author: SHAW, Justice.

text:
    EX PARTE Jennifer WATTERS (In re: State of Alabama v. Jennifer Watters)
    1150182
    Supreme Court of Alabama.
    Oct. 21, 2016

      Brannon A. Jordan and Kira Fonteneau of Community Law Office, Birmingham, for petitioner.
    Luther Strange,' atty. gen., and Andrew Brasher, deputy' atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.
    J.D. Lloyd, Birmingham, for amicus curiae Alabama Criminal Defense Lawyers Association, in support of the petitioner.
   SHAW, Justice.

Jennifer Watters petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to' stay proceedings in Watters’s criminal trial and to conduct a pretrial evidentiary hearing to consider whether she is immune from criminal prosecution on the ground of self-defense under the then existing version of § 13A-3-23(d), Ala. Code 1975 (“A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.”). We grant the petition and issue the writ.

Facts and Procedural History

As stated by the Court of Criminal Appeals in its order denying Watters’s petition for a writ of mandamus, the pertinent facts are as follows:

“In February 2015,'... ■ Watters was charged with assault in the second degree. On June 7, 2015, Watters moved that [the trial court] hold á pretrial evi-dentiary hearing on the issue of her immunity from prosecution and that [it] dismiss the charges against her. On June 9, 2015, [the trial court] denied in part and granted in part Watters’s motion. [The trial court’s] order stated: ‘[Watters’s] motion to dismiss and request for evidentiary hearing ... is hereby granted in part. In that the motion to dismiss is denied, the request for an evidentiary hearing is granted and the evidentiary hearing is set on July 14, 2015, at 9:00 a.m.’ On July 14, 2015, [the trial court] issued another order stating that the motion would be heard at trial.”

Ex parte Watters, 220 So.3d 1088, 1088 (Ala. Crim. App. 2015) (emphasis added).

In response to the trial court’s actions, Watters filed a petition for a writ of mandamus with the Alabama Court of Criminal Appeals, seeking a writ directing the trial court to conduct a pretrial hearing on her immunity defense. A majority of that court, noting that “[t]here are no Alabama cases interpreting the application and scope of § 13A-3-23(d), Ala. Code 1975, to criminal charges,” denied Watters’s request for relief. Ex parte Watters, 220 So.3d at 1089.

Watters then filed in this Court another petition for a writ of mandamus. See Rule 21(e), Ala. R. App. P. We ordered an answer and briefs.

Standard of Review
“ ‘Our review of a decision of the Court' of Criminal Appeals on an original petition for a writ of mandamus is de novo. Rule 21(e)(1), Ala. R. App. P.; Ex parte Sharp, 893 So.2d 571, 573 (Ala. 2003). The standard for issuance of a writ of mandamus is well settled:
“‘“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so;- (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.”
“ ‘Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001) (citing Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000)).’
“Ex parte McCormick, 932 So.2d 124, 127-28 (Ala. 2005).”

State v. Jones, 13 So.3d 915, 919 (Ala. 2008).

Discussion •-

Watters; in her petition to this Court, argues that, before being required to stand trial, she is entitled to a pretrial evidentiary hearing on whether she is entitled to immunity under § 13A-3-23(d). More specifically, citing this Court’s decision in Ex parte Auburn University, 6 So.3d 478, 483-84 (Ala. 2008), which held that the trial court erred by postponing a determination of the defendants’ entitlement to sovereign immunity and State-agent immunity for consideration “at trial rather than addressing them at the summary-judgment stage of the litigation,” Watters contends that “immunity questions should be resolved as early as possible.”

The State, in its answer, concedes that, although § 13A-3-23 creates an immunity defense, Watters is unable to demonstrate a clear legal right to the requested relief because, it says, the Code section includes no procedure requiring a pretrial hearing. Thus, according to the State, the trial court’s order stating its intent to consider Watters’s immunity defense “in due course” is sufficient and Watters’s petition is due to be denied. We cannot agree.

Both the State and Watters acknowledge in their pleadings to this Court that the Court of Criminal Appeals, subsequent to the issuance of its order in this case, has issued opinions relevant to the issue before us. See Malone v. State, 203 So.3d 126, 131 (Ala. Crim. App. 2016) (holding that the defendant was entitled to a pretrial evidentiary hearing on his claim of immunity based on self-defense); Harrison v. State, 203 So.3d 126, 131 (Ala. Crim. App. 2015) (holding “that a defendant asserting immunity based on self-defense under § 13A-3-23(d), Ala. Code 1976, is entitled to an opportunity to prove that claim by a preponderance of the evidence at a pretrial hearing before the court”). In Harrison, the Court of Criminal Appeals observed:

“Section § 13A-3-23(d) provides: ‘A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.’ (Emphasis added.) The legislature added subsection (d) to Alabama’s self-defense statute as a part of the 2006 amendment to § 13A-3-23, Ala. Code 1976. See Act No. 2006-303, Ala. Acts 2006. The legislature did not, however, define the phrase ‘immune from criminal prosecution’ or provide a specific procedure for determining immunity. Additionally, the legislature did not specify who would determine whether the defendant’s conduct was unlawful.
“In its response to Harrison’s motion for immunity from prosecution, the State argued that a pretrial hearing for a determination of immunity was improper because, it said, § 13-3-23(d) does not specifically provide for such a hearing. The State also argued that the determination of immunity was a jury question that should be decided at trial,
“Although the legislature did not define the phrase ‘immune from criminal prosecution’ in the context of a self-defense claim, the Alabama Supreme Court in Ex parte Auburn University, 6 So.3d 478 (Ala. 2008), in addressing a petitioner’s claim that the trial court had ‘erred in choosing to address their sovereign-immunity defenses at trial rather than addressing them at the summary-judgment stage of the litigation,’ discussed the purpose of immunity and how it differs from an affirmative defense. The Court stated:
“ ‘ “ ‘One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.’ ” Ryan v. Hayes, 831 So.2d 21, 31 (Ala. 2002) (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Additionally, this Court has stated:
“ ‘ “ ‘Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. For-syth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Ibid. As a result, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 584, 116 L.Ed.2d 589 (1991) (per curiam).’ ”
“ ‘Ryan, 881 So.2d at 31-32 (quoting Saucier v. Katz, 533 U.S. 194, 199-202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
“ ‘The trial court reasoned that because the parties had waived the right to a jury trial in this case, in favor of a bench trial, a “great deal of costs and expense” associated with a jury trial would be alleviated. However, by delaying until trial its determination of the sovereign-immunity defenses asserted by the petitioners, the trial court has effectively denied the petitioners their privilege of not being subjected to suit and their right to not stand trial and face the burdens of litigation should their immunity defenses prove dispositive. Ryan, supra. Accordingly, we conclude that the trial court erred in failing to address the sovereign-immunity defenses at the summary-judgment stage of the litigation.’
6 So.3d at 484 (emphasis added).
“When interpreting the language of a statute, this Court is guided by the well settled principles laid out by the Alabama Supreme Court:
“ ‘The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So.2d 719 (Ala. 1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala. 1992).’
“Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala. 1996).
“ ‘Immune’ is defined as ‘[hjaving immunity; exempt from a duty or liability.’ Black’s Law Dictionary (10th ed. 2014). ‘Criminal prosecution’ is defined as ‘[a] criminal proceeding in which an accused person is tried.’ Id. Thus, by using the phrase ‘immune from criminal prosecution,’ in § 13A-3-23(d), the legislature intended to exempt from trial an accused who uses force as justified in § 13A-3-23, unless the accused’s conduct is ‘determined to be unlawful.’ When read together, those phrases lead to the conclusion that a determination must be made, prior to the commencement of trial, as to whether a defendant’s conduct was justified or whether it was unlawful. The only available mechanism for such a determination is a pretrial hearing.
“Submitting the question of immunity to a jury, as the State suggested, would render a defendant’s right to immunity illusory. As noted in Ex parte Auburn University, supra, the right to immunity ‘is effectively lost if a case is erroneously permitted to go to trial.’ Additionally, Alabama law has always allowed a defendant to argue self-defense at trial. Thus, treating the right to immunity under § 13A-3-23(d) as an affirmative defense would make that subsection redundant. We must presume that the legislature did not, in enacting § 13A-3-23(d), create a meaningless provision. See Ex parte Wilson, 854 So.2d 1106, 1110 (Ala. 2002), quoting Ex parte Welch, 519 So.2d 517, 519 (Ala. 1987)C “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.” ’)•”

Harrison, 203 So.3d at 130. See also Ex parte Watters, 220 So.3d at 1089-90 (Joiner, J., dissenting).

We find this reasoning persuasive and adopt it as our own. We further note, as the Court of Criminal Appeals also pointed out in Harrison, that the above-quoted holding and resulting procedure appear consistent with that adopted in a majority of other jurisdictions with comparable statutory provisions. See id.

The facts before us indicate that Wat-ters’s motion to dismiss on the basis of immunity was initially denied by the trial court but that the trial court also scheduled an evidentiary hearing on her motion for July 14, 2015. Watters alleges that at that hearing she stood ready and willing with witnesses — to argue her immunity claim but that the trial court ordered that her claim be determined “at trial.” The State contends, however, that the trial court simply continued the hearing until the date set for trial.

A trial court has the authority to manage and control its docket. See Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102, 104 (Ala. 1997); C.E. v. M.G., 169 So.3d 1061, 1068 (Ala. Civ. App. 2015); and Smith v. State, 961 So.2d 916, 928 (Ala. Crim. App. 2006). However, § 13A-3-23(d) provides for immunity from the process of “criminal prosecution,” and, as explained in Auburn University, the general purpose of immunity is not just to prevent one from having the burden to “stand trial,” but also to prevent one from having the burden of “being subjected to suit” and of litigation in the first place. In light of this, a proceeding .to test a defendant’s entitlement to immunity should occur as soon as practicable, with due regard to the trial court’s authority to manage its docket and both sides’ ability to prepare for the proceeding.

In the instant case, nothing before us supports the trial court’s decision to refuse to hear Watters’s motion at the July 14 hearing and nothing supports, contrary to the principles discussed in Auburn University, supra, a decision to delay a ruling until the day of trial. We thus conclude that Watters has demonstrated a clear legal right to the requested relief. Although we offer no opinion as to the factual merit of Watters’s immunity claim, we nonetheless hold that she is entitled to attempt to prove its application before she is required to stand trial. We therefore grant the petition and issue the writ directing the trial court to conduct a pretrial evidentiary hearing considering whether Watters is immune from criminal prosecution on the ground of self-defense.

PETITION GRANTED; WRIT ISSUED.

Stuart, Parker, Wise, and Bryan, JJ., concur.

      . Section 13A-3-23, Ala. Code 1975, as subsequently explained, has recently been amended. See note 2, infra.

      .We also note that recently — and subsequent to the release of the decisions cited- above— the Alabama Legislature amended § 13A-3-23(d) to specifically provide for a pretrial hearing on the issue of self-defense immunity. See § 13A-3-23(d)(2), Ala. Code 1975. Specifi-cally, the Code section, as amended effective August 1, 2016, see Act No. 2016-420, Ala. Acts 2016, now provides, in pertinent part:
      "(2) Prior to the commencement of a trial in a case in which a defense is claimed under this section, the court having jurisdiction over the case, upon motion of the defendant, shall conduct a pretrial hearing to determine whether force, including deadly force, used by the defendant was justified or whether it was unlawful under this, section. During any pretrial hearing to determine immunity, the defendant must show by a preponderance of the' evidence that he or she is immune from criminal prosecution.
      "(3) If, after a pretrial hearing under subdivision (2), the court concludes that the defendant has' proven by a preponderance of the evidence that force, including deadly force, was justified, the court shall enter an order finding the defendant immune from criminal prosecution and dismissing the criminal charges.
      "(4) If the defendant does not meet his or her burden of proving immunity at the pretrial hearing, he or she may continue to pursue the defense of self-defense or defense of another person at trial.... ”
      (Emphasis added.)

      . Watters further asserts that the trial court indicated that her claim that she acted in self-defense should be heard by the jury. However, no transcript of the hearing was provided to this Court, and there are no facts before us to substantiate these assertions. See Rule 21(a)(1)(E), Ala. R. App. P. (providing that a petition for a writ of mandamus shall contain any parts of the record "that would be essential to an understanding of the matters set forth in the petition”).

      . Watters contends that the State had, before the July 14 hearing, requested a continuance from the trial' court. However, nothing in the materials before us substantiates that assertion. See note 3, supra.


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    Thomas Eugene GILBERT v. STATE of Alabama.
    CR-13-0839.
    Court of Criminal Appeals of Alabama.
    March 18, 2016.
    Rehearing Denied May 27, 21016.
    Certiorari Denied Oct. 14, 2016 Alabama Supreme Court 1150959.

      Ronald Smith, Huntsville, for appellant.
    Luther Strange, atty. gen., and Michael A. Nunnelley and Ferris Stephens, asst, attys. gen., for appellee.
   BURKE, Judge.

Thomas Eugene Gilbert appeals his guilty-plea conviction for sexual misconduct, see § 13A-6-65(a)(3), Ala.Code 1975, and his resulting sentence of 365 days in the Jackson County jail. That sentence was suspended, and Gilbert was ordered to serve 24 months of supervised probation.

Gilbert was indicted for one count of sexual misconduct and one count of first-degree sodomy. Both counts involved the same victim, R.D., a 17-year-old male. On February 19, 2014, Gilbert pleaded guilty to sexual misconduct, and the sodomy charge was dismissed. Gilbert reserved the right to appeal the issue whether § 13A-6-65(a)(3) is unconstitutional, but he failed to preserve this issue for appellate review because he did not obtain a ruling from the circuit court on his constitutional challenge. On February 26, 2014, Gilbert moved to withdraw his guilty plea on the ground that, although his plea was conditioned upon his ability to challenge the constitutionality of § 13A-6-65(a)(3) on appeal, the circuit court had failed to enter an adverse ruling on Gilbert’s motion to dismiss; therefore, Gilbert’s challenge was not preserved for appellate review.

On March 3, 2014, the circuit court held a hearing. During that hearing, the circuit court granted Gilbert’s motion to withdraw his guilty plea and then heard argument on Gilbert’s motion to dismiss the sexual misconduct charge against him based on his contention that the United States Supreme Court’s holding in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), rendered § 13A-6-65(a)(3) unconstitutional. There is no written motion to dismiss in the record. It is unclear from Gilbert’s oral argument during the hearing whether he was attempting to argue that § 13A-6-65(a)(3) is unconstitutional on its face or whether he was attempting to argue that § 13A-6-65(a)(3) is unconstitutional only as applied to him. During the argument on the motion to dismiss, Gilbert’s attorney stated that § 13A-6-65(a)(3) is unconstitutional, but, other than a citation to Lawrence, the specific basis of his constitutional challenge is unclear. Gilbert’s attorney stated that § 13A-6-65(a)(3) is unconstitutional and argued:

“And we would cite the case of Lawrence v. Texas, it’s a U.S. Supreme Court case, 539 U.S. 558. It’s 2003. In that case, the supreme court struck down a very similar statute, a Texas statute, on the grounds that it violated due process on the Fifth and Fourteenth Amendments and the right to privacy in that it prohibited sexual relations within somebody’s private residence or within a private area.”

(R. 5.)

The State responded:

“I would like to say on the record this was a 17-year-old child victim. Alcohol use was involved by both the defendant who was charged and the child victim. And although the statute says consent is not a defense to prosecution under this subdivision, consent — consent was not given in the case before the Court today, your Honor. So the State’s position is that there was no consent. Alcohol was involved by both parties. Alcohol use was a part of this event on the part of both parties, and the alleged victim was a 17-year-old minor.”

(R. 7-8.)

Gilbert’s attorney replied:

“I just wanted to respond about the consent issue, your Honor. Lack of consent or consent is not relevant under the statute. I think the whole point of this case in — what it is is he’s also charged with forcible compulsion, and our defense at trial would have been that it was consensual. The State may have a different thought on that, but, you know, under my Ghent’s recollection and version of events it was a consensual — it was a 17-year-old. He was over 16, but he was not 19 years old. He is not an adult under Alabama law, but he was capable of consent. And under the statute, it prohibits consensual or noncon-sensual. And it does — [§ 13A-6-65](a)(l) and (a)(2) do give a provision where you can apply a fact pattern of what [the prosecutor] just described of where there is not forcible compulsion but there is not necessarily consent either. But it does not apply to same-sex acts; it only applies to opposite gender.”

(R. 8-9.)

After hearing that argument, the circuit court denied Gilbert’s motion to dismiss. Gilbert then entered his guilty plea to one count of sexual misconduct, and again reserved his right to challenge the constitutionality of § 13A-6-65(a)(3) on appeal. There is no stipulated set of facts or other specific factual basis for the plea set forth in the record. The indictment charging Gilbert with sexual misconduct simply stated that Gilbert “did engage in deviate sexual intercourse with another person, to-wit: [R.D.], under circumstances other than those covered by Sections 13A-6-63 and 13A-6-64, in violation of Section 13A-6-65(a)(3) of the Code of Alabama.” (C. 7.) After Gilbert entered his guilty plea, pursuant to his previous agreement with the State, the sodomy charge was dismissed and Gilbert was sentenced.

On appeal, Gilbert’s only argument is that “section 13A-6-65(a)(3) is unconstitutional in light of the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003).” Gilbert’s brief, at 8. Gilbert states that “the statute is void and cannot be enforced against [Gilbert] or anyone else.” Id. at 11.

Section 13A-6-65(a), Ala.Code 1975, provides:

“A person commits the crime of sexual misconduct if:
“(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by Sections 13A-6-61 and 13A-6-62; or with her consent where consent was obtained by the use of any fraud or artifice; or
“(2) Being a female, she engages in sexual intercourse with a male without his consent; or
“(3) He or she engages in deviate sexual intercourse with another person under circumstances other than those covered by Sections 13A-6-63 and 13A-6-6⅜. Consent is no defense to a prosecution under this subdivision.”

Section 13A-6-60(2), Ala.Code 1975, defines “deviate sexual intercourse” as “any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.”

In Williams v. State, 184 So.3d 1064 (Ala.Crim.App.2015), this Court held that § 13A-6-65(a)(3) was unconstitutional as applied to a specific defendant in a particular situation. However, this Court has never held that § 13A-6-65(a)(3) is unconstitutional on its face.

This Court has explained:

“A ‘ “facial challenge” ... is defined as “[a] claim that a statute is unconstitutional on its face — that is, .that it always operates unconstitutionally.” ’ Board of Water & Sewer Comm’rs of Mobile v. Hunter, 956 So.2d 403, 419 (Ala.2006) (quoting Black’s Law Dictionary 244 (8th ed.2004)). To prevail on a facial challenge to the constitutionality of a statute, it must be established ‘that no set of circumstances exists under which the [statute] would be valid.’ United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In contrast, an ‘as-applied challenge’ is ‘a claim that a statute is unconstitutional on the facts of a particular case or in its application to a particular party.’ Black’s Law Dictionary 244 (8th ed.2004)..”

State v. Adams, 91 So.3d 724, 754 (Ala. Crim.App.2010).

In State v. Woodruff, 460 So.2d 325 (Ala. Crim.App.1984), the defendant was charged with violating § 13A-6-65(a)(3). The defendant moved to dismiss the charge on the basis that § 13A-6-65(a)(3) was unconstitutional on its face. This Court held that the defendant did not have standing to make such a challenge because the record was “totally devoid of evidence indicating that [the defendant’s] right to privacy was violated.” Woodruff, 460 So.2d at 330. In J.L.N. v. State, 894 So.2d 751 (Ala.2004), - the Alabama Supreme Court discussed standing and approvingly discussed our decision in Woodruff, as follows:

“ ‘Not all controversies ... are justiciable. Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have “standing to invoke the power of the court in his behalf.”’ Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998) (quoting Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990)). ‘Standing ... turns on “whether the party has been injured in fact and whether the injury is to a legally protected right.”’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999) (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)).
“‘When a party without standing pin-ports to commence an action, the trial court acquires no subject-matter jurisdiction. Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 626 (Tex.1996) (“Standing is a necessary component of subject matter jurisdiction”). See also Raines v, Byrd, 521 U.S. 811, 117 S.Ct 2312, 138 L.Ed.2d , 849 (1997); Lewis v. Casey, 518 U.S, 343, 116 S.Ct 2174, 135 L.Ed.2d 606 (1996); United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (“‘standing “is perhaps the most -important of [the jurisdictional] doctrines”’”); National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (“Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.”); Romer v. Board of County Comm’rs of the County of Pueblo, supra, 956 P.2d at 585 (“standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings”) (Martinez, J., dissenting); Cotton v. Steele, 255 Neb. 892, 587 N.W.2d 693 (1999). But see Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998) (standing is not jurisdictional).’
“State v. Property at 2018 Rainbow Drive, 740 So.2d at 1028.
“In State v. Woodruff, 460 So.2d 325 (Ala.Crim.App.1984), the defendant, Woodruff, moved the trial court to dismiss the criminal complaint against him because, Woodruff alleged, the statute upon which the complaint was based— § 13A-6-65(a)(3), Ala.Code 1975, which prohibits deviate sexual intercourse between unmarried individuals — was unconstitutional. Specifically, Woodruff argued that the statute violated the right of privacy of consenting adults to engage in sexual intercourse. The trial court dismissed the complaint, apparently agreeing that the statute was unconstitutional. ■
“The Court of Criminal Appeals, however, reviewing the trial court’s judgment, noted that Woodruff failed to demonstrate that he had standing to challenge the statute.'
“‘Appellate courts will not pass upon a constitutional question unless some specific right of the appellant is directly involved; the appellant must , belong to that class' affected by the statute’s provisions. McCord v. Stephens, 295 Ala. 162, 325 So.2d 155 (1975); Evans v. State, 338 So.2d 1033 (Ala.Crim.App.1976), cert. denied, 348 So.2d 784 (Ala.1977); Bozeman v. State, 7 Ala.App. 151, 61 So. 604, cert. denied, 183 Ala. 91, 63 So. 201 (1913). Even under the circumstances where a constitutional attack on a statute may be presented to the trial court prior to trial and, consequently, without benefit of a trial record, adherence to the traditional concepts of standing is required. See, e.g., State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943); State v. Wilkerson, [54 Ala.App. 104, 305 So.2d 378 (1974)]; People v. Allen, 657 P.2d 447 (Colo.1983); State v. Raybon, 242 Ga. 858, 252 S.E.2d 417 (1979); State V. Price, 237 N.W.2d 813 (Iowa 1976), appeal dismissed, 426 U.S. 916, 96 S.Ct. 2619, 49 L.Ed.2d 370 (1976); People v. Jose L., 99 Misc.2d 922, 417 N.Y.S.2d 655 (N.Y.Crim.Ct.1979); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980); Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d-306 (1976). Unless these usual rules of standing are not applicable to the situation at bar, they should have precluded the trial court from deciding the constitutionality of the sexual misconduct statute in a factual vacuum.’
“State v. Woodruff 460 So.2d at 328.
“The Court of Criminal Appeals in Woodruff noted that -the trial court made its decision after a brief oral argument on the issue of the constitutionality of the statute and that the transcript was totally devoid of any evidence indicating .that Woodruffs right to privacy had been violated. Furthermore, the complaint charging Woodruff offered no indication of the factual setting in which the alleged violation of the statute occurred. The Court of Criminal Appeals held that because Woodruff failed to demonstrate that he suffered an injury to a legally protected right the trial court did not obtain subject-matter jurisdiction over his claim that § 13A-6-65(a)(3), Ala.Code 1975, was unconstitutional, and the Court of Criminal Appeals remanded the case for further proceedings.”

J.L.N., 894 So.2d at 753-54.

Concerning an “as-applied” challenge to § 13A-6-65(a)(3), in Wesson v. State, 208 So.3d 1160 (Ala.Crim.App.2015), this Court stated:

“It is well settled that a person challenging the constitutionality of a statute as applied to him ‘bears the burden of proving that [the statute] is unconstitutional as applied to his conduct.’ Powell v. State, 72 So.3d 1268, 1278 (Ala.Crim. App.2011). The Texas Court of Appeals has explained:
“ ‘A statute may be found unconstitutional “as applied” to a specific set of facts or “on its face.” See Scott v. State, 322 S.W.3d 662, 665 n. 1 (Tex. Crim.App.2010); Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989). Generally, a defendant must show that a statute is unconstitutional “as applied” to the conduct for which he was charged. See id. at 774. A claim that a statute is unconstitutional “as applied” is a claim that the statute operates unconstitutionally with respect to the claimant because of his particular circumstances. Gillenwaters v. State, 205 S.W.3d 534, 536 n. 3 (Tex.Crim. App.2006).’
“State v. Johnson, 425 S.W.3d 542, 545 (Tex.App.2014). Accordingly, this Court has held that, without evidence or some factual basis in the record, it cannot hold that an appellant has met his burden to establish that a statute is unconstitutional as applied to him. State v. Woodruff, 460 So.2d 325, 330 (Ala.Crim.App.1984).
“Wesson pleaded guilty to violating § 13A-6-65(a)(3), which provides: ‘A person commits the crime of sexual misconduct if ... [h]e or she engages in deviate sexual intercourse with another person under circumstances other than those covered by Sections 13A-6-63 and 13A-6-64. Consent is no defense to a prosecution under this subdivision.’ Section 13A-6-60(2), Ala.Code 1975, defines ‘deviate sexual intercourse’ as ‘[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.’
“ ‘In Lawrence [v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ], ... the United States Supreme Court considered the constitutionality of a Texas statute that provided: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” Texas Penal Code Ann. § 21.06(a) (2003). Another Texas statute defined “deviate sexual intercourse” as “any contact between any part of the genitals of one person and the mouth or anus of another person.” Texas Penal Code Ann. § 21.01(1)(A). The Supreme Court concluded that the statute violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution and that it “further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Lawrence, 539 U.S. at 579, 123 S.Ct. 2472.’
“Williams v. State, 184 So.3d 1064, 1069 (Ala.Crim.App.2015). The Supreme Court in Lawrence, however, held only that “statutory prohibitions on consensual sodomy ... are unconstitutional because they infringe upon the rights of ‘adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment.”” Williams, 184 So.3d at 1070 (emphasis added) (quoting Doe v. Pryor, 344 F.3d 1282, 1287 (11th Cir. 2003), quoting in turn Lawrence, 539 U.S. at 564, 123 S.Ct. 2472). Section 13A-6-65(a)(3) criminalizes not only consensual deviate sexual intercourse, but also criminalizes other circumstances in which a person engages in deviate sexual intercourse, such as when the act results from fraud, artifice, or extortion. Thus, in an as-applied challenge to § 13A-6-65(a)(3) the defendant must establish that the statute is unconstitutional as applied to his conduct, i.e., he must establish that he engaged in consensual deviate sexual intercourse. Cf. Woodruff, 460 So.2d at 330-31.
“The record in this case fails to show that Wesson’s conduct falls within the conduct protected under Lawrence. Specifically, there is no evidence in the record indicating that Wesson engaged in consensual deviate sexual intercourse. Because there is no indication in the record that the Supreme Court’s holding in Lawrence prohibits prosecution for Wesson’s conduct, Wesson failed to meet his burden of establishing that § 13A-6-65(a)(3) is unconstitutional as applied to him.”

Wesson, 208 So.3d at 1163.

In the present case, regardless of whether Gilbert is attempting to make a “facial” or an “as-applied” challenge to the constitutionality of § 13A-6-65(a)(3), he failed to set forth any evidence in the record indicating that his conduct falls within the specific conduct protected under Lawrence. Specifically, there is no evidence in the record indicating that Gilbert engaged in consensual deviate sexual intercourse. Because there is no evidence in the record indicating that Gilbert’s conduct was protected under Lawrence, Gilbert has failed to meet his burden of establishing that § 13A-6-65(a)(3) is unconstitutional as applied to him. Furthermore, because the record is devoid of any evidence indicating that Gilbert engaged in consensual deviate sexual intercourse and Gilbert cannot show that § 13A-6-65(a)(3) is unconstitutional as applied to him, he does not have standing to mount a facial challenge to § 13A-6-65(a)(3).

Accordingly, the judgment of the circuit court is affirmed.

AFFIRMED.

WINDOM, P.J., and WELCH and JOINER, JJ., concur. KELLUM, J., dissents.

      . We again recognize that § 13A-6-65(a)(3) criminalizes conduct other than consensual deviate sexual intercourse, such as when the deviate sexual intercourse results from fraud, artifice, or extortion. Furthermore, § 13A-6-65(a)(3) is a lesser-included offense of first-degree sodomy, see § 13A-6-63, Ala.Code 1975, and second-degree sodomy, see § 13A-6-64, Ala.Code 1975, and, depending on the factual scenario, a person charged with other offenses, such as first-degree sexual abuse under § 13A-6-66, Ala.Code 1975, could plead to sexual misconduct under § 13A-6-65(a)(3). Therefore, § 13A-6-65(a)(3) has many applications other than criminalizing consensual deviate sexual intercourse.


author: PER CURIAM. POLSTON, J.,

text:
    Dane Patrick ABDOOL, Appellant, v. STATE of Florida, Appellee. Dane Patrick Abdool, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC14-582
    No. SC14-2039
    Supreme Court of Florida.
    [April 6, 2017]

      James V. Viggiano, Capital Collateral Regional Counsel, and Julissa Fontán, Maria E. DeLiberato, and Chelsea Rae Shirley, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee/Respondent
   PER CURIAM.

Dane Patrick Abdool appeals the denial of his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851, and he also petitions this Court for a writ of habeas corpus. For the reasons that follow, we affirm the denial of Abdool’s postconviction guilt phase claims and deny his guilt phase habeas claim, but we vacate his death sentence and remand for a new penalty phase.

I. BACKGROUND

The facts of this case were fully set out in this Court’s opinion on direct appeal. See Abdool v. State, 53 So.3d 208 (Fla. 2010). Briefly, between the late-evening hours of February 24, 2006, and the early-morning hours of February 25, 2006, after the two engaged in consensual sex, 19-year-old Abdool drove 17-year-old Amelia Sookdeo to a remote area, bound her with duct tape, doused her with gasoline, and set her on fire, causing her death. Id. at 213-14.

On February 19, 2008, after hearing the evidence summarized in this Court’s decision on direct appeal, including Abdool’s statement to police implicating himself in the victim’s death, testimony by others as to incriminatory statements Abdool had made to them before and after the victim’s murder, and physical and DNA evidence tying Abdool to the scene, Abdool’s jury found him guilty of first-degree murder. Id. at 212-14. The next day, the penalty phase commenced, and as this Court explained in its decision on direct appeal, “the State presented the testimony of an expert medical witness who described for the jury the type of intense pain and suffering Amelia experienced before she died,” as well as victim impact statements from three of the victim’s family members. Id. at 214.

During the penalty phase, the defense presented testimony from several of Ab-dool’s relatives and friends, which established that “Abdool grew up in a faith-based home with his mother and stepfather, who loved and cared for him and provided for his needs.” Id. As this Court stated in its opinion on direct appeal, “[i]t was clear from their testimonies that Ab-dool is well-liked by friends and acquaintances and much loved by his family.” Id.

In addition, the defense presented expert testimony from Nancy Cowardin, who “evaluated Abdool to determine his level of education.” Id. Ms. Cowardin testified that, while “Abdool’s IQ is in the normal range[,] he has attention deficit disorder, dyslexia, and a mild learning disability and that he reads and does math at the level of a ten- to eleven-year-old or someone who is in the sixth grade.” Id. at 215. Ms. Cowardin further testified “that she could not make a connection between her conclusions regarding Abdool’s educational level and the crime, but that kids with learning disabilities can make social blunders and can ‘misthink things through.’ ” Id.

In addition to Ms. Cowardin, the defense presented expert testimony from Dr. Karen Gold, a clinical and forensic psychologist:

Dr. Gold testified that she met with Abdool on three occasions and performed numerous tests and evaluations. In relevant part, Dr. Gold testified that Abdool is immature, is intellectually limited but not retarded, has attention deficit disorder, is hyperactive, has impulse control issues and obsessive compulsive disorder, is meticulous, and has grandiose delusions, and that his emotional age is younger than his actual age. Dr. Gold also stated that Abdool knew right from wrong and that he was competent to stand trial.

Id.

In rebuttal, the State presented the testimony of Dr. Daniel Tressler, a forensic psychologist, “who stated that in his opinion, Abdool did not have impulse control disorder[,] that there was no evidence that he was substantially impaired at the time of his offense,” and that “Abdool knew the difference between right and wrong.” Id. Dr. Tressler further “concluded that Ab-dool’s actions were not caused by any of his personality disorders.” Id.

Following the penalty phase presentation, the jury recommended death by a vote of ten to two. Id. After conducting a Spencer hearing, at which no additional evidence was presented, the trial court followed the jury’s recommendation and sentenced Abdool to death, finding that the aggravating circumstances outweighed the mitigating circumstances. Id. at 215-16,

On direct appeal, this Court affirmed Abdool’s conviction and death sentence. Id. at 212. Thereafter, the United States Supreme Court denied Abdool’s petition for a writ of certiorari., Abdool v. Florida, 565 U.S. 840, 132 S.Ct. 149, 181 L.Ed.2d 66 (2011).

In 2012, Abdool filed a motion for post-conviction relief. Following an evidentiary hearing, the circuit court denied relief on all claims'. Abdool appeals the circuit court’s denial of postconviction relief and also petitions this Court for a writ of habe-as corpus.

II. POSTCONVICTION MOTION

A. Ineffective Assistance During the Guilt Phase

Abdool first argues that his trial counsel was ineffective during the guilt phase for (1) failing to file a motion to suppress his statement to police; (2) failing to address the issues of racism and religious prejudice during jury selection; and (3) failing to consult and retain an independent arson expert. For the reasons below, we affirm the circuit court’s denial of relief on these claims.

(1) Motion to Suppress

Abdool first argues that his trial counsel was ineffective during the guilt phase for failing to file a motion to suppress his statement to police, in which Abdool admitted responsibility for the victim’s death, and which the State also used in support of its argument that the CCP and HAC aggravators applied , to Abdool’s case. Because Abdool has not established that he was prejudiced by trial counsel’s alleged deficiency, we affirm the circuit court’s denial of this claim, without addressing whether trial counsel was deficient.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has explained that, to prevail-on an ineffective assistance of counsel claim, a defendant must satisfy two requirements:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)).

Regarding Strickland’s deficiency prong, there is a strong presumption that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 689, 104 5.Ct. 2052. Moreover, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. The defendant bears the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 88 (1955)).

Regarding the prejudice prong, “Strickland requires defendants to show ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... [A] ‘reasonable probability’ is a ‘probability sufficient to undermine confidence in the outcome.’” Henry v. State, 948 So.2d 609, 621 (Fla. 2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004). Moreover, “when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.” Zakrzewski v. State, 866 So.2d 688, 692 (Fla. 2003)' (quoting Waterhouse v. State, 792 So.2d 1176, 1182 (Fla. 2001)).

Abdool has not established prejudice. The evidence that Abdool committed first-degree murder is not limited to his statement to police or its alleged fruits (most notably a surveillance video showing Ab-dool purchasing some of the items used in the murder while the victim waited in his car). Police linked tire tracks at the scene to Abdool’s vehicle, found Abdool’s DNA on a glove at the scene, and discovered during then.- investigation that Abdool had suffered recent burns to his body. Further, several witnesses testified to statements that Abdool made prior to the murder indicating that he intended to harm or kill the victim. Then, after the murder, Abdool gave an account to a former coworker, which was consistent with his statement to police:

[T]he coworker testified that Abdool told her that he and [the victim] were fighting, he kicked her out of the car, put duct tape on her to scare her, and she yelled at him to “do it, do it, do it.” He said that [the victim] then gave him a lighter, which he only flicked to scare her, but that she came towards him and caught fire. He also stated that “a person can only go so far, can only take so much.”

Abdool, 53 So.3d at 213-14.

Just as Abdool’s statement and its alleged fruits are not the only support for his conviction, other evidence supports the application of the CCP and HAC aggrava-tors in his case. Abdool’s use of a gas can, duct tape, and gloves and his act of driving the victim to a remote location, coupled with the fact that “Abdool spoke of killing [the victim] several months before the murder,” id. at 223, are sufficient to support the CCP aggravator. Likewise, HAC was established not just by Abdool’s statement to police that the victim ran around screaming after he set her on fire. In addition, Abdool’s coworker’s testimony regarding his statement to her established that the victim was conscious when the fire started, and evidence presented at trial established the victim’s “lungs contained soot from inhaling her own burning flesh, the pain she experienced from burning alive was immense, and experts testified that [she] could have remained conscious for seconds to a couple of minutes after she was set on fire.” Id. at 225.

Given this other evidence of Abdool’s guilt and in support of the CCP and HAC aggravators, Abdool has not established prejudice, namely a reasonable probability that he would have received a different result but for trial counsel’s alleged deficiency. Our confidence in the outcome is not undermined. See Henry, 948 So.2d at 621 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

Accordingly, we affirm the circuit court’s denial of relief on this claim.

(2) Jury Selection

Abdool next argues that trial counsel was ineffective for failing to address the issues of racism and religious prejudice during voir dire because potential jurors might have assumed Abdool was Muslim and associated the victim’s burning death with Muslim religious practices. We disagree because Abdool has not established deficiency or prejudice.

As the circuit court found, trial counsel’s “decision not to inquire as to the potential jurors’ anti-Muslim bias was a reasonable one, as the evidence at trial established that Mr. Abdool was a Christian from Trinidad, making it clear to the jury that it was unlikely he was associated with Middle Eastern terrorism.” See Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000) (“Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, 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.”) (citations omitted).

In any event, there is no prejudice. As the circuit court concluded, Abdool’s claim that had trial counsel asked the right questions they could have uncovered juror bias toward Muslims (or perceived Muslims) is speculative since Abdool failed to establish that a biased juror actually served on the jury. Rather, the one juror who asked about Abdool’s religious background during voir dire stated that he could give him a fair trial regardless of Abdool’s religion or race, and this juror did not serve on the jury. See Carratelli v. State, 961 So.2d 312, 324-25 (Fla. 2007) (holding a defendant must show an actually biased juror served to establish prejudice under Strickland); see also Jones v. State, 998 So.2d 573, 584 (Fla. 2008) (“A mere eonclusory allegation that the outcome would have been different is insufficient to state a claim of prejudice under Strickland; the defendant must demonstrate how, if counsel had acted otherwise, a reasonable probability exists that the outcome would have been different[.]”).

Accordingly, we affirm the circuit court’s denial of this claim.

(3) Arson Expert

Abdool next argues that trial counsel was ineffective for failing to consult and retain an independent arson expert. He claims that, had trial counsel done so, trial counsel would have been able to rebut the testimony of the State’s arson expert regarding how far away the ignition source was from the victim, the position of the victim when she was splashed with gasoline, and how many times gasoline was applied. Abdool contends that this evidence would support his argument that he accidentally set the victim on fire in an attempt to scare her. We affirm the circuit court’s denial because Abdool has not established deficiency or prejudice.

This Court has explained that, in deciding whether trial counsel was deficient for failing to call an expert to rebut the State’s expert, “a number of factors should be considered[:]”

First among these are the attorney’s reasons for performing in an allegedly deficient manner, including consideration of the attorney’s tactical decisions. See State v. Bolender, 503 So.2d 1247, 1250 (Fla. 1987); Lightbourne v. State, 471 So.2d 27, 28 (Fla. 1985). A second factor is whether • cross-examination of the State’s expert brings out the expert’s weaknesses and whether those weaknesses are argued to the jury. Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990). See Rose v. State, 617 So.2d 291, 297 (Fla, 1993)[J The final factor is whether a defendant can show that an expert was available at the time of trial to rebut the State’s expert. See Elledge v, Dugger, 823 F.2d 1439, 1446 (11th Cir. 1987).

State v. Riechmann, 777 So.2d 342, 354 (Fla. 2000).

Examination of these factors supports the circuit court’s conclusion that trial counsel was not deficient. First, as the circuit court concluded, trial counsel made a strategic decision not to consult an independent arson expert because “they did not want to highlight the burning death of [the victim] through the testimony of a second expert.”

Second, trial counsel was able to bring out the weaknesses of the State’s arson expert’s testimony on- cross-examination, namely that the State’s expert could not testify conclusively that there was more than one application of gasoline, or that the fire ignited within inches of the victim as opposed to up to a foot away. The State’s expert further acknowledged that, while he could not rule out the possible scenario that the victim was set on 'fire while she was standing and that additional gasoline, was then added to her body, in his opinion there was only one heat source that ignited and spread to other parts of the body. Trial counsel also elicited from the. State’s expert that “there’s no way of telling” why there were two different trails of scorched earth, weakening the State’s argument that the two trails meant that Abdool doused the victim with gasoline more than once. In addition, the State’s expert acknowledged the possibility of trial counsel’s hypothetical suggesting that the fire could have been set by someone who splashed gasoline while wearing a glove, lit a lighter while still wearing the glove, causing the glove to ignite, and then threw the glove in the direction where the gasoline had been splashed, accidentally igniting the vapors.

Last, although the arson expert Abdool retained for postconviction, John Lentini, was available to testify at trial, rather than rebut the trial testimony of the State’s arson expert, he largely agreed with it. Specifically, during the postconviction evi-dentiary hearing, Mr. Lentini acknowledged that he could not identify anything in the State’s expert’s testimony with which he disagreed, and he further testified that “[a]ll of the conclusions and possible scenarios, that' [the State’s expert] testified about at trial ... are all possible scenarios.” Though Mr. Lentini testified that he “would have definitely directed counsel to ask better questions” had he been retained, he did not specify what those questions would have been and instead appeared to take issue more with the State’s characterization of its expert’s testimony rather than with the expert’s testimony itself.

Accordingly, because trial counsel made a reasonable strategic decision to limit the jury’s exposure to evidence regarding how the victim'burned to death and brought out the weaknesses in the State’s arson expert’s testimony through cross-examination, trial counsel was not deficient. See Riechmann, 777 So.2d at 355. -But, in any event, .because the expert Abdool faults trial counsel for failing to consult and retain actually provided information that is consistent with the testimony presented by the State’s arson expert, there is no prejudice. See Henry, 948 So.2d at 621 (“Strickland requires defendants to show ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... [A] ‘reasonable probability’ is a ‘probability sufficient to undermine confidence in the outcome.’”) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

III. HABEAS PETITION

A. Ineffective Assistance of Appellate Counsel

In his habeas petition, Abdool argues that appellate counsel was ineffective for failing to argue on direct appeal that the police violated his rights, as a Trinidadian National, under the Vienna Convention. We disagree.

Ineffective assistance of appellate counsel claims are properly presented in a petition for a writ of habeas corpus. Wickham v. State, 124 So.3d 841, 863 (Fla. 2013). “The standard of review for ineffective appellate counsel claims mirrors the Strickland standard for ineffective assistance of trial counsel.” Id. Specifically, to be entitled to habeas relief on the basis of ineffective assistance of appellate counsel, the defendant must establish

[first, that] the alleged omissions are of such magnitude as to constitute a serious error or .substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, [that] the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Bradley v. State, 33 So.3d 664, 684 (Fla. 2010) (quoting Pope v. Wainwright, 496 So.2d 798, 800 (Fla. 1986)). Further, “appellate counsel cannot be deemed ineffective for failing to raise nonmeritorious claims on appeal.” Valle v. Moore, 837 So.2d 905, 908 (Fla. 2002).

Abdool’s Vienna Convention claim is without merit, as we have consistently rejected virtually identical claims, and Ab-dool offers no reason why we. should recede from our precedent. See Maharaj v. State, 778 So.2d 944, 959 (Fla. 2000) (concluding defendant “failed to establish that he has standing [to bring Vienna Conven•tion claim], as treaties are between countries, not citizens”); Conde v. State, 860 So.2d 930, 953 (Fla. 2003) (“[E]ven if [the defendant] had standing to assert a right to consular assistance under the Vienna Convention and were to show that right was violated, this would not be grounds for suppression of an otherwise voluntary confession.”), Accordingly,- as appellate counsel cannot be ineffective for failing to raise a meritless claim, see Valle, 837 So.2d at 908, we deny relief.

IV. Hurst

Next, we consider whether Abdool is entitled to relief after the United States Supreme Court issued its decision in Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Because the jury recommended the death penalty by a vote of ten to two, we conclude that Abdool’s death sentence violates Hurst. See Kopsho v. State, 209 So.3d 568, 570 (Fla. 2017). We must then consider whether the Hurst error was harmless beyond a reasonable doubt:

The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Hurst v. State, 202 So.3d 40, 68 (Fla. 2016) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

Because the jury in this case recommended death by a vote of ten to two, “we cannot determine that the jury unanimously found that the aggravators outweighed the mitigation.” Kopsho, 209 So.3d at 570. “We can only determine that the jury did not unanimously recommend a sentence of death.” Id. Therefore, because we cannot say that there is no possibility that the error did not contribute to the sentence, the error in Abdool’s sentencing was not harmless beyond a reasonable doubt.

Accordingly, we vacate the death sentence and remand for a new penalty phase. See Hurst, 202 So.3d at 69.

V. CONCLUSION

For the foregoing reasons, we affirm the denial of Abdool’s guilt phase claims, but we remand for a new penalty phase pursuant to Hurst.

It is so ordered.

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

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY and LAWSON, JJ., concur.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Because we remand for a new penalty phase, we do not address Abdool’s penalty phase claims.

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

      . The trial court found the heinous atrocious or cruel (HAC) and cold, calculated, and premeditated (CCP) aggravators,

      . The trial court found four statutory mitigating circumstances: (1) no significant history of prior criminal activity (moderate weight); (2) the capital felony was committed while the defendant Was under the influence of extreme mental or emotional disturbance (little weight); (3)- the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially, impaired (little weight); and (4) the age of the defendant.(19) at the time of the crime (moderate weight). It also found the following 48 nonstatutory mitigating circumstances and afforded them very little to moderate weight:.
      . Abdool (1) voluntarily spoke with law enforcement officers (very little weight); (2) ultimately took responsibility for his actions (very little weight); (3) had a biological father who was an alcoholic (very little weight); (4) had a biological father who was a gambler (very little weight]); (5) is hyperactive and has attention deficit disorder (little weight); (6) is developmentally delayed (moderate weight); (7) repeated the third grade (little weight); (8) was affected by his parent’s divorce (little weight); (9) moved to the United States at a young age (very little weight); (10) is estranged from his biological father (very little weight); (11) is intellectually dull (moderate weight); (12) was not placed in a special education class (little weight); (13) has arrested development and social skills (moderate weight);, (14) is emotionally underage (moderate weight); (15) has islets of ability (very little weight); (16) was affected by having to repeat the ninth grade (very little weight); (17) is free from prejudice (very little weight); (18) was unable to successfully complete classes to obtain a GED (very little weight); (19) is a good student in welding (very little weight); (20) was Baker Acted after a 2004 automobile accident (very little weight); (21) moved in with his uncle temporarily due to family tension (very little weight); (22) suffers from obsessive compulsive disorder symptoms (little weight); (23) has features of borderline per-sónality disorder (very little weight); (24) ,has- grandiose delusions (very little weight); (25) suffers. from, impulse control disorder (very little weight); (26) has communication disorder features (very little weight); (27) is a good soccer player (very little . weight); (28) has. attention deficit disorder (little weight); (29) has learning disabilities (moderate weight); (30) suffers from dyslexia (very little weight); (31) has processing glitches (moderate weight); (32). functions on a fourth to sixth grade level (moderate weight); (33) misthinks things through (moderate weight); (34) has low self-esteem (very little-weight); (35) was a'poor student (moderate weight); (36) has the, love and support of family (little weight); (37) was taunted by other kids for being held back in school (very little weight); (38) suffered from-depression (very little weight); (39) dropped out of high school (very little weight); (40) has a good relationship with siblings (very little weight); (41) is unable . to function independently of his family (little weight); (42) suffers from separation anxiety disorder (little weight); (43) is a victim of racial bias (very little weight); ■ (44) experiences feelings of inadequacy when compared to his younger brother (very little weight); (45) failed to pass the FCAT (very little weight); (46) is a responsible trusted émployee (very little weight); (47) is a model inmate (very little weight); (48) demonstrated gpod behavior at trial (very little weight),
      Abdool, 53 So.3d at 215 n.6.

      .Abdool raised the following claims on direct appeal:
      (A) the trial court erred in denying his motion for judgment of acquittal because the evidence did not prove premeditation; (B) the trial court erred in allowing Detective Bobby Gammill to state his opinion on whether Amelia’s death was accidental; (C) the trial court erred by allowing the State to call the victim’s father because he presented- no relevant evidence; (D) the trial court erred by ordering defense counsel to turn over the raw data used by its mental health expert prior to the- penalty phase; (E) the prosecutor elicited improper, inflammatory, and irrelevant evidence during the penalty phase, rendering the proceeding unfair; (F) the victim impact evidence was irrelevant and prejudicial and denied Abdool due process; (G) the trial court improperly found CCP and failed to consider weighty mitigation; (H) the death sentence is not proportionate; and (I) Florida’s capital sentencing scheme is unconstitutional under Ring[ v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)]. In addition, [this Court] considered] (J) whether the evidence is sufficient to support the conviction.
      Abdool, 53 So.3d at 216 (footnote omitted).

      . In addition, Abdool argues that his trial counsel was ineffective for failing to argue that the police violated his rights, as a Trinidadian National,' under the Vienna Convention. However, this claim is procedurally barred, as we have held it is properly raised on direct appeal. See Valle v, State, 70 So.3d 530, 552 (Fla. 2011) (holding the defendant’s claim under the Vienna Convention "is procedurally barred because [he] could and should have raised it on direct appeal”).

      . We also affirm the trial court’s denial of his cumulative error claim. See Lynch v. State, 2 So.3d 47, 86 (Fla. 2008) ("[The appellant] is not entitled to relief on his cumulative error claim because the alleged individual claims of error are all without merit, and, therefore, the contention of cumulative error is similarly without merit.”) (quoting Dufour v. State, 905 So.2d 42, 65 (Fla. 2005)).


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: A.S.
    CASE NO.: SC17-946
    Supreme Court of Florida.
    THURSDAY, MAY 25, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and A.S. shall be admitted to The Florida Bar subject to the following conditions:

1. The Applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the Applicant shall:

(a) continue to consult with Dr. Florence Larrain, or other licensed mental health provider, at least, quarterly or more frequently as her mental' health provider deems necessary;
(b) follow promptly, diligently and completely all instructions by her mental health provider including the taking of any medication in the recommended manner as may be prescribed by her mental health provider;
(c) have her mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the Applicant’s consultations for the preceding quarter and shall'advise The Florida Bar of the Applicant’s continuing ability to engage in the active practice of law;
(d) obtain an agreement from her mental health provider stating that the mental health provider will immediately notify The Florida Bar if the Applicant misses a scheduled appointment without prior rescheduling; and
(e) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the entire probationary period attesting to her compliance with the conditions set forth in 2 (a), (b), (c), and (d) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) Rules Regulating The Florida Bar, and the costs thereof shall be paid by the Applicant.

4. To monitor effectively the provisions in this agreement, the Applicant shall reside within Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the Applicant relocates outside Florida during the probationary period for any reason, the Applicant shall surrender her license to practice law in Florida and if the Applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. If the Applicant’s license is surrendered or terminated during the probationary period, the Applicant shall resume the practice of law in Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

6. A failure to observe the conditions of the probation or a finding of probable cause by The Florida Bar as to conduct of the Applicant committed during the period of probation may terminate the probation and subject the Applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The Applicant shall have ten days to file a response. If no response is timely filed by the Applicant, then the Court shall issue an order suspending the Applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the Applicant.

7. The Applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution or the filing of any grievance or complaint related to the Applicant’s practice of law.

8. If circumstances so warrant it, the Applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the Applicant specifically consents to and authorizes the release of any and all materials in the Applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


author: QUINCE, J. PARIENTE, J.,

text:
    R. Lee SMITH, et al., Petitioners, v. CITY OF JACKSONVILLE, Respondent.
    No. SC15-534
    Supreme Court of Florida.
    [May 25, 2017]
    John F. Fannin and Laura Fannin Jac-qmein of Fisher, Tousey, Leas & Ball, Jacksonville, Florida; and Major B. Harding and Anthony L. Bajoczky, Jr., of Aus-ley & McMullen, Tallahassee, Florida} for Petitioners '
    Jason R. Teal and Sean B. Granat, Deputy General Counsel, and Craig D. Feiser, Assistant General Counsel, Jacksonville, Florida; and Robert M. Rhodes, Jacksonville, Florida, for Respondent
    Linda Loomis Shelley of Buchanan In-gersoll & Rooney PC, Tallahassee, Florida; and Harry Morrison, Jr., and David Cruz of Florida League of Cities, Inc., Tallahassee, Florida, for Amicus Curiae Florida League of Cities
   QUINCE, J.

This case is before the Court for review of the decision of the First District Court of Appeal in City of Jacksonville v. Smith, 159 So.3d 888 (Fla. 1st DCA 2015). In its decision, the district court ruled upon the following question, which the eourt certified to be of great public importance:

MAY A PROPERTY OWNER MAINTAIN AN ACTION PURSUANT TO THE HARRIS ACT IF THAT OWNER HAS NOT HAD A LAW, REGULATION, OR ORDINANCE DIRECTLY .APPLIED TO THE OWNER’S PROPERTY WHICH RESTRICTS OR LIMITS THE USE OF THE PROPERTY?

Id. at 895. We originally accepted jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The one-year statute of limitations for Bert Hands Act claims has expired for all plaintiffs similarly situated to Petitioners with claims which accrued prior to the October 2015 effective date of the 2015 amendment to the Act. See § 70.001(11), Fla. Stat. (2012); ch. 2015-142, § 1, Laws of Fla. Although we previously denied Respondent’s Suggestion of Mootness, we discharge jurisdiction because the certified question is not likely to recur. See Holly v. Auld, 450 So.2d 217, 218 n.1 (Fla. 1984).

It is so ordered.

LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS, J., dissents.

PARIENTE, J.,

concurring in result.

I concur with the majority that the First District Court of Appeal’s decision below should be left intact, which the majority does by declining to answer the certified question. Majority op. at 1118. Our opinion in Hardee County v. FINR II, Inc., No. SC15-1260, 221 So.3d 1162, 2017 WL 2291004 (slip op. issued Fla. May. 25, 2017), “approve[d] the First District’s holding in [City of Jacksonville v. Smith, 159 So.3d 388 (Fla. 1st DCA 2015),] that the-Bert J. Harris, Jr., Private Property Protection Act does not apply to claims arising from government action that regulates property adjacent to the claimant’s property.” Majority op. at 1118. Essentially, that opinion answered the certified question in this case. See majority op. at 1118. Thus, in this case, I would approve the decision below based on our opinion in FINR II, Inc.

      . See § 70,001, Fla. Stat. (2012).


author: PARIENTE, J.

text:
    Moses MCCRAY, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-1235
    Supreme Court of Florida.
    [May 25, 2017]

      Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia A. Terenzio, Bureau Chief, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, Florida, for Respondent
   PARIENTE, J.

We have for review McCray v. State, 199 So.3d 1006 (Fla. 4th DCA 2016), in which the Fourth District Court of Appeal certified conflict with the Third District Court of Appeal’s decision in McIntosh v. State, 743 So.2d 155 (Fla. 3d DCA 1999), “to the extent the results of [McCray] ... may be perceived to conflict with McIntosh.” McCray, 199 So.3d at 1010. We accepted jurisdiction based on this certified conflict. See art. V, § 3(b)(4), Fla. Const.

The issue in this case involves the exercise of peremptory challenges in jury selection and whether a party has the right to “unstrike,” or withdraw a previously exercised peremptory challenge, when it has exhausted its peremptory challenges and the opposing party subsequently accepts the jury panel.

We agree with the Fourth District that the trial court did not abuse its discretion in denying Petitioner Moses McCray’s request to “unstrike” a juror under the circumstances presented. However, we disapprove the Fourth District’s decision to the extent that it endorses a blanket rule prohibiting the withdrawal of a peremptory challenge after a party has exhausted its peremptory challenges. As we explain, McIntosh demonstrates that the withdrawal of a peremptory challenge when a party has already exhausted its peremptory challenges could be warranted by unusual or extenuating circumstances. We emphasize, however, that even though a party may exercise an unused peremptory challenge at any time before the jury is sworn and a trial court has discretion to grant additional peremptory challenges, the party does not have a “right” to “unstrike” a juror.

FACTS

The Fourth District set forth the discussions that occurred during voir dire between the trial court, the parties, and Juror 3.9 — the juror McCray sought to remove from the jury panel after exercising his last remaining peremptory challenge on Juror 2.5:

JUROR 3.9: My name ... I live in Lake Worth. My occupation, I’m working for school district. I’m a driver. I’m married. My wife is (indiscernible). I do have three children. -They are high school. I have never been served jury before.[]
COURT: Is that a no?
JUROR 3.9: No. I have never been in crime victim of any crime. I don’t have any friends in law enforcement. And I will follow the law explained. And yes, I will give fair trial to both sides. And no reason I cannot serve.
STATE: [Juror 3.9], how are you?
JUROR 3.9: Fine.
STATE: Good. We have several folks here that have nice accents and I can kind of tell from some individuals having served on prior jury service or their answers that there was no issue with language. But I wanted to check with you to see you have a nice accent but I want to make sure are you understanding everything that we’re saying?
JUROR 3.9: Yes.
STATE: Excellent. No language problem if you were to serve on the jury?
JUROR 3.9: No.
The defense did not ask Juror 3.9 any direct questions.
During the parties’ initial round of cause challenges, the defendant did not challenge Juror 3.9 for cause.
During the parties’ peremptory strikes, the defendant used his last peremptory strike on Juror 2.5. That strike put Juror 8.9 “in the box” as the sixth juror. The state, which had two peremptory strikes remaining, accepted the panel, including Juror 3.9.
The defendant then stated he wanted to challenge Juror 3.9 for cause because he had “a serious question about [Juror 3.9’s] ability to speak English.”
In response, the trial court stated that Juror 3.9 gave “direct and positive,” “appropriate[ ]” answers; “[h]e did not hesitate in response to any questions;” and he appeared insulted or angered when the state questioned his English. The court therefore denied the defendant’s cause challenge to Juror 3.9.
The defendant then asked for two additional preemptory strikes, after which the following discussion occurred:
COURT: And the reason is because I denied your cause challenge [to juror 3.9J?
DEFENSE: Yes, sir.
COURT: That would be denied.
DEFENSE: [Judge], can we back-strike or unstrike [Juror 2.5] then?
COURT: Unstrike?
DEFENSE: Or back-strike.
COURT: This is a first for me,
STATE: I have never heard of an unstrike.
COURT: It’s not a back-strike because [Juror 2.5 has] already been stricken.
DEFENSE: ,.. You’re right, Judge. We’ve already stricken [Juror 2.5].
COURT: I don’t know how I can un-strike a strike because then that messes up everybody else’s decisions on what you struck or so. That’s our jury ....

McCray, 199 So.3d at 1007-08.

The Fourth District held that, based on its precedent in Davis v. State, 922 So.2d 454 (Fla. 4th DCA 2006), the trial court did not abuse its discretion in- denying McCray’s motion to “unstrike” Juror 2.5, which was a request to withdraw his last peremptory challenge of Juror 2.5 after he had exhausted his peremptory challenges and the State had subsequently accepted the jury panel. McCray, 199 So.3d at 1008. As the Fourth District explained,

after the defendant used his last peremptory strike on Juror 2.5, the state accepted the panel, thereby revealing the state’s strategy to accept Juror 3.9. Allowing the defendant to reveal the state’s strategy to accept Juror 3.9,'and then allowing the defendant to “un-strike” Juror 2.5 in order to strike Juror 3.9, would have prejudiced the state.

Id.

ANALYSIS ’

We are presented with the issue of whether, after a party has exhausted its peremptory challenges and the opposing party subsequently accepts the jury panel, a party has the right to withdraw a formerly exercised peremptory challenge on one juror and use that challenge on another juror after the jury panel has been accepted by the opposing party. “Under our common law, the time and manner of challenging and swearing jurors have traditionally rested within the sound discretion of the trial court.” Tedder v. Video Elec., Inc., 491 So.2d 533, 534 (Fla. 1986). Accordingly, the standard of review of a trial court’s denial of a party’s motion to withdraw a formerly exercised peremptory strike is abuse of discretion. We begin our analysis by explaining the process by which parties can ensure during voir dire that specific jurors are not placed on the jury panel, We then discuss the Fourth District’s decision below and the certified conflict case, McIntosh, while analyzing whether the Fourth District’s decision created a blanket rule prohibiting a party from withdrawing a peremptory challenge after that party has exhausted all peremptory challenges.

Jury Selection Process

During jury selection, “Florida law provides both cause and peremptory challenges to both sides involved in criminal proceedings.” Busby v. State, 894 So.2d 88, 98 (Fla. 2004) (citing §§ 913.03, 913.08, Fla. Stat. (2003)). “Section 913.03 of the Florida Statutes outlines the grounds to support cause challenges.” Id. As this Court has explained, “[t]he necessity of excusing a juror for cause arises where ‘any reasonable doubt exists as to whether the juror possesses an impartial state of mind.’ ” Hayes v. State, 94 So.3d 452, 460 (Fla. 2012) (quoting Busby, 894 So.2d at 95). Cause challenges are “unlimited in number.” Id. (citing Busby, 894 So.2d at 99).

In contrast to cause challenges, peremptory challenges “are limited in number and have traditionally been exercised according to a party’s unfettered discretion.” Id. This Court has long recognized that peremptory challenges are “one of the most important of the rights secured to the accused.”-Id. at 459 (quoting Smith v. State, 59 So.3d 1107, 1111 (Fla. 2011)). In fact, “[affording a criminal defendant the full usé of his or her allotted peremptory challenges is an essential part of securing a fair and impartial jury under Florida’s constitution, and his or her use of peremptory challenges is limited only by the rule that such challenges may not be used to exclude prospective jurors because ■ of their race, ethnicity, or gender.” Id. at 460 (citing Smith, 59 So.3d at 1111).

Florida Rule of Criminal Procedure 3.350(a) provides that the number of peremptory challenges allowed to a party is determined by the type of offense charged. However, a “trial judge has discretion to grant or deny additional peremptory challenges.” Parker v. State, 456 So.2d 436, 442 (Fla. 1984); accord Fla. R. Crim. P. 3.350(e). Prior to the time the jury is sworn, “[a] trial 'judge has no authority to infringe upon a party’s right to challenge any juror, either peremptorily or for cause.” Gilliam v. State, 514 So.2d 1098, 1099 (Fla. 1987) (quoting Jackson v. State, 464 So.2d 1181, 1183 (Fla. 1985)). As this Court explained in Gilliam, the “denial of this right is per se reversible error.” Id.

Once a jury is sworn but before the presentation of evidence, however, a peremptory challenge may only be granted upon a showing, of good cause. Valle v. State, 581 So.2d 40, 44 (Fla. 1991); see also Fla. R. Crim. P. 3.310 (providing that a party may challenge a prospective juror before the jury is sworn, and only for “good cause” after the jury is sworn but before the presentation of evidence).

Peremptory challenges “work in tandem” with cause challenges to “permit the removal of a potential juror in whom the striking party perceives a certain bias or hostility.” Hayes, 94 So.3d at 460. In other words, peremptory challenges do not entitle a defendant “to have a particular composition of jury.” Rich v. State, 807 So.2d 692, 693 (Fla. 3d DCA 2002) (citing Kibler v. State, 546 So.2d 710, 712-13 (Fla. 1989)); see also Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (“Defendants are not entitled to a jury of any particular composition.”).

As the Court explained in Jackson, one manner of exercising a peremptory challenge before the jury is sworn is through backstriking. 464 So.2d at 1183. “The term ‘backstriking’ refers to ‘a party’s right to retract his acceptance and object to a juror at any time before that juror is sworn.’ ” Hayes, 94 So.3d at 456 n.1 (quoting Dobek v. Ans, 475 So.2d 1266, 1267-68 (Fla. 4th DCA 1985)); see also Hunter v. State, 660 So.2d 244, 248 (Fla. 1995). For instance, if a juror whom the party previously accepted was placed on the jury panel, a party could use a remaining peremptory challenge at a later time, but before the jury is sworn, to peremptorily challenge that juror and remove the juror from the jury panel.

McCray contends that his attempted withdrawal of his peremptory challenge of Juror 2.5 cannot be characterized as a “backstrike,” but rather as an “unstrike.” The term “unstrike” has not been used in any reported decision other than in the lower court’s opinion. Based on the facts of this case, the term is best defined as the practice of withdrawing a peremptory challenge used on one juror and then using that same peremptory challenge to exclude another juror. In other words, a party “unstriking” a juror requests that the prior peremptory challenge be withdrawn so that the juror originally challenged is placed back on the jury panel and the peremptory challenge can be used to remove another juror already placed on the jury panel.

Against this backdrop of how a party may exercise peremptory challenges, the question posed by the certified conflict is whether there are limits to the exercise of peremptory challenges. In order to answer this question, we review the Fourth District’s decision in McCray and the certified conflict decision, McIntosh.

McCray and McIntosh

The Fourth District concluded that McCray’s argument that the trial court abused its discretion in not permitting him to withdraw his last exercised peremptory challenge to use on another juror already placed on the jury panel after the State had accepted the jury panel, “lacks merit, pursuant to our holding in Davis v. State, 922 So.2d 454 (Fla. 4th DCA 2006).” McCray, 199 So.3d at 1008. In Davis, “the State used six of its ten peremptory strikes [during jury selection]. The defense used all ten of its peremptory strikes. Thereafter, the jury panel and an alternate was accepted by both sides.” Id. (quoting Davis, 922 So.2d at 455). However, “[d]e-fense counsel then told the [trial] court that [the defendant] wished to withdraw a peremptory challenge made on one juror and use it to strike another.” Id. The trial court denied the request. As the Davis court explained:

The [trial] court’s rationale in denying the “backstrike” request was that the prosecutor’s strategy in utilizing peremptory challenges was based partially on the manner in which the defense exercised its peremptory challenges. The court, therefore, concluded that allowing the defendant to withdraw a challenge so late in the process would prejudice the state.

Davis, 922 So.2d at 455. The Davis court affirmed, reasoning as follows:

Although it is clearly reversible error to deny a challenge to a juror when the defendant has not exhausted all of his peremptory challenges prior to the jury’s being sworn, that is not the case where, as here, a party has exhausted all of its peremptory challenges. Under the facts of this case, we cannot say that the trial court erred in denying [the defendant’s] request to withdraw a peremptory [strike] and then backstrike a previously accepted juror.

Id. (citation omitted).

The Fourth District in McCray held that, “[sjimilar to Davis, we cannot say here that the trial court erred in denying the defendant’s motion to ‘unstrike’ Juror 2.5, upon whom he used his last peremptory strike, so that he could use his last peremptory strike on Juror 3.9,” who had previously been placed on the jury panel. McCray, 199 So.3d at 1008. The Fourth District reasoned that, “as in Davis, after the defendant used his last peremptory strike on Juror 2.5, the state accepted the panel, thereby revealing the state’s strategy to accept Juror 3.9. Allowing the defendant to reveal the state’s strategy to accept Juror 3.9, and then allowing the defendant to ‘unstrike’ Juror 2.5 in order to strike Juror 3.9, would have prejudiced the state.” Id. (emphasis omitted).

McCray contends that, as opposed to Davis, the Third District’s decision in McIntosh applied the proper analysis for evaluating whether a trial court abuses its discretion in refusing a party’s request to withdraw a previously exercised peremptory challenge on one juror after the party had exercised all peremptory challenges, to then use that peremptory challenge on a juror already placed on the jury panel. In McIntosh, “at the conclusion of jury selection, the venire panel had been exhausted but only eleven jurors had been selected for the twelve-person jury.” 743 So.2d at 156. To complete the jury panel, “the State indicated that it was willing to withdraw the previously exercised peremptory challenge against juror Blanco. The defense objected to this procedure, saying that ‘had the State ... kept her on [the jury] initially, it might have changed some of my decisions after that point.’ ” Id. The defendant then requested an additional peremptory challenge, “not to exercise against juror Blanco, but instead to exercise against a different juror, juror Rodriguez. Defense counsel indicated that she had accepted juror Rodriguez ‘given the contents of the panel at that time.’ ” Id. The trial court denied the request for the additional peremptory challenge. On appeal, the Third District affirmed, reasoning:

We find no abuse of discretion in the trial court’s seating of juror Blanco over defense objection. If defense counsel predicated the exercise of at least some of the peremptory challenges on the theory that juror Blanco, having been stricken by the State, would not serve on the jury, then it would be understandable if the defense had requested an additional peremptory challenge to strike juror Blanco. In that circumstance, we would have a different case. Juror Blanco was, however, acceptable to the defense and the request instead was to strike a different juror. The claim of harm here was entirely speculative and the objection was properly overruled.

Id. Thus, McCray asserts that McIntosh determined whether a trial court abused its discretion in granting a motion to “un-strike” a juror by evaluating the harm and available remedy resulting from the “un-strike.” However, as the State points out, even accepting McCray’s argument that McIntosh requires an evaluation of the harm and available remedy in granting a motion to “unstrike” a juror, the Third District in McIntosh recognized that un-striking can adversely affect a party’s jury strategy and may be -prejudicial to the opposing party. As the Third District explained, had the defendant in McIntosh objected to the juror the State’s proposed “unstrike” sought to place back on the jury panel, then the -Third District would have been presented with “a different case.” Id.

Accordingly, we conclude that- under the particular facts of this case, the trial court did not abuse its discretion in denying McCray’s request to “unstrike” Juror 2.5 after McCray had exhausted his peremptory challenges and the State had accepted the jury panel. As the -Fourth District explained:

[A]fter the defendant used his last peremptory strike on Juror 2.5, the state accepted the panel, thereby revealing the state’s strategy to accept Juror 3.9. Allowing the defendant to reveal the state’s strategy to accept Juror 3.9, and then allowing the defendant to “un-strike” Juror 2.5 in order to strike Juror 3.9, would have prejudiced the state.

McCray, 199 So.3d at 1008 (emphasis omitted). We agree with the State that sanctioning the practice of withdrawing a peremptory challenge of a juror after the moving party has exhausted its peremptory challenges and the opposing party has accepted the jury “could not fail to be productive of mischief.” Biddle v. State, 67 Md. 304, 10 A. 794, 794 (1887). As Maryland’s highest state court explained over a century ago, this practice

would lead inevitably to experiments in the formation of juries in criminal eases. A party accused might exhaust his right of peremptory challenge,' and take his chance of getting jurors more favorable to him from among talesman to be returned; but if disappointed in that,- and in order to exclude parties not liked, he would recall his previous challenges, and take jurors that had been before excluded. ■

Id. This reasoning is equally sound today.

We note, however, that there may be rare circumstances where the withdrawal of a peremptory challenge after the party has exhausted all peremptory challenges may be appropriate. The Third District’s decision in McIntosh, where the ve-nire panel had been, exhausted and the juror that one party sought to peremptorily challenge was acceptable to' the opposing party, is such a rare circumstance. Thus, to the extent the Fourth District’s decision in McCray _ endorses a blanket rule prohibiting in all circumstances the withdrawal of a peremptory challenge after a party has exhausted such challenges, we disapprove of such language. Such a blanket rule would be incompatible with a “party’s right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn,” which “a trial judge has no authority to infringe upon.” Hunter, 660 So.2d at 248 (quoting Gilliam, 514 So.2d at 1099). While “denial of this right is per se reversible error” when a party has not exhausted its peremptory challenges, Gilliam, 514 So.2d at 1099, the exhaustion of a party’s peremptory challenges should not automatically foreclose a party’s attempt .to withdraw a juror prior to the jury being sworn. Indeed, even after a juror is sworn, but before any evidence is presented, a party may-challenge the juror for good cause. Fla. R. Crim. P. 3.310.

Our rejection of a blanket rule prohibiting in all instances the withdrawal of a peremptory challenge after a party has exhausted its.peremptory challenges must be considered, however, against the backdrop of our previous emphasis that “[peremptory challenges merely are a ‘means of assuring the selection of a qualified and unbiased jury.’” Jefferson v. State, 595 So.2d 38, 41 (Fla. 1992) (quoting Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). In other words, we emphasize that the rare instance when the withdrawal of a peremptory challenge is granted after a party has exhausted its peremptory challenges must not be the design of gamesmanship, as “[established case law rejects the proposition that a defendant is entitled to have a particular composition of jury.” Rich, 807 So.2d at 693 (citing Kibler, 546 So.2d at 712-13); see also Taylor, 419 U.S. at 538, 95 S.Ct. 692.

THIS CASE

In this case, McCray did not challenge Juror 3.9 for cause or peremptorily prior to exhausting his peremptory challenges. McCray does not claim that any reasonable doubt existed about the juror’s impartiality. Only after exhausting his peremptory challenges, when the State— which still had a number of peremptory challenges remaining — accepted the jury panel, did McCray challenge Juror 3.9 for cause. Once the trial court denied the cause challenge, which McCray does not contest, McCray sought two additional peremptory challenges, which the trial court denied and which McCray also does not contest. It was not until after McCray’s unsuccessful efforts to strike Juror 3.9 for cause and obtain two additional peremptory challenges that he sought to withdraw his prior peremptory challenge to Juror 2.5 so that he could use that peremptory challenge to remove Juror 3.9 from the jury panel. At this point, the State had already accepted the jury panel, thereby revealing its jury selection strategy to accept Juror 3.9. Accordingly, under the facts of this case, the trial court did not abuse its discretion in denying McCray’s request to withdraw his peremptory challenge of Juror 2.5, since doing so would have prejudiced the State.

CONCLUSION

Under the facts of this ease, we approve the Fourth District’s decision that the trial court did not abuse its discretion in rejecting McCray’s motion to withdraw his peremptory challenge of Juror 2.5 to instead use that peremptory challenge on Juror 3.9, who was already seated on the jury panel, after McCray had exhausted his peremptory challenges and the State had accepted the jury panel. However, we disapprove the Fourth District’s opinion in McCray to the extent that it can be read as endorsing a blanket rule prohibiting in any instance the withdrawal of a peremptory challenge after a party has exhausted its peremptory challenges but before the jury is sworn. As McIntosh demonstrates, after a party has exhausted its peremptory challenges, the withdrawal of a peremptory challenge could be warranted by unusual or extenuating circumstances.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, CANADY, and LAWSON, JJ., concur.

POLSTON, J., concurs in result.

      . The venire panel was asked a series of questions regarding their occupation, family life, past experiences on a jury, and where they resided. Most jurors gave short answers to each question, in sequential order as Juror 3.9 did.

      . McCray also contends that Davis was decided incorrectly because it “applied holdings in backstriking cases in an 'unstriking context,” and therefore the Fourth District’s reliance on Davis in McCray was misplaced. We disagree. The rationale in both cases for denying the request for an additional peremptory strike was that allowing an additional peremptory challenge would prejudice the opposing party because the opposing party had accepted the jury. See Davis, 922 So.2d at 455. Moreover, the only holding the Fourth District applied in Davis was this Court’s holding that it is reversible error to deny a request for a peremptory challenge when the party has not exhausted its peremptory challenges. See Hunter, 660 So.2d at 248-49; Gilliam, 514 So.2d at 1099.