source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    A.J. BROWN v. Emily BROWN.
    2080018.
    Court of Civil Appeals of Alabama.
    April 24, 2009.
    John F. Porter III, Scottsboro, for appellant.
    Jack Livingston, Scottsboro; and L. Jayson Carroll, Rainsville, for appellee.
   MOORE, Judge.

A.J. Brown appeals from a summary judgment entered by the DeKalb Circuit Court in favor of Emily Brown in a will contest. We affirm.

Facts and Procedural History

On October 17, 2007, Emily filed in the DeKalb Probate Court a petition to probate a will that had been executed in 1957 by her deceased husband, R.B. Brown (“the decedent”). That will (“the 1957 will”) provided that Emily would serve as the personal representative of the decedent’s estate and that she would be the sole beneficiary of the estate. On October 24, 2007, A.J., one of four children born to Emily and the decedent, filed a contest of the 1957 will in the probate court. On October 27, 2007, A.J. filed in the DeKalb Circuit Court a petition to remove the proceedings from the probate court to the circuit court, and, on November 1, 2007, the circuit court entered an order removing the case. On February 6, 2008, A.J. filed an amended contest of the 1957 will. On February 22, 2008, Emily filed a response to the initial will contest.

On February 27, 2008, Emily filed a motion for a summary judgment; on March 4, 2008, she filed a response to the amended will contest. On April 4, 2008, A.J. filed a response in opposition to Emily’s summary-judgment motion. On May 5, 2008, the circuit court heard oral argument regarding whether the 1957 will had been revoked by a “Revocation of Last Will and Testament” that had been executed by the decedent on August 8, 2006 (“the revocation document”), which had been proffered by A. J. in support of his amended will contest. The revocation document stated:

“I, R.B. Brown, residing in DeKalb County, Alabama, being of sound mind and disposing memory and over the age of nineteen years, and with the knowledge and uncertainty of life, do hereby revoke all last wills and testaments heretofore made by me; it being my intention and desire to die without a will.”

On May 9, 2008, A.J. filed in the circuit court a petition to probate the revocation document. Emily moved to strike that petition.

On May 23, 2008, the circuit court entered a summary judgment holding, among other things, that Emily was entitled to have the 1957 will admitted to probate, that the revocation document did not revoke the 1957 will, and that A.J. was not entitled to have the revocation document admitted to probate. The circuit court ordered the probate court to admit the 1957 will to probate; the probate court entered an order admitting the 1957 will to probate on May 27, 2008. On June 4, 2008, A.J. filed a motion to alter, amend, or vacate the summary judgment; that motion was not ruled upon by the circuit court and, thus, was deemed denied by operation of law on September 2, 2008. See Rule 59.1, Ala. R. Civ. P. On October 7, 2008, A.J. filed his notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court subsequently transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

On March 5, 2009, this court, after having called for letter briefs from the parties on the issue whether the circuit court’s summary judgment was a final judgment, remanded this case for 28 days for the circuit court to consider whether to certify the summary judgment as final in compliance with Rule 54(b), Ala. R. Civ. P. On March 11, 2009, the circuit court entered an order certifying the May 23, 2008, summary judgment as final, pursuant to Rule 54(b).

Discussion

I. March 5, 2009, Remand Order

We initially acknowledge, ex mero mot% that this court’s March 5, 2009, remand order was improper. Alabama Code 1975, § 12-22-21(1), provides for an appeal from a probate court’s nonfinal order “on a contest as to the validity of a will, to be taken within 42 days after the determination of the contest.” Although § 12-22-21(1) “does not specifically provide a right to appeal from a similar order of the circuit court[, the Alabama Supreme Court] has traditionally treated such orders of the circuit court as though they were orders of the probate court.” Tate v. Kennedy, 578 So.2d 1079, 1080 n. 2 (Ala.1991). Accordingly, because this appeal challenges the circuit court’s “order on a contest as to the validity of a will,” § 12-22-21(1), we conclude that A.J. had the right to appeal from the May 23, 2008, summary judgment to the extent the summary judgment relates to the will contest. See Tate, supra. Thus, the circuit court’s subsequent order on remand was unnecessary to confer jurisdiction upon this court.

II. Motion to Dismiss

We next address Emily’s motion to dismiss this appeal, which she filed within her appellate brief to this court. Emily first argues that A.J. should have appealed from the probate court’s May 27, 2008, order admitting the 1957 will to probate. As we noted in section I above, however, A.J.’s appeal from the circuit court’s May 23, 2008, summary judgment was proper under § 12-22-21(1). Furthermore, A.J. argues in response that the probate court’s May 27, 2008, order admitting the 1957 will to probate is void for lack of subject-matter jurisdiction and, thus, will not support an appeal. We agree. Once the administration of an estate is removed to the circuit court, “ ‘that court’s jurisdiction becomes exclusive, and it must proceed to a final and complete settlement, following its own practice and governed by its own procedure.’ ” Ex parte Farley, 981 So.2d 392, 396 (Ala.2007) (quoting McKeithen v. Rich, 204 Ala. 588, 589, 86 So. 377, 378 (1920)). Although a circuit court may subsequently retransfer the administration of the estate back to the probate court upon motion of the opponent of the transfer, Ex parte McLendon, 824 So.2d 700, 704 (Ala.2001), there is nothing in the record indicating that the circuit court did so in the present case. In fact, in its March 11, 2009, order on remand, the circuit court indicated that the administration of the estate of the decedent “remains pending before this Court.” Accordingly, we conclude that the probate court’s May 27, 2008, order is void for lack of subject-matter jurisdiction.

Emily also argues that A.J. failed to name her in her capacity as “executrix” of the decedent’s estate in his notice of appeal. We note, however, that, at the time of the entry of the May 23, 2008, summary judgment, Emily had not been appointed as personal representative of the decedent’s estate. Thus, we find no merit to this argument.

Emily’s final argument in support of her motion to dismiss is that the record does not contain A.J.’s initial pleading in the will contest. We note, however, that, subsequent to the filing of Emily’s brief to this court, A.J. moved the circuit court to supplement the record; the circuit court granted that motion. The supplemental record includes the initial pleading filed in the will contest. Because Emily did not challenge the circuit court’s order supplementing the record in this court, we conclude that Emily’s argument on this point is moot.

III. Appeal

Finally, we address the merits of A.J.’s appeal from the circuit court’s summary judgment. A.J.’s sole argument is that the circuit court erred in determining, as a matter of law, that the revocation document did not revoke the 1957 will.

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion.” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmov-ing party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994).

Alabama Code 1975, § 43-8-136, sets forth the two methods by which a testator may revoke a will:

“(a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.
“(b) A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence by his consent and direction. If the physical act is by someone other than the testator, consent and direction of the testator must be proved by at least two witnesses.”

Alabama Code 1975, § 43-8-1(34), provides that the term “will” “[i]ncludes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.” (Emphasis added.)

We note that, before 1983, Alabama law provided that a will could be revoked “by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence, and by his direction, or by some other will in writing, or some other writing subscribed by the testator, and attested ....” Ala.Code 1975, § 43-1-33 (emphasis added) (repealed by Ala. Acts 1982, Act No. 82-399, effective January 1, 1983). Although some states still include the “some other writing” language in their revocation statutes, the language “some other writing” was omitted from Alabama’s law effective January 1, 1983, when the Probate Code was enacted. Compare Ala. Code 1975, § 43-8-136, with Fla. Stat. § 732.505(2) (2002) and Ind.Code § 29-1-5-6 (1994 Supp.).

Despite this omission, A.J. argues that the revocation document was a testamentary instrument and, thus, that it should be considered a “subsequent will” under Ala.Code 1975, § 43-8-136(a). Emily, on the other hand, argues that the revocation document cannot be considered a subsequent will under § 43-8-136(a) because, she says, the revocation document took effect immediately, whereas a testamentary instrument would become effective only upon the testator’s death.

Although we can find no Alabama case directly on point, we note that the circuit court relied heavily on a New Mexico case, Gushwa v. Hunt, 145 N.M. 286, 197 P.3d 1 (2008), which discussed facts analogous to those in the present case. This court, like the circuit court, finds the analysis in Gushwa to be persuasive. In Gushwa, the New Mexico Supreme Court reasoned:

“At the outset, we note that our Probate Code, unlike that of other states, does not allow for revocation of a will by any ‘other writing.’ Compare [N.M. Stat.] § 45-2-507(A)(l) [ (1993) ] (‘A will or any part thereof is revoked ... by executing a subsequent will that revokes the previous will or part expressly or by inconsistency ....’) with Fla. Stat. § 732.505(2) (2002) (‘A will or codicil, or any part of either, is revoked ... [b]y a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.’ (Emphasis added.)). As our Court of Appeals has previously explained:
“ ‘Generally, the question whether a will can be revoked by a writing not testamentary in character depends upon the provisions of the governing statute.... [W]here the statute omits the clause “some other writing” or its equivalent, and simply states that no will shall be revoked except by some other “will, testament or codicil in writing, declaring the same,” it has been held that a will may not be revoked by a writing not testamentary in character.’
“[In re Estate of] Martinez, ... 127 N.M. 650, [652,] 985 P.2d 1230[, 1232 (Ct.App.1999) ] (quoting E.T. Tsai, Annotation, Revocation of Will By Nontestamentary Writing, 22 A.L.R.3d § 2(a), at 1351 (1968)).
“Wife argues that the Revocation of Missing Will(s) document should be given the effect of a subsequent will because of its language expressly revoking Decedent’s prior will. Wife relies on the definition of ‘will’ contained in the definitions section of the Probate Code. See [N.M. Stat.] § 45-1-201(A)(53) (1995) (defining a will as ‘any testamentary instrument that ... revokes or revises another will’).
“Wife’s position, however, is at odds with the Code’s specific language describing the only legally effective methods of revocation. If a will could be revoked by any writing that simply revoked another will, without the necessary testamentary language — or that it be in fact a ‘subsequent will’ — then a will could be revoked by ‘any other writing,’ contrary to the Code’s specific language and the legislative intent to limit the available means of revocation. Because our Probate Code requires revocation by a subsequent will, we are guided by this more specific statement rather than a generic definition. Accordingly, we reject Wife’s argument that the Revocation of Missing Will(s) document satisfies the requirements of Section 45-2-507(A)(1). It clearly does not, regardless of Decedent’s intent. Our Probate Code requires an exacting attention to form as well as intent to validate a revocation. See Martinez, ... 127 N.M. 650, 985 P.2d 1230.
“Similarly, Wife’s argument that other language in the Revocation of Missing Will(s) document gives it the effect of a subsequent will does not persuade us. Instead, the language chosen by Decedent clearly shows that he knew he was not drafting a subsequent will.
“First, in the Revocation of Missing Will(s) document, Decedent explained in writing his correct understanding of the two methods by which a testator can revoke a will — drafting a subsequent will or performing a revocatory act on the will. Decedent then listed acceptable revocatory acts, including burning or canceling. After establishing that he knew how to revoke a will, and what acts constitute a revocatory act on a will, Decedent then ‘attested] that [he] canceled the first three (3) pages of the will executed ... on or about June 6, 2000, with the express intent to revoke the same.’ Thus, it is clear from the Revocation of Missing Will(s) document that if Decedent intended to revoke the Will, it was not by drafting a subsequent will, but by performing a revocatory act on the photocopy of the Will.
“Additionally, Decedent used conditional language in the Revocation of Missing Will(s) document which strongly suggests that he did not intend the Revocation document to act as a subsequent will. Decedent wrote that he retained the option of drafting a subsequent will. Decedent stated that he knew that his property would pass through intestate succession ‘if [he did] not make a subsequent will.’ (Emphasis added.) In other words, the Revocation of Missing Will(s) document, though an expression of intent, was not a subsequent will in Decedent’s mind. In addition, while Decedent excluded [the parties contesting the will] from inheriting any of his property, he explained that they were not to inherit ‘whether by will or by intestate succession,’ leaving open the possibility of a subsequent will.
“Our review of the statutory requirements for revocation by a subsequent will, along with our analysis of the language the Decedent selected for use in the Revocation of Missing Will(s) document, persuades us that the Revocation of Missing Will(s) document was never intended to be a subsequent will and should not be given the effect of a subsequent will by this Court. Therefore, as a matter of law consistent with the clear language of the Probate Code, this document did not revoke Decedent’s prior will.”

145 N.M. at 288-90,197 P.3d at 3-5.

Similarly, in the present case, the revocation document, on its face, clearly indicates that it is not a “subsequent will” because it states: “it being my intention and desire to die without a will.” Furthermore, a “will” is defined in § 43-8-1(34) as a “testamentary instrument.” The word “testament” means “an act by which a person determines the disposition of his or her property after death.” Merriam-Webster’s Collegiate Dictionary 1291 (11th ed. 2003). By its terms, the revocation document was intended to take effect immediately, not upon the death of the decedent. Moreover, the revocation document did not determine the disposition of the decedent’s property after his death. Because the revocation document is not a “subsequent will,” we conclude that that document did not meet the statutory requirements to revoke the 1957 will.

Conclusion

Based on the foregoing, we affirm the trial court’s summary judgment on the will contest.

AFFIRMED.

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

BRYAN, J., concurs in the result, without writing.


text:
    Warren J. TYSON v. Tammy A. TYSON.
    2070557.
    Court of Civil Appeals of Alabama.
    April 24, 2009.

      Walter L. Gray III of Armstrong & Gray, P.C., Phenix City, for appellant.
    F. Patrick Loftin of Loftin & Loftin, Phenix City, for appellee.
   MOORE, Judge.

Warren J. Tyson (“the husband”) appeals from a judgment entered by the Russell Circuit Court divorcing him from Tammy A. Tyson (“the wife”). We affirm in part and reverse in part.

On July 14, 2006, the wife filed a complaint for a divorce from the husband. In her complaint, the wife requested that the trial court award her, among other things, pendente lite and sole custody of the parties’ minor child, who was born on October 1, 1996, as well as pendente lite and permanent child support. On July 31, 2006, the husband answered the complaint and counterclaimed for a divorce, requesting, among other things, that the trial court award the parties joint custody of the minor child and award the wife child support in accordance with the child-support guidelines of Rule 82, Ala. R. Jud. Admin. On August 10, 2007, the trial court ordered the husband to pay pendente lite child support in the amount of $1,000 per month commencing as of August 1, 2007. On October 18, 2007, the wife filed an amendment to the divorce complaint asserting that the husband had failed to pay the pendente lite child support and requesting that the husband be held in contempt. She also requested that the husband be required to pay retroactive child support from the date the initial complaint for a divorce was filed.

The ease was called for trial on December 13, 2007. At the beginning of the trial, the parties’ attorneys represented to the trial court that there was no dispute as to the issues of custody and child support. The parties agreed to sharing joint legal custody, with the wife having primary physical custody and the husband having an open visitation schedule. The husband’s attorney represented that the husband agreed to pay child support in accordance with the child-support guidelines.

On February 5, 2008, the trial court entered a judgment of divorce that stated, in pertinent part:

“... The parties announced to the Court that they had reached an agreement and the Court is of the opinion and finds that it has jurisdiction of the parties and of the cause of action.
“It is therefore, ORDERED, ADJUDGED AND DECREED:
“3. That the [wife] and [the husband] are awarded the joint legal custody of the minor child of the parties, ... with the [wife] having primary custody and the [husband] having secondary custody with visitation rights ....
“4. The [wife] is awarded the real estate located [in] Salem, Alabama, and she will continue to pay the indebtedness owed thereon. There is currently a lease on said property and the lease is hereby assigned and transferred to the [wife] free and clear of any claims of the [husband]. Starting with the month of January 2008, the [wife] shall be entitled to all rental payments due under the lease of said property along with all other rights and obligations under the existing lease. The [husband] shall have the right to use and maintain the existing hay field on the property for the use and benefit of the horse of the minor child. In the event the [wife] decides to sell the real estate, the [husband] shall have the first right of refusal.
“5. For the use and benefit of the minor child, the [husband] shall pay child support to the [wife] in the amount of One Thousand Two Hundred Fifty and NO/lOO ($1,250.00) Dollars per month, in accordance with the Alabama Child Support Guidelines.... The [husband] is ordered to pay retroactive child support beginning the 1st day of July, 2006. The [husband] has accumulated an arrearage amount of Twenty Two Thousand Five Hundred and 00/100 ($22,500.00) Dollars. Said arrearage shall be paid at the rate of Two Hundred and NO/100 ($200.00) Dollars per month until paid in full. The Court heard testimony and received exhibits indicating that the [husband] had an annual minimum income of $150,000.00. The Court considers this evidence credible and [bases] child support upon that figure.”

The husband filed his notice of appeal on March 14, 2008.'

On appeal, the husband presents three issues: (1) whether the trial court exceeded its discretion in ordering a retroactive modification of the pendente lite child-support order and ordering the husband to pay retroactive child support to a date preceding the entry of the pendente lite order, (2) whether the trial court exceeded its discretion in calculating the husband’s monthly child-support obligation, and (3) whether the trial court had jurisdiction to award the wife the real property located in Salem (“the Salem property”) without joining a necessary party.

With regard to the first issue, we note that the husband failed to present this argument to the trial court. Therefore, we will not consider this argument. See Nichols v. Nichols, 4 So.3d 491, 493 (Ala.Civ. App.2008); and Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

In his second argument, the husband challenges the sufficiency of the evidence to support the trial court’s determination of the amount of child support. Because the trial court made specific findings of fact in its judgment, the husband “was not required to file a postjudgment motion as to the sufficiency of the evidence in order to challenge on appeal the trial court’s findings and the sufficiency of the evidence.” C.C. v. State Dep’t of Human Res., 984 So.2d 447, 451 (Ala.Civ.App. 2007); Rule 52(b), Ala. R. Civ. P. Accordingly, even though the husband did not raise this issue in a postjudgment motion, we will address the husband’s second argument.

“‘Matters related to child support ... rest soundly within the trial court’s discretion and will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong.’ ” Volovecky v. Hoffman, 903 So.2d 844, 847 (Ala.Civ. App.2004) (quoting Jackson v. Jackson, 777 So.2d 155,158 (Ala.Civ.App.2000)).

“When the [parties’] combined adjusted gross income exceeds the uppermost limit of the child support schedule [of Rule 32, Ala. R. Jud. Admin.], the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obli-gor’s ability to pay for those needs.... To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.”

Dyas v. Dyas, 683 So.2d 971, 978-74 (Ala. Civ.App.1995).

The trial court heard evidence at trial indicating that the husband earned income of $150,000 per year — $12,500 per month. The husband presented no evidence indicating that he would be unable to pay the $1,250 monthly child-support obligation. We note, however, that the record contains no evidence regarding the “reasonable and necessary needs of the child.” Dyas, 683 So.2d at 973. In Burgett v. Burgett, 995 So.2d 907 (Ala.Civ.App. 2008), this court reversed a judgment insofar as it ordered the husband to pay $1,000 in monthly child support when the only evidence in the record establishing the child’s reasonable and necessary needs was that the mother incurred $206 per month in day-care expenses. 995 So.2d at 913-14. In the present case, the record is devoid of any evidence of the child’s reasonable and necessary needs. Just as we did in Burgett, “ ‘we reverse the portion of the judgment setting an amount of child support and remand for further proceedings that will allow the court to determine the reasonable and necessary needs of the [child].’ ” Burgett, 995 So.2d at 914 (quoting Elliott v. Elliott, 782 So.2d 303, 306 (Ala.Civ.App.1999), reversed on other grounds, 782 So.2d 308 (Ala.2000)).

The husband last argues that the trial court lacked jurisdiction to award the wife the Salem property without joining the wife’s stepfather, from whom the wife had agreed to purchase the Salem property. Rule 19(a), Ala. R. Civ. P., provides:

“A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”

The evidence at trial indicated that, at the time the parties married, the wife had already agreed to purchase the Salem property from her stepfather and had been making monthly payments to the stepfather in the amount of $350 toward that purchase. After the parties married, the wife and the husband entered into a contract, pursuant to which the husband would make the monthly payments to the wife’s stepfather and the husband, instead of the wife, would own the Salem property after the purchase price had been paid in full. In the divorce judgment, however, the trial court awarded the Salem property to the wife and ordered the wife to pay the indebtedness on the property.

Based on the facts adduced at trial, we conclude that the absence of the wife’s stepfather as a party did not affect the trial court’s ability to accord complete relief to the parties. The fact that the stepfather had not been paid in full for the property did not affect the trial court’s ability to award the wife the right to the property and the responsibility for paying the remaining indebtedness on the property. Further, nothing in the record indicates that the fact that the wife was awarded the Salem property will impair or impede the stepfather’s ability to protect his interest. In fact, the trial court’s judgment specifically provided that the wife must pay the indebtedness owed to her stepfather. The judgment had no practical effect on the stepfather’s rights with regard to the Salem property. Finally, we note that the husband does not argue that he or the wife is “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.” Rule 19(a). Therefore, we conclude that the wife’s stepfather was not an indispensable party as defined in Rule 19(a).

Based on the foregoing, we reverse that part of the trial court’s judgment determining the husband’s child-support obligation, and we remand the cause for further proceedings. We affirm the judgment in all other respects.

The wife’s request for an award of an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

PITTMAN, J., concurs in the result, without writing.

      . By order dated November 19, 2008, the Alabama Supreme Court amended Rule 32, Ala. R. Jud. Admin., including the child-support guidelines, effective January 1, 2009. By order dated February 25, 2009, the Alabama Supreme Court amended Rule 32(A)(4) and Rule 32(B)(7), Ala. R. Jud. Admin., effective March 1, 2009. Those amendments are not applicable in this case.


author: SHAW, Judge.

text:
    Raymond Wade CASTEEL v. STATE of Alabama.
    CR-06-1987.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.
    Raymond Wade Casteel, pro se.

      Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   SHAW, Judge.

Raymond Wade Casteel pleaded guilty to sexual abuse in the first degree, a violation of § 13A-6-66, Ala.Code 1975. The trial court sentenced Casteel, an habitual offender, to life imprisonment. Casteel subsequently filed a motion to withdraw his plea; that motion was denied by operation of law.

On appeal, Casteel contends that he was denied counsel during a critical stage of the proceedings, specifically, during the pendency and subsequent denial of his motion to withdraw his guilty plea, and that the trial court erred in not appointing counsel to represent him during that time despite his request that the court do so. He also contends that he is entitled to an evidentiary hearing on his motion to withdraw his plea during which he is represented by counsel. The State agrees that Casteel was denied counsel during a critical stage of the proceedings and requests that we remand this case to the trial court for further proceedings.

The record reflects that Casteel was originally indicted on February 4, 2005, for one count of burglary in the first degree, in violation of § 13A-7-5, Ala.Code 1975, and one count of rape in the first degree, in violation of § 13A-6-61, Ala.Code 1975. On June 28, 2005, Casteel appeared in court for arraignment, and the trial court determined that Casteel was indigent and appointed counsel to represent him. On October 26, 2005, pursuant to a plea agreement with the State, Casteel pleaded guilty to first-degree sexual abuse as a lesser-included offense of first-degree rape as charged in count 2 of the indictment, and the burglary charge in count 1 of the indictment was dismissed. As part of the plea agreement, Casteel waived his right to appeal his conviction and sentence and waived his indigency status for purposes of restitution.

On November 23, 2005, Casteel filed a pro se motion to withdraw his guilty plea alleging, among other things, that his guilty plea and his waiver of his right to appeal were involuntary and that his trial counsel was ineffective. Casteel specifically requested in the motion that the trial court appoint an attorney to represent him and to present his claims to the court. On December 2, 2005, apparently determining that Casteel was entitled to an evidentiary hearing on the claims asserted in his motion, the trial court scheduled a hearing on the motion for January 10, 2006, 76 days after Casteel was sentenced. There is no indication in the record that the scheduling of the hearing past the 60th day after Casteel’s sentencing was by agreement of the parties in compliance with Rule 24.4, Ala.R.Crim.P.; therefore, Casteel’s motion was deemed denied by operation of law on December 27, 2005. On December 8, 2005, Casteel’s trial counsel filed a motion to withdraw from representing Casteel, which the trial court granted on December 13, 2005. On January 10, 2006, the trial court conducted a hearing on Casteel’s motion to withdraw his guilty plea; Casteel was not represented by counsel at the hearing. The trial court entered an order on January 23, 2006, purporting to deny Casteel’s motion to withdraw his guilty plea.

On January 31, 2006, Casteel filed an objection to the trial court’s order denying his motion to withdraw his guilty plea, alleging, among other things, that the trial court had erred when it failed to inquire whether he wanted appointed counsel during the hearing on the motion to withdraw his guilty plea and when it required him to represent himself during the hearing on the motion. The trial court denied Cas-teel’s objection on February 17, 2006. Casteel filed a notice of appeal on March 3, 2006, and a written waiver of the right to appellate counsel on March 22, 2006. On March 22, 2006, Casteel filed a motion for leave to proceed in forma pauperis on appeal; the trial court granted the motion, finding Casteel to be indigent, on April 3, 2006. On April 18, 2006, this Court dismissed Casteel’s appeal as being untimely and issued a certificate of judgment.

On October 20, 2006, Casteel filed a Rule 32, Ala.R.Crim.P., petition for post-conviction relief, alleging that he had failed to file a timely notice of appeal through no fault of his own. On December 6, 2006, the trial court issued an order finding Cas-teel to be indigent and allowing him to proceed with his petition in forma pauper-is. On December 28, 2006, the trial court entered a written order denying Casteel’s petition. Casteel filed a written notice of appeal on January 26, 2007. On June 29, 2007, this Court reversed the trial court’s denial of Casteel’s petition and remanded the case for the trial court to grant Casteel an out-of-time appeal, holding that Casteel was denied his right to counsel because he was not represented by counsel and did not voluntarily waive his right to counsel during a critical stage of the proceedings, specifically “during a portion of the time between his sentencing and his first appeal” and, therefore, that he was entitled to an out-of-time appeal. Casteel v. State, 976 So.2d 505, 508 (Ala.Crim.App.2007). On July 17, 2007, Casteel filed a motion with the trial court requesting that it comply with this Court’s June 29, 2007, opinion and issue an order granting him leave to file an out-of-time appeal. On July 25, 2007, the trial court issued an order granting Casteel leave to file this out-of-time appeal, and Casteel filed a notice of appeal on August 7, 2007.

Initially, we point out that the trial court lost jurisdiction after Casteel’s motion to withdraw his guilty plea was denied by operation of law on December 27, 2005, and every action taken by the trial court thereafter, including the January 10, 2006, hearing on the motion and the trial court’s January 23, 2006, order purporting to deny the motion was “ ‘a nullity and ... of no force and effect.’ ” Edgar v. State, 646 So.2d 681, 683 (Ala.Crim.App.1993), rev’d, 646 So.2d 683 (Ala.1994) (pertinent reasoning approved), quoting Box v. Box, 536 So.2d 83, 83 (Ala.Civ.App.1988). Thus, “this Court can consider neither the court’s order nor anything that occurred at the hearing.” Minor v. State, 914 So.2d 372, 402 (Ala.Crim.App.2004). See also Finney v. State, 860 So.2d 367 (Ala.Crim. App.2002), and Rogers v. State, 819 So.2d 643 (Ala.Crim.App.2001).

That being said, this Court has already held in Casteel, supra, that Casteel was denied counsel “during a portion of the time between his sentencing and his first appeal.” 976 So.2d at 508. That “portion of the time between his sentencing and his first appeal” included the pen-dency and subsequent denial of his motion to withdraw his plea. Indeed, in Casteel, supra, this Court specifically relied on Berry v. State, 630 So.2d 127 (Aia.Crim.App. 1993), in which this Court held that “a motion to withdraw a guilty plea is a critical stage in a criminal proceeding requiring representation of counsel or a valid waiver of the right to counsel.” 630 So.2d at 129. Therefore, we agree with Casteel that he was denied counsel during a critical stage of his criminal proceeding—the pendency and denial of his motion to withdraw his plea—and that he is entitled to an evidentiary hearing on his motion at which he is represented by counsel.

Based on the foregoing, we remand this case for the trial court to appoint counsel to represent Casteel; to hold a hearing on Casteel’s motion to withdraw his guilty plea; and then to enter specific written findings of fact addressing each of the claims in Casteel’s motion. Due return shall be filed with this Court within 56 days of the date of this opinion and shall include a transcript of the evidentiary hearing, any other evidence received or relied on by the court, and the trial court’s written findings of fact.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.

      . See, e.g., Boglin v. State, 840 So.2d 926 (Ala.Crim.App.2002) (the voluntariness of a guilty plea, the voluntariness of a waiver of the right to appeal or to seek collateral review, and trial counsel’s effectiveness may be challenged on direct appeal if properly preserved, or collaterally in a Rule 32, Ala. R.Crim.P., petition, despite the presence of the waiver).

      . As noted above, by setting Casteel’s motion for a hearing originally, the trial court apparently determined that Casteel was entitled to an evidentiary hearing on his claims; the propriety of that decision is not an issue in this appeal.

      . As noted throughout this opinion, the trial court has previously found Casteel to be indigent on several occasions. There is no doubt that Casteel is indigent and entitled to have counsel appointed to represent him.

      .We pretermit discussion of Casteel's remaining issues pending the trial court's return to our remand.


author: PER CURIAM.

text:
    THE FLORIDA BAR re Michael Howard WOLF.
    No. SC08-250.
    Supreme Court of Florida.
    July 9, 2009.
    Rehearing Denied Sept. 16, 2009.
    John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Michael David Soifer, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
    Michael David Gelety, Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Michael Howard Wolf be reinstated to the practice of law in Florida. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons stated below, we reject the referee’s recommendation that Wolf be reinstated. Wolf failed to prove rehabilitation by failing to strictly comply with this Court’s suspension order, in that he engaged in the practice of law while under suspension. He has also failed to prove rehabilitation by continuing to demonstrate financial irresponsibility, the character flaw that caused or greatly contributed to the conduct that led to his suspension.

In 2006, Wolf was suspended for two years for negligently misappropriating client funds. See Fla. Bar v. Wolf, 930 So.2d 574 (Fla.2006). Prior to his suspension, Wolf practiced primarily in the area of gaming law. After being suspended, Wolf worked as a paralegal with two separate attorneys, both of whom had contacted the Bar seeking advice about the scope of the work that Wolf was allowed to undertake. Although Bar grievances were filed against Wolf with respect to his paralegal work, the Bar dismissed the complaints due to insufficient evidence.

In addition to his paralegal work, Wolf earned regular and, at times, substantial sums as a private consultant with a consulting business he created to advise arcades. Wolf advised his consulting clients on opening arcades, reported on law changes in this area, reviewed leases, and researched ordinances that would apply to new arcade sites. At one point, Wolf consulted with a representative of a state attorney’s office on the “proper interpretation” of gaming law for an attorney’s criminal client.

At the reinstatement hearing before the referee, Wolf called several witnesses, including the attorneys for whom he worked as a paralegal, a judge, friends, family, and clients, to testify as to his good reputation, remorse, and community service. The referee found that Wolf spent ten to fifteen hours a week coaching and assisting in the management of a disadvantaged children’s seasonal basketball league. Wolf also passed the ethics portion of the Bar exam and paid the Bar’s costs. The referee found that Wolf is well-liked, respected, knowledgeable, and remorseful.

However, although the referee found that Wolf learned some financial management skills while working as a paralegal, she also found that Wolfs financial situation is unstable and that he owes substantial money to the Internal Revenue Service. In fact, the referee specifically found that Wolf was “horrible at financial management” and that he failed to take a Law Office Management Assistance Service (LOMAS) course for which he enrolled. Further, Wolf allowed a check written as a direct retainer for an attorney to be written to him. He cashed checks that were made out to him but were to be used to pay for the legal services of an attorney. One check clearly noted “for legal services” on it. Another noted “legal consult” and was made out to him. He also failed to keep adequate financial records for his gaming consultation business. The referee recommends that Wolf be reinstated to the practice of law, with conditions, because he is knowledgeable, well-liked, and remorseful.

The Bar petitions for review, opposing Wolfs reinstatement. The Bar primarily argues that Wolf practiced law and handled trust funds during his suspension.

A petitioner seeking reinstatement to The Florida Bar must establish by clear and convincing evidence that he has met the criteria set forth in Rule Regulating the Florida Bar 3-7.10, “Reinstatement and Readmission Procedures,” and the decisions of this Court. See Fla. Bar re McGraw, 903 So.2d 905, 909 (Fla.2005). This Court has a wide scope of review with regard to the referee’s legal conclusions because we have the ultimate responsibility to enter the appropriate judgment. Id.

We agree with the Bar that Wolf should not be reinstated because he practiced law while under suspension and, therefore, was not in strict compliance with this Court’s suspension order. Clearly, by operation of our opinion suspending Wolf, he may not practice law until he is reinstated. See R. Regulating Fla. Bar 3-7.10(f)(3)(A) (an element of rehabilitation is “strict compliance with the specific conditions of any disciplinary, judicial, administrative, or other order”); 10-2.1(c) (“A suspended lawyer, while a member of The Florida Bar during the period of suspension as provided elsewhere in these rules, does not have the privilege of practicing law in Florida during the period of suspension.”).

The referee found that the conduct Wolf engaged in while suspended did not amount to the practice of law. We cannot agree. While the referee’s factual findings are supported, her conclusion that Wolfs actions did not constitute the practice of law is erroneous.

In State ex rel. Florida Bar v. Sperry, 140 So.2d 587, 591 (Fla.1962), vacated on other grounds, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), we defined the practice of law as follows:

We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.

(Emphasis added.)

The referee found that “defining advice as legal or business is difficult.” However, although Wolf informed his clients that he could not dispense legal advice, he was not simply identifying applicable statutes and ordinances with regard to opening arcades. In fact, Wolf testified that he would find the ordinances applicable to the jurisdiction in which an arcade was located and admittedly provided this advice based on his legal skill, which is greater than that possessed by the average citizen. Further, as stated above, Wolf gave advice on opening arcades, reported on changes in the law applicable to this area, reviewed leases, researched ordinances applicable to new arcade sites, and consulted with a representative of a state attorney’s office on the proper interpretation of gaming law for an attorney’s criminal client. Based on the definition in Sperry, trading on one’s enhanced legal skill and knowledge to advise clients on how to legally proceed with a business transaction and on changes in the law based on statutory research and legal interpretation is the province of licensed attorneys. Accordingly, the referee’s conclusion that Wolfs actions did not constitute the practice of law is erroneous and is disapproved.

The Bar also argues that Wolf should not be reinstated because he handled trust funds while under suspension. See R. Regulating Fla. Bar 3 — 6.1(d)(2) (prohibiting suspended attorneys from receiving, disbursing, or otherwise handling trust funds or property). The referee did not squarely find that Wolf handled trust funds. In one instance, the first attorney for whom Wolf worked as a paralegal directed two clients to pay to Wolf fees the attorney had earned because he owed Wolf back pay. Wolf accepted the clients’ checks. As the attorney had already earned the fees, we cannot conclude that they constituted trust funds. See R. Regulating Fla. Bar 5-l.l(a); Fla. Bar v. Riggs, 944 So.2d 167, 169 (Fla.2006) (approving referee’s conclusion that “[depositing earned fees into a trust account is a violation of the Rules Regulating Trust Accounts”). In another instance, one of Wolfs consulting clients gave Wolf checks, made payable to Wolf, so that Wolf could use the money to retain a lawyer in good standing to represent the consulting client. Wolf deposited the checks into his business account on which a lien was later placed. These funds were certainly in the nature of trust funds because they did not belong to Wolf. Wolfs poor judgment in accepting, managing, and depositing these checks, along with the fact that his financial management skills are “horrible,” demonstrates his financial irresponsibility, a disqualifying factor in reinstatement proceedings. See R. Regulating Fla. Bar 3-7.10(f)(1)(G). This factor weighs especially heavy here because this same weakness caused or contributed to the conduct that led to Wolfs suspension in the first place.

In evaluating a referee’s recommendation as to reinstatement, we will generally not second-guess the referee where the recommendation has a basis in existing case law. See Fla. Bar re Hochman, 944 So.2d 198, 200-01 (Fla.2006). However, it is ultimately the Court’s responsibility to enter an appropriate judgment as to reinstatement. See id. Because Wolf, in fact, engaged in conduct that constituted the practice of law during his suspension and he continues to be financially irresponsible, the recommendation as to reinstatement lacks a basis in existing case law and must be disapproved. See Fla. Bar re Shores, 587 So.2d 1313 (Fla.1991) (denying reinstatement of a lawyer who practiced law while under suspension and was financially irresponsible). Therefore, despite the evidence presented vouching for Wolfs character and reputation, we reject the referee’s recommendation that Wolf be reinstated. Wolf may not reapply for reinstatement until at least one year after the date of this opinion. See R. Regulating Fla. Bar 3-7.10(k).

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Michael Howard Wolf in the amount of $3,508.14, for which sum let execution issue.

It is so ordered.

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

      . The Bar also argues that Wolf failed to fully disclose his occupations in his petition for reinstatement and that his failure to notify two clients and a judge of his suspension constitutes disqualifying conduct to reinstatement. Because our decisions with regard to the other issues raised by the Bar preclude Wolfs reinstatement, we need not and do not address these issues.

      . We have not been presented with the question and do not address whether respondent’s practice of law while suspended constitutes a violation of rules that may subject him to additional sanctions.


text:
    James Delano WINKLES, Appellant, v. STATE of Florida, Appellee.
    No. SC08-941.
    Supreme Court of Florida.
    Sept. 3, 2009.
    Rehearing Denied Oct. 27, 2009.

      Bill Jennings, Capital Collateral Regional Counsel, Richard E. Kiley, James Viggi-ano, Jr., and Ali A. Shakoor, Staff Attorneys, CCRC Middle Region, Tampa, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, Carol M. Dittmar and Katherine M. Diamandis, Assistant Attorneys General, Tampa, FL, for Appellee.
   PER CURIAM.

James Delano Winkles appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentences of death filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the postconviction court’s order.

I. BACKGROUND

While serving a life sentence for another crime, Winkles confessed to killing Elizabeth Graham and Margo Delimon. In Winkles’ direct appeal we explained the factual circumstances of the murders and confessions as follows:

This case originates from two abductions that occurred more than twenty years ago. First, on September 9, 1980, having identified an employee of a dog grooming business as his victim, appellant arranged as a ruse for a groomer to come to a vacant house. When a different groomer arrived, the 19-year-old Elizabeth Graham, appellant [nevertheless proceeded with] his plan. Abducting her at gunpoint, Winkles handcuffed, gagged, and blindfolded her, and put her in his vehicle. He drove Graham to his grandmother’s house, where he instilled fear in her by handcuffing her hands and feet and firing several .25 caliber rounds into the floor. He raped Elizabeth multiple times over several days. Finally, after he realized that she knew her location (from his grandmother’s magazines), he decided he had to kill her. He drugged her, and when she fell asleep, opened an umbrella over her head to catch the spatter and shot her three times in the head. Winkles burned her clothes and buried her somewhere in Pinellas County. He returned two weeks later, however, fearing someone would discover and identify the body. He removed her head and took it to the Steinhatchee River (in Lafayette County), where he removed the teeth and the lower mandible. Winkles ran water through the skull to be sure no spent bullets remained inside and threw the skull into the river. The skull was discovered in July 1981, and subsequent DNA testing revealed the skull to be Elizabeth Graham’s. For many years, Elizabeth’s murder remained unsolved.
About a year later, in October 1981, appellant chose Margo Delimon for abduction when he visited a model home where Delimon was the realtor.... Margo agreed to see some property with appellant. He instead abducted her, handcuffing her and taking her to a vacant house next door to his grandmother’s. As in the earlier case, he raped the victim repeatedly over the next several days. On the morning of the fourth day, he realized he had to kill her because she could identify him and the house. He killed her with an overdose of sleeping pills, burned her clothes, and buried her in Pinellas County. About two weeks later, he moved the body to Citrus County. A week after that he dug up her head, removed the teeth, and deposited the skull in Hernando County near an area where his family camped.
The murders of Graham and Delimon remained unsolved until 1998 when appellant, a suspect in the cases then serving a prison sentence, contacted authorities claiming to have information. Stating that he was having nightmares about the murders, over the ensuing months he confessed in detail to kidnapping and murdering the two women. He also provided specific information about the women’s personal lives and the location and condition of the victims’ remains. He took detectives to the exact location where Delimon’s body had been found (Delimon’s skull previously had been found exactly where appellant said he disposed of it). Winkles also gave several detailed, videotaped interviews about the murders to a local news channel. Finally, on March 25, 1999, appellant was indicted for the premeditated murders of both women.

Winkles v. State, 894 So.2d 842, 843-44 (Fla.2005) (footnote omitted).

Winkles pleaded guilty to two counts of first-degree murder and waived his right to a jury for the penalty phase. After the State and the defense presented penalty-phase evidence, the circuit court concluded that the aggravating circumstances far outweighed the mitigating circumstances and sentenced Winkles to death on both counts. For each murder, the sentencing court found four aggravating circumstances, each assigned great weight. The sentencing court also found several non-statutory mitigating circumstances but no statutory mitigation.

On direct appeal, Winkles argued that Florida’s death penalty statute was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court rejected Winkles’ challenges because the prior violent felony aggravating factor was present in his case. Winkles, 894 So.2d at 846-47. Based on its review of the record, this Court further held that the sentencing court properly accepted Winkles’ knowing and voluntary plea and that his death sentences were proportionate under Florida law. Id. at 847-48. Thus, we affirmed the convictions and sentences.

In September 2006, Winkles filed a motion for postconviction relief, which he later amended. The motion raised four claims. The postconviction court conducted an evidentiary hearing and, after considering the evidence presented, denied the motion. In this appeal, Winkles challenges the postconviction court’s denial of his two claims of ineffective assistance of counsel. Winkles does not appeal the denial of his postconviction claims that execution by lethal injection constitutes cruel and unusual punishment and that he may be incompetent at the time of his execution.

II. ANALYSIS

Winkles argues that the postconviction court should have determined that trial counsel provided ineffective assistance by (A) advising Winkles to plead guilty and to waive a penalty-phase jury in the hope that if he were sentenced to death, the sentences would be reversed pursuant to Ring; and (B) failing to present a mental health expert and Winkles’ uncle, James C. Winkles (J.C.), as penalty-phase witnesses.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995). For the second prong, the reviewing court must determine whether there is a reasonable probability that but for trial counsel’s deficiency, the result of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. This Court employs a mixed standard of review, deferring to the postconviction court’s factual findings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

A. Guilty Plea and Waiver of Penalty-Phase Jury

Winkles argues that the postconviction court erred in denying his claim that trial counsel provided ineffective assistance during the guilt and penalty phases when he advised Winkles to plead guilty and to waive a penalty-phase jury in the hope that if he were sentenced to death, the sentences would be reversed pursuant to Ring.

Winkles’ guilt-phase argument is insufficiently pleaded and without merit. A defendant challenging trial counsel’s actions regarding a plea “establishes Strickland’s prejudice prong by demonstrating a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.2004). Winkles did not assert in his postconviction motion that he would not have pleaded guilty but for counsel’s advice about Ring. Similarly, Winkles did not testify during the evidentiary hearing that he would not have pleaded guilty but for counsel’s advice. Thus, he did not establish prejudice with regard to the guilt phase.

Winkles’ argument that trial counsel was ineffective for advising Winkles to waive a penalty-phase jury based on the anticipated effect of Ring is likewise without merit. “A defendant may waive the advisory jury in the penalty phase of a capital case, provided the waiver is voluntary and intelligent.” Grim v. State, 971 So.2d 85, 101 (Fla.2007). Winkles did not establish that he was induced to waive his penalty-phase jury by trial counsel’s advice about Ring. Rather, competent, substantial evidence supports the postconviction court’s finding that the defense made a reasonable strategic decision to waive a penalty-phase jury based on the belief that the sentencing judge would be more receptive to the available mitigation than a jury would be.

During the evidentiary hearing, attorney Bjorn Brunvand, who was Winkles’ counsel at trial, testified that at the time of trial, he believed that the strongest mitigation the defense could offer was that Winkles cooperated with law enforcement officers and helped solve two cold cases. Brun-vand agreed with the State attorney’s assertion during cross-examination that cooperation with law enforcement was “a lawyer issue, a legal issue, a judge thing, where a jury may not give it that much weight.” Attorney Brunvand also agreed that it was fair to say that a jury hearing the disturbing facts of this case “might take that a little more to heart than a judge who’s been involved in the criminal justice system for years, [and who] has pretty much seen it all and heard it all.” Brunvand testified that he discussed this issue with Winkles and that Winkles made the final decision to waive the penalty-phase jury.

Winkles testified at the evidentiary hearing that the process in which a jury would hear the penalty phase and make a recommendation to the judge was explained to him. Winkles also testified that his attorneys told him that the sentencing judge twice had said that Winkles’ assistance in solving the cold cases “ought to be worth something.” When the State asked Winkles if the potential mitigating factor of his cooperation was “a legal thing that a judge would probably take more into account and give more weight than a jury, especially a woman who sits here and hears you say that all women are whores,” Winkles answered “most probably.”

Given the egregious facts of these murders and the sentencing judge’s comments indicating that he would find Winkles’ assistance in resolving the cold cases to be mitigating, trial counsel’s decision to present potentially mitigating evidence to the sentencing judge alone was within the norms of professional conduct.

We also conclude that Winkles has failed to demonstrate prejudice on this point regarding the penalty phase. Winkles argues that he was prejudiced by counsel’s advice because his waiver may have precluded consideration of his Ring claims on appeal. The record refutes this argument. On direct appeal, this Court explained that trial attorney Brunvand filed a motion raising claims pursuant to the anticipated ruling in Ring and concluded that defense counsel preserved the issues for appeal. Winkles, 894 So.2d at 844. This Court considered Winkles’ Ring claims on the merits without finding a waiver or procedural bar. Our decision turned on the presence of the prior violent felony conviction aggravating factor, not whether Winkles was sentenced with a recommendation from a jury. Id. at 845-47. Any misadvice by trial counsel did not affect Winkles’ appellate claims.

Finally, to the extent that Winkles argues more generally that he was prejudiced by trial counsel’s advice because he was denied the opportunity to present potentially mitigating evidence to a jury, his argument is insufficiently pleaded. Winkles did not explain in his postconviction motion or on appeal how conducting the penalty phase before a jury would have affected his sentences.

B. Penalty-Phase Witnesses

1. Mental Health Expert

Winkles argues that the postconviction court erred in denying his claim that reasonable trial counsel would have had Winkles evaluated by a mental health expert and would have presented the expert during the penalty phase. Winkles asserts that a mental health expert could have testified about Winkles’ mental health and alleged history of sexual abuse. The postconviction court denied this claim, determining that trial counsel made a reasonable strategic decision not to call a mental health expert during the penalty phase after consulting with several experts. We conclude that the postconviction court did not err in denying this claim.

This Court has held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). In this case, competent, substantial evidence supports the conclusion that defense counsel consulted three mental health experts and made a strategic decision not to call an expert to testify. This strategic decision was reasonable, and accordingly, Winkles has not demonstrated deficiency.

Attorney Brunvand’s testimony established that the defense consulted three experts about Winkles’ mental health. Brunvand testified that before he took over as penalty-phase counsel, prior counsel had Dr. Jerry Brittain evaluate Winkles and prepare reports. Attorney Brun-vand stated that he reviewed the reports and spoke with Dr. Brittain. Brunvand stated that he personally retained Dr. Sidney Merin, who reviewed Dr. Brittain’s findings, and that Dr. McCay Vernon, a retired psychologist, evaluated Winkles on a pro bono basis. Brunvand explained that while the defense did not retain Dr. Vernon for the purpose of testifying at trial, Brunvand consulted with Dr. Vernon to hear his professional opinion about Winkles’ mental health.

Attorney Brunvand further testified that based on his consultations with these experts, he advised Winkles against presenting evidence about Winkles’ mental health during the penalty phase. When asked about Dr. Brittain, Brunvand explained that “what the psychologist had to say really wasn’t helpful, and it was really inconsistent with our plea that, you know, Mr. Winkles had solved ... two crimes that would never have been solved but for him coming forward.” When the State asked Brunvand if he felt that “the medical testimony could prove to be more damaging than beneficial,” he agreed. Attorney Brunvand testified that in “general terms,” Dr. Merin agreed that mental health testimony would not be beneficial to Winkles.

Attorney Brunvand also testified that he made a strategic decision not to introduce evidence that Winkles was allegedly sexually abused by his grandmother and his aunts. Brunvand stated that at the time of trial, he knew Winkles alleged that his grandmother and his aunts sexually abused him. Brunvand then explained that he believed that he would have had to call Winkles or present excerpts of taped interviews where Winkles talked about the abuse to present the sexual abuse as potential mitigation. Brunvand further explained that he did not want to present Winkles’ live or taped statements about the sexual abuse because “it just didn’t come across well.” Brunvand testified that Winkles spoke of the sexual abuse “as if he was proud” and as if “it was a good thing and not a bad thing, even in retrospect.” Attorney Brunvand agreed with the State’s characterization that there was some “[pjretty shocking stuff’ on the taped interviews with television reporter Marcia Crawley. Brunvand also agreed with the statement that “the State wouldn’t have been able to play those things because they would have been prejudicial and irrelevant, unless you were intending to go into those.” Finally, while attorney Brunvand did not testify directly about the possibility of a mental health expert presenting Winkles’ history of sexual abuse, when asked if it would have been prudent for the defense to offer evidence of “how [Winkles] got the way he was,” Brunvand answered that “to say that ... he was sexually abused and that’s consistent with him being a serial killer, I don’t know that that really would help me in persuading the Court that he should not get the death penalty.”

This Court previously has found no deficiency where trial counsel made a strategic decision not to present expert witness testimony after investigating and concluding that the testimony would be more harmful than helpful. See, e.g., Bowles v. State, 979 So.2d 182, 188 (Fla. 2008) (holding that counsel made reasonable strategic decision not to call mental health expert as witness where expert would have testified that defendant was only mildly impaired, impulsive, and dangerous); Pace v. State, 854 So.2d 167,173-74 (Fla.2003) (holding that counsel made reasonable strategic decision not to present evidence of drug use where counsel consulted expert witnesses and witnesses gave unfavorable reports). This Court has also determined that “[t]rial counsel is not deficient where he makes a reasonable strategic decision to not present mental mitigation testimony during the penalty phase because it could open the door to other damaging testimony.” Griffin v. State, 866 So.2d 1, 9 (Fla.2003) (concluding there was no deficiency where counsel chose not to present witness who would have testified about defendant’s penchant for stealing automobiles and his prior difficulties with murder victim). As this Court stated in Reed v. State, 875 So.2d 415, 437 (Fla.2004), “[a]n ineffective assistance claim does not arise from the failure to present mitigation evidence where that evidence presents a double-edged sword.”

In this case, trial counsel reasonably feared that testimony from a mental health expert would be more harmful than helpful. Particularly, trial counsel reasonably feared that raising the topic of sexual abuse or the psychological impact of that abuse could have opened the door to admission as rebuttal evidence of Winkles’ taped statements discussing the abuse. Accordingly, Winkles has not demonstrated deficiency.

Even if this Court were to find that trial counsel was deficient, which we do not, Winkles has not demonstrated prejudice. The testimony presented by Winkles’ experts — Dr. Henry L. Dee and Dr. Michael Scott Maher— during the evidentiary hearing does not undermine confidence in Winkles’ sentences.

Dr. Dee, a neuropsychologist, testified that Winkles’ mother died when Winkles was around three months old and that he was raised by his paternal grandmother and aunts. Dr. Dee explained that Winkles claimed to have begun having consensual sexual activity with his grandmother and aunts as early as age nine and that some of those relationships did not end until Winkles was thirty-two or thirty-three. Dr. Dee stated that Winkles’ grandmother did not discipline Winkles, which was typical in a situation where a child was being sexually abused, and that Winkles stated that his grandmother once cut his hand with a knife while warning him not to disclose the sexual abuse. Dr. Dee opined that Winkles’ account of sexual abuse generally “rings true.” In addition, Dr. Dee testified about Winkles’ lack of respect for women. He explained that Winkles stated that he thinks of all women as “promiscuous in one fashion or another” and as having rape fantasies.

Dr. Dee testified that Winkles’ history of sexual abuse helped explain “how this perversion developed” and would therefore be relevant to the murders. However, Dr. Dee added that when talking about the sexual abuse, Winkles “gave you the feeling that he accepted [the abuse] and didn’t make much of it.” Overall, Dr. Dee opined that there was no statutory mitigation in this case but the “extensive sexual abuse and exploitation” Winkles experienced as a child could have been presented during the penalty phase as nonstatutory mitigation.

Dr. Maher, a psychiatrist, testified that Winkles described his childhood as living in poverty and lacking any discipline. Dr. Maher also testified that, according to Winkles, when he was about seven or nine, Winkles’ grandmother instructed him in performing oral sex on her and that she continued to sexually abuse him throughout his childhood and adolescence. Dr. Maher stated that Winkles claimed his grandmother teased him about the size of his penis and told Dr. Maher that he was raised “in a way that introduced him to the idea that sexual exploitation was acceptable and even to some extent expected and desirable.” Dr. Maher testified that Winkles admitted to attacking many women between 1967 and 1981 and claimed that his grandmother acted as an accomplice in the murders.

Like Dr. Dee, Dr. Maher opined that no statutory mitigation was present in this case but that Winkles’ background, history of sexual abuse, and pattern of sexual perversion potentially could be considered nonstatutory mitigation. Dr. Maher explained that incestuous abuse “tends to be a breeding ground for sadomasochistic personality traits” and that a “pattern of sexual exploitation and abuse interferes tremendously with all kinds of relationships.” He characterized Winkles as having a sexual perversion disorder primarily caused by Winkles’ upbringing. Dr. Maher testified that Winkles had a “pattern of sexualized sadism; that is, experiencing urges and desires that he sought in a sexually gratifying way that were related to humiliating, demeaning, and hurting a woman in the context of a sexual interaction.” Dr. Maher opined that Winkles committed the murders “[b]ecause he has this terrible pattern of urges and desires and he ... does not have the moral conscience to inhibit them sufficiently.” Despite suggesting that Winkles’ sexual perversion disorder could be considered nonstatutory mitigation, Dr. Maher clarified that he believed Winkles did have the capacity to control his behavior at the time of the murders.

Testimony like that given by Dr. Dee and Dr. Maher, if presented at the penalty phase, could have supported a finding of the proposed mitigating factors that Winkles’ mother died when he was very young and that he suffered sexual abuse. In light of such testimony, the sentencing court also could have considered whether a diagnosis of sexual perversion disorder was mitigating. However, as a whole, the testimony offered by Dr. Dee and Dr. Maher does not rise to the level of unpre-sented mitigation previously held to be prejudicial. Cf. State v. Larzelere, 979 So.2d 195, 206 (Fla.2008) (holding that defendant was prejudiced where, after inadequate investigation, trial counsel failed to present evidence of sexual and physical abuse and expert opinion that statutory mental health mitigating factors were applicable as a result of defendant’s personality disorders, post-traumatic stress disorder, and obsessive compulsive disorder); Hildwin v. Dugger, 654 So.2d 107, 109-10 (Fla.1995) (holding that defendant was prejudiced where trial counsel failed to present evidence of defendant’s psychiatric hospitalizations and suicide attempts); Phillips v. State, 608 So.2d 778, 782-83 (Fla.1992) (holding that defendant was prejudiced where trial counsel admitted doing “virtually no preparation” for penalty phase and failed to present evidence of borderline intelligence, schizoid personality, head injury, and lifelong deficits in adaptive functioning).

To the contrary, Winkles’ case is more analogous to Willacy v. State, 967 So.2d 131,144 (Fla.2007). In Willacy, trial counsel decided to focus on the positive aspects of the defendant’s life rather than on the defendant’s mental health issues where some of those mental health issues, such as antisocial personality disorder, tended to be looked upon with disfavor by jurors. This Court concluded that because the previously unpresented mitigation evidence would likely have been more harmful than helpful, the defendant was not prejudiced by trial counsel’s decision. Similarly, here the expert witnesses’ testimony that no statutory mitigation was applicable and that Winkles could have controlled his sadistic urges undercuts Winkles’ claim that counsel’s failure to present expert testimony undermines confidence in his sentences. While the expert testimony helps explain some of Winkles’ acts against women, it also highlights the intentional, malicious, and calculated nature of his crimes.

In summary, the sentencing court found a substantial amount of aggravation applicable to the murders in this case: (1) Winkles had a prior conviction of a capital felony or a violent felony (contemporaneous murder convictions and felony convictions predating the murder convictions); (2) the murder was committed in the course of a kidnapping; (3) the murder was committed to avoid or prevent lawful arrest; and (4) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). Given this substantial aggravation and the minimal mitigating value of the proposed mitigating evidence, there is no reasonable probability that the balance of aggravating and mitigating circumstances would have been different had evidence of Winkles’ mental health and history of sexual abuse been presented.

2. J.C. Winkles

Finally, Winkles argues that trial counsel was ineffective for failing to locate Winkles’ uncle J.C. as a penalty-phase witness. The postconviction court denied this claim, finding that Winkles failed to demonstrate that counsel should have known that J.C. was available as a witness or that Winkles was prejudiced. We conclude that because Winkles has not demonstrated prejudice, the postconviction court did not err in denying this claim.

At the evidentiary hearing, J.C. testified about Winkles’ childhood. He explained that Winkles’ mother died shortly after his birth and that J.C.’s mother raised Winkles. J.C. testified that his family was very poor when he was a child. In an affidavit admitted at the evidentiary hearing, J.C. asserted that Winkles lived in the same impoverished conditions in which he was raised.

J.C. explained that although he was no longer living with his mother once Winkles was born, he came to visit once or twice a year. J.C. testified that on at least one occasion during a visit when Winkles was about five years old, J.C. heard family members, including his mother, tease Winkles about his small penis. J.C. did not confirm Winkles’ other claims about sexual abuse by his grandmother and aunts. When asked if he had knowledge of any allegations of child abuse or incest when he was growing up, J.C. stated that he did not. J.C. agreed that he had no knowledge of whether Winkles was sexually abused. He stated that he never saw any signs of violence between his mother, Winkles’ grandmother, and Winkles, and that he had no knowledge of the instance in which his mother allegedly cut Winkles’ hand.

J.C. also described his mother during the evidentiary hearing. He stated that “[b]y most people’s standards, she was an immoral person.” He testified that his mother “had a number of lovers,” served time in federal prison for bootlegging, and considered “[p]etit thievery,” such as stealing coal in the winter, to be acceptable. J.C. stated that his mother never disciplined her children and did not encourage education. J.C. explained:

I think probably [Winkles] was raised under about the same conditions that I was raised, and there — there were positives and negatives. My mama would have done anything for any of her children or grandchildren. She loved us all.
But she was — in retrospect, I can see that she was not a good mother. She did not enforce discipline. We were encouraged to do things that were unlawful, like stealing, and anything that — and sexual morals were not known in our house. There was a lot of promiscuity, and as soon as my sisters were old enough, they got into the same situation, both of them.

He concluded, “I don’t think mama ever changed. She ... lived to be 88, and she was the same person.”

As discussed above, four aggravating factors were found in this case. Given this aggravation, J.C.’s testimony that Winkles grew up in impoverished conditions in a household lacking discipline and role models does not undermine confidence in the sentences.

III. CONCLUSION

For the reasons stated above, we affirm the circuit court’s denial of Winkles’ motion for postconviction relief.

It is so ordered.

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


author: GERSTEN, J. COPE, J.

text:
    Hernando GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1326.
    District Court of Appeal of Florida, Third District.
    July 1, 2009.
    Rehearing and Rehearing En Banc Denied Dec. 2, 2009.
    Carlos A. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Erin Kinney, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and CORTIÑAS, JJ.
   ON MOTION FOR REHEARING

GERSTEN, J.

On consideration of the State’s motion for rehearing, rehearing en banc, certified conflict, and/or certified question, the Court grants the motion for rehearing, withdraws its previous opinion, and substitutes the following opinion:

Hernando Garcia (“the defendant”) appeals an order denying a motion for post-conviction relief under Florida Rule of Criminal Procedure 8.850. We affirm.

The State charged the defendant and a codefendant with armed robbery. The State contended that the defendant drove the codefendant to a residence where a group of people were standing outside. The codefendant got out of the car and proceeded to beat up and rob the victim. In exchange for cooperating in his codefen-dant’s case, the State offered the defendant a plea bargain of five years in prison followed by five years probation.

Defense counsel believed that the State’s case against the defendant was weak. Therefore, he advised the defendant to reject the plea. The defendant’s case went to trial where defense counsel relied on misidentification and/or that the codefen-dant acted independently as defenses. The jury returned a guilty verdict, and the trial judge sentenced the defendant to life in prison.

Thereafter, the defendant filed this Rule 3.850 motion for postconviction relief. The defendant alleged ineffective assistance of counsel on various grounds, only two of which warrant discussion. In ground two, the defendant described counsel’s alleged ineffectiveness as follows:

Counsel advised the Defendant that he should not take the plea, because state did not have a case and the case would not go to the jury. On the 1st day of trial, counsel told the Defendant’s [niece, mother, and girlfriend] that he would have the Defendant home tonight....
Counsel told the Defendant not to take the deal, because he had never lost a case in Peter Lopez’s Courtroom. “I am three and one, the one lost is for a guy who took a deal.” Had counsel not told the Defendant he could beat this prosecutor and that he had beat him so many times before, the defendant would have taken the deal offered by the State, instead of going to trial.

Additionally, the defendant claimed in ground three that counsel was ineffective in advising him not to testify. According to the defendant, his counsel told him that:

[The jury] will know that you have been in trouble before. This is not going to look good, because we are trying to make them understand you were not part of this crime. We want them to realize that you were just in the wrong place at the wrong time and that you did not know what was going to happen.

The trial court denied the Rule 3.850 motion, and the defendant appealed.

We agree with the trial court that the defendant’s motion was insufficient to allege a claim of ineffective assistance of counsel. Turning first to ground two, the Florida Supreme Court recently clarified the correct standard for reviewing a claim of ineffective assistance of counsel based on counsel’s advice to reject a plea offer. Morgan v. State, 991 So.2d 835 (Fla.2008).

The Morgan court concluded that a claim of ineffective assistance of counsel can be based on advice from counsel to reject a plea offer. However, the Supreme Court determined that Morgan’s claim was insufficient because the defendant did not specify the deficiency or deficiencies which made his counsel’s advice to reject the plea unreasonable under the circumstances. The court stated:

Morgan does not contend that his counsel failed to communicate a plea offer or misinformed him concerning the penalties. Morgan has failed to allege any deficient performance on the part of counsel. The mere fact that Morgan did not prevail at trial does not translate into misadvice. Some specific deficiency-on the part of counsel must be alleged. There is no allegation that counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case or that counsel had not investigated or otherwise was not familiar with the case. Therefore, Morgan is not entitled to an evidentiary hearing because his claim is legally insufficient.

991 So.2d at 841.

Morgan did not change the standard for determining whether an eviden-tiary hearing is required. “[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motions, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” 991 So.2d at 840-41 (quoting Hannon v. State, 941 So.2d 1109,1138 (Fla.2006)).

Thus, where, as here, the defendant argues that counsel’s advice to reject the plea was wrong simply because he was found guilty, the trial court may summarily dismiss the defendant’s motion. In such circumstances, the motion, on its face, is legally insufficient.

Here, the record is clear that there was no specific deficiency in counsel’s performance which made his advice to take a plea unreasonable. Neither the defendant’s motion nor his witnesses’ affidavits state that counsel failed to fully explain the terms of the plea or the penalties defendant faced. There is also no suggestion that counsel advised the defendant to reject the plea without first preparing and knowing the facts and issues in the case. On the contrary, the record is clear that defense counsel’s advice to reject the plea was based on his quite reasonable belief that the State’s case was weak, and that the best strategy was to argue misidentifi-cation and/or that the codefendant acted independently.

Turning next to ground three of the defendant’s motion, the record shows that the decision not to testify was a mutually agreed-upon trial strategy directly related to the independent action defense. Cross-examination of the defendant’s criminal past would have been limited to the number of the defendant’s prior convictions. See Johnson v. State, 923 So.2d 541 (Fla. 3d DCA 2006). However, even this limited information would have tarnished defense counsel’s portrayal of the defendant as an unsuspecting driver unwillingly drawn into his passenger’s criminal conduct. Thus, defense counsel’s strategic decision to advise the defendant not to testify was not unreasonable.

Further, the record is clear that the defendant was aware that he was the final decision-maker on whether to testify. The following exchange occurred when the trial court questioned the defendant on his decision:

THE COURT: You have the absolute right not to become a witness, you understand?
THE DEFENDANT: Yes.
THE COURT: You had an opportunity to discuss this issue with your attorney? THE DEFENDANT: Yes.
THE COURT: Are you satisfied with his advice and counsel on this issue?
THE DEFENDANT: Yes.
THE COURT: Regardless of his advice it’s your decision and your decision alone not to testify, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: After all, it is your case, is that correct?
THE DEFENDANT: Yes, sir.

(Emphasis added.) This exchange demonstrates that defendant was satisfied with his defense counsel’s strategy. A trial counsel’s reasonable strategic decisions should not be second-guessed, particularly when the client agrees to the strategy. See Jones v. State, 845 So.2d 55, 65 (Fla. 2003).

In conclusion, counsel’s advice to reject the plea here was based on a reasonable impression of the State’s case, and the defendant did not allege any specific deficiency in counsel’s performance. Additionally, counsel’s advice not to testify was an agreed-upon trial strategy, which should not be second-guessed. Therefore, the trial court properly denied the defendant’s Rule 3.850 motion as legally insufficient.

Accordingly, the order denying the motion is affirmed.

Affirmed.

COPE, J.

(concurring in part, dissenting in part).

We should reverse on ground three. I concur that, in light of Morgan v. State, 991 So.2d 835 (Fla.2008), ground two is legally insufficient, and concur in affirming on the remaining issues.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Defendant-appellant Hernando Garcia was charged with one count of armed robbery. He was alleged to be the driver of a car from which the passenger jumped and robbed the victim of a gold chain. The defendant was convicted and sentenced to life imprisonment.

Prior to trial, the State offered the defendant a plea agreement of five years as a habitual offender followed by five years of probation if he would give a statement and testify against the codefendant. In ground two of the sworn motion, the defendant alleges that his counsel told him he should turn down the plea offer because the defense was going to win the case. Attached to the sworn motion are affidavits from three of the defendant’s relatives who say that they were present at these discussions with the defense lawyer and that this is what the defense lawyer said.

The defendant alleges that his trial counsel was ineffective for advising him to reject the plea offer. The trial transcript shows that just prior to trial, the trial court inquired about whether a plea offer had been conveyed. The court confirmed that the defendant understood he was exposed to receiving a mandatory life sentence, if convicted. The State construed the defendant’s Rule 3.850 motion as claiming that counsel failed to communicate the plea offer to the defendant. The State argued that since the defendant was aware of the plea offer and the maximum sentence, it follows that there can be no claim of ineffective assistance of trial counsel in advising the defendant to reject the plea. The trial court denied the Rule 3.850 motion, and the defendant has appealed.

The Florida Supreme Court has recently held that “a claim of ineffective assistance of counsel can be based on counsel’s advice to reject a favorable plea offer.” Morgan v. State, 991 So.2d 835, 841 (Fla.2008). The court had previously announced a test to be applied where counsel had failed to inform a defendant of a plea offer. Cottle v. State, 738 So.2d 963, 967 (Fla.1999). The pleading requirement where counsel has failed to convey a plea offer is as follows:

The defendant must allege and prove that (1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed.

Morgan, 991 So.2d at 839-40 (citing Cottle, 733 So.2d at 967).

The Morgan court held that the Cotile three-part test will also apply to cases where the defendant alleges “ineffective assistance of counsel for advising a defendant to reject a plea offer.” Morgan, 991 So.2d at 839. This means that in element (1), instead of alleging that counsel failed to convey a plea offer, the defendant must allege that counsel rendered ineffective assistance in advising the defendant to reject the plea offer. The usual test for ineffective assistance of counsel, Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is applicable.

Important for present purposes, the Court made clear that the defendant’s motion must allege a specific deficiency or deficiencies on the part of counsel in giving the advice to reject the plea. The Court’s discussion of Morgan’s claim illustrates the point. The Court said:

On this issue we find Morgan has not submitted a facially sufficient claim of ineffective assistance based on counsel’s advice to reject a plea offer. In his motion for postconviction relief, Morgan alleged that counsel informed him of a plea offer from the State. He further alleged that counsel advised him that she felt she could win at trial or get a reduced offense. Counsel urged him to reject the plea offer, and he did. Lastly, Morgan alleged that he received a greater sentence after trial, and that he would have accepted the plea had he known that counsel would not win. Morgan does not contend that his counsel failed to communicate a plea offer or misinformed him concerning the penalties. Morgan has failed to allege any deficient performance on the part of counsel. The mere fact that Morgan did not prevail at trial does not translate into misadvice. Some specific deficiency on the part of counsel must be alleged. There is no allegation that counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case or that counsel had not investigated or otherwise was not familiar with the case. Therefore, Morgan is not entitled to an evidentiary hearing because his claim is legally insufficient. See Hannon, 941 So.2d at 1138. The trial court properly summarily denied postconviction relief. While we find af-firmance of the trial court’s denial was correct, we do not agree with the Fourth District’s implicit reasoning that this type of claim cannot be the basis for ineffective assistance of counsel.

Morgan, 991 So.2d at 841 (emphasis added).

The same logic applies here. The defendant has not addressed the evidence in this case with any specificity, nor has the defendant addressed why “counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case.... ” Id. In ground two the defendant does not allege that “counsel had not investigated or otherwise was not familiar with the case.” Id. I therefore concur in affirming the denial of relief. Because the Morgan Court has just clarified the legal standard, it would be my view that after this appeal becomes final, the defendant should be allowed to file an amended Rule 3.850 motion to comply with Morgan, if he has a good-faith basis to do so. See Spera v. State, 971 So.2d 754 (Fla.2007).

We should reverse for a hearing on ground three. The defendant alleges that counsel misadvised him that if he testified at trial, the jury would hear the exact crimes that the defendant had previously been convicted of and would also hear the fact that the defendant had recently been released from prison. The majority opinion omits the key portion of the defendant’s claim.

The relevant part of ground three states:

[Counsel] told him that his priors would be useable on the stand. He stated, “that if you take the stand the state is going to come at you, asking you questions such as have you ever been to prison before and why? How long has it been since you have been to prison and what did you do to go to prison? Then the jury is going to know what you have been to prison for and they will know that you have been in trouble before. This is not going to look good....”

Mot. at 9.

The defendant went on to allege that the charged crime was the independent act of the passenger in his car, Arnold Cleveland. Cleveland has submitted an affidavit so stating. The defendant says that he is innocent of the charge and would have so testified at trial. Mem. at 8. He states that he decided not to testify based on the affirmative misadvice of counsel that if he testified, the details of his prior record would be placed before the jury.

If in fact counsel gave such advice to the defendant, the advice was incorrect. Bell v. State, 901 So.2d 180 (Fla. 3d DCA 2005); Hicks v. State, 666 So.2d 1021, 1022-23 (Fla. 4th DCA 1996); Charles W. Ehrhardt, Florida Evidence § 610.6 (2009). To impeach a testifying defendant by prior convictions, the State may inquire about the number — but not the nature — of the prior convictions.

In Jacobs v. State, 880 So.2d 548 (Fla. 2004), the defendant alleged that his counsel was ineffective for, inter alia, misadvising the defendant that if he testified, the details of his prior record could be placed before the jury. Id. at 554. The Florida Supreme Court concluded that an evidentiary hearing was called for. Id.

In Bell, the defendant’s sworn motion asserted:

affirmative misadvice of trial counsel that if he testified in his own defense, the prosecution would be able to place before the jury the exact nature of the offenses of which he had previously been convicted. As a general proposition, such advice (if given) would have been incorrect under the Evidence Code.

901 So.2d at 180 (citations omitted). We remanded for an evidentiary hearing. See also Tyler v. State, 793 So.2d 137,141 (Fla. 2d DCA 2001) (remanding for an evidentiary hearing where defendant alleged that trial counsel misinformed him that the jury would hear specific nature of prior convictions as impeachment, and did not testify); accord Everhart v. State, 773 So.2d 78, 79-80 (Fla. 2d DCA 2000). We should remand for an evidentiary hearing on ground three.

In ground one, the defendant alleges ineffective assistance of counsel for failure to investigate, depose and/or subpoena critical witnesses for the defense. The defendant contends that Arnold Cleveland would have given a statement that the crime was the sole act of Cleveland, of which the defendant was innocent. As previously stated, the defendant filed Cleveland’s affidavit.

The State’s trial court response properly points out that the case against Cleveland was pending at the same time as the case against the defendant. The affidavit nowhere gives any indication that Cleveland would have waived his Fifth Amendment privilege in his then-pending case. Therefore the affidavit does not support the claim that the defendant’s trial counsel was ineffective at the time of the original trial for failing to depose, or obtain a statement from, codefendant Cleveland. In conclusion, we should remand for an evidentiary hearing on ground three. On ground two, the defendant should be granted leave to amend.

      . Sometimes the defendant is just unhappy with the result of his decision not to plead. In my years as a trial judge, I saw many "lock winner” cases lose and many "lock loser” cases win. This pragmatic observation only proves diat going to trial is always a gamble. On the other hand, taking a plea is a sure bet.

      . The Court approved this court's decisions in Sharpe v. State, 861 So.2d 483 (Fla. 3d DCA 2003), and Gomez v. State, 832 So.2d 793 (Fla. 3d DCA 2002), to the extent they were consistent with Morgan. 991 So.2d at 841.

      . The defendant made a claim in ground one that trial counsel had failed to investigate, depose, and subpoena critical witnesses for the defense. The defendant argues that had counsel done so, the result of the trial would have been different. The defendant did not make a failure-to-investigate claim in connection with ground two, the advice to reject the plea.

      . See infra note 5.

      . According to Professor Ehrhardt, the permissible questions on cross-examination are:
      Q. “Have you ever been convicted of a felony?”
      A. "Yes.”
      Q. "How many times?” or counsel may ask, if applicable,
      Q. "Have you ever been convicted of a crime involving dishonesty or false statement?”
      A. "Yes."
      Q. "How many times?”
      Charles W. Ehrhardt, Florida Evidence § 610.6, at 590 (2009). "If the witness answers the questions correctly, the questioning must cease.” Id.

      . The affidavit stated:
      On about August-2-1998 I asked Hernan-do Garcia to give me a ride to Julio Lopez['s] house located at 328 SW 17 Ave. After Hernando Garcia drove me to Julio Lopez['s] house, I got out of the car and walked up to Julio Lopez and grabbed the gold chain off his neck pulled it; afterwards I ran to the car and told Hernando Garcia to drive off.
      When this incedent [sic] was reported to the police Hernando Garcia was arrested and charge [sic] with committing the of-fence againts [sic] Julio Lopez. I do hereby swear that Hernando Garcia was not awere [sic] of the nature or intent of my visit to Julio Lopez residence, he did not participate in any actions that were taken against Julio Lopez.
      I Arnold Cleveland was responsable [sic] for the offense that "Hernando Garcia” was sentence and convicted of, "Hernando Garcia” did not aide [sic] or otherwise commit the offense against Julio Lopez, and should not be charged, based on the above known facts.
      I’m competent and willing to testify in a court of law if needed so in behalf of "Her-nando Garcia".

      . There are cases holding that a later-obtained affidavit of this type may qualify as newly discovered evidence "based on newly available testimony of defendants who were previously unwilling to testify.” Totta v. State, 740 So.2d 57, 58 (Fla. 4th DCA 1999); Brantley v. State, 912 So.2d 342, 343 (Fla. 3d DCA 2005). However, the defendant has not made a claim for relief on the basis of newly discovered evidence, but has submitted the affidavit in support of his other claims.