaines, approached the house. Moore claimed he saw the pair chase a neighborhood youth named “Little Terry” with a gun earlier that day, but Clemons denied it at trial. Clemons and Gaines testified that they had a conversation with Moore about robbing Parrish. Clemons said he agreed to go in the house with Moore, and Gaines was to be the lookout. Gaines said he stood outside but did not see either man go in. He said he heard two shots and then saw Clemons come out of the house and go back in. When Gaines started to walk away, Clemons caught up with him and told him Moore had shot Parrish.
Clemons said that when he and Moore went into the house, Moore pulled out a gun. Moore asked Parrish where his money was and then shot him when he got no response. Later, neighbors saw smoke in Parrish’s house and ran in and pulled out Parrish. Parrish was already dead when exposed to the fire, and a fire investigator, Captain Mattox, said that there were two separate fires in the house, both of which were intentionally set.
A witness named Shorter testified that Moore brought him a bag of clothes and asked him to burn them. Shorter also testified that Moore told him he had shot Parrish and set fire to the house. Shorter stated that Moore said he shot Parrish twice, that Clemons ran out of the house, and that Moore took the top off a lawn mower he found and set it on fire to clean the house of fingerprints. Shorter did not call the police but did call his mother, who called the police.
A jail inmate, Jackson, testified that Moore told him that he did not mean to kill Parrish but had to because Parrish would recognize him. Another neighbor, Dean, testified that Moore asked him to rob Parrish.

Moore v. State, 701 So.2d 545, 547 (Fla.1997). The jury recommended a sentence of death, and the judge followed this recommendation. After Moore unsuccessfully sought postconviction relief, this Court affirmed the denial of postconviction relief and denied his petition for a writ of habeas corpus. See Moore v. State, 820 So.2d 199, 202 (Fla.2002).

On September 10, 2003, Martin McClain was appointed as registry counsel for Moore and later executed a contract with DFS. In 2005, McClain contracted with private investigator Daniel Ashton to work on Moore’s case. Ashton obtained all of the prior records in the case and reviewed the files, compiling a list of witnesses to interview. He subsequently conducted numerous interviews with various individuals, including people who had been incarcerated with Moore’s codefendants, Vincent Gaines and Carlos Clemmons, when they were first arrested for the murder of the victim in this case. A number of individuals stated that Gaines and Clemmons had made incriminating statements to them shortly after they were arrested. Based on the newly discovered evidence that Ash-ton uncovered, McClain filed a successive postconviction motion on January 26, 2006. The trial judge, Judge John D. Southwood, ordered an evidentiary hearing, which was held on March 22, 2011 — over five years after the successive motion was filed. Before the hearing, McClain requested that Ashton locate the witnesses needed for the hearing and interview them again to ensure their testimony had not changed.

At the evidentiary hearing, McClain presented four witnesses who asserted that they were incarcerated with Clemmons and Gaines in juvenile detention, during which time either Clemmons or Gaines made incriminating statements shortly after the murder. David Hallback testified that he knew Clemmons when they were incarcerated together because they attended the same school. During their incarceration, Clemmons admitted that he and Gaines went to the victim’s house because they knew that there was a safe in the victim’s house and the victim sold moonshine; however, Clemmons and Gaines had to wait for Moore to leave because Moore was the victim’s best friend and would not have “let them do that.”

Mandell Rhodes testified that while he was incarcerated with Gaines and Clem-mons, Clemmons told Rhodes that although he was the one who killed the victim, he was going to blame the crime on the oldest guy because the State had given Clemmons an escape since he was so young. Rhodes also testified that Gaines and Clemmons had used a chrome handgun, but Rhodes did not know the caliber.

Raimundo Hogan testified that when he was at the juvenile facility with Clemmons and Gaines, Gaines told him that during a robbery, Clemmons shot the victim with a .38 handgun that had been stolen from a black Mustang. In addition, Clemmons said they were going to blame a “nobody,” meaning that he did not have family or friends that would “get some get-back” after they blamed him for the crime.

Charles Simpson testified for the defense as well, asserting that when he was incarcerated in the juvenile facility with Clemmons and Gaines, both of whom he knew, Clemmons said the “older guy took the rap.” In addition, Simpson testified that he saw Clemmons pull a chrome .38 handgun on another individual about a day before the murder. Defense counsel also called Michael Dean, who had testified at the trial. Dean stated that he was at the victim’s house, but after he went home, he saw Vincent Gaines standing outside the victim’s house.

Wilhelmina Moore, the defendant’s mother, testified that a few years after Moore was convicted of the murder, a trial witness named Chris Shorter approached her at a neighborhood service station while she was pumping gas and said, “I don’t mean no harm, but I had to do what I had to do because I had to think about my children.” She refused to talk to him and kept the information to herself because she was not sure whether the information would help or hurt her son.

McClain then called John Jackson, who was Moore’s prior postconviction attorney at Capital Collateral Regional Counsel-North (CCRC-North). Jackson discussed his unsuccessful attempts to find Gaines and numerous other witnesses that he wanted to interview. Finally, defense investigator Ashton testified as to the investigation that he performed and the interviews that he conducted in connection with the case. Ashton also testified that he spoke with codefendant Gaines in 2005 and that Gaines provided some statements that were inconsistent with his trial testimony, including his admission that on the day of the murder, he and Clemmons chased a person named Little Terry around a park with a chrome-plated .38 handgun that was stolen from a black Mustang at the Imperial Estates Apartments three weeks prior.

After the defense rested, the State called Carlos Clemmons, who denied having a gun, denied telling anybody that he was setting up an adult, denied telling anybody that he stole a gun from a Mustang, and denied that he ever told anybody that Moore was innocent. Vincent Gaines was the State’s final witness. He also denied that he told anybody that Moore was innocent and denied that he and Clem-mons committed the crime by themselves. While he admitted that he had chased Little Terry, he denied chasing him with a gun. At the conclusion of the evidence, the trial judge stated as follows:

I have to make a decision as to whether or not — I don’t necessarily have to determine the truthfulness of any or all of these witnesses. I will tell everybody, for what it’s worth, that all of this testimony concerns me. Okay? I’m not at this point in time ready to absolutely disregard all of the testimony I’ve heard. I may. But the cumulative effect concerns me.... So for whatever that’s worth to you.

After the evidentiary hearing, McClain filed a motion for reimbursement of counsel, also requesting that the court issue an order directing the payment of his investigative fees including the additional $1,844 fees at issue in this case. In the motion, McClain asserted that the investigative fees exceeded the statutory cap because the fees were based on six years of investigation and included interviews with a significant number of witnesses who had been incarcerated with Clemmons and Gaines in the juvenile facility in 1993. In addition, he asserted that investigative services were necessary to prepare for the March 2011 hearing — a hearing that also required lengthy testimony from the investigator himself, who was one of the main witnesses.

The Chief Judge of the Fourth Judicial Circuit heard the motion for reimbursement, even though he was not the judge who presided over the postconviction proceedings. At the hearing, McClain relied on his motion for reimbursement and the record in the case, including the transcript of the March 2011 hearing before Judge Southwood. In denying the motion for reimbursement, the chief judge recognized that while DFS and the State Attorney’s Office did not object to the request, their positions were not binding on the court. In relevant part, the trial court then analyzed the claim as follows:

5. In order for this Court to approve the excess fees, such fees must be reasonable pursuant to Florida Statute § 27.711(13);
6. In order for the attorney to be entitled to the excess fees, this Court must also find that “extraordinary circumstances” exist, as required by Florida Statute § 27.711(6);
7. This Court finds that this is an ordinary capital post-conviction case, involving an evidentiary hearing, and that the Defendant has not established that extraordinary or unusual circumstances existed that would have warranted an extra $1,844.00 investigator’s fees over and above the $15,000 already spent, as required by Florida Statute § 27.711(6).

McClain seeks review of this order.

ANALYSIS

As both DFS and McClain recognize, the issue before this Court is whether this postconviction capital ease presents extraordinary or unusual circumstances that would permit a departure from the statutory fee guidelines in order “to ensure that an attorney who has served the public by defending the accused is not compensated in an amount which is confiscatory.” Makemson v. Martin Cnty., 491 So.2d 1109, 1115 (Fla.1986).

In 1998, the Legislature enacted sections 27.710 and 27.711 of the Florida Statutes, which provide for a statewide registry of private attorneys who are available to represent indigent death row defendants in postconviction proceedings and establish the fee schedule that must be adhered to by private attorneys. The fee schedule provided in section 27.711(4) increased the fees that an attorney could receive in capital postconviction proceedings, and section 27.711(5) provided additional fee provisions pertaining to obtaining the assistance of an investigator:

(5) An attorney who represents a capital defendant may use the services of one or more investigators to assist in representing a capital defendant. Upon approval by the trial court, the attorney is entitled to payment from the Chief Financial Officer of $40 per hour, up to a maximum of $15,000, for the purpose of paying for investigative services.

§ 27.711(5), Fla. Stat. (2011).

In Olive v. Maas, 811 So.2d 644, 653 (Fla.2002), this Court held that trial courts are authorized to award fees in excess of the statutory schedule set out in section 27.711 in capital cases “where extraordinary or unusual circumstances ex-ist.” The Court stressed that at the heart of the matter was an indigent defendant’s right to competent and effective representation — a right that could be in jeopardy if counsel could not be reasonably compensated for the legal services he or she was required to provide under the statutory fee limit. Olive, 811 So.2d at 653. In further support, the Court recognized that even the staff analysis to the statutory provisions explicitly acknowledged that the statutory fee caps “do not prevent a court from ordering payment above the maximum authorized” where unusual or extraordinary circumstances exist in capital collateral cases. Id. at 653-54 (quoting Fla. S. Comm. on Crim. Just., CS for SB 2054 Staff Analysis 7 (March 17, 1999), available at http://archive.flsenate.gov/ data/session/1999/Senate/bills/analysis/pdf/ SB2054.cj.pdf). Thus, as we held, the Legislature incorporated the standard set forth in Makemson, 491 So.2d at 1115, into section 27.711 by “patently acknowledging] that unless room is made to allow compensation in excess of the fee caps, a statutory framework may run afoul of this Court’s precedent in Makemson and its progeny.” Olive, 811 So.2d at 654; see also Maas v. Olive, 992 So.2d 196, 204 (Fla.2008) (holding that a trial court has the authority in appropriate capital collateral cases involving extraordinary circumstances to award compensation in excess of the statutory fee schedule but noting that the caps' would be exceeded only where “counsel requests additional compensation due to extraordinary and unusual circumstances, the trial court issues an order awarding such fees, and there is competent, substantial evidence in the record to support fees in excess of the statutory limit”).

In this case, because the chief judge decided McClain’s motion for reimbursement of counsel based upon his review of the record and transcripts and did not take testimony, the order at issue does not involve credibility determinations or factual findings. Instead, as the order at issue is based entirely on written evidence, we examine the ruling in the same manner as any other order determining an issue of law on settled facts — whether the applicable issue of law was correctly decided, a de novo standard of review. See Philip J. Padovano, Florida Appellate Practice, § 19:2 at 358 n. 5 (2013 ed.); Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla.2010) (stating that pure issues of law are reviewed de novo).

Here, the chief judge correctly recognized that an attorney may be entitled to fees beyond the statutory maximum when “extraordinary circumstances” exist. However, the judge then denied the motion, summarily finding that Moore’s case presented “an ordinary capital postconviction case, involving an evidentiary hearing.” The judge did not elaborate on his ruling or provide any statement to indicate that he considered the defendant’s right to effective representation and the attorney’s right to fair compensation.

In denying the motion for reimbursement, the judge made the same error as occurred in White v. Board of County Commissioners of Pinellas County, 537 So.2d 1376, 1378 (Fla.1989), where the trial court misunderstood our prior precedent and applied it in such a manner that it required defense counsel to show that the case was sufficiently complex. A review of the Court’s precedent shows that this Court explicitly rejected the premise that in order to obtain fees beyond the statutory limit, counsel must show that the case itself is more complex. This is because even in “routine” capital cases, an attorney may be required to spend his or her time in a manner that is disproportionate to the maximum allowable fee. Id. at 1380.

Instead, the proper focus of the court’s review should be “on the ‘defendant’s right to effective representation rather than the attorney’s right to fair compensation,’ ” reviewing what was reasonable in light of an attorney’s professional obligation to provide services to the indigent defendant. Olive, 811 So.2d at 653 (quoting Makemson, 491 So.2d at 1114). Then, the court must perform an “as applied” analysis to determine whether the statutory cap would be confiscatory of the attorney’s time, energy, talent, and resources under the circumstances of the particular case. Id. at 654.

In turning to the facts presented here, nothing within the judge’s decision shows that the court below used an “as applied” analysis or that it considered the individual circumstances of this case, such as focusing on whether the expenses were necessary in fulfilling the role of defending Moore and whether requiring McClain to pay for investigative fees out of his own pocket would be confiscatory.

Our review of the record shows that McClain was entitled to reimbursement. First, the issue involved here was McClain’s reimbursement for investigatory expenses in finding numerous witnesses who provided similar statements that shortly after the codefendants were arrested, the codefendants admitted that they were responsible for the murder but blamed the crime on Moore. Specifically, investigator Ashton uncovered four witnesses who were incarcerated with the co-defendants shortly after they were arrested for the murder and these witnesses testified to similar statements. Moreover, investigator Ashton also talked to one of the codefendants (Gaines) in 2005, during which Gaines allegedly admitted that on the day of the murder, he and codefendant Clemmons chased a boy around Grand Park with a chrome-plated .38 handgun that Clemmons possessed. This statement was consistent with some of the other witnesses’ statements that Clemmons had a chrome gun and that he had used it shortly before the murder. This was strong evidence that initially prompted Judge Southwood to remark, “all of this testimony concerns me.” In focusing on the defendant’s right to effective representation, the investigatory fees at issue here were both reasonable and necessary in order to fulfill McClain’s role as Moore’s defense counsel.

Second, as is clear from the testimony presented at the hearing, the investigator had to conduct substantial investigation to discover the evidence at issue. In fact, initial postconviction counsel testified at the evidentiary hearing that he had wanted to interview these witnesses earlier but was unable to discover their locations. Investigator Ashton was able to track down various potential witnesses who were incarcerated with the codefendants as juveniles in 1993, and when he interviewed them, they provided exculpatory evidence. Based on the success of the investigation, defense counsel filed a successive motion for postconviction relief based on the newly discovered evidence and then presented a total of eight witnesses at the evidentiary hearing. At the time the postconviction motion was filed, the investigative fees did not exceed the statutory maximum. However, since the evidentiary hearing did not occur until over five years later, the investigator was required to relocate the witnesses and ensure that their testimony had not changed.

Third, investigator Ashton was required to testify—both as to the work that he performed in connection with this case and as to the incriminatory statements that codefendant Gaines made when Ash-ton first interviewed him in 2005. Again, this additional investigatory work was important to Moore’s defense.

As a final consideration, McClain asserts that in this case, he did not exhaust the statutory fees to which he would be entitled and that he could have performed the investigatory services himself. However, by having an investigator perform these services, he actually saved the State money. In particular, under the statutory framework, if McClain would have undertaken such tasks, he would be entitled to $100 per hour for his time, see § 27.711(4), Fla. Stat. (2011) (setting the statutory rate for attorneys at $100 per hour), but by delegating the tasks to an investigator, he saved the State $60 per hour, see § 27.711(5), Fla. Stat. (2011) (setting the statutory rate for investigators at $40 per hour).

All of the above considerations can be considered unusual circumstances and would justify exceeding the statutory cap in this case. Mandating that counsel must personally bear the expense of investigatory fees beyond the cap is contrary to our prior decisions where we have consistently discussed that inadequate funding would cause counsel to face “an economic disincentive ... to spend more than a minimum amount of time on the case.” Freeman, 921 So.2d at 600. Such a result is even more troubling where the evidence uncovered to support a postconviction motion is relatively strong on its face and requires an evidentiary hearing in order for the judge to make necessary credibility decisions. In light of the attorney’s professional obligation to his indigent death-sentenced client and the need to engage in extended investigation to uncover witnesses that could cast doubt on the defendant’s guilt, we conclude that the circumstances of this case were extraordinary or unusual circumstances that required defense counsel to exceed the statutory cap.

CONCLUSION

For the above reasons, we conclude that the trial court erred in denying the motion for reimbursement in excess of the statutory limit. We therefore reverse the trial court’s order and remand this case to the trial court with instructions to grant the motion in accordance with this opinion.

It is so ordered.

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

PARIENTE, J., specially concurs with an opinion, in which LABARGA and PERRY, JJ., concur.

QUINCE, J., concurs in result only.

POLSTON, C.J., dissents.

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

PARIENTE, J.,

specially concurring.

I write separately to stress the fact that although the amount in dispute in this case is comparatively small for a fee dispute issue, this case illustrates several problems with the statutory scheme for registry counsel handling postconviction cases.

First, it highlights the fact that the investigatory fee schedule set forth in section 27.711(5), Florida Statutes (2011), has not been increased since it was first introduced over fourteen years ago. While the Legislature took a necessary step by enacting a fee schedule in section 27.711 that more fully ensures the constitutional right to effective representation of counsel in capital eases, it may now be an appropriate time for the Legislature to review the statutory schedule for fees and expenses paid to registry counsel handling death penalty cases. If the Legislature provides for a set fee schedule but does not revisit this schedule for decades, this increases the risk that the statutory framework set up by the Legislature will become “so out of line with reality that [it] materially impair[s] the abilities of officers of the courts to fulfill their roles of defending the indigent.’ ” White v. Bd. of Cnty. Comm’rs of Pinellas Cnty., 587 So.2d 1876, 1378 (Fla.1989) (quoting White v. Bd. of Cnty. Comm’rs of Pinellas Cnty., 524 So.2d 428, 431 (Fla. 2d DCA 1988) (Lehan, J., dissenting)).

In death penalty cases, the consequences of underfunding the defense are clearly significant. While the Legislature should be commended for establishing a system designed to ensure that all death penalty defendants have assigned postcon-viction counsel paid for by the State, the Legislature should also periodically review such fee structures to ensure that the statutory fee limitations are realistic and permit attorneys to hire qualified investigators who can perform a comprehensive investigation.

Second, the circumstances of this case exemplify the problems that flowed from the Legislature’s elimination of one of the capital collateral regional offices, Capital Collateral Regional Counsel-North (CCRC-North), and the redistribution of the cases assigned to that office. After CCRC-North could no longer represent Moore, Martin McClain, a private attorney, was appointed and undertook a significant amount of work in order to be familiar with all of the necessary facts of the case so that he could fully represent the defendant. McClain is well-known to this Court as an attorney who explores all avenues for his clients and has succeeded on occasion in discovering evidence that has led to exoneration, a new trial, or at the very least to raising questions as to a defendant’s guilt.

Upon being retained, McClain determined that it was necessary to hire an investigator, who likewise was required to review the record completely so he could find witnesses to support the relevant claims. The elimination of CCRC-North means that capital defendants in this region do not have a full-time investigator, but are required to retain investigators on an hourly basis. When an investigator must take time at the outset to become familiar with the case, this reduces the remaining available fees for investigating the claims at issue. Thus, defense counsel must ensure that the investigator carefully limits time spent to uncover potentially meritorious claims in order to keep fees within specified limits. Clearly, in order to promote the fair and impartial administration of justice, defense counsel must be able to follow credible leads that might cast doubt on the guilt of the defendant.

Lastly, I would be remiss if I did not point out that part of the reason the expenses exceeded the cap in this case was because of the delay in holding an eviden-tiary hearing. While the reasons for that delay do not appear in this record, this Court has been vigilant in ensuring that all postconviction cases are timely processed and a delay of years — or even months — is contrary to the interests of justice.

I therefore urge the Legislature to consider whether the statutory fees need to be increased. Moreover, I recognize that the Legislature is currently considering whether to re-establish CCRC-North and believe that this case supports the notion that the elimination of CCRC-North and redistribution of its cases may not have served the benefits that the Legislature was hoping to achieve.

LABARGA and PERRY, JJ., concur.

CANADY, J.,

dissenting.

I agree with the result reached by the trial court because I conclude that there is no statutory authority for making the additional payment sought here for investigative services and no basis for determining the statutory limitations to be unconstitutional. I therefore dissent.

The proper disposition of this case is governed by two simple and incontestable points. First, section 27.711(5), Florida Statutes (2012), unequivocally establishes “a maximum of $15,000, for the purpose of paying for investigative services” in post-conviction death cases. (Emphasis added.) Second, there is “no constitutional right to representation in postconviction relief proceedings,” and accordingly no cognizable claim for ineffective assistance of postcon-viction counsel. State ex rel. Butterworth v. Kenny, 714 So.2d 404, 407 (Fla.1998).

Since there is no constitutional requirement for the State to provide postconviction counsel, there is no constitutional basis for requiring the State to spend public funds beyond the level determined by the Legislature to be appropriate for the benefit of a capital defendant seeking postconviction relief. If the State could constitutionally decline to provide any postconviction counsel for death-sentenced defendants, I cannot fathom how there can be a constitutional mandate that the State provide such a defendant with investigative services costing in excess of the statutory cap of $15,000.

To be sure, the majority in this decision treads along on a path where the Court has trod before in Remeta v. State, 559 So.2d 1132 (Fla.1990), and Olive v. Maas, 811 So.2d 644 (Fla.2002). I would recede from those decisions as seriously flawed violations of the separation of powers. I therefore would affirm the order on review.

POLSTON, C.J., concurs.

      . Because the order concerns the payment of certain fees that were incurred during a post-conviction death penalty proceeding filed under Florida Rule of Criminal Procedure 3.851, this Court has jurisdiction under article V, section 3(b)(1), of the Florida Constitution. See also Fla. Dep’t of Fin. Servs. v. Freeman, 921 So.2d 598, 598 (Fla.2006).

      . McClain was initially appointed to represent Moore in an appeal from the denial of relief on a claim premised on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . In the record before this Court, Clemmons’ name is spelled as “Clemmons” but on direct appeal, it is spelled "Clemons.”

      . After this motion for reimbursement was denied, the trial court subsequently denied the motion for postconviction relief. Moore seeks review of the denial of relief in a separate appeal. See Moore v. State, No. SC12-459.

      . Section 27.711 has been amended at various times, including the amount of compensation to which defense counsel is entitled under section 27.711(4). However, since its introduction, subsection (5) has remained substantially the same, including providing a $15,000 statutory cap for investigative fees. The only difference is that the Legislature amended this provision to state that defense counsel seeks payment from the Chief Financial Officer now, as opposed to the Comptroller.

      . Last year, the Legislature also eliminated the statutorily created Commission on Capital Cases that served as an oversight commission for postconviction cases handled by registry counsel. See ch.2011-131, § 1, Laws of Fla.