author: THOMAS, Judge.

text:
    Ex parte Estate of James Robert WELLS, Jr., by Cathy Wells, Personal Representative. (In re Estate of James Robert Wells, Jr., by Cathy Wells, Personal Representative v. Janice Motte and Susan Wells).
    2120100.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.

      William Kent Upshaw of Comer & Up-shaw, LLP, Birmingham, for petitioner.
    Submitted on petitioner’s brief only.
   THOMAS, Judge.

Cathy Wells, as personal representative of the estate of her late husband, James Robert Wells, Jr. (“the personal representative”), petitions this court for a writ of mandamus ordering the Jefferson Circuit Court to vacate its September 20, 2012, order transferring the administration of the estate and another, consolidated action initiated by the personal representative against the sisters of James Robert Wells, Jr., Janice Motte and Susan Wells (“the sisters”), arising from the sisters’ failure to provide the estate with its share of proceeds from the sale of items the sisters and James had jointly inherited from their father, to the Blount Circuit Court. We grant the petition and issue the writ.

In April 2010, the Jefferson Probate Court admitted James’s will to probate; Cathy was issued letters testamentary. In July 2011, the administration of the estate was removed to the Jefferson Circuit Court. In early 2012, the sisters sued Cathy in the Blount Circuit Court, seeking a sale for division of certain real property inherited in common by the sisters and James, which real property Cathy had since inherited an interest in from James (the sisters’ action is hereinafter referred to as “the sale-for-division action”). In March 2012, the personal representative sued the sisters in the Jefferson Circuit Court; she sought to recover from the sisters the estate’s share of the proceeds from the sale of certain property that had been inherited in common by the sisters and James from their father on the theories of conversion and money had and received (“the conversion action”). The estate-administration action and the conversion action were consolidated by the Jefferson Circuit Court (the estate-administration action and the conversion action are hereinafter referred to collectively as “the consolidated action”).

The sisters filed an answer to the conversion action, in which they asserted that the conversion action should be transferred to the Blount Circuit Court. The answer specifically stated:

“In the interest of judicial economy, this action is due to be transferred to [the] Blount [Circuit Court] to be consolidated with the [sale-for-division] action pending there which was filed prior to the instant action. [The sisters] assert that venue is more appropriate where the pending action on the real property is being prosecuted (wherein the sisters are Co-Plaintiffs in Blount County CV-12-900029 and Cathy Wells (Personal Representative/Plaintiff in the instant action) is Defendant).”

The sisters also filed a motion to dismiss or, in the alternative, to change venue. In that motion, among other things, the sisters requested that the conversion action be transferred to the Blount Circuit Court

“for consolidation with the pending [sale-for-division] action between the parties (CV-12-900029) which was filed prior to the instant action and for the [estate] to petition for the re-opening of the Estate of James Robert Wells, Sr. (Probate Case No.2003-148) in order to challenge the effectiveness of the waiver executed by James Robert Wells, Jr. Blount County is where the original estate was administered, where the personal property at issue was located, where the real property suit is pending and is an appropriate forum for the instant action to be heard (after consolidation).”

The personal representative opposed the motion to dismiss or, in the alternative, to change venue. She specifically argued in response to the request to change venue that venue of the conversion action was proper in Jefferson County under Ala. Code 1975, § 6-3-2, and that no basis for a transfer of the conversion action existed.

On September 20, 2012, the Jefferson Circuit Court entered a lengthy order in which it denied the motion to dismiss but granted the motion to change venue of the consolidated action to the Blount Circuit Court. In that order, the Jefferson Circuit Court analyzed whether, under Rule 42, Ala. R. Civ. P., the conversion action and the sale-for-division action pending in the Blount Circuit Court should be consolidated. In the order, the court specifically noted that the two actions involved the disposition of property from the estate of the sisters and James’s father and that the two actions involved some of same facts and same parties. Based on its analysis under Rule 42, the Jefferson Circuit Court transferred the consolidated action to the Blount Circuit Court. The personal representative filed a motion seeking reconsideration of the September 20, 2012, order, but she also timely filed this petition for the writ of mandamus with this court.

As a preliminary matter, we note that the personal representative has filed a motion to dismiss this petition. On December 7, 2012, the Jefferson Circuit Court purported to enter an order setting aside the September 20, 2012, order transferring the consolidated action to the Blount Circuit Court. The personal representative indicates in her motion that the relief she requested has been granted to her by virtue of the December 7, 2012, order. The sisters have notified this court that they will not file an answer because, they say, the issue raised in this petition is now moot. We disagree.

Based on the caselaw concerning transfers of actions, the December 7, 2012, order purporting to set aside the September 20, 2012, order transferring the consolidated action to the Blount Circuit Court is a nullity. Ex parte MedPartners, 820 So.2d 815, 821 (Ala.2001). Once an action has been transferred by the transferor court and docketed by the transferee court, the only means of seeking to have the transfer set aside is a petition for a writ of mandamus. Ex parte MedPart-ners, 820 So.2d at 821. The transferor court lacks jurisdiction to set aside its transfer order, and the transferee court cannot entertain a motion seeking to have the action transferred back to the transfer- or court. Ex parte MedPartners, 820 So.2d at 821. Thus, because the Jefferson Circuit Court lacked jurisdiction to set aside its September 20, 2012, order transferring the consolidated action, we decline to dismiss the petition.

Turning now to the merits of the petition, we note that

“ ‘[a] petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows “ ‘ “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ ” Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).’ ”

Ex parte Vest, 68 So.3d 881, 884 (Ala.Civ.App.2011) (quoting Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005)).

As the personal representative points out, § 6-3-2 governs what is the appropriate venue for actions against individuals. That statute reads:

“(a) In proceedings of a legal nature against individuals:
“(1) All actions for the recovery of land, of the possession thereof or for a trespass thereto must be commenced in the county where the land or a material part thereof lies.
“(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence.
“(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.
“(b) In proceedings of an equitable nature against individuals:
“(1) All actions where real estate is the subject matter of the action, whether it is the exclusive subject matter of the action or not, must be commenced in the county where the same or a material portion thereof is situated.
“(2) If the action is to enjoin proceedings on judgments in other courts, it may be commenced in the county in which such proceedings are pending or judgment entered.
“(3) Except as may be otherwise provided, actions must be commenced in the county in which the defendant or a material defendant resides.
“(4) In the case of nonresidents, actions must be commenced in the county where the subject of the action or any portion of the same was when the claim arose or the act on which the action is founded was to be performed.”

Pursuant to § 6-3-2, venue of both the conversion claim and the money-had-and-received claim asserted in the conversion action was proper in Jefferson County, which is the county where the sisters reside and which is, according to the personal representative, “the county in which the act or omission complained of may have been done or may have occurred.” We do not have an answer from the sisters, but, based on a review of then-pleadings, they never claimed that venue was not proper in Jefferson County. Section 6-3-2 does not provide a basis for venue in Blount County of either the conversion claim or the money-had-and-received claim asserted in the conversion action.

“[F]orum non conveniens, under [Ala.Code 1975,] § 6-3-21.1(a)[,] is the only doctrine by which an action can be transferred when venue is proper in the county in which the action is filed.” Ex parte State ex rel. C.M., 828 So.2d 291, 294 (Ala.2002). Based on the materials and the information before this court, we cannot conclude that the Jefferson Circuit Court based its order transferring the conversion action on § 6-3-21.1(a), the forum non conveniens statute. Although the December 7, 2012, order is a nullity, we find compelling the Jefferson Circuit Court’s statement in that order that the sisters had not provided sufficient evidence of a need to transfer the consolidated action under the forum non conveniens statute. Based on that statement, a review of the pleadings filed by the sisters, and the September 20, 2012, order, we conclude that the Jefferson Circuit Court transferred the consolidated action because it was persuaded that consolidation of the conversion action and the sale-for-division action was desirable, which is not a proper basis for a transferring an action. Because the Jefferson Circuit Court did not have a proper basis for transferring the consolidated action, that court is directed to vacate its September 20, 2012, order transferring that action to the Blount Circuit Court.

PETITION GRANTED; WRIT ISSUED.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.

      . We note that " 'uncontroverted averments of fact stated in an answer should be taken as true.’ ” Ex parte Turner, 840 So.2d 132, 134 (Ala.2002) (quoting Ex parte Sharpe, 513 So.2d 609, 610 (Ala. 1987)). The personal representative contends that the conversion and money-had-and-received claims asserted in the conversion action arose when the sis-fers, through their attorney, refused Cathy’s demand for a share of the proceeds from the sale of inherited property in which James had an interest. The refusal, the personal representative claims, occurred in Jefferson County, where the sisters reside and where their attorney maintains an office.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Boyd James LANDRY. (In re Angela O. Landry v. Boyd James Landry).
    2110739.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.

      Boyd James Landry, pro se.
    J. Robert Faulk, Prattville, for respondent.
   PER CURIAM.

On October 6, 2011, Angela O. Landry (“the mother”) filed a complaint containing two counts. In the first count, the mother alleged that Boyd James Landry (“the father”) had been ordered by the Autauga Circuit Court (“the trial court”) to notify her, her attorney, and the trial court if and when he obtained employment and that the father had willfully and contumaciously violated that order. The mother further alleged that the father had accrued child-support arrearages since a previous hearing in November 2010. The mother requested that the father be cited for contempt of court, that he be incarcerated for his actions, and that he be ordered to pay her attorney’s fees. In the second count, the mother alleged that the parties’ oldest child, Br.L., had graduated from high school, was enrolled at the University of Alabama, and was nearing her 19th birthday. The mother sought postminority educational support from the father in accordance with Ex parte Bayliss, 550 So.2d 986 (Ala.1989). The mother also requested that the trial court recalculate the father’s child-support obligation for the parties’ younger children when Br.L. turned 19, modify the divorce judgment to require the mother to carry health insurance on the children with the father to reimburse her for expenses not covered by insurance, and order the father to pay all of his child-support arrearages. At the February 14, 2012, trial, the mother orally amended her complaint to add a contempt claim against the father for his alleged willful refusal to respond to discovery as ordered by the trial court on January 24, 2012.

During the course of the proceedings, the father asserted that the mother’s complaint violated the automatic stay in effect in his pending bankruptcy proceeding. See 11 U.S.C. § 362. The father apparently filed an adversary proceeding in the bankruptcy court, accusing the mother and her attorney of violating the automatic stay. On the date of the trial, the mother’s attorney notified the trial court of that development and informed the trial court that he had agreed with the father’s counsel not to pursue certain of the mother’s claims pending the outcome of a motion to lift the stay in the father’s pending bankruptcy proceeding and the adversary proceeding. The father, who was acting pro se, acknowledged in open court that some agreement had been reached between the parties limiting the scope of the issues that would be tried that date. The record indicates that, after a long colloquy, both parties agreed that the trial court would receive evidence regarding only whether the father had committed contempt by failing to provide notice of his reemployment and by failing to answer the mother’s discovery requests before the trial. The parties further agreed that the trial court would hear evidence on the mother’s claim for Bayliss support and her request for a modification of the father’s child-support obligation for the younger children. The parties agreed that the arrearage issues would not be resolved at that hearing.

On March 2, 2012, the trial court entered a judgment, which it amended on March 15, 2012. In its judgment, as amended, the trial court awarded the mother Bayliss support for Br.L., modified the father’s child-support obligation for the younger children, and modified the health-insurance provisions of the divorce judgment to require the mother to provide health insurance for all the children. The trial court also found the father in criminal contempt for failing to notify the trial court that he had obtained employment and for failing to respond to the mother’s discovery requests as the trial court previously had ordered. However, the trial court reserved imposing punishment against the father on the contempt finding because of the father’s pending bankruptcy proceeding. The trial court further reserved all issues regarding the mother’s child-support-arrearage claim for further hearing because of the father’s pending bankruptcy proceeding.

The father initially filed a notice of appeal in this case on April 24, 2012; referencing the appeal number assigned by this court, he then filed a petition for a writ of mandamus on May 4, 2012, asserting that the March 15, 2012, order was not final. Upon preliminary review, this court decided to treat the appellate proceeding initiated by the father as an appeal for the purposes of compiling a record. The mother subsequently filed a motion to dismiss the appeal. Although the mother entitled her motion as “requesting appeal to be dismissed as untimely filed,” in the body of her motion the mother argued that the judgment was nonfinal because the last paragraph of the judgment stated: “That this ease is otherwise continued for further hearing upon the motion of either party.” This court denied the mother’s motion to dismiss the appeal on June 19, 2012. After further procedural wrangling over the content of the record, this court ordered the parties to brief the issues, which briefing ended on November 26, 2012, and the case was submitted to this court for decision.

After reviewing the record that has been compiled, it is now apparent to this court that the trial court did not enter a final judgment on March 15, 2012, as both parties at one point or another believed. The March 15, 2012, judgment failed to completely adjudicate the contempt claims because it left open any punishment to be meted out against the father on the contempt finding. The judgment also failed to adjudicate the mother’s child-support-arrearage claim or her contempt claim against the father based on the accumulation of that arrearage.

“Tt is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.’” Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999) (quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981)).

“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. See Stone v. Haley, 812 So.2d 1245 (Ala.Civ.App.2001). 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.”

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002). Upon a determination that a judgment is not final, this court has discretion to treat an appeal as a petition for a writ of mandamus. See Campton v. Miller, 19 So.3d 245 (Ala.Civ.App.2009). Because the father raised the same issues in both his appeal and his petition for a writ of mandamus, we find that the mother would not be prejudiced if we treat the appeal as a petition for a writ of mandamus; therefore, we elect to do so.

Interlocutory orders may be reviewed by a petition for a writ of mandamus. Ex parte Alfa Mut. Gen. Ins. Co., 681 So.2d 1047, 1049 (Ala.1996). However, it is not “ ‘ “the proper function of [a petition for a writ of mandamus] to re-examine, or correct errors in any judgment or decreeEx parte C & D Logging, 3 So.3d 930, 936 (Ala.Civ.App.2008) (quoting State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972), quoting in turn State v. Williams, 69 Ala. 311, 316 (1881)). A petition for a writ of mandamus “ ‘cannot be used as a substitute for an appeal.’ ” Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1045 (Ala.Civ.App.2002) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)). In his petition for a writ of mandamus, the father seeks review of the merits of several of the factual and legal determinations made by the trial court, as well as review of the procedure by which the trial court found him in contempt. If any errors have been committed by the trial court in those regards, those errors would be correctable on appeal and cannot be reviewed via a petition for a writ of mandamus.

The father also asserts that the trial court’s March 15, 2012, judgment is void because it violates the automatic stay entered pursuant to 11 U.S.C. § 362 at the time the father filed his bankruptcy petition. See 11 U.S.C. § 362 (recognizing that, upon the filing of a bankruptcy petition, all other judicial and administrative actions, with certain enumerated exceptions, against the debtor are automatically stayed); and Ex parte Williford, 902 So.2d 658, 662 (Ala.2004) (“ ‘[Controlling authority in this circuit provides that actions taken in violation of the automatic stay are void.’” (quoting memorandum decision of bankruptcy court)). See also Caffey v. Russell (In re Caffey), 384 B.R. 297, 306 (Bankr.S.D.Ala.2008) (“In the Eleventh Circuit ‘[a]ctions taken in violation of the automatic stay are void and without effect.’ United States v. White, 466 F.3d 1241, 1244 (11th Cir.2006) (citing Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982) (citing numerous cases from other circuits)).”). The question of jurisdiction is reviewable by a petition for a writ of mandamus, Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000), and a void judgment will not support an appeal, see Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008)) (“A void judgment will not support an appeal and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ”). As a result, we consider the father’s petition as to this issue.

We agree with the father that, as a general rule, upon a debtor’s filing a bankruptcy petition, 11 U.S.C. § 362(a) operates to stay all actions or proceedings against the debtor that could impact the debtor’s estate or the rights of the debtor’s creditors. 11 U.S.C. § 362(b), however, provides certain exceptions to the broad reach of the automatic stay imposed by § 362(a). Section 362(b) provides, in pertinent part, that the filing of a bankruptcy petition does not operate as a stay

“(1) under subsection (a) of this section, of the commencement or continuation of a criminal action or proceeding against the debtor;
“(2) under subsection (a)—
“(A) of the commencement or continuation of a civil action or proceeding—
“(ii) for the establishment or modification of an order for domestic support obligations;
“(B) of the collection of a domestic support obligation from property that is not the property of the estate.”

Thus, § 362(b) provides exceptions to the automatic stay for criminal proceedings against the debtor and for certain enumerated civil proceedings against the debtor. We, therefore, must determine the nature of the trial-court proceedings against the father.

In her complaint, the mother sought a finding of criminal contempt against the father for his willful and contumacious failure to comply with the trial court’s order regarding his employment, and, in her amended complaint, she sought a finding of criminal contempt for the father’s failure to respond to her discovery requests as ordered by the trial court. In her contempt claims, the mother did not seek to recover any debt or past-due payment of a domestic-support obligation from the father, which would be impermissible under 11 U.S.C. § 362. See Caffey, supra. The mother sought to impose a penalty against the father for his having contemptuously violated orders of the trial court. In its order, the trial court held the father in criminal contempt. As a result, the exception to the automatic stay found in 11 U.S.C. 362(b)(1) for the commencement or continuation of a criminal action against a debtor is applicable to the contempt claims that were addressed in the trial-court proceedings. See Guariglia v. Community Nat’l Bank & Trust Co., 382 F.Supp. 758, 761 (E.D.N.Y.1974), aff'd, 516 F.2d 896 (2d Cir.1975) (holding that, if contempt proceeding is, in reality, one to punish debtor for contumacious conduct against dignity of either state or federal court, bankruptcy court should not raise its hand to stay proceeding).

In her complaint the mother also sought to modify the father’s child-support obligation, both to add an obligation to pay postminority educational support for Br.L. and to adjust the father’s child-support obligation for the parties’ remaining children. The exception to the automatic stay found in § 362(b)(2)(A)(ii) applies to the commencement or continuation of a civil action or proceeding for the establishment or modification of an order for domestic-support obligations, including child-support orders. That portion of the mother’s complaint seeking an adjustment of the father’s child-support obligation falls within the plain language of § 362(b)(2)(A)(ii) and clearly does not come within the scope of the automatic stay. Because Alabama law treats postmi-nority educational support as a form of child support that may only be awarded through a timely filed action in a domestic-relations proceeding, see Ex parte Bayliss, supra, we conclude that a complaint seeking a modification of a divorce judgment to obtain such support initiates a civil action to establish a domestic-support obligation that comes within the exception to the automatic bankruptcy stay set out in § 362(b) (2) (A) (ii). Therefore, the orders of the trial court awarding Bayliss support for Br.L. and modifying the father’s child-support obligation for the parties’ remaining minor children are not void as violating the bankruptcy stay.

Although the mother also initially sought a money judgment awarding her the amount of certain arrearages she asserted had been accumulated by the father since the previous judgment, the parties agreed that issues regarding those arrearages, i.e., the collection of a domestic-support order, would not be considered by the trial court until a later date because of the father’s pending bankruptcy proceedings. Accordingly, the trial court did not enter any judgment establishing an arrearage or authorizing the mother to collect an ar-rearage. Hence, no part of the March 15, 2012, order is void for violating the automatic bankruptcy stay. Cf 11 U.S.C. § 362(b)(B); Benjamin v. Benjamin, 858 So.2d 270, 271-72 (Ala.Civ.App.2003) (recognizing that, because the former husband had filed a bankruptcy petition, the automatic stay prevented collection of a debt that former husband owed to former wife’s father; that stay, however, did not prevent the trial court from finding that a material change in circumstances had occurred due to former husband’s failure to pay his share of that debt and warranting an increase in the former wife’s periodic alimony because she was covering his portion of that debt); and Hill v. Hill, 730 So.2d 248, 251 (Ala.Civ.App.1999) (recognizing that the filing of a bankruptcy petition stays the determination in a divorce case of the debtor’s interests in property of the estate, any exercise of control over such property, and any monetary claims against a debtor other than for alimony, maintenance, or support).

Based on the above, we conclude that all the issues considered by the trial court were excepted from the automatic stay. As a result, the father has failed to establish that any portion of the trial court’s order was void because it violated the automatic stay.

The father additionally contends that the trial judge, Judge Sibley Reynolds, failed to recuse himself. An adverse ruling on a motion to recuse can be reviewed via a petition for a writ of mandamus. Ex parte Melof, 553 So.2d 554, 556 (Ala.1989). However, Judge Reynolds denied the motion to recuse on January 24, 2012, and the father did not institute this appellate proceeding until April 24, 2012. Rule 21(a)(3), Ala. R.App. P., governs the time for filing mandamus petitions, and it provides, in pertinent part:

“The petition [for a writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

The father had 42 days from the entry of the order on January 24, 2012, within which to file a petition for a writ of mandamus. Rule 4(a), Ala. R.App. P. The. father instituted this appellate proceeding and filed his petition more than 42 days after the order denying his motion to recuse was entered. Although the father filed a motion to reconsider that order, that motion did not toll the time for filing the petition for a writ of mandamus. See Ex parte Fiber Transp., L.L.C., 902 So.2d 98, 100 (Ala.Civ.App.2004). The father also did not file a statement showing good cause for his failure to timely file the petition. Id.

The father finally asserts that the trial court lacked subject-matter jurisdiction over the proceedings. “We note that a lack of subject-matter jurisdiction may be raised at any time, and that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Flint Constr. Co., 775 So.2d at 808. Thus, we consider the father’s petition as to that issue.

The father asserts that the trial court lacked jurisdiction to adjudicate the contempt and child-support-modifieation claims asserted in the complaint filed by the mother on October 6, 2011. The father notes that this court declared the trial court’s February 28, 2011, judgment to be void in Landry v. Landry, 91 So.3d 88 (Ala.Civ.App.2012) (“Landry III ”), and ordered the trial court to vacate that judgment. The father argues that the mother based one of the contempt claims and the child-support-modification claim on that void judgment and that, therefore, the trial court could not adjudicate those claims.

In her complaint, the mother alleged that the trial court had entered a “general order” requiring the father to notify her, her attorney, and the trial court when he obtained new employment. The mother did not cite the February 28, 2011, judgment in her complaint. This court has reviewed that judgment, which is contained in the record in Landry III, see Ex parte Cade, 521 So.2d 85, 87-88 (Ala.1987) (defining the circumstances in which appellate court can take judicial notice of a record in a prior appeal), and finds that the February 28, 2011, judgment does not contain any provision requiring the father to notify the trial court of his reemployment. At trial, the mother did not attempt to prove that the father had violated the February 28, 2011, judgment as the basis for her contempt claim.

With regard to the child-support-modification aspect of her complaint, the mother specifically requested the trial court to modify the “original divorce settlement agreement of the parties,” referring to the October 4, 2007, divorce judgment, so as to award her postminority support for the benefit of the parties’ oldest child. The mother also requested that the trial court recalculate the father’s child-support obligation for the parties’ younger children once the oldest child attained the age of majority. The mother did not base either of those modification claims on the February 28, 2011, judgment, nor did she present any evidence at trial to that effect.

Hence, we conclude that the father has not proven his premise that the contempt and modification claims arose out of the void February 28, 2011, judgment. Thus, because the father’s argument that the trial court lacked subject-matter jurisdiction to adjudicate the mother’s complaint is based entirely on that incorrect premise, we need not address it.

In summary, we elect to treat the father’s appeal as a petition for a writ of mandamus. We dismiss the petition for a writ of mandamus insofar as it raises issues more appropriately decided on appeal and insofar as it untimely raises issues regarding the order denying the motion to recuse. We deny the petition for a writ of mandamus to the extent it seeks relief from the March 15, 2012, order on the grounds that the trial court lacked subject-matter jurisdiction to enter that order and that the order violated 11 U.S.C. § 862.

The father’s motion to strike is granted. The mother’s request for the award of attorney fees on appeal is denied.

PETITION DISMISSED IN PART AND DENIED IN PART.

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

      . A “domestic support obligation” is defined at 11 U.S.C. § 101(14A). The Bankruptcy Law Manual describes such an obligation as
      "all obligations in the nature of alimony, maintenance, or support of a spouse, former spouse, or child of the debtor or such child's parent without regard to whether the debt is expressly so designated. To come within the definition, the obligation must be owed to or recoverable by a spouse, former spouse, or child of the debt- or or such child’s parent, legal guardian, or responsible relative or owed to or recoverable by a governmental unit. Only such obligations that are established or subject to establishment before, on, or after the date of the order for relief by reason of applicable provisions of a separation agreement, divorce decree, or property settlement agreement, an order of a court of record, or a determination made in accordance with applicable nonbankruptcy law by a governmental unit are included.”
      Nancy C. Dreher, Bankruptcy Law Manual § 7.15 (5th ed.2012) (footnotes omitted).

      . "A finding of criminal contempt is appropriate where a party has shown disobedience to a court's order and where the acts complained of were specific, identifiable violations from the past.” Fludd v. Gibbs, 817 So.2d 711, 714 (Ala.Civ.App.2001). Additionally, “[i]n an Alabama court, a 'criminal contempt’ proceeding need not be commenced by the State.” Fludd, 817 So.2d at 715.


author: MOORE, Judge.

text:
    Karen Day LAWRENCE v. Walter Ledon LAWRENCE.
    2110556.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.

      Virginia R. Lucci, Montgomery, for appellant.
    Chrissy Dooley-Calhoun, E electric, for appellee.
   MOORE, Judge.

Karen Day Lawrence (“the wife”) appeals from a judgment entered by the Montgomery Circuit Court (“the trial court”) on January 26, 2012, in her divorce action against Walter Ledon Lawrence (“the husband”).

Facts and Procedural Background

The parties met and started dating in May 2008. At that time, the wife owned her own house, which she estimated was worth almost $250,000, and maintained a portfolio of investments (“the retirement accounts”), which she testified amounted to approximately $415,000, as well as various personal property. According to the husband’s testimony, he owned a 14-acre farm, horses, a share of a financial-planning business, and a portfolio of investments worth approximately $25,000 to $30,000. When the parties met, the wife was paying a mortgage of approximately $900 per month on her house and other household expenses of approximately $2,600 per month, a total of approximately $3,500 per month. The husband was paying a mortgage payment of $1,300 per month, utilities of $500 per month, and the operating expenses of his business at a rate of $2,500 per month.

While they were dating, the parties agreed that they would sell their separate homes and jointly purchase a new home with the proceeds from those sales. The husband testified that, because he maintained livestock on his farm, it was not feasible to sell that property first, so the couple agreed to place the wife’s house on the market first. That house did not sell immediately. In July 2008, the husband, a certified financial planner, suggested to the wife that she transfer her retirement accounts from Maine, where they had been overseen for the previous 15 years, to Montgomery, where he could oversee them as her broker. The wife consented to the husband’s suggestion and signed all the necessary authorization forms. The husband proceeded to invest all the funds from the wife’s retirement accounts in annuities and real-estate-investment trusts, with the exception of $100,000, which was invested in an oil company.

The parties married at the end of September 2008. They went on a honeymoon to Israel and Aruba. In 2009, they also traveled as a couple to Ocala, Florida, for one week and, on multiple occasions, to South Carolina. The wife traveled alone to California on one occasion and, on another occasion, vacationed for 10 days with her sister in Hawaii. The wife’s house did not sell quickly, so the parties maintained two separate households throughout 2009. The husband testified that, as a result of the economic downturn and his frequent traveling, he earned only $77,000 in commissions in his financial-planning business in 2009, which, he said, did not cover the parties’ expenses. The wife was unemployed throughout the parties’ marriage.

According to the wife, in January 2009, the husband informed her that the oil company in which he had invested some of her funds had gone into receivership. Throughout 2009, the husband withdrew $150,000 in funds from the annuities he had established for the wife in order to cover the parties’ living expenses and the operating expenses for his business. The husband and the wife also invested in horses, purchasing two for $25,000 and leasing six others. In November 2009, the husband convinced the wife that they should invest funds in Iraqi dinars; $8,000 of the amount the parties invested came from funds from the wife’s investments. At some point, the wife’s house sold for approximately $190,000; the wife received the proceeds derived from that sale and placed them into a certificate-of-deposit account in only her name.

In January 2010, the wife asked the husband to show her the parties’ income-tax returns for the preceding year. According to the wife, upon her inquiring about the income-tax returns, the husband told her to leave the premises, and, she said, within 72 hours, she left the premises and later moved into an apartment. The wife eventually filed a separate income-tax return for the 2009 tax year, which resulted in a tax liability of approximately $60,000. The evidence indicated that, had the wife filed jointly with the husband, their tax liability would have been approximately $22,000.

The wife filed for a divorce from the husband in April 2010. In her complaint, the wife alleged that the husband had fraudulently induced her into marrying him and that he had taken a large portion of her retirement accounts without permission. The wife requested that she be awarded all the money that she had lost as a result of the husband’s alleged fraud. At the trial on April 5, 2011, the wife testified that she was not making any claim to any of the property the husband had owned before their marriage but that she wanted to be financially restored. The wife testified that she had only approximately $60,000 of the funds from her retirement accounts and a portion of the proceeds from the sale of her home left.

The trial court entered a judgment on September 29, 2011, divorcing the parties. In that judgment, the trial court awarded the wife $150,000, representing the amount the husband had withdrawn from the wife’s annuities, plus $54,000, representing the tax liability that the wife had incurred as a result of those withdrawals. The trial court also awarded the wife $8,000 in Iraqi dinars, which had been purchased with the wife’s funds. The trial court declined to award the wife any amount to compensate her for the funds that the husband had invested in the oil company, which had gone into receivership, or any amount to compensate her for the loss she had suffered on the sale of her house.

On October 28, 2011, the husband filed a postjudgment motion to alter, amend, or vacate the divorce judgment. In that motion, the husband argued that the $150,000 that had been withdrawn from the wife’s annuities had been withdrawn with the permission of the wife and had been used by the parties for their joint benefit to maintain their lifestyle. The husband also argued that the wife had deliberately filed a separate income-tax return for 2009, thereby needlessly increasing her tax burden. The husband finally argued that he could not afford to pay the amounts awarded in the judgment, which he characterized as “alimony in gross.” The wife filed a written response to the husband’s motion.

The trial court conducted a hearing on the husband’s postjudgment motion on January 17, 2012. At that hearing, the husband did not offer any new evidence; instead, he requested that the trial court revise the divorce judgment based on the evidence that had been presented at the trial. On January 26, 2012, the trial court entered a judgment granting the husband’s postjudgment motion and reducing the amount the husband was ordered to pay the wife to $72,000. The trial court reasoned that the wife had had some input into the financial decisions made by the husband and that she had received some benefit and enjoyment from the withdrawal of the funds from her annuities, although neither party had produced evidence of the exact amount that had been used for the benefit of the marriage. The trial court stated in its postjudgment order: “The Court is of the opinion that the [wife] cannot simply walk away from the marriage without sharing some of the responsibility for the action taken.”

On February 7, 2012, the wife filed a motion to set aside the judgment, as amended, so that she could present new evidence to the trial court; the wife also notified the trial court of her intent to appeal the revised judgment. On March 8, 2012, the wife filed her notice of appeal to this court.

Issues

On appeal, the wife argues that the trial court committed reversible error by considering “new evidence” that the husband did not have the means to pay the amounts awarded in the original divorce judgment and would have to file bankruptcy and by allowing counsel for the husband to “testify” as to factual matters not in evidence. The wife also argues that the trial court erred in amending its original judgment based on the oral testimony adduced at the trial.

Discussion

Although we agree with the general principle that a trial court cannot consider new evidence as a basis for amending a judgment, see Tice v. Tice, 100 So.3d 1071 (Ala.Civ.App.2012), we find no merit in the wife’s contention that the trial court improperly amended the judgment based on new evidence in this particular case.

This court has reviewed the transcript of the hearing on the husband’s post-judgment motion, which is 13 pages long. In that hearing, the only arguably “new evidence” introduced consisted of a statement made by counsel for the husband that the husband would have to declare bankruptcy if the judgment remained in place because he did not have the means to pay the amounts outlined in the divorce judgment. However, in its postjudgment order, the trial court stated that the record from the trial contained evidence regarding the ability of the husband to repay the wife, noting that the husband had earned commissions of $77,000 in 2009 and that he also receives $1,900 in monthly retirement benefits from the military. We also observe that the husband testified that his business had improved since 2009. The trial court plainly indicated that it was not convinced that the husband lacked the ability to pay the amounts awarded to the wife in the divorce judgment.

We are to construe judgments so as to uphold them, not reverse them. See Ex parte Snider, 929 So.2d 447, 457 (Ala.2005). We construe the statements made by the trial court in its postjudgment order as foreclosing any contention that it was reducing the award based on new evidence regarding the inability of the husband to pay the original amounts awarded to the wife. Therefore, we decline to reverse the judgment based on the mere fact that counsel for the husband, during the hearing on the husband’s postjudgment motion, raised the possibility that the husband may have to declare bankruptcy if the original award remained in effect.

We also reject the wife’s argument that the trial court was bound by its original judgment because the husband did not introduce any different evidence or make any “compelling” legal arguments for revision. On a motion filed pursuant to Rule 59, Ala. R. Civ. P., in an action tried without a jury, a trial court may amend the judgment or make new findings of fact and direct the entry of a new judgment. Rule 59(a), Ala. R. Civ. P. That decision may be based on any ground previously available for rehearings in suits in equity, id., including the grounds stated in § 12-3-11, Ala.Code 1975. Allen v. Fountain, 861 So.2d 1104, 1107 (Ala.Civ.App.2002). Rule 59 motions specifically allow a trial court sitting without a jury to reconsider the evidence upon which its judgment is based or to rehear arguments regarding the legal considerations underlying that judgment. See Holland v. Jenkins, 567 So.2d 1347, 1348 (Ala.1990).

In this case, the husband requested that the trial court reconsider its award based on the evidence presented at trial. Although the evidence was somewhat disputed, the trial court, upon reconsideration, determined that the wife had, in fact, had “some input” into the decision to withdraw the funds from her annuities and that she had, in fact, enjoyed the benefit of those funds, which had been used, at least in part, to pay marital debts, to pay for vacations, and to accumulate marital assets. The trial court further reconsidered that the wife had acknowledged at trial that she would have benefited from filing a joint tax return with the husband and that she had made the decision, upon the advice of her former counsel, to file a separate tax return and to incur additional tax liability. Based on its reconsideration of the evidence, the trial court determined that it would be inequitable to require the husband to repay the wife the entire $204,000 associated with the withdrawals from the annuities and that it would be equitable to order the husband to repay only $72,000 of that amount.

We conclude that the trial court acted wholly within its authority under Rule 59 to reconsider the evidence and to adjust its original award according to its reconsidered view of the equities of the case. The wife does not contest the fairness of the ultimate amount awarded or argue that the evidence is insufficient to sustain that specific amount. Therefore, we affirm the judgment.

The husband’s request for the award of attorney fees on appeal is denied.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

      . The wife testified that, after the parties had made that agreement and had married, the husband told her that she might lose her house if he declared bankruptcy, which, she said, motivated her to sell her house at a reduced price.

      . The fact that the wife’s postjudgment motion, which was filed pursuant to Rule 60(b), Ala. R. Civ. P., remained pending before the trial court when she filed her notice of appeal does not deprive this court of appellate jurisdiction. See Harville v. Harville, 568 So.2d 1239 (Ala.Civ.App.1990).


text:
    Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC08-2148.
    Supreme Court of Florida.
    Feb. 21, 2013.
    Rehearing Denied June 27, 2013.

      Howard L. Dimmig, II, Public Defender, Deborah Kucer Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Stephen D. Ake and Carol Marie Dittmar, Assistant Attorneys General, Tampa, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm Bolin’s conviction and sentence.

OVERVIEW

Oscar Ray Bolin, Jr., was convicted of the first-degree murder of Stephanie Collins and sentenced to death. This Court twice reversed Bolin’s conviction and sentence of death for new trials because of evidence improperly admitted that was covered under the spousal privilege. On Bolin’s second retrial, a jury returned a verdict of guilty of first-degree murder. Bolin waived his right to a penalty phase jury, and after a penalty phase proceeding, the trial court sentenced Bolin to death. This is Bolin’s direct appeal. For the reasons below, we affirm Bolin’s conviction and sentence of death.

FACTS AND PROCEDURAL HISTORY

Oscar Ray Bolin, Jr., is before this Court on direct appeal of his conviction and sentence of death for the 1986 murder of Stephanie Collins. In 1990, a Hillsbor-ough County Grand Jury returned an indictment charging Bolin with first-degree murder, attempted robbery, and kidnapping. Bolin was tried and convicted for the murder. The trial judge followed the jury’s recommendation and sentenced Bo-lin to death. On appeal, this Court reversed Bolin’s conviction because improper evidence was admitted at trial. See Bolin v. State (Bolin I), 650 So.2d 21 (Fla.1995) (reversing and remanding for a new trial because the trial court erred in finding that Bolin waived his spousal privilege when he deposed his ex-wife). On remand, Bolin was again tried, convicted, and sentenced to death. On appeal, this Court reversed a second time, based on the admission of improper evidence at trial. Bolin v. State (Bolin II), 793 So.2d 894 (Fla.2001) (reversing and remanding because the trial court erred in finding that Bolin waived his spousal privilege in writing his suicide letter).

Guilt Phase

The evidence presented at the second retrial revealed that Stephanie Collins went missing on November 5, 1986, after stopping by the Eckerd’s Drug Store where she worked. She was last seen on that day in the passenger’s seat of a white van. On December 5, 1986, her body was discovered alongside a road in Hillsbor-ough County. An autopsy revealed that Collins sustained a number of stab wounds and several potentially fatal blows to the head.

The investigation into Collins’s murder proved unavailing until July 1990, when Danny Coby telephoned The Crime Stoppers Hotline in Ft. Wayne, Indiana, with information about the murder. Danny Coby obtained the information from his wife, Cheryl Coby, who had acquired the information during her prior marriage to Bolin. After Mr. Coby’s call, investigators interviewed Mrs. Coby, who provided investigators with details implicating Bolin in the murder.

After Coby’s disclosures, Bolin was extradited to the Hillsborough County Jail to await trial for the murder of Collins. On June 22, 1991, Bolin attempted suicide. After Bolin was taken to the hospital, the chief investigator, Captain Gary Terry, entered Bolin’s cell and saw a cardboard box sitting on the commode. A stamped envelope addressed to Captain Terry was on top of the box. Captain Terry opened the envelope and read the letter, which discussed, among other things, the murder investigation. Prior to the second retrial, the State filed a Motion to Admit Evidence that the Defendant Attempted to Commit Suicide, including the suicide letter addressed to Captain Terry. The trial court granted the motion, and evidence of Bo-lin’s attempted suicide and the suicide letter were admitted at trial over defense objection.

Because Coby suffered from a terminal illness, her trial testimony from Bolin’s first trial was videotaped. Coby died shortly after the first trial, and, in accordance with this Court’s decisions in Bolin I and Bolin II, the State introduced a redacted version of Coby’s testimony during the second retrial, which edited out privileged communications between Bolin and Coby. See Bolin I, 650 So.2d at 23 (concluding that the trial court erred in finding Bolin waived his spousal privilege based on defendant’s deposition of ex-wife but noting that Coby’s testimony regarding her observations of Bolin’s actions were admissible); Bolin II, 793 So.2d at 897, n. 3, 898 (concluding that trial court erred in finding waiver of spousal privilege based on Bo-lin’s suicide letter but noting that the privilege only applied to confidential communications).

Coby’s redacted testimony that was admitted during Bolin’s second retrial included that on November 5, 1986, Bolin, her husband at the time, picked her up from a restaurant and took her back to their travel trailer. Coby explained that, upon their arrival at the trailer, she saw Bolin load something wrapped in one of their quilts onto his truck. Coby also identified a sheet labeled “Hospital Property” that was found wrapped around Collins’s body as a sheet that Coby had taken during one of her hospital stays due to her continual health problems. Coby provided investigators with the same type of sheets when they interviewed her in Indiana. Coby testified that Bolin and Coby drove to a spot where Bolin dumped the body. Coby later identified that spot to police. When she returned to the trailer, Coby observed that everything inside, including a knife beside the kitchen sink that was usually kept in the drawer, appeared wet. Coby also noticed several blood stains in the trailer.

Robert Fram, an FBI hair analyst, testified that hair found on the towel wrapped around Collins’s body matched Bolin’s. Agent John Stewart testified as an expert that the mitochondrial DNA analysis of Bolin’s hair and saliva showed a profile match with that found on Collins’s body.

Lay witnesses Hennie Moss and David Fessler both testified during trial that they saw Collins in a white van with a man they could not identify on the afternoon she went missing. They testified that Collins was acting excited and waving her arms. Collins’s mother identified the clothes Collins was wearing on the day her body was discovered as the same clothes she was wearing on the day she went missing. Law enforcement also found Collins’s purse near her body. The purse contained a piece of paper on which “724-BYL, Ray” was written. Testimony provided that Bolin was usually called Ray and 724-BYL was the tag number of Bo-lin’s pickup truck. Michael Long, a friend of Coby and Bolin, testified that he had seen Bolin use a white van years before and that Bolin’s friend had allowed Bolin to borrow it.

The medical examiner, Dr. Peter Lardi-zabal, testified that Collins’s skull was struck several times so hard that parts of her skull were reduced to powder. He testified that there were twenty-eight fragments of the victim’s skull as a result of the blunt force trauma Collins sustained. The medical examiner could identify nine points of impact on her skull and testified that the blows would have been quickly fatal. He also testified that Collins’s body and clothes revealed six stab wounds to her back; however, due to the decomposition of her body, he was unable to tell whether the stab wounds were made while Collins was alive or postmortem.

On November 2, 2006, the jury returned a verdict of guilty of first-degree murder.

Penalty Phase

After the verdict was read, Bolin waived his right to a penalty phase jury. During the penalty phase before the trial court, the State presented evidence of the prior rape and kidnapping of Gennie Lynn Le-fever, to which Bolin pleaded guilty. The State also presented testimony from Rick Luman, a jail guard in Ohio who was attacked by Bolin during Bolin’s escape attempt while incarcerated for the prior rape and kidnapping. The State presented the testimony of Gary Kling, a Pasco County detective assigned to the case of the murder of Teri Lynn Mathews, who suffered blunt force trauma to her head and stab wounds, and whose body was found on the side of the road, for which Bolin was convicted of first-degree murder and received the death penalty. See Bolin v. State, 869 So.2d 1196 (Fla.2004).

The defense presented a mitigation notebook to the trial court, which included: (1) the presentence investigation report and sentencing order for the Pasco County murder for potential mitigation; (2) the testimonies of Bolin’s mother and sister from the prior penalty phase; (3) the deposition and testimony of Dr. Robert Ber-land from Bolin’s prior penalty phase; (4) the testimony of Rosalie Bolin, Bolin’s current wife, from Bolin’s prior penalty phase; and (5) Bolin’s medical records.

During the Spencer hearing on October 29, 2007, the defense proffered evidence from Dr. Frank Wood and Dr. Jonathan Burdette, along with Bolin’s mental health status report. The trial court reviewed all the evidence and found the following ag-gravator: (1) previously convicted of another capital felony or of a felony involving the use or threat of violence to the person — great weight. The trial court also found the following mitigation: (1) age of defendant at time of crime (24) — little weight; and (2) the following statutory catch-all mitigator of any other factors in the defendant’s background that would mitigate against imposition of the death penalty: (a) defendant suffered from the effects of his mother’s alcoholism and his own substance abuse — little weight; (b) defendant was abused as a child — some weight; (c) defendant had a poor and unstable childhood — little weight; (d) defendant had sporadic minimal education — little weight; (e) defendant received his GED while incarcerated — little weight; (f) defendant developed skills which included welding, electrical, plumbing, and small machinery skills — little weight; (g) defendant saved the life of another — little weight; (h) defendant was gainfully employed at the time — little weight; (i) defendant behaved appropriately at trial— little weight; (j) defendant has adapted to institutional living and had not received any disciplinary reports — little weight; (k) defendant has been married for eleven years and he seems to maintain that relationship, considering the obvious limitations — little weight; and (l) defendant’s physical and mental medical history indicates several problems — little weight. Additionally, the trial court gave some weight to a finding of some mental or emotional disturbance. The trial court stated in its sentencing order, “Although there is only one aggravating factor, both the nature of the Defendant’s crimes and the underlying facts of those crimes are so egregious that the one aggravating factor far outweighs the mitigating factors in this ease.” Thus, the trial court imposed the sentence of death.

Bolin appeals, raising the following issues for our review: (1) whether the trial court erred in denying Bolin’s motion to exclude Cheryl Coby’s redacted 1991 trial testimony; (2) whether the trial court erroneously denied Bolin’s motion to suppress the suicide note; and (3) whether the trial court erred in rejecting a statutory mitigator and in imposing a death sentence.

ANALYSIS

Guilt Phase Claims

I. Cheryl Coby’s Testimony

During the guilt phase of Bolin’s second retrial, the State read a portion of Cheryl Coby’s testimony from Bolin’s first trial and then played a videotape of a portion of her testimony that had been recorded. In accordance with this Court’s decisions in Bolin ■ I and Bolin II, the portions of Coby’s testimony that referred to privileged communications were redacted.

Bolin now contends that the admission of such dated testimony violates his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Specifically, Bolin contends that because former counsel’s cross-examination was inadequate during Bolin’s first trial, and because counsel is now bound by such cross-examination that focused mainly on privileged testimony that has since been held inadmissible, the former cross-examination is not sufficient to bypass the requirements of Crawford. Bolin also asserts that this testimony violates his constitutional right to due process because the admissible testimony was so intertwined with the privileged communications that the redacted testimony still violates the spousal privilege. Finally, Bolin contends that to properly preserve the spousal privilege, this Court should reconsider its holding in Kerlin v. State, 352 So.2d 45 (Fla.1977), in which this Court found that observation of actions does not violate spousal privilege. These claims are without merit.

a. Crawford Claim

First, Bolin asserts that Coby’s testimony is so dated that it violates Crawford. The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. In Crawford, the United States Supreme Court held that testimonial statements of a witness who did not appear at trial would not be admissible unless that witness was unavailable and the defendant had a prior meaningful opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. 1354; see § 90.804(2)(a), Fla. Stat. (2005). “In considering a trial court’s ruling on admissibility of evidence over an objection based on the Confrontation Clause, our standard of review is de novo.” McWatters v. State, 36 So.3d 613, 637 (Fla.2010) (quoting Milton v. State, 993 So.2d 1047, 1048 (Fla. 1st DCA 2008)).

Bolin contends that the cross-examination was not adequate to satisfy the requirement that he be given a meaningful opportunity to cross-examine Coby. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (noting that a primary interest of confrontation is the right of cross-examination). This claim is without merit. First, the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” State v. Ford, 626 So.2d 1338, 1347 (Fla.1993) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)). Bolin was given a meaningful opportunity to cross-examine Coby during his first trial.

Furthermore, the record reflects that the cross-examination was in fact thorough and effective. Despite Bolin’s contention that the cross-examination focused only on the privileged communications that were redacted for the second retrial, the record reflects that counsel thoroughly cross-examined Coby regarding her testimony about her observations of Bolin’s actions, all of which was admitted during this trial. Cross-examination of Coby admitted during this trial included her status as legally blind, her difficulty deciphering between different colors, the fact that her observations were made while it was dark outside and the fact that she had such trouble seeing at night that she was unable to drive. Cross-examination included Coby’s strained relationship with her ex-husband Bolin, which existed on the night of the murder in question and continued to the day Coby testified in Bolin’s first trial, and the fact that Coby did not want Bolin spending time with their son. Cross-examination also elicited that Coby did not mention the wet knife in her prior depositions yet testified during the first trial that she saw the knife next to the sink in the trailer. Cross-examination also included the potential reward money from Crime Stoppers if Bolin was convicted, along with Coby’s medical bills and financial troubles, including her bankruptcy filing and having her vehicle repossessed in 1986. Cross-examination also included Coby’s concession that she never saw Collins with Bolin, and that Cheryl first lied to the investigating officers in 1990, stating that she knew nothing and after an hour and a half break agreed to talk with police. Based on the above, it is clear that Bolin not only received a meaningful opportunity to cross-examine Coby, but the cross-examination was in fact thorough.

Bolin contends that because of the years that have passed since Bolin’s first trial, admitting Coby’s testimony in his second retrial violates Crawford. However, Bolin provides no support for his assertion and we find it without merit. Cf. Murray v. State, 3 So.3d 1108, 1124 (Fla.2009) (testimony of witnesses was admissible at the fourth trial since the witnesses were unavailable for trial, issues were unchanged, and defendant had prior opportunity to cross-examine them).

Accordingly, we find that Coby’s redacted testimony does not violate Bolin’s right to confrontation.

b. Due Process

Bolin next asserts that admitting the redacted portion of Coby’s testimony regarding her observations on the night of the murder violated Bolin’s due process because Coby’s observations were inextricably intertwined with the inadmissible privileged statements. Thus, Bolin asserts, even her redacted testimony violates spousal privilege. This claim is without merit.

Section 90.504 governs the Husband-wife privilege:

(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

§ 90.504, Fla. Stat. (1985). In Kerlin, 352 So.2d at 51, this Court held that the privilege does not apply to observations made by the spouse. See also Bolin I, 650 So.2d at 23 (“The testimony of Bolin’s former spouse regarding her observations of Bo-lin’s alleged criminal activity was admissible and may be admitted in the new trial.”); Bolin II, 793 So.2d at 897, n. 3 (“The spousal privilege only applies to confidential communications. See § 90.504(1), Fla. Stat. (1985). Therefore, while Coby’s testimony regarding Bolin’s confidential statements to her is privileged, Coby’s testimony regarding what she witnessed is not privileged.”). The record is clear that Coby’s redacted testimony is not so intertwined with the privileged communications so as to render her entii’e testimony inadmissible. Moreover, the precedent set forth in Kerlin is still sound and Bolin provides no support for his assertion that this Court should reconsider its precedent.

Accordingly, the trial court did not err in admitting Coby’s redacted testimony.

II. Admission of Bolin’s Suicide Note

Based on prior attempted escapes and threats of kidnapping family members of the key police investigators while incarcerated, Bolin was placed in a one-man cell with constant supervision and his cell was routinely checked. On June 22, 1991, Bo-lin attempted suicide. Captain Terry was in charge of the Criminal Investigation Bureau Sheriffs Office which included the investigation of homicides. In this role, Captain Terry also responded to any suicides or suicide attempts at the jail which resulted in major injuries. Captain Terry investigated Bolin’s suicide attempt, including searching Bolin’s cell. During that search, he found a stamped envelope, face-up, addressed to Captain Terry, on top of a cardboard box, in plain view. Believing it a suicide letter, Captain Terry read the letter. The letter contained instructions to Captain Terry as to how to dispose of the cardboard box which held Bolin’s personal effects, as well as apologizing for his suicide. Prior to Bolin’s second retrial, the State filed a Motion to Admit Evidence that the Defendant Attempted to Commit Suicide, including the suicide letter addressed to Captain Terry. In accordance with the Second District’s decision in State v. Bolin, 693 So.2d 583 (Fla. 2d DCA 1997), the trial court granted the State’s motion over defense objection. See generally Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001) (recognizing that “[ujnder the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case”); Henry v. State, 649 So.2d 1361, 1364 (Fla.1994).

Bolin contends that the trial court erred in admitting the suicide note. Specifically, Bolin contends that Terry illegally seized Bolin’s private property in violation of the Fourth Amendment. Bolin also contends that because he was represented by counsel at the time of the suicide attempt, opening the letter was in violation of his Sixth Amendment right to counsel. These claims are without merit.

To establish a Fourth Amendment violation, an individual must have a subjective expectation of privacy that society recognizes is reasonable. Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The United States Supreme Court has held that society is not prepared to recognize that a prisoner has a legitimate, subjective expectation of privacy in his or her cell and so “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Bolin contends that he was merely a pretrial detainee. However, this assertion ignores the fact that while Bolin was awaiting trial on the instant murder charge, he was serving two consecutive sentences based on his Ohio conviction for the rape and kidnapping of Jennifer LeFevre. Hence, he was not merely a pretrial detainee.

Bolin attempts to rely on the “plain-view” doctrine, asserting that the investigators were not justified in seizing his letter because the envelope itself did not establish probable cause that the letter was contraband; they would need to open and read the letter before realizing it was “contraband.” See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (stating that if an object’s incriminating character is not “immediately apparent” or if there is not probable cause to believe an object is contraband without a further search, the “plain-view” doctrine cannot justify its seizure). However, such a doctrine relies on the application of Fourth Amendment search and seizure protections. Based on the circumstances under which Bolin was monitored, the daily searches of his cell, and his suicide attempt, there was no reasonable expectation of privacy within Bo-lin’s prison cell which would trigger the Fourth Amendment protections against this action. Furthermore, the officers had a justified reason to search Bolin’s cell which would outweigh any Fourth Amendment protection.

Bolin contends that his constitutional rights were violated because the search was conducted merely to bolster the State’s case against the detainee and was not conducted for security reasons. See United States v. Cohen, 796 F.2d 20, 23 (2d Cir.1986). The record conclusively refutes this allegation. The search and seizure of the letter in question carried out after an attempted suicide was based on the prison’s policy to investigate such an attempt where serious injury occurred. The letter was placed in a prominent position on top of Bolin’s box of personal possessions, face up, addressed to Captain Terry, and stamped. The letter was seized and read after Bolin attempted suicide because it appeared to be, and was indeed, a suicide note. Accordingly, the officers did not violate Bolin’s Fourth Amendment rights by seizing this letter.

Bolin asserts that seizure of the letter violated his Sixth Amendment right to counsel. Once a defendant has asserted his right to counsel, “the State may not initiate any crucial confrontation with the defendant on that charge in the absence of counsel throughout the period of prosecution.” Traylor v. State, 596 So.2d 957, 968 (Fla.1992). Bolin asserts that the State initiated contact by perusing Bolin’s papers in the absence of his counsel. According to Bolin, this should be considered a crucial confrontation with the defendant and the State used the suicide attempt as a fishing expedition while Bolin was in the hospital. Bolin concedes that the letter contained no work product of defense counsel, but asserts that the box containing his personal effects could have included materials relating to his trial preparation. At the least, Bolin requests this Court to order an evidentiary hearing for such a determination. According to the evidence presented, the letter was not in the box, but on the top of the box. Bolin does not address why the letter should be suppressed because his box of personal effects could have contained attorney-client privileged information. Bolin fails to address how seizing the letter during an investigation of Bolin’s suicide attempt could constitute a crucial confrontation with the defendant himself. Moreover, as Traylor makes clear, the confrontation must concern the charge at issue. In this ease, the officers seized the letter in conjunction with a suicide investigation; they were not initiating contact with Bolin in regards to the murder charge he faced.

Accordingly, the trial court did not err in admitting the suicide letter.

III. Sufficiency of the Evidence

This issue was not briefed by the parties; however, this Court has a mandatory obligation to independently review whether there is sufficient evidence to support a first-degree murder conviction. Miller v. State, 42 So.3d 204, 227 (Fla.2010) (citing Blake v. State, 972 So.2d 839, 850 (Fla.2007)), cert, denied, — U.S. -, 131 S.Ct. 935, 178 L.Ed.2d 776 (2011); Fla. R.App. P. 9.142(a)(6). In conducting this review, we “view the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So.2d 655, 674 (Fla.2006) (citing Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). “Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to ldll. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.” Bradley, 787 So.2d at 738 (quoting Woods v. State, 733 So.2d 980, 985 (Fla.1999)). Premeditation may be inferred from such facts as “the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Id. (quoting Norton v. State, 709 So.2d 87, 92 (Fla.1997)).

Here, there is sufficient evidence to support a conviction for first-degree murder. On November 5, 1986, Stephanie Collins went missing after stopping by the Eckerd’s Drug Store where she worked. On December 5, 1986, Collins’s decomposed body was found in a ditch off of Morris Bridge Road in Tampa. Collins’s mother identified the clothes Collins was wearing on the day her body was discovered as the same clothes she was wearing on the day she went missing. Her body was wrapped in sheets and a quilt. Inside the quilt there were sheets and a towel with a hair on it. DNA analysis revealed that the DNA on the hair matched the DNA of Bolin. One of the sheets in which Collins’s body was wrapped had “Hospital Property” written on it. Law enforcement also found Collins’s purse near her body. The purse contained a piece of paper on which “724-BYL, Ray” was written. Testimony during trial provided that Bolin was usually called Ray and 724-BYL was the tag number of Bolin’s pickup truck.

In July, 1990, detectives located Bolin’s ex-wife, Cheryl Coby, in Indiana, in response to her then-husband, Danny Coby, calling the Crime Stoppers Hotline and stating that she knew about the Collins murder. Before Coby died in 1992, Coby’s testimony was recorded during Bolin’s first trial, during which she testified that in November of 1986, Bolin, her husband at the time, came to the Waffle House where she was having dinner with friends and insisted she leave with him. She testified that they returned to their trailer, and Bolin left her in the truck and went inside for about ten to fifteen minutes. Coby heard the trailer door open and saw Bolin pick up something wrapped in a quilt. He put the quilt in the back of the truck. She identified the quilt, sheets, and towel found with Collins’s body as belonging to her and Bolin. Coby testified that she would take the hospital sheets from the hospital when she stayed there because of her recurring health problems due to diabetes. Coby provided detectives in Indiana with hospital sheets just like the one found wrapped around Collins’s body. Coby testified that she and Bolin drove to Morris Bridge Road, where she watched Bolin dump a body in a ditch. Coby testified that when she and Bolin returned to their trailer, Coby saw spots of blood on the curtains, walls, carpet, and blinds. She also testified that the floor, ceiling, cabinets, and doors were wet. She testified that she saw a butcher knife, that was usually kept in a drawer, beside the sink and the handle was wet.

Hennie Moss and David Fessler testified during trial that they saw Collins in a white van with a man they could not identify on the afternoon she went missing. They testified that Collins was acting excited and waving her arms. Michael Long, a friend of Coby and Bolin, testified that he had seen Bolin use a white van years before and that Bolin’s friend allowed Bo-lin to borrow it.

The medical examiner, Dr. Peter Lardi-zabal, testified that Collins’s skull was struck several times so hard that parts of her skull were reduced to powder. The medical examiner testified that there were twenty-eight fragments of the victim’s skull as a result of the blunt force trauma Collins sustained. The medical examiner could identify nine points of impact on her skull and testified that the blows would have been quickly fatal. The medical examiner also testified that Collins’s body and clothes revealed that there were six stab wounds to her back; however, due to the decomposition of her body, the medical examiner was unable to determine whether the stab wounds were made while Collins was alive or postmortem.

Accordingly, there was sufficient evidence that Bolin committed the homicide with “a premeditated design to effect the death of the person killed[.]” See § 782.04(l)(a)l, Fla. Stat. (1985).

Penalty Phase Claims

I. Statutory Mental Mitigation

Bolin asserts that the trial court erred in not finding the statutory mitigator of “[t]he capacity of the defendant to appreciate the criminality of his [or her]” conduct or to conform his [or her] conduct to the requirements of law was substantially impaired. See § 921.141(6)(f), Fla. Stat. (1985). Bolin asserts that if the trial court had found this statutory mental mitigator, the death sentence would be disproportionate. We find this claim without merit.

The State asserts that this claim is not preserved for review because Bolin waived his right to present mitigation. While Bolin waived his right to a penalty phase jury, we find that he did not waive his right to present mitigation altogether. Rather, Bolin presented a mitigation notebook, which included .mitigation evidence admitted in his prior penalty phase trials: (1) Dr. Beriand’s testimony from the prior penalty phase; and (2) Mary Baughman and Sherry Jauregui’s (Bolin’s mother and sister) prior penalty phase testimonies. The trial court accepted the mitigation notebook into evidence and considered it in determining Bolin’s sentence. The trial court also considered the Pasco County sentencing order for Bolin’s conviction for the murder of Teri Lynn Mathews that provided potential mitigation. Additionally, the Spencer hearing was continued so that Bolin could have a PET scan, and during the Spencer hearing, on October 29, 2007, the defense proffered evidence from Dr. Wood and Dr. Burdette regarding Bo-lin’s mental status. The trial court accepted and relied on this mitigation in determining Bolin’s sentence.

Bolin contends that the trial court erred in rejecting the statutory mental mitigator that “[t]he capacity of the defendant to appreciate the criminality of his [or her] conduct or to conform his [or her] conduct to the requirements of law was substantially impaired.” See § 921.141(6)©, Fla. Stat. (1985). “Mitigating evidence must be considered and weighed when contained ‘anywhere in the record, to the extent it is believable and uncontroverted.’ ” LaMarca v. State, 785 So.2d 1209, 1215 (Fla.2001) (quoting Robinson v. State, 684 So.2d 175, 177 (Fla.1996)). Nevertheless, the sentencer is not precluded from according the mitigating factor no weight. Trease v. State, 768 So.2d 1050, 1055 (Fla.2000). The trial court must find a mitigating circumstance if it “has been established by the greater weight of the evidence.” Coday v. State, 946 So.2d 988, 1003 (Fla.2006). “However, a trial court may reject a proposed miti-gator if the mitigator is not proven or if there is competent, substantial evidence to support its rejection.” Id.

Bolin contends that Dr. Beriand’s uncontroverted testimony supports the finding of this mental mitigator. Trial judges have broad discretion in considering unrebutted expert testimony; however, the rejection of the expert testimony must have a rational basis. Id. at 1005. In Foster v. State, 679 So.2d 747, 755 (Fla.1996), this Court stated that “[e]ven uncon-troverted opinion testimony can be rejected, especially when it is hard to reconcile with the other evidence presented in the case.” Accord Coday, 946 So.2d at 1005; Morton v. State, 789 So.2d 324, 330 (Fla.2001).

In the instant case, the trial court found that the defense did not establish the existence of this mitigating circumstance and gave it no weight. We find that the trial court considered all the evidence that was presented by both sides and that competent, substantial evidence supports the trial court’s rejection of this proposed mitigator. Dr. Berland testified that Bolin suffered from a number of mental illnesses; however, aside from Dr. Ber-iand’s conclusory statement that Bolin’s illnesses could have rendered Bolin unable to conform his conduct to the requirements of law, there was no evidence submitted that linked these illnesses to the events of the night of Collins’s murder. Dr. Berland acknowledged that Bolin was capable of recognizing the criminality of his conduct, but opined that his mental illnesses would have made his impulses to commit the crime very hard to control. On cross-examination by the State, Dr. Berland acknowledged “the psychosis seems to be not in any way a controlling — no voice told him to do whatever he did. On the other hand, it seems to be a significant factor that simply can’t be ignored.” While Dr. Ber-land testified that such symptoms lasted a lifetime, he also testified that the symptoms would wax and wane throughout time, and testified that Bolin could control his impulses at certain times but perhaps not at others. Because Bolin did not discuss the events of the night of Collins’s murder with Dr. Berland, Dr. Berland could not specifically testify to whether such psychosis affected Bolin that night. Based on this testimony, although Bolin may suffer from mental illness, there is no evidence to support the conclusion that such illness affected Bolin during the events of Collins’s murder. Therefore, the trial court’s rejection of this statutory miti-gator is supported by competent, substantial evidence.

Accordingly, we find that the trial court did not err in rejecting the proposed statutory mental mitigator.

II. Proportionality

Bolin contends that his death sentence is not proportional. “[T]o ensure uniformity in death penalty proceedings, 'we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.’ ” Floyd v. State, 913 So.2d 564, 578 (Fla.2005) (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003)). This Court has described its “proportionality review” as involving “a thoughtful, deliberate proportionality review to consider the totality of circumstances in a ease, and to compare it with other capital cases.” Tillman v. State, 591 So.2d 167, 169 (Fla.1991) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990) (emphasis omitted)). “This entails ‘a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.’ In other words, proportionality review ‘is not a comparison between the number of aggravating and mitigating circumstances.’ ” Offord v. State, 959 So.2d 187, 191 (Fla.2007) (citations omitted).

In the instant case, Bolin was convicted of the first-degree murder of Stephanie Collins. The trial court found one aggra-vator: (1) previously convicted of another capital felony or of a felony involving the use or threat of violence to the person-great weight. In mitigation, the sentencing court found: (1) age of defendant at time of crime (24) — little weight; and (2) the following statutory catch-all mitigator of any other factors in the defendant’s background that would mitigate against imposition of the death penalty: (a) defendant suffered from the effects of his mother’s alcoholism and his own substance abuse — little weight; (b) defendant was abused as a child — some weight; (c) defendant had a poor and unstable childhood — little weight; (d) defendant had sporadic minimal education — little weight; (e) defendant received his GED while incarcerated — little weight; (f) defendant developed skills which included welding, electrical, plumbing, and small machinery skills — little weight; (g) defendant saved the life of another — little weight; (h) defendant was gainfully employed at the time — little weight; (i) defendant behaved appropriately at trial — little weight; (j) defendant has adapted to institutional living and had not received any disciplinary reports — little weight; (k) defendant has been married for eleven years and he seems to maintain that relationship, considering the obvious limitations — little weight; and (l) defendant’s physical and mental medical history indicates several problems — little weight. Additionally, the trial court gave some weight to a finding of some mental or emotional disturbance.

This Court has previously explained that “absent unusual circumstances, ‘death is not indicated in a single-aggravator case where there is substantial mitigation.’ ” Green v. State, 975 So.2d 1081, 1088 (Fla.2008) (quoting Almeida v. State, 748 So.2d 922, 933 (Fla.1999)). “The vast majority of cases where we have upheld a death sentence based on a single aggravator have involved a prior murder or manslaughter.” Id.

This Court has previously stated that the prior violent felony aggravator is one of the “most weighty” aggravating circumstances set forth in Florida’s statutory sentencing scheme. See Bevel v. State, 983 So.2d 505, 524 (Fla.2008); Sired v. Moore, 825 So.2d 882, 887 (Fla.2002). Additionally, the underlying facts supporting the statutory aggravator in this case are particularly heinous, including: (1) a December 28, 2001, conviction for first-degree murder in Pasco County for the murder of Teri Lynn Mathews, for which Bolin was sentenced to death; (2) a 1988 kidnapping and rape conviction for Bolin’s rape of Gennie Lefever at gunpoint; and (3) a 1988 conviction for felonious assault and escape while incarcerated for the above-mentioned rape, for which Bolin pleaded guilty. Additionally, the mitigation was of insubstantial effect, to which the trial court allocated little or some weight. We find that the death sentence is proportional in this case. See, e.g., Rodgers, 948 So.2d at 671-72 (finding the death sentence proportionate even though it was supported by a single aggravator — prior violent felony conviction — where that aggravator included a robbery and a similar shooting and killing offense balanced against insubstantial mitigation); Ferrell v. State, 680 So.2d 390, 391 (Fla.1996) (affirming death sentence where sole aggravator was prior second-degree murder and insubstantial mitigation); Duncan v. State, 619 So.2d 279, 284 (Fla.1993) (affirming death sentence where sole aggravator was prior second-degree murder); Lemon v. State, 456 So.2d 885, 888 (Fla.1984) (death proportionate for defendant who killed a woman with whom he had a relationship after a previous conviction for a similar violent offense), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985).

CONCLUSION

Based on the foregoing, we affirm Bo-lin’s conviction and sentence of death.

It is so ordered.

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

QUINCE, J., recused.

      . Prior to Bolin's first retrial, Bolin moved for the suicide letter to be suppressed. After an evidentiary hearing, the trial court granted his motion. The State took an interlocutory appeal to the Second District Court of Appeal, which reversed the trial court's ruling. State v. Bolin, 693 So.2d 583 (Fla. 2d DCA 1997). Specifically, the district court held that based on the factual circumstances, Bolin did not have a reasonable expectation to privacy in the letter. This Court declined to grant discretionary review of the district court's decision. Bolin v. State, 697 So.2d 1215 (Fla.1997) (table decision). The United States Supreme Court denied Bolin’s petition for a writ of certiorari. Bolin v. Florida, 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997) (table decision).

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . A technological issue with the videotape recorder did not allow the entirety of Coby's testimony to be videotaped.