author: PITTMAN, Judge.

text:
    William R. MILLER and Sarah L. Miller v. Miles JONES.
    2110624.
    Court of Civil Appeals of Alabama.
    March 8, 2013.
    David A. Horton, Daphne, for appellants.
    Adam M. Milam and Shelley H. Milam of Milam & Milam, LLC, Fairhope, for appellee.
   PITTMAN, Judge.

William R. Miller (“William”) and Sarah L. Miller (“Sarah”) appeal from an interlocutory default judgment entered against them by the Baldwin Circuit Court (“the trial court”). We dismiss the appeal because the judgment appealed from is not a final judgment.

In August 2011, Miles Jones sued William, Sarah, and Lakeside Properties, Ltd. (“Lakeside”), stating various claims on behalf of himself and two limited-liability companies, MAJ, LLC, and DJM, LLC: Jones’s complaint sought not only damages, but also declaratory relief. On September 3, 2011, a private process server left copies of the summons and complaint for William, Sarah, and Lakeside with William and Sarah’s son at a residence located on McIntosh Bluff in Fairhope. Jones subsequently amended his complaint to name Miller Acquisitions and Developments, Inc. (“MAD Alabama”), an Alabama corporation, and Miller Acquisitions and Developments, Inc. (“MAD Mississippi”), a Mississippi corporation, as additional defendants.

On October 4, 2011, William, acting pro se, filed, on behalf of himself, Sarah, and Lakeside a motion (“the motion to dismiss”) seeking dismissal of the action on the ground that valid service of process had not been effected on William, Sarah, or Lakeside on September 3, 2011. The next day, Jones filed applications for (1) the entry of defaults against William, Sarah, and Lakeside for failure to plead or otherwise defend and (2) the entry of default judgments for specified amounts of damages against William, Sarah, and Lakeside. That same day, the trial court entered orders granting Jones’s applications. Neither the applications for default judgments nor the orders granting those applications addressed the declaratory relief Jones had sought in the complaint.

Thereafter, Jones filed a response to the motion to dismiss and a motion asking the trial court to enter a final default judgment for declaratory relief and to dispose of his claim for damages against William, Sarah, and Lakeside. On October 13, 2011, the trial court entered an order denying the motion to dismiss; it entered a separate order (1) granting Jones’s motion for the entry of a final judgment against William, Sarah, and Lakeside and (2) directing Jones’s attorney to submit a proposed final default judgment for the trial court’s consideration.

On October 19, 2011, MAD Alabama and MAD Mississippi were served with process. That same day, the trial court entered an order that purported to be a final default judgment (“the purported final judgment”) against William, Sarah, and Lakeside. The purported final judgment against William, Sarah, and Lakeside granted Jones’s request for declaratory relief and awarded him damages.

Within 30 days of the entry of the purported final judgment, several of the defendants filed what purported to be a post-judgment motion asking the trial court to set aside the purported final judgment. In January 2012, the trial court entered an order setting aside the purported final judgment as to Lakeside only. Thereafter, William and Sarah filed what purported to be another postjudgment motion, which the trial court denied. William and Sarah then filed a notice of appeal from the purported final judgment, and the appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

As a threshold matter, we must determine whether we have jurisdiction to review the purported final judgment.

“Subject to limited exceptions not applicable in this case, ‘ “ ‘ “an appeal will lie only from a final judgment.” ’ ” ’ Busby v. Lewis, 993 So.2d 31, 33 (Ala.Civ.App.2008) (quoting Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), in turn quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981)).
“ ‘ “ A final judgment is one that completely adjudicates all matters in controversy between the parties.
An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” See Rule 54(b), Ala. R. Civ. P.’ ” ’
“Busby v. Lewis, 993 So.2d at 34 (quoting Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003), in turn quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002)).”

Pike v. Reed, 3 So.3d 201, 203 (Ala.Civ.App.2008).

MAD Alabama and MAD Mississippi were served with process on October 19, 2011, which made any judgment entered on or after that date that did not adjudicate all the controversies as to MAD Alabama and MAD Mississippi interlocutory unless it was certified as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Cf Rule 4(f), Ala. R. Civ. P. (providing that, when there are multiple defendants and process has been served on one or more, but not all, of the defendants, a judgment adjudicating all controversies as to all the served defendants is a final judgment); and Rule 54(b), Ala. R. Civ. P. (providing that, except as to judgments that are final as to all served defendants pursuant to Rule 4(f), any judgment that adjudicates fewer than all the controversies as to all the parties is an interlocutory judgment unless it is certified as a final judgment pursuant to Rule 54(b)). The purported final judgment did not adjudicate the claims against MAD Alabama and MAD Mississippi, and, therefore, it did not adjudicate all the controversies as to all the served defendants. Moreover, the trial court did not certify the purported final judgment as a final judgment pursuant to Rule 54(b). Consequently, the purported final judgment is not a final judgment. Id.

“The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). Accordingly, because the judgment appealed from in the present case is not a final judgment, we dismiss the appeal.

Jones has moved this court to dismiss the appeal on the ground that William and Sarah failed to file their notice of appeal within 42 days after the entry of the purported final judgment. However, because the purported final judgment is not a final judgment, the entry of that judgment did not commence the running of the 42-day period for William and Sarah to file a notice of appeal. See Ruffin v. General Motors Acceptance Corp., 75 So.3d 660, 666-67 (Ala.Civ.App.2011). Therefore, we deny Jones’s motion.

APPEAL DISMISSED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.

      . Because we do not have jurisdiction over this appeal, we do not reach the issue whether Jones had standing to prosecute claims on behalf of MAJ, LLC, and DJM, LLC.

      . Because we do not have jurisdiction over this appeal, we do not reach the issue whether the motion to dismiss was a nullity because William was not a licensed attorney and, therefore, his purporting to represent Sarah and Lakeside constituted the unauthorized practice of law. See Ex parte Ghafary, 738 So.2d 778, 781 (Ala.1998).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Valeria Frye WALKER. (In re Lashundra Lewis Fowler v. Eddie Fowler II).
    2110602.
    Court of Civil Appeals of Alabama.
    March 8, 2013.

      William M. Dawson, Birmingham, for petitioner.
    Luther Strange, atty. gen., and Marc A. Starrett, asst. atty. gen., for Judge Dorothea Batiste.
   PER CURIAM.

Valeria Frye Walker appeals from a judgment entered by the Jefferson Circuit Court (“the trial court”) finding Walker in direct criminal contempt of court during her representation of Lashundra Lewis Fowler (“the plaintiff’) in a domestic-relations case that was pending before the trial court. We reverse the finding of contempt.

On March 9, 2012, a hearing was held before the trial court in the underlying domestic-relations case regarding a motion filed by Walker requesting that Judge Dorothea Batiste recuse herself and a motion filed by Eddie Fowler II (“the defendant”) to disqualify Walker from representing the plaintiff because the defendant’s counsel was representing Walker in a separate pending legal action. At that hearing, the defendant’s counsel stated, among other things, that she had consulted with Walker regarding the domestic-relations case at issue before Walker began representing the plaintiff and that that, among other things, created a conflict justifying Walker’s disqualification. In arguing the motion to disqualify, the defendant’s counsel asserted that Walker had threatened to subpoena her. At that time, Walker objected, citing hearsay as the ground for the objection. The trial court overruled the objection, holding that the statement was not hearsay. Walker continued to protest and object, and, upon the trial court’s continued overruling of the objection, Walker stated: “Exception.” The trial court warned Walker that it would not argue with Walker, that it would not “tolerate what’s happened in the past,” and that Walker “will respect this Court.” The trial court instructed the defendant’s attorney to proceed, at which time Walker again stated: “Exception.” Walker purported to explain the purpose of that statement, but, at that time, the trial court ordered that Walker be taken into custody. After a recess, Walker was returned to the courtroom and the hearing resumed with the defendant’s counsel continuing her argument regarding the motion to disqualify. Once the defendant’s counsel had concluded her argument, the trial court signaled for Walker to respond. Despite the direction to simply respond to the defendant’s counsel’s argument on the pending motions, Walker attempted several times to note on the record that she had been locked up in a holding cell. When Walker continued to attempt to state on the record that she had been locked up in a holding cell, the trial court ended the proceedings for the day because, it said, Walker was not “[r]espond[ing] to [defense counsel’s] oral arguments.”

On March 12, 2012, the hearing continued and the following exchange occurred:

“[The trial court]: Okay. Very well. Ms. Walker, your response to the Motion to Disqualify.
“[Walker]: You hadn’t already ruled on that, Judge?
“[The trial court]: No.
“[Walker]: Did you rule on something? Can I get a — the order of the record — you had already ruled on something, am I correct?
“[The trial court]: Ms. Walker, your motion — the Motion to Disqualify is on the table, so you need to respond to—
“[Walker]: I’m just trying to remember where we were.
“[The trial court]: Your response to the Motion to Disqualify.
“(At which time there was a brief pause.)
“[Walker]: Okay. I don’t quite remember exactly where we were, but in looking at this court report here, I was going to say—
“[The trial court]: No, you are to respond to the Motion to Disqualify, Counsel. Just respond to the Motion to Disqualify, Counsel.
“[Walker]: I understand what you’re saying, Your Honor, but with all due respect—
“[The trial court]: Counsel, respond to the motion—
“[Walker]: — I am trying to get a feel for where I am in my response [to] the motion.
“[The trial court]: You never said a word, Ms. Walker. Respond to the Motion to Disqualify.
“[Walker]: And that’s what I’m trying to get—
“[The trial court]: You’re not going to argue with me. Just respond to the Motion to Disqualify. You have the record. I have it here in front of me. Just respond to the Motion to Disqualify, Counsel.”

At that time, Walker began to respond to the arguments made by the defendant’s counsel regarding the motion to disqualify. After a lengthy response, Walker continued and the following exchange occurred:

“[Walker]: The issue about the [pen-dente lite] agreement — the client, the other attorney and [the defendant’s attorney] met with you in your chambers. They came back to my client and said what you were going to do. That’s when she had no other choice but to agree.
‘You had already said how you were going to rule. You had already said the children were going to be going—
“[The trial court]: Were you here, Ms. Walker?
“[Walker]: I can only go—
“[The trial court]: Were you here? Were you here, Ms. Walker? Were you here?
“[Walker]: You know, Your Honor, I was not.
“[The trial court]: You were not here.
“[Walker]: I was not here.
“[The trial court]: State why you should not be disqualified, why you should not be disqualified.
“[Walker]: Because attorneys — they differ in — the attorneys — I have a case right now that I’m on, Your Honor, there’s been five attorneys in it. Five. You think that because I’m not here I should be disqualified? I wasn’t on the case?
“[The trial court]: Are you—
“[Walker]: Is that what you’re asking me?
“[The trial court]: Ms. Walker, you do not get to question the Court.
“[Walker]: No, I’m asking — I’m trying to—
“[The trial court]: No, no, no, you do not—
“[Walker]: — understand what you’re asking—
“[The trial court]: No, you fail to understand the order of this Court. Now, I have instructed you and said state why you should not be disqualified. I am not going to argue with you, Ms. Walker.
“[Walker]: You just asked me a question.
“[The trial court]: I said state why you should not be disqualified. ‘State’ is simple. I am not going to argue with you today, Ms. Walker.
“[Walker]: No. I just want to repeat — and I want — you know, it’s not about arguments. That’s what I do; that’s my job, is arguing.
“[The trial court]: Okay. All right. This ends—
“[Walker]: That’s what—
“[The trial court]: You are found in contempt. You are disorderly. You have repeatedly been disrespectful to this Court. I instructed you—
“[Walker]: How?
“[The trial court]: I instructed you last Friday. You have come into my chambers, and you have yelled at me with other counsel present and my staff. I’m not going to argue with you, Ms. Walker.
‘You are hereby found in direct contempt. You are to surrender yourself to the Jefferson County Jail, where you will sit for five days. I’m not going to argue with you anymore. I’m not going to argue with you anymore.
“That’s it. Court is adjourned. Thank you very much.”

The trial court entered an order finding Walker in contempt for her “willful failure to comply with the provisions of previous orders” of the trial court; that order cited the events of March 9 and March 12, 2012, noting the objections and exceptions made by Walker and Walker’s attempt to instruct the trial court. The order also indicated that Walker had attempted to retry a settled pendente lite relief order without having filed a motion to reconsider that order; that Walker “had been disrespectful to the Court on November 4, 2011, when she yelled at the Court in [its] Chambers”; that Walker had misstated the Court’s record; and that Walker’s behavior had been disorderly and insolent. The trial court held Walker in criminal contempt for her behavior, sentenced her to five days’ imprisonment in the Jefferson County Jail, and retained jurisdiction of the proceeding “for any further appropriate orders.”

On the same date that Walker was arrested pursuant to the trial court’s contempt order, the presiding circuit judge for the civil division of the Jefferson Circuit Court filed an order directing the sheriff to release Walker from custody upon her posting a cash bond in the amount of $100; that bond was contingent upon Walker’s appearing in the court to which her appeal might be prosecuted and her agreement to abide by the result of such appeal. Walker filed a notice of appeal to this court on March 21, 2012.

“[T]he standard of review in an appeal from an adjudication of criminal contempt occurring in a civil case is whether the offense, i.e., the contempt, was proved beyond a reasonable doubt. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); Combs v. Ryan’s Coal Co., 785 F.2d 970 (11th Cir.1986); and United States v. Turner, 812 F.2d 1552 (11th Cir.1987) (an attorney was found guilty of criminal contempt by United States District Judge Brevard Hand).”

Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001).

We agree with Walker that the issue to be decided on appeal is whether Walker’s actions amounted to direct criminal contempt of court. See Ala.Code 1975, § 12-1-11 (explaining that the question on appeal by an attorney who is punished for a contempt in the circuit court is whether the attorney was guilty of contempt). Rule 70A(a)(2)(A), Ala. R. Civ. P., defines “direct contempt” as

“disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.”

Rule 70A(a)(2)(C), Ala. R. Civ. P., defines “criminal contempt” as either:

“(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court’s presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or
“(ii) Willful disobedience or resistance of any person to a court’s lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.”

In Hawthorne v. State, 611 So.2d 436 (Ala.Crim.App.1992), an attorney was held in direct criminal contempt for his use of the phrase “sons of bitches” during closing arguments. The Alabama Court of Criminal Appeals noted that, “[wjhile the language used was unprofessional, indecorous, unnecessary, and unbecoming of a member of the bar, the record is devoid of any evidence that ‘immediate action [was] essential to prevent diminution of the court’s dignity and authority before the public.’” Id. at 437 (quoting Rule 33.1, Ala. R.Crim. P., which is identical in all material respects to Rule 70A(a), Ala. R. Civ. P.). In In re Powers, 523 So.2d 1079 (Ala.Civ.App.1988), an attorney was held in contempt after continuing to object despite the court’s advising him that he had a continuing objection and ruling and that he would be held in contempt if he continued to object. This court stated:

“While his action constituted an error in judgment in this respect, it did not rise to the level of contemptuous conduct. An error in judgment without clear and convincing evidence of bad faith intent is insufficient for a finding of contempt. In re Carter, 412 So.2d 811 (Ala.Civ.App.1982). The record does not reveal that the attorney had such bad faith in this ease.”

523 So.2d at 1082.

In the present case, Walker’s actions at the hearing on March 9, 2012, were similar to those by the attorney in Powers, which this court determined did not rise to the level of direct criminal contempt. Walker’s apparent argumentativeness with the trial court on March 12, 2012, appears from the transcript to be in an attempt to respond to the trial court’s requests, and the record does not reveal that Walker acted in bad faith on that occasion. Accordingly, we conclude that Walker’s actions at the hearings on March 9 and 12, 2012, did not amount to direct criminal contempt. With regard to the trial court’s reference to what had occurred in its chambers on November 11, 2012, we note that the passage of four months between the incident and the entry of the contempt order indicates that the actions were not such that immediate action was required. Thus, with regard to that incident, the trial court failed to comply with Rule 70A(b)(2) and (3), Ala. R. Civ. P., which require the court to allow Walker an opportunity to present any mitigating circumstances and that the court pronounce the sentence for the contempt within seven days of the offense.

Based on the foregoing, we conclude that the trial court erred in holding Walker in direct criminal contempt of court. The adjudication of contempt against Walker is reversed, and the cause is remanded for the trial court to dismiss the criminal-contempt charge against Walker.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and DONALDSON, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

THOMAS, J., recuses herself.


author: WINDOM, Presiding Judge.

text:
    Eugene Milton CLEMONS II v. STATE of Alabama.
    CR-10-0772.
    Court of Criminal Appeals of Alabama.
    June 29, 2012.
    Rehearing Denied Oct. 29, 2012.
    Certiorari Denied March 22, 2013 Alabama Supreme Court 1120150.

      Eric Bloom and Ryan S. Spiegel, Washington, D.C.; and Anne Regina Yuengert, Birmingham, for appellant.
    Luther Strange, atty. gen., and Hemy M. Johnson, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Eugene Milton Clemons II appeals the circuit court’s summary dismissal of his successive postconviction petition filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his 1994 conviction for murder made capital because it was committed during the course of a robbery, see § 13A-5-40(a)(2), Aa.Code 1975, and his sentence of death. On December 20, 1996, this Court affirmed Clemons’s conviction and sentence of death. On January 16, 1998, the Alabama Supreme Court also affirmed Clemons’s conviction and sentence. Thereafter, on September 10, 1998, this Court issued the certificate of judgment.

“In December 1999 or January 2000, [Clemons] filed [his first] Rule 32 petition, challenging his conviction and sentence.” Clemons v. State, 55 So.3d 314, 318 (Ala.Crim.App.2003) (footnote omitted). Later, Clemons filed several amendments to his petition. The circuit court summarily dismissed some of Clemons’s claims and held a hearing on the remainder of his claims. Eventually, the circuit court denied relief on all of Clemons’s claims.

“Clemons appealed the denial of his Rule 32 petition to [this Court].” Ex parte Clemons, 55 So.3d 348, 350 (Ala.2007). “While Clemons’s appeal was pending [before this Court], the United States Supreme Court [issued its decision in] Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding unconstitutional the execution of mentally retarded defendants.” Id. After the Supreme Court of the United States issued its opinion in Atkins, this Court remanded Clemons’s cause to the circuit court with instructions for that court to “conduct an evidentiary hearing on and [to] make specific, written findings of fact as to [Clemons’s] contentions that he is mentally retarded, that his trial attorneys rendered ineffective assistance by not developing and presenting evidence concerning his limited mental capacity, and that his sentence is unauthorized as a matter of law.” Clemons, 55 So.3d at 322. “After an extensive evidentiary hearing, the [circuit] court ... determined that Clemons falls ‘in the borderline range of intellectual functioning [but] ... is not mentally retarded.’ ” Ex parte Clemons, 55 So.3d at 350.

On return to remand, this Court affirmed the circuit court’s judgment. In doing so, this Court affirmed the circuit court’s determination that Clemons is not mentally retarded. This Court also sua sponte held that Clemons’s ineffective-assistance-of-counsel claims were procedurally barred pursuant to Rule 32.2(a), Ala. R.Crim. P., because they could have been but were not raised at trial and on appeal. Clemons, 55 So.3d at 332-33.

On May 4, 2007, the Alabama Supreme Court issued an opinion reversing the portion of this Court’s judgment that sua sponte raised the procedural bars contained in Rule 32.2, Ala. R.Crim. P. Ex parte Clemons, 55 So.3d 348 (Ala.2007). In reversing this Court’s judgment, the Alabama Supreme Court held that the procedural bars contained in Rule 32.2, Ala. R.Crim. P., are affirmative defenses that can be waived if the State does not assert them in the circuit court. Id. at 351-56. It further held that once waived, those affirmative defenses cannot be asserted sua sponte by an appellate court except in “extraordinary circumstances.” Id. at 354. The Court then determined that Clemons’s cause did not involve “extraordinary circumstances” that would justify this Court’s sua sponte application of the procedural bars and remanded the cause to this Court “for consideration of Clemons’s claims of ineffective assistance of trial counsel.” Ex parte Clemons, 55 So.3d at 356. The Alabama Supreme Court also quashed the writ of certiorari it had issued regarding Clemons’s claim that the trial court improperly failed to consider his low intelligence quotient (“IQ”) as mitigation because that claim was not raised in his Rule 32 petition.

On November 2, 2007, this Court, in an unpublished memorandum, affirmed the circuit court’s rejection of Clemons’s inef-feetive-assistance-of-counsel claims. On August 13, 2010, the Alabama Supreme Court denied Clemons’s petition for writ of certiorari, and this Court issued its certificate of judgment.

On August 16, 2010, Clemons filed a successive Rule 32 petition. (C. 12.) In this petition, Clemons alleged that his “jury did not hear and was therefore unable to consider and give effect to his mitigating evidence of low intelligence and mental retardation”; therefore, he is entitled to relief under the Supreme Court of the United States’ decisions in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004). (C. 20.) According to Clemons, “[ujnder Tennard, [his] low IQ was a relevant mitigating factor that the jury should have, but did not, consider during the sentencing phase of his trial.” (C. 22.) Clemons further asserted that the claim raised in his current Rule 32 petition was based on new law established in Tennard, 542 U.S. at 274, and Smith, 543 U.S. at 37, after Clemons’s initial Rule 32 petition had been denied and that denial appealed. Clemons argued that because Tennard and Smith were not decided until after his initial Rule 32 petition had been denied and appealed, his current petition was the first instance in which he could raise his claim; therefore, his petition is not barred under Rule 32.2(b), Ala. R.Crim. P., as successive. He further argued that because this was the first instance in which he could raise his Tennard and Smith claim, his petition was not time-barred pursuant to Rule 32.2(c), Ala. R.Crim. P. Alternatively, he asserted that equitable tolling should excuse his failure to timely raise his claim because it was based on new law established in Tennard and Smith.

On September 15, 2010, the State of Alabama answered Clemons’s Rule 32 petition and moved the circuit court to summarily dismiss his claim. In its motion to dismiss, the State asserted that Clemons’s claim was procedurally barred under Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on appeal. The State also asserted that Clemons’s claim was successive and untimely; therefore, it was procedurally barred under Rules 32.2(b) and (c), Ala. R.Crim. P. Finally, the State asserted that Clemons’s claim is without merit.

In response to Clemons’s assertion that his claim was not successive or untimely because it was based on new law created in Tennard and Smith, the State asserted that these cases did not create new law. According to the State, Tennard and Smith merely applied well established law — that the jury may not be precluded from considering any relevant mitigation— to a new set of facts. The State then argued that because the proposition of law relied upon in Tennard and Smith had been established before Clemons’s trial began and before his previous Rule 32 proceedings began, Clemons’s argument that these two cases excuse the procedural bars contained in Rule 32.2, Ala. R.Crim. P., is without merit.

On December 6, 2010, Clemons filed a reply to the State’s answer and motion to dismiss. In his response, Clemons asserted that his claim was not procedurally barred under any of the provisions of Rule 32.2, Ala. R.Crim. P., and was “plainly meritorious because new Supreme Court precedent establishes that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when the jury was not granted an opportunity to hear, and therefore to consider mitigating evidence of his low intelligence .... ” (C. 81-82.) Clemons further argued that the Alabama Supreme Court invited him to raise his claim in a successive Rule 32 petition. To support this assertion, Clemons cited the following portion of the Alabama Supreme Court’s decision on appeal from the denial of his first Rule 32 petition:

“We cannot, however, consider the issue whether the - trial court erred in failing to consider Clemons’s borderline intellectual capacity as a mitigating factor in the sentencing phase of his trial because the issue was not presented to the trial court in Clemons’s Rule 32 petition. See Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (‘[T]he rule against raising an issue for the first time at the appellate level applies even if the issue raised would present constitutional questions.’). As to the claims based on Tennard [v. Dretke, 542 U.S. 274 (2004),] and Smith [v. Texas, 543 U.S. 37 (2004),] Clemons could not have raised such claims under Tennard before the trial court or the Court of Criminal Appeals, because that line of cases had not yet been decided when Clemons’s case was pending in those courts. We are not at liberty to consider claims in a Rule 32 petition that are raised for the first time on appeal. Ex paHe Linnell, supra.
“Whether Clemons may raise any of these issues in a successive Rule 32 petition is not before us. See Rule 32.2(b)(2)[, Ala. R.Crim. P.,] (‘A successive petition on different grounds shall be denied unless ... the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.’). We therefore quash the writ as improvidently granted as to this issue.”

Ex parte Clemons, 55 So.3d at 351. According to Clemons, this portion of the Alabama Supreme Court’s opinion established that his current claim is based on new law and, thus, could not have been raised previously. He also argued that the Alabama Supreme Court’s decision established the law of the case; therefore, the circuit court could not hold that the claim could have been raised previously. Clemons also argued that the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., does not apply to a successive Rule 32 petition. He further asserted that “[s]ince [the] jury did not have the opportunity to weigh mitigating evidence of his mental retardation and low IQ, ... the death penalty constitutes an unconstitutional sentence.” (C. 89.)

On January 18, 2011, the circuit court issued an order summarily dismissing Clemons’s successive Rule 32 petition. In its order the circuit court found that Clemons’s claim was procedurally barred under the following: 1) Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because the claim could have been but was not raised at trial and on appeal; 2) Rule 32.2(b), Ala. R.Crim. P., because the claim was successive; and 3) Rule 32.2(c), Ala. R.Crim. P., because the petition was filed after the applicable time period for filing such a petition had expired.

In his brief on appeal, Clemons provides numerous reasons why he believes that the circuit court improperly dismissed his petition. This Court disagrees.

I.

Initially, “[w]hen reviewing a circuit court’s denial of a Rule 32 petition, this Court applies an abuse-of-discretion standard.” Shouldis v. State, 38 So.3d 753, 761 (Ala.Crim.App.2008) (quoting Whitman v. State, 903 So.2d 152, 154 (Ala.Crim.App.2004), citing in turn McGahee v. State, 885 So.2d 191 (Ala.Crim.App.2003)). However, “when the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001) (citing State v. Hill, 690 So.2d 1201, 1203 (Ala.1996)). Further, “[t]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence.” Burgess v. State, 962 So.2d 272, 277 (Ala.Crim.App.2005) (internal citations and quotations omitted). Finally, “[t]he procedural bars of Rule 32[.2, Ala. R.Crim. P.,] apply with equal force to all cases, including those in which the death penalty has been imposed.” Id. (internal citations and quotations omitted).

Further, “plain-error review does not apply to appeals from rulings on Rule 32, Ala. R.Crim. P., postconviction petitions.” Ex parte Dobyne, 805 So.2d 763, 776 (Ala.2001). Thus, “the rules of preservation apply in Rule 32 proceedings, even if the death penalty is involved.” Miller v. State, 99 So.3d 349, 402 n. 10 (Ala.Crim.App.2011).

II.

The dispositive issue before this Court is whether the circuit court correctly determined that Clemons’s claim was procedurally barred pursuant to Rules 32.2(a)(3); 32.2(a)(5); 32.2(b); and 32.2(c), Ala. R.Crim. P. This Court holds that it did.

A.

First, this Court must address Clemons’s argument that in Ex parte Clemons, 55 So.3d at 351, the Alabama Supreme Court established the law of the case by holding “[a]s to the claims based on Ten-nard and Smith, Clemons could not have raised such claims under Tennard before the trial court or the Court of Criminal Appeals, because that line of cases had not yet been decided when Clemons’s case was pending in those courts,” thus, binding the circuit court and this Court to hold that his claim was based on new law and could not have been raised earlier. If the Alabama Supreme Court established the law of the case, it is questionable whether the circuit court correctly applied the procedural bars contained in Rule 32.2, Ala. R.Crim. P.

“[Ujnder the ‘law of the case’ doctrine, whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Walden v. ES Capital, LLC, 89 So.3d 90, 107 (Ala.2011) (internal citations and quotations omitted). “The law-of-the-case doctrine provides that when a court decides upon a rule of law, that rule should continue to govern the same issues in subsequent stages in the same ease, thereby hastening an end to litigation by foreclosing the possibility of repeatedly litigating an issue already decided.” Id. (internal citations and quotations omitted).

However, the Alabama Supreme Court has explained that obiter dictum (commonly referred to as dictum or dicta) does not establish the law of the case. Gray v. Reynolds, 553 So.2d 79, 81 (Ala.1989). In other words, “because obiter dictum is, by definition, not essential to the judgment of the court which states the dictum, it is not the law of the case established by that judgment.” Ex parte Williams, 838 So.2d 1028, 1031 (Ala.2002) (citing Gray, 553 So.2d at 81); see also Ex parte Patton, 77 So.3d 591, 596 (Ala.2011) (“ ‘Black’s Law Dictionary 409 (8th ed.2004) defines obiter dictum as: “A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case(quoting Carr v. International Refining & Mfg. Co., 13 So.3d 947, 957 n. 3 (Ala.2009))). Accordingly, courts are not bound to apply obiter dictum under the law-of-the-case doctrine. Gray, 553 So.2d at 81; see also City of Birmingham v. Horn, 810 So.2d 667, 681, n. 1 (Ala.2001).

Here, the Alabama Supreme Court’s statement relating to Clemons’s ability to raise earlier his Tennard/Smith claim was not essential to its decision to quash certiorari review of that claim. Ex parte Clemons, 55 So.3d at 351. On the contrary, the Alabama Supreme Court quashed certiorari review “because the issue was not presented to the trial court in Clemons’s Rule 32 petition.” Id. Therefore, the Alabama Supreme Court’s statement that “the claims based on Tennard and Smith” could not have been raised before was obiter dictum and did not establish the law of the case.

Because the Alabama Supreme Court’s statement was obiter dictum and did not establish the law of the case, Clemons’s argument that the circuit court was, and this Court is, bound to hold that Tennard and Smith established new law and that his claim, which he based on those cases, could not have been raised before is without merit. Accordingly, this Court will now address whether Clemons’s claim was based on new law and whether the circuit court correctly applied the procedural bars contained in Rule 82.2, Ala. R.Crim. P.

B.

Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., provide that “[a] petitioner will not be given relief under this rule based upon any ground, ... [w]hich could have been but was not raised at trial [or] ... on appeal-” Rule 32.2(b), Ala. R.Crim. P., provides, in pertinent part:

“If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule.... A successive petition on different grounds shall be denied unless ... the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.”

Further, under Rule 32.2(c), Ala. R.Crim. P., Clemons was required to file his petition within two years of this Court’s issuance of the certificate of judgment on direct appeal.

There does not appear to be any dispute that absent some excuse, Clemons’s petition would be barred because his claim could have been but was not raised at trial, on appeal, or during his first Rule 32 proceedings. Rules 32.2(a)(3); 32.2(a)(5); 32.2(b), Ala. R.Crim. P. There also appears to be no dispute that absent some excuse, Clemons’s petition was untimely because it was filed well after the two-year time limitation contained in Rule 32.2(c), Ala. R.Crim. P., had expired. Rather, the gravamen of Clemons’s arguments on appeal (and the dispute with the State) concerns whether the circuit court erroneously determined that his claim — a claim asserting that the jury must be allowed to consider low IQ as mitigation— was procedurally barred because that claim was based on new law established by the Supreme Court of the United States in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004). Based on the premise that Tennard, 542 U.S. at 274, and Smith, 543 U.S. at 37, created new law, Clemons argues that his claim could not have been raised earlier, i.e., at trial, or on appeal, or in his first Rule 32 proceedings. From there, Clemons argues that his claim is not barred as successive, Rule 32.2(b), Ala. R.Crim. P., barred as untimely, Rule 32.2(c), Ala. R.Crim. P., or barred pursuant to Rules 32.2(a)(3) and (a)(5), for failure to raise it at trial or on appeal.

The fatal flaw in Clemons’s argument is that the Supreme Court of the United States did not establish new law in Ten-nard and Smith; instead, it applied well established law to new sets of facts. Again, Clemons alleges that the Supreme Court in Tennard and Smith established that juries must be allowed to consider low IQ as mitigation in a capital-sentencing proceeding and that his claim for relief is based on that new law. However, in 1978, the Supreme Court issued a plurality opinion holding “that [in capital cases] the Eighth and Fourteenth Amendments require that the sentencer ‘not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” Penry v. Lynaugh (“Penry I”), 492 U.S. 302, 317, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)) (emphasis omitted). Four years later, “in Eddings v. Oklahoma, 455 U.S. 104 (1982), a majority of the Court reaffirmed that a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as the basis for a sentence less than death,” including evidence of the defendant’s mental-health problems. Penry I, 492 U.S. at 318; Eddings, 455 U.S. at 107.

After “it [became] clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty,” Penry I, 492 U.S. at 318, the State of Texas retained a capital-sentencing scheme that required the jury to answer three questions in deciding whether the defendant is to be sentenced to life or death. Specifically, the jury could consider only:

‘“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
‘“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“ ‘(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.’ Tex.Code Crim. Proc. Ann., Arts. 37.071(b) (Vernon 1981 and Supp. 1989).”

Penry I, 492 U.S. at 310. “If the jury unanimously answer[ed] ‘yes’ to each issue submitted, the trial court must sentence the defendant to death. Arts. 37.071(c)-(e).” Id. In answering those three sentencing questions, the jury could consider and give effect to mitigating evidence that related to or rebutted those questions. However, the jury could not consider and give effect to certain types of mitigating evidence such as mental retardation or an abusive childhood because that mitigation did not relate to the three sentencing questions. Id. at 318, 328.

Under this capital-sentencing scheme, Johnny Paul Penry was convicted of capital murder and was sentenced to death. Id. at 308-09. During sentencing, “Penry offered mitigating evidence of his mental retardation and abused childhood as the basis for a sentence of life imprisonment rather than death....” Id. at 320. At trial and during his state appeal, he argued that Texas’s capital-sentencing scheme, with its three sentencing questions and no instruction informing the jury of its duty to consider all his mitigating evidence, violated the Eighth Amendment’s prohibition of cruel and unusual punishment under the Supreme Court’s holdings in Lockett and Eddings. After receiving no relief in the state courts, Pen-ry filed a federal habeas petition, again alleging that Texas’s capital-sentencing scheme, which failed to provide the jury with an adequate vehicle to consider his mitigating evidence, violated the Eighth Amendment. Id. The Supreme Court of the United States agreed.

In reviewing Texas’s scheme, the Supreme Court of the United States held that evidence of mental retardation and an abusive childhood was mitigating evidence. Id. at 328. It then applied Lockett and Eddings and held that Texas’s capital-sentencing scheme, which failed to provide the jury with an adequate vehicle to consider Penry’s mitigating evidence, violated the Eighth Amendment’s prohibition of cruel and unusual punishments. Id. at 328. Specifically, the Court held that restricting the jury’s consideration to Texas’s three sentencing questions and failing to instruct the jury that it had a duty to consider all of Penry’s mitigating evidence did not provide the jury with an opportunity “to consider and give effect to mitigating evidence relevant to [Penry’s] character or record or the circumstances of the offense,” in violation of the Eighth Amendment. Id. at 327-28. The Court explained that its “reasoning in Lockett and Eddings thus compels a remand for resentencing so that [the Court does] not risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Id. (citations and quotations omitted). In holding that the jury must be allowed to consider evidence of Penry’s mental health and abusive childhood in deciding his sentence, the Court specifically noted that it was not creating a “new rule” of law. Id. at 315.

“Penry was retried in 1990 and again found guilty of capital murder [and sentenced to death]. During the penalty phase, the defense again put on extensive evidence regarding Penry’s mental impairments and childhood abuse.” Penry v. Johnson (“Penry II”), 532 U.S. 782, 788, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). “When it came time to submit the case to the jury, the court instructed the jury to determine Penry’s sentence by answering three special issues — the same three issues that had been put before the jury in Penry I.” Id. at 788-89. The jury was also instructed that if it answered all the questions with a “yes,” then Penry would be sentenced to death, and if it answered any question “no,” he would be sentenced to life in prison. Id. at 789. This time, however, the jury was also instructed to consider all of Penry’s mitigating evidence. Id.

On appeal, Penry raised the same argument he raised in Penry I. The Supreme Court of the United States held that the jury instruction requiring the jury to consider Penry’s mitigation did not sufficiently connect that mitigation to the three sentencing questions that determined the sentence; therefore, “ ‘[a] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence’” of mental retardation and an abusive childhood. Id. at 804 (quoting Penry I, 492 U.S. at 326. Accordingly, the Court again reversed Penry’s death sentence.

In Tennard v. Dretke, 542 U.S. 274, 281, 288-89, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), the case Clemons alleges created new law, the Supreme Court again reviewed Texas’s capital-sentencing scheme to determine whether it adequately provided an avenue for the jury to consider and to give effect to mitigating evidence relating to a defendant’s mental health. Specif-ieally, the Court reviewed whether the United States Court of Appeals for the Fifth Circuit correctly applied the standard for the issuance of a certificate of appealability (“COA”) when it denied Ten-nard’s petition for a COA relating to his “Penry [I ] claim” that the jury had been precluded from considering his low IQ when it sentenced him to death. Id. at 279.

After Penry I and Penry II were decided, Texas revised its sentencing scheme and, under the new scheme, Tennard’s jury was instructed to answer two sentencing questions. Id. at 278-79. Neither of the two sentencing questions allowed the jury to consider and to give effect to Ten-nard’s mitigating evidence indicating that he had a low IQ. Id. at 288-89. The Fifth Circuit Court of Appeals held that the failure to provide the jury with a vehicle to consider Tennard’s mitigation was not error because Tennard’s mitigating evidence was not “constitutionally relevant mitigating evidence, that is, evidence of a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, and evidence that the criminal act was attributable to this severe permanent condition.” Id. at 281 (citations and quotations omitted). Therefore, it denied his petition for a COA. Id.

Reviewing the Fifth Circuit’s decision, the Supreme Court held that the Fifth Circuit erroneously created a “constitutional relevance” standard for the admission of mitigation. Id. at 284. The Court then explained that “[rjelevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value”, [i.e.,] evidence ... of such a character that it might serve as a basis for a sentence less than death.” Id. at 284-85, 287 (internal citations and quotations omitted).

Having determined that the Fifth Circuit applied the wrong standard when it reviewed Tennard’s Penry I claim, the Court then looked to the likelihood Ten-nard would succeed on that claim. Id. at 288. The Court held that reasonable jurists could find that the federal district court had wrongly denied Tennard’s Penry I claim because the jury was not provided an opportunity to consider Tennard’s IQ as mitigating evidence; therefore, the Fifth Circuit had erroneously denied Tennard’s request for a COA from the denial of Tennard’s petition for writ of habeas corpus. Id. at 289.

Shortly after Tennard, the Supreme Court issued its opinion in Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004), the second case Clemons argues created new law. Smith was convicted and sentenced to death under the same capital-sentencing scheme as was Tennard. Id. at 43. Like Tennard, Smith presented evidence indicating, among other things, that he had a low IQ. Id. at 41. Also like Tennard’s jury, Smith’s jury was “instruct[ed] ... to give effect to [his] mitigation evidence, but [only to the extent that mitigation would negate] what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness.” Id. at 38.

In the Texas courts, Smith argued that the sentencing scheme and jury instructions under which he was sentenced to death violated the Eighth Amendment under the Supreme Court’s holdings in Pen-ry I and Penry II. Id. at 42 — 43. The Texas courts rejected Smith’s Penry claim, applying the same “constitutional relevance” test that the Supreme Court condemned in Tennard, The Supreme Court again condemned the “constitutional relevance” tests and held that Smith’s “evidence [of his low IQ] was relevant for mitigation purposes ... under [its] precedents, even those predating Tennard. See, e.g., Penry I, 492 U.S., at 319-322; Payne v. Tennessee, 501 U.S. 808, 822 (1991); Boyde v. California, 494 U.S. 370, 377-378 (1990); Eddings v. Oklahoma, 455 U.S. 104 (1982).” Smith, 543 U.S. at 45. The Court then held that like Penry I, Penry II, and Tennard, the scheme under which Smith was sentenced to death “did not provide the jury with an adequate vehicle for expressing a ‘reasoned moral response’ to all of the evidence relevant to the defendant’s culpability.” Smith, 543 U.S. at 46 (quoting Penry II, 532 U.S. at 796 (emphasis in original)). Accordingly, the Supreme Court reversed Smith’s sentence of death.

Against this backdrop, Clemons argues that Tennard and Smith created new law and that he could not have raised his Ten-nard/Smith claim earlier because that line of cases had not been established. Clemons’s argument, however, misplaces the beginning of the line of cases. The line did not, as Clemons asserts, begin with Tennard and Smith. Instead, the line began in 1978 when the Supreme Court issued Lockett v. Ohio, holding that the sentencer in a capital case may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604 (emphasis in original). That line continued through Eddings, 455 U.S. at 122, Penry I, Penry II, and most recently Tennard and Smith. Accordingly, Clemons has not identified a new line of cases or new law; instead, he has identified the latest two eases in a long line of cases applying well established law.

Because the Supreme Court did not establish new law in Tennard and Smith but rather applied law that was established long before Clemons’s trial and before his first Rule 32 petition, Clemons’s claim was procedurally barred because he could have raised it at trial, on appeal, Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., or in his first Rule 32 proceedings, 32.2(b), Ala. R.Crim. P. Further, “[b]ecause the ... Supreme Court did not establish a new law or a new ground for ... relief in [Tennard or Smith, Clemons’s] assertion that the release of [those cases] exempted his ... claim from the application of the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., [or] entitled [him] to equitable tolling [is without merit].” Jenkins v. State, 105 So.3d 1234, 1242 (Ala.Crim.App.2011). See also Fitts v. Eberlin, 626 F.Supp.2d 724, 733 (N.D.Ohio 2009) (“Given that no new rule exists that applies to [the petitioner’s] case, [his] plea for equitable tolling ... must fail.”). Thus, the circuit court correctly determined that Clemons’s claim was untimely under Rule 32.2(c), Ala. R.Crim. P.

For the foregoing reasons, the circuit court did not err by summarily dismissing Clemons’s claim because it was procedurally barred. See Rule 32.7(d), Ala. R.Crim. P. (authorizing a circuit court to summarily dismiss a claim that is procedurally barred).

III.

Clemons also argues that he is entitled to relief under the Supreme Court of the United States’ decision in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Clemons’s claim that he is entitled to relief under Rompilla is not properly before this Court because it was not raised in Clemons’s Rule 32 petition. See Ex parte Clemons, 55 So.3d at 351 (holding that appellate courts may not, on appeal from the dismissal of a Rule 32 petition, consider claims not raise in the Rule 32 petition); Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (“[T]he rule against raising an issue for the first time at the appellate level applies even if the issue raised would present constitutional questions.”).

In Rompilla, the Supreme Court addressed a claim of ineffective assistance of counsel during the penalty phase of a capital-murder trial. Id. at 377. Clemons, however, did not raise any ineffective-assistance-of-counsel claims in his Rule 32 petition. Further, the only reference to Rompilla in Clemons’s Rule 32 petition appears in the following cryptic footnote:

“Another highly relevant U.S. Supreme Court decision, Rompilla v. Beard, 545 U.S. 374 (2005), also was issued while Mr. Clemons’ first Rule 32 petition was already on appeal, and the appellate courts did not address it despite Mr. Clemons’ diligent attempts to highlight the decision. See, e.g., June 23, 2005 Letter from A. Stakes to Clerk of Court of Criminal Appeals. Like Tennard, Rompilla should also be considered now by this Court as intervening precedent that the appellate courts may not have previously considered in light of Ex parte Linnell.”

(C. 21.) This footnote, which appears to simply complain that the appellate courts failed to consider Rompilla, did not actually assert a claim under Rompilla. At most, this footnote urges the circuit court to consider Rompilla new law; however, it did not raise any claim under which considering Rompilla new law would be relevant. In other words, this footnote was insufficient to assert a claim of ineffective assistance of counsel and thus failed to assert a claim to which Rompilla would apply.

Because Clemons did not raise any claims of ineffective assistance of counsel in his Rule 32 petition, his argument that he is entitled to relief under Rompilla — an ineffective-assistance-of-counsel case — is not properly before this Court. Therefore, this argument does not entitle Clemons to any relief.

For the foregoing reasons, the circuit court’s judgment is affirmed.

AFFIRMED.

WELCH, KELLUM, and BURKE, JJ., concur. JOINER, J., recuses himself.

      . During oral argument, counsel for Clemons asserted for the first time that the circuit court erroneously failed to consider evidence of Clemons’s IQ when sentencing him to death. Counsel stated that the Supreme Court of the United States' holdings in Tennard and Smith require the circuit court to investigate and find as mitigating any evidence indicating that a capital defendant has a low IQ. Clemons did not raise this claim in the circuit court. In his Rule 32 petition, he asserted only that the "jury did not hear and was therefore unable to consider and give effect to his mitigating evidence of low intelligence and mental retardation." (C. 20.) Because Clemons’s allegation that the circuit court was required to find and consider mitigating evidence relating to his IQ was not raised in his Rule 32 petition, that claim is not properly before this Court. See Ex parte Clemons, 55 So.3d at 351 (holding that appellate courts may not, on appeal from the dismissal of a Rule 32 petition, consider claims not raised in the Rule 32 petition); Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (”[T]he rule against raising an issue for the first time at the appellate level applies even if the issue raised would present constitutional questions.”).

      . "Rule 32.2(c), Ala. R.Crim. P., was amended effective August 1, 2002, to reduce the limitations period from two years to one year; however, for those cases that became final before August 1, 2001, the two-year limitations period applies. See Hyde v. State, 950 So.2d 344 (Ala.Crim.App.2006).” Bryant v. State, 29 So.3d 928, 933 n. 2 (Ala.Crim.App.2009). Clemons’s conviction became final on September 10, 1998; therefore, the two-year limitations period applies to his Rule 32 petition.

      . "In order to appeal [a federal district court's] denial of a federal writ of habeas corpus under 28 U.S.C. § 2254, a petitioner seeking relief from a state-court conviction must obtain a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A)." Finkelstein v. Spitzer, 455 F.3d 131, 133 (2d Cir.2006). The standard for the issuance of a COA is irrelevant to this opinion and will not be discussed.

      . This Court notes that when a state court adjudicates the merits of a prisoner’s claim challenging his conviction or sentence, federal courts are prohibited from creating new law applicable to the State when reviewing that claim during habeas proceedings. See 28 U.S.C. § 2254(d)(l)-(d)(2) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (emphasis added)); cf. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Tennard’s claim was rejected on the merits by the Texas courts; therefore, under 28 U.S.C. § 2254(d), the Supreme Court could not create new law in reviewing his claim. Tennard, 542 U.S. at 279-80. Instead, the Court was restricted to applying "clearly established” law, i.e., Penry I, Lockett, and Eddings, to Tennard’s claim.

      . The Texas courts rejected Smith’s claim before the Supreme Court issued its opinion in Tennard. Smith, 543 U.S. at 43.

      . Because Clemons's claim is procedurally barred, this Court will not address the merits of the claim. This Court notes, however, that Clemons did not present the jury with evidence of his low IQ as mitigation. Accordingly, it is hard to imagine how the State or the circuit court prevented the jury from considering that evidence.

      . This Court notes that Supreme Court of the United States did not create new law in Rom-pilla. Instead, it applied law established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to a new set of facts. See Newland v. Hall, 527 F.3d 1162, 1197 (11th Cir.2008) (holding that Rompilla is "not new law”).


author: LABARGA, J. CANADY, J.,

text:
    Amos Augustus WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1458.
    Supreme Court of Florida.
    Feb. 14, 2013.
    Rehearing Denied May 10, 2013.

      Carey Haughwout, Public Defender, Fifteenth Judicial Circuit, Florida and Dea Abramschmitt and John Michael Conway and Margaret Price Natale, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Consiglia Terenzio, Bureau Chief and Diane Fischer Medley and Melanie Dale Surber, Assistant Attorney Generals, West Palm Beach, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010). In its decision, the district court certified the following questions to be of great public importance:

(1) DOES THE STANDARD JURY INSTRUCTION ON ATTEMPTED MANSLAUGHTER CONSTITUTE FUNDAMENTAL ERROR?
(2) IS ATTEMPTED MANSLAUGHTER A VIABLE OFFENSE IN LIGHT OF STATE V. MONTGOMERY, 39 So.3d 252 [ (FLA.2010) ]?

See Williams, 40 So.3d at 76. The Fourth District also certified express and direct conflict with Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009). As explained below, we answer both certified questions in the affirmative. We held in State v. Montgomery, 39 So.3d 252 (Fla.2010), that giving the standard jury instruction for the completed crime of manslaughter by act— which required the jury to find that the defendant intended to kill the victim — is fundamental error when the defendant is convicted of an offense not more than one step removed from manslaughter because the manslaughter statute does not require an intent to kill. Id. at 259. We now hold that giving the standard jury instruction on attempted manslaughter by act — which also requires the jury to find the defendant committed an act intended to cause death — similarly constitutes fundamental error where the defendant is convicted of an offense not more than one step removed from attempted manslaughter. The crime of attempted manslaughter by act does not require the State to prove, or the jury to find, that the defendant intended to kill the victim.

Accordingly, we quash the decision of the Fourth District in Williams and approve the decision in Lamb, in which the First District held that the trial court committed fundamental error by giving the standard jury instruction on attempted manslaughter by act because it added the element that the defendant “committed an act intended to cause the death” of the victim. Lamb, 18 So.3d at 785. We also hold that the offense of attempted manslaughter remains a viable offense. We turn first to the facts of this case.

FACTS AND PROCEDURAL HISTORY

Amos Augustus Williams was charged with the attempted first-degree murder of his ex-girlfriend Samantha Lindsay in 2006. The facts are set forth in the opinion of the district court as follows:

The defendant’s charges arise out of a brutal stabbing of his ex-girlfriend in her home while their ten-month-old daughter was present. The victim sustained multiple stab wounds to her face, stomach, chest, leg, and side. When the victim tried to flee from the defendant, he grabbed her by the neck of her clothes and continued to stab her. The defendant pulled the victim back into the house, locked the door, and stabbed her whenever she tried to move toward the door.
The police apprehended the defendant later that night. The defendant told police that the victim tried to start a fight with him and wanted to cut him, he wrestled with the victim, and the victim fell on the knife. Later, he told the police that he did not know what happened because “the evil spirit just move upon me, evil.”

Williams, 40 So.3d at 73. The defendant requested jury instructions on lesser included offenses, including attempted manslaughter by act. The jury instruction for attempted manslaughter by act, which is at issue in this case, was given consistent with the standard instruction as it existed in 2006 when the crime was committed and as it currently exists, in pertinent part, as follows:

To prove the crime of attempted voluntary manslaughter, the State must prove the following beyond a reasonable doubt: That Mr. Williams committed an act which was intended to cause the death of Ms. Lindsay and would have resulted in the death of Ms. Lindsay except that someone prevented [ ] Mr. Williams from killing Ms. Lindsay or he failed to do so....

Williams, 40 So.3d at 73 (emphasis added). The instruction also advised the jury:

In order to convict [defendant] of attempted voluntary manslaughter, it is not necessary for the State to prove that the Defendant had a premeditated intent to cause death.

Id. (emphasis omitted). No defense objection was made to the instruction and Williams was ultimately convicted of attempted second-degree murder, as well as burglary of a dwelling -with an assault or battery while armed and false imprisonment with a weapon. Id.

On appeal to the Fourth District, Williams contended that giving the instruction constituted fundamental error similar to that found by this Court in Montgomery as to the standard instruction for the completed offense of manslaughter by act. Because the legal effect of this Court’s decision in Montgomery is critical to determination of the certified questions and resolution of the certified conflict in this case, that decision will be discussed first.

In Montgomery, we recognized that the then-existing standard jury instruction for the offense of manslaughter by act required the jury to find that the defendant “intentionally caused the death” of the victim. Montgomery, 39 So.3d at 257; see Fla. Std. Jury Instr. (Crim.) 7.7 (2006). We also recognized that section 782.07, Florida Statutes, did not require the jury to make such a finding. Section 782.07 provided in pertinent part as follows:

782.07 Manslaughter; aggravated manslaughter of an elderly person or disabled adult; aggravated manslaughter of a child; aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic.—
(1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 782.07(1), Fla. Stat. (2006). The statute remains in this same form today. In discussing the requirements of the manslaughter statute, we stated in Montgomery:

We observe that the statute does not impose a requirement that the defendant intend to kill the victim. Instead, it plainly provides that where one commits an act that results in death, and such an act is not lawfully justified or excusable, it is manslaughter.

Montgomery, 39 So.3d at 256. This Court concluded that giving this erroneous jury instruction constituted fundamental error because Montgomery was convicted of second-degree murder, one step removed from manslaughter, and because he was entitled to a correct instruction on manslaughter. We further explained in Montgomery that “[although in some cases of manslaughter by act it may be inferred from the facts that the defendant intended to kill the victim, to impose such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter.” Id. at 256. “Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim.” Id.

We also recognized in Montgomery that the jury in that case was instructed, similar to the instruction in the instant case, that “[i]n order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.” Montgomery, 39 So.3d at 256 (quoting Fla. Std. Jury Instr. (Crim.) 7.7 (2006)). Even so, we concluded that this additional phrase did not alleviate the fundamental error. We explained:

Although the instruction also provided that “it is not necessary for the State to prove that the defendant had a premeditated intent to cause death,” we conclude that this language was insufficient to erode the import of the second element: that the jury must find that the defendant intended to cause the death of the victim.

Id. at 257. After issuance of our opinion in Montgomery, we issued an interim corrected manslaughter by act instruction and in 2011 we issued the following final amended instruction for manslaughter by act:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
Give 2a, 2b, or 2c depending upon allegations and proof.
2. a. (Defendant) intentionally committed an act or acts that caused the death of (victim).
b. (Defendant) intentionally procured an act that caused the death of (victim).
c. The death of (victim) was caused by the culpable negligence of (defendant).
Give only if 2a alleged and proved.
In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death.

In re Amendments to Standard Jury Instructions in Criminal Cases — Instruction 7.7, 75 So.3d 210, 211-12 (Fla.2011) (strik-ethroughs and underlining omitted).

ANALYSIS

We turn now to the question of whether the standard jury instruction for the offense of attempted manslaughter by act gives rise to fundamental error, just as we concluded the standard instruction for the completed crime of manslaughter did in Montgomery. We hold, consistent with our holding in Montgomery, that a trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense. As we made clear in Montgomery, the manslaughter statute does not impose a requirement that the defendant intend to kill the victim. Similarly, in order to convict a defendant for an attempted manslaughter, there is no requirement that the defendant intend to kill the victim but for some reason failed to do so. We have held that if the State is not required to show specific intent to successfully prosecute a completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime. See Gentry v. State, 437 So.2d 1097, 1099 (Fla.1983). The crime of attempted manslaughter exists “in situations where, if death had resulted, the defendant could have been found guilty of voluntary manslaughter [manslaughter by act].” See Murray v. State, 491 So.2d 1120, 1122 (Fla.1986) (quoting Taylor v. State, 444 So.2d 931, 934 (Fla.1983)). Because we have now clarified that the crime of manslaughter by act does not require an intent to kill, we are constrained to similarly hold that the crime of attempted manslaughter by act does not require an intent to kill.

The Fourth District attempted to uphold the standard jury instruction on attempted manslaughter by act by stating that “[t]he error that occurs by instructing the jury that ‘an intent to kill’ is an element of manslaughter does not exist when instructing the jury that the defendant committed an act which was intended to cause the death of the victim.” Williams, 40 So.3d at 75. This is a distinction without a difference. The attempted manslaughter by act instruction clearly required an intent to cause the death of the victim, which we have held to be error under the manslaughter statute. The district court also justified its decision in this case by noting that this Court did not amend the attempted manslaughter jury instruction when it amended the manslaughter instruction in 2011 after the Montgomery decision was issued. See Williams, 40 So.3d at 75. However, this fact has no bearing on whether the instruction is erroneous.

Lastly, the district court in Williams concluded:

[A]s worded, the instruction did not confuse this jury. The jury found the defendant guilty of attempted second degree murder, which necessarily means the jury found the defendant “intentionally committed an act” that would have resulted in the death of the victim and that the act was imminently dangerous to another and demonstrated a depraved mind, without regard for human life.

Williams, 40 So.3d at 75. However, because the jury found Williams guilty of attempted second-degree murder, an offense not requiring proof of intent to cause the death of the victim, it must have determined that Williams did not intend to cause the victim’s death. And, because the instruction given for attempted manslaughter by act erroneously included an intent to kill element, the jury was left with attempted second-degree murder as the only viable lesser included offense under the instructions given. Thus, a correct attempted manslaughter by act instruction was critical to what the jury had to consider in this case to determine if Williams was guilty of attempted first-degree murder, attempted second-degree murder, or attempted manslaughter by act.

This Court explained in Garzon v. State, 980 So.2d 1038 (Fla.2008):

We have consistently held that not all error in jury instructions is fundamental error.... Further, ‘“fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’ Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error....”

Id. at 1042 (quoting State v. Delva, 575 So.2d 643, 645 (Fla.1991) (citation omitted)) (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)).

In Reed v. State, 837 So.2d 366 (Fla.2002), we made clear that if an erroneous instruction is given as to a disputed element of the offense, and the instruction is pertinent or material to what the jury must consider in order to convict, it is fundamental error; and “fundamental error is not subject to harmless error review.” Id. at 369-70. In finding the instruction to be fundamental error in Montgomery, we focused on the fact that the manslaughter by act instruction was “pertinent or material to what the jury must consider in order to convict,” and emphasized the defendant’s right to have the jury correctly instructed. Montgomery, 39 So.3d at 258 (quoting Delva, 575 So.2d at 645). We concluded in Montgomery “that fundamental error occurred in this case, where Montgomery was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter.” Montgomery, 39 So.3d at 258. Thus, where the erroneous instruction applies to an element of the crime that is in dispute and “is pertinent or material to what the jury must consider” to convict, an erroneous jury instruction will be found to be fundamental error where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense. This is true regardless of whether there is ample evidence to convict the defendant of the higher crime. “[Wjhether the evidence of guilt is overwhelming or whether the prosecutor has or has not made an inaccurate instruction a feature of the prosecution’s argument are not germane to whether the error is fundamental.” Reed, 837 So.2d at 369. Simply stated, the defendant is entitled to an accurate instruction on the charged offenses and all lesser included offenses, and when the defendant is convicted of a crime not more than one step removed from the crime for which an erroneous instruction is given, fundamental error occurs if the instruction pertains to a disputed element of the crime.

We also note that, with the exception of the Fourth District, all the district courts have held that giving the standard jury instruction for attempted manslaughter by act constitutes fundamental error. See, e.g., Thompson v. State, 76 So.3d 1050, 1052 (Fla. 1st DCA 2011) (holding that the standard instruction erroneously “adds the additional element that the defendant ‘committed an act intended to cause the death’ of the victim when attempted manslaughter by act requires only an intentional unlawful act” (quoting Lamb, 18 So.3d at 735)); Houston v. State, 87 So.3d 1, 2 (Fla. 2d DCA 2011) (holding that “the phrase ‘committed an act which was intended to cause the death of impermissi-bly creates an intent-to-kill element in the crime of attempted manslaughter” that is not required by the manslaughter statute); Burrows v. State, 62 So.3d 1258, 1260 (Fla. 3d DCA 2011) (reversing Burrows’ conviction for second-degree murder based on a holding that the attempted manslaughter instruction was fundamental error); and Burton v. State, 125 So.3d 788, 789 (Fla. 5th DCA 2011) (concluding that the jury instruction given for attempted manslaughter required proof of intent to kill and was, thus, fundamental error). What is more, in some district court cases the State conceded that the jury instruction for attempted manslaughter was erroneous and created fundamental error, contrary to the position now taken by the State in this Court.

Based on the foregoing analysis, we hold that the attempted manslaughter by act jury instruction given in this ease constituted fundamental error. In so holding, we must quash the Fourth District’s decision below and approve the decision of the First District in the certified conflict case of Lamb. The First District in Lamb correctly held that the trial court committed fundamental error by giving the standard jury instruction for attempted manslaughter by act because it added the additional element that the defendant “committed an act intended to cause the death” of the victim, when attempted manslaughter by act requires only an intentional unlawful act. See Lamb, 18 So.3d at 735.

The Fourth District also certified a question to this Court asking if attempted manslaughter remains a viable offense in light of Montgomery. We answer this question in the affirmative and hold that attempted manslaughter by act remains a viable offense. We held in Taylor v. State, 444 So.2d 931 (Fla.1983), that attempted manslaughter by act is a cognizable crime in this state. There, tellingly, we noted: “We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act.” Id. at 934. We further held in Taylor that there can be no crime of attempted manslaughter by culpable negligence. Nothing in our decision in Montgomery causes us to conclude that attempted manslaughter is no longer a viable offense.

CONCLUSION

Based on the foregoing analysis, we quash the decision of the Fourth District in Williams and remand for proceedings consistent with this decision. We further approve the decision of the First District in Lamb.

It is so ordered.

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

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

CANADY, J.,

dissenting.

Although I agree with the majority’s answer regarding the second certified question, I disagree with its conclusion concerning the first certified question. For the reasons I have expressed in my dissent in Haygood v. State, 109 So.3d 735 (Fla.2013), I conclude that the jury pardon doctrine should be repudiated. Since the majority’s conclusion that Williams is entitled to a new trial rests on the jury pardon doctrine, I dissent.

Here, as in Haygood, there is no eviden-tiary basis for giving an instruction on the one-step-removed lesser included offense. The uncontroverted facts regarding Williams’ sustained and savage attack on the victim belie any suggestion that he lacked the depraved mind requisite for attempted second-degree murder and that a rational jury could have acquitted him of that offense and found him guilty of attempted manslaughter by act. I would therefore reject Williams’ claims of fundamental error. The decision of the Fourth District Court of Appeal affirming Williams’ convictions and sentences should not be disturbed.

POLSTON, C.J., concurs.

      . We have jurisdiction. See art. V, § 3(b)(3), (4), Fla. Const. Although the Fourth District certified the second question, the district court did not pass on that question. Article V, section 3(b)(4), of the Florida Constitution provides this Court with discretionary jurisdiction to review, in pertinent part, decisions in which the district court "passes upon a question certified by it to be of great public importance.” Our discretionary review jurisdiction is therefore based on the first certified question and the certified conflict. As we explain below, because we have jurisdiction based on the first certified question and the certified conflict, we answer both certified questions.

      . See In re Amendments to Standard Jury Instructions in Criminal Cases — Instruction 7.7, 41 So.3d 853, 854-55 (Fla.2010).

      . As to proposed amendment of Standard Jury Instruction 6.6, Attempted Voluntary Manslaughter, the issue was presented in In re: Standard Jury Instructions in Criminal Cases—Report 2010-05, SC10-2434. On May 24, 2011, Instruction 6.6 was severed from that case to be considered in In re: Standard Jury Instructions in Criminal Cases — Instruction 6.6 and Instructions 25.9-25.12, SC11-1010. Thereafter, on March 19, 2012, instruction 6.6 was severed from that case and placed for consideration in In re: Standard July Instructions in Criminal Cases — Instruction 6.6 and Instructions 25.9-25.13, SC12-462.

      . We have made clear that in authorizing the publication and use of a standard jury instruction, "we express no opinion on its correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction." In re Standard Jury Instructions—Instruction 7.7, 75 So.3d at 211. Moreover, the Court’s apparent inaction at that time was not an indication of this Court's tacit approval of the existing instruction. See supra note 3. Even if this Court's inaction had been intended to indicate approval of the existing attempted manslaughter instruction, such would not necessarily cure any fundamental error that might exist in that instruction.

      . There is no crime of attempted manslaughter by culpable negligence. See Tillman v. State, 471 So.2d 32, 33 (Fla.1985) (citing Taylor, 444 So.2d at 934). Thus, the jury was not instructed on attempted manslaughter by culpable negligence.

      . We held in Pena v. State, 901 So.2d 781, 787 (Fla.2005), that when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is subject to a harmless error analysis. However, as we held in Montgomery, when the court fails to properly instruct on an offense only one step removed from the crime for which the defendant is convicted and the instruction is pertinent or material to what the jury must consider to convict and concerns a matter in dispute, Reed, 837 So.2d at 369, the error is fundamental. Montgomery, 39 So.3d at 259.

      . See, e.g., Gonzalez v. State, 40 So.3d 60, 62 (Fla. 2d DCA 2010); Coiscou v. State, 43 So.3d 123, 124 (Fla. 3d DCA 2010).

      . We also decline the State’s invitation in this case to revisit our Montgomery decision. We have reconfirmed the holding in Montgomery in subsequent cases, such as Bonilla v. State, 75 So.3d 233 (Fla.2011), where we explained:
      In State v. Montgomery, 39 So.3d 252 (Fla.2010), we held that because defendant Montgomery, who was convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error in his case because it erroneously required the jury to find that the defendant intentionally caused the death of the victim.

        Bonilla, 75 So.3d at 233.